Madras High Court
M. Munusamy vs State Rep. By on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Criminal Appeal No.259 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.06.2025
CORAM
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No. 259 of 2016
---
M. Munusamy .. Appellant
Versus
State Rep. by
The Inspector of Police,
Gingee Police Station,
Gingee, Villupuram District.
Crime No.36/2010 .. Respondent
Criminal Appeal had been filed under Section 374 (2) of Criminal
Procedure Code, to call for the records in S.C. No. 275 of 2012 on the file of
the learned Sessions Judge, Fast Track Mahila Court, Villupuram and set aside
the conviction and sentence vide Judgment dated 18.02.2016.
For Appellant : Mr. S. Saravana Kumar
For Respondent : Mrs. G.V. Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal had been filed to set aside the Judgment dated 18.02.2016 passed in S.C. No. 275 of 2012 by the learned Sessions Judge, Fast Track Mahila Court, Villupuram. By the said Judgment, the Appellant/Accused was convicted for the offences under Sections 366, 376 (2) 1/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016
(f), 377 and 506 (ii) of IPC and sentenced to undergo varied period of sentences.
2. The brief facts, which are necessary for the disposal of this Criminal Appeal, are as follows:-
2.1. The victim is a minor girl aged about 11 years at the time of incident. She was studying VI Standard in St. Michael School, Gingee. The prosecution came to be launched against the Accused, at the instance of P.W-1, who is the uncle of the victim girl. According to P.W-1, on 22.01.2010 at about 5.00 p.m. he was standing in front of the Tea Stall next to State Bank of India in the road leading to Thiruvannamalai. At that time, he saw the victim girl riding pillion in the two wheeler driven by the Accused. When P.W-1 intended to question it, the two wheeler zipped past. P.W-1 was under the impression that the Accused would drop the victim girl in her house, enroute. However, on the same day his sister complained to P.W-1 that the Accused had taken the victim girl to the forest area in Valuppamparai, Saanikulam, Tiruvannamalai and committed sexual assault. Immediately, P.W-1 and his sister took the victim girl to Government Hospital, Gingee from where she was referred to Government General Hospital, Villupuram for better treatment. On 24.01.2010, P.W-1 had given a written complaint to Gingee Police Station based on which 2/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 the case in Crime No. 36 of 2010 was registered for the offences punishable under Section 376 of Indian Penal Code. Ex.P-13 is the First Information Report.
2.2. On receipt of Ex.P-13, P.W-16, Inspector of Police, Gingee proceeded to the place of occurrence on 25.01.2010 at 7.00 a.m. and prepared a rough sketch in the presence of witnesses Ramu-P.W-6 as well as Kanthan-
P.W-8. He also drew an observation mahazar in the presence of same witnesses. On the same day, he recorded the statement of Kumaran-P.W-1, the victim girl-P.W-2, Rukmani-P.W-3, Durairajan-P.W-4, Elumalai-P.W-5 and Murugan-P.W-7. During such investigation, he received information about the whereabouts of the Accused and accordingly, he went in search of the Accused and arrested him near Melkalavai Koot Road in the presence of witnesses Ananthan-P.W-9 and Karthikeyan-P.W-10. On the basis of the confession statement of the Accused, P.W-16 recovered the Motorcycle used by the Accused for commission of offence. From the two wheeler front tank pouch, the dress which the Accused used during the commission of offence, was recovered in the presence of the same witnesses under a Mahazar. Thereafter, the Accused was sent to remand. P.W-16, after remand of the Accused, gave a requisition letter to the Court seeking to send the Accused for medical examination. Accordingly, the Accused was examined by the Doctor 3/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 Sivakumar, P.W-13 with respect to his potential to commit the sexual offence. Similarly, the victim girl was also subjected to medical examination by the Doctor. At this stage, P.W-16 was transferred and in his place, P.W-17, Inspector of Police, took up the investigation in this case.
2.3. In continuation of the investigation, P.W-17 collected the wound certificate issued by Dr. K. Balagurubalan, P.W-11 and also recorded the statement from him. He also recorded the statement of P.W-13, Dr. Sivakumar and P.W-14, Dr. Dhanalakshmi, who had given treatment to the victim girl. In her statement, Dr. Dhanalakshmi had stated that there are bite marks on the body of the victim girl which would have been caused through bite. After conclusion of his investigation, P.W-17 had filed the charge sheet against the Accused for the offence under Sections 366, 506 (ii), 376 (2) (f) and Section 377 of Indian Penal Code.
2.4. On receipt of the final report along with the relevant records, the learned Judicial Magistrate, Gingee had taken the case on file as PRC. No.15 of 2012 for the offence under Sections 366, 506 (ii), 376 & 377 of IPC. The copies of records relied by the Prosecution were furnished to the Accused under Sections 207 of Cr.P.C. As the offence under Section 376 of IPC is triable by the Court of Sessions, the learned Judicial Magistrate, Gingee submitted the entire records to the learned Principal Sessions Judge, 4/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 Villupuram under Sections 209 (a) of Cr.P.C., and the case was taken on file in the Principal Sessions Court, Villupuram as S.C.No.275 of 2012 and subsequently made over to the Sessions Judge, Fast Track Mahila Court, Villupuram for disposal accordingly to law. After careful consideration of records, the learned Sessions Judge framed charge against the Accused for the offences punishable under Sections 366, 376 (2) (f), 377 and 506(ii) of IPC. The charges were read over and explained to the Accused in Tamil and the Accused denied the charges and pleaded not guilty. Therefore, trial was ordered. During trial, the Prosecution examined 17 witnesses as P.W-1 to P.W- 17 and marked 15 documents under Ex.P-1 to Ex.P-15 besides material objects as M.O-1 to M.O-3. On the side of the defense, the Accused examined himself as D.W-1 and marked two documents under Ex.D-1 & Ex.D-2. After hearing the arguments of the learned Counsel for the Appellant and the learned Public Prosecutor, the learned Sessions Judge, Fast Track Mahila Court, Villupuram had convicted the Accused for the offence under Section 366 of IPC and sentenced him to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.1000/- and in default to undergo Simple Imprisonment for three months. For the offence punishable under Section 376 (2) (f) of IPC the Accused was sentenced to undergo Rigorous Imprisonment for Ten years and to pay a fine of Rs.1000/- in default to undergo Simple Imprisonment for three 5/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 months. For the offence punishable under Section 377 of IPC the Accused was sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.1000/- in default to undergo Simple Imprisonment for three months. For the offence punishable under Section 506(ii) of IPC the Accused was sentenced to undergo Rigorous Imprisonment for six months and to pay a fine of Rs.500/- in default to undergo Simple Imprisonment for fifteen days. The above sentences were ordered to run concurrently. It was also directed that the Accused is entitled to set off under Section 428 of Cr.P.C., 2.5. Aggrieved by the aforesaid Judgment dated 18.02.2016 passed in S.C. No. 275 of 2012, the Accused is before this Court with this Criminal Appeal.
3. Mr. S. Saravana Kumar, learned Counsel for the Appellant would submit that P.W-1 in his evidence had deposed that on 22.01.2010 at about 5.30 p.m., he saw the victim girl riding pillion in the two wheeler driven by the Appellant/Accused. However, the complaint under Ex.P-1 was given after a delay of 3 days on 24.01.2010. This delay in giving the complaint had not been properly explained by the prosecution. Thus, the First Information Report came to be registered after adequate deliberations to victimise the Appellant. Further, as per the deposition of P.W-2 and P.W-3, an intimation was sent from 6/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 Gingee Hospital as well as Government Head Quarters Hospital on 22.01.2010 and 23.01.2010. However, on the basis of such intimation, the investigation was not conducted nor the victim was examined in the hospital. The prosecution had suppressed the so-called intimation given by the hospital on 22.01.2010 and 23.01.2010 and this gives rise to a suspicion in the nature of case projected by the prosecution. The Appellant also filed an application to produce the accident report from Mundiyambakkam Hospital, but no such report has been issued by the Mundiyambakkam Hospital.
4. The learned Counsel for the Appellant further submitted that the trial Court failed to see that the Accused was not properly identified by the prosecution witnesses. P.W-1 to P.W-4 had given contradictory statement with regard to identity of the Accused. In Ex.P-6-Accident Report of the victim dated 22.01.2010 it is clearly mentioned about the status of the Accused as “unknown person”. P.W-2 had stated that only after the photo of the Accused was published in newspapers, she identified the Accused. P.W-2 to P.W-4 have categorically stated that the Accused was identified only in the Court while taking evidence. Even with regard to M.O-3 - Vehicle, P.W-2 had narrated that it was a TVS 50 but what was confiscated is a Black Colour Hero Honda Splender Motor Cycle.
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5. The learned Counsel for the Appellant submitted that Prosecution had to prove the guilt of the Accused beyond all reasonable doubt. The Accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond all reasonable doubt. The law does not permit the Court to convict the Accused based on suspicion or on the basis of preponderance of probability. The case of the Prosecution should rest on its strength, not on the absence of explanation or plausible defense of the Accused.
6. In support of his contention, the learned Counsel for the Appellant relied on the ruling of the Hon'ble Supreme Court in the case of Toran Singh Vs. State of Madhya Pradesh reported in (2002) 6 SCC 494 wherein the Hon'ble Supreme Court has held as follows:
“7. The substantial portion of the Judgment of the trial Court is contained in the narration of the Prosecution story and referring to the Prosecution Witnesses. We hardly find evaluation, analysis or scrutiny of evidence in a proper perspective objectively. With regard to serous infirmities pointed out by the defense raising doubt about the Prosecution case, the learned Sessions Judge has simply stated that he did not agree with such contentions. The trial Court, in our view, was not right and justified in lightly brushing aside the infirmities and improbabilities brought out from the Prosecution case, that too when the entire Prosecution case rested on the sole eye- witnesses, who was interest being the son of the deceased; more so in the absence of any corroboration of his evidence by other 8/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 independent evidence on material aspects of the Prosecution case. It is unfortunate that the High Court has simply endorsed the conviction and sentence passed by the trial Court without objectively and satisfactorily scrutinizing and examining the evidence as a first Court of Appeal except narrating the Prosecution case and referring briefly to the evidence of a few Prosecution case and referring briefly to the evidence of a few Prosecution Witnesses. The reason recorded by the High Court is to be seen in Para 10 of the Judgment which reads:-
“Thus in the absence of plausible defence by the Appellant and the fact that the deceased had stayed in the house of the Appellant and in the absence of the explanation as to the cause of death, the Appellant is liable to be convicted. Deposition of P.W-1 Puran inspires confidence and finds support from the medical evidence.”
7. The learned Counsel for the Appellant further submitted that the First Information Report is belated and the reason for the delay has not been explained by the prosecution. The significance for registration of the FIR at the earliest are twofold; 1) Criminal process is set in motion and is well documented from the very start and 2) The earliest information received in relation to the commission of cognizable offence is recorded so that there cannot be any embellishment, etc., Here, in this case, as per the evidence of P.W-2, the alleged victim girl, in her cross-examination, had clearly stated that br";rp muR kUj;Jtkidapy; ehd; ,Ue;jnghJ nghyPrhu;
m';nf te;jhu;fs;/ ehd; brhy;y brhy;y nghyPrhu;
vGjpf;bfhz;lhu;fs;/ me;j thf;FK:yj;jpy; vjpupia Fwpj;J
ahnuh bgau; bjupahjtu; vd;W ehd; brhy;ypa[s;nsd;/ vd;
mg;gh bra;jpjhis xU thuk; fHpj;Jf;bfhz;L te;J fhl;oa nghJ jhd; vdf;Fk; vd; mk;kh mg;ghtpw;Fk; vjpupia Fwpj;J 9/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 bjupa te;jJ/ However, as per evidence of P.W-3 in her cross- examination she has stated that br";rp muR kUj;Jtkidapy;
nghyprhu; vd; kfis kl;Lk; jhd; jdpahf cl;fhu itj;J
tprhupj;jhu;fs;/ vd;id tprhupf;ftpy;iy
8. The learned Counsel for the Appellant further contended that the victim was admitted in the Hospital on 23.01.2010 in the early Morning at 12.10 am. But as per the evidence of P.W-14 in her cross-examination, she had stated as follows:-
n$hjp kPdht[k; mtUila jhahUk; ,ut[ 12 kzpf;F nky; vd;dplk; nky; rpfpr;irf;fhf nghyp!; ,y;yhky; te;jjhy; ehd; cs;Siw nky;
kUj;Jt mjpfhupaplk; ehd; nkw;go egu;
rpfpr;irf;fhf te;jij bghWj;J bjuptpj;Js;nsd;/ ehd; nkw;go n$hjpkPdhit Ma;t[ bra;tjw;F Kd;ghfnt mtUila jhahu; nghyPrhuplk;
mtUila cilfis bfhLj;Jtpl;ljhf Twpdhu;/ n$hjpkPdhtpd; jhahiu ehd; tprhupf;ftpy;iy/
9. From the above depositions of P.W-1 to P.W-3 and P.W-14, it was stated that the Police Officer had recorded the statement from P.W-1 and P.W-2 and started the investigation. On the contrary, the investigation in this case commenced only after registration of First Information Report on 24.01.2010.
P.W-16, Inspector of Police, said to have commenced the investigation only on 10/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 25.01.2010 at 7.00 a.m. As per the ruling of the Hon'ble Supreme Court once the investigation started by the Police Officials, any information received by them subsequently can be treated as statement under Section 161 Cr.P.C.
10. As per the evidence of P.W-1, it is clearly stated that the Complaint under Ex.P-1 was prepared by the Police. In his cross-examination, he had deposed as follows:-
24/01/2010 md;W tpGg;g[uk; muR
kUj;Jtkidapy; vd;d eilbgw;wJ vd;W vdf;F
bjupahJ/ br";rp fhty;epiyaj;jpy; ehd; brhy;y
brhy;y me;j g[fhu; kDtpid nghyPrhu; vGjp
bfhz;lhu;fs;/ m/rh/M/1 g[fhu; nghyPrhuhy;
vGjg;gl;lJ jhd;/
11. On the contrary, the Inspector of Police/Investigation Officer/P.W- 16 who commenced the investigation in this case, had stated in his cross- examination that the Complaint was not prepared by the Police. The relevant portion of the deposition are as under:-
“g[fhiu th';fpaJ ehd; jhd;/ ehd; jhd;
g[yd; tprhuizf;F vLj;Jf; bfhz;nld;/ m/rh/1
Fkud; g[fhiu vGjpf; bfhz;L te;jhuh my;yJ
fhty; epiyaj;jpy; itj;J vGjg;gl;ljh vd;W
brhd;dhy;. fhty; epiyaj;jpy; itj;J
vGjg;gltpy;iy/ m/rh/1 bfhLj;j g[fhuhdJ
fhty;epiyaj;jpy; brhy;ypf; bfhLj;J vGjg;gl;lJ
vd;W brhd;dhy; rupay;y/”
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12. Thus, the deposition of P.W-1 and P.W-16 are contrary to each other as to who had written the complaint. Once the FIR is doubtful, the entire Prosecution case became doubtful. In this context, the learned Counsel for the Appellant relied on the following rulings:-
1) AIR 1981 SC 1230 in the case of Selvi and another Vs. State of Tamil Nadu.
2) (2012) 2 MLJ (Crl.) 494 in the case of Kumar @ Thambi and others Vs. State By Inspector of Police, Dindigul Taluk Police Station, Dindigul District.
13. It is the submission of the learned Counsel for the Appellant that the Appellant had been falsely implicated in this case by the maternal uncle of the victim. There had been money transaction between the maternal uncle of the victim and the Accused employed as Mason in Chennai. While working at Chennai both had subscribed the Chit. The maternal uncle of the victim had to pay the subscription for some months to the person who had conducted the Chits towards repayment of the chit amount taken on bid. When this was questioned by the person who conducted the chits, the Accused in this case had repaid it and had contacted the maternal uncle to repay the amount. That was 12/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 paid on his behalf by the Accused. Therefore, there was an enmity between them. If really, the Accused was the person involved in this crime and victim and her relatives had seen the Accused, they could have while giving the Complaint informed the name of the Accused. The FIR and Complaint proceeds with the history of the case as unknown person. While so, subsequently the FIR was registered implicating the name of the Accused by the maternal uncle of the victim. As per FIR, on 22.01.2010 at about 5 pm., the Complainant saw the victim girl, when she was allegedly abducted by the Appellant at Thesur Pettai Road, when the victim girl had returned from school, the complainant also knows about the name and the residential address of the Accused but he did not disclose the name either to the victim girl or to her parents P.W-3 and P.W-4 or to the Police till the registration of the FIR on 24.01.2010. Even in the Government Hospital, Gingee where the initial treatment was taken by the victim girl, she had not disclosed the name of the Accused and identification of the Accused.
14. The abnormal conduct of P.W-1 to P.W-4, as per the evidence of P.W-1, the alleged sexual assault was disclosed by P.W-3 at about 6 or 7 pm., on 22.01.2010 even though he was very well aware about the identity of the Accused and the residential address of the Accused. P.W-1, who is the 13/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 maternal uncle of victim girl or P.W-2 the victim and P.W-3 and P.W-4 the parents of the victim had not made any quarrel or any commotion in the village. It is very abnormal. This also lead to suspicion. P.W-1 and the Appellant are known to each other and also P.W-1, P.W-7 and Appellant were working in the same place. But there is no explanation by the Prosecution that
a) why P.W-1 had not informed the name of the Accused to the parents of the victim. b) Why the P.W-1 had not disclosed the Appellant's name in the course of Police enquiry. The Prosecution had to explain. P.W-2 and her parents did not take any interest to know about the progress of the case. They were least bothered about whether the Accused was arrested or not arrested, that itself creates doubt in the mind of the Court regarding the allegations levelled against the Appellant. P.W-1, P.W-2 in her cross-examination stated as follows:-
22/01/2010 md;W 7/30 my;yJ 8 kzpf;F vd;id nghyPrhu; tprhuiz bra;jhu;fs;/ mg;nghJk; vjpup KDrhkp vd;w tptuj;ij nghyPrhuplk; ehd; brhy;ytpy;iy/ 22/01/2010 md;W nghyPrhu; vd;id tprhupj;jnghJ vjpupia bjupa[k;
vd;Wk;. Twpndd;/ Mdhy; mtu; bgaiu
Twtpy;iy/ br";rp nghyPrhu; ehd; brhd;dij
vGjp bfhz;lhu;fs; Mdhy; vd;d vGjpf;
bfhz;lhu;fs; vd;W bjupatpy;iy/
///////////////////// vjpupia vg;nghJ ifJ
bra;jhu;fs; vd;Wk;. ve;j r{H:;epiyapy; ifJ
bra;jhu;fs; vd;Wk; bjupahJ/
15. The evidence of P.W-2 is that ehd; kUj;Jtkidapy;
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,Ue;jtiu m/rh/1 vd;dplk; rk;ge;jg;gl;l egu; bgau; KDrhkp vd;Wk; mtu; Fwpj;j tptuk; Fwpj;Jk; vd;dplk; brhy;ytpy;iy/
16. P.W-2 had given evidence only on the instigation of P.W-1 and the fake social organisation in the name and style of Sasi Enterprises Tindivanam represented by Lalitha. It is a settled law that the Prosecutrix evidence itself is sufficient to convict the Accused if it inspires confidence and found trustworthy but in this case the evidence of P.W-2 does not inspire confidence of the Court and does not remain trustworthy to implicate this Appellant as Accused for the reasons that a) P.W-2 had made statement to P.W-11/Doctor, Government Hospital, Gingee at about 8.45 pm., on 22.01.2010 on the date of occurrence that on the way to Sanikulam one known person had committed rape. In contra, she has made another statement before the another Doctor/P.W-14 at Government Hospital, Villupuram under Ex.P-9, that she was abducted by one unknown person in TVS 50 on the way to Thiruvannamalai.
She was subjected to sexual assault. As per Ex.P-9 the statement of the victim girl about the incident before P.W-14 is :-
br";rp Tl;L nuhLf;F bry;Yk; tHpapy;
jdpahf ele;J te;J bfhz;oUe;jnghJ jdf;F
mwpKfkpy;yhj Mz; egu; xUtu; TVS 50y; Vw;wpf;
bfhz;L jpUtz;zhkiyf;F bry;Yk; tHpapy;
bfhz;L brd;wjhf Twfpwhu;/
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17. The evidence of P.W-11, in the examination-in-chief states that, “22/01/2010e; njjp ,ut[ 8/40 kzpastpy; ehd; gzpapypUe;j nghJ n$hjpkPdh taJ 11 vd;gtiu mtUila jhahu;
miHj;J te;jhu;/ mtiu rhzpf;Fsk; nghFk; tHpapy; mtiu xU bjupe;j egu; fw;gHpf;fg;gl;ljhf mtu; Twpdhu;/”
18. In her examination-in-chief, she had stated that when she was abducted, it was noticed by P.W-1 and P.W-5 and after the alleged sexual assault, she was taken back and dropped at Thesur Pettai Road, Alanpoondi Village and the Accused showed one house as if it belonged to him but the said fact was not informed to the Police or to the parents. The evidence of P.W-2 reads as follows:-
Myk;g{z;oapy; njtjhdhk;ngl;il nuhl;oy;
,wf;fptpl;L tpl;L ntbwhU tPl;il mtu; tPL vd;W fhz;gpj;jhu;///////////////// m/rh/1 kw;Wk; xU VGkiy vd;gtu; vjpup vd;id nkhl;lhu; irf;fpspy; itj;J flj;jpr;
bry;Yk;nghJ vd;id ghu;j;jhu;fs;/
19. In her cross-examination stated that vjpup mtUila tPLd;D fhl;oa tPl;oid ehd; nghyPrhuplk; fhl;ltpy;iy/
20. The evidence of P.W-14/Dr.Dhanalakshmi in her chief- 16/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 examination stated that mtu; jd;id 22/01/2010e; njjp khiy 4/30 kzpastpy; mwpKfkpy;yhj Mz;egu; xUtu; o/tp/v!; 50y; te;J rfhak; rhu; gzj;ij tpl;Ltpl;L brd;Wtpl;lhu; vd;Wk;. mij jUtjw;F jd;id miHj;jhu; vd;Wk;. gpd;du; jd;id o/tp/v!;50y; Vw;wpf;bfhz;L jpUtz;zhkiy nghFk; tHpapy; jpUtz;zhkiy rhiyapy; miHj;J brd;whu;/
21. The same was corroborated by other officers, P.W-16 and P.W-17. The cross-examination of P.W-16 reads as follows:-
tpGg;g[uk; muR kUj;Jtu; tpgj;J gjpntl;oy;
vjpup mtiu otpv!; 50 thfdj;jpy; Vw;wpr;
brd;wjhf Twpajhf gjpt[ bra;Js;shu; vd;W
brhd;dhy; rhpjhd;/
22. But the victim girl/P.W-2 easily identified the vehicle in the Court and distinguished it as a motor cycle from her earlier version of TVS 50. The relevant portion of cross-examination of P.W-2 reads as follows:-
ehd; jw;bghGJ 10tJ tFg;g[ goj;J tUfpnwd;/ vd;dplk; fhl;lg;gLk; thfdk; otpv!;
50 thfdk; MFk;/ mJ v/j/rh/M/1 Mf jhf;fyhfp FwpaPL bra;ag;gLfpwJ/ vd;dplk; fhl;lg;gLtJ nuhnfhz;lh thfdk; MFk; mJ v/j/rh/M/2 jhf;fyhf FwpaPL bra;ag;gLfpwJ/
23. With regard to the register number of the vehicle P.W-1 has not mentioned the registration of the vehicle number. However, in his cross- 17/35
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24. P.W-5 and P.W-7 were projected by the Prosecution to identify the Accused along with victim girl and vehicle. However, their testimony did not support the Prosecution case. Accordingly, the learned Counsel for the Appellant/Accused prayed for allowing this appeal.
25. In support of his contention, the learned Counsel for the Appellant relied on the following Judgments:-
25.1. In the case of Rahul Vs. State of Delhi, Ministry of Home Affairs & Another reported in 2023 SAR (Cri) 115 it has been held as follows:-
“The Supreme Court put view that “However, the Prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the Accused, through involved in the heinous crime go unpunished or acquitted, a king of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the 18/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 Accused on the basis of moral conviction or on suspicious alone-No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered – Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressure or otherwise (para 33)” 25.2. In the case of State of Uttar Pradesh Vs. Ram Veer Singh and Ors. reported in 2007 (13) SCC 102 the Hon'ble Supreme Court had held as follows:-
“ A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of the Accused.” 25.3. In the case of Phul Singh Vs. State of Haryana reported in AIR 1980 SCC 249 the Hon'ble Supreme Court had held as follows:
“Conviction of rape – Sentence- Accused aged 22 years and not a habitual offender – Sentence reduced from four years R.I to two years R.I.”
26. Mrs. G.V. Kasthuri, learned Additional Public Prosecutor vehemently objected to the line of arguments of the learned Counsel for the Appellant seeking acquittal. According to the learned Additional Public Prosecutor, the victim was examined as P.W-2 and she was aged 11 years on the date of occurrence. By the time when she was examined before the Court, she was 15 years old. Therefore, the alleged inconsistency in her deposition with regard to identity of the Accused or the description of the motor vehicle used for the commission of offence will not in any manner vitiate the case 19/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 projected by the prosecution.
27. The learned Additional Public Prosecutor invited the attention of this Court to the evidence of P.W-2 regarding the stains in her dress. In her evidence, she had clearly stated that she was abducted by the Accused around 4.30 p.m. on his motorcycle and was raped by the Accused. Such version of P.W-2 was also corroborated by P.W-5/Independent witness and P.W-4 who is the father of the victim. Similarly, P.W-8 and P.W-9 did not deny the signatures in the confession statement and it is based on the confession statement the two-wheeler was recovered by P.W-16.
28. The learned Additional Public Prosecutor submitted that P.W-11 is the School Headmaster. He had deposed regarding the age of the victim girl. As per his evidence, the victim was aged 10 years and 7 months on the date of occurrence. P.W-14- Dr. Dhanalakshmi, in her evidence, had clearly stated that she issued the medical report of the victim under Ex.P-9 stating that there are teeth bite marks on the body of the victim girl. It is on the basis of the clear and unrebutted evidence let in by the prosecution witness, the Trial Court passed the judgment of conviction against the Appellant/Accused. The Prosecution proved the charges against the Appellant/Accused beyond any 20/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 reasonable doubt. The Judgment of the trial Court is well-reasoned and it has to be confirmed. Accordingly, the learned Additional Public Prosecutor prayed this Court to dismiss the Appeal.
29. By way of rejoinder to the submissions of the learned Additional Public Prosecutor, the learned Counsel for the Appellant submitted that P.W-5 and P.W-7 are own sister and classmate of the victim girl and therefore, their testimony may not be reliable. As per the evidence of P.W-2, it was a TVS 50 vehicle in which she was abducted by the Appellant/Accused. However, the Investigating Officer had seized and produced a Hero Honda vehicle and it disproves the testimony of P.W-1. P.W-11, the Doctor, who examined the victim on the same day within one hour of the alleged occurrence had in his medical report narrated the history of the case as spoken by the victim. Thus, the deposition of the prosecution witnesses are inconsistent with each other. Taking note of the above, the Trial Court had erroneously convicted the Appellant/Accused and he prayed for allowing this Appeal.
Point for consideration:
Whether the conviction recorded by the learned Sessions Judge, Fast Track Mahila Court, Villupuram in S.C.No.275 of 2012, dated 18.02.2016 is perverse and is to be set aside? 21/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016
30. Heard the learned Counsel for the Appellant/Accused and the learned Additional Public Prosecutor for the Respondent/State. Perused the Judgment passed by the learned Sessions Judge, Fast Track Mahila Court, Erode and the deposition of Prosecution witnesses viz., P.W-1 to P.W-17 and the documents under Ex.P-1 to Ex.P-15 and the deposition of Accused/D.W-1 and the documents under Ex.D-1 and Ex.D-2.
31. In a criminal case of this nature, the burden is heavy on the prosecution to prove the overt act against the Appellant/Accused. In such a proceeding, the Appellant/Accused is entitled to maintain stoic silence and it is always not necessary for him to examine himself as a witness. In this case, in order to clear the air of controversy surrounding him, the Accused/Appellant stepped into the witness box and brought to the notice of the Court the differences and disputes between him and P.W-1 which led to the registration of a false case against him.
32. On perusal of the records, it is found that the Accused in his deposition as D.W-1 had spoken to about the dispute with P.W-1-maternal uncle of the victim regarding subscription to a Chit at Chennai for Rs.5,000/- 22/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 per month. According to D.W-1, he is working as a Mason in Chennai. He further stated that he and P.W-1 have subscribed to a Chit for Rs.5000/- and P.W-1 had paid the chit amount of Rs.500/- for the first month. However, in the next month, P.W-1 wanted to avail the chit amount of Rs.5,000/-. For paying the chit amount, the Chit Subscribing Agent wanted D.W-1 to stand as surety for the amount of Rs.5,000/- to be paid to P.W-1. Accordingly, on the basis of surety given by D.W-1, P.W-1 was paid the chit amount of Rs.5,000/-. However, P.W-1 did not repay the chit instalments and therefore D.W-1 was constrained to pay the amount of Rs.500/- every month. He further deposed that two months thereafter, he saw P.W1- in the Tea Stall and demanded him to pay the amount, which he was made to pay. In this regard, there was a wordy quarrel between P.W-1 and D.W-1 and ultimately, P.W-1 stated that he will pay the amount in two months. On 24.01.2010 D.W-1 came from Chennai to Gingee and stayed in his relatives house and at that time, Police have swarmed his relatives house and apprehended him by stating that he had committed rape on a minor girl. Even though D.W-1 and his relatives protested, the Appellant/Accused was taken away by the Police and remanded him to judicial custody in connection with the registration of the case in Crime No. 36 of 2010.
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33. In the cross-examination of D.W-1, he reiterated that due to non- payment of chit amount by P.W-1, there was dispute between them. It was also stated that a false case had been foisted against him by the Police authorities at the instigation of P.W-1.
34. On perusal of the deposition of P.W-1, he had stated that he saw the Accused driving the motor cycle in which the victim girl was riding pillion. He further deposed that a few hours later, his sister, P.W-3 had stated that the Accused had committed rape on the minor victim girl. Therefore, P.W-1 to P.W-3 have proceeded to the Government Hospital, Gingee, from where, the victim girl was referred to the Government Head Quarters Hospital, Villupuram. Thus, it is evidently clear that in his deposition as P.W-1, he had clearly stated that it was the Appellant/Accused who had abducted the minor victim girl in his two wheeler. However, the First Information Report in this case came to be registered only on 24.01.2010 at the instance of P.W-1. There is no worthy explanation forthcoming for the delay in registration of the First Information Report. Further, it is seen that immediately after the alleged occurrence, P.W-1 along with P.W-3 taken the victim to Gingee Government Hospital from where she was referred to Government Medical College Hospital, Mundiambakkam, Villupuram where Dr. Dhanalakshmi/P.W-14 24/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 examined the victim and issued Ex.P-11. Ex.P-6 is the earliest document emanated soon after examination of the victim by the Doctor at Gingee Government Hospital/P.W-11. P.W-11 referred the victim girl to Government Medical College Hospital, Mundiambakkam, Villupuramm for detailed examination. He had issued an Accident Register under Ex.P-6 dated 22.01.2010 wherein it was stated that the victim was produced by her mother for medical examination by 8.45 pm.,
35. P.W-14/Dr. Dhanalakshmi who was serving at Government Medical College Hospital, Villupuram examined the victim and she was informed about the occurrence. Curiously, P.W-2 had stated that she was abducted by an unknown person in a TVS 50 vehicle. When P.W-1 could say that it was the Accused who had kidnapped the victim girl, the Victim girl had stated before P.W-14 that she was abducted by a person, whose identity is not known to her. This part of the deposition of P.W-2/victim girl is fatal to the case of the prosecution launched at the behest of P.W-1.
36. It is the defense of the Accused that he reached Gingee from Chennai on 24.01.2010 on that date, he was arrested by the Police based on the complaint of P.W-1. According to the Appellant, the complaint was given by 25/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 P.W-1 to settle score with him in connection with money dispute. It is a specific case of the Accused that he was framed for raising the dispute with P.W-1. It is his contention that the case had been developed against him as though P.W-1 had seen him, taking the victim girl on his bike on 22.01.2010. It is the defense of the Accused that the Accused is well known to the family of the victim. While so, the victim had claimed that an unknown person had taken her on a two-wheeler and raped her in an isolated place between Gingee and Alampoondi in a bush. P.W-5 and PW-7 are introduced by P.W-1 as though they had seen and heard the occurrence. Even though they have deposed that they saw P.W-2 along with the Accused, the victim in her statement before P.W-14 had stated that she was abducted by an unknown person in a TVS 50 vehicle. This portion of the deposition of P.W-2 demolishes all the testimony of the prosecution witnesses and raises grave suspicion in the manner in which prosecution had weaved it's case. The testimony of P.W-2 made the case of the prosecution very weak and feeble that it will not stand to the test of judicial scrutiny.
37. The argument of the learned Counsel for the Appellant that already investigation proceeded and FIR was suppressed is found reasonable from Ex.P-6. Ex.P-6 indicates that the Doctor had not informed the Police. As per 26/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 Ex.P-9 issued by the Villupuram Government Headquarters Hospital, Police Out Post, the RMO had not been informed under Ex.P-9. It is stated that the mother of the victim had stated that the Police came to Gingee Government Hospital and conducted the investigation. She also deposed that the dress worn by the victim at the time of the occurrence was handed over to the Police at Gingee Government Headquarter Hospital. However, based on such alleged statement recorded by the Police, immediately, the complaint was not registered. On the other hand, it was registered at the behest of P.W-1 on 24.01.2010. Therefore, it is evident that either the investigation commenced without registering a First Information Report or the recording of the statement of the victim girl and her mother in the hospital had been suppressed while registering the First Information Report.
38. The defense of the Accused is found reasonable that the Accused was framed in this case as though he had taken the victim on his two-wheeler. On the date of 22.01.2010, the Appellant was not at all available in the place of occurrence and he had landed in Gingee only on 24.01.2010 morning. The occurrence in this case had taken place allegedly on 22.01.2010. However, soon after the Appellant landed Gingee, he was calculatedly arrested by the Police at the behest of P.W-1.
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39. The name of the Accused was mentioned in the FIR registered on 24.01.2010 at the behest of P.W-1. However, the mother of the victim had stated that the Police came and enquired her on 22.01.2010 at Gingee Government Headquarters Hospital during which she feigned ignorance as to who had committed the heinous offence of rape against her daughter. P.W-11 who had examined the victim at the earliest under Ex.P-6 advised the mother and the victim to proceed to Villuppuram Government Headquarters Hospital. In the Accident Register copy, in the Column “whether the Police were informed”, it was mentioned as “No”. In such a circumstances, it must be held that the Appellant was not properly identified and he ought to have been identified through an identification parade by the Investigation Officer.
40. The victim in her deposition had stated that an unknown person had taken her on motorcycle under the pretext of handing over the purse of one Sagayam Teacher working in the same School. However, instead of doing so, he had taken the victim/P.W-2 on his motorcycle towards Alampoondi, and on the way he stopped the two-wheeler and took the victim inside the bush where he had forcibly committed the offence of rape. As narrated by the victim girl, the Doctor had recorded under Ex.P-9 that the victim was abducted in a TVS 28/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 50 vehicle. Whereas according to P.W-1, the vehicle driven by the Accused was a Honda Splendor. Thus, after much deliberations, after two days of occurrence, the FIR under Ex.P-13 was registered on 24.01.2010 fixing the name of the Accused. Thus, the preponderance of probability in the evidence of the Accused/D.W-1 is found justified. The Accused himself had entered into the witness box even though it is not essential. The Accused was clear in his evidence that he deposed that he was not available in Gingee on the date of alleged occurrence on 22.01.2010 and he reached Gingee only on 24.01.2010. Further, the records in this case clearly indicate that the victim identified the Accused only during trial. Thus, the entire case has been doctored at the behest of P.W-1 to settle his scores with D.W-1. But unfortunately, in doing so, he had painted the Accused as an offender, who had committed the heinous offence of rape of his own sister's daughter.
41. The fact is that there was no investigation carried out immediately after the occurrence. The statement said to have been recorded by the Police Officials in the Hospital had been suppressed and it had not been brought to light. The First Information Report registered in this case was after two days of the occurrence. The documents under Ex.P-6, Ex.P-9 and Ex.P-11 are contradicting is found probable. From the perusal of the same, if the FIR had 29/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 the words “unknown person”, the investigation has to proceed with conduct of an identification parade, instead of unknown person, the FIR itself had fixed the Accused after two days after the occurrence. The learned Sessions Judge, Fast Track Mahila Court, Villupuram failed to appreciate the circumstances highlighted from the cross-examination of P.W-1, P.W-5 and P.W-7. P.W-5 and P.W-7 are witnesses who claimed to have seen the Accused and the victim immediately after the occurrence. If that has to be believed, they should have informed either P.W-1 or the parents of the victim. P.W-5 and P.W-7 are known to the family of the victim. They had not done so and it is contrary to the normal, ordinary and prudent human conduct.
42. Above all, the Investigation Officer was cross-examined by the learned Counsel for the Accused. From the cross-examination of the Investigation Officer, it was found that there had been contradictions between the medical records. The earliest medical record under Ex.P-6 arises from Gingee Government Hospital. The medical records of the Government Medical College Hospital, Villupuram at Mundiambakkam discloses that the mother of the victim had informed the Doctor on duty at Government Hospital, Villupuram that the dress worn by the victim at the time of occurrence was handed over to the Police at Gingee Government Hospital. Also, in the same 30/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 record, it is stated that the Police came to Gingee Government Hospital and examined the victim. When P.W-16/Investigation Officer was confronted with those contradictions, he claims ignorance. He also was not sure as to under whose identification, the Rough Sketch and Observation Mahazar were prepared. This shows that after much deliberation, P.W-1 had ably framed the Appellant/Accused into this case.
43. The victim had at the earliest point of time before the Doctors at the Government Hospital stated that an unknown person had forcibly taken her on a two-wheeler, whereas the entire family, even P.W-2/Victim girl is known to the Accused. Therefore, the victim ought to have stated the name of the Accused at the earliest point of time. When there is no mention of the name of the Accused in the medical records and subsequently, the First Information Report lodged by P.W-1 clearly disclose the name of the Accused, it creates serious doubt in the mind of this Court. The Accused had taken the risk of entering the witness box and had cleared the air surrounding the controversy. The deposition of D.W-1 blew the lid of in this case but it was not properly considered by the Trial Court.
44. The learned Additional Public Prosecutor before the learned 31/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 Sessions Judge, Fast Track Mahila Court had cross-examined the Accused/D.W-1. The Accused/D.W-1 withstood the cross-examination and reiterated that there was a money dispute between him and P.W-1 and he was framed by P.W-1 with the help of Police Officials. Given the degree of inconsistency in the deposition of prosecution witnesses and the defence of the Appellant/Accused, it is clear that the Appellant/Accused was framed by P.W-1 to settle scores with him. According to the Appellant/Accused, he landed in Gingee on 24.01.2010, on that date, he was arrested. If the investigation was fair, it ought to have commenced on 22.01.2010 as per the medical records under Ex.P-9. In the cross-examination, P.W-3/mother of the victim had clearly stated P.W-1, her younger brother had not indicated that they had seen the Accused taking the minor victim on his bike on 22.01.2010. Only after P.W-3 narrated the incident as informed by her daughter/P.W-2 he had stated that he knew the person who is involved in this case. She had clearly stated that she and her daughter were taken to the Government Headquarters Hospital, Villupuram from the Government Hospital, Gingee by the Police. If that be the case, the First Information Report ought to have been registered at the earliest point of time, but it was not done. Therefore, the submission of the learned Counsel for the Appellant is found acceptable in the facts and circumstances of this case, as gathered from the records. The submission of learned Additional 32/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 Public Prosecutor for the State that the evidence of the victim itself inspires confidence of the Court is not found acceptable. In fact, the deposition of victim/P.W-2 had got serious discrepancies and therefore, based on her deposition, convicting the Appellant will be unsafe.
45. In the light of the above discussions, the point for consideration is answered in favour of the Appellant and against the Prosecution. The Judgment passed by the learned Sessions Judge, Fast Track Mahila Court, Villupuram is perverse.
In the result, this Criminal Appeal is allowed. The Judgment dated 18.02.2016 passed in S.C. No. 275 of 2012 on the file of the learned Sessions Judge, Fast Track Mahila Court, Villupuram is set aside. The Appellant/Accused is acquitted of all charges. The bail bond, if any, executed by the Appellant/Accused shall stand cancelled. The fine amount, if any, paid by the Appellant/Accused is ordered to be refunded to him.
02.06.2025 Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order 33/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) Criminal Appeal No.259 of 2016 dh To
1. The Sessions Judge, Fast Track Mahila Court, Villupuram.
2. The Inspector of Police, Gingee Police Station, Gingee, Villupuram District.
3. The Public Prosecutor, High Court, Madras.
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4. The Superintendent, Central Prison, Cuddalore.
5. The Section Officer, Criminal Section, High Court Madras.
Judgment made in CRL.A.No.259 of 2016 02.06.2025 35/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am )