Madras High Court
Manikandan vs State By Inspector Of Police on 7 December, 2023
Crl.A.No.756 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Criminal Appeal No.756 of 2017
1. Manikandan
S/o Ramasamy
2. Dhanalakshmi
W/o Ramasamy .. Appellants
-vs-
State by Inspector of Police
Tholasampatty Police Station
(Crime No.88 of 2011) .. Respondent
Memorandum of Grounds of Criminal Appeal under Section 374(2)
of the Code of Criminal Procedure against the judgment dated 20.11.2017
passed in S.C.No.287 of 2013 on the file of the learned Sessions Judge,
Mahila Court, Salem.
For Appellants :: Mr.R.Rajarathinam
Senior Counsel for Mr.M.Rajan
For Respondent :: Mr.A.Gokulakrishnan
Additional Public Prosecutor
JUDGMENT
The appellants, who were tried as Accused Nos.1 & 2 in S.C.No.287
of 2013 on the file of the learned Sessions Judge, Magalir Needhimandram,
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Salem, stand convicted for the offences and sentenced to undergo
imprisonment, vide the judgment dated 20.11.2017 passed by the trial
Court, as detailed below:-
Rank of the Conviction under Section Sentence imposed
Accused
376 r/w 511 of IPC To undergo 3 ½ years rigorous
imprisonment and to pay a fine of
Rs.10,000/-, i/d to undergo 6 months
simple imprisonment
A-1 323 of IPC To undergo 1 year simple imprisonment
and to pay a fine of Rs.1000/-, i/d to
undergo 1 month simple imprisonment
(Both the sentences were ordered to run
consecutively)
A-2 324 of IPC To undergo 3 years rigorous imprisonment
and to pay a fine of Rs.2000/-, i/d to
undergo 3 months simple imprisonment
Challenging the above conviction and sentence, the appellants have
preferred this criminal appeal.
2. It is the case of the prosecution that on 29.03.2011, while the
victim went out of the house at 8.00 P.M., to attend nature's call, the first
appellant followed her, hugged her and pushed her down and also sat on her
and attempted to commit rape by removing her nighty and thereafter, the
second appellant, the mother of the first appellant, brought a wooden log
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and attacked the victim on the knees and caused injury to the victim and
that the victim shouted for help and P.W.3 and P.W.5, the relatives of the
victim, came out and on seeing them, the appellants fled from the scene.
3. It is the further case of the prosecution that after the occurrence,
the victim became unconscious and only on 31.03.2011, the victim regained
consciousness and thereafter she lodged the complaint, Ex.P1 on
31.03.2011, which was registered in Crime No.88 of 2011 by the
respondent for the offence under Section 376 read with 511, 307, & 324
IPC. The First Information Report was marked as Ex.P5. The First
Information Report was registered by P.W.9, Sub Inspector of Police
attached to the respondent police station. On receipt of the First
Information Report, P.W.10, Inspector of Police took up investigation and
examined the witnesses, went to the scene of occurrence and prepared
Observation Mahazar, Ex.P2 and drew a rough sketch, Ex.P6. On
31.03.2011, P.W.10 arrested the accused at his residence. Thereafter, he
examined the other witnesses and handed over investigation to P.W.11, who
completed the investigation and laid the final report for the offence under
Sections 376 r/w 511, 307 and 324 IPC on 07.02.2012 before the learned
Judicial Magistrate, Omalur.
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4. The accused were furnished with the copies under Section 207
Cr.P.C., and the case was committed to the file of the learned Sessions
Judge, Magalir Needhimandram, Salem.
5. The trial Court framed two charges against the first appellant,
namely, charge under Section 376 r/w 511 and Section 307 IPC. As against
the second appellant, charge under Section 324 IPC was framed. The
prosecution examined witnesses, P.Ws.1 to 11 and marked exhibits, P1 to
P6 to prove their case. The appellants examined D.W.1 on their side and did
not mark any document. The trial Court, after considering the oral and
documentary evidence, held that the first appellant was guilty of the offence
under Section 376 r/w 511 and Section 323 IPC and that the second
appellant was guilty of the offence under Section 324 IPC and sentenced
them to undergo the imprisonment as stated above. The trial Court,
however, acquitted the first appellant of the charge under Section 307 IPC.
6. Mr.R.Rajarathinam, learned Senior Counsel appearing for the
appellants submitted that the evidence of the victim and the other witnesses
do not inspire confidence. It is the version of P.W.1, the victim that she fell
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unconscious after the occurrence on 29.03.2011, which is contradicted by
P.W.2 and the other witnesses, namely, P.Ws.3 to 5, who are said to have
gone, on hearing the cry of the victim, to the place of occurrence. It is
further contradicted by the evidence of P.W.8, the doctor, who had issued
the accident register, Ex.P3 and the wound certificate, Ex.P4 after
examining the victim at the Government General Hospital at Salem. The
learned Senior Counsel submitted that there is also evidence to show that
P.Ws.1 to 7 are closely related to each other and they had a property dispute
with the family of the appellants and that is the reason why the victim was
forced to give this false statement two days after the occurrence and the
reason for the delay is artificial and cannot be accepted. The learned Senior
Counsel further contended that if A1 had intended to commit rape on the
victim, there was no necessity to do it in the presence of his own mother, A2
and that the version, therefore, is not only self-contradictory, but highly
improbable. The learned Senior Counsel, therefore, pointed out the portions
of the evidence in support of the aforesaid submissions.
7. The learned Additional Public Prosecutor, per contra, submitted
that the prosecution had established its case beyond reasonable doubt.
P.W.3 and P.W.5 have both stated that on hearing the victim's shout for help,
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they went to the scene of occurrence and saw both A1 & A2 running away
from the scene of occurrence. The delay in the instant case is not fatal to
the prosecution case and there is no reason for the victim to make a false
statement against the first appellant with regard to the attempt to rape and
the assault committed by the second appellant. The learned Additional
Public Prosecutor further pointed out the evidence of P.W.2, the husband of
the victim, who had deposed that the victim had told him that she was going
out to attend nature's call and when he went in search of the victim, the
victim told about the occurrence and therefore submitted there is no reason
to interfere in the judgment of the trial Court convicting the appellants.
8. On perusal of the records, this Court finds that P.Ws.1 to 7 and the
appellants are close relatives. The occurrence is said to have taken place on
29.03.2011 and the complaint was lodged by P.W.1 on 31.03.2011. Though
delay by itself is not a ground to reject the prosecution case, this Court
finds, in the instant case, the reason for the delay given by P.W.1 is
unbelievable. P.W.1 would state that she became unconscious immediately
after the occurrence and she regained consciousness only in the hospital on
31.03.2011. P.W.2, the husband of P.W.1 himself contradicts this version of
P.W.1. P.W.2 had stated that immediately after the occurrence, he enquired
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with P.W.1 and she told about the alleged occurrence to him. P.W.3 and
P.W.5, the other witnesses who went to the scene of occurrence, also would
state that the victim was conscious and had narrated the details of the
occurrence to both of them. Therefore, this Court is of the view that the
delay in the instant case is definitely a reason to suspect the version of the
victim, P.W.1 and the other witnesses.
9. Be that as it may, this Court finds that P.W.8, the doctor, who
examined P.W.1 and issued the accident register (Ex.P3) and wound
certificate, had stated in clear terms that when the victim was brought to the
hospital on 30.03.2011 i.e., one day after the occurrence, she was conscious
and she had sustained only simple injuries. This evidence, therefore, makes
the version of P.W.1 as regards the cause for delay, false. This Court also
finds that though P.W.2, P.W.3 and P.W.5 were aware of the alleged
occurrence even as early as on 29.03.2011, there is no reason why they had
not lodged any complaint to the police. Though P.W.3 would state that he
has informed the police immediately after the occurrence, admits in his
cross examination that he was not aware as to who gave the complaint to
the police. P.W.1 further in her deposition would state that she was taken to
the hospital on the day of occurrence in a police jeep. All the above facts
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would reveal that the prosecution has suppressed the genesis and origin of
the occurrence.
10. It is trite law that where the genesis and origin of the occurrence
is suppressed, the entire fabric of the prosecution case would collapse. In
this regard, it would be useful to refer to the observation of the Hon'ble
Supreme Court, in Marudanal Augusti v. State of Kerala, (1980) 4 SCC
425, as follows:-
“...The High Court seems to have overlooked the fact that the
entire fabric of the prosecution case would collapse if the
F.I.R is held to be fabricated or brought into existence long
after the occurrence and any number of witnesses could be
added without there being anything to check the authenticity
of their evidence....”
11. Further this Court finds that in Ex.P3, the accident register, the
doctor has recorded that the victim was assaulted by two known persons by
hands. This is contrary to P.W.1's version that there was an attempt to rape
her.
12. In view of the above, this Court is of the view that it is highly
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unsafe to hold the appellants guilty of the offence charged against them on
the basis of the evidence of P.W.1 and the other witnesses. It is also seen
that P.Ws.1 to 7 and the family of the appellants had a property dispute,
which is spoken to by D.W.1. Therefore, the aspect of false implication
cannot be ruled out.
13. Hence, for the aforesaid reasons, this Court finds that the
judgment of conviction rendered by the trial Court is liable to be set aside.
Accordingly, the judgment of the trial Court is set aside and the appeal
stands allowed acquitting the appellants of all the charges framed against
them. Fine amount paid by the appellants is ordered to be refunded to them.
Bail bonds executed by the appellants shall stand discharged.
Index : yes/no
Neutral Citation : yes/no 07.12.2023
ss
To
1. The Sessions Judge, Magalir Needhimandram, Salem
2. The Judicial Magistrate, Omalur
3. The Inspector of Police, Tholasampatty Police Station, Salem District
4. The Public Prosecutor, High Court, Madras
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SUNDER MOHAN, J.
ss
07.12.2023
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