Madras High Court
Antony John Milton vs / on 30 September, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A.No.573 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :22.09.2022
Pronounced on :30.09.2022
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Criminal Appeal No.573 of 2014
Antony John Milton .. Appellant
/versus/
State by
Inspector of Police,
All Women Police Station,
Kilpauk, Chennai.
Crime No.2 of 2012. .. Respondent
Prayer: Criminal Appeal has been filed under Section 374(2) of
Cr.P.C., to allow the appeal and set aside the conviction and sentence
passed against the appellant in S.C.No.432 of 2012 dated 07.10.2014 by the
Sessions Judge (Mahila Court), Chennai and acquit the appellant on all
charges in the interest of justice.
For Appellant :Mr.R.Vijayakumar
For Respondent :Mr.R.Kishore Kumar
Government Advocate (Crl.Side)
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Crl.A.No.573 of 2014
JUDGMENT
The appellant/accused herein found guilty of offences under Sections 342, 376 and 506(2) of IPC and Section 4 of the Tamilnadu Prohibition of Harassment of Women Act, by the trial Court in S.C.No.432 of 2012 dated 07.10.2014.
2. The case of the prosecution is that the accused was doing consultancy services through his company by name WBG in the year 2011 at J.No.44, McNichols Road, Noor Mahal Building, Chetpet, Chennai-600 031. Further, PW-1 [Kavitha] joined as an employee on 02.04.2012 after interview conducted a week earlier. On 14.04.2012 she was asked to come early to the office by the accused. Hence, she at about 07.20 a.m., she entered the office. On seeing PW-1 entering the office through CCTV, the accused called her to his room. When PW-1 went to the accused room, he asked PW-1 to prepare coffee and bring it to his chamber and she has taken coffee inside the chamber of the accused, immediately he Page No.2/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 closed the door and tried to misbehave with her and the same was resisted by her. The accused pushed her on the sofa and sprayed something on her face. Soon, she became unconscious and after sometime she regained conscious and found bleeding in her private part. She realised that she was raped by the accused. When she questioned the accused, she was threatened by the accused stating that he has already taken nude photographs of her and he would show it to her parents and others if she disclose the incident. By intimidating her, he prevented PW-1 reporting the incident. She continue to attend duty. While so, on 18.04.2012, 23.04.2012, 27.04.2012 during night shifts, the accused had shown the photographs and had forcibly sex with her. Lastly on 29.04.2012, when she refused to co-operate with the accused, he indiscriminately hit her causing injury on her face and mouth. Unbearable of the humiliation, PW-1 on 01.05.2012 attempted to commit suicide in her house by hanging. She was saved by her mother and sister. Thereafter, coming to know about the reason for the attempt to commit suicide, they advised PW-1 to give police complaint. Accordingly, they all went to the Commissioner Office and they directed to meet the Inspector of Page No.3/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 Police Mrs. Umarani. Thus, the complaint was registered in Crime No.2 of 2012 by the All Women Police Station, Kilpauk.
3. The criminal law was set in motion by PW-1 through her complaint in writing marked as Ex.P1. In the course of investigation material to try for offences of rape, wrongful confinement, hurt and criminal intimidation were collected leading to filing of Final Report against the appellant/accused. The learned Metropolitan Magistrate being satisfied that the case to be tried by the Court of Sessions, committed the case to the Court of Sessions. The Mahila Court, Chennai constituted to try cases against Women on committal framed charges under Sections 376, 342, 323, 420, 506(2) of IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998.
4. To prove the charges, the prosecution examined 10 witnesses. 16 exhibits were marked. On the side of the defence, 2 witnesses were examined. 18 exhibits and 3 material objects were marked. Page No.4/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014
5. The trial Court being satisfied that the witnesses for prosecution are reliable, held the accused guilty of the charges under Sections 376, 342 and 506(2) of IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998. For want of evidence held the accused guilty of the charges under Sections 323 and 420 of IPC.
6. For the proven charges, the trial Court imposed sentence as below:-
Name of the Charges framed Sentence imposed by the trial Court Accused under Sections Antony John Milton Section 376 of IPC To undergo 10 years RI with a fine of (sole accused) Rs.10,000/- in default to undergo further period of six months SI Section 342 of IPC To undergo 6 months RI with a fine of Rs.1000/- in default of undergo further period of one month SI Section 506(2) of To undergo 5 years RI with a fine of IPC Rs.5000/-in default of undergo further period of 3 months SI.
Under Section 4 of To undergo 3 years RI with a fine of the Tamil Nadu Rs.10,000/- in default to undergo further Prohibition of period of 3 months SI.
Harassment of Woman Act The sentences ordered to run concurrently.Page No.5/26
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7. Evidence culled out through the witnesses for prosecution:-
PW-1 is the victim of the crime and the defacto complainant (PW-2) is her mother, PW-3 is her sister. As per the evidence of PW-1, she joined in the company of the accused during the month of April 2012. Before recruiting her, there was 3 stage interview during the last week of March 2012. Before recruiting, PW-1 was instructed about her dress code and work pattern. Soon after PW-1 joined in the company of the accused, the accused started enquiring about her personal life and family background and tried to develop intimacy. On 14.04.2012 when she came to the office at 07.20a.m., the accused called her to his room over intercom and asked her to prepare Tea. When she went to his room with Tea, she found the accused in the bathroom scantly dress. When she was about to return, the accused hugged her from back. She resisted and tried to come out of the room, but could not, since the accused locked the door. The accused tried to convince her that it is causal and usual in IT culture. She still resisted but the accused pushed her, got hold her hair and hit her head on the sofa. Soon after, he sprayed Page No.6/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 something on her face, she got eye irritation and went to semi-conscious stage. The accused raped her. When she regained conscious, she found herself in the bathroom naked bleeding in the private part and the towel of the accused on her body. She felt pain all over the body. When she came out from the bathroom, the accused was sitting naked on the sofa seeing something in the mobile phone and was laughing to himself. When she questioned him, whether he raped her, he smiled slyly and asked whether he can get one more coffee. When she questioned him, he just laughed and warned her that she should not disclose anything happened in his room and if she discloses, he will tear her original certificates given to him at the time of appointment and he will do away with her by engaging hooligans.
8. When she asked for her dress, the accused mocked her to go out nude. After protest, the accused took her dress from the cupboard and gave it to her. Before leaving his room, she was warned by the accused, if she tells the incident to anyone, he will release her nude pictures and show it to everyone. From that day onwards, PW-1 was given nightshift and while Page No.7/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 she was in night duty, the accused used to call her through mobile phone or through intercom to his room and give sexual torture.
9. On 29/04/2012 night when she was in duty, the accused called her over phone and told her to be ready and he will be coming to the office soon. Then, he came to the office and forced her to have sex with him.
PW-1 refused and resisted. The accused hit her on the mouth and head with a file which caused contusion on the face and bleeding in the mouth, so, she left the office and returned home. Unbearable of the torture caused by the accused, she decided to commit suicide and tried to hang herself on 01/05/2012, but her mother (PW-2) and her sister ( PW-3) saw her through window and rescued her. Thereafter, she disclosed the entire incident and then on 02/05/2012 they went to the Police Commissioner Office. One of the Senior Police Officer in the Commissioner office directed them to give the complaint to Inspector Umarani. P.W.1 gave the complaint and she was taken to hospital for medical check up and then to the Judicial Magistrate for recording her statement.
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10. PW-7 [Dr.C.Anandhi] had examined the defacto complainant [PW-1] medically on 07/05/2012. The certificate of examination for sexual offences in respect of PW-1 is marked as Ex.P-6. As per this certificate, no injuries on the body or genitalia.
Vagina orifice: No bleeding, no discharge, no injuries.
Hymen: Old healed tears with smooth margins at
2,8,10 ’o’ clock positions.
11. Statement of PW-1 was recorded under Section 164 of Cr.P.C by PW-6, the Metropolitan Magistrate-II, Egmore on 27/08/2012. The statement is marked as Ex P-2. To the Magistrate, PW-1 has narrated about the events occurred from the date of attending the interview for the job in M/s World Biz Global Services run by the accused till the day of arrest of the accused. Including the days on which she was subjected to forcible rape or sexual assault. In Ex.P-2, the information about her attempt to commit suicide fearing ignominy and she being rescued by her mother and sister finds place.
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12. PW-2, the mother of PW-1 and PW-3, the sister of PW-1 have corroborated PW-1 regarding her attempt to commit suicide on 01/05/2012. They came to know about the rape, assault and criminal intimidation through PW-1. Mr.Siva Saravanan, the owner of the apartment in which the accused was running his consultancy service was examined as PW-4. He denied the suggestion that he know PW-1 when he used to go to the building for collecting rent, she complaints to him about the sexual harassment, suffered at the hands of the accused. So, he advised PW-1 to give police complaint. He did not support the above prior statement, hence treated as hostile. PW-5 [Ilayarajan] is the employee under the accused. He is one of the witnesses to the observation mahazar. His sign in the observation mahazar is marked as Ex.P-3. He was called by the prosecution to depose about the rape incident alleged to have occured on 14/04/2012 and about the refusal to pay the salary to PW-1, when she came on 02/05/2012 to receive her salary. Since PW-5 did not support the case of the prosecution, he was also treated as hostile witness. Page No.10/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014
13. PW-8 is Dr.Rajamani Beemrao, who conducted potency test of the accused. His certificate is marked as Ex.P-8. The Doctor has opined after the test that the accused is capable of having intercourse and potent. PW-9 [Mrs.Umarani] is the Inspector of Police, who recorded the FIR based on the complaint given by PW-1. Till her transfer, she was the investigating officer of this case. She has deposed about the preparation of observation mahazar in the presence of Elayarajan (PW-5) and Tmt.Kanaga (not examined), the arrest and remand of the accused, request in writing to the Judicial Magistrate to forward PW-1, the accused for medical examination, recording of the statements of PW-1 to PW-5. Ex.P-11 to Ex.P-13 are marked through her. After transfer of PW-9, the investigation continued by PW-10 [Mrs.Muthelu], Inspector of Police. She has deposed about the filed Final Report.
14. Case of the defence:
To disprove the case of the prosecution, apart from cross examining Page No.11/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 the witnesses, pointing out the contradictions, omissions and improvements found in their previous statements and the deposition before the Court, on his side, examined one Balasubramaniam (DW-1) who retrieved the recordings of the CCTV camera from Hard Disc (MO-2) and he also mounted the witness box as DW-2 and marked 18 exhibits (Ex D-1 to Ex D-
18) and M.O. 1 to M.O.3.
15. According to the defence, nothing happened on 14/04/2012 or on the subsequent dates as alleged by PW-1. In fact, the footage of the CCTV camera stored in DVD [M.O.2] will prove that on 14/04/2012, there was a walk in interview in the office conducted by the HR Manager, PW-1 and other staff from 9.30 am onwards. The office was busy with activities with many persons around. PW-1 seen moving around cheerfully.
16. He had dispute with his Landlord and through the Police attached to Chetpet Police Station, the landlord (PW-4) forced him to vacate, therefore he gave complaint to the Higher Officials about the Page No.12/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 Chetpet Police. During that time, PW-1 joined as HR Manager. Her performance was not satisfactory. Therefore he terminated her service on 29/04/2012. Being infuriated, on 02/05/2012 PW-1 came to his office and tore the attendance register and took it away. On 03/05/2012 he was arrested and released on bail after two months. Meanwhile, the landlord removed all his belongings including AC, chairs, Computer systems, Laptops, DVD and took the possession of the premise in his absence. The belongings were handed over to his parents. The case was foisted against him with an ulterior motive.
17. The Grounds of Appeal:
The Learned Counsel appearing for the appellant submitted that, the case of the prosecution on the face of it bristles with falsehood. PW-1 evidence with bundle of contradictions and improbabilities erroneously relied by the trial Court to convict the accused ignoring the unimpeachable video recording found in the Hard Disc D.M.O.2. The SMS exchange between the defacto complainant and the accused were selectively relied for Page No.13/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 the purpose of convicting the accused, thereby failed to appreciate the evidence in fair and just manner. The conduct of PW-1, who alleges the accused raped her on 14/04/2012, but continue to attend the office till 29/04/2012 and visitng the office along with her mother on 02.05.2012 to receive salary is the first improbability. PW-1 alleges that the accused threatened to expose her photos and videos, if she disclose the incident to others, as reason for yeilding her to continue the job without complaining the pressure and sex torture of the accused. If so, the Investigation Officer ought to have seized the cell phone of the accused to verify whether any photos of PW-1 in it as alleged. Neither PW-9 nor PW-10 has come out with explanation why they did not seize the cell phone of the accused, who was arrested on the same day of registering the complaint and check whether there was any obscene photos of PW-1 in his cell phone.
Contrarily, the accused has produced his cell phone and marked as D.M.O 3 to prove. There was no obscene photos of PW-1 recorded or stored in the cell phone.Page No.14/26
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18. Further, the case of PW-1 is that, on 14/04/2012 when she come to the office by 07.20 am, the accused saw her entering the office through CCTV camera and called her to his chamber. PW-9, who was the Investigating Officer till 26/06/2012 never attempted to seize the CCTV footage though she admits in her cross examination that when she went to the office of the accused on 03/05/2012, she saw CCTV cameras fixed in the office and video displaced in the screens. Therefore, the trial Court ought not to have disbelieved the footages recorded in D.M.O.2 (Hard Disc), on presumption that it is a manipulated/edited document. The trial Court failed to consider that two independent witnesses ( PW-4 and PW-5) who were supposed to speak about the sexual harassment by the accused to PW-1, have turned hostile. The uncorroborated version of untrustworthy witness cannot form basis for a conviction.
19. The reading of the messages exchanged between the defacto complainant and the accused through e-mail and SMS will show, these Page No.15/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 communications would not have been exchanged, if the case of the prosecution that the accused had forcible raped and subjected her to sexual and physical assault since 14/04/2012. Failure to appreciate Ex.P-14, Ex.D- 18 and D.M.O.1, reliance on the self contradictory, artificial, unbelievable and unnatural stage managed story of PW-1 had lead to miscarriage of justice.
20. Pointing the inconsistency in the version of PW-1 found in Ex.P-1, the information given to police leading to registration of FIR under Section 154 of Cr.P.C, Ex.P-2, the statement given to the Judicial Magistrate and recorded under Section 164 Cr.P.C and the self- contradictions in her chief and cross examination, the learned counsel appearing for the appellant submitted that the prosecutorix had keep up improvising her allegations stage to stage and had deposed new facts which does not find place in her earlier statements. The discrepancies and infirmities which were brought out in the cross examination of PW-1 were not appreciated by the trial Court.
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21. Per contra, the Learned Government Advocate(Crl.Side) referring to the judgment of the trial Court and the evidence submitted that, PW-1 in her testimony had cogently deposed that she was raped by the accused on 14/04/2012, 18/04/2012, 23/04/2012 and 27/04/2012. Though in the FIR she has not stated about the rape committed subsequent to 14/04/2012 in detail. FIR is not the encyclopaedia of the crime. The witness has explained in the cross examination that certain facts were not stated by her in her previous statements recorded by the police and the Magistrate since she was tensed at that time. Therefore, those facts cannot be discarded as false. They are the facts related to the conduct of the accused subsequent to 14/04/2012. The fact that two of the independent witnesses turned hostile, is not fatal to the prosecution case, since the sexual offence has been committed in the locked room of the accused. Direct evidence to the occurrence cannot be expected. The trial Court has after elaborate analysis of the CCTV footage relied by the accused had rightly rejected it as lack of reliability and evidentiary value. The probability of tampering the recording Page No.17/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 been highlighted during the cross examination of DW-1, who has admitted that he is not an expert but learned the art of installing CCTV cameras by experience.
22. Point for determination:-
Whether the trial Court judgment of conviction and sentence of the accused is based on proof beyond doubt ?
23. In the FIR, one cannot expect the narration of each and every detail of the crime and it is not the encyclopaedia of the crime. Also, the direct eye witnesses cannot be expected for a crime of rape, which are mostly committed in closed place or in a secluded place. Therefore, the evidence of the victim of rape, who need not come out with falsehood at the cost of her reputation always given priority while weighing the evidence. In cases of this kind, Court usually seek for corroboration of the prosecutorix evidence through medical evidence and circumstantial evidences. Even in Page No.18/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 the absence of corroboration, the sole testimony of the rape victim is sufficient to convict the accused, provided the evidence of the rape victim inspires confidence of the Court and trustworthy. The witnesses gain confidence of the Court, if their testimony is natural, probable and consistent without any contradiction/embellishment/improvisation.
24. In this case, it is to be tested whether the evidence of PW-1 and other witnesses for prosecution satisfies the requirement stated above.
25. The sequence of events from the evidence adduced commences from the month of February 2012, when PW-1 applied for employment in the format and entered into the confidential agreement dated 02.04.2012 marked as Ex.D1. Prior to this, PW-1 has attended interview held at the office of the accused on 29th March and 30th March of 2012. The same is admitted by the accused in his chief examination. The appointment order Ex.D2 dated 07.04.2012 indicates, PW-1 was offered the job of HR co- ordinator with effect from 02.04.2012. On the date of issuing the offer letter Page No.19/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 Ex.D2, the company has obtained a letter from PW-1 declaring she agree for the dress code, work time and travel to out station. This letter is marked as Ex.D3.
26. PW-1 had deposed that on 14.04.2012 she was raped by the accused. Subsequently, wile she was in night duty on 18.04.2012, 23.04.2012 and 27.04.2012, the accused knocked her room door between 1.00 p.m to 03.00 pm and called her. When she refused, he showed the photos, videos and threatened. No specific allegation of rape or sexual assault made against the accused on these three days. Whereas in her complaint Ex.P1 dated 03.05.2012 she has stated that following the incident on 14.04.2012, on 18.04.2012, 23.04.2012 and 27.04.2012 the accused raped her. In her statement Ex.P2 given before the Magistrate on 27.08.2012, she has not stated that on 18.04.2012 or 23.04.2012, she was raped by the accused. She has only stated that the accused invited her to have sex on 18.04.2012 and she refused.
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27. From the oral evidence and the attendance register Ex.P15, it is established that even after the alleged incident of rape on 14.04.2012, PW-1 was attending duty in the company of the accused. Before the Magistrate, she has stated that she was sent to Delhi along with Ilayarajan to conduct job fair and she returned on 22.04.2012. When the accused asked her to stay back in the office, she left the office leaving the gifts and resume. In her deposition before the Court, she has stated that she was sent to Punjab to conduct job fair along with Ilayarajan and that time, the accused used to call her and give sexual torture over phone. Ilayarajan was examined as PW-5 by the prosecution and he has not said anything about the visit of PW-1 along with him to conduct job fair at Delhi or Punjab.
28. PW-1 had specifically deposed before the Court that on 29.04.2012 while she was at work in night shift, the accused called her over phone and informed her that he will come to the company and told her to be ready. He came to the company and forced her to co-operate with him and Page No.21/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 have sex. When she refused, the accused hit her on the face and head repeatedly with a file that caused bleeding in her mouth and contusion on her face. The pain subsided after 3 to 4 days. After registration of the complaint on 03.05.2012, PW-1 was examined by Dr.C.Anandhi PW-7 on 07.05.2012 the Doctor has not found any injury on her body. PW-1 has told to the Doctor, she was raped by the accused on 14.04.2012 after sedating and again on 18.04.2012, had intercourse using contraceptive. On 23.04.2012, he attempted to rape. Nothing said about the incident alleged to have happened on 29.04.2012 or the injuries.
29. The trial Court has acquitted the accused from the charge of offence under Section 323 of IPC. This indicates that PW-1 is not a wholly reliable witness and her testimony cannot be accepted without proper corroboration. Apart from the testimony of PW-1, to prove the offence of rape the only other material evidence to corroborate is Ex.P6 and Ex.P9, the medical certificate. PW-1 was examined by PW-7 on 07.05.2012. The pre Vaginum examination had revealed, no Tenderness, Patulous, Rugosity Page No.22/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 absent. Hymen found torn and healed with smooth margin at 2, 8, 10 o' clock position.
30. The opinion of Doctors from Text Book indicates that hymen tear gets healed between 4 to six weeks. PW-1 in her testimony stated that on 14.04.2012 when she regained conscious, she found bleeding but at that time, it was not her menstrual day. In Ex.P9, this Court finds that PW-1 has informed that her last menstrual cycle commenced on 24.04.2012. The certificate indicates her hymen torn and healed. The contradiction in the ocular evidence and the medical evidence are not fit to be ignored, when a person accused of a very grave offence.
31. Apart from the contradictions and embellishments, this Court also from the evidence finds that before going to the Commissioner's Office PW-1 and her mother [PW-2] had gone to the company of the accused on 02.05.2012. Only thereafter, they have given the complaint [Ex.P1] on the next day. The delay in lodging the complaint for the incident happened on Page No.23/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 14.04.2012 morning, besides attending the office of the accused till 29.04.2012, thereafter visiting the office on 02.05.2012 after sending SMS to the accused creates doubt about the prosecution case. Lodging the complaint after 21 days alleging rape for the first time and repetition for days to come probablies the reason for not giving complaint soon after the incident. The delay in FIR in this case makes the prosecution witnesses unreliable.
32. Hence, this Criminal Appeal is allowed. The judgment of conviction and sentence imposed by the trial Court viz., the Sessions Judge(Mahila Court), Chennai in S.C.No.432 of 2012 dated 07.10.2014 is hereby set aside. Fine amount paid if any shall be refunded to the appellant. The appellant is set at liberty forthwith. Bail bond executed by the appellant shall stand cancelled.
30.09.2022 Index:yes speaking order/non speaking order ari Page No.24/26 https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 To :
1.The Sessions Judge (Mahila Court), Chennai.
2.Inspector of Police, All Women Police Station, Kilpauk, Chennai.
3.The Public Prosecutor, High Court, Madras.Page No.25/26
https://www.mhc.tn.gov.in/judis Crl.A.No.573 of 2014 DR.G.JAYACHANDRAN,J.
ari Delivery Judgment made in Crl.A.No.573 of 2014 30.09.2022 Page No.26/26 https://www.mhc.tn.gov.in/judis