Madras High Court
Kumar @ Chokkalingam vs State By Inspector Of Police
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.A.No.110 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 17.10.2019
PRONOUNCED ON: 20.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.110 of 2016
Kumar @ Chokkalingam Appellant
Vs
State by Inspector of Police
V4, Rajamangalam Police Station
Chennai-99 Respondent
Prayer:- This Criminal Appeal is filed, against the judgement of conviction and
sentence, dated 21.12.2015, made in SC.No.182 of 2013, by the Sessions
Court (Mahalir Neethimandram) Chennai.
For Appellant : Mr.V.Parthiban for Mr.D.Anandakumar
For Respondent : Mr.M.Mohamed Riyaz-APP
JUDGEMENT
1. This Criminal Appeal is filed, against the judgement of conviction and sentence, dated 21.12.2015, made in SC.No.182 of 2013, by the Sessions Court (Mahalir Neethimandram) Chennai, (a) acquitting the Appellant/Accused for the offence under Section 506(i) of IPC, (b) convicting and sentencing the Appellant/Accused for the offence under Section 328 of IPC to undergo two years Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default, to undergo a further period of three months Rigorous 1/21 http://www.judis.nic.in Crl.A.No.110 of 2016 Imprisonment, (c) convicting and sentencing the Appellant/Accused for the offence under Section 342 of IPC to undergo three months Rigorous Imprisonment, (d) convicting and sentencing the Appellant/Accused for the offence under Section 376 of IPC to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default, to undergo one month Rigorous Imprisonment, (e) convicting and sentencing the Appellant/Accused for the offence under Section 4 of the Tamil Nadu Prohibition of Women Harassment Act to undergo one year Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default to undergo three months Rigorous Imprisonment and (f) ordering the sentences to run concurrently.
2. The case of the Prosecution was that on the complaint, Ex.P1 given by the victim, Jenifer, PW.1, alleging that on 12.7.2011 at 3.30 hours, she came out from the School and thereafter, she went to her aunt's house and that while she was returning to her house from her aunt's house, the Appellant/Accused, who was residing at the opposite house to the house of the victim and was standing in front of his house, told her to keep the water pot inside his house as he had sustained injury over his hand in an accident and that the victim kept the water pot inside the house of the Appellant/ accused and at that time, he offered her a drink and on his compulsion, she did drink and she felt giddiness and became unconscious and that the Appellant/ accused told her to lie on the bed and that when she regained consciousness, she found that her dresses were untied and not in order, the 2/21 http://www.judis.nic.in Crl.A.No.110 of 2016 Appellant/Accused was charge sheeted for the offences under Sections 342 and 354 of IPC and Section 4 of the Tamil Nadu Women Harassment Act.
3. The case was taken on file in CC.No.904 of 2012 by the X Metropolitan Magistrate, Egmore and after serving copies of the records under Section 207 of Cr.PC to the Appellant/Accused, since the case is triable by a Court of Sessions, the case was committed to the Principal Judge, Chennai, who assigned it as SC.No.182 of 2013 and made over to the Sessions Court (Mahalir Neethimandram) Chennai, which had framed charges for the offences under Sections 328, 342, 376 and 506(i) of IPC and Section 4 of the Tamil Nadu Prohibition of Women Harassment Act. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the prosecution examined PW.1 to PW.11 and also marked Exs.P1 to P13 and Mos.1 and 2.
4. On completion of the evidence on the side of the Prosecution, the accused was questioned under Section 313 of Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused has come with the version of total denial and stated that he has been falsely implicated in this case.
5. The court below, after hearing the arguments advanced on either side and also looking into the materials available on record, while acquitting the Appellant/Accused for the offence under Section 506(i) of IPC, found the accused/appellant guilty for the offences under Sections 328, 342, 376 of IPC and Section 4 of the Tamil Nadu Women Harassment Act and awarded 3/21 http://www.judis.nic.in Crl.A.No.110 of 2016 punishments, as referred to above, which is challenged in this Criminal Appeal.
6. This court heard the submissions of the learned counsel on either side.
7. The learned counsel for the Appellant has assailed the impugned judgement of conviction and sentence, on the following grounds:-
a) The Trial Court had convicted the Appellant/Accused only on presumption, surmises and conjectures. There are no chain of circumstances to draw a conclusion that the Appellant/Accused had committed the alleged offences.
b) The entire case was a foisted one and there are contradictions, embellishments and exaggerations in the evidence of the witnesses.
Though the alleged occurrence was said to have taken place in an highly populated residential area, none of the independent witness had been examined by the Prosecution. There was also an inordinate delay in complaint being made to the Respondent Police.
c) The medical evidence does not support the case of the Prosecution. The evidence of the Prosecutrix and her maternal aunt do not inspire confidence. The manner in which the victim was found to be in the house of the Appellant and the subsequent conduct of her Aunt PW.4, are highly dramatic and cannot be believed and thereby, their evidence cannot be believed.
d) The evidence of PW.1 is contrary to the evidence of PW.4, the sister of PW.2. PW.1 has admitted that she made a complaint against the 4/21 http://www.judis.nic.in Crl.A.No.110 of 2016 accused and his friend Venkat, in Rajamangalam Police Station and after they came out on bail, she made this complaint against the accused, which will prove the reason for implicating the accused in a false case. PW.2, mother of the victim also admitted the previous complaint against the accused. The depositions given by PW.6, PW.7 and PW.8 are contradictory with each other.
e) The Trial Court failed to consider the statement given by PW.7, Doctor stating that there was no attempt of rape by the Appellant/Accused and there was no evidence found on the parts of the victim at the time of medical test conducted by him. The Trial Court also failed to consider the statement given by PW.8, Forensic Expert that there was no evidence found in the dress materials submitted to her in regard to happening of sexual intercourse at the time of forensic test. Thus, the allegation of rape is not supported by medical evidence.
8. The learned counsel for the Appellant has ultimately contended that the impugned judgement of conviction and sentence is against law, weight of evidence and probabilities of the case and that the Prosecution has miserably failed to prove its case beyond all reasonable doubts and that the Trial Court is not correct and justified in convicting and sentencing the Appellant based on evidence that is unworthy of credence and thereby, the Appellant is entitled for acquittal. In support of his contentions, he would rely on the decisions reported in 2007 6 SCC 465 (Narayan @ Naran), 2015 16 SCC 752 (State of Karnataka Vs. F.Nataraj) and 2019 3 MLJ Crl 548. 5/21 http://www.judis.nic.in Crl.A.No.110 of 2016
9. On the other hand, the learned Additional Public Prosecutor for the Respondent would contend that the Indian Society is a conservative Society and that an Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge and thereafter, a woman will not put her reputation in peril, by alleging falsely about forcible sexual assault. He would further submit that in a case of rape, the Trial Court can base conviction on the uncorroborated evidence of the Prosecutrix and that her evidence should not be rejected on the basis of minor contradictions and discrepancies and that the absence of medical evidence will not by itself falsify the case of rape. He would further submit that the evidence of the Prosecutrix in a case of rape and molestation and other physical outrages should be considered positively and if the evidence is reliable, no corroboration is necessary. He would further submit that the Prosecution has proved the charges levelled against the accused through the oral testimony of PW.1, victim and hence, the impugned judgement of conviction and sentence does not warrant any interference by this Court. In support of his contentions, he would rely on the decision of the Honourable Supreme Court reported in 2011 2 SCC 550 (State of UP Vs. Chhote Lal)
10.I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgement of conviction.
11.The Appellant/Accused was found guilty by the Trial Court, for having 6/21 http://www.judis.nic.in Crl.A.No.110 of 2016 caused hurt to the victim, PW.1, by means of poison or any stupefying, intoxicating or unwholesome drug, with an intention to cause hurt to such person and for wrongful confinement of the victim, PW.1 with an intention to commit rape on the victim, PW.1 and for having outraged the modesty of the victim, PW.1 and for having committed rape on PW.1 and accordingly, convicted and sentenced for the offence under Sections 328, 342 and 376 of IPC and Section 4 of the Tamil Nadu Prohibition of Women Harassment Act, respectively,as stated above.
12.The Trial Court had based the impugned conviction and sentence on the Appellant/Accused solely based on the evidence of PW.1 to PW.4, particularly, PW.1. Now, the questions to be considered are as to (a) whether the evidence of the prosecutrix, PW.1 and other witnesses inspires confidence to base conviction, (b) whether the Trial Court is justified and right in convicting and sentencing the Appellant/Accused as stated above, based on the above evidence and (c) whether the contradictions, embellishments and discrepancies, as pointed out by the learned counsel for the Appellant, are probable and acceptable, entitling the Appellant/Accused for acquittal.
13. In a case of rape, though it is sufficient and enough to believe the statement and the evidence of the solitary witness, the Prosecutrix, in order to base conviction for the offence of rape, the evidence of the Prosecutrix should inspire confidence, for which a careful scrutiny of the evidence has to be done. In this case on hand, PW.1 is the Prosecutrix.
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14. PW.1 is the victim. PW.2, PW.3 and PW.4 are the mother, father of PW.1 and sister of PW.2, respectively. The occurrence was said to have taken place on 12.07.2011 at 3.30 p.m. and the complaint Ex.P1 was given on 14.07.2011 at 10.30 p.m. PW.5. The victim was taken to a private Hospital, namely Kumaran Hospital on 13.07.2011 at 10.30 a.m. and in the said Hospital, PW.11 Doctor had examined her and issued Ex.P12, accident register and Ex.P13, medical report. Thereafter, the victim was examined at the Government Hospital, Chennai, by PW.7 Doctor, on 16.07.2011 and PW.7 had issued Ex.P4 medical report and Ex.P5 age certificate. PW.8 is the forensic expert and after analysing the dress materials of PW.1, she had issued Ex.P6 forensic report.
15.The victim PW.1 had deposed that on 12.7.2011 in the afternoon, she came back from the School to her house and that since her mother was not there, she went to her aunt's (PW.4) house and that while she was returning to her house, the Appellant/Accused, who was standing in front of his house, told her to keep the water pot inside his house, stating that he had sustained injury over his hand in an accident and that the victim kept the water pot inside the house of the Appellant/ accused and at that time, he offered her a drink and on his compulsion, she did drink and she felt giddiness and became unconscious and that the Appellant/ accused told her to lie on the bed and that when she regained consciousness, she found that her dresses were removed and not in order and when she questioned him, he told that he did nothing and thereafter, she came to her house and was crying and that 8/21 http://www.judis.nic.in Crl.A.No.110 of 2016 when PW.2 had beaten her and asked to tell her as to what happened, she told about the incident to her mother. Then, PW.2 went to the house of the Appellant and told about the incident to his parents, but they denied the Appellant having committed any such offence. She had further deposed that thereafter, she was taken to a private hospital and she was there for the whole day and that the mother of the Appellant immediately left the Hospital and that on the oral instructions of PW.1, the complaint was written by an Advocate and given on 14.07.2011 to the Police.
16.In her cross examination, PW.1 has contrarily stated that she did not state to the effect that on 12.7.2011 at 3.30 she came out from the School and went to her house. She had deposed that she denied the previous quarrel made by her father in the death ceremony of the father of the accused, however, she had deposed that after the accused came out from the jail, PW.1 had given a complaint against the accused and another person, however, she did not know as to whether the said complaint was closed or not.
17.The evidence of PW.2, mother of the victim runs contrary to the evidence of PW.1. PW.2 has deposed contrarily that on the day of occurrence, i.e. 12.07.2011 at 2.30 p.m. the victim came to her house and she came to her house at 4.00 p.m. after finishing her work, the victim was not there and went to PW.4's house, her sister, who told her that the victim left before half an hour and that PW.2 and PW.4 were searching on the way to her house, they saw the victim crying and coming from the house of the Appellant and her sister brought her to the house. She had further deposed that she had 9/21 http://www.judis.nic.in Crl.A.No.110 of 2016 questioned her as to what happened, but the victim she did not tell anything and even after beaten up by PW.2, the victim did not whisper anything about the incident and that only on next day of occurrence, 13.07.2011, after the complaint received over phone from the Teacher of the School, regarding non attentiveness of her daughter, PW.2 came to the house at 5.00 p.m. and questioned about as to what happened and then only, the victim had told about the alleged incident, which is contrary to the evidence of PW.1.
18.Further, PW.2, in her cross examination, had deposed that the complaint was written by the victim herself and that only on seeing the complaint, she came to know about the incident and that after the occurrence, her sister, PW.4 only had brought the victim to her house and that she had told the same fact to the Police during the enquiry. PW.2 had further deposed that after the accused came from the jail on bail, they had given a complaint against the accused.
19.PW.4, who is the sister of the mother of PW.1 had deposed that the victim had come to her house straight away from the school and sent her to her house and that after 15 minutes, PW.2 came to her house and enquired about the victim and PW.4 had told to PW.2 that the victim left before 10 minutes, to which, PW.4 had told that the victim did not come to her house. She had further deposed that some of the nearby residents had informed that the victim was in the house of the Appellant/Accused and that when she entered into the house of the Appellant, the victim was found lying in an unconscious stage, without dress and that when she questioned the 10/21 http://www.judis.nic.in Crl.A.No.110 of 2016 Appellant/Accused as to how the victim came to his house, the Appellant/Accused told that the victim herself came, saying that she was suffering headache and the Appellant/Accused immediately left out of the house and that when the victim regained consciousness on the next day, she enquired as to why she had gone to the house of the Appellant, to which, the victim had told about the incident. In her cross examination, she had stated that she only brought the victim to the house of PW.2, from the house of the accused and that she regained consciousness only after two days of the occurrence.
20.PW.3, father of the victim is a hearsay witness and he had deposed that his wife, PW.2 only knows about the case details. PW.5 and PW.6 are neighbours and hearsay witnesses.
21.On analysis of the evidence of PW.1 to PW.4, this Court is able to see that their evidence are contrary to each other, in respect of the alleged occurrence, manner in which the complaint was given and the manner in which the victim was found in the house of the Appellant and movement of the victim from the school to the place of occurrence and to her house and as to when the victim regained consciousness. In the opinion of this Court, in all aspects of the case, there are only contradictions and exaggerations in the evidence and there is no cogent and convincing evidence let in by the Prosecution.
22.Admittedly, the Appellant had been sent to prison based on the complaint given by the mother of the victim and the Appellant had come back from the 11/21 http://www.judis.nic.in Crl.A.No.110 of 2016 prison on the previous day of the occurrence. In such circumstances, it is highly strange to believe that the victim had gone into the house of the Appellant on his request to keep the water pot inside his house and that she readily agreed for it. Further, to repeat, when there had been enmity between the family of the victim and the accused, it is highly artificial and strange that PW.4, who had gone into the house of the Appellant/Accused, having seen the victim lying in a shabby manner, had not raised any alarm. Further, though the occurrence was said to have taken place in a thickly populated area where houses are nearby, it is strange that none of the neighbours have been examined with regard to the incident, that too when the allegations are serious. By no stretch of imagination, the post incident conduct of the witnesses could be believed to be proved.
23.Now coming to the medical evidence, though there are glaring contradictions, embellishments and exaggerations, in the oral evidence of PW.1 to PW.4, as analysed and stated above, but in order to see whether there is any further corroboration to such unreliable oral evidence of the evidence of the Prosecution witnesses, in the form of medical evidence, this Court has to necessarily look into the evidence of PW.7 Doctor, who had examined the victim clinically, PW.8, forensic expert and PW.11 Doctor and Ex.P4, medical examination certificate of PW.1, Ex.P6, chemical analysis report, Ex.P12 accident register and Ex.P13 medical report.
24.PW.7 Doctor, who had examined the victim, had deposed that there were no injuries, both internal and external, on her body and private parts and that 12/21 http://www.judis.nic.in Crl.A.No.110 of 2016 25. received a chemical report that there was no semen found in the private parts of the victim and that there was no symptom of forceful rape on the victim and that Ex.P4 is the medical examination certificate of PW.1. She had further deposed that after enquiring the victim in detail and after examining her clinically, she had given an opinion that the victim was not raped by force.
26.PW.11 Doctor attached to the Private Hospital, had deposed that the victim was brought to the Hospital on 13.07.2011 at 10.30 p.m. and discharged on 14.7.2011 at 7.00 p.m. and that she did not remember as to any information was given to the Police and that the victim was in conscious state, when she examined her and no injuries were found on the victim. But, in her cross examination, she had deposed that another Doctor Sujatha only had examined the victim and only based on the examination of the said Doctor, she had issued the medical certificate.
27.PW.8 is forensic expert, who had analysed the dress materials of the victim chemically, had deposed that semen or blood was not found in any of the dress materials of the victim and he had sent his report dated 3.8.2011 to the Court and was marked as Ex.P6.
28.PW.10 Investigating Officer had deposed that during his enquiry, the victim had not stated anything about the happenings in the house of the Appellant/Accused as deposed in her evidence.
29.In Ex.P4, certificate of examination for sexual offences, it was reported that 13/21 http://www.judis.nic.in Crl.A.No.110 of 2016 no injures were found on her mammal, cheeks, thighs, genitals and there was no evidence of forceful sexual intercourse. Ex.P6 is the forensic report, wherein it was reported that there was no detection of semen or blood on any of the dress materials sent for analysis. Thus, this Court is able to see that in its entirety the medical evidence does not corroborate and support the case of the Prosecution witnesses that the Appellant had committed the offence of rape on the victim against her will.
30.Except PW.1, victim, there was no direct ocular evidence let in by the Prosecution to speak about the occurrence as projected by the Prosecution witnesses. Though the alleged occurrence was said to have taken place in an highly populated residential area, none of the independent witness had been examined by the Prosecution. Further, the scribe of Ex.P1 complaint was not examined by the Prosecution. It is the admitted case of PW.1 and PW.2 that there was an earlier complaint given by them against the Appellant and that the Appellant was arrested and he was remanded to judicial custody. Thereafter, after coming out of bail, he had called PW.1 to come to his house and committed the alleged offences, which is unbelievable. Further, as discussed above, the medical evidence does not support the case of the Prosecution. The evidence of the Prosecutrix, PW.1 and PW.2 to PW.4 do not inspire confidence. The manner in which the victim was found to be in the house of the Appellant and the subsequent conduct of the maternal aunt of the victim and PW.2, are highly dramatic and cannot be believed and thereby, their evidence cannot be believed. The Trial Court, 14/21 http://www.judis.nic.in Crl.A.No.110 of 2016 had also failed to take into consideration the delay in the complaint being made to the Respondent Police. There are also contradictory evidence in respect of the period when the victim was stated to have been examined in the hospital.
31.Further, this Court finds no evidence, both oral and documentary evidence, let in by the Prosecution to prove the charges under Sections 328 and 342 of IPC and Section 4 of the Dowry Prohibition Act that the Appellant had caused hurt to the victim, PW.1, by means of poison or any stupefying, intoxicating or unwholesome drug , with an intention to cause hurt to such person and for wrongful confinement of the victim, PW.1 with an intention to commit rape on the victim, PW.1 and for having outraged the modesty of the victim, PW.1 and for having committed rape on PW.1.
32. It is no doubt that the offence of rape is a very serious offence and also inhuman on the part of any person, committing such a sexual assault on innocent victim girls. It is equally well settled in law that a conviction can be based on the sole testimony of Prosecutrix, if her evidence inspires confidence and does not suffer from infirmities or is not improbable and is found to be trustworthy and reliable. If the offence is proved, the accused should be punished with adequate sentence. But, at the same time, the Court should also guard against false and frivolous cases. In the case on hand, as found above, the evidence of the Prosecutrix, PW.1, does not inspire confidence and is not found to be trustworthy.
33. In 2007-1-LW-Crl.18 (Mirthagai Ali Vs. State), it was held that the evidence 15/21 http://www.judis.nic.in Crl.A.No.110 of 2016 of PW.1, Prosecutrix does not at all inspire confidence, as her version not only falsifies the evidence of her own mother/ PW.2, but also falsifies the medical evidence. In the case on hand, when considering the entire Prosecution case, this Court finds that the evidence of the witnesses, namely, PW.1 to PW.4 does not inspire confidence, as the victim girl has not suffered any injury, much less any marks of violence were found on her, coupled with the medical evidence, as narrated above and that the Prosecution could not substantiate the charges levelled against the Appellant under Section 376 of IPC.
34.In 2014 10 SCC 254 (Munna Vs. State of MP), it was held in paragraph 11, thus:-
“11. Thus, while absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption under Section 114-A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376 IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused.”
35.In Sadashiv Ramrao Hadbe Vs. State of Maharashtra (2006 10 SCC 92) the Honourable Supreme Court, while reiterating that in a rape case, had stated that the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring the confidence in the mind of the court, put a word of caution that the court should be extremely careful while accepting the testimony when the entire case is improbable and unlikely to have happened. In paragraph 9, it was held thus:-
16/21
http://www.judis.nic.in Crl.A.No.110 of 2016 ““9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.” “10. In the present case there were so many persons in the clinic and it is highly improbable that the appellant would have made a sexual assault on the patient who came for examination when large number of persons were present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able-bodied person of 20 years of age with ordinary physique.”
36.In Narayan Vs. State of Rajasthan (2007 6 SCC 465), it was held by the Honourable Supreme Court that the evidence of the prosecutrix was full of contradictions. In the backdrop of the allegations made in the FIR that the accused committed rape with the prosecutrix thrice, the Honourable Supreme Court had held that absence of injuries either on her body or private parts ruled out the prosecution case of forcible sexual intercourse.
37.In this regard, it is also relevant to note the following observations of the Honourable Supreme Court in 2008 15 SCC 133 (Raju Vs. State of MP):-
“10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.17/21
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11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”
38.In a recent decision of this Court reported in 2019 3 MLJ Crl 548 (Govindan and another Vs. State), wherein considering the infirmities in the evidence of the Prosecutrix coupled with the medical evidence, which does not support the case of the Prosecution and following the various decisions of the Honourable Supreme Court on this issue, it was held as under:-
“39. Further, the medical evidence, the attendant facts and circumstances of the case also belies the allegation of rape. The version of the Prosecutrix is improbable and it is difficult to accept the same on its face value, which completely lacks corroboration on material particulars, regarding the incident. Having carefully scrutinized the evidence on record, this Court is of the opinion that the Prosecution has not proved its case beyond all reasonable doubts and consequently, the appellants are entitled to the benefit of doubt and thereby entitled to acquittal from the charges alleged against them.”
39. In 2018 SCC OnLine SC 1042 (Sham Singh Vs. State of Haryana), it was held as under:-
25. The fact that at the residential house of the appellant, wherein all the inmates of the house including the mother, children, sister and wife of the accused were living, such a brutal offence of rape could not have been executed without attracting the attention of anyone at that point of time, would make the prosecution version seriously improbable. We are of the view that the doubtful and suspicious nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibility to merit acceptance in 18/21 http://www.judis.nic.in Crl.A.No.110 of 2016 the hands of the court of law. Having regard to the material on record, we find that there is every possibility of false implication of the accused in this matter to take revenge against the family of the accused because of the longstanding disputes inter se between the two families.
26. The evidence of the victim/prosecutrix and the Aunt PW10 are unreliable, untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. We cannot resist ourselves to place on record that the prosecution has tried to rope in the appellant merely on assumptions, surmises and conjectures. The story of the prosecution is built on the materials placed on record, which seems to be neither the truth, nor wholly the truth. The findings of the court below, though concurrent, do not desire the merit of acceptance or approval in our hands with regard to the glaring infirmities and illegalities vitiating them, and the patent errors apparent on the face of record resulting in serious and grave miscarriage of justice to the appellant.
27. We find that the Trial Court and the High Court have convicted the accused merely on conjectures and surmises. The Courts have come to the conclusion based on assumptions and not on legally acceptable evidence, but such assumptions were not well founded, inasmuch as such assumptions are not corroborated by any reliable evidence. Medical evidence does not support the case of the prosecution relating to offence of rape.”
40.In 2019 4 SCC 522 (Digamber Vaishnav and another Vs. State of Chattisgarh), it was held as under:-
“One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt. ''
41.In this case on hand, in the opinion of this Court, keeping in view the above 19/21 http://www.judis.nic.in Crl.A.No.110 of 2016 said decisions, the medical evidence, coupled with the contradictions, embellishments and exaggeration, as stated above belies the case of the Prosecution. The version of the Prosecutrix is improbable and it is difficult to accept the same on its face value, which completely lacks corroboration on material particulars, regarding the incident. Having carefully scrutinized the evidence on record, this Court is of the opinion that the Prosecution has not proved its case beyond all reasonable doubts and consequently, the Appellant is entitled to the benefit of doubt and thereby entitled to acquittal from the charges levelled against him.
42.In the result, this criminal appeal is allowed. The impugned judgement of conviction and sentence is set aside. The Appellant is acquitted of all the charges levelled against him. The bail bond, if any executed by the Appellant, shall stand cancelled and the fine amount, if any paid by the Appellant, shall be refunded to him.
20.11.2019 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To:
1. The Public Prosecutor, High Court, Madras
2. Inspector of Police, V4, Rajamangalam Police Station,
3. The Sessions Court (Mahalir Neethimandram) Chennai.20/21
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Srcm Pre-Delivery Judgement in Crl.A.No.110 of 2016 20.11.2019 21/21 http://www.judis.nic.in