Madras High Court
Chellappan vs State Represented By The Inspector Of ... on 18 July, 2016
Bench: K.K.Sasidharan, B.Gokuldas
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 18.07.2016
Coram
The Hon'ble Mr. Justice K.K.SASIDHARAN
&
The Hon'ble Mr. Justice B.GOKULDAS
Criminal Appeal No.125 of 2015
Chellappan ... Appellant /Accused
vs.
State represented by the Inspector of Police,
Gandarvakottai Police Station,
Pudukkottai District. ... Respondent/Complainant
Appeal filed under Section 374 Cr.P.C. against the Judgment of conviction and
sentence passed in Special S.C.No.1/2013, dated 25.03.2015 by the Mahila
Court, Pudukottai.
!For Appellant : Mr.S.K.Mani
^For Respondent : Mr.A.Ramar
Additional Public Prosecutor
:J U D G M E N T
The appellant herein was tried by the learned Sessions Judge, Mahila Court, Pudukkottai, in Special Sessions Case No.1 of 2013, for charges under Sections-376 IPC r/w Section 4 of Protection of Children from Sexual Offences Act 2012. The learned trial Judge found the appellant/accused guilty of the charges under Sections 4 and 8 of Protection of Children from Sexual Offences Act, 2012 and sentenced him to undergo life imprisonment under Section 4 of Protection of Children from Sexual Offences Act, 2012 and to pay a fine of Rs.1,000/-, with default sentence of one year rigorous imprisonment; and five years rigorous imprisonment for the offence under Section 8 of Protection of Children from Sexual Offences Act, 2012 and to pay a fine of Rs.1,000/-, with default sentence of rigorous imprisonment for one year. The sentences imposed were ordered to run concurrently. Aggrieved by the judgment of conviction and sentence passed by the trial court, the accused has preferred the present Criminal Appeal before this Court.
2. The case against the accused/appellant is that, on 02.06.2013 at about 8.30 a.m., while the victim girl aged about 11 years along with her niece aged about 12 years was plucking leaves for the goats at the cashew grove of one Vathiar, the accused came there and told them that if they come to his grandfather's cashew grove, there are lot of neem leaves for the goats. Believing his words, the victim and her niece went there for collecting the leaves. While the victim was carrying the leaves over her head and returning along with her niece, the accused beat on the back of the victim and hugged both of them. The victim's niece escaped from that place, but, the victim was caught hold of by the accused, who subjected her to sexual offence. Thus, the accused was charged for the offences as stated above.
3. Before the trial court, in order to substantiate its case, the prosecution examined PWs-1 to 19, marked Exs.P1 to P13 and produced MOs1 to
4. On the side of the accused, one person was examined as DW1 and one document was marked as Ex.D1
4. The prosecution case, as divulged by its witnesses, is concisely narrated here-under:-
i) PW-1, is the father of the victim. According to him, on 02.06.2013, at about 08.00 a.m. his sister-in-law's daughter came hurriedly to his house and told that one person caught hold of his daughter/victim. Immediately he went in search of his daughter and on the way he saw his daughter coming there crying. When he asked her as to why she was crying, she replied that the accused removed her petticoat and by putting a knife on her neck caused penetration in her private part. After returning to his house, he informed the incident to his wife, who immediately washed her daughter's cloths. His wife fell ill due to shock and PW1 took her to the nearby hospital.
Thereafter, he went to the respondent police station along with the minor victim and gave the complaint/Ex.P1.
ii) PW2 is the mother of the victim. She reiterated the version of PW1. In her evidence, she stated that after the incident, she washed the cloths of the victim.
iii) PW3 is the victim. According to her, while she was collecting leaves in a cashew grove, the accused came there and took her along with her niece to the grove belonging to his grandfather. While the victim and her niece were collecting leaves and started moving from there by carrying the leaf bundles, the accused beat on the her back side and he also caught hold of them, whereupon the niece of the victim started running. However, the victim could not move as she was carrying the leaf bundle over the head. At that time, the accused dragged her to a place below a mango tree and undressed her and thereafter he laid over her after removing his dress. On the victim raising alarm, he allowed her to go from there with a cautioning that if she discloses the happening to any one, he would cut her neck.
iv)PW4 is the niece of PW3 and in her evidence she told that the accused is the person who took the victim to the place where the occurrence is alleged to have taken place. PW5 is the neighbour of PW1 and in her evidence, she stated that on 02.06.2013, she heard the cry coming from the house of PW1 and on enquiry, they stated that their daughter was subjected to sexual violence by the accused.
v) PW6 is a resident of the village. In his evidence, he stated that he saw the victim coming crying on the way to her house. PW7 is also a resident of the village. He spoke about the accused running hurriedly from the cashew grove of the Venkatajalapathy. PWs8 and 9 are the witnesses for the seizure mahazar and observation mahazar respectively. PW10 is the Headmaster of the school, in which the victim girl was studying. PW11 is the Headmaster of the school, in which, the niece of the victim girl was studying. PW12 is the Doctor attached to the Puddukottai Government Hospital. She issued Ex.P7 and Ex.P8 certifying the age of the victim and the accused respectively.
vi) PW13 is the gynecologist, who examined the victim, on 05.06.2013 and she gave Ex.P9/Accident report, in which she has opined as follows:-
?No external injuries seen over the thighs or external genetalia.
Hymen intact:
No semen specimen could be taken?
vii) PW14 is the Doctor attached to the Pudukottai Government Hospital, who examined the accused and issued potentiality certificate-Ex.P10. PW15 is the Special Sub Inspector of Police, Gandavarkottai Police Station, who took the accused for medical examination on 05.06.2013. PW16 is the Special Sub Inspector of Police, who registered the FIR/PW11 in Cr.No.103 of 2013 for the offences under Section 376 IPC r/w Section 4 of Protection of Children from Sexual Offences Act, 2012.
viii) PW17 is the Judicial Magistrate who recorded 164 statements of the victim and her niece. PW18 is the Head Constable, who took the victim to the Government Hospital for examination on 05.06.2013. PW19 is the Investigation officer, who laid the charge sheet after conducting investigation.
5. The learned trial Judge after completing the procedure and considering the oral and documentary evidence and upon hearing both sides, convicted and sentenced the accused as aforementioned, resulting in filing of the present Appeal before this Court.
6.The point that arises for consideration in this Appeal is as to whether the judgment of conviction and sentence passed by the trial court is sustainable or not?
7. According to the learned counsel for the appellant, the alleged occurrence is said to have taken place at 08.30 a.m. on 02.06.2013 and, on the basis of the complaint given by PW1 on 02.06.2013, the First Information Report came to be registered on the same day at 11.00 p.m. However, the victim girl and the accused were subjected to medical examination only on 05.06.2013. That being so, the Trial Court miserably failed to consider the vital and core aspect that there was no explanation at all by the prosecution for not subjecting the victim girl as well as the accused to medical examination on 03.06.2013 itself. Similarly, he would submit that the material objects namely MO3 and MO4, shirt and Kaili(Lungi) respectively said to have been worn by the accused during the occurrence were not at all sent for forensic examination.
8. Adding further, he would submit that the victim girl was aged about 11 years at the time of occurrence and if really a penetrative sexual assault was made on her vagina, resultantly, the medical officer who examined her would have noticed injury on the private parts, in particular, she would have noticed tearing of hymen. The evidence of PW1 and PW2 as to the sexual violence committed on the victim shall have to be read along with the evidence of PW13, doctor, who examined the victim and issued Ex.P9/accident report, with the opinion that there was no injury over the thighs or external genetalia of the victim and that the hymen of the victim was intact and no semen specimen could be taken. In support of his submission, the learned counsel for the appellant relied on a decision in Radhu v. State of M.P. {(2008) 2 SCC (Cri) 207}, to make a point that glaring discrepancies found in the evidence of the parents of the victim, and the evidence of the victim being full of discrepancies and not inspiring the confidence of the Court, would ultimately destroy the case of the prosecution. He also relied on the decision reported in AIR 2005 SCC 643 (Pandurang Sitaram Bhagwat v. State of Maharashtra) to highlight the proposition that discrepancies in the statement of witnesses as to the manner of occurrence would ultimately enure to the benefit of the accused.
9. Further one more vital aspect, namely, the cloths of the victim girl were washed by her mother, escaped the attention of the Trial Court. Therefore, it is clear that, without even properly analysing all positives and negatives of the prosecution case, the Trial Court hurriedly came to the conclusion that the accused had committed the alleged offence. Had the Trial Court exhaustively considered the aforesaid glaring negative aspects in the prosecution case, definitely, it would have refrained from passing the judgment of conviction and sentence.
10. It is also submitted by the learned counsel for the appellant that belated medical examination of the accused and non-examination of the doctor, who examined him regarding potentiality is a material discrepancy which would go to the root of the matter. Ultimately, by pleading that the Trial Court did not take pains to appreciate and analyse the case in a proper perspective, which resulted in passing of an erroneous judgment against the appellant/accused, he pleaded that the appeal may have to be allowed by setting aside the judgment of the Trial Court.
11. Per contra, learned Public Prosecutor submits that in a case of rape and attempt to commit rape, evidence of the victim assumes great importance. In the instant case, while deposing before Court, the victim, who was aged 11, has given a graphic picture about the way in which she was subjected to sexual violence by the accused. She also narrated the incident to her parents. The lower court, after considering various aspects of the case, has arrived at a just conclusion and hence, the judgment of conviction and sentence imposed against the appellant/accused may not be disturbed.
12. We have perused the materials available on record and considered the rival contentions projected by the respective counsel.
13. In a case of this nature, where the victim speaks about the alleged occurrence and her version is reflected also by her parents, the Court has to examine as to whether the evidence of such witnesses is free from inconsistencies, ambiguities and infirmities. In the course of such exercise, the Court has to ?side- by-side? contrast their evidence with the available medical evidence. In proceeding so, it could be seen that immediately after the alleged occurrence that took place on 02.06.2013, at 08.30 a.m. the victim conveyed the alleged happening to her father PW1 and also her mother PW2, whereupon a complaint was made to the police only at 11.00 p.m. At this juncture, it must also be remembered that since the victim came to the residence after the alleged sexual violence, her mother PW2 washed her cloths, thereby there was no occasion to subject the cloths of the victim to chemical examination.
14. Secondly, the minor victim, who was subjected to a serious offence namely sexual violence, was not even sent for medical examination immediately, despite filing of the First Information Report on the very same day, rather, for the reasons best known to the prosecution, she was sent to medical examination only on 05.06.2013. Similarly, even though the accused was arrested on 03.06.2013 itself, he too was sent for medical examination belatedly i.e. on 05.06.2013. The prosecution has not come with any plausible explanation for the long delay of about 2 to 3 days in sending the victim and the accused for medical examination. Passing here, if one looks at the complaint under Ex.P1 lodged by the father of the victim, the story takes a different form deviating from the deposition of PW1/father. To put it clear, while the evidence of PW1 proceeded to the effect that it was his daughter/victim who informed him on the way about the occurrence. Ex.P1/complaint proceeds as if that after reaching the residence, the victim told the alleged incident to her mother from whom the father/PW1 came to know it and thereafter lodged the complaint. Since there are contradictions and infirmities in the version of Pws1 to 3, coupled with the fact that Ex.P1 complaint gives a different version, leaving a strong room for after thought, as rightly pointed out by the learned counsel for the appellant, it is not safe to rely on the evidence of the above witnesses to base conviction against the appellant/accused. In this background, if this Court looks into the medical evidence given by doctor PW13, she has categorically stated that there was no external injury on the private part of the victim and also there was no tearing of hymen and no semen specimen could be taken. In such circumstances, both the external and internal injuries on the private part of the victim having been clearly ruled out by the medical officer, this Court entertain a strong doubt on the evidence of victim girl and her parents.
15. While being examined, the victim, would state that she was dragged to a place below a mango tree in the grove belonging to the grandfather of the accused and she was undressed there by the accused, who according to the victim girl, after removing his dress, laid over her, whereupon she shouted, upon which, the accused lifted her and allowed her to go with a cautioning that if she would divulge the happening, her neck would be cut off. The above deposition of the victim girl is not specific about the sexual offence attracting the provisions of the Protection of Children from Sexual Offences Act, 2012. Even in the cross-examination, there is no clinching version of the victim in that regard. It is only the father of the victim namely PW1 for the first time would come up with the version that the accused caused penetration in the private part of her daughter namely, the victim. He also does not say that the dress of the victim on the alleged date of occurrence was stained with blood or semen. PW2, the mother of the victim would plainly say that her daughter told her that she was raped under a mango tree. A combined reading of the above said three witnesses would show that each of them has come up with a different version about the occurrence and the manner in which the victim was allegedly subjected to sexual violence. The version of Pws1 to 3 not being clear and obsessed with contradictions, this Court feels that it is not safe to absolutely act upon the testimonies.
16. The medical officer who issued the certificate under Ex.P9 has very clearly mentioned that there was neither external injury on the private part nor any internal injury in the form of tearing of hymen. It is also be seen that prosecution did not take any effort immediately to subject the accused for potentiality test coupled with the fact that the doctor who examined the accused regarding potentiality was not even examined, which aspect in the given circumstances would definitely go to the root of the matter.
17. Admittedly, in the present case, the appellant put forward the theory of motive between their family and one Nagarajan in respect of a land dispute. Both PW1 and PW2 in their evidence have stated that they knew the said Nagarajan. PW1 has further stated that Nagarajan was his relative. The appellant has produced document Ex.D1 to substantiate his contention that there was enmity between themselves and the family of Nagarajan. The fact that the defence had failed to prove the motive for false implication does not have much relevance as the prosecution miserably failed to prove the charges.
18. It is useful to refer the the decision cited by the learned counsel for the appellant, in Radhu V. State of M.P.(cited supra), wherein at paragraph 6 it is held as follows:-
?6. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse of rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The Courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get ride of financial liability. Whether there was rape or not would depend ultimately on the fact and circumstances of each case.?
19. The other judgments relied on by the learned counsel for the appellant in Kusa and Ors V. State of Orissa reported in (1980) 2 SCC 207 and Shankarlal G.Dixit V. State of Maharashtra, reported in (1991) 2 SCC 35, are not directly applicable to the facts of the present case, hence, they are not discussed.
20. In a case of this nature, the prosecution should be vigilant enough to conduct the investigation in a right manner and bring home the guilt of the accused and there should not be any flaw in it, since any failure on the part of the prosecution would definitely go to the benefit of the accused. In the instant case, in view of the discrepancies pointed out above, the benefit of doubt should go to the accused and accordingly, he is entitled for acquittal in the hands of this Court.
21. In the result, the appeal is allowed and the judgment of conviction and sentence passed in Special S.C.No.1/2013, dated 25.03.2015 by the learned Sessions Judge, Mahila Court, Pudukottai, are set aside. The appellant is acquitted of all the charges. The fine amount paid, if any, shall be refunded to him. The appellant is ordered to be set at liberty forthwith, if his confinement is not required in connection with any other case.
To
1.The Sessions Judge, Mahila Court, Pudukottai.
2.The Inspector of Police, Gandarvakottai Police Station, Pudukkottai District.
3.The Superintendent Central Prison, Trichy.
.