Madras High Court
Harishankar vs State Through The Inspector Of Police on 28 April, 2021
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.A.No.147 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
[Reserved on : 01.04.2021]
[Pronounced on : 28.04.2021]
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.147 of 2016
Harishankar
S/o.Nachimuthu ... Appellant/Accused
Vs.
State through the Inspector of Police
Anamalai Police Station
(All Women Police Station, Pollachi)
Coimbatore District
(Crime No.11/2014) ... Respondent/Complainant
PRAYER : The Criminal Appeal filed under Section 374(2) r/w. 382 of
the Criminal Procedure Code, to set aside the judgment made in
Spl.C.C.No.24 of 2014 on the file of the Mahila Court, Coimbatore,
convicting the appellant under Section 3 r/w Section 4 of the Protection of
Children from Sexual Offences Act, 2012 to undergo rigorous
imprisonment for a period of 8 years and to pay a fine of Rs.5,000/- in
default to undergo simple imprisonment for a period of 6 months.
1/51
https://www.mhc.tn.gov.in/judis/
Crl.A.No.147 of 2016
For Appellant : Mr.R.Vivekanandhan
for Mr.L.Mahendran
For Respondent : Mrs.Saradha Devi
Government Advocate (Crl. Side)
JUDGMENT
(The case has been heard through video conference) This Criminal Appeal has been filed, against the judgment of conviction and sentence passed by the learned Sessions Judge, Mahila Court, Coimbatore, in Spl.C.C.No.24 of 2014, finding the appellant guilty for the offences under Sections 3 r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 and convicting and sentencing him to undergo eight years rigorous imprisonment and to pay a fine of Rs.5,000/- in default to undergo six months simple imprisonment.
2.The case of the prosecution is that the Appellant and the prosecutrix / victim are local residents of Kettimallanpudur, Anaimalai. The parents of the prosecutrix / victim were coolies and that she has got one elder brother and one younger brother. After completing her X std., the prosecutrix / victim was working as a machine operator in Umesh Pencil Company for the past two years. The appellant was in speaking terms with the victim for the past one year. Five days prior to the date of occurrence viz. on 2/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 16.01.2014, the victim along with her family members had gone to attend the funeral of her grandfather and she had returned to the village on 16.01.2014 and at about 7.30 p.m. while the prosecutrix / victim returned from public toilet after attending nature's call, the appellant / accused along with other accused had gagged her mouth and forcibly dragged her into a nearby bush and committed aggravated penetrative sexual assault on her and thereby, the appellant was charged for the offence u/s.3 & 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called the POCSO Act) and the other accused 2 & 3 were charged for the offences u/s.3 & 4 of the POCSO Act r/w.34 of IPC.
3.Brief facts of the prosecution case:
On 17.01.2014, PW6 viz. T.Veeramal had received an information from the Pollachi Government Hospital over telephone with regard to the admission and treatment of the Prosecutrix / victim. On receipt of the information, PW6 went to the Pollachi Government Hospital, recorded the statement of the Prosecutrix / victim viz. Ex.P1 and on the basis of the said statement, registered a case in Crime No.11 of 2014 viz.Ex.P5 as against the named accused Harishankar, the appellant herein for an offence u/s.3 3/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 r/w 4 of the POCSO Act, 2012 and forwarded the case in Crime No.11 of 2015 for investigation to the Inspector of Police viz.PW7.
On the same day at about 8.00 p.m. after receipt of the complaint and F.I.R. in Crime No.11 of 2014, PW7, the then Inspector of Police had taken up the case for investigation and visited the place of occurrence and had prepared an Observation Mahazar vix. Ex.P4 and Rough Sketch viz. Ex.P6 in the presence of witnesses one Nagaraj (PW5) and one Rameshkumar. On the same day, PW6 went to Pollachi Government Hospital, and examined the Prosecutrix / victim and thereafter examined of witnesses Parvathy, Karupasamy, Selathaal, Ponnusamy Gounder, Muniyandi and Mahendran and recorded their statements. On the same day, gave request for subjecting the prosecutrix/victim for medical examination.
On 17.01.2014, PW7 in the presence of one Parvathy and Karupasamy recovered the dresses viz. M.O.1 to MO4 from the Prosecutrix / victim through recovery mahazar viz Ex.P7. On the same day at about 12.00 noon, PW7 had arrested the accused in the presence of one 4/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 Parvathy and Karupasamy, recorded his confession statement and recovered the dresseses viz. M.O.5 to M.O.8 from him through recovery mahazar viz. Ex.P8 and subsequently, sent the accused for remand.
On 20.01.2014, PW7 had submitted a requisition before the Court to conduct Medical Examination on the Prosecutrix /victim to ascertain the age of the Prosecutrix/victim. On 27.01.2014, PW7 had filed an application for obtaining the permission of the Court for sending the clothes of the Prosecutrix / victim and the accused under Ex.P7 and Ex.P8 for chemical examination.
On 18.01.2014, PW7 had examined and recorded the further statements of the Prosecutrix / victim and witnesses Selathaal and Karupasamy. On 20.01.2014, PW7 had independently examined and recorded the statements of one Saraswathy, Angamuthu, Velumani and Palanisamy.
On 31.01.2014, PW7 examined the the Head Constable Sheelamani who had taken the Prosecutrix / victim for medical examination and scientific Test.
5/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 On 30.03.2014, PW7 had examined Dr.Vasanthakumar of Alva Hospital and recorded his statement. Subsequently in continuation of investigation on 13.02.2014, PW7 had submitted the requisition before the learned Judicial Magistrate-II for examining and recording the statement of the Prosecutrix / victim, Parvathy, mother of the prosecutrix / victim and one Selathaal u/s.164 Cr.P.C. and on 05.04.2014, PW7 had examined and recorded the statement of the Doctor Suganya who had treated the Prosecutrix / victim. Subsequently, PW7 had examined and recorded the statement of the Junior Scientific Officer Venkateshwara and obtained the scientific report viz. Ex.P10 in respect of chemical analysis of M.O.1 to M.O.8.
On 18.04.2014, PW7 had obtained the masculinity certificate Ex.P2 of the accused persons from the Government Hospital, Coimbatore and examined Dr.Jeyasingh and recorded his statement.
PW7 after completion of investigation and obtaining the opinion of the Assistant Director of Prosecution, filed the final report against A1, for the offences under Sections 3 & 4 of the POCSO Act, 2012 and A2 & A3 for the offences u/s.3 & 4 of the POCSO Act r/w. Section 34 of I.P.C. 6/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016
4.The Additional Sessions Judge / Magalir Neethimandram took up the case, in Spl.C.C.No.24 of 2014 on 21.05.2014 and on appearance of the accused furnished copies of the documents u/s. 207 Cr.P.C. and after hearing the accused and their counsel, framed charges against the appellant / 1st accused for the offence u/s.3 & 4 of the POCSO Act and framed charges against the accused 2 & 3 for the offence u/s. 3 & 4 of POCSO Act r/w.34 IPC. The accused denied the charges and sought to be tried.
5.On the side of the prosecution 7 witnesses were examined as PW1 to PW7 and Ex.P1 to Ex.P10 and M.O.1 to M.O.8 were marked on the side of the prosecution. P.W.1 is the victim / prosecutrix who was given the complaint Ex.P1. Through her M.O.1 to M.O.4 were marked. P.W.2 Parvathy is the mother of P.W.1, P.W.3 Dr.Jeyasingh, is the Government Doctor who conducted potency / masculinity test (Ex.P.2) in respect of the accused on 11.02.2014. P.W.4 /Dr.Suganya, is the Assistant Medical Officer who had examined the victim on 16.01.2014 and issued Ex.P.3, Accident Register and spoke about Ex.P10 (FSL Report). P.W.5, Nagaraj is the mahazar witness. P.W.6, Veerammal, is the Sub Inspector of Police who had registered the case in Crime No.11 of 2014 (Ex.P5) on 7/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 16.01.2014 and P.W.7, is the Investigating Officer, who had conducted investigation and filed the final report. She had based on F.I.R. Ex.P5 proceeded with the investigation and prepared observation mahazar Ex.P.4, Rough Sketch Ex.P6. She had recovered M.O.1 to M.O.4 dresses of the victim through recovery mahazar Ex.P7 and recovered M.O.5 to M.O.8 dresses worn by accused through recovery mahazar Ex.P8 and sent the dresses for chemical analysis. The statements of P.W.1, P.W.2 and one Selathal recorded u/s.164 Cr.P.C. Ex.P.10 (documents) were marked as Ex.P.9 and the chemical analysis/FSL report was marked as Ex.P.10.
6.After completion of the evidence on the side of the prosecution, when the accused were questioned u/s.313 Cr.P.C. with regard to incriminating circumstances found against them, they denied the charges. However, no evidence either oral or documentary was let in on the side of the defence.
7.The trial Court pursuant to the evidence and hearing the advocates, found the appellant / 1st accused guilty for the offence u/s.3 & 4 of the POCSO Act and convicted him as stated above and found the 2 & 3 8/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 accused not guilty of the charges and acquitted them. Against the said conviction, the appellant / accused had preferred the present Appeal.
8.This Court heard the submissions of learned counsel on either side.
9.Mr.R.Vivekanandan, the learned counsel appearing for the Appellant / accused while assailing the impugned order and judgment of conviction and sentence passed by the trial Court made the following submissions:
(i).The entire case of the prosecution is filled with contradictions, inconsistencies, exaggerations and embellishments and the testimonies of the victim / prosecutrix /P.W.1 and her mother P.W.2 are unnatural and improbable, raising grave suspicion. Though in a case of rape, the solitary evidence of prosecutrix is sufficient to prove the charge, the same should inspire confidence and appear to be absolutely trustworthy, unblemished and should be of sterling quality, but, in this case, the prosecution had listed 27 witnesses in the charge sheet only 7 witnesses were examined.
The trial Court had relied on the evidence of P.W.1, prosecutrix / victim and her mother P.W.2 and their evidence discloses several lacunae which 9/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 would go to show that they are not witnesses of sterling quality and they lack credence and do not inspire confidence so as to convict the appellant and the trial Court committed grave error in convicting the Appellant based on their evidence.
(ii) Learned counsel would submit that a case of love affair and a relationship between the two grown up youngsters belonging to two different communities which got aborted and ended abruptly being witnessed by P.W.2 and certain other persons, has been falsely projected as a case of rape. The reading of the initial statement Ex.P1 would go to show that there was some relationship between the appellant and P.W.1 and initially the allegations were made only against the appellant as if he had gagged the mouth of the victim and had forcibly taken her behind the bush, removed her clothes and subjected her to penetrative sexual assault. Based on Ex.P1, F.I.R. Ex.P5 was registered and the Appellant alone was cited as an accused. However, a subsequent statement came to be recorded, after few days based on which, two other persons, A2 & A3 (since acquitted) were roped in and that the allegation made against them was that they along with the appellant caught hold of the prosecutrix / victim, gagged her mouth and took her behind the bush, where A2 & A3 caught 10/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 hold of her hands and legs and the appellant subjected her to sexual assault.
(iii).Learned counsel would further submit that it is the evidence of P.W.2 that her daughter Prosecutrix / victim P.W.1 went to attend nature's call in the village public toilet and since she did not return after sometime, P.W.2 had along with one Selathal, her sister had gone to the place of occurrence and had seen her daughter lying naked on the northern side of the toilet and the appellant lying on her and A2 & A3 were found catching hold of her hands and legs and that she had pulled the appellant / accused by his hair and raised alarm and the public nearby had rushed and gathered at the scene of occurrence and that on seeing them, the accused had run away. It is the case of P.W.2 that her husband and sons and other public had rushed to the place immediately and witnessed the occurrence, however, strangely, no other witnesses other than the prosecutrix / victim P.W.1 and P.W.2 have been examined in this case, causing grave doubt and suspicion in the prosecution case.
(iv)The incident is stated to have taken place in a Village near a public toilet surrounded by nearby houses. The occurrence as put forth by P.W.1 and P.W.2 is highly improbable and unbelievable that too when no 11/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 other independent witnesses have been examined by the prosecution to prove the occurrence. The conduct of the prosecutrix / victim is highly unbelievable. If the incident had happened as projected by her she could have raised hue and cry and the persons in the vicinity would have rushed to the scene of occurrence. Strangely, P.W.1 has not stated that she resisted or she raised a hue and cry at the scene of occurrence. Further, as per P.W.1 and Ex.P1. P.W.1's elder and younger brothers were stated to be with her few minutes before the occurrence and that the accused who is known to her younger brother had chatted with him and strangely, the brothers of P.W.1 have not been examined by the prosecution.
(v) Learned counsel would further submit the appellant has been charged for offence u/s 3 & 4 of the POCSO Act, 2012, and necessarily, a burden is cast on the prosecution to prove the age of the victim beyond doubt to be below 18 years and that she is a “child” as contemplated under Section 2(d) of the POCSO Act, 2012. In order to determine the age of the victim or any Juvenile with conflict in law, the statutory provisions as per Rule 12 of the Juvenile Justice (Care & Protection of Children) Rule 2007 has to be adopted since the incident is alleged to have been taken place on 17.01.2014 and the charges are for offence u/s.3 & 4 of the POCSO Act, 12/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 2012. In the event of there being no certificates or documents the option available to the prosecution is to prove the age by medical examination by obtaining Radiological test or conducting ossification test. In this case, no legal evidence has been let in to prove the age of the victim whereas the Trial Court against the cardinal principles of criminal jurisprudence had erred in holding that it is for the Appellant to have suggested that the age of the victim is above 18 years. The trial Court gravely erred in framing charges against the accused for offences u/s.3 & 4 of the POCSO Act, 2012 without any legal evidence being let in by the prosecution to prove the age of the victim to be below 18 years.
(vi)The learned counsel would further submit that it is the case of the prosecutrix / victim that she was pulled forcefully and that she was dragged behind a bush and that she was stripped fully and that two other accused caught hold of her and that the appellant forcefully committed sexual assault on her several times. The trial Court had failed to see that the case of the prosecution is not supported by medical evidence. As per P.W.4, the Doctor, who conducted medical examination of the victim immediately after the occurrence, no external or internal injury was found on the body or the private part of the victim. Though injury on the body of 13/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 the person of the victim is not a sine qua non to prove a charge of rape and the absence of injury on the person of the prosecutrix / victim would not by itself sufficient to discard the prosecution case, taking into consideration the facts of the case and the attended circumstances the case of the prosecution is highly improbable and P.W.1 is not a credible witness.
(vii). Learned counsel would reiterate that it is the admitted evidence of P.W.1, P.W.2 and P.W.7, the Investigating Officer that the appellant and the victim belong to two different communities and the actual fact remains that since their relationship got exposed to the persons in the village, a false complaint has been given to see to that they were separated when especially in view of the fact, the non examination of the other relatives and public who are stated to have witnessed the occurrence creates a dent in the prosecution case. The learned counsel would also submit that the Hon'ble Supreme Court in several cases held that there are circumstances where false cases are foisted due to enmity and also after aborted consensual acts being known to others. In this case, P.W.1 initially had implicated the appellant and thereafter for the reasons best known had implicated A2 & A3 who are friends of A1as if they abetted the appellant to commit the offence. The trial Court disbelieved the evidence of P.W 1 14/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 and finding it to be false in respect of A2 and A3 had acquitted them. A careful analysis and evaluation of the conduct and statements as deposed by P.W.1 disclose irreconcilable variation on material aspects and throws doubt on the veracity of the evidence rendered by her. Having disbelieved the evidence of P.W.1 and having acquitted A2 & A3 the trial court ought to have discredited the evidence of P.W.1 in toto and acquitted the appellant also since the prosecution rests on the very same evidence which is absolutely untrustworthy. The trial Court failed to be guided by the Rules of prudence.
(viii). Learned counsel would further submit that even as per the prosecution evidence the victim and the appellant belong to two different communities and immediately after the occurrence, the victim had been given in marriage to her own cousin. Learned counsel would further submit that suggestions regarding the immediate marriage of PW1were put to PW2 and it was accepted by her. The trial Court failed to take into consideration the existence of the fact which would likely to have happened with regard being to the common course of natural events in their relation to the facts of the particular case. 15/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016
10.In this case, the learned counsel would ultimately contend that taking into consideration the overall evidence of the witnesses and the attending circumstances, particularly the evidence of the prosecutrix / victim P.W.1 and her mother P.W.2 they do not inspire confidence and lack credence and the appellant deserves to be acquitted.
11.In support of his submissions, learned counsel for the appellant placed reliance on the following decisions:-
– Mahadeo S/o. Kerba Maske V. State of Maharashtra and another reported in (2013) 14 Supreme Court Cases 637 – – State of Madhya Pradesh V. Anoop Singh reported (2015) 7 Supreme Court Cases 773 – Ram Laxman Vs. State of Rajasthan reported in (2016) 12 SCC 389 – Sham Singh V. State of Haryana reported in (2018) 18 SCC 34 – – Rai Sandeep v. State (NCT of Delhi) reported in (2012) 8 SCC 21 – In Mirthagai Ali v. State reported in (2007) 1 LW (Cri) 18 – Sadashiv Ramrao Hadbe v. State of Maharashtra reported in (2006) 10 SCC 92) – Munna v. State of MP reported in (2014) 10 SCC 254 16/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 – Narayan v. State of Rajasthan reported in (2007) 6 SCC 465 – Govindan v. State reported in (2019) 3 Mad LJ (Cri) 548 – Digamber Vaishnav and another Vs. State of Chattisgarh reported in (2019) 4 SCC 522
12.Per contra, Mrs.Saradha Devi, the learned Government Advocate (Crl. Side) appearing for the respondent refuting the contentions put forward by the counsel for the appellant would submit that the prosecution has proved its case by adducing clear and cogent evidence and that there are no infirmities or discrepancies or inconsistencies in the evidence adduced by the prosecution. She would further submit that it is a case of rape and the evidence of the prosecutrix / victim / PW1 is cogent, convincing and inspires confidence. Further, P.W.2 mother of P.W.1 has supported the case. She would further submit that since because the medical evidence does not support the case of rape and that no injuries were found on the victim, the evidence of the prosecutrix / victim cannot be doubted and brushed aside. She would further submit that in this case, though the age has not been proved in accordance with the statutory provision contemplated under Juvenile Justice (Care and Projection of 17/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 Children), Rule, 2007, P.W.1 at the time of medical examination had informed P.W.4, the doctor that she is aged 17 years and P.W.4 has deposed about it. However, the learned Government Advocate would fairly concede that though a request had been made for medical examination to determine the age of the victim, no medical or scientific examination had been done on the victim to determine her aged by scientific evidence. She would further submit that even assuming the age has not been proved, the appellant had committed rape on her and the presumption has not been rebutted and the petitioner in the alternative of the charges not being proved under the POCSO Act, 2012 is liable to be convicted for the offence of rape u/s.376 I.P.C.
13.At this juncture, learned counsel for the appellant would submit that the evidence of the victim and her mother are not trustworthy and that they lack credence. He would further submit that it is a case foisted for the purpose of separating two youngsters who belong to different communities and the appellant right from the day of arrest is in custody and he has not been granted Suspension of sentence pending appeal and that he had already undergone sentence for a period of Seven years and 3 months and 18/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 in the event of Court not allowing the appeal, taking into consideration that the age of the victim has not been proved and thereby the offences under the provisions of the POCSO Act, 2012 having been not proved would seek for a lesser sentence.
14.This Court gave its careful and anxious consideration to the rival arguments put forth by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgment of conviction including the authorities cited on either side.
15.In this case, the appellant was charged and tried along with two other accused. The charge against the appellant is for the offence u/s 3 & 4 for the POCSO Act, 2012 and the charges as far as the other accused (since acquitted) are for the offences u/s. 3 & 4 of POCSO Act, r/w 34 IPC. The trial Court on the same set of evidence believed P.W.1 convicted the appellant and disbelieved the evidence of PW 1 and acquitted the other accused A2 and A3.
19/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016
16.Needless to say that in a case of rape the solitary testimony of prosecutrix / victim is sufficient to render conviction and absence of injuries on the prosecutrix cannot be a ground to disbelieve the prosecutrix / victim. However, taking into consideration the attended circumstances in this case what is to be seen is
(i) Whether the testimonies of the prosecutrix / victim / P.W.1 and her mother P.W.2 inspire confidence of this Court and whether their evidence is corroborated by any other evidence brought forth by the prosecution, including the medical evidence to base the conviction against the appellant.
(ii) Whether the prosecution has succeeded in proving that the prosecutrix / victim is a “child” as per definition u/s.2 (d )of the POCSO Act, 2012 (that the age of the victim to be less than 18 years on the date of occurrence) by letting in legal evidence and proved the charge against the accused under the POCSO Act 2012.
(iii)Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt by adducing cogent, convincing and legally accepted evidence and 20/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016
(iv)Whether the trial Court is right and justified in convicting the appellant based on the available evidence on record.
17.While analysing the evidence of prosecution as culled out from the deposition of witnesses;
PW1 Prosecutrix / victim is a resident of Kettimallanpudur, Anaimalai. She had deposed that she completed her IX Std., and she was working at Umesh Pencil Company. On 16.01.2014 around 6.00 p.m. she had gone to the shop carrying a child, at that time, the appellant / accused had followed her and on seeing him, the Prosecutrix /victim had gone into her grandmother's house and after the accused had left, she had returned to her house at 6.30 p.m. and at 7.15 p.m. she had called her mother to accompany her to the public toilet. Since her mother was not feeling well, she was unable to accompany her and the Prosecutrix / victim alone had gone to the public toilet and when she had come out, the appellant and the other accused were standing near the Panchayat office and on seeing her they had caught hold of her and gagged her mouth. The 2 nd accused had caught hold of her hands and the 3rd accused had caught hold of her legs 21/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 and they had taken her to a nearby bush where the appellant herein had pressed his private part and that she swooned and that her mother had come in search of her and finding her unconscious, her father had covered her with his dhothi and sent her to Ambharampalayam hospital. At Ambharampalayam hospital, the police had recorded a statement from her, which has been marked as Ex.P1 and her mother PW2 had attested the statement. The shawl, tops, bottom and panty were marked as M.O.1 to M.O.4.
18.PW2 viz. Parvathi is the mother of PW1. She had deposed that on the date of occurrence at about 7.15 p.m. her daughter had gone to the public toilet and since there were relatives in her house she did not accompany her daughter and she went alone and since she did not return even after 1/4 hours, she had searched for her daughter in the nearby houses and had gone near the toilet and she had heard some persons speaking in a low voice, where she had gone near, she had seen her daughter lying naked on the northern side of the toilet and at that time she had found the appellant / accused lying on her daughter and the 2nd & 3rd accused were holding her legs and hands. Thereafter, she had pulled the 22/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 appellant / 1st accused by his hair and raised alarm and the public had rushed and gathered at the place and the accused had run away from the scene of occurrence. Thereafter, PW2 had taken her husband's dhothi and covered her and she and her husband had taken her to the Alva hospital and from there they were asked to go to Pollachi Government Hospital. Thereafter, PW2 and her husband had gone to the respondent police station and had given a complaint to one Policeman named Selvaraj.
19.PW3 viz. Dr.Jeyasingh, is the Doctor at Coimbatore Government Hospital. He had deposed that on 11.02.2014, he had conducted potency / masculinity test in respect of the accused. The certificate of masculinity has been marked as Ex.P2.
20.P.W4 viz. Dr.Suganya is the Assistant Medical Officer at Pollachi Government Hospital. She had deposed that on 16.01.2014 at about 11.30 p.m. when she was in duty, the prosecutrix / victim along with her mother was brought by the police and that she had examined the victim. When she had enquired the victim, she had informed that she was subjected to rape by a known person at 7.00 p.m. on the same day. Further, she had told that 23/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 she had suffered injury on the head due to which she was unconscious for 1/2 an hour. The victim had further told her that she had had sexual intercourse with her uncle twice, two months prior to the occurrence. PW4 had further deposed that on examination, no injury was found on the private part and that her pubic hair and vaginal smear were taken and sent for analysis and that on analysis no spermatozoa was found and that she had issued Ex.P3 viz. the Accident Register in respect of the victim.
21.PW5 viz. Nagaraj is a resident of Kettimallanpudur, Anaimalai. He had deposed that he along with one Rameshkumar had witnessed the preparation of Observation Mahazar Ex.P4 by the police.
22.PW6 viz. T.Veeramal had deposed that on 17.01.2014 while she was on duty as Sub Inspector of Police at Anamalai Police Station, she received an information from the Pollachi Government Hospital and thereby she had enquired PW1 who was admitted as an inpatient and obtained her statement, based on which, she has registered a case in Crime No.11 of 2014 on the same day, which has been marked as Ex.P5. 24/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016
23.PW7 viz. Tamilselvi, was the Inspector of Police in Pollachi All Women Police Station. She had deposed that on 17.01.2014 after receipt of the complaint and F.I.R (Ex.P5) she had taken up the case for investigation and visited the place of occurrence and prepared the Observation Mahazar (Ex.P4) and also Rough Sketch (Ex.P6) in the presence of PW5 and one Ramesh Kumar. On the same day, she had gone to Pollachi Government Hospital and independently examined the prosecutrix / victim / PW1 and further recorded the statement of Parvathy, Karupasamy, Selathaal, Ponnusamy Gounder, Muniyandi and Mahendran and in the presence of Parvathy (PW2) and Karupasamy, she had recovered dresses (M.O.1 to M.O.4) from the victim through recovery mahazar (Ex.P7) and on the same day, she had sent the prosecutrix / victim for medical examination. Further, on the same day at about 12 noon she had arrested the appellant / accused in the presence of Parvathy and Karupasamy and recorded his confession statement and recovered the dresses viz. Blue colour shorts (M.O.5), white colour banian (M.O.6), cement colour striped shirt (M.O.7) and dark green lungi (M.O.8) from him through recovery mahazar (Ex.P8) and thereafter remanded the accused to judicial custody. On 20.01.2014, she had sent the prosecutrix / 25/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 victim for medical examination to determine her age. On 27.01.2014, she had sent the dresses worn by the prosecutrix / victim and the accused for chemical analysis. On 30.03.2014 she had examined Dr.Vasanthakumar who had initially treated the victim and thereafter she examined Dr.Suganya, who had treated and examined the victim girl on 16.01.2014. Further, she had enquired Dr.Jeyasingh who had examined the accused and recorded his statement. On 18.04.2014, she had received information that the other accused had obtained anticipatory bail and thereafter she continued with the investigation and filed the final report before the Court. The statement recorded u/s.164 Cr.P.C. from PW1, PW2 and one Selathaal were marked as Ex.P9 and the chemical analysis report was marked as Ex.P10.
24.In this case other than P.W.1, P.W.2 & P.W.5(Mahazar Witness) all the other witnesses are official witnesses. P.W.1 and P.W.2 are the witnesses who speak about the occurrence. This Court has scanned the evidence of PW1, the prosecutrix / victim and her mother P.W.2. At the outset, in this case, though 27 witnesses have been cited, the prosecution has examined only seven witnesses. Though the family members of P.W.1 26/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 and P.W.2 and several other persons from the public are stated to have witnessed the occurrence, no one other than P.W.1 and P.W.2 have been examined. In this case, the immediate document which came into existence is Ex.P1, the statement given by P.W.1 to P.W6, the Sub Inspector of Police. As per Ex.P1, P.W.1 had sated that she is aged 18 years and that she had completed X Std and that she was working as a machine operator in Umesh Pencil Company for two years and that on the date of occurrence, she had gone to attend the death rituals of her grandfather and that she was returning back home around 7.30 p.m. along with her elder brother and younger brother and her elder brother left them and went away and that the younger brother was speaking to the appellant and that she went to her home and after sometime she came to attend nature's call in the public toilet. At that time, the appellant had come and held her hand, gagged her mouth and dragged her inside a bush and that she was unable to escape and that he stripped her naked and that he committed repeated penetrative sexual assault on her and that she tried to prevent him and that she was unable to raise her voice. After sometime her mother and along with her elder sister came there and that they found her lying naked and the appellant lying over her and on seeing both of them, her mother had raised 27/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 a hue and cry stating that the appellant had spoiled her daughter and that on seeing her mother the appellant ran away and thereafter her mother and her aunt brought her back home and changed her dress and that she was semi-concious and that her mother and father took her to Alva Hospital and from there she was referred to Pollachi Government Hospital and she had given a complaint Ex.P.1 based on which a case in Crime No.11 of 2014 was registered against the appellant on the same day. The medical examination had been conducted by P.W.4 on the victim immediately on the same day. As per PW4 ,PW1 had informed her that she was subjected to sexual assault by three persons and one person had committed penetrative sexual assault on her and that she sustained injury on her head and that she was unconscious for about half an hour .Further PW1 had told her that she had had sexual intercourse with her uncle twice two months prior to the occurrence. Though P.W.1 had stated that she was forcefully dragged and subjected to repeated penetrative sexual assault , the doctor (P.W.4) who had examined her immediately after the occurrence has stated that no external or internal injuries were found on the private part of the victim and that PW4 had collected vaginal fluids and pubic hair from her and sent if for chemical analysis and as per PW 4 the chemical analysis 28/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 did not disclose presence of spermatozoa. Further as per PW4 though the hymen of the victim was found to be torn and permitted one finger easily no observation and mention was made about the age of the tear. Further, the chemical /FSL analysis of the clothes worn by the victim and the appellant as per Ex.P10 also did not disclose presence of spermatozoa. Based on the complaint,Ex P1 the appellant was arrested on the next day and remanded to judicial custody. Whereas as per Ex.P9 (the documents relating to the recording of statement u/s.164 Cr.P.C.) the request had been given by P.W.7 to the Judicial Magistrate for recording statements u/s 164 Cr.P.C since she found discrepancies,variations and contradictions in the statements of the victim P.W.1, her mother P.W.2 and her elder maternal aunt (not examined). Thus clearly revealing that there had been some confusion right from the beginning and the statement of the witnesses were not cogent. Only on 13.02.2014 for the first time P.W.1 had implicated one Mani and Muthu (A2 & A3) stating that they along with the appellant caught hold of her and gagged her mouth and took her behind the bush and that she was unable to raise her voice and they fully undressed her and that her mother and aunt had come in search of her and that they searched with a torch light and saw the appellant lying on her and that on seeing her 29/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 mother, the appellant left his dhothi and trouser and ran away and the other accused also ran away and that she was semi-concious and her father and mother took her to Alva Hospital and from there she was referred to Pollachi Government Hospital, where she was medically examined. She had further stated that the people in her village were saying that she was in speaking terms with the appellant and that she had not seen Harishankar in her village before the occurrence. She had further stated that the first complaint was not exactly as what she told the police. In Ex.P1, though P.W.1 had stated that she was in talking terms with the appellant for the past one year, in the statement recorded u/s.164 Cr.P.C. she has denied knowing him. In Ex.P1 she had also stated that she had seen her younger brother speaking to the appellant, whereas in the 164 Cr.P.C. statement she has given a contradictory statement. Further, in Ex.P.1, P.W.1 has stated that she had completed her X Std and after that she was working as a machine operator in a pencil company for two years, whereas in the Court she had stated that she had studied upto IX Std. in Kettimallanpudur Government School and that she failed twice and thereafter she did not continue her studies further. Further it is the admitted case of the prosecution after the occurrence and before her examination in Court she 30/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 was given in marriage to her cousin. Thus the statement of PW1 was full of embellishment, self contradictions and further improvements, thereby making it suspicious and doubtful.
25.Now coming to the evidence of P.W.2, she had stated that P.W.1 had called her to accompany her to the public toilet and that since guests were in the house, she could not accompany P.W.1 and thereby P.W.1 she went to the toilet alone. It is her further evidence that since P.W.1 did not return after sometime she along with her elder sister (not examined) had gone to the place of occurrence and when they reached near the toilet she heard somebody speaking in a low voice and when she had focussed the torch towards the north side of the toilet, she had seen her daughter lying naked near the water tank and that the appellant was lying on her and the other accused were holding her hands and legs and that she pulled the appellant by his hair and he pushed her and ran away and that she raised alarm and that her elder sister, younger sister and other relatives and villagers came there and that she clothed her daughter with the dhothi of her husband and later took her daughter to Pollachi Government Hospital and gave a complaint to one Selvaraj, a police man. Further suggestions 31/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 have put to her that she and the appellant belong to different communities and that engagement was fixed for her daughter with one Lakshman prior to the occurrence. Though P.W.2 had denied the suggestion with regard to the engagement being conducted prior to the occurrence, she had admitted that the marriage was performed even prior to commencement of trial since her daughter crossed 18 years. Further, she had admitted that her daughter was studying in Kettimallanpudur Government School till IX Std. and that she failed for two years and did not study further. The evidences of P.W.1 and P.W.2 are not only self contradictory, they are contrary to the statements of each other.
The deposition of P.W.1 with regard to the incident is unbelievable. Though she had stated that she had been subjected to repeated penetrative sexual assault, that too under force, having dragged by three persons, the evidence of the doctor who has examined her immediately after the occurrence does not support her version. Though injury on the body of the person of the victim is not a sine qua non to prove the charge of rape and the absence of injuries on the person would not by itself sufficient to discredit the prosecution case, this Court taking into consideration the 32/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 attended circumstances finds that the evidence of P.W.1 and P.W.2 smacks credence. As per the prosecution there were houses close to the place of occurrence and it is the admitted case of P.W.1 and P.W.2 that immediately after the occurrence, the relatives particularly, the brothers and father of the victim and other public in the village had rushed to the place and witnessed the occurrence whereas none of them have been examined by the prosecution to corroborate the evidence of P.W.1 and P.W.2, thereby creating doubt and dent in the prosecution case.
26.Now coming to the charges against the appellant, the petitioner has been charged for the offenes u/s. 3 & 4 of POCSO Act, 2012 and in this case. A bounden duty is cast on the prosecution to prove that the victim is a person below the age of 18 years, falling within the meaning of Section 2 (d) of the POCSO Act, 2012. In this case, admittedly, as per the documents Ex.P1 (Statement of the victim), Ex.P3 (Accident Register of the victim), Ex.P5 F.I.R. and Ex.P9, the statement recorded u/s. 164 Cr.P.C. from the victim, the age of the victim is shown as 18 years. Even in the requisition letter which forms part of Ex.P.9, the age of the victim is stated to be 18 years. Admittedly, the victim has studied upto IX Std in a 33/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 Government School and that having failed for two years she had discontinued her studies and thereafter she had worked as a machine operator in the pencil factory for two years. In such circumstances, the prosecution ought to have proved the age of the victim to be below 18 years by letting in statutory evidence as per Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The prosecution ought to have marked the birth certificate or the school leaving certificate through the witnesses as required under law. In the event of non existence or availability of documents, the victim ought to have been subjected to medical examination either by conducting Radiological examination or ossification test.
It is relevant to refer to judgment of the Hon'ble Apex Court in Mahadeo S/o.Kerba Maske V. State of Maharashtra and Another reported in (2013) 14 SCC 637, wherein, the Hon'ble Apex court has held that primarily the age has to be determined based on matriculation or equivalent certificate or date of birth certificate from school first attended or birth certificate issued by Corporation / Municipal authorities or Panchayat and only in the absence of such documents, medical opinion can 34/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 be sought for. The above view has been confirmed by the Hon'ble Apex Court in a later decision in State of Madhya Pradesh V. Anoop Singh reported in (2015) 7 SCC 773. In this case neither the procedure under the Statutory Rules have been followed nor the age has been determined by medical examination. No other legal evidences have been let in to prove the age except the evidence of P.W.4, who had stated that the age of victim is 17 years based on P.W.1's oral statement. Strangely in this case a request had been made to the court to subject PW1 for medical examination for ascertaining the age and for reasons best known the medical examination had not been conducted.
27.At this point this Court deems it fit to refer to the judgments relied on by the counsel for the appellant.
In Sham Singh V. State of Haryana reported in (2018) 18, SCC 34, wherein the Hon'ble Supreme Court of India has held as under:-
“6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant 35/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the 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 court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 :
1996 SCC (Cri) 316] (SCC p. 403, para 21).]
7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of 36/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725] .)
8. It is also relevant to note the following observations of this Court in Raju v. State of M.P. [Raju v. State of M.P., (2008) 15 SCC 133 : (2009) 3 SCC (Cri) 751] , which read thus: (SCC p. 141, paras 10-11) “10. The aforesaid judgments [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725] lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more 37/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 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.
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.” We have assessed the entire material on record to satisfy our conscience once again, keeping in mind the aforementioned set principles in such matters.” 38/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016
28.Further in Rai Sandeep v. State (NCT of Delhi) reported in (2012) 8 SCC 21, the Hon'ble Apex Court finding that neither any independent witness nor any medical evidence was supporting the prosecution case and that the FSL report also was not supporting the case and further finding variation in the prosecutrix's version about giving complaint, holding that the prosecutrix had failed to pass tests of (sterling witness) had acquitted the accused. It is relevant to refer to following paragraphs:-
“22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance 39/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”
29. In Mirthagai Ali v. State reported in (2007) 1 LW (Cri) 18 , it 40/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 was held that “the evidence 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.
30. In Sadashiv Ramrao Hadbe v. State of Maharashtra reported in (2006) 10 SCC 92) the Honourable Supreme Court, while reiterating that in a rape case, 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:-
“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 41/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 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.”
31. In Munna v. State of MP reported in (2014) 10 SCC 254 , 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 42/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 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.”
32. In Narayan v. State of Rajasthan reported in (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.
33. In a recent decision of this Court reported in Govindan v. State reported in (2019) 3 Mad LJ (Cri) 548, 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:-
43/51
https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 “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.”
34.Now having analysed the evidence on record in consonance with the above judgments, this Court comes to a concrete conclusion that P.W.1 and P.W.2 are not witnesses of sterling quality, There are inherent infirmities in their statements creating doubts about their veracity and thereby their evidence lack credence. The trial Court, erred in believing the evidence of P.W.1 and P.W.2. This court also takes note of the fact that as per the evidence of P.W.1, P.W.2 and P.W.7, the appellant and the victim belong to two difference communities and that immediately after the arrest of the appellant and even before the trial could commence, P.W. 1 was given in marriage to her own cousin. Further in this case as stated above the prosecution has failed to prove that the victim is a child and 44/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 thereby failed to prove the charge against the accused u/s. 3 & 4 of the POCSO Act, 2012. However, dehors the evidence regarding the age if in the event if the prosecution was able to prove that the victim was subjected to rape this Court could in the alternate convict the appellate for offence u/s.376 IPC. Apart from the above, in this case, based on the further statement of P.W.1, A2 and A3 were also charge sheeted along with the appellant for offences u/s. 3 & 4 of the POCSO Act, 2012 r/w Section 34 IPC for having abetted the appellant in the offence. However, trial Court disbelieving the evidence of P.W.1 had acquitted A2 & A3.
The maxim “Falsus in uno, falsus in omnibus” stands disapproved in our country in the context of character of the witness if the Court finds some falsehood in their testimony. In such cases, the Court can split up and grant benefit to some co-accused while maintaining conviction of another. However, when the entire testimony of the witness is found undependable and unreliable in all aspects, the evidence cannot be split up for grant of benefit to some co-accused while maintaining conviction of another. In this case, the evidence of P.W.1 and P.W.2 is wholly unreliable and thereby the trial Court committed an error by splitting the evidence and giving benefit to A2 and A3 while convicting the appellant 45/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 on the same set of evidence.
35.It is relevant to refer to the judgment of the Hon'ble Apex Court in Ram Laxman Vs. State of Rajasthan reported in (2016) 12 SCC 389 , which reads as follows:-
“6. Strangely, the High Court disbelieved Ganesh qua the other co-accused and granted them acquittal but accepted his testimony in respect of the appellants by explaining that the maxim “falsus in uno, falsus in omnibus” stands disapproved since long as per the judgment of this Court in Ugar Ahir v. State of Bihar [Ugar Ahir v. State of Bihar, AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .
7. In our considered view the Division Bench committed a serious error in relying upon the aforesaid judgment. No doubt, it is an established principle of criminal law in India that only on account of detecting some falsehood in the statement of a witness who is otherwise consistent and reliable, his entire testimony should not be discarded. It is equally settled law that if a witness is found undependable and unreliable his evidence cannot be split to grant benefit to some co-accused while maintaining conviction of another when in 46/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 all respects he stands on the same footing and deserves parity.”
36.In Digamber Vaishnav and another Vs. State of Chattisgarh reported in (2019) 4 SCC 522 , the Hon'ble Apex Court has held as:-
“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 facts 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”.
37.Further for the reasons stated above, in the light of the decisions cited and the analysis of the evidence this Court is of the considered 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 47/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 serious infirmities and lack of legal credence to merit acceptance of this court. Having regard to the material on record, this court finds that there is every possibility of false implication of the accused in this matter. The evidence of the victim/prosecutrix and her mother PW 2 are unreliable, untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. 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 do not deserve the merit of acceptance or approval with regard to the glaring infirmities and illegalities apparent on the face of record resulting in serious and grave miscarriage of justice to the appellant. The prosecution has miserably failed to prove its case beyond reasonable doubt and the trial Court erred in convicting the appellant/ accused on wrong appreciation of facts warranting interference of this Court to set aside the impugned judgment.
38.In the result, the criminal appeal is allowed and the impugned judgment of conviction and sentence imposed on the appellant / accused 48/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 by the trial Court in Spl.C.C.No.24 of 2014 vide Judgment dated 21.11.2015 are hereby set aside. The appellant / accused is acquitted of all charges levelled against him and since the appellant is in prison, he is directed to be released and set at liberty forthwith if he is otherwise not wanted in any other case. Fine amount, if any paid, shall be refunded to him.
28.04.2021 Index:Yes/No Web:Yes/No Speaking/Non Speaking kas Note: Issue order copy today To
1. The Sessions Judge Mahila Court Coimbatore
2.The Superintendent Central Prison Coimbatore 49/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016
3. The Inspector of Police Anamalai Police Station (All Women Police Station, Pollachi) Coimbatore District
4.The Public Prosecutor High Court of Madras Chennai 600 104 50/51 https://www.mhc.tn.gov.in/judis/ Crl.A.No.147 of 2016 A.D.JAGADISH CHANDIRA, J.
kas Pre-Delivery Order in Crl.A.No.147 of 2016 28.04.2021 51/51 https://www.mhc.tn.gov.in/judis/