Madras High Court
Sekaran vs State By on 11 February, 2010
Author: S.Nagamuthu
Bench: S.Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11..02..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. Appeal No.1014 of 2005 Sekaran, S/o.Munusamy ... Appellant / Accused Vs. State by Inspector of Police, K.V.Kuppam Police Station, Vellore District. (Cr.No.382 of 2002) ... Respondent / Complainant Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgement dated 28.11.2005 passed by the learned Assistant Sessions Judge, Gudiyattam in S.C.No.295 of 2003 For Appellant : Mr.V.Karthick for M/s.T.S.Gopalan & Co. For Respondent : Mr.N.R.Elango, APP JUDGEMENT
The appellant is the sole accused in S.C.No.295 of 2003 on the file of the learned Assistant Sessions Judge, Gudiyattam. He stands convicted for the offences under Sections 377 (2 counts) and 376(2)(b) (2 counts) of IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for two years for each count for the offence under Section 377 of IPC; and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for two years for each count for the offence under Section 376(2)(b) of IPC. Challenging the same, he is before this Court with this Appeal.
2. The case of the prosecution in brief is as follows:- The appellant was the Headmaster at "Adi Dravida Welfare Primary School" in Pasumathur Village, Katpadi Taluk, Vellore District. P.Ws.1 to 10 were students of the said school and they were aged between 8 12 years respectively in the year 2002. According to the prosecution case, these 10 girls were either raped or subjected to unnatural offence in the store room of the school on various dates by the appellant. P.W.11 is the mother of P.W.1. On 02.10.2002 at about 1.00 p.m. when P.W.15, the then Sub Inspector of Police attached to K.V.Kuppam Police Station was on duty, P.W.11 appeared and gave an information in writing (Ex.P.1) alleging that the appellant had taken her daughter P.W.2 -Selvarani, P.W.3-Arulmozhi, P.W.4-Sathya, P.W.5-Jeevitha, and few other students on various dates and committed unnatural offences on them, outraged their modesty and also attempted to rape. On the basis of the said information (Ex.P.1) given by P.W.11, the then Sub Inspector of Police, P.W.15 registered a case in Cr.No.382 of 2002 for the offences under Section 352, 377, 376 r/w 511 of IPC.
3. P.W.17, who was the then Inspector of Police of K.V.Kuppam Police Station, took up the case for investigation on the very same day and he proceeded to the place of occurrence, prepared a rough sketch (Ex.P.23) in the presence of two witnesses. Then, he examined P.W.11 and P.W.1 and recorded their statements. On the very same day , at about 2.30 p.m. he arrested the appellant and after following all legal formalities, he produced the appellant before the Judicial Magistrate for remand with a request to subject the appellant for medical examination. Accordingly, P.W.14, examined the appellant and offered opinion that he was capable of performing sex. Ex.P.12 is the Accident Register issued by him. Thereafter, P.W.17 examined few more witnesses and recorded their statements. On 03.10.2002, he forwarded the alleged victims namely, P.W.8 Nethravathi, P.W.3 Arulmozhi, P.W.2 Selvarani, P.W.7 Divya, P.W.1 Indhuja and P.W.6 Komala to Government Hospital, Gudiyattam for medical examination to ascertain the fact as to whether the victims had been subjected to any sexual assault and also to know about their age. Similarly, on 04.10.2002, he forwarded P.W.9 Parimala, P.W.10 Mathialagi, P.W.5 Jeevitha and P.W.4 Sathya to such medical examination. P.Ws.12 & 13 accordingly examined the victims and offered their respective opinion. Exs.P2 to P.11 are the Accident Registers issued by them. Then, P.W.17 examined the respective Medical Officers and obtained the medical certificates. On 22.10.2002, he gave a requisition for recording the statements of P.Ws.1 to 11 under Section 164 of the Code of Criminal Procedure. P.W.16, who was the then Judicial Magistrate, Ambur, recorded the statements of the said witnesses. On completing the investigation, P.W.17 filed the final report on 09.12.2002 against the appellant under Section 354, 377 and 376(2) (b) of IPC.
4. Based on the above materials, the trial court framed charges for the offences under Sections 354 of IPC (3 counts), 377 of IPC (4 counts), 376 (2)(b) of IPC (7 counts). The appellant denied all the charges.
5. During trial, in order to establish the charges, the prosecution examined 17 witnesses as P.Ws.1 to 17, exhibited 24 documents as Exs.P.1 to 24. P.Ws.1 to 4, 6, 8 and 10 did not support the case of the prosecution in any manner and therefore, they were treated as hostile and allowed to be cross examined by the Assistant Public Prosecutor. Regarding the incriminating evidences spoken to by P.Ws.5, 7 and 9 together with the evidences of medical officers P.Ws.12 to 14 and the other official witnesses, the appellant was questioned under Section 313 of Cr.P.C. He denied the correctness of such incriminating evidences. He did not chose to examine any witness on his side. Having considered all the above evidences, the trial Court convicted and sentenced the appellant as stated supra.
6. The conviction of the appellant for the offence under Section 376(2)(b) of IPC (Two counts) relates to the alleged rape committed on P.W.5 Jeevitha and P.W.7 Divya and the conviction for the offence under Section 377 of IPC (Two counts) relates to the unnatural offence committed on P.W.5 Jeevitha and P.W.9 Parimala.
7. The charges relating to the alleged rape and unnatural offence committed on P.W.5 are that on 28.02.2002 at about 1.30 p.m. P.W.5, who was then doing 7th Standard in the said school, was taken to a nearby store room of the said school by the appellant and rapped once and the appellant, in the same transaction inserted his penis into her mouth and thus committed unnatural offence. This occurrence was not witnessed by anybody else. Based on the solitary evidence of P.W.5, the trial Court has convicted the appellant. Similarly, the charge relating to the rape committed on P.W.7 Divya is, that, on 28.02.2002 at about 2.00 p.m. P.W.7, who was then doing 5th standard in the said school, was taken to the very same store room by the appellant and raped. This occurrence was also not witnessed by any other witness. The trial Court has relied on the evidence of P.W.7 alone to convict the appellant.
8. The charge under Section 377 of IPC relating to the unnatural offence committed on P.W.9 Parimala is that on 02.09.2002 at about 1.30 p.m. she was taken to the store room by the appellant, where the appellant inserted his penis into her mouth. Regarding this occurrence also, there is no eye witness and the conviction is based solely on the evidence of P.W.9 alone.
9. The learned counsel appearing for the appellant would assail the findings of the trial Court on the following grounds:-
(1) P.Ws.5,7 & 9 being child witnesses, are prone to tutoring. Therefore, their evidences require close scrutiny and the same cannot be acted upon in the absence of corroboration drawn from independent sources, unless their evidences independently inspire the confidence of the Court.
(2) When there were more than 50 students in the class room, it is highly improbable that these young girls would have been taken to the store room at the crucial point of time.
(3) In chief examination, P.Ws.5, 7 & 9 have stated that on the next day of each occurrence, the respective witness was taken to the police station and a complaint was given and they were subjected to medical examination; whereas no such complaint is available on record. Thus, the earliest version regarding the occurrence has been suppressed.
(4) Though in chief examination, these witnesses have supported the version of the prosecution, in cross examination, they have stated that there was no truth in any of the facts spoken to by them in chief examination.
(5) The inordinate delay in setting the law in motion remains unexplained, which is fatal to the prosecution case.
(6) The medical evidence does not in any manner support the case of the prosecution. The evidence of P.W.7, which is incriminating in nature, was not put to the appellant under Section 313 of Cr.P.C. and, therefore, the same cannot be used as evidence at all against him.
(7) Since there were 10 independent occurrences involving 10 witnesses and each of them has got nothing to do with the other, the joinder of trial of all the charges in a single trial is illegal in view of the bar contained in Section 219 of Cr.P.C. and the same has also caused prejudice to the appellant.
10. The learned Additional Public Prosecutor would oppose the contentions of the learned counsel for the appellant. According to him, the evidences of P.Ws.5, 7 & 9 are consistent, cogent and convincing, which cannot be doubted at any cost; the medical evidence cannot be expected to support the case of the prosecution, since the girls were subjected to medical examination after about one month of the alleged occurrences. He would further add that even in the absence of medical evidence, relying on the evidences of P.Ws.5, 7 & 9 conviction can safely be had.
11. The learned Additional Public Prosecutor would point out that initially the said witnesses fully supported the prosecution in their chief examination. Subsequently, when they were recalled, after one year, for the purpose of futher cross examination, they have given a go by to their earlier versions made in their chief examinations. He would further submit that this would show that the witnesses would have been won over by the accused and that is the reason why, after one year, they were recalled and they also resiled from their earlier versions. On this score, according to him, the evidences of these witnesses cannot be brushed aside. In a case of this nature, where young girls, who were less than 12 years at the time of occurrence, are involved, one cannot expect perfection in their deposition and so, the so called inconsistencies and or infirmities pointed out by the learned counsel for the appellant are not material. Therefore, on that score the conviction cannot be found fault with.
12. I have carefully considered the above submissions and also perused the records.
13. The heinousness of the crimes allegedly committed by the appellant are so horrific, inhuman, barbaric, shocking and heart-rending. It is like hedge grazing the crop. Tender aged girls, numbering 10, were allegedly enticed, taken to a secluded place one after another by the Headmaster of the School, and either raped or subjected to unnatural offences. Any superlative adjective in the English Dictionary may not be sufficient to describe the heinousness of the crime. If the involvement of the appellant/accused is true and the charges are proved, he deserves a very deterrent punishment. But, at the same time, no court shall be carried away by such commotions. The court is required to guard itself from being swayed by such commotion or public opinion. The Court should analyse the evidence with care and caution dispassionately to find out whether the charges have been proved beyond reasonable doubt as per the well established principles of criminal jurisprudence.
14. At this juncture, it would be worthwhile to refer to the observations made in Kashmira Sing v. The State of Madhya Pradesh, AIR 1952 SC 159, wherein the Hon'ble Supreme Court in para 2 has held as follows:-
"2. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law."
15. With the above rule of caution in mind, let me now, at first, analyse the law relating to the child witnesses. It is well settled by the Hon'ble Supreme Court that the evidence of a child witness must be evaluated carefully, as the child witness may be swayed by what others tell him and is an easy prey to tutoring. The wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on. [Vide, Panchhi v. State of U.P., 1998 SCC (Cri.) 1561 and State of U.P. v. Ashok Dixit, 2000 SCC (Cri.) 579]. Regarding this settled position of law, though the learned counsel for the appellant has cited number of judgements of the Hon'ble Supreme Court, I do not wish to over burden this judgement by extracting all those judgements.
16. In the case on hand, admittedly, P.Ws.5,7 & 9, on whose evidences, the trial court has made reliance are child witnesses. At the time of occurrence P.Ws.5, 7 & 9 were aged 12, 8, and 9 years respectively. In tune with the above legal principles, let me now start analysing the evidences of these child witnesses one after the other.
17. Before doing the said exercise, I may refer to the following judgements of the Hon'ble Supreme Court. In State of Punjab v. Gurmit Singh, 1996 SCC (Cri.) 316, the Hon'ble Supreme Court has held as follows:-
"21. ..... The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
18. Reiterating the above view expressed in Gurmit Singh's case cited supra, subsequently, in Ranjit Hazarika v. State of Assam, 1998 SCC (Cri) 1725, the Hon'ble Supreme Court has stated as follows:-
"The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable"
19. The above stated principles were again reaffirmed in Raju v. State of Madhya Pradesh, (2009) 3 SCC (Cri) 751, in the following words:-
"10. The aforesaid judgements 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."
20. Keeping the above basic principles in mind, in the instant case, it has to be evaluated as to whether, the evidence of P.W.5, P.W.7 and P.W.9 can be fully believed as free from tutoring or embellishment, so as to sustain the conviction solely on their uncorroborated testimonies.
21. The appellant has been convicted on the charges relating to the rape as well as unnatural offences allegedly committed by him on P.W.5 on 28.08.2002 at about 1.30 p.m in the store room of the school. Her evidence does not draw any corroboration from any other source including the medical evidence. Therefore, whether conviction can be based only on the sole evidence of P.W.5 is the question for consideration.
22. P.W.5 in her chief examination would state that on 28.08.2002, the appellant took her to the store room, removed her under garments, opened his pant zip and penetrated her vagina with his penis. Then, he also inserted his penis into her mouth. In her cross examination, she has stated that on the very next day, that was on 29.08.2002 itself, her aunt preferred a complaint to the respondent police and on the very next day of the complaint, she was examined by the Doctor. But, the fact remains that the complaint was preferred by P.W.1 only on 02.10.2002 and P.W.5 was examined by the Doctor only on 04.10.2002. This would only go to create some amount of initial doubt about the veracity of her evidence indicating tutoring. She has further stated that police only tutored her to say that the occurrence was on 28.08.2002. This clearly indicates that she was tutored by the police. Yet another aspect is that as soon as the occurrence, she came out of the store room crying. She would further state that she informed the girl students in her class and also to two of the teachers working in the school. Had it been true that she had spontaneously told about the occurrence to the teachers as well as her class students, it is not explained to the Court as to why, no one to speak about the said fact has been examined.
23. Above all, when she was recalled for the purpose of further cross examination on 20.06.2005, she has told that nothing as alleged in the chief examination had really happened. She has further stated that on the previous occasion when she was examined in chief, she made such allegations as tutored by the police. This admission of P.W.5 would go a long way to show that she is capable of being tutored.
24. In this regard, the learned Additional Public Prosecutor would submit that since she was recalled exactly after one year of her chief examination and cross examined, the normal presumption would be that she would have been won over by the appellant. Therefore, according to the learned Additional Public Prosecutor, no weightage could be given to the answers elicited during further cross examination held on 20.06.2005.
25. In support of his submission, the learned Additional Public Prosecutor would rely on a judgement of the Hon'ble Supreme Court in Nisar Khan @ Guddu and others v. State of Uttaranchal, 2006 (2) SCC (Cri) 568, wherein the Hon'ble Supreme Court has declined to give weightage for the answers elicited during further cross examination of the witness by recalling after long lapse of time. There can be no second opinion that when a witness is recalled after such a long time, either because of loss of memory or because she had been won over by somebody, different version, thereby demolishing the earlier version, may be coming forth. It is for that reason only the Hon'ble Supreme Court has held that no weightage may be given for the answers elicited during such further cross examination. But, such presumption cannot be universally and mechanically applied to all cases. It all depends upon the facts and circumstances of each case.
26. In the given case, though admittedly, this child witness was recalled after one year and during further cross examination, she has disowned the allegations made earlier in her chief examination, it is not on this ground alone that her evidence requires to be rejected in toto. But, because P.W.5 is capable of being tutored and there are overwhelming evidences reflecting such tutoring, her evidence does not inspire the confidence of the court.
27. Now, coming to the contention of the the learned Additional Public Prosecutor, I do agree that it is possible that what was said by P.W.5 during her further cross examination may be out of tutoring by some vested interest; equally, it is also possible that what was deposed during chief examination also might be due to tutoring by some other vested interest to depose against the appellant. Thus, it is crystal clear that this witness is capable of being swayed by tutoring either by somebody in favour of the prosecution or by some other vested interest in favour of the appellant. Further, this witness was not cross examined by the prosecution by declaring her hostile. Thus, her evidence given during further cross examination remain unasailed. When such is the case, as per the judgement of the Hon'ble Supreme Court referred to above and as per the settled law, in the absence of corroboration, it is unsafe to base conviction on the solitary evidence of the child witness viz., P.W.5.
28. At this juncture, a reference may be made to the evidence of P.W.13 Doctor through whom, Ex.P.9 has been exhibited. P.W.13 had not found any symptom for any sexual assault on P.W.5. Thus, the medical evidence also does not corroborate the version of P.W.5. Apart from that not even any attempt was made to elicit from P.W.13 regarding the possibility of any rape on this young girl as it is alleged by the prosecution. P.W.13, Doctor has recorded in the Accident Register that P.W.5 told her that the Headmaster of the School manipulated her in her private parts around 30 days ago. P.W.13 Doctor has furhter stated that she was told by P.W.5 that the appellant only touched her private parts. This earliest version also does not support the case of the prosecution.
29. The learned Additional Public Prosecutor would rely on a judgement of the Hon'ble Supreme Court in Rameshbhai Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740, wherein the Hon'ble Supreme Court in paragraphs 39 & 40 has held as follows:-
"39. For the appreciation of the evidence of a child witness, this Court has evolved certain principles and in some of its judgements this Court has relied on the proposition formulated by Brewer, J. in Wheeler v. United States (40 L Ed 244 : 159 US 523 (1895). Brewer, J. opined that the evidence of a child witness is not to be rejected per se but rule of prudence demand that it should be subjected to a close scrutiny. If on a close scrutiny, the Court finds it reliable, even conviction can be based on it. This principle laid down in Wheeler has been accepted by this Court in Ratansinh Dalsukhbhai Nayak v. State of Gujarat (2004) 1 SCC 64 : 2004 SCC (Cri) 7, and also in Nivrutti Pandurang Kokate v. State of Maharashtra, (2008) 12 SCC 565 : (2009) 1 SCC (Cri) 454.
40. Even earlier than that, this Court in Dattu Ramrao Sakhare v. State of Maharashtra has held that there is no rule of practice that the evidence of a child witness needs corroboration in order to base conviction on it. However, as a rule of prudence, the Court insists it is desirable to have corroboration from other dependable evidence."
30. Relying on the same, the learned Additional Public Prosecutor would submit that expectation of corroboration to the evidence of a child witness is not a rule of law, but, it is only a rule of prudence. Of course, there can be no second opinion at all about the said settled legal position. If only, the evidence of a child witness inspires the confidence of the Court and if only tutoring is ruled out, the Court can act upon the uncorroborated testimony of the said child witness. But, in this case, as I have already stated, the inference of tutoring is possible to a greater extent and there are also infirmities and inherent weaknesses in the evidence of P.W.5. In those circumstances, in my considered opinion , it is not safe to convict the appellant on the basis of the evidence of P.W.5 alone without there being any corroboration.
31. Now, coming to the conviction under Section 376 of IPC in respect of rape committed on P.W.7, here again, the prosecution has to depend upon the sole testimony of P.W.7. Admittedly, P.W.7 was aged 12 years at the time of occurrence. There is absolutely no corroborative evidence from any other source. According to the charge on 28.08.2002 at about 2.00 p.m. the appellant took P.W.7 to the store room and committed rape on her. The evidence of P.W.7 in chief examination is to the effect that the appellant lifted her clothes and did something bad to her thereby meaning that he misbehaved with her. She has further stated that the appellant inserted his penis into her mouth. Insofar as the unnatural offence allegedly committed by the appellant on P.W.7 on 20.08.2002 is concerned, there is no conviction for the offence under Section 377 of IPC. In respect of the sexual assault made on P.W.7, the appellant was convicted only for the offence under Section 376(2)(b) of IPC. In this regard, the evidence of P.W.7 does not indicate that the appellant committed rape on her - P.W.7 has only stated that the appellant did something bad to her. As I have indicated earlier, while discussing the evidence of P.W.5, this witness has also stated that a complaint was preferred to the police on the next day of occurrence itself and on the very next day of the occurrence, she was taken to the police station. This witness was also recalled on 20.06.2005 and during further cross examination, she has also stated that she deposed against the appellant in her chief examination as tutored by the police. She has further stated that the appellant did not do anything to her sexually. In view of this admission by P.W.7, the reasons which I have stated earlier while discussing the evidence of P.W.5 are squarely applicable to this witness also so as to reject her evidence.
32. Coming to the evidence of P.W.12 Doctor, who examined P.W.7 on 03.10.2002, he has recorded in Ex.P.6 Accident Register that she was told by P.W.7 that on 25.09.2002, the appellant touched her private parts. She had not stated anything more about the alleged rape on her. P.W.12 Doctor also did not find any injury indicating any sexual assault. Thus, the medical evidence also does not go to corroborate the evidence of P.W.7.
33. Apart from that, the next piece of evidence available is Ex.P.16, the Statement recorded under Section 164 of the Code of Criminal Procedure by P.W.16, the then learned Judicial Magistrate, Ambur. But, unfortunately, the said statement was not even brought to the notice of P.W.7 during her examination. The said statement was marked through the learned Magistrate. In Ex.P.16, P.W.7 has stated that the Headmaster of the school once misbehaved with her. There is nothing stated in the said statement that either the appellant committed rape on her or committed unnatural offence. Thus, Ex.P.16 also does not corroborate the evidence of P.W.7.
34. In view of the foregoing discussions, since possibility of tutoring of this witness has not been ruled out, since there is no corroboration from any other source available; and since P.W.7 has resiled from her chief examination, when she was recalled and further cross examined on 20.06.2005, in my considered opinion, it is not safe to base conviction on the sole testimony of this witness in respect of the alleged sexual assault made on her.
35. Nextly, the conviction under Section 377 of IPC in respect of the alleged unnatural offence committed on P.W.9 should be considered. According to the charge, on 02.09.2002 at about 1.30 p.m. she was taken by the appellant to the store room, where the appellant inserted his penis into her mouth and committed unnatural offence. Like, P.W.5 & P.W.7, in her cross examination, she has stated that within 4 or 5 days after the occurrence, she was taken by her father to the police station and a complaint was preferred and thereafter, within 4 or 5 days she was taken to the hospital. She was also recalled on 20.06.2005 and during further cross examination, she has also completely resiled from her earlier version spoken to in the chief examination. She has further stated that as per tutoring made by the police, she deposed in chief examination against the appellant. She was examined by P.W.13 Doctor on 04.10.2002. P.W.13 Doctor has however stated that she was told by P.W.9 that the appellant touched her private parts. She had not told the Doctor that the appellant inserted his penis into her mouth. The reasons narrated for disbelieving the evidence of P.Ws.5 & 7 are applicable to P.W.9 also to decline to place reliance on her evidence.
36. The next piece of evidence is Ex.P.21 which is the statement recorded under Section 164 of the Code of Criminal Procedure by P.W.16, the learned Magistrate. In the said statement she has only stated that the Headmaster of the School used to misbehave with her and on three occasions, he so misbehaved. There is no whisper in the said statement that the appellant committed any unnatural offence. Thus, Ex.P.21 also does not corroborate the evidence of P.W.9. For all the above reasons, no conviction can be based, on the uncorroborated testimony of P.W.9
37. In conclusion, I hold that it is not safe to convict the appellant on the basis of the uncorroborated testimonies of P.Ws.5, 7 & 9 and so, the appellant is entitled for acquittal. This court is impelled to come to this irresistible conclusion with pains as this Court though searched for reliable evidences in support of the charges, could not find any.
38. Before parting with the case , I have to demonstrate as to how the prosecuting agency as well as the trial Court have failed in their duties unmindful of the heinousness of the crime said to have been committed by the appellant.
(i) All these witnesses, namely, P.Ws.5, 7 & 9 would have, by all means, informed about the alleged occurrences only to their respective parents first. I am not able to understand as to why the parents have not been examined as witnesses in this case. Had they been examined as witnesses, there would have been some useful corroboration coming forth to support the evidences of these witnesses. Based on such corroboration, it would have been even possible for this Court to sustain the conviction.
(ii) The students of the School were also informed by these witnesses. Any young girl in the age of these witnesses would have certainly told their classmates about the sexual harm allegedly caused to them by the appellant. It is beyond the comprehension of this Court as to why none other student from the school or teacher has been examined.
(iii) It is in evidence that the appellant was brought before the local panchayat, where he was questioned about the alleged occurrence and he was also manhandled. This happened before the police came into picture. What was the basis for the villagers to bring this appellant to panchayat, what transpired in the panchayat, what was told by these girls to the panchayatars, what was the result of the panchayat are all relevant facts which would have thrown some more light regarding the alleged guilt of the appellant. It is again not understandable as to why no such panchayatar from the village was examined.
(iv) When P.Ws.5, 7 & 9 were sought to be recalled after one year, it is not known whether any objection was raised by the respondent for recalling those witnesses after such a long lapse of time. After they were recalled, in their further cross examination of all these three witnesses, it was elicited by means of leading questions from them that what they had stated in their chief examination were not true and as a matter of fact, they told so in their chief examination as per the tutoring of the police. This has substantially destroyed the evidence given in their chief examination. When they have shown such hostility, it is not understandable, as to why it did not strike the mind of the learned Public Prosecutor to seek permission of the court to declare them hostile and to cross examine them with reference to their earlier statements made under Section 161 of the Code of Criminal Procedure as well as under Section 164 of the Code of Criminal Procedure.
(v) When P.W.11, the mother of P.W.5 had shown hostility and so she was declared as hostile by the prosecution, it is not known as to why she was not cross examined with reference to her statements made under Sections 161 and 164 of the Code of Criminal Procedure, wherein she has stated something about the occurrence.
(vi) A reading of the evidence of the Investigating Officer would go to show that the contradictions elicited from the witnesses, who turned hostile, have not been proved at all through him. An omnibus one word answer has been elicited from him that what are all stated by these witnesses (hostile witnesses) during investigation have been recorded truly in their respective statement made under 161 of the Code of Criminal Procedure. This, in my considered opinion, shows the poor understanding of proof of a contradiction as required under Section 155 of the Evidence Act.
(vii) (a) The trial court has also contributed to some extent. For e.g., Coming to the examination of child witnesses, admittedly, in this case, the child witnesses were all examined in open court in the presence of litigant public, lawyers and Court staff. In State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316, the Hon'ble Supreme court issued a direction not to ignore the mandate of Section 372 (2) and (3) of Cr.P.C. and to hold the trial of rape cases in-camera. It was also also pointed out that such a trial in-camera would enable the victim of the crime to be a little comfortable and answer the questions with greater ease and thereby improve the quality of evidence of a prosecutrix because there she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of the public. It was further directed that as far as possible, trial of such cases may be conducted by lady judges wherever available so that the prosecutrix can make a statement with greater ease and assist the court to properly discharge its duties, without allowing the truth to be scarified at the altar of rigid technicalities.
(b) Similarly in Sakshi v. Union of India, 2004 SCC (cri) 1645, while re affirming the above directions issued in State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316, the Hon'ble Supreme Court has further directed as follows:-
(1) The provisions of sub-section (2) of Section 327 Cr.P.C. shall , in addition to the offences mentioned in sub-section, also apply in inquiry or trial of offences under Sections 354 and 377 of IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;
(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.
(c) The Hon'ble Supreme Court has further held that these directions are in addition to those given in State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316. As a matter of fact, the Registrar of this Court in Roc.No.2752-A/2007/F1, dated 12.07.2007 has instructed all the Courts throughout the State of Tamil Nadu and Union Territory of Puducherry falling within the jurisdiction of the Madras High Court to strictly adhere to the above directions. In this case, though the trial was taken up before the Circular of this Court but after the above two judgements of the Hon'ble Supreme Court, I wonder as to how, the said directions of the Hon'ble Supreme Court were allowed to be obeyed in breach. I apprehend, had these child witnesses been examined in-camera, they would have been in a better atmosphere to tell the truth in the trial Court. In such an event, this Court would have been in a position to base conviction on the uncorroborated testimony of these child witnesses.
(viii) Though P.W.7 has spoken about the occurrence and though the trial Court was inclined to convict the appellant under the charge relating to the rape allegedly committed on P.W.7, I am at loss to find that such incriminating evidence of P.W.7 was not at all put to the appellant, when he was questioned under Section 313 of the Code of Criminal Procedure. The learned cousnel for the appellant would submit that since the incriminating evidence spoken to by P.W.7 was not so put to the appellant thereby affording an opportunity to him to explain or deny the same, such incriminating evidences cannot be made use of against him. I fully endorse such submission made by the learned counsel for the appellant. But, at the same time, for the mere lapse committed by the trial Court, evidence of such witness cannot be simply brushed aside, so as to record an order of acquittal. In those circumstances, even this Court can call the appellant and do the exercise of questioning him under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences that appeared in the testimony of P.W.7 and then to rely on the same. But, since this Court is not inclined to convict the appellant based on the evidences of P.W.7 alone, the said exercise of calling the appellant and to put to him the evidence of P.W.7 has not been undertaken.
(ix) Insofar as the evidence of P.W.6 is concerned, she has spoken about a part of the occurrence. But, even without allowing her to speak fully and without making any effort to elicit evidence regarding the entire occurrence, she had been hurriedly declared as hostile and cross examined. The trial Court did not use the evidence of P.W.6 in any manner and the said evidence was not even put to the appellant when he was examined under Section 313 of the Code of Criminal Procedure.
(x) It is not the case of the prosecution that all these offences were committed in one and the same transaction or in a continuous transaction. Each girl was allegedly subjected to sexual assault in a separate occurrence. When that be so, I am unable to understand as to why, the trial Court was not apprised of Section 219 of the Code of Criminal Procedure which states that three offences of same kind within a year alone can be charged together.
39. I am pointing out the above lapses, not with a view to throw the blame on anybody, but only with the fond hope that at least in the years to come, the agencies who are involved in the criminal justice delivery would act diligently, to discharge their constitutional obligations towards the people.
40. In the result, the Criminal Appeal is allowed; the conviction and sentence imposed on the appellant/accused by judgement dated 28.11.2005 passed by the learned Assistant Sessions Judge, Gudiyattam in S.C.No.295 of 2003 is set aside; and the appellant is acquitted from all the charges. Fine, if any, paid by the appellant shall be refunded to him. Bail Bond executed by the appellant/accused shall stand cancelled.
Index : yes 11..02..2010 Internet : yes kmk To 1.The Assistant Sessions Judge, Gudiyattam, Vellore District. 2.The Inspector of Police, K.V.Kuppam P.S., Vellore District. ..... S.NAGAMUTHU. J., kmk Pre Delivery Order in Criminal Appeal No.1014 of 2005 ..02..2010