{"id":60504,"date":"2010-03-08T00:00:00","date_gmt":"2010-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tamilarasan-vs-state-by-on-8-march-2010"},"modified":"2015-07-11T13:18:45","modified_gmt":"2015-07-11T07:48:45","slug":"tamilarasan-vs-state-by-on-8-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tamilarasan-vs-state-by-on-8-march-2010","title":{"rendered":"Tamilarasan vs State By on 8 March, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Tamilarasan vs State By on 8 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 08\/03\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.M.AKBAR ALI\n\nCRL.A.(MD)No.137 of 2004\n\n\t\t\t\t\t\t\t\t\n1.Tamilarasan\t\t\t\t\t.. Appellants\/\n\t\t\t\t\t\t   Accused Nos.1&2\n2.Ayyappan\t\t\t\n\n \t\t\t\t\t\t\t\t\t\t\nVs\n\t\t\t\t\t\nState by\nThe Inspector of Police,\nDevakottai Taluk Police station,\nSivagangai District.\t \t\t\t.. Respondent\n\n\n\nPRAYER\n\nAppeal filed under Section 374 of the Code of Criminal Procedure,\nagainst the judgment and conviction passed by the learned Asst.Sessions Judge,\nDevakottai in S.C.No.109 of 2003, dated 05.10.2004.\n\n!For Appellants\t   ...  Mr.K.Jeganathan\n^For Respondent\t   ...  Mr.L.Murugan\n\t\t\tGovt.Advocate (crl.side)\n\n\n:JUDGMENT\n<\/pre>\n
\tThe Criminal Appeal is preferred against the conviction and sentence
\npassed by the learned Asst. Sessions Judge, Devakottai, in S.C.No.109 of 2003,
\ndated 5.10.2004, for the offences under Section 366, 324, 376 and 392 r\/w 34
\nI.P.C.\n<\/p>\n
\t2.The appellants were charged for an offence under Section 366 IPC for
\nkidnapping PW2, Selvi, on 06.11.1999 and also for wrongful restrain of the
\nvictim.  The first appellant is charged for an offence under Section 376 IPC for
\nrape and also for robbery, and under Section 392 of I.P.C., for illegally taking
\ncash and jewels from the victim. The second appellant is charged for the same
\noffences r\/w 34 IPC for having common intention.\n<\/p>\n
\t3.The brief case of the prosecution is as follows:\n<\/p>\n
\tP.W.1, Subramanian and P.W.2, Selvi, are brother and sisters, belonged to
\nMathur Village of Kallangudi.  P.W.9, Saras, is the mother. P.W.13 Arayee and
\nP.W14 Muthu, are their paternal Aunty and uncle. P.W.2 (herein after referred as
\nprosecutrix) was married to one Muruganantham S\/o.P.W.3, Kaliappan who belonged
\nto Kallangudi Village of Devakottai.  The said Murganandam was employed at
\nSingapure. The prosecutrix was living with her in-laws at Kallangudi.  According
\nto P.W.1, the brother of the prosecutrix, he had given a sum of Rs.25,000\/- in
\ncash and 20 sovereigns of gold jewels to the  prosecutrix for safe custody.  The
\ncash and jewels were meant for the marriage of his younger sister. According to
\nthe prosecutrix, on 06.11.1999, at 6.30 am she took the cash and jewels and was
\nproceeding to Kallangudi in order to hand over the same to his brother. When she
\nwas waiting for bus to go to Devakottai, the appellants and along with one Pandi
\ncame in a taxi and told the prosecutrix that they can drop her at Devakottai.
\nBelieving the appellants, the prosecutrix got into the taxi. On reaching
\nDevakottai they did not stop and the prosecutrix protested. The appellants gaged
\nher and took her to Coimbatore and she was confined in a house.  The first
\nappellant took the jewels and cash and handed over to the second appellant.  On
\nthat night, the first appellant forcibly had an sexual intercourse with the
\nprosecutrix against her will and consent.  The prosecutrix protested but the
\nfirst appellant over powered her.\n<\/p>\n
\t4.She was kept in the house for three days and every day the first
\nappellant had sexual intercourse with the prosecutrix against her will and she
\nsustained injuries.  After three days, the appellants brought her to Devakottai.
\nMeanwhile, P.W.1 went to Kallangudi and enquired about her with P.W.3, father-
\nin-law.  He was told that P.W.2 left with jewels and cash on 6.11.1999 to
\nMathur.  P.W.1 came back to Mathur and found that she had not come back and
\nenquired in various places.\n<\/p>\n
\t5.While so, the appellants left the prosecutrix at Aranthangi bus-stand
\nand promised to return the cash and jewels but they did not come back.  On
\n11.11.1999, she went to the house of P.W.15 at Keelanalli Kottai and on the next
\nday she went to P.W.14’s house at Chithivayal. On 14.11.99,P.W.4 saw a paper
\nadvertisement regarding the missing of P.W.2 and contacted P.W.1.P.W.2 was taken
\nto Mathur.\n<\/p>\n
\t6.On 15.11.1999, P.W.1 launched a complaint, Ex.P1, with the Inspector of
\nPolice, Taluk Police Station, Devakottai, alleging that his sister Selvi was
\nmissing from 6.11.1999 and also alleging that the appellants had  kidnapped her.
\nP.W.18, the Inspector of Police, received the complaint on 15.11.1990 around
\n12.10 p.m., and registered a case in Crime No.261 of 1999, for the offences
\nunder Section 363 I.P.C., and prepared Ex.P.6, the First Information Report and
\ninitiated the investigation.  On 15.11.1999, the Inspector of Police examined
\nthe witnesses and recorded the statement and on the same day he arrested the
\nappellants 1 and 2.  On 23.11.1999, he recorded the statement of the prosecutrix
\nand altered the offences under Sections 366, 342, 376 and 392 read with 34 I.P.C
\nand sent the altered F.I.R., under Ex.P.12. The prosecutrix was subjected for
\nmedical examination on 25.11.1999. Dr.Umadevi of Government Rajaji Hospital,
\nMadurai, who was examined as P.W.17, had found that there is no injury on the
\nbody of the prosecutrix and issued Ex.P5, Medical Certificate.  The first
\nappellant was also subjected for medical examination and P.W.16,
\nDr.Thiyagarajan, examined him.  The apparels of the prosecutrix Mos.1 to 3 were
\nseized and subjected for chemical analysis.\n<\/p>\n
\t7.On completion of the investigation, P.W.22, the then Inspector of
\nPolice, laid a charge sheet as stated above. On committal, the Learned Asst.
\nSessions Judge enquired.\n<\/p>\n
\t8.On examination of the witnesses and on perusal of the documents and
\nmaterial objects, the learned Asst. Sessions Judge found that the prosecution
\nhas proved the case beyond reasonable doubt. The first accused was found guilty
\nfor the offences under Sections 366, 342, 376(2), 506(ii), and 392 I.P.C. and
\nthe second accused also found guilty under the same offences read with section
\n34 I.P.C.  The Assistant Sessions Judge mostly relied on the sole evidence of
\nthe prosecutrix to drive home the guilt of the accused.\n<\/p>\n
\t9.Aggrieved by the conviction and sentence, the appellants have preferred
\nthe present appeal on various grounds, more particularly on the ground that the
\nprosecutrix is a consenting party, who had eloped with the first appellant and
\nthe sole evidence cannot be relied on.\n<\/p>\n
\t10.The points for consideration arises in this appeal is whether the sole
\nevidence of the prosecutrix can be based for a conviction and whether her
\nevidence  inspires confidence and is found to be reliable?\n<\/p>\n
\t11.Mr.K.Jeganathan, the learned counsel for the appellants submitted that
\nthe conduct of the prosecutrix   would show that the prosecutrix went along with
\nthe first appellant on her own and stayed with him. The learned counsel pointed
\nout that if she is not a consenting party she could have raised an alarm, when
\nshe was abducted in a car or at the place, where she was confined for three
\ndays.  The learned counsel further pointed out that she came to the house of
\nP.W.15 on 11.11.1999 and she has not revealed anything to him and she had gone
\nto P.W.14’s house and stayed for two days and had not confided any thing to her
\nown aunt. The learned counsel pointed out that on seeing the paper
\nadvertisement for woman, P.W.14 had informed P.W.1 and only thereafter, a
\ncomplaint was given by P.W.1, as if the appellants have kidnapped her. The
\nlearned counsel further pointed out that on 15.11.1999 itself, the appellants
\nwere arrested for an offence under Section 366 I.P.C., and only on 23.11.1999,
\nthe prosecutrix was pressurized to give a statement of alleged kidnapping, rape,
\nrobbery and the other offences.  The learned counsel further pointed out that
\nthe conduct of the prosecutrix and the delay in filing the First Information
\nReport would clearly demonstrate that only on the instigation of P.W.1 and the
\npressure from the family members, the prosecutrix has given a version of
\nforcible intercourse against her will.  The learned counsel also relied on the
\ninfirmity in the investigation and also relied on the Medical Certificate issued
\nby the Doctor, which would show that there was no injury on the body of the
\nprosecutrix and the opinion of the Doctor that the prosecutrix is accustomed to
\nsexual intercourse.\n<\/p>\n
\t12.On the contrary, Mr.L.Murugan, Govt.Advocate (crl.side)submitted that
\nthe this Court and the Hon’ble Supreme court, in catena of decisions have
\nreiterated that conviction can be based on sole testimony of the prosecutrix.\n<\/p>\n
\t13.The appellants are charged for the offences under Sections 366, 342,
\n376(two counts) 392 and 506(ii) r\/w 34 IPC.  The appellants 1 and 2 were found
\nguilty for all the offences.\n<\/p>\n
\t14.The entire case of the prosecution revolves around the evidence of
\nprosecutrix. According to P.Ws.1, 3, and 8, the brother, mother and father-in-
\nlaw of  the prosecutrix, she was found missing from 6.11.1999 and she left the
\nhouse with some cash and jewels.  P.W.11 would state that he saw the prosecutrix
\nat Coimbatore at Ganapathipuram. When  he came back to his Village, he came to
\nknow about missing of P.W.2 and told that he saw her at Coimbatore. Only on
\n11.11.1999, P.W.11 one Ramaiah saw her standing at Aranthangi Bus-stand and on
\nenquiry, she told him that she is going to Keelanalli Kottai.  On 11.11.1999,
\nP.W.14 met her but the prosecutrix has not stated anything to him. Then she left
\nfor P.W.13’s house at Chithivayal and she has not revealed anything to P.W.13.
\nOnly on seeing the paper advertisement, P.W.13 had intimated P.W.1 and only
\nthereafter, the law was set on motion by lodging a complaint under Ex.A1. On
\n15.11.1999, the appellants were arrested under Section 363 and till 23.11.1999
\nthe prosecutrix has not  given any statement implicating the accused for all the
\nabove said offences.  The prosecutrix is aged 24 years and having a child.
\nAdmittedly, there is no injury on the body of the prosecutrix. Mos.1 to 3 did
\nnot show any blood stains or seminal stains.\n<\/p>\n
\t15.In a case of rape, there can not be a direct evidence to prove the
\nguilt of the accused.  The entire evidence is based on the prosecutrix’s
\nversion. The Apex Court has again and again reiterated that conviction can be
\nbased on the sole evidence of the prosecutrix. However such evidence must
\ninstill and inspire confidence in the mind of the Court to believe her.\n<\/p>\n
\t16.In (2002) 5 S.C.C 745 (State of Rajasthan Vs. OM.Prakash), the Hon’ble
\nSupreme Court held that the testimony of the victim in such cases is vital and
\nunless there are compelling reasons which necessitate looking for corroboration
\nof her statement, the courts should have no difficulty to act on the testimony
\nof a victim of sexual assault alone to convict an accused where her testimony
\ninspires confidence and found to be reliable.(emphasis is given)\n<\/p>\n
\t17.In 2003(3) SCC 175 (Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P.
\nand another)  the Hon’ble Supreme Court in a similar case held that the evidence
\nof the prosecutrix does not inspire confidence.  It is true that the conviction
\nof an accused on the basis of testimony of prosecutrix alone is permissible but
\nthat is in a case where the evidence of the prosecutrix inspire confidence and
\nappears to be natural and truthful.\n<\/p>\n
\t18.The inherent bashfulness of the females and the tendency to conceal
\noutrage of sexual aggression are factors, which the court should not overlook.
\nHowever, when the prosecutrix happen to be a  married  woman, the conduct of the
\nparty and the circumstances under which she is placed cannot be ignored. If the
\nconduct and the other circumstances are so overwhelming, which create a
\nsuspicion then the testimony requires further corroboration.\n<\/p>\n
\t19.The conduct of the prosecutrix during and after the occurrence is very
\nimportant.\n<\/p>\n
\t(a) She had board on the taxi on her own will and she had not raised any
\nalarm till the tax reached Coimbatore.\n<\/p>\n
\t(b) She was with the appellants at Coimbatore for three days and she never
\nraised any alarm or protested.\n<\/p>\n
\t(c)P.W.12, a resident of her Village had seen her at Coimbatore Bus-stand
\nand she had not sought any help.\n<\/p>\n
\t(d) P.W.11, her relative had seen her at Aranthangi Bus-stand and she had
\nnot sought his help.\n<\/p>\n
\t(e) She had gone to P.W.14’s house and stayed for a day and she had not
\ntold anything.\n<\/p>\n
\t(f) She went to P.W.13’s house and stayed for two days and she had not
\nrevealed anything.\n<\/p>\n
    (g) Eight days after the arrest of the appellants for an offence for
\nkidnapping,she had given the statement implicating the appellants for the
\nserious offences.\n<\/p>\n
\t20.According to P.W.1, only on 15.11.1999, she had revealed to him and
\neven thereafter, for eight days, she had not given any statement and only on
\n23.11.1999, she had given a statement implicating the appellants for the
\noffences as stated above. Though the prosecution has examined as many as 14
\nwitnesses in relation to the offences, none of them have spoken about having
\nseen the appellants and the prosecutrix together between 6.11.1999 and
\n15.11.1999.\n<\/p>\n
\t21.Yet another circumstances would also reveal that there was enmity
\nbetween the family of the first accused and the family of P.W.3, the father-in-
\nlaw of the prosecutrix. The appellants as well as the prosecutrix known to each
\nother and belongs to the same Village.  It is pertinent to note that the husband
\nof the prosecutrix is in abroad.  A married woman, stated to have been
\nproceeding to her village from in-laws place, was kidnapped, robbed of her
\njewels and cash, confined and raped and still she has not revealed anything to
\nanybody even after the arrest of the accused. I see a reason in the argument of
\nthe learned counsel for the appellant that the entire episode  could be an
\naffair between the prosecutrix and the first accused except for the turn around
\nby the prosecutrix to level the charge against the first appellant\/accused for
\nthe alleged kidnapping, wrongful confinement, rape and  robbery. It is also
\npertinent to note that nothing is recovered from the appellants, either cash or
\njewels.\n<\/p>\n
\t22. In my considered view, the sole testimony of the prosecutrix does not
\ninspire  confidence and not found to be reliable to convict the appellants for
\nthe charges leveled against. Therefore, the conviction based on the sole
\nevidence of the prosecutrix, which is not convincing, is not sustainable and
\nliable to be set aside. The points are answered accordingly.\n<\/p>\n
\t23.In the result, the criminal appeal is allowed and the conviction and
\nthe sentence passed by the learned Asst.Sessions Judge, Devakottai, in
\nS.C.No.109 of 2003, dated 05.10.2004, is set aside and the appellants are
\nacquitted.\n<\/p>\n
MPK<\/p>\n
To<\/p>\n
1.The Inspector of Police,
\n  Devakottai Taluk Police station,
\n  Sivagangai District.\n<\/p>\n
2.The Asst.Sessions Judge,
\n  Devakottai.\n<\/p>\n
3.The Addl.Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-60504","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nTamilarasan vs State By on 8 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tamilarasan-vs-state-by-on-8-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tamilarasan vs State By on 8 March, 2010 - 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