Madras High Court
A.Srinivasan vs State Of Tamil Nadu Represented By on 7 January, 2021
Crl.A.No.792 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.792 of 2013
A.Srinivasan,
S/o. Annamalai .. Appellant/Accused
Vs.
State of Tamil Nadu Represented by
Inspector of Police,
Muthandikuppam Police Station,
Caddalore. ...Respondent/Complainant
PRAYER : The Criminal Appeal filed under Section 374(2) r/w. 382 of
the Criminal Procedure Code, to set aside the judgment dated 28.11.2013
passed by the District and Sessions Judge, Mahila Court, Cuddalore in
SC.No.307/2012.
For Appellant : Mr.R.Muralidharan
For Respondent : Mrs.Saradha Devi
G.A. (Criminal Side)
JUDGMENT
(The case has been heard through video conference)
This Criminal Appeal has been filed, against the judgment of
conviction and sentence passed by the learned District and Sessions Judge,
Mahila Court, Cuddalore in S.C.No.307 of 2012, finding the
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Appellant/accused guilty for the offences under Sections 376, 365 and 366
IPC, and convicting and sentencing him to undergo seven years Rigorous
Imprisonment and to pay a fine of Rs.5,000/- in default to undergo One
Year Rigorous Imprisonment for the offence under Section 376 IPC and to
undergo three years rigorous imprisonment and to pay a fine of Rs.3,000/-
in default to undergo Six Months Rigorous Imprisonment for the offence
under Section 365 IPC and to undergo three years rigorous imprisonment
and to pay a fine of Rs.3,000/- in default to undergo Six Months Rigorous
Imprisonment for the offence under Section 366 IPC and ordering the
sentences to run concurrently.
2. Brief facts of the case: The criminal law in this matter has been set
in motion based on the complaint lodged by the victim girl aged 21 years
on 23.08.2011, the complaint was registered by the respondent police for
the offence under Section 361, 365 & 376 IPC. The complaint which has
been marked as Ex.P1. As per Ex.P1/Complaint, the father of the victim
was working at NLC as a labourer and that she was undergoing 2 nd year
BCA course at Jawahar College of Arts and Science and that the
Appellant/Accused was working as a contract labourer in NLC and that
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the Appellant/Accused has already been married and having two sons aged
about 16 years and 11 years respectively and that the Appellant/Accused
was a close relative to the victim girl viz. the son of her elder paternal
uncle. The accused has been harassing the victim girl for about six months
to have sexual intercourse with him and that she had informed the same to
her sister-in-law/Amsavalli and that her sister in law assured the victim
that she will enquire the same with the Appellant/Accused. While so, on
28.07.2011, the Appellant/Accused informed over phone to the victim girl
that they are giving scholarship in her college and asked her to go and
receive the same from the college. Believing the same, the victim girl
informed it to her sister-in-law and gone to the college to collect it. On the
same day at around 3.30 p.m., while she was returning back from college,
the Appellant/Accused had waylaid her and taken her to the nearby cashew
grove and compelled her to marry him. The victim had informed him that
the relationship between them is a prohibited one and that she cannot
marry him. While so, he had taken her into the cashew grove and
compelled her and had sexual intercourse with her. Later, she had informed
him that she was feeling thirsty and the Appellant/Accused offered her
Maaza (Cool drink) to drink and after drinking the same the victim fell
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down unconsciously and she was not aware of anything after drinking the
same. On the next day i.e., on 29.7.2011, at about 10.00 a.m., when she had
woken up, she came to understand that she was in a hotel room in Chennai
and the accused kept her in the hotel room for 11 days and had sexual
intercourse with her for two times. On 08.08.2011 at around 11.00 p.m.,
the Appellant/Accused had taken her to Koyambedu bus stand and took
her back to the native village in Kollukarankuttai in a bus and thereafter,
dropped her near the Muthandikuppam Police station. The victim had not
given any complaint on the same day. After few days, the victim had
informed her parents about the occurrence and thereafter, she had given a
complaint to the respondent and requested them to take action against the
Appellant/Accused for having abducted her and committed rape on her.
3. Based on the complaint, a case was registered by the PW6/Sub
Inspector of Police in Crime No.296 of 2011. Thereafter, the case was
taken up for investigation by PW7/Inspector of police, and after
completing the investigation, he filed charge sheet against the
Appellant/Accused for the offences under Sections 376, 365, 366 IPC and
the same was taken on the file of the learned Judicial Magistrate-I, Panruti.
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4. After complying with the formalities and furnishing copies to the
Appellant/Accused under Section 207 Cr.P.C., the Judicial Magistrate
No.I, Panruti committed the case to the Sessions Court for trial. After
questioning the accused, the trial Court framed the charges against the
accused for the offences under Sections 365, 366 and 376 of IPC.
5. In order to establish the case of the prosecution, the prosecution
has examined seven witness viz. P.W.1 to P.W.7 and marked seven
documents viz. EX.P1 to Ex.P7.
6. After completion of evidence on the side of the prosecution, the
Trial Court questioned the Appellant/Accused, under Section 313(1)(b)
Cr.P.C., in respect of incriminating circumstances found in the evidence of
the prosecution and the Appellant/Accused had denied the charges and
stated that he was present at Neyveli from 28.07.2011 and was working as
a contract labourer in N.L.C., and that his wife was aware of the same and
he had denied having abducted and committed sexual intercourse on the
victim.
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7. To substantiate his defence, his wife Kaviyarasi was examined as
D.W.1 and no documentary evidence was marked.
8. After hearing the arguments on both sides and on a perusal of the
evidence and materials placed before the trial Court, the trial Court found
the Appellant/accused guilty and convicted the Appellant/Accused as
stated above.
9.Aggrieved against the said judgement of conviction and sentence
passed by the learned District and Sessions Judge, Mahila Court,
Cuddalore in S.C.No.307 of 2012, dated 28.11.2013, the accused preferred
the present appeal before this Court.
10. The learned Counsel for the Appellant/Accused while assailing of
the judgment of conviction and sentence raised the following grounds;
1. Though there could be no iota of doubt that the
conviction can be passed on the sole testimony of the
prosecutrix even without corroboration, the testimony
should be credible and be of un-impeachable
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character. The evidence of prosecutrix does not
inspire confidence and there is absolutely no evidence
to show that there was absence of consent. There is
absolutely no evidence of resistance and the medical
evidence does not prove that there was a rape on the
victim.
2. Though alibi has been pleaded by the
Appellant/Accused, even assuming the case of the
prosecution to be true, a case of misguided
relationship, elopement and consensual sex has been
falsely projected as a case of rape.
3. Admittedly, the victim is aged 21 years.
Though it is the case of the prosecution that the victim
was abducted from her native place and was taken to
Chennai, which is 200 k.m. away and kept her in
confinement in a hotel room for 11 days and raped
twice, no evidence has been let in by the prosecution
to prove the charges for the offence under Section 365,
366 and 376 IPC.
4. The testimony of the victim is not only
unimaginable, it is also unbelievable. It is highly
suspicious and un-reliable.
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5. The delay in lodging F.I.R. creates doubt and
suspicion in the case of the prosecution.
6. The conduct of the victim and her family
members is not of normal human conduct. The
conduct of the family members of the victim in not
giving complaint to the police for 11 days after her
missing from home and the conduct of the victim in
not giving complaint for 4 days after returning from
Chennai is not only fatal to the case of the prosecution,
it also makes the case of the prosecution highly
doubtful.
7. Though injury on the body of the person of the
victim is not a sine qua non to prove the charge of
rape, the medical evidence belies the case of the
prosecution with regard to rape since, no evidence of
injury or as to resistance by the victim is established.
8. Admittedly, there was dispute between the
family of the victim and the family of the
Appellant/accused and as per PW.4, the complaint has
been given only after consultation and much
deliberation and the victim had been compelled and
persuaded to give the complaint.
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11. In support of the above contentions, the learned Counsel for the
Appellant/Accused relied on the judgment of the Hon'ble Apex Court
reported in 1.) Radhu v. State of MP reported in (2008) 2 SCC (Cri)
207 and in 2.)Mohd. Ali Alias Guddu Vs. State of Uttar Pradesh in
2015 7SCC 272 wherein, the Hon'ble Apex Court in a case of similar set
of facts had acquitted the accused.
12. Per Contra, Ms.Saradha Devi, learned Government Advocate (Crl.
Side) appearing for the Respondent would submit that the prosecution has
proved its case by adducing clear and cogent evidence. It is the case where
a girl was abducted from her home town and kept in a hotel room at
Chennai for 11 days and the family members fearing loss of reputation to
the family, had not given the complaint and thereby, much significance
cannot be attached to the delay in lodging of the complaint. She would
further submit that the injuries on the body of the victim is not a sine qua
non for deciding whether rape has been committed and that the trial Court
finding that there had been no consent by the victim had rightly convicted
the Appellant/Accused and thereby, prays for confirming the judgement of
conviction and sentence.
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13. Heard the learned Counsels on either side and perused the
materials placed on record.
14.Now while looking into the evidence on record, P.W.1/Victim has
deposed that she is aged 24 years and she was born on 02.06.1989 and that
she knows the Appellant/Accused and that she had gone to the college to
receive the scholarship and the staff of her college had informed her that
they were not giving scholarship on that day. Thereafter, she was returning
home in her bicycle through the cashew groves. At that time, the
Appellant/Accused had stopped her and called her to come with him to
cashew grove to speak and that he had taken her bicycle and she had
followed him inside the cashew grove and they were conversing for some
time and that he had induced her saying that he would marry her. While
conversing, he had compelled her and had sexual intercourse with her.
After that, she had told him that she was feeling thirsty and he had given
her Maaza and when she drank it, she became unconscious and she was
not aware what had happened. On the same day at 11.00 p.m., they were at
Chennai and that they were together in a hotel room for 11 days and the
Appellant/Accused used to come in the night and that during that time he
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had sexual intercourse with her twice. On 08.08.2011, at 11.00 p.m., the
Appellant/Accused along with his friend had taken her to Koyambedu Bus
stand to return back to their native village and on the next day morning, he
dropped her near Muthandikuppam Police Station and thereafter, she had
given a complaint before Muthandikuppam Police Station and since they
did not accept the complaint, she had once again gone to the police station
along with her parents even then, the respondent had refused to accept the
complaint. Thereafter, they have given a complaint to the Superintendent
of Police, Cuddalore and based on the direction, the complaint was taken at
Muthandikuppam Police Station. The complaint was marked as Ex.P1.
15. PW2/ Dr.Lavanya had deposed that on 03.11.2011 at 2.00p.m.,
the victim was brought before her for examination and she had informed
that she lastly had sexual intercourse on 06.08.2011, and that a one month
old scar was found on the left side of her breast. She had further stated that
apart from that injury no other injury was found on the body of the victim
and that since the victim was brought after a month no spermatozoa was
found in the private part. She had opined that the victim had completed 21
years and she is fit to undergo sexual intercourse and that she might have
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had sexual intercourse. Report of Medical Examination of the victim was
marked as Ex.P2 and the opinion of P.W.2 was marked as Ex.P3.
16. PW3/ Dr.Senthil Kumar had deposed that on 24.09.2011, he had
examined the Appellant/Accused and that no injuries were found on the
body or the private part of the Appellant/Accused. Further, he had opined
that there was nothing to suggest that the Appellant/Accused was impotent.
The opinion of P.W.3 was marked as Ex.P4.
17. P.W.4/ Jaya, the mother of the victim had deposed that she knows
the Appellant/Accused and he is not related to her. Two years back her
daughter had gone to her college at around 1.00 p.m., to receive the
scholarship and she did not return home and she had given a complaint to
the Muthandikuppam Police station, whereas, they have refused to accept
the complaint. Thereafter, her daughter had returned home after 11 days
and she was not spoken to her for 3 days. Later, she had disclosed that the
Appellant/Accused had raped her and thereafter, they have gone and given
a complaint at the Superintendent of Police, Cuddalore and since, no case
was registered, they have approached the High Court.
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18. P.W.5/ Ganesan had deposed that on 23.08.2011 at 5.00 p.m., the
police have taken him to the cashew grove belonging to the
Appellant/Accused and prepared the Observation Mazahar/Ex.P5 in
which, he and one Kodisundaram had attested as witnesses.
19. P.W.6/ Arun Kumar, Sub Inspector of Police had deposed that on
23.08.2011 at 3.30 p.m., P.W.1/Victim had appeared before him and given
a complaint and he had received and registered a case in Crime No.296 of
2011 for the offence under Section 344, 366 and 376 IPC and handed over
the case to PW7 for investigation. The F.I.R. was marked as Ex.P6.
20. P.W.7/ Suyambu, Inspector of Police had deposed that he had
taken the case for investigation on 23.08.2011 and on the same day at
5.00 p.m., he went to the place of occurrence and prepared the Observation
Mahazar/Ex.P7 in the presence of the witnesses viz., Ganesan and
Kodisundaram. Thereafter, he had examined the witnesses viz., the victim,
Kuppusamy, Jaya, Amsavalli, Ranjani, Ganesan and Kodisundaram and
recorded their statements. Thereafter, on 02.09.2011, he had sent the
victim for medical examination. On 24.09.2011, he had enquired the
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Appellant/Accused and he did not co-operate for the
investigation. Thereafter, he had sent the Appellant/Accused for medical
examination through one Rajendran/Special Sub Inspector of Police.
Thereafter, he had enquired the Doctor Lavanya/P.W.2 who conducted
medical examination on the victim and Doctor Senthil Kumar/P.W.3, who
conducted medical examination of the Appellant/Accused and recorded
their statements and obtained certificates from them. Thereafter, he had
examined the Special Sub Inspector/Rajendran, Arun Kumar and Head
Constable and recorded their statements and after completing the
investigation, filed the final report against the Appellant/Accused on
27.06.2012, for the offences under Sections 365, 366, 376 IPC.
21.On the side of the defence, D.W.1/Kalaiyarasi, the wife of the
Appellant/Accused was examined and she had deposed that her husband
viz., the Appellant/Accused had helped the victim for her education and
that she is known to her and that there was a civil dispute between the
family of her husband and the family of the victim. She had further
deposed that between 28.07.2011 to 07.08.2011, her husband was working
as a contract labour at the Mines in NLC., and during such time, she had
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heard that the victim has quarrelled with her mother and had gone away
from her home and thereafter, 10 days later, the family of the victim had
given a complaint before the Muthandikuppam Police Station. Since, it
was a false complaint the police had not registered the case.
22. With regard to the judgments relied on by the counsel for the
appellant in Radhu v. State of MP reported in (2008) 2 SCC (Cri) 207, the
Hon'ble Apex court, while holding that the finding of guilt in a case of rape
can be based on the uncorroborated evidence of the Prosecutrix and that
her testimony should not be rejected on the basis of minor discrepancies
and contradictions, had held that the absence of injuries on the private
parts of the victim will not by itself falsify the case of rape, nor can be
construed as evidence of consent, however, at the same time, the Courts
should bear in mind that false charges of rape are not uncommon and that
there are rare instances where a parent has persuaded a gullible or obedient
daughter to make a false charge of a rape either to take revenge or extort
money or to get rid of financial liability. The Hon'ble Supreme Court had
further held that whether there was rape or not would depend ultimately on
the facts and circumstances of each case.
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23. Further in Mohd. Ali Alias Guddu Vs. State of Uttar Pradesh
reported in 2015 7SCC 272 the Hon'ble Apex Court has held
“21. It is apt to mention here that in rape cases
the delay in filing the FIR by the prosecutrix or by the
parents in all circumstance is not of significance. The
authorities of this Court have granted adequate
protection/allowance in that aspect regard being had
to the trauma suffered, the agony and anguish that
creates the turbulence in the mind of the victim, to
muster the courage to expose oneself in a
conservative social milieu. Sometimes the fear of
social stigma and on occasions the availability of
medical treatment to gain normalcy and above all the
psychological inner strength to undertake such a legal
battle. But, a pregnant one, applying all these
allowances, in this context, it is apt to refer to the
pronouncement in Rajesh Patel v. State of
Jharkhand 2013 3 SCC 791 wherein in the facts and
circumstances of the said case, delay of 11 days in
lodging the FIR with the jurisdictional police was
treated as fatal as the explanation offered was
regarded as totally untenable. This Court did not
accept the reasoning ascribed by the High Court in
accepting the explanation as the same was
fundamentally erroneous.
22. .........
23. In Kamlesh Prabhudas Tanna v. State of
Gujarat 2013 15 SCC 263 dealing with the duty of the
appellate court, this Court observed: (SCC p. 267,
para 9)
“9. At this juncture, we are obliged to state that
though it may be difficult to state that the judgment
suffers from sans reasons, yet it is not at all difficult to
say that the reasons ascribed are really apology for
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reasons. If we allow ourselves to say so, one may
ascribe certain reasons which seem to be reasons but
the litmus test is to give seemly and condign reasons
either to sustain or overturn the judgment. The
filament of reasoning must logically flow from
requisite analysis, but, unfortunately, the said
exercise has not been carried out. In this context, we
may refer with profit to the decision in Padam Singh
v. State Of U.P. 2000 1 SCC 621, wherein a two-
Judge Bench, while dealing with the duty of the
appellate court, has expressed thus: ( SCC p. 625,
para 2)
‘2. … It is the duty of an appellate court to look into
the evidence adduced in the case and arrive at an
independent conclusion as to whether the said
evidence can be relied upon or not and even if it can
be relied upon, then whether the prosecution can be
said to have been proved beyond reasonable doubt on
the said evidence. The credibility of a witness has to
be adjudged by the appellate court in drawing
inference from proved and admitted facts. It must be
remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
prosecution case is substantially true and the guilt of
the accused has been proved beyond all reasonable
doubt as the presumption of innocence with which the
accused starts, continues right through until he is held
guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal
nor weakened by a conviction in the trial court.’”
(emphasis in original)
24. In Rama v. State of Rajasthan 2002 4 SCC 571 the
Court has expressed about the duty of the appellate
court thus: (SCC p. 572, para 4)
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“4. … It is well settled that in a criminal appeal, a
duty is enjoined upon the appellate court to
reappraise the evidence itself and it cannot proceed to
dispose of the appeal upon appraisal of evidence by
the trial court alone especially when the appeal has
been already admitted and placed for final hearing.
Upholding such a procedure would amount to
negation of valuable right of appeal of an accused,
which cannot be permitted under law.”
Similar principles have been reiterated in Iqbal Abdul
Samiya Malek v. State Of Gujarat 2012
11 SCC 312, Padam Singh v. State Of U.P. and Bani
Singh v. State of U.P
25. A three-Judge Bench in Majjal v. State Of
Haryana 2013 6 SCC 798 has ruled thus:
(SCC p. 800, para 7)
“7. It was necessary for the High Court to consider
whether the trial court's assessment of the evidence
and its opinion that the appellant must be convicted
deserve to be confirmed. This exercise is necessary
because the personal liberty of an accused is curtailed
because of the conviction. The High Court must state
its reasons why it is accepting the evidence on record.
The High Court's concurrence with the trial court's
view would be acceptable only if it is supported by
reasons. In such appeals it is a court of first appeal.
Reasons cannot be cryptic. By this, we do not mean
that the High Court is expected to write an unduly
long treatise. The judgment may be short but must
reflect proper application of mind to vital evidence
and important submissions which go to the root of the
matter.”
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26.The obtaining factual matrix has to be appreciated
on the touchstone of the aforesaid parameters.
27.Be it clearly stated here that delay in lodging FIR
in cases under Section 376 IPC would depend upon
facts of each case and this Court has given immense
allowance to such delay, regard being had to the
trauma suffered by the prosecutrix and various other
factors, but a significant one, in the present case, it
has to be appreciated from a different perspective.
The prosecutrix was missing from home. In such a
situation, it was a normal expectation that either the
mother or the brother would have lodged a missing
report at the police station. The same was not done.
This action of PW 2 really throws a great challenge to
common sense. No explanation has been offered for
such delay. The learned trial Judge has adverted to
this facet on an unacceptable backdrop by referring to
the principle that prosecutrix suffered from trauma
and the constraint of the social stigma. The
prosecutrix at that time was nowhere on the scene. It
is the mother who was required to inform the police
about missing of her grown-up daughter. In the
absence of any explanation, it gives rise to a sense of
doubt.
28.That apart, the factum that the appellant informed
the mother of the victim that he had left the
prosecutrix at the door of her house also does not
command acceptance. The recovery of the prosecutrix
by the brother and his friends also creates a cloud of
suspicion. We are not inclined to believe the
prosecution version as has been projected that one
Arif had informed the brother of the prosecutrix that
his sister was at his place but for reasons best known
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to the prosecution, Arif has not been examined. That
apart, the persons who were accompanying the
brother have also not been examined by the
prosecution. Thus, the manner of recovery of the
prosecutrix from the house of Arif remains a mystery.
29. Be it noted, there can be no iota of doubt that on
the basis of the sole testimony of the prosecutrix, if it
is unimpeachable and beyond reproach, a conviction
can be based. In the case at hand, the learned trial
Judge as well as the High Court have persuaded
themselves away with this principle without
appreciating the acceptability and reliability of the
testimony of the witness. In fact, it would not be
inappropriate to say that whatever the analysis in the
impugned judgment, it would only indicate an
impropriety of approach. The prosecutrix has deposed
that she was taken from one place to the other and
remained at various houses for almost two months.
The only explanation given by her is that she was
threatened by the accused persons. It is not in her
testimony that she was confined to one place. In fact,
it has been borne out from the material on record that
she had travelled from place to place and she was
ravished a number of times. Under these
circumstances, the medical evidence gains
significance, for the examining doctor has
categorically deposed that there are no injuries on the
private parts. The delay in FIR, the non-examination
of the witnesses, the testimony of the prosecutrix, the
associated circumstances and the medical evidence,
leave a mark of doubt to treat the testimony of the
prosecutrix as so natural and truthful to inspire
confidence. It can be stated with certitude that the
evidence of the prosecutrix is not of such quality
which can be placed reliance upon.
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30.True it is, the grammar of law permits that the
testimony of a prosecutrix can be accepted without
any corroboration without material particulars, for
she has to be placed on a higher pedestal than an
injured witness, but, a pregnant one, when a court, on
studied scrutiny of the evidence finds it difficult to
accept the version of the prosecutrix, because it is not
unreproachable, there is requirement for search of
such direct or circumstantial evidence which would
lend assurance to her testimony. As the present case
would show, her testimony does not inspire
confidence, and the circumstantial evidence remotely
does not lend any support to the same. In the absence
of both, we are compelled to hold that the learned
trial Judge has erroneously convicted the appellant-
accused for the alleged offences and the High Court
has fallen into error, without re appreciating the
material on record, by giving the stamp of approval to
the same.
31.Resultantly, the appeals are allowed, the judgment
of conviction and order of sentence are set aside and
as the appellants are on bail, they be discharged of
their bail bonds.”
24. Now going through the evidence on record in consonance with
the judgment referred above, it is the case of the victim that she is aged 21
years and studying 2nd year BCA Course in a College at Neyveli. The
Appellant/Accused is related to her being her cousin and it is her further
case that on 28.07.2011, while she was returning home from her college in
her bicycle, the Appellant/Accused stopped her near his cashew grove and
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in the guise of chatting with her had taken her inside the cashew grove
where, he had subjected her to sexual intercourse by force. Thereafter, she
had stated that she was thirsty and asked for drink and he had offered
Maaza to her and that she had drunk it and fell unconscious. It is her
further case that on the next day morning when she woke up, she was
found in a lodge at Koyambedu, Chennai, which is 200 k.m. away from her
home town. It is her case that she was not aware how she was brought from
her home town to Chennai and thereafter, she was kept inside a hotel room
for 11 days and was subjected to rape inside the hotel room. When
confronted during cross examination that the Appellant/Accused was
working at NLC during the relevant period the victim had stated that he
used to come to the room in the night. The further case of the victim is that
on 08.08.2011, at around 11.00p.m., the Appellant/Accused had taken her
from the hotel room to Koyambedu Bus stand and both of them travelled
back to their native village in Kollukarankuttai. Thereafter, he had dropped
her near Muthandikuppam Police Station. However, she did not give any
complaint on the same day and did not inform her parents and after 4 days
only she had informed her parents and thereafter, based on the complaint
given by her, a case was registered.
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Crl.A.No.792 of 2013
25. The statement of the victim that she fell unconscious and that she
is not aware as to how she was taken to Chennai and how she was taken
inside a hotel room is highly suspicious. Absolutely, nothing has been
stated by the victim that she either resisted or raised a hue & cry when the
Appellant/Accused subjected her to forcible rape at the cashew grove in
her village. She has also not stated anything of having raised any hue and
cry when she was subjected to rape inside the hotel room or that she made
any attempt to escape from the hotel room where she was confined for
11days and nothing has been stated as if, she either made any complaint to
the persons in the hotel at Chennai. Further she had accompanied the
Appellant/Accused back to the village in a public transport and though the
Appellant/Accused left her near a police station, she had not given any
complaint to the police for several days after her return to the village from
Chennai.
26. It is the case of the PW.4, the mother of the victim that the victim
did not speak to them for 3 days and only after three days she disclosed
about the abduction and rape and only thereafter, they have given the
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Crl.A.No.792 of 2013
complaint to the respondent police. The conduct of the parents of the
prosecutrix in not giving the complaint for 25 days is against normal
natural human conduct and the delay in filing the F.I.R. has not been
properly explained and that no explanation has been given by the
prosecution for the delay. Further no observation has been made and no
opinion has been expressed by the learned trial Judge with regard to the
same. As per evidence of PW.4, the complaint has been given only after
deliberation and consultation with the Advocate. Even As per, PW.2, the
Doctor who had conducted the medical examination on the victim, she had
only stated that the victim is fit to have sexual intercourse and there is
chance that she could have had sexual intercourse few days earlier and the
Doctor has not given any conclusive opinion with regard to the victim
having been subjected to rape or forcible intercourse. Further, though it
is the case of the prosecution that she was taken from her home town to
Chennai, which is 200 k.m. away and kept in a hotel room at Chennai, the
prosecution has not let in any evidence to prove that the victim was
abducted and kept in confinement at Chennai. Absolutely, no investigation
has done with regard to the illegal confinement at the hotel room in
Chennai. Further, though the Appellant/Accused and the victim are stated
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Crl.A.No.792 of 2013
to have returned to the village on 09.08.2011, the complaint had been
given to the respondent police only on 23.08.2011 at 3.30 p.m.
27. Having carefully scrutinized the materials on record with the
above judgements, the infirmities and the discrepancies pointed above and
the circumstances in this case, cast a doubt over the case of the prosecution
and this Court is of the opinion that the testimony of the victim and her
mother is not credible and trustworthy and it does not inspire confidence
and is not sufficient to sustain an order of conviction. This Court arrives at
a conclusion that the prosecution has not proved the charges for the
offence under Sections 365 and 366 of IPC beyond all reasonable doubt
and the trial judge had without properly appreciating the evidence on
record had erroneously convicted the appellant/accused. Consequently, the
Appellant/Accused is entitled to benefit of doubt and the impugned
judgement of conviction and sentence, is un-sustainable in law and liable
to be set aside.
28. In the result, the Appeal is allowed and the impugned judgement
of conviction and sentence is set aside. The Appellant/Accused is
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Crl.A.No.792 of 2013
acquitted of all charges levelled against him. The bail bond if any executed
by the Appellant/Accused, shall stand cancelled and the fine amount, if any
paid by the Appellant/Accused, shall be refunded to him.
07.01.2021.
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
ssi
To :
1. The District Sessions Judge,
Mahila Court, Cuddalore.
2. The Inspector of Police,
Muthandikuppam Police Station,
Caddalore.
3. The Public Prosecutor
High Court of Madras
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Crl.A.No.792 of 2013
A.D.JAGADISH CHANDIRA, J.
ssi/ksa2
Crl.A.No.792 of 2013
07.01.2021
https://www.mhc.tn.gov.in/judis/
