Prabu vs The State Rep
2022 Latest Caselaw 3354 Mad

                                                                            Crl.A.Nos.542 &574 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED :23.02.2022

                                          CORAM : JUSTICE N.SESHASAYEE

                                               Crl.A.No.542 & 574 of 2021
                                              and Crl.M.P.No.11602 of 2021


                     1. Prabu                         ... Appellant in Crl.A.No.542 of 2021
                     2 Anbazhagan                     ... 1st Appellant in Crl.A.No.574 of 2021
                     3. Rajeshwari                    ...2nd Appellant in Crl.A.No.574 of 2021


                                                           Vs.

                     The State rep.
                     The Inspector of Police,
                     All Women Police Station,
                     Virudhachalam,
                     Cuddalore District
                     (Crime No.24 of 2017)            ....Respondent in Crl.A.Nos.542 & 574/2021

COMMON PRAYER: Criminal Appeals filed under Sections 374(2) and 378 of Criminal Procedure Code,to set aside the conviction and sentence of the appellants by the judgment dated 23.07.2021 in Sessions Case No.176 of 2019, on the file of the Court of Sessions Judge, Mahila Court, Cuddalore and acquit the appellants.

                                    For Appellant /Appellants     : Mr.T.Saikrishnan
                                    (in both cases)                 for Mr.B.Balavijayan

                                    For Respondent          : Mr.Leonard Arul Joseph Selvam
                                                              Government Advocate (Crl.side)



https://www.mhc.tn.gov.in/judis
                                                                             Crl.A.Nos.542 &574 of 2021




                                              COMMON ORDER

These Criminal Appeals have been filed by all the three accused persons in

S.C.No.176 of 2019 on the file of Mahila Court, Cuddalore.

2. Crl.A.No.542 of 2021 was filed by A1, whereas Crl.A.No.574 of 2021 was

filed by A2 and A3. They were convicted and sentenced by the Sessions

Court vide its judgment dated 04.12.2019 and the details are as follows:

                             Accused     Provision                     Sentence
                                        under which
                                         convicted

Section Ten years rigorous imprisonment and also to 376(1) IPC pay a fine of Rs.30000/- in default to undergo simple imprisonment for a period of two(2) years Section 312 Two years rigorous imprisonment and also to IPC pay a fine of Rs.10000/- in default to undergo A1 simple imprisonment for a period of six(6) months Section 417 One year rigorous imprisonment and also to pay IPC a fine of Rs.10000/- in default to undergo simple imprisonment for a period of three(3) months A2 and A3 Section Three years simple imprisonment and also to 294(b) IPC pay a fine of Rs.5000/- in default to undergo simple imprisonment for a period of three(3) weeks each A1 to A3 Section Two years rigorous imprisonment and also to

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

Accused Provision Sentence under which convicted 506(i) IPC pay a fine of Rs.5000/- in default to undergo simple imprisonment for a period of six(6) months each A2 and A3 Section Two years Simple imprisonment and also to 506(i) IPC pay a fine of Rs.5000/- in default to undergo simple imprisonment for a period of six(6) months each Total fine Rs.75,000/-(A1-Rs.55,000, A2-Rs.10,000/- and A3 Rs.10,000/-) Out of the fine amount Rs.55,000/-, payment of which has been ordered to be made by A1, as part of the sentence, a sum of Rs.30,000/-

(Rupees thirty thousand only) is ordered to be paid to P.W.1, the victim in the case, under Section 357(1)(b) Cr.P.C.

3. The case of the prosecution can be summarised:

● On 12.11.2017, PW1, a woman aged around 28 - 29 years, had

preferred a complaint to the respondent police, wherein she has alleged

that she and A1 were loving for about 5 years prior to the date of the

complaint, that during the said period A1 would regularly visit her

house, and that he had intercourse with her on a promise that he would

marry her. Some three years prior to the date of the complaint, PW1

had conceived, and that A-1 had got her some medicine consuming

which she aborted and thus A1 had forced a miscarriage on P.W.1.

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

● Even thereafter, A1 continued to have sexual intercourse with her.

While so, A1 got a permanent job as a night-watchman in the District

Judiciary. Thereafter, he chose to avoid PW1. In this backdrop, on

19.06.2017, at about 9.00 a.m, PW1 with her family members visited

A1 at the latter’s house. There, A1 along with his parents (A2 and A3)

and his brother Bharani were there. All the accused persons abused

PW1 and others. They also pulled P.W.1’s hair, abused and driven

them away. P.W.1 felt bad about the whole turn of events and she

attempted to commit suicide, and was admitted in a hospital. In the

hospital, the family members of A1 visited her, and requested her not

to prefer any complaint. Hence, no complaint was preferred by PW1

regarding these incidences.

● Thereafter, on 10.11.2017, at about 02.00 p.m, PW1 accompanied by

her parents PW3 and PW4 and her sister P.W2, again went to the

house of A1. All the three accused were there and they again abused

PW1 and poured kerosene on PW1, attempted to strangulate PW1.

While this was happening, PW5, the aunt of P.W.1 intervened and

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

immediately A1 and A2 assaulted her too, owing to which, she

suffered some injuries in her right hand. They also abused her in a

filthy language. The accused persons demanded 50 sovereigns of gold

jewelery and 2 wheeler worth Rs.1.5 lakhs to get her married to A1.

● P.W.1 would now file Ext.P-1 complaint. On receiving the complaint,

PW9, the Inspector of Police registered an FIR for offence under

Sections 417, 376, 312, 294(b) and 506(ii) of IPC and took up the

investigation. She would then cause PW1 to be examined by PW7, a

lady doctor, visited the Scene of Occurrence (henceforth SOC)

namely the house of PW1, and prepared exhibit Ext.P2 (Observation

Mahazar) and Ext.P-6 rough sketch, and then proceeded to arrest A1 to

A3. The Investigating Officer also caused medical examination of A1

to assess his potency by PW.8, Dr.Dineshbabu, who after such

examination gave Ext.P-4, potency test report.

● In the meantime, the Investigating Officer also examined and recorded

the statements of PW1 to PW6, and after completing the

investigation, he laid the final report, upon which the case was

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

committed to Sessions Court. The learned Sessions Judge framed

charges against all the 3 accused as mentioned above.

4. The matter went to trial. The witnesses who have been examined during

trial and the materials/documents which prosecution relied on have already

been introduced. On appreciating the evidence before the court, the learned

Sessions Judge found the accused persons guilty of the offences and

sentenced them as indicated in the opening paragraph.

5. The judgement of the Sessions Court is now in challenge. The learned

counsel for the appellants submitted that this case demonstrates how

prosecution can bungle the investigation, and still how unfortunate the

accused persons are. Elaborating his arguments, the learned counsel

contended that the testimony of PW1 suffers from certain material

inconsistencies vis-a-vis the statements she had made before the

Investigating Officer. Even if these inconsistencies are kept aside, the

improbability of an offence such as that which was alleged to have been

committed can be gathered from the following facts:

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

● According to PW1, A1 used to visit her regularly for about 5 years

prior to the FIR, and that he chose day time to visit her. She

specifically says that A1 would visit her after her parents, who are

agricultural labourers, have gone for their daily occupation. She also

states that her house is surrounded by the houses of one Subburaya

Pillai, the Village headmen, certain Kolanji Naidu, Iyappan, Suresh,

Saraswathi, Siva kumar. These houses are located either on the same

street or adjacent to the SOC. And, on to its rear side are situated the

houses of Mani, Kumar , Muthukanan and Natarajapillai. If only A1

was visiting her, an unmarried woman regularly for about five years,

that too when her parents are not in the house, it would have been

known to any of these neighbours. However, not one among them was

interrogated by the Investigating Officer. Indeed, the SOC is not in a

multi-storied apartment in a city, and as per Ex.P6 rough sketch, it is

an independent house located in a village. Therefore, it will be highly

improbable that the routine visits of A-1 to the house of P.W.1 as

alleged by the prosecution would have escaped the notice of all those

in the neighbourhood. It is indeed surprising that not even PW2, the

sister of PW1, and PW3 and PW4, the parents of P.W.1 were unaware

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

about the frequent visits of A1 in all these five years. And, here the

conduct of PW4 and PW5 are entirely inconsistent with the ordinary

course of human behaviour.

● The second point alleged by P.W.1 is that some three years after A1

began to have sexual intercourse with her, she conceived, and that the

pregnancy was force-terminated at the instance of A1. According to

PW1, A1 gave some medicines consuming which, she got aborted.

This goes tangential to the medical evidence of PW7, the lady doctor

who examined her and gave her opinion in the Medical Report of

Victim(Ex.P3), to the effect that she did not notice any signs of earlier

pregnancy. She repeats this in her cross-examination as well.

● The third aspect which PW1 projects is that on 19.06.2017, she visited

the house of A1 where A1 to A3 and A1's brother, Bharani have all

abused her badly, which forced her to attempt to commit suicide by

consuming some locally brewed poison, and that she was hospitalised

for treatment. There is however, no evidence other than the statements

of PW1 to PW5 that P.W.1 indeed had attempted to commit suicide. In

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

fact, she had made a further statement that the family members of A1

visited her at the hospital and requested her not to prefer any police

complaint. This implies that she indeed was admitted in some hospital,

but PW9, the Investigating Officer did not choose to locate this

hospital where PW1 was admitted. Again, on the aspect of attempted

suicide, P.W.1 to P.W.5 come up with multiple and conflicting

versions. Again to prove that an incident such as this had happened, no

independent witnesses examined.

● The last of the incident was on 10.11.2017. On that day, A1 to A3

were alleged to have poured kerosene on PW1, and assaulted her and

also assaulted PW2. If this had happened, this is a grievous offence as

it may well amount to an attempt on the life of P.W.1. However no

complaint to the police was preferred for this incident, and it defies

both common sense and logic in law.

● To prove that PW2 suffered an injury on the last mentioned incident,

even she had not gone to any hospital for treatment, nor had she

chosen to give any police complaint. According to the prosecution

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case, after all she had only accompanied the victim to the house of

A1.

● This apart, PW1 in her complaint had introduced the presence of

Bharani, brother of A1 as involved in an earlier incident. However, in

the final report, Bharani's name was dropped, though he was initially

arrayed as A4. Making allegation of involvement of Bharani is not an

aspect of lapse of memory on the part of P.W.1 but is instance of how

P.W.1 was keen to improve her case with ulterior motives.

Embelishment of an occurrence in circumstances such as the one

involved in the case affects the credibility of the very prosecution

case.

To sum up, all the witnesses examined by the Investigating Officer are

interested witnesses, who as between them have come up with conflicting

versions in their narrations, and coupled with the fact that the medical

evidence too not aiding the prosecution case, the Sessions Court ought to

have held that the appellants herein have not committed the offence that they

were charged with.

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

6. The learned Government Advocate argued that a sexual assault within an

enclosed building is not open to public view, and hence the version of the

victim is significant. And here P.W.1 version is cogent when she accused

that A1 had sexual intercourse with her on a promise of marriage.

Secondly, it was not a case of classical rape under Section 376 IPC for the

medical evidence to provide any clue. It is an admitted fact that even

according to prosecution, that the physical relationship which A1 had with

P.W.1 was consensual, and given the fact that both the victim and A1 have

attained the age of majority, but for Section 417 IPC intervening there, might

not have been even an offence of rape. P.W.1 has been consistent in making

her statement that A1 has promised to marry her and it is this that had caused

P.W.1 to yield to the carnal desires of A1. To this, both A2 and A3 have also

contributed their mite when they abused not only the P.W.1, but also P.W.2

to P.W.5.

7. The submissions on rival sides are carefully weighed. The learned

Government Advocate has been fair when he made a statement that the

charges against A1 on an allegation of rape will not constitute rape unless an

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

offence under Sec. 417 IPC is made out. After all, P.W.1, the victim of the

alleged crime and A1 have attained the age of majority, and even P.W.1 has

asserted that the physical relationship she had with A1 was consensual. The

only aspect that converts what would have been a consensual sexual act into

a rape is any proof that A1 has made any representation amounting to a

promise to marry P.W.1, and if P.W.1 has yielded to the carnal desires of A-1

as she believed the promise so made.

8. The learned counsel for the appellants have listed out a set of

circumstances (which have been bullet-pointed in paragraph 5 above). First

turning to the medical evidence part of it, P.W.7, the doctor who examined

P.W.1 has opined that P.W.1 may have been accustomed to intercourse. It is

in her cross-examination, she has testified that she found no sign of any

earlier conception of P.W.1. If the allegation of earlier conception made by

P.W.1, if filtered as an embellishment, still if physical intercourse coupled

with a promise of marriage is proved, then it establishes the culpability of

A1. Now, whether A1 has held out any such promise, is something which is

very personal to P.W.1. and this Court necessarily has to examine it on the

basis of evidence made available, to arrive at the most probable conclusion if

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

at all there was a possibility for A1 to make a promise to marry P.W.1.

9. Even as the Court makes provision for protecting the victims of heinous

crimes such as rape, it still it does not dispense with the need to weigh the

entire evidence available on record to arrive at a conclusion beyond

reasonable doubt that the charges are proved. Turning to evidence, P.W.1

fixes the place where A-1 had physical relationship with her. It is not

anywhere at a place away from either of the house of P.W.1 or that of A1.

She fixes the SOC as her house, and confined it only to her house.

Therefore, if at all there was a sexual act between A1 and P.W1, that could be

only in the house of P.W.1, P.W.3 and P.W.4. Her allegation is that A1

would regularly visit her after her parents had gone for agricultural work.

This implies that the alleged offence had taken place in the day time. And

P.W.1 proceeds to state that A1 was visiting her almost for about five years

before she lodged Ext.P1, complaint. If an young man visits a young

unmarried woman during day time regularly for five years in village-

circumstances, it will be an extraordinary feat if none in the neighborhood

had failed to observe it. To repeat, it is not an one off occurrence, but a

regular feature in the lives of A1 and P.W.1, if only the testimony of P.W.1

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

were to form the basis, but P.W.9, the Investigating Officer has not cited a

single witness from the neighborhood of prove it. Does it imply that A1 has

not been visiting P.W.1 regularly, or even occasionally, or is it just that the

Investigating Officer has chosen to ignore a critical fact? Here it must be

underscored that it is not the case of the prosecution that A1 was a relative of

P.W.1. If assuming A1 is the relative of P.W.1, it is possible to infer that

those in the neighborhood may have ignored it for there might not be any

suspicion about a relative visiting another relative, no matter even if their

genders are opposite. Here, the odds are clearly against the prosecution, and

the advantage goes to the appellants.

10. The second aspect of P.W.1's case is that A1 has made a promise to marry

her. If the alleged regular visits of A1 itself is hung in suspicion, it is nigh

difficult to conclude that A1 might have made a promise to marry her. If

atleast the alleged visits of A1 to P.W.1's house is proved, there might have

been a probability to believe it from other attending circumstances. Then, to

add strength to her case, P.W.1 states that some about three years after her

relationship with A1, she was conceived and the same was aborted at the

instance of A1, but P.W.7, the doctor has testified that on her examination,

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

P.W.1 did not find any trace of earlier conception. In this context, all the

witnesses cited are interested witnesses, and their evidence on material

aspects are contradictory. Hence it is nigh difficult to conclude that A1

might have seduced P.W.1 into having a physical relationship with him on a

promise of marriage.

11. There are other ancillary facts that may now be focused. P.W.1 to P.W.4

cite atleast two incidents, one on 19.06.2017 and the other on 10.11.2017.

These, in the context of the case, partly relate to the charge of rape coupled

with a promise to marry and partly on other charges. So far as the incident on

19.06.2017 is concerned, the critical allegation was that P.W.1 attempted to

commit suicide after she and her family members were insulted by the

accused persons herein. It was also her further case that she was admitted in

the hospital where the family members of A1 met her and requested not to

lodge a complaint to the police. If these were true, then her failure to lodge a

complaint to the police immediately after the alleged incident on 19.06.2017

is inexplicable. However, when she finally gave a complaint some five

months later, she knew that there was hardly any hope in expecting A1 to

marry her. Therefore, her failure to mention the name of the hospital where

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

she was admitted or the failure of P.W.9, the Investigating Officer to

investigate about the hospital where she was treated for her attempt to

commit suicide become significantly material. Secondly, when a young

unmarried women attempted to commit suicide, it would be difficult to hush

it up in village circumstances. The Investigating Officer has colossally

failed to investigate this angle. This is followed by a second incident on

10.11.2017. Here P.W.1 would say that the accused persons have poured

kerosene on her and also assaulted P.W.2. Still no complaint was instantly

lodged.

12. The evidence available on record, if collated together, does not inspire

the confidence of the court either about the proof of any individual segment

of the prosecution case on any specific fact, nor the whole of them. Here it

may have to be stated that while lapses in memory of a witness can be

appreciated as a consequence of human fraility, but not an attempt to improve

a case with new facts. An instance of lapse in memory hence cannot be

equated with an effort to improve a case, since the former relates to a failure

to state a fact that has happened the way it has, but improving a fact amounts

to introducing a fact which has never happened, something that belongs to

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

the realm of imagination. Here this Court spots that the prosecutrix has

attempted to improve her case which taints her case with a coat of suspicion.

When facts, whose proof does not inspire confidence, then it will be perilous

for the prosecution. Consequently, it will be dangerous for the Court to

enter a finding against the accused persons. Viewed from every conceivable

angle, this Court does not find that the prosecution was able to prove the guilt

of the appellants on any one of the charges that are framed against them.

Surely, the accused are entitled to be acquitted, which this Court does now.

13. In conclusion, this Court holds that the prosecution has not proved the

guilt against the accused persons. Consequently, the charges fail and both

the appeals are allowed and the appellants are directed to be set free. The

judgment of the learned Sessions Judge, Mahila Court, Cuddalore dated

23.07.2021 in Sessions Case No.176 of 2019 is set aside. Consequently

connected miscellaneous petition is closed.

23.02.2022 ds

https://www.mhc.tn.gov.in/judis Crl.A.Nos.542 &574 of 2021

N.SESHASAYEE,J., nr/msv/ds

To

1.The Sessions Judge, Mahila Court Cuddalore.

2.The Inspector of Police, All Women Police Station, Virudhachalam, Cuddalore District.

3.The Public Prosecutor, High Court, Madras.

Crl.A.No.542 & 574 of 2021

and Crl.M.P.No.11602 of 2021

23.02.2022

https://www.mhc.tn.gov.in/judis