Madras High Court
Arjunan vs State Represented By on 7 November, 2014
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.11.2014 CORAM THE HONOURABLE Ms.JUSTICE R.MALA Criminal Appeal (MD) No.264 of 2014 Arjunan ... Appellant Vs State represented by The Inspector of Police, Usilampatti Taluk Police Station crime No.139 of 2008 Madurai District. ... Respondent Prayer Criminal appeal filed under Section 374 (2) Cr.P.C against the judgment dated 10.09.2014 rendered in S.C.No.125 of 2009 by the Mahila Judge, Mahalir Sessions Judge, Madurai. !For appellant : Mr.AK.Azagarsami ^For Respondent : Mr.S.Prabha, G.A.( Crl. Side) :JUDGMENT
The Criminal Appeal is directed against the judgment of conviction and sentence passed under Section 376 of I.P.C., dated 10.09.2014 rendered in S.C.No.125 of 2009 by the Mahila Judge, Mahalir Sessions Judge, Madurai.
2.The respondent police filed charge sheet against the accused/appellant for the offence under Section 376 of I.P.C. stating that on 24.08.2008 at 07.00 a.m. when the victim girl was picked tomato in the land of Dharmar, the accused/appellant came and had sexual intercourse without her consent and thereby, he committed the offences as stated above.
2. The case of prosecution briefly is as follows:
i) P.W.1 Selvi, who is the victim was residing with her parents. At the time of occurrence, she was studying in 9th standard. P.W.7 who is the Headmaster of the Government Higher Secondary School, T.Subbulapuram, where the girl was studied, issued a certificate Ex.P.4 stating that the girl was studying in 9th standard. P.W.2 Deepavali is the father of P.W.1.
(ii)On the fateful day, 0n 24.08.2008 at 07.00 a.m., she was picking tomato in the land of Dharmar, which was leased out to the father of P.W.1 situated near her house. At that time, the accused/appellant came there and pushed her and put cloth into her mouth and removed her dress and had sexual intercourse without her consent. Even though, P.W.1 tried to leave him, she could do so and then, she kicked him and ran away from the place and informed the matter to her mother. She made a call to her father and after arrival of her father, they gone to police station and gave a complaint Ex.P1.
(iii)On 24.08.2008, P.W.12, Katturaja, Sub Inspector of Police, Usilampatti Police Station, received the complaint Ex.P1 from P.W.1 and registered a case in Cr.No.139 of 2008 under Section 376 I.P.C and prepared Ex.P.9, the printed First Information Report and despatched the same to Court and Superior officials.
(iv)On 24.08.2008, at 14.00 hours, P.W.13, Dhanapal, Inspector of Police, Usilampatti Circle took up the investigation of the case which was registered by P.W.12 and gone to the scene of occurrence at 14.30 hours and prepared Ex.P.2, the Observation Mahazer and Ex.P.10, the Rough Sketch in the presence of P.W.3 Pandi and one Andi. He examined the witnesses and recorded their statements. He recovered M.O.1 and 2, the clothes of the victim, which were produced by the victim girl and sent it to the Court for sending the same to forensic examination and chemical examination. He also sent the victim to the Government Rajaji Hospital, Madurai for medical examination.
(v)On 25.08.2008, P.W.6 Muthucharam, Grade I Police Constable brought the victim girl and produced at Government Rajaji Medical Hospital, Madurai for medical examination as per letter of the learned Judicial Magistrate No.1, Usilampatti. 26.08.2007, P.W.4 Dr.Ramalatha examined the victim P.W.1 and took X-ray to ascertain her age and issued age certificate Ex.P3 stating that the victim is aged above 14 below 17 years. The X-rays are marked as M.O.3 series( 7 in nos.). Further, the victim girl was examined by P.W.11, Dr.Roopa on 25.08.2008 and she issued medical certificate Ex.P.8.
(vi)On 10.09.2008, P.W.10 Tr.Rajesh, Scientific Assistant Grade II received the requisition from the learned Judicial Magistrate and analysed the material objects and found that no semen has been detected on the material objects and issued Ex.P7 biological report.
(vii)The accused has voluntarily surrendered before the Court.
Therefore, P.W.13, Dhanapal, Inspector of Police gave a requisition Ex.P 11 to the learned Judicial Magistrate concerned to send the accused for medical examination. P.W.l5 Mr.Abdul Raheem, Grade I P.C. On 11.09.2008 took the accused and produced him before the Government Rajaji Hospital for medical examination.
(viii)P.W.8 Dr.Kirubanithi, Radiologist took x-rays on the accused to ascertain his age and he issued Ex.P5 age certificate for the accused and the X-rays are marked as M.O.4 series (2 in nos.). The accused was further examined by P.W.9 Dr.S.Babu on the same day. P.W.9 Dr.Babu examined him and he issued Ex.P6 medical certificate for the accused stating that there is nothing to suggest that he is not fit for sexual intercourse and nothing to suggest that he is impotent.
(ix)Thereafter, P.W.13 Dhanapal, Inspector of Police examined the doctors, who treated the accused and victim girl and recorded their statements and after his completion of investigation, he filed charge sheet under Section 376 I.P.C against the accused on 20.02.2009.
3.In order to bring home the offence alleged against the accused, before trial Court, P.Ws.1 to 13 were examined and Exs.P.1 to 12 were marked and M.Os 1 to 4 were produced. On completion of the examination of witnesses on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. D.Ws.1 and 2 were examined on the side of the defence and no documents were marked.
4. On consideration of the evidence on record, learned Sessions Judge, Mahila Court, Madurai found that the accused is guilty under Section 376 of I.P.C and convicted and sentenced him as stated above, against which the present appeal has been preferred.
5. Challenging the said conviction and sentence passed by the trial Court, the learned counsel for the petitioner would submit that there is motive for giving a false complaint and there are contradictions between the evidence of chief and cross examination of the prosecutrix/P.W.1 in respect of the manner of occurrence. He further submitted that the medical evidence has falsified the case of prosecution. The earlier complaint has been buried by the police and the complaint given by P.W.2 has not been placed before the trial Court. Ex.P1 is not a complaint and it is a status of 161(3) Cr.P.C. statement, since, the earlier information given by P.W.2 was buried and to prove the innocence of the accused, D.Ws.1 and 2 were examined and hence, he prayed for setting aside the conviction and sentence passed by the trial Court against the accused/appellant.
6.Resisting the same, the learned Government Advocate (criminal side) would submit that the age of the victim is above 14 and below 17 years and she is minor and because of the motive alleged by the defence, no father will use his daughter as an instrument for making false complaint, that too in a sexual offence. She would further submit that there is no necessary for external injuries and the trial Court has considered all the aspects in a proper perspective and hence, she prayed for the dismissal of the appeal.
7.Considering the rival submissions made by both sides and also on perusal of the types set of papers would show that P.W.1 is the victim girl. P.W.2 is her father. To prove the guilt of Section 376 of I.P.C, except the evidence of P.W.1, no other evidence is available. It is well settled dictum of Apex Court that for the offence against women that too in sexual offence, evidence of victim girl is sufficient and no corroboration evidence is necessary, provided it must be inspired trustworthy.
8.Now, this Court has to consider as to the evidence of P.W.1 is reliable or not?. As per the evidence of P.W.7, Head Master and Ex.P4, Transfer Certificate, the date of birth of the victim girl is 07.06.1995 and she is a minor. P.W.4 Dr.Ramalatha has stated in her evidence that the victim girl is aged about 14 and below 17 years, by issuing age certificate Ex.P3. She is minor at the time of occurrence. It is not the case of the defence that she has consented for the sexual intercourse. In such circumstances, the question as to whether she is above 21 years or not is immaterial. But, now, it is also pertinent to note that the accused is aged about 13 years and he is not an impotent, as per the evidence of P.W.8 and P.W.9 and Ex.P5 and P6, age certificate and medical certificate issued for the accused. Therefore, the only point to be decided is whether the evidence of P.W.1 is reliable or not?
9.P.W.1 in her chief examination has stated that the alleged occurrence is said to have been taken place on 24.08.2008 at 7.00 a.m., when she was picking tomato from the land belonging to D.W.1, in which, her father is a lessee. P.W.1 in her chief examination, has explained how the occurrence has been taken place, whereas, in her cross examination, she has fairly conceded that the accused in a habit of picking greenish from 'Akathi' tree and on the date of occurrence, when the appellant has attempted to pick greenish, the same was questioned by her and at that time, there was a tussle between both the parties and during the same, she fell down and she sustained injury. It is appropriate to incorporate the following portion of the cross examination of P.W.1.
"ehq;fs; Fj;jiff;F vLj;jpUe;j njhl;lj;jpy; vjphp vq;;fs; mDkjp ,y;yhky; Fiyfis cilg;ghh; (brofis cilg;ghh;) vd;why; rhpjhd;. mt;thW cilf;ff; TlhJ vd;W ehDk; vd; bgw;nwhUk; vjphpia rj;jk; nghLnthk; vd;why; rhpjhd;. rk;gtj;jd;Wk; vjphp Fiyfis cilj;jjhy; js;S> Ks;S ele;jJ vd;Wk;> vjp[hp epd;Wf; bfhz;oUe;j vd;ida[k; vjphp js;sptpl;lhh; vd;why; rhpjhd;. mg;go fPnH tpGe;jjpy; vdf;F nyrhf fhak; gl;lJ vd;why; rhpjhd;."
Furthermore, in her cross examination, she has stated that at the time of occurrence, she did not know the name of the accused and also his father's name. But, whereas, in Ex.P1 complaint, the name of the accused/appellant and the father of the accused have been mentioned. P.W.1 has given one statement at the time of chief examination and has given a contra statement during the cross examination. In such circumstances, I am of the view that the evidence of P.W.1, who is the victim is not cogent and trustworthy and hence, the same is discarded as not reliable.
10.Further, this Court has to consider as to whether there is any supporting evidence or not?. P.W.11 Dr.Roopa, who treated P.W.1 has deposed that she has not sustained any external injuries and no semen has been detected on the clothes of the victim and hence, the factum of rape has not been proved by the prosecution. P.W.1 was examined by P.W.11 on 25.08.2008 and according to her, the semen would be in living stage for 36 hours and hence, there is no evidence to show that P.W.1 was subjected to rape.
11.At this juncture, it is appropriate to consider whether the motive alleged by the defence is acceptable or not? Here, P.W.1 herself has admitted that her father has taken lease of the land belongs to D.W.1 Dharmar. D.W.2 Mahendran has also stated that the father of accused asked D.W.1 for the lease of the land and since the father of P.W.1 viz. P.W.2 has taken the lease, D.W.1 intimated him that next time he will lease out the land to him. Hence, it is clear that there is enmity between both the parties and no talking term between the appellant's family and P.W.1's family. Furthermore, P.W.1 in her cross examination, has fairly conceded that since her father has damaged the public water tap, the father of the appellant commenced the panchayat and levied a fine of Rs.1,500/- upon the father of P.W.1 and he has paid that amount and thereafter, there was no talking term between them.
12.Considering the said aspect, I am of the view that the prosecution evidence would not be sufficient for fascinating the conviction for the offence under Section 376 of I.P.C. for the following reasons:
(i)The evidence of P.W.1 is not reliable and she has given contradictory statements in chief and cross examination;
(ii)P.W.1 has also fairly conceded the enmity between her family and appellant's family and that has also been proved by the defence by way of examining D.Ws.1 and 2.
(iii)The medical evidence has not been supported the case of prosecution.
(iv)The complaint given by P.W.2 has not seen in the light of the day and only on the basis of the complaint given by P.W1, the case has been registered only on the next day
13.As already stated supra, I am of the view that the prosecution has not proved that the guilt of the accused for the offence under Section 376of I.P.C. beyond all reasonable doubt and the benefit of doubt shall be given in favour of the appellant and the conviction and sentence passed against the appellant is liable to be set aside and consequently, he shall acquitted from the charge levelled against him.
14.In fine, The Criminal Appeal is allowed.
Judgment of conviction and sentence passed in S.C.No.125 of 2009 dated 10.09.2014 by the Mahila Judge, Mahila Court, Madurai is hereby set aside. The appellant/accused is acquitted from the charges under Section 376 of I.P.C.
The fine amount already paid by the appellant/accused is ordered to be refunded.
The accused/appellant is directed to be released forthwith, if he is not required in any other case.
To
1.The Inspector of Police, Usilampatti Taluk Police Station Madurai District.
2.The Mahila Judge, Mahalir Sessions Judge, Madurai.
3.The Public prosecutor, Madurai Bench of Madras High Court, Madurai.