Madras High Court
Sampath vs State Rep By
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 13.07.2018 Delivered on 20.07.2018 CORAM: THE HON'BLE MR.JUSTICE N. ANAND VENKATESH Criminal Revision Case No.1271 of 2011 Sampath ... Petitioner ..Vs.. State rep by. The Inspector of Police, A.Pallipatti, Dharmapuri District, (Crime No.133/2005) ... Respondent PRAYER: Criminal Revision Petition filed under Section 397 read with 401 of the Criminal Procedure Code, against the judgment passed in C.A. No.15 of 2010, dated 31.03.2010 by the learned Principal District and Sessions Judge, Dharmapuri convicting him under Section 376 r/w 571 I.P.C. and sentenced him to undergo 4 years Rigorous Imprisonment filed against the judgment passed in S.C. No.64 of 2007, by the learned Assistant Sessions Judge, Harur, dated 23.07.2007 convicting him under Section 376 (1) IPC and sentenced to undergo 7 years Rigorous Imprisonment and imposed fine of Rs.1,000/- in default to undergo Simple Imprisonment and acquit him. For Petitioner : Mr.M.G.Udhayashankar for Ms. S.Shanthakumari. For Respondent : Ms.S.Thankira, Government Advocate (Crl Side). - - - O R D E R
This is a sordid story of a poor girl who was aged 15 years at the time of incident and who was also a differently abled person both deaf and dumb, who was raped on the fateful day and her modesty was outraged. When the case comes up before the Court for trial, her own father and mother turned hostile by denying the incident and the victim herself who clearly explains the incident during her chief examination by sign language, after 6 days when she was cross examined, denies the whole incident. This is a pathetic state of affairs that prevails in remote and small villages where a victim who has been subjected to rape or attempted to be raped, retract the very incident itself by means of pressure exerted on her and her family or fearing future repercussions. We are living in such peculiar state of affairs where more than the accused, it is the victim who fears getting exposed to the outside world, consequent to the dastardly crime of rape. Keeping this in mind the parliament stepped in the year 2013 and brought an amendment to Section 164 Cr.P.C. Wherein, Sub Section 5-A was inserted, making it mandatory for the police to immediately take the victim to the Magistrate for the purpose of recording her statement under Section 164 Cr.P.C and the proviso to the Sub Section specifically provides that when such statement is made by a person who is temporarily or permanently, mentally or physically disabled to be video-graphed and the statement shall be considered as a statement in lieu of examination in chief, such that, the maker of the statement can be cross examined on such statements, without the need for recording the same at the time of trial.
2.Brief facts of the prosecution case:-
On 25.07.2005, at about 4 p.m. when the victim was near the sugar cane field grazing the cow, the accused came to the scene of occurrence and caught hold of the victim and pushed her down and bite her lips and thereafter committed rape upon her. At about 5 p.m., on the same day, the victim came home crying and told her mother (PW1) about the incident by sign language. The victim took her mother to the scene of occurrence and also identified the accused person who on seeing the mother and the victim, ran away from the spot. The mother (PW1) informed about the incident to the father (PW2) and both of them took the victim to Pappireddipatti Government Hospital and admitted her. The Doctor in the Hospital examined and gave initial treatment and thereafter referred the victim to Dharmapuri Government Hospital. The victim was admitted at Dharmapuri Government Hospital .
2.1. The information was sent to the respondent police and the police came to the hospital on 26.07.2005 and recorded the statement of PW1 and reduced it into a complaint (Ex.P1). The respondent police recorded the statements in the presence of PW9, who is a teacher in the Dharmapuri Deaf and Dumb Government School, who explained the sign language of the victim who described the incident.
2.2. Based on the complaint, First Information Report was registered in Crime No.133 of 2005, for an offence under Section 376 (1) of IPC and investigation was taken up by PW12, who took statements from the witnesses, and also prepared the Observation Mahazar and Rough Sketch in the presence of witnesses. The investigating officer also gave a requisition letter to the learned Judicial Magistrate (Ex.P10, P16 and P17) and seized the victim girl's dress and took her to the Doctor for conducting medical examination and the victim girl was examined by PW7. The accused was arrested and he was also taken for examination to the Doctor and he was examined by PW8.
2.3. On completion of the investigation, a final report was filed by the respondent police and based on the same, charges were framed against the accused for an offence under Section 376 (1) of IPC.
3. The prosecution examined PW1 to PW12 as witnesses and marked Exhibits P1 to P18 and MO1 to MO7, in order to substantiate the case.
4. The trial Court on consideration of the oral and documentary evidence and also on appreciation of the facts and circumstances of the case was pleased to convict the petitioner for an offence under Section 376 (1) of IPC and sentenced him to undergo Rigorous Imprisonment for 7 years and pay fine of Rs.1000/- and in default to undergo Simple Imprisonment for 3 months.
5. Aggrieved by the judgment passed by the trial Court, the petitioner filed an appeal before the learned Principal District and Session Judge, Dharmapuri in Criminal Appeal. No.15 of 2009 and the appellate Court on appreciation of the facts and circumstances of the case and also the evidence on record, was pleased to partially allow the Criminal Appeal, by modifying the conviction under Section 376 read with 511 of IPC and imposing a sentence of 4 years Rigorous Imprisonment and fine of Rs.1000/- and in default to undergo Simple Imprisonment for 3 months. Aggrieved by the same, the petitioner has filed the present Criminal Revision before this Court.
6. Submissions made by Mr.M.G.Udhayashankar, learned counsel for the petitioner:
The learned counsel for the petitioner would submit that the cumulative reading of the evidence of PW1, PW2 and PW6 will make it clear that the very incident projected by the prosecution itself is highly doubtful. The learned counsel would further submit that both the Courts below have proceeded to convict the petitioner only based on medical evidence. It was further contended that even assuming that such an incident took place, on the evidence available on record, it will only constitute an offence under Section 354 of IPC and the evidence available on record does not make out a case for attempt to rape.
7. Submissions made by Ms.S.Thankira, learned Government Advocate (Crl.Side) for the respondent:
Per contra, the learned Government Advocate (Crl. Side) would contend that the poor victim girl had clearly explained about the incident in sign language which was perfectly interpreted by PW9 who was a teacher working in Government Deaf and Dumb School at Dharmapuri and who assisted the Court at the time of recording the evidence of the victim (PW6). The evidence of the victim given during chief examination considered along with the evidence of PW7 Doctor who explains about the injuries and has given a medical certificate marked as Ex.P5 and also the medical report marked as Ex.P6, clearly makes out an offence of attempt to rape. The learned counsel further contended that the Courts below have properly appreciated the facts based on evidence and there is no ground to interfere with the judgment passed by the Courts below. Therefore, the learned Counsel submits that there are no merits in this Criminal Revision Petition and the same has to be dismissed.
8.DISCUSSION:
It is seen from the evidence that PW1, the mother of the victim and PW2, the father of the victim did not support the case of the prosecution and they were treated as hostile. In cases of this nature, it is enough if the Court is convinced on the evidence given by the victim. Therefore, it becomes important for this Court to independently analyze the evidence of the victim PW6.
8.1. The victim is admittedly a deaf and dumb person. It is beyond cavil that a deaf and dumb person is a competent witness. Section 118 of the Evidence Act, speaks about the competency of a person to give evidence. A reading of the said provision makes it clear that all persons shall be competent to testify and the only qualification that the Evidence Act prescribes is (i) Comprehension and (ii) Communication. The witnesses must understand the questions put to them and must be capable of giving rational answers to those questions. In the instant case, the victim (PW6) satisfies both the criterias.
8.2. Section 119 of the Evidence Act, specifically deals with witness who is unable to communicate verbally. The normal manner in which a witness gives testimony in a Court of law is by word of mouth. However, under Section 119 (deaf and dumb) of the Evidence Act, a witness who is unable to speak may given his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Such evidence so given shall be deemed to be oral evidence.
8.3. The Apex court in the judgment in State of Rajasthan Vs. Darsjam Singh Alias Darshan Lal, reported in (2012) 5 SCC page 789, has dealt with the evidence of deaf and dumb witnesses and has held as follows:
'..26.The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally 1 Page 14 found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs.
27. In Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182, this Court has considered the evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that `verbal statement does not amount to `oral statement. In view of the provisions of Section 119 of the Evidence Act, the only requirement is that witness may give his evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence can be deemed to be oral 1 Page 15 evidence within the meaning of Section 3 of the Evidence Act. Signs and gestures made by nods or head are admissible and such nods and gestures are not only admissible but possess evidentiary value.
28. Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write. A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message. 29. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read 1 Page 16 and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath. ..."
8.4. This Court also had an occasion to deal with a similar case reported in 2014 (2) MWN (Cr.) 321 in the case of Mariyadoss Vs. State by Inspector of Police, All Women Police Station, Kumbakonam. In the course of the judgment, this Court analyzed in depth regarding the recording of evidence by deaf and dumb witness. This Court also referred to the Madras High Court Circular dated 02.06.2010, which was sent to all Subordinate Courts providing the list of Advocates who are trained to provide assistance to Court for recording the evidence of deaf and dumb witnesses. The circular also contains the addresses of Special Schools for Deaf and Dumb in Tamil Nadu from where the Courts can requisition the services of teachers for this purpose. It will be useful to extract the following paragraphs from the said judgment.
"...8.From a bare reading of Section 119, it is clear that the Court should first ascertain whether the witness is capable of writing. Only if the witness is not capable of writing, the Court should require the witness to speak by signs and gestures. The learned counsel submitted that in this case the trial Court had failed to first enquire whether P.W.2 was capable of writing out the answers. I perused the deposition of P.W.2 and found that the trial Court has not given any finding to the effect that P.W.2 does not know to read and write. But on seeing the signatures of P.W.2 in the original deposition that was called for from the Trial Court I am thoroughly convinced that she does not know to read and write. She has merely scribed her name in Tamil language in a totally disjointed manner. Perhaps everybody including the trial Court Judge have assumed that P.W.2 is an unlettered person in the light of admitted social background namely that she is a Dalit from a remote dalit colony insulated even from minimum schooling due to poverty conditions. She has no father and her mother P.W.1 is merely an agricultural labourer. It would have been in the fitness of things had the trial Judge made an enquiry to ascertain about her literacy levels. Just because that has not been done, it cannot be said in this case that any great prejudice had been caused to the accused.
9.The next argument advanced by the learned counsel for the accused is that the trial Court had failed to record the signs and gestures. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in State of Rajasthan v. Darshan Singh alias Darshan Lal [2012 Crl. L.J. 2908]. The Hon'ble Supreme Court in para 18 has held as follows:
"18. ... When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs."
10.That was a case filed by the State of Rajasthan against the acquittal of accused and the Hon'ble Supreme Court has refused to interfere with the acquittal. The Supreme Court has noted that the trial Court had used the service of the victim's father as an interpretor for interpreting the signs and gestures of the dumb witness. The Court below had held that the father being an interested witness ought not to have been used as an interpretor. In the light of those facts, the Supreme Court did not interfere with the acquittal of the accused. The facts obtaining in this case is different. Right from the time of investigation the police had taken the service of Bhuvaneshwari (P.W.7) a teacher who was specially trained to decipher the language of the mute. The Court had also requisitioned the service of Bhuvaneshwari(P.W.7) to interpret the evidence of P.W.2 in the Court. At that time no exception was taken by the accused for this procedure. Both of them were administered oath by Court. Bhuvaneshwari (P.W.7) assisted the Court in interpreting the signs and gestures of P.W.2. Thereafter, Bhuvaneshwari was examined as P.W.7. in order to prove the fact that she had assisted the police during investigation. It is not the case of the accused that Bhuvaneswari was in any way related to the victim's family or known to them. The police and the Court had requisitioned her service from a Special School for this singular purpose. The learned counsel for the accused relied upon the judgment of Himachal Pradesh High Court in Sunil Kumar V. State of Himachal Pradesh [2012 Crl.L.J. 1743] in which the High Court had acquitted the accused on the ground that the trial Court had not recorded the signs made by the dumb witness but had only recorded the interpretation of the signs. The Himachal Pradesh High Court also found other grounds, apart from this, for acquitting the accused in that case. In any event the judgment of the Himachal Pradesh High Court is only of persuasive value and does not bind this Court. In my opinion, for the failure of the Court to record the actual signs of the dumb witness the accused cannot be acquitted. We cannot forget the maxim actus curiae neminem gravabit which means the act of Court should not prejudice any party. In our judicial system the Presiding Officer is the master of his Court and if for reasons, be it out of ignorance or on account of supine indifference or otherwise, if he fails to perform his duty in the manner known to law that cannot inure to the advantage of any party unless grave prejudice is shown to have been caused. In this case, the accused was represented by a lawyer in the trial Court and he has used the same interpretor for cross-examining P.W.2. He did not complain that his questions were being misinterpreted and erroneously recorded by the trial Court. Thus, after the acquiescence to it and participating in the proceedings, one cannot reprobate it at the revisional stage. Mr.M.Karunanithi, fairly submitted that even if the evidence of P.W.2 is overlooked on this ground, this Court can look for other collateral evidence to prove the offence. The learned counsel for the accused brought to my notice the unreported judgment of Punjab and Haryana High Court in Raja @ Rajender v. State of Haryana [http://indiankanoon.org/ doc/162931976/]. For the purpose of future guidance of trial Courts, it may be relevant to extract paragraphs 26 and 27 of the judgment:
"26. In the present case, statement under Section 164 of the Cr.P.C. was recorded by the Judicial Magistrate on the interpretation made by Satpal interpreter. No doubt, the statement made by the witness under Section 164 of the Cr. P.C. is not a substantial evidence but the Court can take into account that in her statement under Section 164 of the Cr.P.C., the prosecutrix has supported the case of the prosecution. The trial court recorded the statement of the prosecutrix through interpreter and the trial Court has given details of each sign/gesture made by her. For example, the oath was administered to the prosecutrix, the interpreter has folded her hand whereupon the witness has also folded her hand where upon the interpreter has stated that the witness has taken oath of speaking truth. The next question put to this witness was regarding age. Upon this interpreter signal with her both hands and then lifted her right hand in inquiry position Criminal Appeal No.S. 611 SB of 2009 10 whereupon the witness lifted her both hands indicating five fingers three times and then raising one finger of one hand only, upon which interpreter stated that witness has given her age as 31 years. So, the sign given by the prosecutrix makes the things clear regarding her age. The other question regarding children and education of the children etc. has been answered by the prosecutrix in a sign language which makes the things understandable to a commoner. A question was put to give the total number of assailants. This question was put by interpreter making gesture with her right hand upon which the witness raised five fingers of one hand and then made a circle with index finger and thumb inserted in finger of other hand in that hole, to which interpreter replied that witness has stated that five persons had committed sexual intercourse with her. A question was put to the prosecutrix whether all the assailants are present in the Court, on the inquiry gesture of the interpreter, the prosecutrix raised her four fingers and then raised one finger and making the signs with her fingers of her right hand by closing the fist and opening and closing the same to which interpreter stated that four persons are present in the court while one is not present.
27.Another question was put to the witness how many times wrong act was committed with you and individual by each assailants. The interpreter made inquiry sign to which the prosecutrix gesture by raising three fingers first then two fingers and one raising her index finger three times and the same has been interpreted that two assailants committed wrong act one each. The very important question which was put to the prosecutrix was that can she recognize those persons, if they are present or Criminal Appeal No.S. 611 SB of 2009 11 not ? To answer that question, interpreter moved her hand upon her face and then made inquiry upon which the witness the prosecutrix has put her hand against her face and interpreter has replied that she can recognize the assailants as the witness has put her right hand before her face indicating a mirror in front of her. Thereafter, the prosecutrix had pointed out towards the accused individually who were present in the Court with the police officials. So, in this manner, the prosecutrix has recognized all the four accused in the present as assailants."
11.On an independent research made by me I came to understand that only English has got codified international sign language for the mute. There is no such codified sign language for Indian languages. Dumb witnesses can be classified broadly into two categories viz., witnesses who are dumb; and witnesses who are deaf and dumb. These witnesses can be further classified into two categories viz., those who have attended Special Schools for the hearing impaired and those who have not had that special education. The former category of witnesses who have undergone this formal learning in the Special School will understand the questions from lip movement and also from gestures by trained teachers. In response to the question put by the expert, they will give their answers both by lip movement and gestures. As regards the latter category of witnesses who have not undergone any training in Special Schools, the questions can be put to them only through signs and gestures and they would also answer by signs and gestures.
12.Section 119 of the Evidence Act as amended by the Parliament with effect from 15.03.2013 reads as under:
"119.A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed."
13.The Madras High has issued a circular in R.O.C.No.1729/2010/RR, dated 02.06.2010 to all the Subordinate Courts, containing a list of Advocates who are trained to provide assistance to the Court for recording the evidence of deaf and dumb witnesses. This list has been prepared for all the Districts in the State and the mobile numbers of the Advocates are also given. This R.O.C. was issued pursuant to the direction by this Court on 30.11.2009 in W.P.(MD)No.5802 of 2006. Apart from the names of the Advocates, the list also contains the addresses of Special Schools for deaf and dumb in Tamil Nadu from where the Courts can requisition the service of teachers for this purpose. As regards the expenses for videographing the evidence of a dumb witness, it should be defrayed from the contingent fund. The Judicial Officer who is vested with contingent fund in a district, shall make available necessary funds for videographing when a request is made by a Presiding Officer of a Court under his administrative control.
14.During my informal discussions with some trial Court Judges about the viability of videographing the evidence of dumb witnesses and videographing the confession statements under Section 164Cr.P.C., they expressed a very genuine apprehension that the videographer, who would have it in his system, may knowingly or unknowingly share it with third parties, in which event, it may even get uploaded in online platforms and portals like You-tube and will be a great injustice and embarrassment to the witness. I gave my anxious consideration to these possibilities and I felt that if an affidavit of undertaking is obtained from the videographer to the effect that he will not disclose the proceedings to anybody, will maintain secrecy and will also not retain a copy of the proceedings in any form or transmit or publish the recordings, it can to some extent be a deterrent. Therefore, trial Courts should obtain an undertaking affidavit from the videographer as aforesaid and make it part and parcel of the Court records so that action can be taken against the videographer, if he violates the undertaking.
8.5. The case law mentioned supra was also a case arising out of an offence under Section 376 read with 511 of IPC.
8.6. In the instant case, the law was set on motion by PW1 who gave a statement to the police in Dharmapuri Government Hospital on 26.07.2005. This statement was reduced into writing and was made as a complaint (Ex.P1). While taking this statement, the assistance of PW9 was also taken in order to explain the sign language of the victim and the same is evident from the complaint itself.
8.7. The victim PW6 was examined in the open Court by taking the assistance of an interpreter (PW9). The victim is an illiterate girl and even in the deposition she has only subscribed her left hand thumb impression. Therefore, there was no occasion for the trial Court to get the answers in writing from the victim. It will be useful to extract the evidence of PW6 herein under:-
@Kjy; tprhuiz:
,d;W fhiy 11/00mstpy; jpU/gp/MWKfk;. ,sepiy Mrphpah; fhJ nfshnjhw;fhd muR nky; epiy gs;sp jh;kg[hp Mfpa ehd; ghjpf;fg;gl;l bgz; fhl;Lk; iriffis bghUj;J gjpy; TWtjw;F cjtpahf vd;id muR jug;gpy; rhl;rpahf Twpa[s;shh;fs; mjd;go gpukhz thf;FK:yj;jpd;go rhl;rpfSf;F mDkjp ntz;Lfpnwd;/ @vd; bgah; bjhpa[k; Mdhy; brhy;y ,ayhJ/ 1/ vjphpia bjhpa[kh> bjhpa[k;
2/ cd;id vjphp vd;d bra;jhh;> fhJ nfshjhh; Mrphpah; nfs;tp nfl;f mjw;F irif K:ykhf ghjpf;fg;gl;l bgz; Twpa gjpy;fs; fPH;fz;lthW:
vjphpiar; Rl;of;fhl;o mth; jd;id fPnH js;sp fGj;ij ,uz;L iffshYk; bewpj;jjhft[k;. vd;id fPnH js;sp vd; cjl;il foj;jhh;/ vd;id fPnH js;spf; fl;o gpoj;jhh;/ vd;id fPnH js;sp bfLj;jhh;/ (me;j bgz;zplk; Mrphpah; irif K:ykhf cWg;g[fspd; jd;ikfis gw;wp. ,af;fk; gw;wpa[k; nfl;l nghJ ghjpf;fg;gl;l bgz; Mk; vd;fpwhh;/) ehd; gpd;dh; tPl;Lf;Fngha; vd; mk;khtplk; ele;jij brhd;ndd;/ mjd; gpd;dh; kUj;Jtkidf;F nghdjhf rhl;rp TWfpwhh;/ mjd; gpd;dh; nghyPrhh; te;J jdJ mk;khita[k; jd;ida[k; mth;fs; Kd;dpiyapy; tprhhpj;jjhf TWfpwhh;/ mg;nghJ Mrphpah; gp/MWKfk; (PW9) cld; ,Ue;jhh;/ eP';fSk; mg;nghJ ,Ue;jPh;fs; vd;W irif bra;fpwhh;/ FWf;F tprhuiz: FWf;F tprhuizapy; vjphp jug;[g tHf;fwp"h; Rg;ukzp ghjpf;fg;gl;l bgz;zplk; bgah; nfl;lnghJ mth; brhy;y Koahj epiyapy; ,Uf;fpwhh;/ vGjpf; fhl;l Koa[kh vd;W nfl;lnghJk; KoahJ vd;W irif fhl;Lfpwhh;/ rk;gtk; tay; tHpapy; ele;jJ vd;W irif K:yk; TWfpwhh;/ me;j tay; ahUilaJ vd;W bjhpahJ vd;W irif fhl;Lfpwhh;/ rk;gt ,lk; tPl;oy; ,Ue;J J}uj;jpy; ele;jJ/ ePjpkd;wj;jpy; Mypy; ,Ue;j xU fhyz;lh; rhl;rpaplk; fhl;lg;gl;lJ mjpy; cs;s njjpfis bjhpahJ vd;W irif fhl;Lfpwhh; kw;Wk; njjp "hgfk; ,y;iy vd;W TWtjhf Mrphpah; TWfpwhh;/ ehd; mg;nghJ rj;jk; nghl;nld; gyUk; Xo te;jhh;fs; vd;W jd; ,U iffshYk; gyUk; te;jjhf irif fhl;Lfpwhh;/ mth;fs; te;jJk; vjphp Xotpl;ljhf irif fhl;Lfpwhh;/ vjphp tHf;fwp"h; Mrphpaiu fl;og;gpoj;J mt;thW bra;jhuh vd;W nfl;lhh; mjw;F Mkhk; vd;W irif fhl;Lfpwhh;/ ehd; nghl;l rj;jj;jpy; vjphp jd;id tpl;Ltpl;L Xotpl;ljhf irif fhl;Lfpwhh;/ ePjpkd;w nfs;tp: vjphpapd; Mz; cWg;ig cs;ns brYj;jpdhuh vd nfl;ljw;F ghjpf;fg;gl;l bgz; Mkhk; vd;W irifahy; TWfpwhh;/ vd; nkny gLj;J vjphpapd; Mz; cWg;g[ cs;ns brd;wJ vd irifapy; TWfpwhh;/ FWf;F tprhuiz: bjhlh;e;J vjphp jug;g[ tHf;fwp"h; FWf;F tprhuiz bra;fpwhh;/ rk;gtk; khiy neuj;jpy; ele;jjhf irif fhl;odhh;/ ahhplk; brhd;djhf nfl;l nfs;tpf;F mtUila irif ahhplKk; brhy;yhjJ nghy; cs;sJ gpd;dh; mk;khtplk; brhd;dhah vd;W nfl;ljw;F Mk; vd irif fhl;Lfpwhh;/ mf;fk; gf;fk; tPl;lhhplk; brhd;djhf irif fhl;Lfpwhh;/ md;W khiyna M!;gj;jphpf;F nghdjhf irif bra;fpwhh;/ nghyPrhh; vg;nghJ te;jhh;fs; vd;W nfl;l nfs;tpf;F Fwpg;ghf gjpy; brhy;ytpy;iy gy;ntW irif fhl;Lfpwhh;/ vjphp jug;g[ tHf;fwp"h; F/tp/K/r/ gphpt[ 309 d; fPH; jhf;fy; bra;J mDkjpf;fg;gl;lJ/ FWf;F tprhuiz ,e;j epiyapy; epWj;jp itf;fg;gl;lJ/@ 8.8. In the chief examination, the victim has explained about the incident very clearly. Even though, the counsel on the side of the petitioner/accused started the cross examination on the same day, midway he took an adjournment. Thereafter, the victim was cross examined on 22.04.2009, after 6 days from the date of chief examination. At this point of time, the victim completely denies about the incident and for every question she merely opens her arms and shrugs. This attitude of the victim after 6 days, by itself does not in any way make her version in the chief examination doubtful. Obviously, PW1 and PW2 had already turned hostile and it is possible that they would have exerted pressure on the victim and it is also possible that the accused had utilized the time and won over her. The Hon'ble Supreme Court has issued directions that cross examinations must be done on a day to day basis and where a witness is cross examined after a long interval of time from the date of chief examination and circumstances are available for the purpose of believing that he or she might have been won over by the other side, such evidence can be disregarded/eschewed. Useful references can be made to the judgments reported in 2015 (2) LW Crl. 458 in the case of Dharmaraj Vs. The Inspector of Police, Athanakottai Police Station, Pudhukottai District and in the case of Rasukannu @ Rengasamy and another Vs. State through the Inspector of Police, Alangudi Police Station, Pudukkottai District reported in 2018 (1) MLJ Crl. 306. This Court is clearly convinced that the hapless victim was won over within 6 days by her family and by the petitioner/accused and therefore, the Courts below have rightly disregarded the evidence of the victim given during the cross examination.
8.9.It is also useful to refer to the evidence of the Doctor who examined the victim (PW7). This Doctor has noticed the following injuries. "A small abrasion seen at the Vulva on the mid line about 0.25 X 0.2 cm., No fresh bleeding" The evidence of the Doctor along with the medical certificate marked as Ex.P.5 and the medical report marked as Ex.P.9 also substantiates the case of the prosecution.
8.10. The evidence of PW9, the teacher of the Government deaf and dumb school and also his explanation of the sign language of the victim, clearly substantiates the case of the prosecution.
8.11. The trial Court had convicted the petitioner for an offence under Section 376 (1) of IPC. However, the appellate Court without any discussion comes to a conclusion at paragraph No.27 of the Judgment that the ingredients of Section 375 of IPC has not been established by the prosecution. The appellate Court abruptly concludes that the prosecution has established only a case for attempt to rape. There is no discussion by the appellate Court by appreciating the evidence of PW6, PW7 and PW9, as to why it came to such a conclusion. The evidence of PW6, is very clear that there was penetration at the time of the alleged incident. The injury observed by PW7 also substantiates the evidence of the victim girl (PW6). Therefore, the appellate Court was wrong in coming to a conclusion that the prosecution has made out a case only for attempt to rape.
8.12. Unfortunately, the prosecution has not filed any appeal against the judgment of the appellate Court and this Court in exercise of its power under Section 397 and 401 of Cr.P.C cannot convert the finding of acquittal under Section 376 (1) of IPC into one of conviction.
8.13. The petitioner has not made out any ground in this revision to interfere with the judgment of the Courts below. There are absolutely no merits in this Revision Petition.
9. In the result, this Criminal Revision Petition is dismissed and the judgment of the appellate Court is confirmed. The petitioner/accused is directed to surrender before the trial Court in order to serve the remaining sentence. The learned Assistant Sessions Judge, Harur, is directed to issue a warrant and execute the remaining sentence to be served by the petitioner.
20.07.2018 Index : Yes Web : Yes Speaking order/Non speaking order rkp To
1.The Principal District and Sessions Judge, Dharmapuri.
2.The Assistant Sessions Judge, Harur, Dharmapuri District.
3.The Public Prosecutor, Madras High Court, Madras.
Mr. N. ANAND VENKATESH , J., rkp Criminal Revision Case No.1271 of 2011 20.07.2018