Madras High Court
Elumalai vs The State on 8 November, 2023
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A.No.95 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.11.2023
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No. 95 of 2018
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Elumalai .. Appellant
Versus
The State
The Inspector of Police
All Women Police Station
Ammapet, Salem City. .. Respondent
Criminal Appeal is filed under 374(2) of Cr.P.C. to set aside the
conviction and sentence passed in S.C.No.36 of 2014 by the learned Sessions
Judge, Fast Track Mahila Court, Salem in Judgment dated 19.01.2018.
For Appellant : Mr. R. Suriyaprakash
For Respondent : Mrs. G.V. Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal had been filed by the Appellant, seeking to set aside the Judgment dated 19.01.2018 passed in S.C. No. 36 of 2014 on the file of learned Sessions Judge, Fast Track Mahila Court, Salem. By the said judgment dated 19.01.2018, the Appellant was convicted and sentenced for the following offences:-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 1/31 Crl.A.No.95 of 2018 Convicted for the offence under Period of Sentence Section 366 of Indian Penal Code To undergo rigorous imprisonment for a period of 7 years with fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of six months Section 376(1) of Indian Penal Code To undergo rigorous imprisonment for a period of 7 years with fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of six months Section 506(1) of Indian Penal Code To undergo rigorous imprisonment for a period of 2 years with fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of three months The above sentences imposed on the Appellant-Accused were directed to run concurrently.
2. The brief facts, which are necessary for disposal of this Criminal Appeal, are as follows:
2.1. The Complainant P.W-1 is a widow. She has three daughters. The eldest daughter Uma Saranya had already married seven years ago, the second daughter Sowmya is studying 9th Standard and the last daughter, the victim/P.W-2 is studying 8th Standard. The Complainant/P.W-1 is residing with her two daughters in Kannankurichi Ward-1, Pachaayi Street, https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 2/31 Crl.A.No.95 of 2018 Kannankurichi, near Salem Town. P.W-1 is working in a Brick kiln. At the time of incident, the victim, who was 13 years, studying 8th Standard in Kannankurichi Government Girls Higher Secondary School. The Accused in this case is also a resident of the same locality. The daughter of the Accused Mekala is studying X Standard in the same School where P.W-2 was studying and they are friends. The family of the Accused and the family of the victim are known to each other since they are residing in the same area.
2.2. According to P.W-2, on 08.10.2012, when the victim P.W-2 was returning to home from her School, by around 04.30 p.m, near Murugan Stores, the Accused came in his Autorickshaw. On seeing the victim P.W-2, the Appellant/Accused informed her that his daughter Mekala is at home and invited the victim to her house for studies. Believing the words of the Accused to be true, the victim went along with him in his Autorickshaw to his house.
However, instead of going towards his house, the Accused went to the house of his sister where no one is available. In the vacant house, behind the Mill Society Building, the Appellant/Accused had taken the victim P.W-2 and when questioned, he had stated that his daughter is in the vacant house of his sister.
2.3. On reaching the vacant house, the Appellant sent away his daughter Mekala to handover the betel leaves to her mother/wife of the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 3/31 Crl.A.No.95 of 2018 Accused which he had brought in his Autorickshaw. After sending away his daughter, the victim and the Accused were alone in the vacant house of his sister. Taking advantage of such opportunity, the Appellant had forcibly removed the dress of the victim and he also removed his own dress and sexually assaulted the victim P.W-2. The Appellant also threatened the victim that if she informs it to any one, her mother will be killed. He also threatened that already they had lost their father and living only with her widowed mother and she will also be killed by him. The Appellant also threatened P.W-2 that she has to co-operate with him whenever he demands her to provide sexual pleasure and accordingly, he had forcible sexual intercourse with the victim between 08.10.2012 and 12.10.2012.
2.4. P.W-1 mother of the victim, on seeing her daughter P.W-2 coming back from the School very tired, asked her the reason but she had not disclosed anything. Suspecting something wrong, P.W-1 took her daughter P.W-2 to the Mosque to get her tiredness and illness cured. P.W-1 also taken P.W-2 to the temple and to Church in an attempt to wade off her illness.
2.5. On 27.10.2012, P.W-2 was in the house of her sister. P.W-3 is the husband of the sister of P.W-2. On that day, the sister of P.W-2 asked her to buy soap and therefore, she went to the shop. When P.W-2 was proceeding to the shop, she saw the Appellant near a place called Poongadu and on seeing https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 4/31 Crl.A.No.95 of 2018 him, he questioned P.W-2 as to why she did not come to meet him. At that time, P.W-3-Manoharan, son-in-law of P.W-1, came to take his vehicle and saw both the Appellant and the victim girl in a conversation. On seeing P.W- 3, the Appellant-Accused fled the place.
2.6. On the next day i.e., 28.10.2012, suspecting something wrong, P.W-3 enquired P.W-2 as to why the Appellant-Accused is scolding her but she did not say anything. Therefore, P.W-3 asked P.W-1 to enquire P.W-2 about her conversation with the Appellant-Accused. P.W-1 also called upon her daughters Uma Saranya and Sowmya to enquire P.W-2 as to what happened to her. However, P.W-2 did not say anything and irked by the same, P.W-1 slapped her and only then, the victim opened up and narrated to them the act of the Accused in sexually assaulting her. She also stated that in similar fashion, the Appellant-Accused had sexually assaulted her continuously for 4 to 5 days. P.W-2 also narrated the threat caused by the Appellant that he will kill her mother P.W-1. Immediately, the mother of the victim, accompanied by her elder daughter and son-in-law went to the All Women Police Station, Ammapettai, and lodged a complaint against the Accused. However, the Police Officials at Ammapettai Police Station did not receive the complaint. In fact, the Police Officials at All Women Police Station sent away P.W-1 and P.W-2 by stating that the Inspector of Police and other https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 5/31 Crl.A.No.95 of 2018 Police Officials were on bandobust duty and asked them to come back. Repeatedly, the victim and her mother went to the Police Station from Monday till Friday. Even on Friday, the Inspector of Police was not in the Station. This time the mother of the victim P.W-1 informed the officials that she will not go back home till she was able to get a case registered against the Accused. Therefore, she was asked to wait till the return of the Inspector of Police. By around 11.30 p.m, she met the Inspector of Police, All Women Police Station and given the complaint based on which, the Sub-Inspector of Police, All Women Police Station, Ammapet registered the case in Crime No.8/2012 of All Women Police Station, Ammapet for the offences under Section 376 and 506(1) of IPC. Upon registration of the case, P.W-12 Inspector of Police, All Women Police Station, Ammapet took up investigation and proceeded to the scene of occurrence, where, in the presence of witnesses P.W-5 and P.W-8, she also prepared an Observation Mahazar under Ex.P-14 and Rough Sketch under Ex.P-15. She also enquired the witnesses Manoharan P.W-3, Kanraja P.W-5, Sivaraman P.W-8 and recorded their statement. She also enquired P.W-1 and P.W-2 and recorded their statement. Later, she went on to secure the Accused and during that time, at about 5 p.m., she spotted the Accused in front of Hasthampatti market and arrested him. Upon his arrest, P.W-12 sent the Appellant to judicial custody. She also produced the victim girl P.W-2 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 6/31 Crl.A.No.95 of 2018 before the Court and gave a requisition letter, Ex.P-16, for sending her to medical examination.
2.7. On 29.10.2012, based on the order of the Court, the victim girl was produced through the Head Constable P.W-9 along with the order passed by the Court. On her appearance, she was subjected to medical examination by the Doctor P.W-6. Upon examination, P.W-6 opined that there were no external injuries in the body of P.W-2. However, she has opined that her hymen was ruptured and that her vagina allows a finger to be penetrated easily.
2.8. On the basis of the requisition letter given by P.W-12, the learned Chief Judicial Magistrate, Salem nominated learned Judicial Magistrate-VI Salem to record the statement of the victim and the mother of the victim under Section 164 Cr.P.C. Accordingly, the learned Judicial Magistrate-VI issued summons to the victim and mother of the victim through All Women Police Station, Ammapet and recorded their statements under Section 164 Cr.P.C.
2.9. During the course of investigation in the case, the Inspector of Police, All Women Police Station, Ammapet issued requisition letter to the learned Judicial Magistrate, Additional Mahila Court (Magisterial level) to subject the Accused to medical examination. On the requisition letter of the Inspector of Police, All Women Police Station, the learned Judicial Magistrate, https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 7/31 Crl.A.No.95 of 2018 Additional Mahila Court had addressed the Duty Medical Officer, Government Hospital, Salem to examine the Accused and issue Potency Certificate. In the light of the letter addressed by the the learned Judicial Magistrate, Additional Mahila Court, the Inspector of Police, All Women Police Station, Ammapet had sent the Accused along with the Police Constable escort to the Duty Medical Officer to examine him and issue Potency Certificate. P.W-7 Dr. Gokularamanan, Duty Medical Officer, Government Mohan Kumaramangalam Medical College Hospital, Salem examined the victim and issued Potency Certificate to him under Ex.P-8 and also issued Age Certificate under Ex.P-9. Also, he had issued age certificate to the victim girl under Ex.P-10.
2.10. During the course of investigation, P.W-12 Inspector of Police examined the Headmistress of the Government Girls Higher Secondary School who had issued Bonafide Certificate stating the date of birth of the victim girl, as per the register maintained by the School and also given statement to the Inspector of Police, All Women Police Station, Ammapet regarding the same. She also recorded the statement of the Doctor who had examined the victim and who issued the medical certificates regarding the sexual assault.
2.11. In the meantime, it is alleged that the wife of the Appellant- Accused approached P.W-1 by stating that she could help her by providing financial assistance and requested to enter into a compromise. However, the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 8/31 Crl.A.No.95 of 2018 mother of the victim had approached the Police Station and registered the case against the Appellant. On coming to know about the same, the wife of the Appellant-Accused indulged in a quarrel during which she had thrown the CT Scan report of the victim on the face of P.W-1. The mother of the victim was shocked and surprised to find CT scan report of her daughter P.W-2 issued by the Government Hospital in possession of the wife of the Accused. Therefore, the mother of the victim had lodged complaint to the higher officials of the Police Department regarding the conduct of the Inspector of Police who had handled the investigation at the initial stage. Based on the complaint of the mother of the victim, the Inspector of Police, All Women Police Station who handled the investigation at the preliminary stage was directed to entrust the investigation to the Inspector of Police, Suramangalam. The Inspector of Police, Suramangalam, who took up investigation examined the witnesses and completed the investigation and laid the final report before the Court of the learned Judicial Magistrate Additional Mahila Court (Magisterial level) Salem against the Appellant for the offences under Section 366, 376(1) and 506(1) of IPC.
2.12. The learned Judicial Magistrate, Additional Mahila Court taken cognizance of the Final Report and issued summons to the Accused. On appearance of the Accused, copies were furnished to the Accused under https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 9/31 Crl.A.No.95 of 2018 Section 207 of Cr.P.C. and the case was committed to the learned Sessions Judge, Fast Track Mahila Court, Salem.
2.13. On appearance of the Accused before the learned Sessions Judge, Fast Track Mahila Court, Salem, after hearing the arguments of the learned Public Prosecutor and the learned Counsel of the defence, charges were framed for the offences under 366, 376(1) and 506(1) of IPC against the Accused. Since the Accused denied the charges and claimed to be tried, the learned Sessions Judge, Fast Track Mahila Court, Salem ordered trial. In the trial, the Prosecution examined P.W-1 to P.W-13, marked documents Ex.P-1 to Ex.P-23 and also three material objects M.O-1 to M.O-3. On behalf of the Accused, D.W-1 was examined and documents Ex.D-1 and Ex.D-2 were marked.
2.14. After conclusion of trial, when the incriminating evidence made against the Appellant were put to him under Section 313 of Cr.P.C., the Accused denied the incriminating evidence. After closing of the evidence of the Prosecution Witnesses, the Accused examined the Post Graduate Assistant Teacher of the Government Girls Higher Secondary School as D.W-1 and Marked Ex.D-1 and Ex.D-2. After hearing the arguments of the Prosecution and the learned Counsel for the defence, the learned Sessions Judge had convicted the Accused for the offences mentioned above.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 10/31 Crl.A.No.95 of 2018 2.15. Aggrieved by the judgment of conviction and sentence of imprisonment imposed on the Appellant-Accused, the present Criminal Appeal had been filed.
3. The learned Counsel for the Appellant submitted that on perusal of the evidence of P.W-1 to P.W-13, it can be inferred that there are several material contradictions and they were ignored by the trial Court. Such contradictions are with regard to the place of arrest of the Appellant. Similarly, there are contradictions between the statement of P.W-1 and P.W-12 the Investigation Officer, but they were ignored by the trial Court.
4. The learned Counsel for the Appellant invited the attention of this Court to the evidence of D.W-1, the Post Graduate Assistant Teacher through whom Ex.D-2, attendance register of the School was marked. As per Ex.D-2, the sister of P.W-2 has been studying in the same School and they will be going to School together. If the elder sister did not attend the School, on that date, the victim alone will attend the School. As per Ex.D-2, the elder sister of P.W-2 attended the School on the date on which the Appellant allegedly physically assaulted P.W-2. Thus, on the relevant date, when P.W-2 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 11/31 Crl.A.No.95 of 2018 accompanied her sister, the question of Appellant sexually assaulting her will not arise.
5. The learned Counsel for the Appellant also submitted that the Accused is alleged to have taken the victim forcibly in an autorickshaw to the vacant house of his sister and after sending his daughter out of the Accused on the pretext of handing over the betel leaves to his wife, he had sexually assaulted the victim girl. In order to prove the same, Prosecution had not examined the daughter of the Accused or the sister of the Accused. The owner of the vacant house in which the alleged occurrence took place had also not been examined. There was no other independent witness examined to prove the case of the Prosecution and the witnesses examined on the side of the Prosecution are only interested witnesses.
6. It is the further contention of the learned Counsel for the Appellant that the case was foisted by the mother of the victim/P.W-1 against the Accused in order to extract money. She had preferred complaint against the Inspector of Police, All Women Police Station, Ammapet. After giving complaint to the Inspector of Police, Ammapet by attributing motive on the Inspector of Police, P.W-1 had ensured that the Inspector of Police, All https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 12/31 Crl.A.No.95 of 2018 Women Police Station was suspended and investigation was handed over to another Inspector of Police. In this context, the learned Counsel for the Appellant invited the attention of this Court to the evidence of P.W-1 mother of the victim, the evidence of P.W-2 victim, P.W-6 the Doctor who had examined the victim and issued Ex.P-5 and Ex.P-6 Medical report. Reliance was also made on the evidence of P.W-4, the Headmistress of the School where the victim was studying at the time of the occurrence. The evidence of P.W-11, Sub-Inspector of Police who had registered the FIR under Ex.P-13 was also relied on as also the evidence of Investigation Officers P.W-12 and P.W-13. That apart, further reliance was made to Ex.P-9. By placing reliance on the above, the learned Counsel for the Appellant submitted that the Headmistress of the School P.W-4 in her evidence had stated that the victim did not attend School on 05.10.2012, 08.10.2012, 09.10.2012 and 12.10.2012. The evidence of the victim that she was forcibly taken in an autorickshaw by the Accused is unbelievable in the light of the evidence of the Headmistress of the School as P.W-4. It is also his submission that in the 161 Cr.P.C statement before the Police, the victim had not stated that she was taken forcibly in an autorickshaw by the Accused. Therefore, the judgment of conviction and sentence of imprisonment recorded by the learned Sessions Judge, Fast Track Mahila Court, Salem in S.C.No.36 of 2014, dated 19.01.2018 is perverse and https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 13/31 Crl.A.No.95 of 2018 the same is to be set aside.
7. Per contra, the learned Additional Public Prosecutor Mrs.G.V.Kasthuri appearing for the Respondent/State vehemently objected the line of argument made by the learned Counsel for the Appellant and submitted that the Investigation Officer in this case had sought for recording the 164 Cr.P.C statement of the victim through the learned Judicial Magistrate. The evidence of the victim inspired the confidence of the learned Sessions Judge, Fast Track Mahila Court, Salem. The learned Additional Public Prosecutor also invited the attention of this Court to the evidence of the Doctor P.W-6 who had examined the victim and issued Ex.P-5 and Ex.P-6 Certificate.
8. Also the learned Additional Public Prosecutor invited the attention of this Court to the exhaustive cross examination of P.W-6, the Doctor who had examined the victim. She had denied the suggestions put to her in cross examination and nothing favourable for the Appellant could be elicited from the cross examination of P.W-6. The learned Additional Public Prosecutor also invited the attention of this Court to the evidence of P.W-4 the Headmistress of the School who had stated that the victim as a student of VIII Standard felt ashamed to attend the School and avoided attending the School https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 14/31 Crl.A.No.95 of 2018 throughout the month of November and only attended for the examination. That itself exposes the social stigma and the mental stress and strain suffered by the teenager aged around 13 years.
9. Also the learned Additional Public Prosecutor invited the attention of the Court to the discussion of the evidence by the learned Sessions Judge, Fast Track Mahila Court, Salem and the questions put to the Sub- Inspector of Police P.W-11 and the Investigation Officer P.W-12. The Court questioned the conduct of the responsible Police Officers in creating doubt in the mind of the learned trial Judge and the discussion regarding the same in the course of the judgment by the learned Sessions Judge, Fast Track Mahila Court, Salem, particularly in Paragraph 36. The learned Sessions Judge, Fast Track Mahila Court had discussed about the defence of the Accused and rejected it by recording reasons thereof. The findings recorded by the trial Judge are based on material evidence and it does not require interference by this Court.
10. It is the further submission of the learned Additional Public Prosecutor that the judgment of the learned Sessions Judge, Fast Track Mahila Court, Salem can not at all be considered as perverse as it is a well reasoned https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 15/31 Crl.A.No.95 of 2018 judgment. Also the learned Additional Public Prosecutor submitted as per the reported ruling of the Hon'ble Supreme Court in the case of Ganesan -vs- State Represented by its Inspector of Police reported in (2020) 10 SC 573, if the evidence of the victim of sexual assault inspires confidence of the Court, the materials highlighted by the defence can not at all be considered and can be rejected. In those circumstances the Appeal lacks merit and has to be dismissed and the judgment of the learned Sessions Judge, Fast Track Mahila Court, Salem, is to be confirmed.
Point for consideration:
Whether the Judgment dated 19.01.2018 passed in S.C. No. 36 of 2014 on the file of learned Sessions Judge, Fast Track Mahila Court, Salem, is to be set aside as perverse?
11. Heard the arguments advanced by the learned Counsel Mr.R.Suryaprakash for the Appellant and the learned Additional Public Prosecutor Mrs.G.V.Kasthuri for the Respondent/State. Perused the materials on record and the judgment of the learned Sessions Judge, Fast Track Mahila Court, Salem, passed in S.C. No. 36 of 2014, dated 19.01.2018. https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 16/31 Crl.A.No.95 of 2018
12. As far as sexual assaults are concerned, if the evidence of the victim inspires confidence of the trial Judge, it is sufficient to base a conviction against the Accused. Even if the Prosecution case has contradictions, in the case or loopholes or if the investigation is shoddy, the evidence of the Prosecutrix before the Court, if inspires the confidence of the Court, the Court can very well convict the Accused. Here, the evidence of P.W-1 mother who had lodged the complaint is found to be true. No mother will remain quiet, if her children, that too female children, suffered sexual assault by her neighbour or any one. In this case, P.W-1 stood firm in ensuring that a complaint against the Accused is entertained. In fact, she was driven out of the Police Station for about 4 days and ultimately, P.W-1 succeeded in getting the case registered. At the same time, it must be stated that the Police authorities have exhibited utmost callousness and lethargy to register a case of this nature when it was brought to them at the first instance. On the other hand, the mother of the victim P.W-1 was made to wait for atleast four days and only on the fifth day, the complaint was entertained. The conscience of this Court is disturbed to see how a victim of sexual assault and her mother were made to run from pillar to post to get a case registered against the Accused. This delay, on the part of the Police officials of All Women Police Station, Ammapet, Salem, is unpardonable and must be deprecated with https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 17/31 Crl.A.No.95 of 2018 all force.
13. Going into the merits of this case, it is found that the age of the victim was between 12 and 14 as per the evidence of P.W-4. She was aged 12 years on the date of the alleged occurrence and she could have undergone enormous mental strain and the social stigma because of which she was unable to attend School continuously. The evidence of P.W-2 in this regard is found to be natural, cogent and reliable and it inspires the confidence of this Court. Further, the evidence of the Doctor who had examined the victim and issued the certificates under Ex.P-5 and Ex.P-6 stating that she had been subjected to sexual assault. Therefore, it is made very clear that the victim was less than 14 years at the time of occurrence and she was subjected to sexual assault. In cases of sexual assault, the victims will not volunteer to depose evidence. Naturally, they will suffer social stigma, even though they are not at fault for such assault. Taking note of all the facts cumulative, this Court considers that the victim P.W-2 had suffered enormous mental agony, social stigma and inhibition which deprived her to attend her regular School for a brief period.
14. Turning to the argument of the learned Counsel for the Appellant, it is true that the sisters of the victim were not examined. It is also true that there is no independent witness examined in this case. However, merely https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 18/31 Crl.A.No.95 of 2018 because independent witness was not examined, it is not a ground to throw the case of the Prosecution at the threshold. Rather, it must be examined with caution. In the present case, the testimony of the victim itself is sufficient and there is no other independent witness is required. The contention of the learned Counsel for the Appellant that on the alleged dates of sexual assault, the sister of the victim was present and therefore, there is no chance for the victim girl to come home alone and consequently, there is no scope for the Accused to take her to his sister's house has to be rejected only as hypothesis. For some reason, the victim might have returned home alone and it cannot always be expected that the victim will accompany her sister enroute to her home. This cannot be magnified as a lapse on the part of the Prosecution by the learned Counsel for the Appellant. Of course, the Prosecution could have examined the daughter of the Accused to show the presence of the Accused in the place of occurrence. But non-examination of the daughter of the Accused is also not fatal to this case. Here again, the testimony of the victim is strong and robust and it inspires the confidence of this Court. It is well settled that the Prosecution need not examine all those who are concerned with the case and add on to its list of witness. It is the quality and degree of reliability of the witness is matter and not the quantity or number of witnesses examined by the Prosecution.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 19/31 Crl.A.No.95 of 2018
15. The contention of the learned Counsel for the Appellant that only for extracting money, a false complaint had been given by P.W-1. This argument cannot be countenanced especially when a mother of a female child, will not dare enough to reveal the sexual assault suffered by her daughter for the sake of extracting money. In the present case, P.W-1 repeatedly approached the Police authorities from Monday to Friday to get the case registered. While so, it cannot be said that there is an element of attempt on the part of P.W-1 to extract money from the Appellant at the cost of her daughter's (victim) social stigma in this case. The other defence of the Accused that the mother of the victim is an immoral lady having no reputation also cannot be accepted. Even if the mother is an immoral lady, the person like the Accused cannot have free run to take a child attending School to his place of residence or any other isolated place and sexually assaulting a child. Furthermore, such an averment has not been substantiated by the defence by examining any witness.
16. The further argument of the learned Counsel for the Appellant that the victim had not stated in Section 164 Cr.P.C. statement that she was taken in autorickshaw had to be considered by this Court. The Section 164 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 20/31 Crl.A.No.95 of 2018 Cr.P.C. statement is not evidence before the Court. What is spoken to by the victim or witnesses before the Court while tendering evidence under Section 164 of Cr.P.C. is not an evidence. Such evidence will enable the Court to form a generic opinion as to the truthfulness of the occurrence and to proceed further. Therefore, even if there is any omission in the testimony under Section 164 of Cr.P.C. it will not in any manner loosen the case projected by the Prosecution. Invariably in criminal cases, there may be contradictions here and there. It is for the learned trial Judge to appreciate the evidence and find out the truth regarding the charge framed against the Accused. Here the charge under Section 366 of IPC (kidnapping of a minor), Section 376 of IPC sexual assault on the minor and Section 506(1) of IPC (threatening the minor not to disclose the fact to anyone) have been substantially pleaded and proved by the Prosecution by examining P.W-1 to P.W-3.
17. The evidence of the Doctor P.W-6 who had examined the victim adds support to the case of the Prosecution. As per the evidence of P.W-6, the age of the victim on the date of Medical examination was between 12 and 14. And as per the evidence of P.W-4 the Headmistress of the School, the victim was studying in VIII standard, under Ex.P-9, the certificate issued by the Headmistress of the School. On appreciation of the evidence of P.W-4, she had https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 21/31 Crl.A.No.95 of 2018 stated that she was shocked to find out from the news report that the student of her School was sexually assaulted. She had in the course of the evidence deposed that after this incident, the child did not attend the School continuously purportedly due to social stigma and inhibition. This according to P.W-4, had morally, mentally and socially affected the victim child.
18. On perusal of the judgment, it is found that the victim and her mother were sent out from the Police Station on technical reasons. The Police Officials also delayed the registration of the case, which had emboldened the Accused to roam free. This Court perceive this as an attempt to enable the Accused to wriggle out of the legal complications. Such conduct of the Police Officials had been taken note by the learned Sessions Judge, Fast Track Mahila Court, Salem, by putting up questions to P.W-11 Sub-Inspector of Police who had registered the FIR under Ex.P-13. The learned Sessions Judge after perusing the case dairy file from the Investigation Officer found that certain entries had been interpolated. Also in the evidence of the P.W-1, she had stated that the Scan report of the victim was in the hands of the wife of the Accused. The wife of the Accused had challenged the mother of the victim stating that her child's future will be lost and therefore, she put pressure on P.W-1 to settle the case by receiving Rs.30,000/-. Instead the victim's mother https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 22/31 Crl.A.No.95 of 2018 had rushed to the Police Officials to get the case registered. Therefore, the wife of the Accused appears to have influenced the Police Officials and received the scan report from the Police Officials. The learned Judge also considered that part of the evidence of P.W-1 and confronted the Police Officials regarding the same. The learned Sessions Judge had noted that it is surprising to see that the Investigation Officer had not filed the Scan Report of the victim before the Court. That exposes the Investigation Officer helping the Accused. Therefore, the learned Sessions Judge, Fast Track Mahila Court, Salem had rightly assessed the evidence and arrived at a conclusion to the effect that the Prosecution had not conducted the case in a manner it requires. This Court also inferred that in the light of the above, the Police Officer concerned who carried on the preliminary investigation had been suspended based on the complaint of the mother of the victim.
19. As per the evidence of P.W-1, She had been visiting the All Women Police Station, Ammapet continuously for a week and on a particular day, she was adamant that her complaint has to be accepted. Based on which the FIR was registered. P.W-1 in her evidence stated that the Accused was arrested by the Inspector of Police, All Women Police Station, Ammapet from his house after the registration of FIR on the next day by 6 a.m. whereas the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 23/31 Crl.A.No.95 of 2018 Inspector of Police P.W-12 in her evidence stated that the Accused was arrested near the Uzhavar Santhai, Hasthampatti. Therefore, there are contradictions regarding the arrest of the Accused. As per the evidence of P.W-1 and P.W-2 on the date of occurrence, the victim was taken in an autorickshaw by the Accused stating that daughter of the Accused wanted to study along with the victim and took her under that pretext to his house. Instead of taking her to his house, he had taken the victim to the vacant house of his sister where the daughter of the Accused was studying and he had given her some betel leaves and asked her to hand it over to her mother/wife of the Accused. After his daughter left the house, the Accused alleged to have sexually assaulted the victim.
20. It is the contention of the learned Counsel for the Appellant that as per the Prosecution case, the victim and the daughter of the Accused were studying in the same class and were known to each other. It was not so. The daughter of the Accused was the classmate of the elder sister of the victim. Therefore, the narration of the incident by the victim that she was taken in autorickshaw on the pretext that his daughter wanted to study along with the victim is unbelievable. There are materials available in the cross examination of P.W-1 and P.W-2 and the Investigation Officer that the daughter of the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 24/31 Crl.A.No.95 of 2018 Accused was studying in X standard and the elder sister of the victim was her classmate. While so, the entire Prosecution story cannot be believed. Still the learned trial Judge believed the version of the victim and convicted the Accused. The learned Counsel for the Appellant also invited the attention of the Court to the cross examination of P.W-1 the mother of the victim wherein she had admitted that she had left out her first Husband and had been living with the second Husband and he died. The suggestion of the defence was that when she shifted from her residence from the earlier place of residence to the present place of residence she had taken the household articles through the autorickshaw of the Accused and after coming and residing in the neighbourhood of the Accused she had attempted to extract money from the Accused by misusing the teenage daughter as a complainant. She admits that she married second time and her first husband is still alive. Therefore, it is the contention of the learned Counsel for the Appellant that P.W-1/mother of the victim had lost reputation in the place of her residence. That is why the neighbours in the place of residence did not volunteer to support her case. The learned Judge failed to appreciate those facts. Instead believed the version of the victim/P.W-2, convicted the Accused for the offences under Section 366, 376 and 506(1) of IPC. Therefore, the judgment of the learned Sessions Judge Fast Track Mahila Court, Salem, is to be set aside as perverse. https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 25/31 Crl.A.No.95 of 2018
21. In this regard, this Court had perused the charges framed by the learned Sessions Judge, Fast Track Mahila Court, Salem. This Court also gone through the depositions of witnesses P.W-1 to P.W-13, Ex.P-1 to Ex.P-23, the evidence of D.W-1 and Ex.D-1 and Ex.D-2. On perusal of the evidence of P.W-1 to P.W-13 there are materials available in the cross examination as pointed out by the learned Counsel for the Appellant regarding the place of arrest. There are contradiction between P.W-1 and P.W-12 the Investigation Officer. Such contradictions, in the opinion of this Court will not shake the foundation of the case projected by the Prosecution. The foundation of the case has been cemented well with the testimony of P.W-1, P.W-2 and P.W-3. P.W-3 is the sister's husband of the victim. In fact, on seeing P.W-3, the Appellant fled from the scene and this has given suspicion to P.W-3. On cumulative assessment of the evidence of P.W-1, P.W-2 and P.W-3, this Court is of the view that the case projected by the Prosecution is probable and the charges against the Appellant has been proved beyond reasonable doubt.
22. Considering age of the victim between 12 and 14, even for argument sake, by adding or subtracting 2 years, still she is minor. She is incompetent to give consent for sexual intercourse. Therefore, the argument of https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 26/31 Crl.A.No.95 of 2018 the learned Counsel for the Appellant that this is a foisted case to extract money from the Accused is found unacceptable.
23. In the light of the above discussion, the point for consideration is answered against the Appellant/Accused and in favour of the Prosecution. The Judgment dated 19.01.2018 passed in S.C. No. 36 of 2014 by the learned Sessions Judge, Fast Track Mahila Court, Salem, is found proper which does warrant interference of this Court.
24. With respect to the lapses in the investigation conducted in this case, from the First Information Report, it is found that it is registered for offences under Section 366, 376 and 506(1) of IPC. The FIR was registered, two or three months prior to the coming into force of the Protection of Children from Sexual Offences Act, 2012. The case attracts all the provisions of the Protection of Children from Sexual Offences Act, 2012. However, the First Information Report was registered only for the offence under Section 376 IPC alone. In other words, the provisions of the Protection of Children from Sexual Offences Act, 2012 has not been invoked in this case, though a serious offence of sexual assault on minor child is made out. Whether the non- inclusion of the provisions of the the Protection of Children from Sexual https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 27/31 Crl.A.No.95 of 2018 Offences Act, 2012 was due to ignorance as it was registered three months after the Protection of Children from Sexual Offences Act, 2012 came into force or any other wanton and wilful act on the part of the Investigation Officer has to be examined. For this purpose, the Commissioner of Police, Salem City or the Inspector General of Police, Western Zone shall conduct a detailed enquiry regarding the conduct of the Police Officials involved in this case and to take disciplinary action, as they had gone out of the way to help the Accused to wriggle out of a serious offence. The Inspector General of Police, Western Zone and the Director General of Police, Tamil Nadu is directed to hold enquiry as per the rules and find out the culpability of the Investigation Officer diluting the investigation, to weaken the case of the Prosecution and joining hands with the Accused to let out the Accused from the grave charges of rape of a minor victim. In the enquiry, if it is found any wanton negligence and lapses or dereliction of duty on the Investigation Officer concerned, the Director General of Police or Inspector General of Police or the Commissioner of Police shall pass appropriate orders against the Investigation Officer who was found indulging in illegal and unfair practices.
In the result, this Criminal Appeal is dismissed as having no merits. The judgment of the learned Sessions Judge, Fast Track Mahila Court in https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:48 pm ) 28/31 Crl.A.No.95 of 2018 S.C.No.36 of 2014, dated 19.01.2018 is confirmed. The Accused is directed to surrender before the trial Court within 15 days from the date of uploading of this judgment on the website of this Court.
The learned Sessions Judge, Fast Track Mahila Court, Salem is directed to issue warrant in the light of the judgment of conviction recorded in S.C. No. 36 of 2014, dated 19.01.2018, which is confirmed by this Judgment. The Respondent/Inspector of Police, All Women Police Station, Ammapet, Salem City, is directed to obtain warrant from the learned Sessions Judge, Fast Track Mahila Court, Salem, to secure and detain the Accused in Prison so as to undergo the remaining period of sentence of imprisonment. If the Accused still absconds and not traceable, the Investigation Officer, All Women Police Station, Ammapet, Salem City, shall file petition under Section 82 of Cr.P.C. seeking to declare the Accused as Proclaimed Offender so that his movable and immovable assets can be attached by the Court and brought to public auction.
08.11.2023
shl
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
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Crl.A.No.95 of 2018
To
1. The Sessions Judge
Fast Track Mahila Court,
Salem.
2.The Additional Public Prosecutor,
Madras High Court,
Chennai – 600 104.
3. The Director General of Police,
Tamil Nadu,
No.1, Kamarajar Salai,
Mylapore,
Chennai – 600 004.
4. The Commissioner of Police
Office of the Commissioner of Police,
Salem City.
5. The Inspector General of Police,
West Zone,
Race Course Road,
Coimbatore.
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Crl.A.No.95 of 2018
SATHI KUMAR SUKUMARA KURUP, J
shl
Criminal Appeal No. 95 of 2018
08.11.2023
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