Madras High Court
M. Munusamy vs State Rep. By on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Criminal Appeal No.259 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.06.2025
CORAM
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No. 259 of 2016
---
M. Munusamy .. Appellant
Versus
State Rep. by
The Inspector of Police,
Gingee Police Station,
Gingee, Villupuram District.
Crime No.36/2010 .. Respondent
Criminal Appeal had been filed under Section 374 (2) of Criminal
Procedure Code, to call for the records in S.C. No. 275 of 2012 on the file of
the learned Sessions Judge, Fast Track Mahila Court, Villupuram and set aside
the conviction and sentence vide Judgment dated 18.02.2016.
For Appellant : Mr. S. Saravana Kumar
For Respondent : Mrs. G.V. Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal had been filed to set aside the Judgment dated
18.02.2016 passed in S.C. No. 275 of 2012 by the learned Sessions Judge, Fast
Track Mahila Court, Villupuram. By the said Judgment, the
Appellant/Accused was convicted for the offences under Sections 366, 376 (2)
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(f), 377 and 506 (ii) of IPC and sentenced to undergo varied period of
sentences.
2. The brief facts, which are necessary for the disposal of this
Criminal Appeal, are as follows:-
2.1. The victim is a minor girl aged about 11 years at the time of
incident. She was studying VI Standard in St. Michael School, Gingee. The
prosecution came to be launched against the Accused, at the instance of P.W-1,
who is the uncle of the victim girl. According to P.W-1, on 22.01.2010 at about
5.00 p.m. he was standing in front of the Tea Stall next to State Bank of India
in the road leading to Thiruvannamalai. At that time, he saw the victim girl
riding pillion in the two wheeler driven by the Accused. When P.W-1 intended
to question it, the two wheeler zipped past. P.W-1 was under the impression
that the Accused would drop the victim girl in her house, enroute. However, on
the same day his sister complained to P.W-1 that the Accused had taken the
victim girl to the forest area in Valuppamparai, Saanikulam, Tiruvannamalai
and committed sexual assault. Immediately, P.W-1 and his sister took the
victim girl to Government Hospital, Gingee from where she was referred to
Government General Hospital, Villupuram for better treatment. On 24.01.2010,
P.W-1 had given a written complaint to Gingee Police Station based on which
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the case in Crime No. 36 of 2010 was registered for the offences punishable
under Section 376 of Indian Penal Code. Ex.P-13 is the First Information
Report.
2.2. On receipt of Ex.P-13, P.W-16, Inspector of Police, Gingee
proceeded to the place of occurrence on 25.01.2010 at 7.00 a.m. and prepared a
rough sketch in the presence of witnesses Ramu-P.W-6 as well as Kanthan-
P.W-8. He also drew an observation mahazar in the presence of same
witnesses. On the same day, he recorded the statement of Kumaran-P.W-1, the
victim girl-P.W-2, Rukmani-P.W-3, Durairajan-P.W-4, Elumalai-P.W-5 and
Murugan-P.W-7. During such investigation, he received information about the
whereabouts of the Accused and accordingly, he went in search of the Accused
and arrested him near Melkalavai Koot Road in the presence of witnesses
Ananthan-P.W-9 and Karthikeyan-P.W-10. On the basis of the confession
statement of the Accused, P.W-16 recovered the Motorcycle used by the
Accused for commission of offence. From the two wheeler front tank pouch,
the dress which the Accused used during the commission of offence, was
recovered in the presence of the same witnesses under a Mahazar. Thereafter,
the Accused was sent to remand. P.W-16, after remand of the Accused, gave a
requisition letter to the Court seeking to send the Accused for medical
examination. Accordingly, the Accused was examined by the Doctor
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Sivakumar, P.W-13 with respect to his potential to commit the sexual offence.
Similarly, the victim girl was also subjected to medical examination by the
Doctor. At this stage, P.W-16 was transferred and in his place, P.W-17,
Inspector of Police, took up the investigation in this case.
2.3. In continuation of the investigation, P.W-17 collected the wound
certificate issued by Dr. K. Balagurubalan, P.W-11 and also recorded the
statement from him. He also recorded the statement of P.W-13, Dr. Sivakumar
and P.W-14, Dr. Dhanalakshmi, who had given treatment to the victim girl. In
her statement, Dr. Dhanalakshmi had stated that there are bite marks on the
body of the victim girl which would have been caused through bite. After
conclusion of his investigation, P.W-17 had filed the charge sheet against the
Accused for the offence under Sections 366, 506 (ii), 376 (2) (f) and Section
377 of Indian Penal Code.
2.4. On receipt of the final report along with the relevant records, the
learned Judicial Magistrate, Gingee had taken the case on file as PRC. No.15 of
2012 for the offence under Sections 366, 506 (ii), 376 & 377 of IPC. The
copies of records relied by the Prosecution were furnished to the Accused
under Sections 207 of Cr.P.C. As the offence under Section 376 of IPC is
triable by the Court of Sessions, the learned Judicial Magistrate, Gingee
submitted the entire records to the learned Principal Sessions Judge,
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Villupuram under Sections 209 (a) of Cr.P.C., and the case was taken on file in
the Principal Sessions Court, Villupuram as S.C.No.275 of 2012 and
subsequently made over to the Sessions Judge, Fast Track Mahila Court,
Villupuram for disposal accordingly to law. After careful consideration of
records, the learned Sessions Judge framed charge against the Accused for the
offences punishable under Sections 366, 376 (2) (f), 377 and 506(ii) of IPC.
The charges were read over and explained to the Accused in Tamil and the
Accused denied the charges and pleaded not guilty. Therefore, trial was
ordered. During trial, the Prosecution examined 17 witnesses as P.W-1 to P.W-
17 and marked 15 documents under Ex.P-1 to Ex.P-15 besides material objects
as M.O-1 to M.O-3. On the side of the defense, the Accused examined himself
as D.W-1 and marked two documents under Ex.D-1 & Ex.D-2. After hearing
the arguments of the learned Counsel for the Appellant and the learned Public
Prosecutor, the learned Sessions Judge, Fast Track Mahila Court, Villupuram
had convicted the Accused for the offence under Section 366 of IPC and
sentenced him to undergo Rigorous Imprisonment for ten years and to pay a
fine of Rs.1000/- and in default to undergo Simple Imprisonment for three
months. For the offence punishable under Section 376 (2) (f) of IPC the
Accused was sentenced to undergo Rigorous Imprisonment for Ten years and
to pay a fine of Rs.1000/- in default to undergo Simple Imprisonment for three
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months. For the offence punishable under Section 377 of IPC the Accused was
sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of
Rs.1000/- in default to undergo Simple Imprisonment for three months. For the
offence punishable under Section 506(ii) of IPC the Accused was sentenced to
undergo Rigorous Imprisonment for six months and to pay a fine of Rs.500/- in
default to undergo Simple Imprisonment for fifteen days. The above sentences
were ordered to run concurrently. It was also directed that the Accused is
entitled to set off under Section 428 of Cr.P.C.,
2.5. Aggrieved by the aforesaid Judgment dated 18.02.2016 passed in
S.C. No. 275 of 2012, the Accused is before this Court with this Criminal
Appeal.
3. Mr. S. Saravana Kumar, learned Counsel for the Appellant would
submit that P.W-1 in his evidence had deposed that on 22.01.2010 at about 5.30
p.m., he saw the victim girl riding pillion in the two wheeler driven by the
Appellant/Accused. However, the complaint under Ex.P-1 was given after a
delay of 3 days on 24.01.2010. This delay in giving the complaint had not
been properly explained by the prosecution. Thus, the First Information Report
came to be registered after adequate deliberations to victimise the Appellant.
Further, as per the deposition of P.W-2 and P.W-3, an intimation was sent from
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Gingee Hospital as well as Government Head Quarters Hospital on 22.01.2010
and 23.01.2010. However, on the basis of such intimation, the investigation
was not conducted nor the victim was examined in the hospital. The
prosecution had suppressed the so-called intimation given by the hospital on
22.01.2010 and 23.01.2010 and this gives rise to a suspicion in the nature of
case projected by the prosecution. The Appellant also filed an application to
produce the accident report from Mundiyambakkam Hospital, but no such
report has been issued by the Mundiyambakkam Hospital.
4. The learned Counsel for the Appellant further submitted that the
trial Court failed to see that the Accused was not properly identified by the
prosecution witnesses. P.W-1 to P.W-4 had given contradictory statement with
regard to identity of the Accused. In Ex.P-6-Accident Report of the victim
dated 22.01.2010 it is clearly mentioned about the status of the Accused as
“unknown person”. P.W-2 had stated that only after the photo of the Accused
was published in newspapers, she identified the Accused. P.W-2 to P.W-4 have
categorically stated that the Accused was identified only in the Court while
taking evidence. Even with regard to M.O-3 - Vehicle, P.W-2 had narrated that
it was a TVS 50 but what was confiscated is a Black Colour Hero Honda
Splender Motor Cycle.
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5. The learned Counsel for the Appellant submitted that Prosecution
had to prove the guilt of the Accused beyond all reasonable doubt. The
Accused has a profound right not to be convicted for an offence which is not
established by the evidential standard of proof beyond all reasonable doubt.
The law does not permit the Court to convict the Accused based on suspicion
or on the basis of preponderance of probability. The case of the Prosecution
should rest on its strength, not on the absence of explanation or plausible
defense of the Accused.
6. In support of his contention, the learned Counsel for the Appellant
relied on the ruling of the Hon'ble Supreme Court in the case of Toran Singh
Vs. State of Madhya Pradesh reported in (2002) 6 SCC 494 wherein the
Hon'ble Supreme Court has held as follows:
“7. The substantial portion of the Judgment of the trial Court
is contained in the narration of the Prosecution story and referring to
the Prosecution Witnesses. We hardly find evaluation, analysis or
scrutiny of evidence in a proper perspective objectively. With regard
to serous infirmities pointed out by the defense raising doubt about
the Prosecution case, the learned Sessions Judge has simply stated
that he did not agree with such contentions. The trial Court, in our
view, was not right and justified in lightly brushing aside the
infirmities and improbabilities brought out from the Prosecution case,
that too when the entire Prosecution case rested on the sole eye-
witnesses, who was interest being the son of the deceased; more so in
the absence of any corroboration of his evidence by other
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independent evidence on material aspects of the Prosecution case. It
is unfortunate that the High Court has simply endorsed the conviction
and sentence passed by the trial Court without objectively and
satisfactorily scrutinizing and examining the evidence as a first Court
of Appeal except narrating the Prosecution case and referring briefly
to the evidence of a few Prosecution case and referring briefly to the
evidence of a few Prosecution Witnesses. The reason recorded by the
High Court is to be seen in Para 10 of the Judgment which reads:-
“Thus in the absence of plausible defence by the Appellant and
the fact that the deceased had stayed in the house of the Appellant
and in the absence of the explanation as to the cause of death, the
Appellant is liable to be convicted. Deposition of P.W-1 Puran
inspires confidence and finds support from the medical evidence.”
7. The learned Counsel for the Appellant further submitted that the
First Information Report is belated and the reason for the delay has not been
explained by the prosecution. The significance for registration of the FIR at
the earliest are twofold; 1) Criminal process is set in motion and is well
documented from the very start and 2) The earliest information received in
relation to the commission of cognizable offence is recorded so that there
cannot be any embellishment, etc., Here, in this case, as per the evidence of
P.W-2, the alleged victim girl, in her cross-examination, had clearly stated that
br";rp muR kUj;Jtkidapy; ehd; ,Ue;jnghJ nghyPrhu;
m';nf te;jhu;fs;/ ehd; brhy;y brhy;y nghyPrhu;
vGjpf;bfhz;lhu;fs;/ me;j thf;FK:yj;jpy; vjpupia Fwpj;J
ahnuh bgau; bjupahjtu; vd;W ehd; brhy;ypa[s;nsd;/ vd;
mg;gh bra;jpjhis xU thuk; fHpj;Jf;bfhz;L te;J fhl;oa
nghJ jhd; vdf;Fk; vd; mk;kh mg;ghtpw;Fk; vjpupia Fwpj;J
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bjupa te;jJ/ However, as per evidence of P.W-3 in her cross-
examination she has stated that br";rp muR kUj;Jtkidapy;
nghyprhu; vd; kfis kl;Lk; jhd; jdpahf cl;fhu itj;J
tprhupj;jhu;fs;/ vd;id tprhupf;ftpy;iy
8. The learned Counsel for the Appellant further contended that the
victim was admitted in the Hospital on 23.01.2010 in the early Morning at
12.10 am. But as per the evidence of P.W-14 in her cross-examination, she had
stated as follows:-
n$hjp kPdht[k; mtUila jhahUk; ,ut[ 12
kzpf;F nky; vd;dplk; nky; rpfpr;irf;fhf
nghyp!; ,y;yhky; te;jjhy; ehd; cs;Siw nky;
kUj;Jt mjpfhupaplk; ehd; nkw;go egu;
rpfpr;irf;fhf te;jij bghWj;J bjuptpj;Js;nsd;/
ehd; nkw;go n$hjpkPdhit Ma;t[ bra;tjw;F
Kd;ghfnt mtUila jhahu; nghyPrhuplk;
mtUila cilfis bfhLj;Jtpl;ljhf Twpdhu;/
n$hjpkPdhtpd; jhahiu ehd; tprhupf;ftpy;iy/
9. From the above depositions of P.W-1 to P.W-3 and P.W-14, it was
stated that the Police Officer had recorded the statement from P.W-1 and P.W-2
and started the investigation. On the contrary, the investigation in this case
commenced only after registration of First Information Report on 24.01.2010.
P.W-16, Inspector of Police, said to have commenced the investigation only on
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25.01.2010 at 7.00 a.m. As per the ruling of the Hon'ble Supreme Court once
the investigation started by the Police Officials, any information received by
them subsequently can be treated as statement under Section 161 Cr.P.C.
10. As per the evidence of P.W-1, it is clearly stated that the
Complaint under Ex.P-1 was prepared by the Police. In his cross-examination,
he had deposed as follows:-
24/01/2010 md;W tpGg;g[uk; muR
kUj;Jtkidapy; vd;d eilbgw;wJ vd;W vdf;F
bjupahJ/ br";rp fhty;epiyaj;jpy; ehd; brhy;y
brhy;y me;j g[fhu; kDtpid nghyPrhu; vGjp
bfhz;lhu;fs;/ m/rh/M/1 g[fhu; nghyPrhuhy;
vGjg;gl;lJ jhd;/
11. On the contrary, the Inspector of Police/Investigation Officer/P.W-
16 who commenced the investigation in this case, had stated in his cross-
examination that the Complaint was not prepared by the Police. The relevant
portion of the deposition are as under:-
“g[fhiu th';fpaJ ehd; jhd;/ ehd; jhd;
g[yd; tprhuizf;F vLj;Jf; bfhz;nld;/ m/rh/1
Fkud; g[fhiu vGjpf; bfhz;L te;jhuh my;yJ
fhty; epiyaj;jpy; itj;J vGjg;gl;ljh vd;W
brhd;dhy;. fhty; epiyaj;jpy; itj;J
vGjg;gltpy;iy/ m/rh/1 bfhLj;j g[fhuhdJ
fhty;epiyaj;jpy; brhy;ypf; bfhLj;J vGjg;gl;lJ
vd;W brhd;dhy; rupay;y/”
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12. Thus, the deposition of P.W-1 and P.W-16 are contrary to each
other as to who had written the complaint. Once the FIR is doubtful, the entire
Prosecution case became doubtful. In this context, the learned Counsel for the
Appellant relied on the following rulings:-
1) AIR 1981 SC 1230 in the case of Selvi and another
Vs. State of Tamil Nadu.
2) (2012) 2 MLJ (Crl.) 494 in the case of Kumar @
Thambi and others Vs. State By Inspector of Police, Dindigul
Taluk Police Station, Dindigul District.
13. It is the submission of the learned Counsel for the Appellant that
the Appellant had been falsely implicated in this case by the maternal uncle of
the victim. There had been money transaction between the maternal uncle of
the victim and the Accused employed as Mason in Chennai. While working at
Chennai both had subscribed the Chit. The maternal uncle of the victim had to
pay the subscription for some months to the person who had conducted the
Chits towards repayment of the chit amount taken on bid. When this was
questioned by the person who conducted the chits, the Accused in this case had
repaid it and had contacted the maternal uncle to repay the amount. That was
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paid on his behalf by the Accused. Therefore, there was an enmity between
them. If really, the Accused was the person involved in this crime and victim
and her relatives had seen the Accused, they could have while giving the
Complaint informed the name of the Accused. The FIR and Complaint
proceeds with the history of the case as unknown person. While so,
subsequently the FIR was registered implicating the name of the Accused by
the maternal uncle of the victim. As per FIR, on 22.01.2010 at about 5 pm., the
Complainant saw the victim girl, when she was allegedly abducted by the
Appellant at Thesur Pettai Road, when the victim girl had returned from
school, the complainant also knows about the name and the residential address
of the Accused but he did not disclose the name either to the victim girl or to
her parents P.W-3 and P.W-4 or to the Police till the registration of the FIR on
24.01.2010. Even in the Government Hospital, Gingee where the initial
treatment was taken by the victim girl, she had not disclosed the name of the
Accused and identification of the Accused.
14. The abnormal conduct of P.W-1 to P.W-4, as per the evidence of
P.W-1, the alleged sexual assault was disclosed by P.W-3 at about 6 or 7 pm.,
on 22.01.2010 even though he was very well aware about the identity of the
Accused and the residential address of the Accused. P.W-1, who is the
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maternal uncle of victim girl or P.W-2 the victim and P.W-3 and P.W-4 the
parents of the victim had not made any quarrel or any commotion in the
village. It is very abnormal. This also lead to suspicion. P.W-1 and the
Appellant are known to each other and also P.W-1, P.W-7 and Appellant were
working in the same place. But there is no explanation by the Prosecution that
a) why P.W-1 had not informed the name of the Accused to the parents of the
victim. b) Why the P.W-1 had not disclosed the Appellant's name in the course
of Police enquiry. The Prosecution had to explain. P.W-2 and her parents did
not take any interest to know about the progress of the case. They were least
bothered about whether the Accused was arrested or not arrested, that itself
creates doubt in the mind of the Court regarding the allegations levelled against
the Appellant. P.W-1, P.W-2 in her cross-examination stated as follows:-
22/01/2010 md;W 7/30 my;yJ 8 kzpf;F
vd;id nghyPrhu; tprhuiz bra;jhu;fs;/
mg;nghJk; vjpup KDrhkp vd;w tptuj;ij
nghyPrhuplk; ehd; brhy;ytpy;iy/ 22/01/2010 md;W
nghyPrhu; vd;id tprhupj;jnghJ vjpupia bjupa[k;
vd;Wk;. Twpndd;/ Mdhy; mtu; bgaiu
Twtpy;iy/ br";rp nghyPrhu; ehd; brhd;dij
vGjp bfhz;lhu;fs; Mdhy; vd;d vGjpf;
bfhz;lhu;fs; vd;W bjupatpy;iy/
///////////////////// vjpupia vg;nghJ ifJ
bra;jhu;fs; vd;Wk;. ve;j r{H:;epiyapy; ifJ
bra;jhu;fs; vd;Wk; bjupahJ/
15. The evidence of P.W-2 is that ehd; kUj;Jtkidapy;
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,Ue;jtiu m/rh/1 vd;dplk; rk;ge;jg;gl;l egu; bgau; KDrhkp
vd;Wk; mtu; Fwpj;j tptuk; Fwpj;Jk; vd;dplk; brhy;ytpy;iy/
16. P.W-2 had given evidence only on the instigation of P.W-1 and the
fake social organisation in the name and style of Sasi Enterprises Tindivanam
represented by Lalitha. It is a settled law that the Prosecutrix evidence itself is
sufficient to convict the Accused if it inspires confidence and found
trustworthy but in this case the evidence of P.W-2 does not inspire confidence
of the Court and does not remain trustworthy to implicate this Appellant as
Accused for the reasons that a) P.W-2 had made statement to P.W-11/Doctor,
Government Hospital, Gingee at about 8.45 pm., on 22.01.2010 on the date of
occurrence that on the way to Sanikulam one known person had committed
rape. In contra, she has made another statement before the another
Doctor/P.W-14 at Government Hospital, Villupuram under Ex.P-9, that she was
abducted by one unknown person in TVS 50 on the way to Thiruvannamalai.
She was subjected to sexual assault. As per Ex.P-9 the statement of the victim
girl about the incident before P.W-14 is :-
br";rp Tl;L nuhLf;F bry;Yk; tHpapy;
jdpahf ele;J te;J bfhz;oUe;jnghJ jdf;F
mwpKfkpy;yhj Mz; egu; xUtu; TVS 50y; Vw;wpf;
bfhz;L jpUtz;zhkiyf;F bry;Yk; tHpapy;
bfhz;L brd;wjhf Twfpwhu;/
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17. The evidence of P.W-11, in the examination-in-chief states that,
“22/01/2010e; njjp ,ut[ 8/40 kzpastpy; ehd; gzpapypUe;j
nghJ n$hjpkPdh taJ 11 vd;gtiu mtUila jhahu;
miHj;J te;jhu;/ mtiu rhzpf;Fsk; nghFk; tHpapy; mtiu
xU bjupe;j egu; fw;gHpf;fg;gl;ljhf mtu; Twpdhu;/”
18. In her examination-in-chief, she had stated that when she was
abducted, it was noticed by P.W-1 and P.W-5 and after the alleged sexual
assault, she was taken back and dropped at Thesur Pettai Road, Alanpoondi
Village and the Accused showed one house as if it belonged to him but the said
fact was not informed to the Police or to the parents. The evidence of P.W-2
reads as follows:-
Myk;g{z;oapy; njtjhdhk;ngl;il nuhl;oy;
,wf;fptpl;L tpl;L ntbwhU tPl;il mtu; tPL vd;W
fhz;gpj;jhu;/////////////////
m/rh/1 kw;Wk; xU VGkiy vd;gtu; vjpup
vd;id nkhl;lhu; irf;fpspy; itj;J flj;jpr;
bry;Yk;nghJ vd;id ghu;j;jhu;fs;/
19. In her cross-examination stated that vjpup mtUila
tPLd;D fhl;oa tPl;oid ehd; nghyPrhuplk; fhl;ltpy;iy/
20. The evidence of P.W-14/Dr.Dhanalakshmi in her chief-
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examination stated that mtu; jd;id 22/01/2010e; njjp khiy 4/30
kzpastpy; mwpKfkpy;yhj Mz;egu; xUtu; o/tp/v!; 50y; te;J
rfhak; rhu; gzj;ij tpl;Ltpl;L brd;Wtpl;lhu; vd;Wk;. mij
jUtjw;F jd;id miHj;jhu; vd;Wk;. gpd;du; jd;id
o/tp/v!;50y; Vw;wpf;bfhz;L jpUtz;zhkiy nghFk; tHpapy;
jpUtz;zhkiy rhiyapy; miHj;J brd;whu;/
21. The same was corroborated by other officers, P.W-16 and P.W-17.
The cross-examination of P.W-16 reads as follows:-
tpGg;g[uk; muR kUj;Jtu; tpgj;J gjpntl;oy;
vjpup mtiu otpv!; 50 thfdj;jpy; Vw;wpr;
brd;wjhf Twpajhf gjpt[ bra;Js;shu; vd;W
brhd;dhy; rhpjhd;/
22. But the victim girl/P.W-2 easily identified the vehicle in the Court
and distinguished it as a motor cycle from her earlier version of TVS 50. The
relevant portion of cross-examination of P.W-2 reads as follows:-
ehd; jw;bghGJ 10tJ tFg;g[ goj;J
tUfpnwd;/ vd;dplk; fhl;lg;gLk; thfdk; otpv!;
50 thfdk; MFk;/ mJ v/j/rh/M/1 Mf jhf;fyhfp
FwpaPL bra;ag;gLfpwJ/ vd;dplk; fhl;lg;gLtJ
nuhnfhz;lh thfdk; MFk; mJ v/j/rh/M/2
jhf;fyhf FwpaPL bra;ag;gLfpwJ/
23. With regard to the register number of the vehicle P.W-1 has not
mentioned the registration of the vehicle number. However, in his cross-
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examination he has stated that vjpupapd; nkhl;lhu; irf;fpy; gjpt[ vz;
vdf;F bjupahJ/ P.W-2 also has not mentioned the registration number of
the vehicle and stated in his cross-examination stated that m/rh/M/1 g[fhu;
nghyPrhuhy; jhd; vGjg;gl;lJ jhd;/ vjpupapd; nkhl;lhu;
irf;fps; gjpt[ vz; vdf;F bjupahJ/ vjpupia vg;nghJ
ifJ bra;jhu;fs; vd;Wk;. ve;j r{H;epiyapy; ifJ bra;jhu;fs;
vd;W vdf;F bjupahJ/
24. P.W-5 and P.W-7 were projected by the Prosecution to identify the
Accused along with victim girl and vehicle. However, their testimony did not
support the Prosecution case. Accordingly, the learned Counsel for the
Appellant/Accused prayed for allowing this appeal.
25. In support of his contention, the learned Counsel for the Appellant
relied on the following Judgments:-
25.1. In the case of Rahul Vs. State of Delhi, Ministry of Home Affairs
& Another reported in 2023 SAR (Cri) 115 it has been held as follows:-
“The Supreme Court put view that “However, the Prosecution
has failed to do in the instant case, resultantly, the Court is left with no
alternative but to acquit the Accused, through involved in the heinous
crime go unpunished or acquitted, a king of agony and frustration
may be caused to the society in general and to the family of the victim
in particular, however the law does not permit the Courts to punish the
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Accused on the basis of moral conviction or on suspicious alone-No
conviction should be based merely on the apprehension of indictment
or condemnation over the decision rendered – Every case has to be
decided by the Courts strictly on merits and in accordance with law
without being influenced by any kind of outside moral pressure or
otherwise (para 33)”
25.2. In the case of State of Uttar Pradesh Vs. Ram Veer Singh and
Ors. reported in 2007 (13) SCC 102 the Hon'ble Supreme Court had held as
follows:-
“ A miscarriage of justice which may arise from acquittal
of the guilty is no less than from the conviction of the Accused.”
25.3. In the case of Phul Singh Vs. State of Haryana reported in AIR
1980 SCC 249 the Hon'ble Supreme Court had held as follows:
“Conviction of rape – Sentence- Accused aged 22 years
and not a habitual offender – Sentence reduced from four years
R.I to two years R.I.”
26. Mrs. G.V. Kasthuri, learned Additional Public Prosecutor
vehemently objected to the line of arguments of the learned Counsel for the
Appellant seeking acquittal. According to the learned Additional Public
Prosecutor, the victim was examined as P.W-2 and she was aged 11 years on
the date of occurrence. By the time when she was examined before the Court,
she was 15 years old. Therefore, the alleged inconsistency in her deposition
with regard to identity of the Accused or the description of the motor vehicle
used for the commission of offence will not in any manner vitiate the case
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projected by the prosecution.
27. The learned Additional Public Prosecutor invited the attention of
this Court to the evidence of P.W-2 regarding the stains in her dress. In her
evidence, she had clearly stated that she was abducted by the Accused around
4.30 p.m. on his motorcycle and was raped by the Accused. Such version of
P.W-2 was also corroborated by P.W-5/Independent witness and P.W-4 who is
the father of the victim. Similarly, P.W-8 and P.W-9 did not deny the signatures
in the confession statement and it is based on the confession statement the
two-wheeler was recovered by P.W-16.
28. The learned Additional Public Prosecutor submitted that P.W-11 is
the School Headmaster. He had deposed regarding the age of the victim girl.
As per his evidence, the victim was aged 10 years and 7 months on the date of
occurrence. P.W-14- Dr. Dhanalakshmi, in her evidence, had clearly stated that
she issued the medical report of the victim under Ex.P-9 stating that there are
teeth bite marks on the body of the victim girl. It is on the basis of the clear
and unrebutted evidence let in by the prosecution witness, the Trial Court
passed the judgment of conviction against the Appellant/Accused. The
Prosecution proved the charges against the Appellant/Accused beyond any
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reasonable doubt. The Judgment of the trial Court is well-reasoned and it has
to be confirmed. Accordingly, the learned Additional Public Prosecutor prayed
this Court to dismiss the Appeal.
29. By way of rejoinder to the submissions of the learned Additional
Public Prosecutor, the learned Counsel for the Appellant submitted that P.W-5
and P.W-7 are own sister and classmate of the victim girl and therefore, their
testimony may not be reliable. As per the evidence of P.W-2, it was a TVS 50
vehicle in which she was abducted by the Appellant/Accused. However, the
Investigating Officer had seized and produced a Hero Honda vehicle and it
disproves the testimony of P.W-1. P.W-11, the Doctor, who examined the
victim on the same day within one hour of the alleged occurrence had in his
medical report narrated the history of the case as spoken by the victim. Thus,
the deposition of the prosecution witnesses are inconsistent with each other.
Taking note of the above, the Trial Court had erroneously convicted the
Appellant/Accused and he prayed for allowing this Appeal.
Point for consideration:
Whether the conviction recorded by the learned Sessions
Judge, Fast Track Mahila Court, Villupuram in S.C.No.275 of
2012, dated 18.02.2016 is perverse and is to be set aside?
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30. Heard the learned Counsel for the Appellant/Accused and the
learned Additional Public Prosecutor for the Respondent/State. Perused the
Judgment passed by the learned Sessions Judge, Fast Track Mahila Court,
Erode and the deposition of Prosecution witnesses viz., P.W-1 to P.W-17 and
the documents under Ex.P-1 to Ex.P-15 and the deposition of Accused/D.W-1
and the documents under Ex.D-1 and Ex.D-2.
31. In a criminal case of this nature, the burden is heavy on the
prosecution to prove the overt act against the Appellant/Accused. In such a
proceeding, the Appellant/Accused is entitled to maintain stoic silence and it is
always not necessary for him to examine himself as a witness. In this case, in
order to clear the air of controversy surrounding him, the Accused/Appellant
stepped into the witness box and brought to the notice of the Court the
differences and disputes between him and P.W-1 which led to the registration
of a false case against him.
32. On perusal of the records, it is found that the Accused in his
deposition as D.W-1 had spoken to about the dispute with P.W-1-maternal
uncle of the victim regarding subscription to a Chit at Chennai for Rs.5,000/-
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per month. According to D.W-1, he is working as a Mason in Chennai. He
further stated that he and P.W-1 have subscribed to a Chit for Rs.5000/- and
P.W-1 had paid the chit amount of Rs.500/- for the first month. However, in
the next month, P.W-1 wanted to avail the chit amount of Rs.5,000/-. For
paying the chit amount, the Chit Subscribing Agent wanted D.W-1 to stand as
surety for the amount of Rs.5,000/- to be paid to P.W-1. Accordingly, on the
basis of surety given by D.W-1, P.W-1 was paid the chit amount of Rs.5,000/-.
However, P.W-1 did not repay the chit instalments and therefore D.W-1 was
constrained to pay the amount of Rs.500/- every month. He further deposed
that two months thereafter, he saw P.W1- in the Tea Stall and demanded him to
pay the amount, which he was made to pay. In this regard, there was a wordy
quarrel between P.W-1 and D.W-1 and ultimately, P.W-1 stated that he will pay
the amount in two months. On 24.01.2010 D.W-1 came from Chennai to
Gingee and stayed in his relatives house and at that time, Police have swarmed
his relatives house and apprehended him by stating that he had committed rape
on a minor girl. Even though D.W-1 and his relatives protested, the
Appellant/Accused was taken away by the Police and remanded him to judicial
custody in connection with the registration of the case in Crime No. 36 of
2010.
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33. In the cross-examination of D.W-1, he reiterated that due to non-
payment of chit amount by P.W-1, there was dispute between them. It was also
stated that a false case had been foisted against him by the Police authorities at
the instigation of P.W-1.
34. On perusal of the deposition of P.W-1, he had stated that he saw
the Accused driving the motor cycle in which the victim girl was riding pillion.
He further deposed that a few hours later, his sister, P.W-3 had stated that the
Accused had committed rape on the minor victim girl. Therefore, P.W-1 to
P.W-3 have proceeded to the Government Hospital, Gingee, from where, the
victim girl was referred to the Government Head Quarters Hospital,
Villupuram. Thus, it is evidently clear that in his deposition as P.W-1, he had
clearly stated that it was the Appellant/Accused who had abducted the minor
victim girl in his two wheeler. However, the First Information Report in this
case came to be registered only on 24.01.2010 at the instance of P.W-1. There
is no worthy explanation forthcoming for the delay in registration of the First
Information Report. Further, it is seen that immediately after the alleged
occurrence, P.W-1 along with P.W-3 taken the victim to Gingee Government
Hospital from where she was referred to Government Medical College
Hospital, Mundiambakkam, Villupuram where Dr. Dhanalakshmi/P.W-14
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examined the victim and issued Ex.P-11. Ex.P-6 is the earliest document
emanated soon after examination of the victim by the Doctor at Gingee
Government Hospital/P.W-11. P.W-11 referred the victim girl to Government
Medical College Hospital, Mundiambakkam, Villupuramm for detailed
examination. He had issued an Accident Register under Ex.P-6 dated
22.01.2010 wherein it was stated that the victim was produced by her mother
for medical examination by 8.45 pm.,
35. P.W-14/Dr. Dhanalakshmi who was serving at Government
Medical College Hospital, Villupuram examined the victim and she was
informed about the occurrence. Curiously, P.W-2 had stated that she was
abducted by an unknown person in a TVS 50 vehicle. When P.W-1 could say
that it was the Accused who had kidnapped the victim girl, the Victim girl had
stated before P.W-14 that she was abducted by a person, whose identity is not
known to her. This part of the deposition of P.W-2/victim girl is fatal to the
case of the prosecution launched at the behest of P.W-1.
36. It is the defense of the Accused that he reached Gingee from
Chennai on 24.01.2010 on that date, he was arrested by the Police based on the
complaint of P.W-1. According to the Appellant, the complaint was given by
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P.W-1 to settle score with him in connection with money dispute. It is a
specific case of the Accused that he was framed for raising the dispute with
P.W-1. It is his contention that the case had been developed against him as
though P.W-1 had seen him, taking the victim girl on his bike on 22.01.2010. It
is the defense of the Accused that the Accused is well known to the family of
the victim. While so, the victim had claimed that an unknown person had taken
her on a two-wheeler and raped her in an isolated place between Gingee and
Alampoondi in a bush. P.W-5 and PW-7 are introduced by P.W-1 as though
they had seen and heard the occurrence. Even though they have deposed that
they saw P.W-2 along with the Accused, the victim in her statement before
P.W-14 had stated that she was abducted by an unknown person in a TVS 50
vehicle. This portion of the deposition of P.W-2 demolishes all the testimony
of the prosecution witnesses and raises grave suspicion in the manner in which
prosecution had weaved it's case. The testimony of P.W-2 made the case of the
prosecution very weak and feeble that it will not stand to the test of judicial
scrutiny.
37. The argument of the learned Counsel for the Appellant that already
investigation proceeded and FIR was suppressed is found reasonable from
Ex.P-6. Ex.P-6 indicates that the Doctor had not informed the Police. As per
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Ex.P-9 issued by the Villupuram Government Headquarters Hospital, Police
Out Post, the RMO had not been informed under Ex.P-9. It is stated that the
mother of the victim had stated that the Police came to Gingee Government
Hospital and conducted the investigation. She also deposed that the dress worn
by the victim at the time of the occurrence was handed over to the Police at
Gingee Government Headquarter Hospital. However, based on such alleged
statement recorded by the Police, immediately, the complaint was not
registered. On the other hand, it was registered at the behest of P.W-1 on
24.01.2010. Therefore, it is evident that either the investigation commenced
without registering a First Information Report or the recording of the statement
of the victim girl and her mother in the hospital had been suppressed while
registering the First Information Report.
38. The defense of the Accused is found reasonable that the Accused
was framed in this case as though he had taken the victim on his two-wheeler.
On the date of 22.01.2010, the Appellant was not at all available in the place of
occurrence and he had landed in Gingee only on 24.01.2010 morning. The
occurrence in this case had taken place allegedly on 22.01.2010. However,
soon after the Appellant landed Gingee, he was calculatedly arrested by the
Police at the behest of P.W-1.
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39. The name of the Accused was mentioned in the FIR registered on
24.01.2010 at the behest of P.W-1. However, the mother of the victim had
stated that the Police came and enquired her on 22.01.2010 at Gingee
Government Headquarters Hospital during which she feigned ignorance as to
who had committed the heinous offence of rape against her daughter. P.W-11
who had examined the victim at the earliest under Ex.P-6 advised the mother
and the victim to proceed to Villuppuram Government Headquarters Hospital.
In the Accident Register copy, in the Column “whether the Police were
informed”, it was mentioned as “No”. In such a circumstances, it must be held
that the Appellant was not properly identified and he ought to have been
identified through an identification parade by the Investigation Officer.
40. The victim in her deposition had stated that an unknown person
had taken her on motorcycle under the pretext of handing over the purse of one
Sagayam Teacher working in the same School. However, instead of doing so,
he had taken the victim/P.W-2 on his motorcycle towards Alampoondi, and on
the way he stopped the two-wheeler and took the victim inside the bush where
he had forcibly committed the offence of rape. As narrated by the victim girl,
the Doctor had recorded under Ex.P-9 that the victim was abducted in a TVS
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50 vehicle. Whereas according to P.W-1, the vehicle driven by the Accused
was a Honda Splendor. Thus, after much deliberations, after two days of
occurrence, the FIR under Ex.P-13 was registered on 24.01.2010 fixing the
name of the Accused. Thus, the preponderance of probability in the evidence
of the Accused/D.W-1 is found justified. The Accused himself had entered into
the witness box even though it is not essential. The Accused was clear in his
evidence that he deposed that he was not available in Gingee on the date of
alleged occurrence on 22.01.2010 and he reached Gingee only on 24.01.2010.
Further, the records in this case clearly indicate that the victim identified the
Accused only during trial. Thus, the entire case has been doctored at the behest
of P.W-1 to settle his scores with D.W-1. But unfortunately, in doing so, he had
painted the Accused as an offender, who had committed the heinous offence of
rape of his own sister's daughter.
41. The fact is that there was no investigation carried out immediately
after the occurrence. The statement said to have been recorded by the Police
Officials in the Hospital had been suppressed and it had not been brought to
light. The First Information Report registered in this case was after two days of
the occurrence. The documents under Ex.P-6, Ex.P-9 and Ex.P-11 are
contradicting is found probable. From the perusal of the same, if the FIR had
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the words “unknown person”, the investigation has to proceed with conduct of
an identification parade, instead of unknown person, the FIR itself had fixed
the Accused after two days after the occurrence. The learned Sessions Judge,
Fast Track Mahila Court, Villupuram failed to appreciate the circumstances
highlighted from the cross-examination of P.W-1, P.W-5 and P.W-7. P.W-5 and
P.W-7 are witnesses who claimed to have seen the Accused and the victim
immediately after the occurrence. If that has to be believed, they should have
informed either P.W-1 or the parents of the victim. P.W-5 and P.W-7 are known
to the family of the victim. They had not done so and it is contrary to the
normal, ordinary and prudent human conduct.
42. Above all, the Investigation Officer was cross-examined by the
learned Counsel for the Accused. From the cross-examination of the
Investigation Officer, it was found that there had been contradictions between
the medical records. The earliest medical record under Ex.P-6 arises from
Gingee Government Hospital. The medical records of the Government
Medical College Hospital, Villupuram at Mundiambakkam discloses that the
mother of the victim had informed the Doctor on duty at Government Hospital,
Villupuram that the dress worn by the victim at the time of occurrence was
handed over to the Police at Gingee Government Hospital. Also, in the same
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record, it is stated that the Police came to Gingee Government Hospital and
examined the victim. When P.W-16/Investigation Officer was confronted with
those contradictions, he claims ignorance. He also was not sure as to under
whose identification, the Rough Sketch and Observation Mahazar were
prepared. This shows that after much deliberation, P.W-1 had ably framed the
Appellant/Accused into this case.
43. The victim had at the earliest point of time before the Doctors at
the Government Hospital stated that an unknown person had forcibly taken her
on a two-wheeler, whereas the entire family, even P.W-2/Victim girl is known
to the Accused. Therefore, the victim ought to have stated the name of the
Accused at the earliest point of time. When there is no mention of the name of
the Accused in the medical records and subsequently, the First Information
Report lodged by P.W-1 clearly disclose the name of the Accused, it creates
serious doubt in the mind of this Court. The Accused had taken the risk of
entering the witness box and had cleared the air surrounding the controversy.
The deposition of D.W-1 blew the lid of in this case but it was not properly
considered by the Trial Court.
44. The learned Additional Public Prosecutor before the learned
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Sessions Judge, Fast Track Mahila Court had cross-examined the
Accused/D.W-1. The Accused/D.W-1 withstood the cross-examination and
reiterated that there was a money dispute between him and P.W-1 and he was
framed by P.W-1 with the help of Police Officials. Given the degree of
inconsistency in the deposition of prosecution witnesses and the defence of the
Appellant/Accused, it is clear that the Appellant/Accused was framed by P.W-1
to settle scores with him. According to the Appellant/Accused, he landed in
Gingee on 24.01.2010, on that date, he was arrested. If the investigation was
fair, it ought to have commenced on 22.01.2010 as per the medical records
under Ex.P-9. In the cross-examination, P.W-3/mother of the victim had clearly
stated P.W-1, her younger brother had not indicated that they had seen the
Accused taking the minor victim on his bike on 22.01.2010. Only after P.W-3
narrated the incident as informed by her daughter/P.W-2 he had stated that he
knew the person who is involved in this case. She had clearly stated that she
and her daughter were taken to the Government Headquarters Hospital,
Villupuram from the Government Hospital, Gingee by the Police. If that be the
case, the First Information Report ought to have been registered at the earliest
point of time, but it was not done. Therefore, the submission of the learned
Counsel for the Appellant is found acceptable in the facts and circumstances of
this case, as gathered from the records. The submission of learned Additional
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Public Prosecutor for the State that the evidence of the victim itself inspires
confidence of the Court is not found acceptable. In fact, the deposition of
victim/P.W-2 had got serious discrepancies and therefore, based on her
deposition, convicting the Appellant will be unsafe.
45. In the light of the above discussions, the point for consideration is
answered in favour of the Appellant and against the Prosecution. The
Judgment passed by the learned Sessions Judge, Fast Track Mahila Court,
Villupuram is perverse.
In the result, this Criminal Appeal is allowed. The Judgment dated
18.02.2016 passed in S.C. No. 275 of 2012 on the file of the learned Sessions
Judge, Fast Track Mahila Court, Villupuram is set aside. The
Appellant/Accused is acquitted of all charges. The bail bond, if any, executed
by the Appellant/Accused shall stand cancelled. The fine amount, if any, paid
by the Appellant/Accused is ordered to be refunded to him.
02.06.2025
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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dh
To
1. The Sessions Judge,
Fast Track Mahila Court,
Villupuram.
2. The Inspector of Police,
Gingee Police Station,
Gingee, Villupuram District.
3. The Public Prosecutor,
High Court, Madras.
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SATHI KUMAR SUKUMARA KURUP, J
dh
4. The Superintendent,
Central Prison,
Cuddalore.
5. The Section Officer,
Criminal Section,
High Court Madras.
Judgment made in
02.06.2025
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