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Madras High Court
Tamilarasan vs State By on 8 March, 2010
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 08/03/2010

CORAM
THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI

CRL.A.(MD)No.137 of 2004

								
1.Tamilarasan					.. Appellants/
						   Accused Nos.1&2
2.Ayyappan			

 										
Vs
					
State by
The Inspector of Police,
Devakottai Taluk Police station,
Sivagangai District.	 			.. Respondent



PRAYER

Appeal filed under Section 374 of the Code of Criminal Procedure,
against the judgment and conviction passed by the learned Asst.Sessions Judge,
Devakottai in S.C.No.109 of 2003, dated 05.10.2004.

!For Appellants	   ...  Mr.K.Jeganathan
^For Respondent	   ...  Mr.L.Murugan
			Govt.Advocate (crl.side)


:JUDGMENT

The Criminal Appeal is preferred against the conviction and sentence
passed by the learned Asst. Sessions Judge, Devakottai, in S.C.No.109 of 2003,
dated 5.10.2004, for the offences under Section 366, 324, 376 and 392 r/w 34
I.P.C.

2.The appellants were charged for an offence under Section 366 IPC for
kidnapping PW2, Selvi, on 06.11.1999 and also for wrongful restrain of the
victim. The first appellant is charged for an offence under Section 376 IPC for
rape and also for robbery, and under Section 392 of I.P.C., for illegally taking
cash and jewels from the victim. The second appellant is charged for the same
offences r/w 34 IPC for having common intention.

3.The brief case of the prosecution is as follows:

P.W.1, Subramanian and P.W.2, Selvi, are brother and sisters, belonged to
Mathur Village of Kallangudi. P.W.9, Saras, is the mother. P.W.13 Arayee and
P.W14 Muthu, are their paternal Aunty and uncle. P.W.2 (herein after referred as
prosecutrix) was married to one Muruganantham S/o.P.W.3, Kaliappan who belonged
to Kallangudi Village of Devakottai. The said Murganandam was employed at
Singapure. The prosecutrix was living with her in-laws at Kallangudi. According
to P.W.1, the brother of the prosecutrix, he had given a sum of Rs.25,000/- in
cash and 20 sovereigns of gold jewels to the prosecutrix for safe custody. The
cash and jewels were meant for the marriage of his younger sister. According to
the prosecutrix, on 06.11.1999, at 6.30 am she took the cash and jewels and was
proceeding to Kallangudi in order to hand over the same to his brother. When she
was waiting for bus to go to Devakottai, the appellants and along with one Pandi
came in a taxi and told the prosecutrix that they can drop her at Devakottai.
Believing the appellants, the prosecutrix got into the taxi. On reaching
Devakottai they did not stop and the prosecutrix protested. The appellants gaged
her and took her to Coimbatore and she was confined in a house. The first
appellant took the jewels and cash and handed over to the second appellant. On
that night, the first appellant forcibly had an sexual intercourse with the
prosecutrix against her will and consent. The prosecutrix protested but the
first appellant over powered her.

4.She was kept in the house for three days and every day the first
appellant had sexual intercourse with the prosecutrix against her will and she
sustained injuries. After three days, the appellants brought her to Devakottai.
Meanwhile, P.W.1 went to Kallangudi and enquired about her with P.W.3, father-
in-law. He was told that P.W.2 left with jewels and cash on 6.11.1999 to
Mathur. P.W.1 came back to Mathur and found that she had not come back and
enquired in various places.

5.While so, the appellants left the prosecutrix at Aranthangi bus-stand
and promised to return the cash and jewels but they did not come back. On
11.11.1999, she went to the house of P.W.15 at Keelanalli Kottai and on the next
day she went to P.W.14’s house at Chithivayal. On 14.11.99,P.W.4 saw a paper
advertisement regarding the missing of P.W.2 and contacted P.W.1.P.W.2 was taken
to Mathur.

6.On 15.11.1999, P.W.1 launched a complaint, Ex.P1, with the Inspector of
Police, Taluk Police Station, Devakottai, alleging that his sister Selvi was
missing from 6.11.1999 and also alleging that the appellants had kidnapped her.
P.W.18, the Inspector of Police, received the complaint on 15.11.1990 around
12.10 p.m., and registered a case in Crime No.261 of 1999, for the offences
under Section 363 I.P.C., and prepared Ex.P.6, the First Information Report and
initiated the investigation. On 15.11.1999, the Inspector of Police examined
the witnesses and recorded the statement and on the same day he arrested the
appellants 1 and 2. On 23.11.1999, he recorded the statement of the prosecutrix
and altered the offences under Sections 366, 342, 376 and 392 read with 34 I.P.C
and sent the altered F.I.R., under Ex.P.12. The prosecutrix was subjected for
medical examination on 25.11.1999. Dr.Umadevi of Government Rajaji Hospital,
Madurai, who was examined as P.W.17, had found that there is no injury on the
body of the prosecutrix and issued Ex.P5, Medical Certificate. The first
appellant was also subjected for medical examination and P.W.16,
Dr.Thiyagarajan, examined him. The apparels of the prosecutrix Mos.1 to 3 were
seized and subjected for chemical analysis.

7.On completion of the investigation, P.W.22, the then Inspector of
Police, laid a charge sheet as stated above. On committal, the Learned Asst.
Sessions Judge enquired.

8.On examination of the witnesses and on perusal of the documents and
material objects, the learned Asst. Sessions Judge found that the prosecution
has proved the case beyond reasonable doubt. The first accused was found guilty
for the offences under Sections 366, 342, 376(2), 506(ii), and 392 I.P.C. and
the second accused also found guilty under the same offences read with section
34 I.P.C. The Assistant Sessions Judge mostly relied on the sole evidence of
the prosecutrix to drive home the guilt of the accused.

9.Aggrieved by the conviction and sentence, the appellants have preferred
the present appeal on various grounds, more particularly on the ground that the
prosecutrix is a consenting party, who had eloped with the first appellant and
the sole evidence cannot be relied on.

10.The points for consideration arises in this appeal is whether the sole
evidence of the prosecutrix can be based for a conviction and whether her
evidence inspires confidence and is found to be reliable?

11.Mr.K.Jeganathan, the learned counsel for the appellants submitted that
the conduct of the prosecutrix would show that the prosecutrix went along with
the first appellant on her own and stayed with him. The learned counsel pointed
out that if she is not a consenting party she could have raised an alarm, when
she was abducted in a car or at the place, where she was confined for three
days. The learned counsel further pointed out that she came to the house of
P.W.15 on 11.11.1999 and she has not revealed anything to him and she had gone
to P.W.14’s house and stayed for two days and had not confided any thing to her
own aunt. The learned counsel pointed out that on seeing the paper
advertisement for woman, P.W.14 had informed P.W.1 and only thereafter, a
complaint was given by P.W.1, as if the appellants have kidnapped her. The
learned counsel further pointed out that on 15.11.1999 itself, the appellants
were arrested for an offence under Section 366 I.P.C., and only on 23.11.1999,
the prosecutrix was pressurized to give a statement of alleged kidnapping, rape,
robbery and the other offences. The learned counsel further pointed out that
the conduct of the prosecutrix and the delay in filing the First Information
Report would clearly demonstrate that only on the instigation of P.W.1 and the
pressure from the family members, the prosecutrix has given a version of
forcible intercourse against her will. The learned counsel also relied on the
infirmity in the investigation and also relied on the Medical Certificate issued
by the Doctor, which would show that there was no injury on the body of the
prosecutrix and the opinion of the Doctor that the prosecutrix is accustomed to
sexual intercourse.

12.On the contrary, Mr.L.Murugan, Govt.Advocate (crl.side)submitted that
the this Court and the Hon’ble Supreme court, in catena of decisions have
reiterated that conviction can be based on sole testimony of the prosecutrix.

13.The appellants are charged for the offences under Sections 366, 342,
376(two counts) 392 and 506(ii) r/w 34 IPC. The appellants 1 and 2 were found
guilty for all the offences.

14.The entire case of the prosecution revolves around the evidence of
prosecutrix. According to P.Ws.1, 3, and 8, the brother, mother and father-in-
law of the prosecutrix, she was found missing from 6.11.1999 and she left the
house with some cash and jewels. P.W.11 would state that he saw the prosecutrix
at Coimbatore at Ganapathipuram. When he came back to his Village, he came to
know about missing of P.W.2 and told that he saw her at Coimbatore. Only on
11.11.1999, P.W.11 one Ramaiah saw her standing at Aranthangi Bus-stand and on
enquiry, she told him that she is going to Keelanalli Kottai. On 11.11.1999,
P.W.14 met her but the prosecutrix has not stated anything to him. Then she left
for P.W.13’s house at Chithivayal and she has not revealed anything to P.W.13.
Only on seeing the paper advertisement, P.W.13 had intimated P.W.1 and only
thereafter, the law was set on motion by lodging a complaint under Ex.A1. On
15.11.1999, the appellants were arrested under Section 363 and till 23.11.1999
the prosecutrix has not given any statement implicating the accused for all the
above said offences. The prosecutrix is aged 24 years and having a child.
Admittedly, there is no injury on the body of the prosecutrix. Mos.1 to 3 did
not show any blood stains or seminal stains.

15.In a case of rape, there can not be a direct evidence to prove the
guilt of the accused. The entire evidence is based on the prosecutrix’s
version. The Apex Court has again and again reiterated that conviction can be
based on the sole evidence of the prosecutrix. However such evidence must
instill and inspire confidence in the mind of the Court to believe her.

16.In (2002) 5 S.C.C 745 (State of Rajasthan Vs. OM.Prakash), the Hon’ble
Supreme Court held that the testimony of the victim in such cases is vital and
unless there are compelling reasons which necessitate looking for corroboration
of her statement, the courts should have no difficulty to act on the testimony
of a victim of sexual assault alone to convict an accused where her testimony
inspires confidence and found to be reliable.(emphasis is given)

17.In 2003(3) SCC 175 (Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P.
and another) the Hon’ble Supreme Court in a similar case held that the evidence
of the prosecutrix does not inspire confidence. It is true that the conviction
of an accused on the basis of testimony of prosecutrix alone is permissible but
that is in a case where the evidence of the prosecutrix inspire confidence and
appears to be natural and truthful.

18.The inherent bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors, which the court should not overlook.
However, when the prosecutrix happen to be a married woman, the conduct of the
party and the circumstances under which she is placed cannot be ignored. If the
conduct and the other circumstances are so overwhelming, which create a
suspicion then the testimony requires further corroboration.

19.The conduct of the prosecutrix during and after the occurrence is very
important.

(a) She had board on the taxi on her own will and she had not raised any
alarm till the tax reached Coimbatore.

(b) She was with the appellants at Coimbatore for three days and she never
raised any alarm or protested.

(c)P.W.12, a resident of her Village had seen her at Coimbatore Bus-stand
and she had not sought any help.

(d) P.W.11, her relative had seen her at Aranthangi Bus-stand and she had
not sought his help.

(e) She had gone to P.W.14’s house and stayed for a day and she had not
told anything.

(f) She went to P.W.13’s house and stayed for two days and she had not
revealed anything.

(g) Eight days after the arrest of the appellants for an offence for
kidnapping,she had given the statement implicating the appellants for the
serious offences.

20.According to P.W.1, only on 15.11.1999, she had revealed to him and
even thereafter, for eight days, she had not given any statement and only on
23.11.1999, she had given a statement implicating the appellants for the
offences as stated above. Though the prosecution has examined as many as 14
witnesses in relation to the offences, none of them have spoken about having
seen the appellants and the prosecutrix together between 6.11.1999 and
15.11.1999.

21.Yet another circumstances would also reveal that there was enmity
between the family of the first accused and the family of P.W.3, the father-in-
law of the prosecutrix. The appellants as well as the prosecutrix known to each
other and belongs to the same Village. It is pertinent to note that the husband
of the prosecutrix is in abroad. A married woman, stated to have been
proceeding to her village from in-laws place, was kidnapped, robbed of her
jewels and cash, confined and raped and still she has not revealed anything to
anybody even after the arrest of the accused. I see a reason in the argument of
the learned counsel for the appellant that the entire episode could be an
affair between the prosecutrix and the first accused except for the turn around
by the prosecutrix to level the charge against the first appellant/accused for
the alleged kidnapping, wrongful confinement, rape and robbery. It is also
pertinent to note that nothing is recovered from the appellants, either cash or
jewels.

22. In my considered view, the sole testimony of the prosecutrix does not
inspire confidence and not found to be reliable to convict the appellants for
the charges leveled against. Therefore, the conviction based on the sole
evidence of the prosecutrix, which is not convincing, is not sustainable and
liable to be set aside. The points are answered accordingly.

23.In the result, the criminal appeal is allowed and the conviction and
the sentence passed by the learned Asst.Sessions Judge, Devakottai, in
S.C.No.109 of 2003, dated 05.10.2004, is set aside and the appellants are
acquitted.

MPK

To

1.The Inspector of Police,
Devakottai Taluk Police station,
Sivagangai District.

2.The Asst.Sessions Judge,
Devakottai.

3.The Addl.Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.


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