Madras High Court
S.Murugan vs The State Rep By Its on 24 August, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.(MD)No.106 of 2016
S.Murugan : Appellant
Vs.
The State Rep by its
Inspector of Police,
Kayathar Police Station,
Tuticorin District.
(Crime No.339/2013) : Respondent
PRAYER: This Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to call for the records in S.C.No.150 of 2014 dated
19.01.2016 on the file of the Sessions Judge, Mahalir Neethimandram (Fast
Track Court) Tuticorin and allow this appeal and acquit the appellant from
the charge by setting aside the impugned judgment dated 19.01.2016.
For Appellant : Mr.Aayiram K.Selvakumar
For Respondent : Mr.M.Muthumanikkam,
Government Advocate (crl.side)
https://www.mhc.tn.gov.in/judis/
2
JUDGMENT
This present criminal appeal is directed against the conviction and
sentence dated 19.01.2016 passed in S.C.No.150 of 2014 on the file of the
learned Sessions Judge, Mahalir Neethimandram (Fast Track Court),
Tuticorin.
2.The appellant is the sole accused. He stood charged for the
offence punishable under Sections 450 and 376 r/w 511 of IPC. After full-
fledged trial, the learned Sessions Judge, Mahalir Neethimandram (Fast
Track Court), Tuticorin, came to the conclusion that the appellant is found
guilty for the offence under Sections 450 and 376 r/w 511 of IPC and
accordingly, the appellant was convicted under Section 450 of I.P.C and
sentenced to undergo two years rigorous imprisonment and to pay a fine of
Rs.1,000/-, in default, to undergo one month rigorous imprisonment.
Further he has been convicted under Section 376 r/w 511 of I.P.C and
sentenced to undergo 5 years rigorous imprisonment and to pay a fine of
Rs.2,000/-, in default, to undergo six months rigorous imprisonment.
Challenging the conviction and sentence, the appellant is before this Court
with the present Criminal Appeal.
https://www.mhc.tn.gov.in/judis/
3.The case of the prosecution in brief is as follows:-
(i) The victim Madathi is no more. Due to her death, she has not
been examined as witness before the trial Court. Both PW1 and PW2 are
close relatives to the victim girl. On 06.10.2013 around 7.00 p.m while at
the time the victim girl came out from her residence to attend the natural
call, the appellant/accused pulled her hands, for which she had pushed of his
hands and went to her house. Thereafter, by following the victim, the
accused entered into the victim's house, pulled her hand, removed her dress,
pressed her breast and after pouring the coconut oil on her vagina, he
sexually assaulted the victim girl. After the said occurrence, on the next
day morning around 06.00 am the same was reported to PW1 by the victim.
Immediately, PW1 informed the said occurrence to the peoples, who are
residing in the said village and ultimately, the victim along with PW1 went
to the police station, wherein the police persons obtained a left hand thumb
impression from the victim. In the said complaint, PW1 signed as a
witness. The said complaint given by the deceased Madathi, was marked as
Ex.P1.
(ii) PW7-Ponnarasu, the then Inspector of Police, Kayathar Police
https://www.mhc.tn.gov.in/judis/
Station, on 07.10.2013 while at the time he was in police station, received
the information from the Government Hospital, Kovilpatti, in respect to the
alleged occurrence, rushed to the Hospital, examined the victim girl and
recorded the statement. After recording the statement as above, around
23.00 hours, he returned to the police station and registered a case against
the accused in Crime No.339 of 2013 under Sections 450 and 376 r/w 511
of I.P.C. The printed FIR is marked as Ex.P5. Immediately, after
registration of the case, around 23.30 hours, he visited the scene of
occurrence and prepared an observation mahazar and rough sketch under
Ex.P6 and Ex.P7 respectively. He examined the witnesses and recorded
their statements. In the presence of the same witnesses, he recovered 50 ml
VVD coconut oil (M.O.1) under a cover of seizure mahazar, Ex.P8.
(iii) In continuation of investigation, on 08.10.2013 around 08.30
a.m in Rajaputhukudi bus stand in the presence of PW6-Mariappan and one
Joseph, he arrested the accused and recorded the confession statement given
by the accused. Thereafter, he made arrangements for sending the accused
to the remand. He submitted an application before the Court for sending
the accused to the Medical examination. In turn, PW5-Dr.Moses Paul
attached with Government Hospital, Kovilpatti, examined the victim girl
https://www.mhc.tn.gov.in/judis/
and issued Accident Register under Ex.P4 stating that there was no
symptoms to say that the accused is impotent. Similarly in view of the
requisition given by the Investigation Officer, PW4-Dr.Sudha examined the
victim girl and found the following injuries:-
No external injuries seen over her breast or monsputis.
A lacertated injury of 2x0.5x0.5 cm present over perineum.
Vagina admits two fingers tightly.
Thereafter, she collected the cervical smear and the vaginal smear and sent
the same for chemical examination and in the chemical examination, no
spermatozoa is detected and thereafter, he issued the certificate under
Ex.P3. Ultimately, on 06.02.2014, PW7 concluded the investigation and
filed a final report alleging that the accused herein is liable to be convicted
under Sections 450 and 376 (1) of I.P.C.
4.Based on the materials available on record, the trial Court
framed the charges for the offences under Sections 450 and 376 r/w 511 of
I.P.C. The accused denied the charges and opted for trial. Therefore, all the
accused was put on trial.
https://www.mhc.tn.gov.in/judis/
5.During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, as many as 7 witnesses were examined
as PW1 to PW7 and 8 documents were exhibited as Ex.P1 to Ex.P8 besides
one material object (M.O.1).
6. (i) Out of the above said witnesses, PW1-Rebeckal, who is the
relative of victim Madathi, speaks about the occurrence as on the next date
of occurrence, the victim Madathi came to her house and reported the matter
which had happened in the yesterday night. PW2-Sudalai, who is the
husband of PW1 gave evidence similar to the evidence given by PW1.
PW3-Kannan, who is signed in the observation mahazar and rough sketch,
had not supported the case of prosecution. Hence, he was treated as hostile
witness.
(ii) PW4-Dr.Sudha, who examined the victim speaks about the
injury sustained by the victim and about the issuance of certificate. PW5-
Dr.Moses Paul, who is also the Doctor examined the accused and issued the
certificate as the accused is not a impotent.
(iii) PW6-Mariappan, speaks about the previous enmity had
https://www.mhc.tn.gov.in/judis/
between PW2 and the accused. PW7- the then Inspector of Police speaks
about the receipt of complaint, manner of investigation conducted and the
arrest of the accused and about the filing of final report.
7.When the above incriminating materials were put to the accused
under Section 313 of Cr.P.C., the accused denied the same as false.
However, he did not choose to examine any witness nor mark any document
on his side.
8.Having considered all the above, the learned Sessions Judge,
Mahalir Neethimandram (Fast Track Court) Tuticorin, came to the
conclusion that the accused herein found guilty of offence under Sections
450 and 376 r/w 511 of I.P.C and accordingly, convicted and sentenced the
accused as stated in paragraph No.2 of this judgment, Aggrieved by the
said conviction and sentence, the appellant/accused is before this Court with
this appeal.
9. I have heard Mr.Aayiram K.Selvakumar, learned counsel
appearing for the appellant/accused and Mr.M.Muthumanikkam, learned
Government Advocate (crl.side) appearing for the State and also perused the
records carefully.
https://www.mhc.tn.gov.in/judis/
10.The learned counsel appearing for the appellant would contend
that in respect to the lodging of complaint before the Police, PW1 has stated
two different versions, hence, to clarify the same, it is necessary to examine
the author of the said document, but unfortunately the victim, who is the
author of the document, is no more. Further, being the reason that the
alleged occurrence had happened in the night hours, the competent person
to say the occurrence is only the victim. Further, though there were a lot of
residential houses available in and around the occurrence place, the
Investigation Officer has not examined any body who are residing in the
said locality. According to him, the said lapses found in the case of the
prosecution create a doubt whether the alleged occurrence had happened as
alleged by the prosecution or not.
11.Per contra, the learned Government Advocate (Crl.side)
appearing for the State would contend that though the victim has not been
examined as witness, the evidence given by PW1 and PW2 and the evidence
given by the Doctor, who examined the victim , are sufficient to hold that at
the time of occurrence with an intention to commit the offence, the accused
committed an offence of house trespass and attempted to commit rape. Only
https://www.mhc.tn.gov.in/judis/
by considering the other circumstances, the trial Court has held that the
accused is guilty under Sections 450 and 376 r/w 511 of IPC. According to
him, interference of this Court in the finding arrived at by the trial Court
does not require.
12.I have considered the rival submissions made by the learned
counsel appearing on either side.
13.It is an unfortunate case that after filing the charge sheet when
at the time the case is posted for trial, the victim died due to some other
reasons. Therefore, only the persons, who heard the occurrence from the
victim have been examined as PW1 and PW2 to say about the occurrence.
First of all, in respect to the lodging of complaint, PW1 who attested in the
alleged complaint gave evidence as immediately after getting information
from the victim, she along with the victim went to the police station and
reported the same. She has further stated that after reporting the incident,
the police personnel obtained left hand thumb impression from the victim
Madathi. Accordingly, the evidence given by PW1 is made clear that before
taking treatment, the complaint has been lodged before the police station.
On the other hand, in respect to the receipt of the complaint, PW7,who
https://www.mhc.tn.gov.in/judis/
registered the case gave evidence before the trial Court that after the receipt
of the information from the Hospital, he rushed to the hospital and obtained
a complaint from the victim girl. Therefore, in the said circumstances, to
resolve the said contradiction, it is necessary to get evidence from the author
of the said document. In this connection, though it was stated on the side of
the prosecution that the victim/prosecutrix is no more, in order to
substantiate the same, before the trial Court, the Death Certificate pertains
to the victim has not been produced. Therefore, it is quite clear that the
Investigation Officer in this case, without taking any necessary effects
proceeded the trial before the trial Court. Accordingly, I am of the view that
in respect to the lodging of complaint itself, the case of the prosecution is
having some lapses.
14.In matrimonial matters, it is significant that Sections 113-A
and 113-B were inserted in the Evidence Act by the same amendment by
which certain presumptions in cases of abetment of suicide and dowry
death, have been raised against the accused. These two sections, thus, raise
a clear presumption in favour of the prosecution, but no similar presumption
with respect to rape, is visualized as the presumption under Section 114-A is
extremely restricted in its applicability. This clearly shows that insofar as
https://www.mhc.tn.gov.in/judis/
allegations of rape are concerned, the evidence of a prosecutrix must be
examined as that of an injured witness whose presence at the spot is
probable, but it can never be presumed that her statement should, without
exception, be taken as the gospel truth. Additionally, her statement can, at
best, be adjudged on the principle that ordinarily no injured witness would
tell a lie or implicate a person falsely.
15. It is well settled law that the sole testimony of prosecutrix is
sufficient to accept the case of the prosecution in respect to the offence like
rape. But in this case, as already stated that the prosecutrix is no more.
However, it is a case, in which after the occurrence the victim girl was
admitted in the hospital and thereafter, she was subjected to the medical
examination. In this regard, PW4 who is the Doctor examined the victim
girl, has stated in her evidence that there was a injury in the perineum area
of the victim girl. In otherwise, the area between the anus and the vulva is
called as perineum. Accordingly, the said evidence coupled with the
evidence given by PW1, is in support of the prosecution that there may a
possibility to commit the offence by the accused at the time of occurrence.
However, being the reason that in criminal cases the prosecution is having
the duty to prove their case beyond reasonable doubt. Mere possibility
https://www.mhc.tn.gov.in/judis/
found in favour of the prosecution. is not sufficient to hold that the entire
occurrence is a true one.
16. Secondly, now on go through the evidence given by PW1, it is
made clear that at the time of occurrence, the accused committed an offence
of rape. On the other hand, the learned trial Judge when at the time of
deciding the case came to the conclusion that there was a penetration on the
victim girl in full, but the medical evidence would go to show that there was
no penetration either in full or in part. Only after observing as above, the
trial Court has held that the accused is liable to be convicted under Section
376 r/w 511 of IPC. In this aspect also, to identify the real issue, the
evidence of victim girl is necessary. In the said circumstances, with the
absence of evidence in respect to the offence under Section 376 r/w 511 of
IPC, the question of convicting the accused under Section 450 of IPC also
goes away.
17.In view of the above discussions stated supra, I am of the
opinion that the prosecution has not proved the case beyond reasonable
doubt. But the trial Court without appreciating the said issue presumed that
the evidence given by the Doctor is sufficient to accept the case of the
prosecution as the accused is liable to be convicted under Sections 450 and
https://www.mhc.tn.gov.in/judis/
376 r/w 511 of IPC.
18.In fine, this Criminal Appeal is allowed and the conviction and
sentence imposed on the appellant/accused, by the learned Sessions Judge,
Mahalir Neethimandram (Fast Track Court) Tuticorin, dated 19.01.2016, is
set aside and the appellant/accused is acquitted of all the charges. The fine
amount, if any, paid by him, shall be refunded to him. The appellant/first
accused is directed to be released forthwith, unless his presence is required
in connection with any other case.
25.08.2021
Index : Yes/No
Internet : Yes/No
cp
To:-
1.The Sessions Judge, Mahalir Neethimandram (Fast Track Court)
Tuticorin.
2.The Inspector of Police,
Kayathar Police Station,
Tuticorin District.
https://www.mhc.tn.gov.in/judis/
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
R.PONGIAPPAN, J.
cp
JUDGMENT MADE IN
Crl.A.(MD)No.106 of 2016
24.08.2021
https://www.mhc.tn.gov.in/judis/
