Madras High Court
Kumar vs State By on 2 March, 2023
2023/MHC/984
Crl.A.No.237 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2023
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.237 of 2014
Kumar .. Appellant
Versus
State by :
The Sub Inspector of Police,
Cheyyar Police Station,
Cheyyar,
Thiruvannamalai District.
(Crime No.49 of 2009) .. Respondent
Prayer : Criminal Appeal filed under Section 374(2) of The Criminal Code
of Procedure, to call for the records pertaining to the judgment and sentence,
dated 09.04.2014 passed in S.C.No.105 of 2011 on the file of the learned
Assistant Sessions Judge, Cheyyar convicting the appellant under Section
452 I.P.C and sentencing him to undergo Rigorous Imprisonment for seven
years and to pay a fine of Rs.5,000/- in default, to undergo Rigorous
Imprisonment for six months and convicting him under Section 323 I.P.C
and sentencing him to undergo Rigorous Imprisonment for one year and to
pay a fine of Rs.1000/- in default, to undergo Rigorous Imprisonment for
one month and convicting him under Section 376 r/w 511 I.P.C and
sentencing him to undergo Rigorous Imprisonment for ten years and to pay
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Crl.A.No.237 of 2014
a fine of Rs.10,000/- in default, to undergo Rigorous Imprisonment for six
months and further convicting him under Section 4 of Tamil Nadu
Prohibition of Harassment of Woman Act and sentencing him to undergo
Rigorous Imprisonment for three years and to pay a fine of Rs.5000/- in
default, to undergo Rigorous Imprisonment for six months and set aside the
same.
For Appellant : Mr.Sharukumar.S.I
for Mr.K.Elangovan
For Respondent : Mr.R.Kishore Kumar
Government Advocate (Crl. Side)
JUDGMENT
A. The Complaint :
It is alleged that on 15.01.2009 at about 9.00 P.M, when P.W.1,
Sumathi, was alone at home, she heard noise of the rear-side door being
locked and upon opening, the accused was standing near the door. When
she asked him what he is doing there at that time, suddenly, the accused
came inside the house, pushing her inside the house, bolted the door from
the inside and with his lungi, stuffed her mouth and covered her face, hit her
with his hands and outraged her modesty. At that point of time, her husband
came in and upon seeing him, the accused ran away and the husband also
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went in pursuit of him. It is said that the complaint was given on the next
day i.e., on 16.01.2009, for which, C.S.R receipt was given.
B. The Investigation & Final Report :
2. Thereafter, on 23.01.2019, P.W.9, the Sub-Inspector of Police,
Cheyyar Police Station registered a case in Crime No.49 of 2009 for the
offences under Sections 323 and 354 of The Indian Penal Code (hereinafter
referred to as ‘The IPC’) and Section 4 of the Tamil Nadu Prohibition of
Harassment of Woman Act, 1998 (hereinafter referred to as ‘TNPHW Act’)
and took up the case for investigation. He completed the investigation and
filed a chargesheet before the learned Judicial Magistrate No.II, Cheyyar,
which was taken on file as C.C.No.118 of 2009.
2.1. During the course of the trial, P.W.1, Sumathi, the victim, while
deposing in tune with her complaint, proceeded further to say that the
accused not only outraged her modesty, but, after tying her hands and legs,
committed rape on her and that she fainted. In view of the said evidence,
since the learned Magistrate, prima facie, found that the allegation points
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Crl.A.No.237 of 2014
out towards an offence under Section 376 of The IPC, committed the case to
the learned Principal District and Sessions Judge, Tiruvannamalai and the
case was taken on file as S.C.No.105 of 2011 and was thereafter made over
to the Trial Court. The Trial Court thereafter framed charges under Sections
452, 323 and 376 of The IPC and Section 4 of the TNPHW Act and upon
being questioned, the accused denied the charges and stood trial.
C. The Trial :
3. So as to bring home the charges, P.Ws.1 to 9 were examined on
behalf of the prosecution and Exs.P-1 to P-7 were marked. Upon being
questioned about the material evidence and incriminating circumstances on
record as per Section 313 of The Code of Criminal Procedure (hereinafter
referred to as 'The Cr.P.C.,'), the accused denied the same as false.
Thereafter, on behalf of the accused, one Soundararajan, Doctor at the
Chengalpattu Medical College Hospital, was examined as D.W.1.
3.1. Thereafter, the Trial Court proceeded to hear the learned
Additional Public Prosecutor and the learned Counsel for the accused and
by a judgment, dated 09.04.2014, found that in a case of sexual assault, the
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Crl.A.No.237 of 2014
evidence of the victim by itself is enough to convict the accused and does
not need any corroboration. Further, the case of the prosecution is also
fortified in view of the presumption under Section 114-A of the Evidence
Act, 1872 and when the accused has not rebutted the presumption by
adducing appropriate evidence, held that the offences stood proved.
Therefore, finding that the accused committed offence under Section 452 of
The IPC, it imposed sentence of 7 years Rigorous Imprisonment and a fine
of Rs.5,000/- and in default of payment of fine, to undergo six months
Rigorous Imprisonment; finding guilty of the offence under Section 323 of
The IPC, imposed a sentence of one year Rigorous Imprisonment and to pay
a fine of Rs.1,000/- and in default of payment of fine, to undergo one month
Rigorous Imprisonment; of the offence under Section 376 read with 511 of
The IPC, to undergo 10 years Rigorous Imprisonment and a fine of
Rs.10,000/- and in default of payment of fine, to undergo six months
Rigorous Imprisonment and under Section 4 of the TNPHW Act, to undergo
3 years Rigorous Imprisonment and a fine of Rs.5,000/- and in default of
payment of fine, to undergo six months Rigorous Imprisonment. Aggrieved
by the same, the present appeal is laid before this Court.
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Crl.A.No.237 of 2014
D. The Submissions :
4. Heard Mr.Sharukumar.S.I, learned Counsel for the appellant and
Mr.R.Kishore Kumar, learned Government Advocate (Crl. Side) for the
respondent.
4.1. Mr.Sharukumar.S.I, learned Counsel, taking this Court through
the First Information Report and thereafter, the evidence let in by P.W.1, the
victim before the learned Judicial Magistrate No.II, Cheyyar and thereafter
before the Court, during the trial, would submit that in this case, the
evidence of P.W.1 is absolutely vaguely vague and self-contradictory and
the case of the prosecution has to fail by the evidence of P.W.1 itself. To
top it all, the evidence of P.Ws.2, 3 and 4 all go in different directions
studded with material contradictions in each and every aspect of the
prosecution’s case and therefore, when there is absolutely no cogent and
coherent material on record, the conviction is made without any basis
whatsoever. Further, taking this Court to the medical evidence on record
starting from the Accident Register copies of both the Hospitals and the
evidence of the Doctors, who examined the accused both initially at the
Government Hospital, Cheyyar and thereafter, Medical College Hospital at
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Crl.A.No.237 of 2014
Chengalpattu, he would submit that both the Doctors have categorically
deposed that absolutely no whisper was made to them about the rape being
committed on her.
4.2. Further, when the Doctors wanted to take vaginal smear, she had
even represented to them that apart from the rape committed on her, before
and after the offence, she had intercourse with her husband and thereby,
prevented the Doctors from collecting any vaginal smear. To top it all, this
is also a case where without even informing the Hospital authorities, she
came out of the Hospital. This being the case, finding of the Trial Court is
perverse in nature, since, all these relevant materials have not at all been
adverted to, but, the Trial Court decided only the legal position as to
whether, in a case of sexual assault by rape, conviction can be made on the
evidence of the survivor alone and convicted the appellant. On the other
hand, all the above submissions made by the defence have not even been
adverted to or answered by the Trial Court. That being the situation, he
would pray that this Court should interfere by way of this appeal.
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Crl.A.No.237 of 2014
4.3. In support of his submissions, the learned Counsel also relied
upon a judgment of the Hon'ble Supreme Court of India in Bhagwan Sahai
and Anr. Vs. State of Rajasthan1, more particularly relying upon paragraph
No.8 for the proposition that if there is doubt as to the genesis of the case
itself, the benefit of doubt has to be given to the accused. The learned
Counsel relied upon a judgment of this Court in M.Arunachalam Vs. The
Inspector of Police (Crl.R.C.No.811 of 2018), more specifically relying
upon paragraph No.16 to contend that unless it happened in a public place,
the offence under Section of the TNPHW Act will not be attracted. The
learned Counsel relied upon a judgment of the High Court of Andhra
Pradesh in Konduri Venkata Rao and Ors. Vs. The State of A.P.2 to
contend that unless the prosecution specifically proves some preparation to
commit the offence, the offence under Section 452 of The IPC cannot be
held to be proved.
4.4. Opposing the above said submissions, Mr.R.Kishore Kumar,
learned Government Advocate (Crl. Side) would submit that in this case,
even though P.W.1 immediately mentioned only outraging of modesty, later
1 (2016) 13 SCC 171
2 2011 SCC OnLine AP 1008
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on, she had deposed about the commission of the offence of rape. Even
considering that the said part as an embellishment, still, even by the cross-
examination of the defence and the evidence of P.Ws.1 and 2 and the other
medical evidence about injury, the offence under Sections 323 as well as
354 of The IPC are categorically made out and at least to the extent, the case
of the prosecution is sustainable.
E. The Findings of this Court :
5. I have considered the rival submissions made on behalf of both the
sides and perused the material records of this case. In this case, firstly, it is
seen that the occurrence is alleged to have happened on 15.01.2009 at about
9.00 P.M. It is alleged that complaint was given on the next day, to which, a
C.S.R receipt was given. P.W.7, Ranganathan, states that upon receipt of
information from the Hospital, he went to the Hospital and recorded her
statement and entered as No.26 of 2019 in the Community Service Register
and placed it before P.W.9. The said C.S.R was not produced before the
Court. This assumes significance especially in the teeth of admission by
P.W.9, Investigating Officer, as follows:-
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Crl.A.No.237 of 2014
"..........mrh/2 vd;dplk; bfhLj;j
thf;FK:yj;jpy; mojo tHf;F vd;W jhd;
rhl;rpak; mspj;Js;shh; vd;why; rhp
jhd;/...."
5.1. However, in the Accident Register, an information is given
before the Hospital that the accused assaulted her and thereafter, attempted
to rape her by hitting over face and mouth and tying both her hands and legs
and attempted to have physical intercourse. Prior to intercourse, when her
husband suddenly came in after hearing his voice, the accused ran away.
Eight days after the same, on 23.01.2009, the First Information Report was
recorded based on the complaint of P.W.1. It has to be seen that the
allegation made in the complaint is as follows:-
".............. mg;nghJ
v';f Ciur; nrh;e;j
Fkhh; S/o nghj;J vd;gth; te;J vd;
thia ifahy; bghj;jp Jzpahy; K:odhd;/
ifahy; Kfj;jpd; kPJ Fj;jpdhd;/ Koia
gpoj;J ,Gj;J ifia fl;odhd;/
khdg';fk; bra;jhd/; clnd vd; fzth;
Kd;gf;f fjt[ jpwe;J te;jJk; Fkhh;
Xotpl;lhd;/........."
5.2. Further, when the matter came up for trial before the learned
Judicial Magistrate No.II, Cheyyar, the following allegations are made:-
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Crl.A.No.237 of 2014
"............mg;nghJ
v';fs; Nisf;F kz;
Xl;otUk; Fkhh; v';fs; tPl;L thrw;goapy;
epd;W ,Ue;jhd;/ ,';F vd;dlh ntiy
nghlh vd;W brhd;ndd;/ vjphp vd;id
tPl;LDs; js;sp ifahy; thia vd;Dila
thia bghj;jptpl;lhd;/ vjphp jd;Dila
Y';fpia vd;Dila Kfj;ij K:odhd;/
gpd;dh; ifahy; Kfj;jpd;kPJ Fj;jpdhd;/
vd;id gpoj;J fPnH js;spdhd;/ ehd; fPnH
tpGe;Jtpl;nld;/ vd;id bfLg;gjw;fhf
Kaw;rp bra;jhd;/ ehd; fhyhy; Fkhiu vl;o
cijj;Jtpl;nld;/ vjpup vd;Dila if.
fhy;fis fl;otpl;L XX XXXXXX XXX
tYf;fl;lhakhf clYwt[ bfhz;lhd;/
vd;dplk; gyte;jkhf clYwt[ bfhz;ljhy;
vdf;F kaf;fkhfptpl;lJ/ mJrkak; vdJ
tPl;Lf;fhuh; Kd;gf;fkhf te;Js;shh;/ vd;
fzth; tPl;Lf;Fs; te;jJ me;j epyikapy;
bjhpatpy;iy/ vd; fzth; te;jij
ghh;jj; nghJ Fkhh; Xotpl;lhh;/........."
5.3. Thereafter, during the trial, she has deposed as follows:-
".............vjpup
Fkhh; m';F ,Ue;jhd;/ ,';f
vd;dlh ntiy nghlh vd;W brhd;ndd;/
vd; tPl;ow;Fs; js;sp vd; thia ifahy;
K:o mtd; mzpe;jpUe;j Y';fpia vLj;J
vd; Kfj;ij K:o Kfj;jpy; Fj;jpdhd;/ vd;
iffis fl;otpl;lhd;/ ehd; fhyhy; vl;o
cijj;njd;/ fhiy fl;o tpl;lhd;/
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khdg';fk; bra;J gyhj;fhukhf cly; cwt[
bra;jhd;/ vd; fzth; Kd; gf;fk; tUtij
ghh;j;Jtpl;L vd;id tpl;Ltpl;L Xotpl;lhd;/
vdf;F kaf;fkhfptpl;lJ/ bfh";r neuk;
fHpj;J ehd; vGe;J te;njd;/ vd; fzth;
Juj;jpbfhz;L Xodhh;/..............."
5.4. If her own statement and chief evidence is as above, in the cross-
examination, her evidence is as follows:-
"........vd;idtPl;Lf;Fs; js;sptpl;L fjit
K:otpl;L ifahy; thia bghj;jpdhd;/
gpoj;J js;sp mg;gona thia bghj;jpdhd;/
clnd te;J thia bghj;jptpl;lhd;/
mrk;ghtpjk; elf;fnghfpwJ vd;W vdf;F
bjhpe;jJ/ thia bghj;jptpl;lhd;/ ehd;
g!;rpy; tpGe;Jtpl;nld;/ me;j typapy;
vd;dhy; thia jpwf;f Koatpy;iy/ tpLgl
ehd; Kaw;rp bra;njd;/ Koatpy;iy/
Kfj;ij K:o fapw;why; iffis Kd;g[wkhf
fl;otpl;lhd;/ ,uz;L ifahYk; gpoj;J
jhd; fapw;why; fl;otpl;lhd;/ mg;nghJ
fj;jpndd;/ mg;nghJ ahUk; tutpy;iy/
mtd; Y';fpahy; vd; Kfj;ij K:odhd;/
vd; fzth; te;j kzp vdf;F bjhpahJ/
vd; fzth; te;jij ehd; ghh;f;ftpy;iy/
nyhfehjd;. kw;Wk; vd; ikj;Jdh; ghg[t[k;
te;J jhd; vd; if fl;il mtpH;j;jhh;fs;/
vd; Kfj;jpy; ,Ue;j Y';fpia vLj;jhh;fs;/
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Crl.A.No.237 of 2014
vdf;F kaf;fkhf ,Ue;jJ/ if fl;L
mtpH;j;jnghJk;. Y';fp vLj;jnghJk; vd;
fzth m';F ,y;iy/ vd; fzth; vjpupia
Juj;jpnghdJ ehd; kaf;fkhf ,Ue;jjhy;
gpd;dhy; vdf;F bjhpe;jJ/ if fl;il
mtpH;j;jija[k;. Y';fp vLj;jija[k; nghyprhh;
nfl;ftpy;iy/ ehd; brhy;ytpy;iy/.........."
Thus, it can be seen that the evidence of P.W.1 by itself is inherently,
contradictory wavering and further reading of her entire evidence leaves
with more confusion.
5.5. Further, the time when P.W.2 came inside the house and how
P.Ws.3 and 4 came to the spot, all are contradictory and different versions
are given by all the four witnesses i.e., P.Ws.1, 2, 3 and 4. This apart, there
is yet another thing which is also strange. In this case, immediately, even
though P.W.1 alleges that the accused committed penetrative sexual assault
on her, she had also informed the Doctor that she had physical intercourse
with her husband before and after the commission of the offence by the
accused. In this case, the offence is said to have been committed at about
9.00 P.M on 15.01.2009 and she makes such a statement to the Doctor on
16.01.2009. To top it all, she came out of the Hospital without being
discharged and without informing the authorities which is the evidence on
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record and on account of her behaviour, the Doctors could not render any
final opinion regarding the whole episode. Therefore, even though, in a
case of sexual assault, the conviction can be based on the sole testimony of
the victim, the same has to be stellar in quality and unwavering.
5.6. In this case, even as per the Investigating Officer, she did not
even whisper anything about being subjected to rape until she came to
witness box in the trial before the learned Judicial Magistrate No.II,
Cheyyar. She did not also whisper about the same to the Doctors. The
manner, in which the offence is said to have committed, is also riddled with
contradictions and absolutely, does not inspire the confidence of this Court.
Therefore, in a case like this, the case of the prosecution that conviction
should be based on sole testimony cannot be accepted. Further, to top it all,
by her own conduct, P.W.1 had even prevented further corroborative
medical evidence which would have been on record.
5.7. Further, the case of the defence is that there is a business
relationship between the accused and P.W.2, the husband of P.W.1 and that
the accused was supplying mud to the brick kiln run by P.W.2, the husband
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of P.W.1. There were disputes between them regarding transactions and
that there was a previous complaint which was given by the wife of the
accused against P.W.2. Therefore, it is the case of the defence that on
account of the previous enmity and because of the fact that P.W.2 had hit
the accused when he came to demand balance amount due, such a false
complaint is lodged and the evidence of the prosecution is not to the effect
of ruling out such a defence and therefore, in this case, the very occurrence
is in doubt.
5.8. In a serious case of this nature, firstly, the very reference to the
hospital whether it was with a memo from the Police Station or whether the
message went to the Police Station from the Hospital itself is in doubt.
5.9. Secondly, when such a serious complaint is made, it is not known
why the case is treated as a petition under the Community Service Register.
Thirdly, it is also not known what factors subsequently came to light or
unearthed which resulted in registering an F.I.R on the same complaint after
8 days and the allegations of P.W.1 keeps on changing on repeatedly and
with the passage of time more and more serious allegations are made and
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therefore, absolutely, the case of the prosecution is not believable. Thus I
hold that the case of the prosecution is not proved not only in respect of the
offence under Section 376 of The IPC, but also, in respect of the other
offences under Sections 323, 354 and 452 of The IPC and Section 4 of The
TNPHW Act and that the appellant herein is entitled for the benefit of doubt.
F. The Result :
6. In the result :
(i) this Criminal Appeal in Crl.A.No.237 of 2014 is allowed;
(ii) the conviction and sentence imposed against the appellant by
Judgment dated 09.04.2014 in S.C.No.105 of 2011 on the file of the learned
Assistant Sessions Judge, Cheyyar stands set aside and the
appellant/accused is acquitted of all the charges framed against him;
(iii) Fine amount, if any, is ordered to be refunded.
02.03.2023
Index : yes
Speaking order
Neutral Citation : yes
grs
To
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1. The Assistant Sessions Judge,
Cheyyar.
2. The Judicial Magistrate No.II,
Cheyyar.
3. The Public Prosecutor,
High Court of Madras.
4. The Sub Inspector of Police,
Cheyyar Police Station,
Cheyyar,
Thiruvannamalai District.
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Crl.A.No.237 of 2014
D.BHARATHA CHAKRAVARTHY, J.,
grs
Crl.A.No.237 of 2014
02.03.2023
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