Madras High Court
Saravanan vs State Represented By on 5 June, 2024
Author: M.S.Ramesh
Bench: M.S.Ramesh
Crl.A.No.1118 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2024
CORAM :
THE HON'BLE MR. JUSTICE M.S.RAMESH
AND
THE HON'BLE MR. JUSTICE SUNDER MOHAN
Crl.A.No.1118 of 2022
and Crl.M.P.No.3083 of 2023
Saravanan ... Appellant/sole Accused
v.
State represented by
Inspector of Police
Maruvathur Police Station,
Perambalur District.
(Crime No.1123 of 2020) ... Respondent/Complainant
Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure,
1973, against the conviction of the appellant and sentence in Spl.S.C.No.7
of 2021 dated 03.09.2022, on the file of the learned Sessions Judge, Mahila
Court, Perambalur, and set aside the conviction and sentence imposed in
1
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Crl.A.No.1118 of 2022
judgment dated 03.09.2022 and acquit the appellant.
For Appellant : Mr.R.Sankarasubbu
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
JUDGMENT
(Order of the Court was made by SUNDER MOHAN,J.)
This Criminal Appeal has been filed by the sole accused challenging
the conviction and sentence imposed upon him vide judgment dated
03.09.2022 in Spl.S.C.No.7 of 2021 on the file of the learned Sessions
Judge, Mahila Court, Perambalur.
2.(i) It is the case of the prosecution that the appellant owned a tractor
and used it to plough land on rental basis; that on 30.11.2022 at about 10.00
a.m., when he brought the tractor to plough, the agricultural land belonging
to the defacto complainant, he lured the victim girl, who was then aged six
years, by offering chocolate and took her to the maize field nearby and
removed her inner wear, kissed her cheek, squeezed her breast, inserted his
finger in her private part and thereafter, forcibly committed penetrative
sexual intercourse.
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(ii) It is the further case of the prosecution that when the defacto
complainant-PW1 found her daughter-victim missing, she searched for her
and at about 11.30 a.m.,, her daughter came crying and screaming from a
nearby corn field belonging to one Mathi; that when she enquired the victim
girl, she informed that the appellant had committed the aforesaid acts; that
thereafter, PW1 lodged a complaint with the respondent police and the
complaint was marked as Ex.P1. PW15, the Sub Inspector of Police
attached to the respondent police station, registered the FIR in Crime
No.1123 of 2020 for the offence under Section 366 (A) of the IPC and
Section 5(m) read with Section 6 of the Protection of Children from Sexual
Offences Act (hereinafter referred to as 'POCSO Act') at about 2.30pm and
the FIR was marked as Ex.P10.
(iii) Thereafter, PW16, the Inspector of Police, took up the
investigation, went to the scene of the occurrence and prepared the
Observation Mahazar (Ex.P11) and Rough Sketch (Ex.P12). She seized the
tractor bearing Regn.No.TN-46-F-3407 [photoes of which are marked as
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M.O.1] belonging to the appellant under Seizure Mahazar [Ex.P13], in the
presence of witnesses. She thereafter, examined the witnesses and on the
same day, at about 6.00 p.m., arrested the accused near the Neduvasal Bus
Stop and submitted him to medical examination. On 22.12.2020, on the
request made by PW16, the learned Judicial Magistrate No.I, Perambalur,
recorded the Section 164 Cr.P.C. statement of the victim. Thereafter, on
03.02.2021, PW16 altered the offence to Section 376(2) of the IPC and
Section 5(m) r/w 6 of the POCSO Act. The alteration report was marked as
Ex.P15. After examination of other witnesses, PW16 filed a final report for
the offence under Section 376 (2) (f) of the IPC, 5 (m) r/w 6 of the POCSO
Act, before the learned Sessions Judge, Mahila Court, Perambalur, which
was taken on file as Special S.C.No.7 of 2021.
(iv) On the appearance of the appellant, the provisions of Section 207
Cr.P.C., were complied with and the trial Court framed charges against the
appellant, and when questioned, the appellant pleaded 'not guilty'.
(v) To prove the case, the prosecution examined 16 witnesses as
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P.W.1 to P.W.16, marked 15 exhibits as Exs.P1 to P15 and marked one
Material Object as M.O.1. When the appellant was questioned, u/s.313
Cr.P.C., on the incriminating circumstances appearing against him, he
denied the same. The accused did not examine any witnesses or mark any
documents.
(vi) On appreciation of oral and documentary evidence, the trial Court
found that the prosecution had established its case beyond reasonable doubt
and held the appellant guilty of offence under Section 5(m) r/w Section 6 of
the POCSO Act. The appellant was convicted for the said offence and
sentenced to undergo life imprisonment and to pay a fine of Rs.1,00,000/- in
default to undergo SI for 1 year. Hence, the appellant has preferred the
appeal challenging the said conviction and sentence.
3. Heard, Mr.R.Sankarasubbu, learned counsel appearing for the
appellant, and Mr.A.Gokulakrishnan, learned Additional Public Prosecutor
appearing for the respondent/State.
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4. (i) The learned counsel for the appellant submitted that the
witnesses viz., the defacto complainant-PW1, her mother (Grandmother of
the victim)-PW2, the victim-PW3, the father of the victim-PW4 and other
material witnesses, turned hostile during the cross examination.
(ii) The learned counsel further submitted that the doctor's evidence
by itself would not lead to the inference that the victim was subjected to
penetrative sexual assault. That apart, the victim herself had not stated
about the penetrative sexual assault in her statement under Section 164
Cr.P.C. and that the above infirmity in the prosecution case, would make it
highly unsafe to convict the appellant for the offence alleged against him;
and hence, he prayed for acquittal.
5.(i) The learned Additional Public Prosecutor per contra submitted
that the witnesses and the victim had all supported the prosecution case
during the chief examination and in the cross examination, which was
conducted eight months after the examination-in-chief, they turned hostile;
and that the tenor of the cross examination would suggest that all the
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witnesses were won over by the appellant and therefore their evidence in the
cross examination has to be ignored.
(ii) The learned Additional Public Prosecutor therefore submitted that
the evidence of the above witnesses, coupled with the medical evidence,
conclusively establish the guilt of the appellant and there is no reason to set
aside the finding of guilt rendered by the trial Court. Hence, he prayed for
dismissal of the appeal.
6. We have carefully considered the rival submissions and have
perused all the relevant records.
7. As stated earlier, the prosecution has examined 16 witnesses to
prove its case. PW1 is the mother and the defacto complainant; PW2 is
grandmother of the victim; PW3 is the victim; PW4 is the father of the
victim; PW5 is the Head Constable who took the victim along with her
grandmother-PW2, to the hospital for medical examination; PW6 is a
relative of the victim, who accompanied the victim to the hospital; PW7 and
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PW8 are Mahazar witnesses; PW9, is a passer-by, who came to know that
the appellant had misbehaved with the victim and his evidence is of no avail
to the prosecution, as he admits in the cross examination that he does not
remember as to who told him about the occurrence; PW10 is the
Headmistress of Neduvasal Panchayat Union Primary School, in which the
victim was studying and deposed about the date of birth of the victim as
09.07.2015 and has marked the Admission Register (Ex.P6) and the School
Certificate (Ex.P7) to prove the date of birth; PW11 is the doctor, who
examined the appellant and issued Ex.P8-certificate to prove the potency of
the appellant; PW12 is the doctor, who had examined the victim and
deposed about the Accident Register issued by her [Ex.P9] in which she had
noted injuries on the victim; PW13 is the Head Constable, who took the
accused for medical examination; PW14 is a hearsay witness who had stated
that he came to know of the occurrence, from PW1; PW15 is the Sub
Inspector of Police, who registered the FIR; PW16 is the investigating
officer.
8. As stated earlier, PW1 lodged the complaint after the victim
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complained to her about the occurrence. PW1 however, in her deposition,
would state that the victim told her that the appellant misbehaved with her.
In her deposition, the details of the penetrative sexual assaults are not
found, though they are found in her complaint. PW2, corroborates the
version of PW1. Even in her version, she would not give the exact details
of the alleged sexual assaults. Be that as it may. Both these witnesses in
the cross examination have stated that their version in the chief examination
is false. The evidence of PW1 in the cross examination reads as follows:
“M$u; vjphpia Rkhu; 10?15 tUl';fshf vdf;F
bjhpa[k;/ mjrhM/1 Mtzj;jpy; cs;s ifbaGj;J kl;Lk;
vd;DilaJ mjpy; vGjg;gl;l tptu';fs; ahu; vGjpdJ vd;W
vdf;F bjhpahJ/ me;j ifbaGj;J nghl;l ngg;ghpy; vd;d
vGjg;gl;lJ vd;W tptuKk; vdf;F bjhpahJ vd;why; rhpjhd;/
mjrhM/1y; cs;s ifbaGj;ij ehd; fhty;epiyaj;jpy;
fhiy 8?8/30 kzpf;F nghl;nld; vd;why; rhpjhd;/ ehd;
ghu;f;Fk; fhl;od; chpikahsUf;F M$u; vjphp rutzDf;Fk;
,ilna ,lk; gpur;rid rk;ge;jkhf Kd;tpnuhjk; cs;sJ
vd;why; rhpjhd;/ ehd; ghu;f;Fk; fhl;od; chpikahsu;
g[{tz;zd; brhy;yp jhd; ehd; fhty;epiyaj;jpy; g[fhu;
bra;njd;/ M$u; vjphp rutzdd; ghjpf;fg;gl;l rpWkpaplk;
jtwhf ele;j tptuk; vdf;F neuoahf bjhpahJ vd;why;
rhpjhd;/ ehd; ePjpkd;w Kjy; tprhuizapy; M$u; vjphp
ghjpf;fg;gl;l rpWkpaplk; jtwhf ele;Jf;bfhz;lhu; vd;W
brhy;ypa[s;nsd; Mdhy; mt;thW vJt[k; M$u; vjphp jtwhf
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elf;ftpy;iy/”
The above evidence would suggest that PW1 had lodged a false complaint
at the instance of her land owner one Poovannan, who had prior enmity with
the appellant.
9. PW2 in her cross examination would state as follows:
“M$u; vjphp rutzd; vd; ngj;jp ghjpf;fg;gl;l rpWkplk;
jtwhfnth ve;j tpjkhd Fw;w czu;nthnlh beU';ftpy;iy
vd;why; rhpjhd;/ ghjpf;fg;gl;l rpWkpf;F clk;gpy; Vw;gl;l
fPuy; fha';fs; nrhsf;fhl;oy; tpisahoa nghJ Vw;gl;l
fha';fs; vd;why; rhpjhd;/ ehd; ePjpkd;w Kjy;
tprhuizapy; brhy;ypa[s;sg;go M$u; vjphp ve;j tpj braYk;
bra;atpy;iy vd;why; rhpjhd;/ ghjpf;fg;gl;l rpWkpia M$u;
vjphp J}f;fpr;brd;W rhf;byl; bfhLj;J gk;g[ brl;oy;
ve;jtpjkhd jtWk; bra;atpy;iy vd;W brhd;dhy; rhpjhd;/
ehd; ePjpkd;w Kjy; tprhuizapy; brhy;ypa[s;sij nghy;
ve;jtpjkhd epfH;t[k; eilbgwtpy;iy vd;W brhd;dhy;
rhpjhd;/”
10. Similarly, PW4 the father of the victim also stated that it is true
that no such incident reported by them, had ever happened. The relevant
portion reads as follows:
“M$u; vjphp rutzd; vd; kfs; ghjpf;fg;gl;l rpWkpaplk;
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ve;j tpjj;jpYk; jg;ghf elf;ftpy;iy vd;why; rhpjhd;/
mnjnghy; M$u; vjphp rutzd; vd; kfs; ghjpf;fg;gl;l
rpWkpapd; thapy; Jzpia itj;J milj;jhu; vd;W brhy;tJ
nghy; vJt[k; elf;ftpy;iy vd;why; rhpjhd;/ ehd; ePjpkd;w
Kjy; tprhuizapy; brhd;dij nghy; ve;jtpjkhd Fw;w
braYk; vd; kfs; ghjpf;fg;gl;l rpWkpf;F elf;ftpy;iy
vd;why; rhpjhd;/”
11. Likewise, PW6 another relative of the victim, who took the victim
to the hospital, also turned hostile.
12. It is the submission of the learned Additional Public Prosecutor
that the above witnesses came up with the above versions only in the cross
examination after supporting the prosecution case in the chief examination,
which suggests that the witnesses were won over by the appellant.
13. We are afraid that such an inference cannot be drawn in the
absence of any challenge made by the prosecution to the above statements
made by the witnesses in their cross examination. The Public Prosecutor
ought to have cross examined these witnesses after seeking permission from
the trial Court and established that the witnesses were won over.
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Unfortunately, the prosecution has not treated any of these witnesses hostile
and challenged their deposition in the cross examination. Therefore, one
cannot presume that the witnesses were won over. That apart, if the victims
have given two different versions at two different stages and there is a
doubt as to which of the version is true, the one in favour of the accused has
to be preferred.
14. Coming to the evidence of PW3-victim, we find that the victim in
her Section 164 Cr.P.C statement had not specifically stated about the
penetrative sexual assault, though it suggests sexual assault by the
appellant. However, the victim herself, in the cross examination would
state that the accused had not misbehaved with her. The relevant portion
reads as follows:
“M$u; vjphp rutzd; jg;ghf vd;dplj;jpy;
elf;ftpy;iy/”
15. Considering the fact that the victim, who had originally not stated
about the penetrative sexual assaults in her Section 164 Cr.P.C., statement,
had made an improvement in the deposition and the fact that in the cross
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examination she had stated that the appellant had not misbehaved with her
and also considering her age, we are of the view that it would be highly
unsafe to convict the appellant for the serious offence of penetrative sexual
assault, on such evidence.
16. As pointed out above, since the mother/defacto complainant, the
grandmother and the father have all stated that what was stated in the chief
examination was false, we are of the view that the conviction rendered by
the trial court on the basis of such evidence, cannot be sustained. It is no
doubt true that the Doctor had found some injuries on the victim which are
recorded in the Medical Examination Report of the victim which was
marked as Ex.P9. The medical report suggests that the hymen was not
intact and there were injuries on the private part of the victim. The evidence
of the medial witness is only an opinion that can be used to corroborate the
other evidence on record and it cannot be the sole basis to hold the appellant
guilty of the offence. In this case, it is seen that the Doctor has also been
cross examined and the cross examination would suggest that the injuries
could have been caused by other means as well.
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17. Therefore, we are of the considered view that, in the absence of
challenge to the version of the witnesses who disowned the complaint and
the averments made therein, their versions in the cross examination, cannot
be brushed aside. The prosecution, therefore, in our view failed to establish
its case. Hence, the judgment of the trial Court, convicting the appellant is
liable to be set aside.
18. Accordingly, the Criminal Appeal is allowed and the appellant is
acquitted of the charge. The conviction and sentence imposed upon the
appellant in Spl.S.C.No.7 of 2021 dated 03.09.2022, on the file of the
learned learned Sessions Judge, Mahila Court, Perambalur, are set aside. The
fine amount, if any, paid by the appellant shall be refunded. Bail bond, if
any, executed shall stand discharged. Consequently, the connected Criminal
Miscellaneous Petition is closed.
(M.S.R.,J.) (S.M.,J.)
05.06.2024
Index : yes/no
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Speaking /Non-speaking order
Neutral citation : yes/no
ars
To
1. The Sessions Judge, Mahila Court,
Perambalur.
2. The Inspector of Police,
Maruvathur Police Station,
Perambalur District.
3. The Superintendent,
Central Prison, Trichy.
4. The Public Prosecutor,
High Court, Madras.
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M.S.RAMESH,J.
AND
SUNDER MOHAN,J.
ars
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05.06.2024
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