Madras High Court
M.Kaliraj vs State
Author: V.Parthiban
Bench: V. Parthiban
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Pronounced on
12.11.2019 18.11.2019
CORAM
THE HONOURABLE MR.JUSTICE V. PARTHIBAN
CRL. A.(MD) NO. 485 OF 2019
AND
CRL. M.P. (MD) NO. 8915 OF 2019
M.Kaliraj .. Appellant
-Vs-
State, rep. By
The Inspector of Police,
All Women Police Station
Sattur, Virudhunagar District. .. Respondent
Criminal Appeal filed under Section 374 of the Criminal Procedure Code,
praying to set aside the order dated 06.08.2019, passed by the learned Sessions
Judge, (Fast Track Mahila Court), Virudhunagar at Srivilliputtur, in Spl. S.C. No.1 of
2016.
For Appellant : Mr. C.M.Arumugam
For Respondent : Mr.V.Neelakandan, APP
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http://www.judis.nic.in
Crl. A. No.485/2019
2
JUDGMENT
The appellant/A-3, along with two other accused, who were arrayed as A-1 and A-2, were charged and tried before the learned Sessions Judge, Fast Track Mahila Court, Virudhunagar @ Srivilliputtur, in Spl. S.C. No.1/2016, for the offences u/s 366 IPC and Sections 7 r/w 8 and 3 r/w 4 of the Prevention of Children from Sexual Offences Act (for short 'POCSO Act') and on being found guilty, were convicted and sentenced as under :-
Accused Section Sentence
A-1 & A-2 U/s 366 (b) IPC Convicted and imposed a fine of Rs.2,000/-,
in default to undergo rigorous imprisonment
for a period of one year.
A-1 to A-3 U/s 7 r/w 8 of the Convicted and sentenced to undergo rigorous POCSO Act imprisonment for a period of five years and to pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for a period of six months.
A-1 to A-3 U/s 3 r/w 4 of Convicted and sentenced to undergo rigorous POCSO Act imprisonment for a period of ten years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for a period of two years.
The sentences were directed to run concurrently and set off u/s 428 Cr.P.C. was also ordered. Aggrieved by the said conviction and sentence, the present appeal has been preferred by the appellant/A-3. It is informed that this Court, by order dated 16.10.2019, in Crl. A. (MD) No.386/2019, had allowed the appeal ___________ http://www.judis.nic.in Crl. A. No.485/2019 3 filed by A-2.
2. The facts, shorn of unnecessary details, could be summarised as under :-
According to the prosecution, P.W.2, who is the victim, was aged 13 years at the time of occurrence. A-2 is a neighbour of the victim and A-1 to A-3 had committed the act of sexual assault on the victim on different occasions.
3. P.W.1 is the mother of P.W.2. P.W.3 is the grandmother of P.W.2. At about 5.30 p.m. on 8.10.15, P.W.1, on returning from work, found P.W.2 crying in the house. When enquired as to why P.W.2 was crying, the P.W.2 stated that since she did not oblige A-1 by going to the backyard, A-1 has scolded her using filthy words and when further enquired whether A-1 had misbehaved with her, P.W.2 stated that on 26.9.15, A-1 had indulged in sexual acts with P.W.2 and further on 13.7.14, A-2 along with A-3 had also indulged in sexual acts at the house of P.W.2 when there were no one in the house and, thereby, had committed the act of sexual assault on the victim. Therefore, immediately P.W.1 went to the Sattur All Women Police Station and lodged the complaint, Ex.P-1.
4. P.W.12 is the Sub-Inspector of Police attached to the All Women Police ___________ http://www.judis.nic.in Crl. A. No.485/2019 4 Station, Sattur. On receipt of the complaint, Ex.P-1 from P.W.1 on 9.10.15, P.W.12 registered the case in Crime No.19/2015 for the offences u/s 342, 354 (b), 376 IPC r/w 5 (u) and 6 of the POCSO Act against the accused and prepared the printed FIR, Ex.P-15, which was forwarded to the jurisdictional Magistrate and also to the senior officials.
5. P.W.13, the Inspector of Police, attached to All Women Police Station, Sattur, who was conversant with the handwriting of Vijaya, the Investigating Officer, deposed before the Court, as the investigating officer, Vijaya, who had conducted investigation was mentally incapacitated to give evidence.
6. On receipt of the FIR, Ex.P-15, Vijaya, the Investigating Officer at the relevant point of time, attached to the All Women Police Station, Sattur, commenced investigation. The investigating officer went to the scene of occurrence and in the presence of P.W.s 4 and 5, prepared observation mahazars, Ex.P-2 to P-4 and drew rough sketch, Exs.P-16 to P-18. Thereafter, the investigating officer, sent the victim, P.W.2, through P.W.11 to the hospital for medical examination.
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7. P.W.11, the Head Constable, pursuant to the direction of the investigating officer, produced the victim, P.W.2 before P.W.7, the doctor, who examined P.W.2 and issued the accident register, Ex.P-8 opining that there were evidences that the victim was subjected to sexual assault. The doctor, P.W.7, collected swab samples and sent the same for biological examination.
8. Continuing with the investigation, the investigating officer took steps to produce the victim before the Magistrate for recording her statement. The investigating officer also examined witnesses and recorded their statements. On 10.10.15, near the Vetrilaioorani Village Bus Stop, the investigating officer arrested the appellant/A-3 and the other accused were also arrested on the same day and, thereafter, the accused were produced before the Magistrate and remanded to judicial custody. Requisition was given to the Magistrate for subjecting the accused for medical examination. The investigation officer took steps to establish the age of the victim by examining the Head Master of the school in which the victim was studying. On completion of the investigation, the investigation officer filed the final report, Ex.P-19, against the accused charging them for the offences as noted above.
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9. On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in Spl. S.C. No.1/16 and made over to the Sessions Judge, Mahila Fast Track Court, Virudhunagar @ Srivilliputtur, for trial.
10. To prove the case, the prosecution examined P.W.s 1 to 13 and marked Exs.P-1 to P-19. No material objects were marked. When the accused were questioned u/s 313 Cr.P.C. about the incriminating circumstances appearing against them in the evidence tendered by the prosecution witnesses, they denied the same. No witness was examined nor any document marked on the side of the accused.
11. The trial Court, on the basis of the oral and documentary evidence, convicted and sentenced the accused as aforesaid and challenging the legality of the said conviction and sentence, the present appeal has been filed by the appellant/A-3.
12. Learned counsel appearing for the appellant/A-3 submits that the case of the prosecution bristles with very many contradictions and embellishments ___________ http://www.judis.nic.in Crl. A. No.485/2019 7 and that it is not a case of evidence falling short, but it is a case of no evidence. It is the further submission of the learned counsel for the appellant that though the initial act was said to have been committed by A-2 and A-3 way back on 13.07.2014, the victim had come out with the same only on 8.10.15, that too on the questioning of the victim by P.W.1, wherein she is said to have narrated the incident that is said to have taken place on 26.9.15. The delay in the victim narrating the initial incident that happened on 13.7.14, after a period of almost a year and a quarter and the further occurrence that is alleged to have taken place on 26.9.15, which culminated in the registering of a case on 9.10.15, casts a serious doubt in the veracity of the prosecution case.
13. It is the further submission of the learned counsel for the appellant/A-3 that P.W.2, the victim, has specified the name of one Pandiyaraj, who sexually assaulted P.W.2 on 28.6.15 and has not specified the name of the appellant/A-3 and even during her chief examination she has mentioned the name of Pandiyaraj and not that of the appellant/A-3. Further, it is submitted by the learned counsel for the appellant/A-3 that P.W.6, in chief examination has deposed that one Kali @ Kalidoss had perpetrated the sexual assault on the victim and the name of the appellant/A-3 has not been stated by any of the witnesses. ___________ http://www.judis.nic.in Crl. A. No.485/2019 8 However, curiously, the prosecution has roped in the appellant as the 3 rd accused, for reasons best known to it, to the exclusion of the other person, whose names have been spoken to by P.W.2 and P.W.6.
14. It is the further submission of the learned counsel for the appellant that though P.W.1 has deposed that she reached her home at around 5.30 p.m. on 8.10.15 and, thereafter, she enquired her daughter as to why she was crying, whereinafter she came to know about the alleged occurrences, yet the entries in the FIR reflects that the complaint had been lodged only at 5.00 p.m. on 9.10.15, much after a delay of almost 24 hours, for which delay there is no proper explanation by the prosecution.
15. Learned counsel appearing for the appellant further submitted that there is no evidence connecting the appellant with the commission of rape on the victim, as P.W.7, the doctor, who examined the victim neither found any bodily injury on the victim nor the report given by P.W.9, the Forensic Expert found any semen in the blood of the appellant. Therefore, the medical evidence is not in consonance with the theory projected by the prosecution. It is submitted by the learned counsel for the petitioner that the medical evidence, being not in ___________ http://www.judis.nic.in Crl. A. No.485/2019 9 consonance with the evidence of the witnesses, necessarily in cases of this nature, medical evidence has to be given high standard of acceptance and, therefore, the theory projected by the prosecution has to be disbelieved.
16. It is the further submission of the learned counsel for the appellant that it is beyond one's comprehension to understand as to how it was possible for the victim to remember the dates on which the alleged act of sexual assault was committed by the accused on her. Further, when dates of commission of offence was projected by the prosecution, however, curiously no time has been stated as to when the accused have committed the said act. The non-mentioning of time relating to the commission of act of sexual assault is detrimental to the case of the prosecution.
17. Except for the evidence of the victim, no other evidence, either in the form of independent witness or in the form of circumstantial evidence has been placed by the prosecution to prove that the accused had indeed committed the act of sexual assault on the victim. Further, one of the witnesses, who ascribed his signature in the observation mahazar turned hostile. ___________ http://www.judis.nic.in Crl. A. No.485/2019 10
18. In fine, it is the submission of the learned counsel for the appellant that once the evidence placed by the prosecution falls to the ground, as submitted above, no presumption can be drawn u/s 29 of the POCSO Act and, necessarily the case of the prosecution has to be discarded in toto and, therefore, the appellant is entitled for an acquittal.
19. Per contra, learned Addl. Public Prosecutor appearing for the respondent submits that sufficient evidence, both oral and documentary were placed before the trial court, which, on proper appreciation, has accepted the theory placed by the prosecution and convicted the accused. It is the contention of the learned Addl. Public Prosecutor that the evidence of the victim, P.W.2, is cogent and convincing and that the victim has narrated the entire sequence of incidents that happened on 13.7.2014, 28.6.15 and 26.9.15 and once the evidence of the victim is found to be trustworthy and believable, the same would be sufficient to return a verdict of guilty, which the court below has done so and rightly too.
20. Learned Addl. Public Prosecutor further submitted that P.W.7, the doctor, who examined the victim has categorically deposed that there are ___________ http://www.judis.nic.in Crl. A. No.485/2019 11 evidences showing that the victim was subjected to sexual abuse, which is further evident from the Accident Register, Ex.P-8, in which there is a categorical entry that the hymen is not intact. Further, the age of the victim had been established by marking necessary certificate issued by the Headmaster of the school in which the victim was studying. Once the age of the victim stood established, it is necessary for the accused to prove his innocence and failure to do so would definitely attract an adverse presumption u/s 29 of the POCSO Act. Therefore, the evidence of P.W.7 coupled with Ex.P-8 and the statement of the victim, unequivocally point to the accused and the presumption drawn u/s 29 of the POCSO Act by the court below to the extent that the accused has not proved his innocence is totally justified. In fine, it is submitted by the learned Addl. Public Prosecutor that the trial court, on cogent and convincing reasons and based on oral and documentary evidence has found the appellant and the other accused guilty of the offence charged against them and rightly convicted and sentenced them and, therefore, no interference is called for with the conviction and sentence recorded by the court below.
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21. This Court bestowed its best attention to the contentions advanced by the learned counsel appearing on either side and also perused the evidence, both oral and documentary to which its attention was drawn.
22. In respect of cases falling under the POCSO Act, more especially u/s 3 r/w 4 and 7 r/w 8 of the POCSO Act, the evidence of the victim gains more weight even in the absence of other corroborating and attributing factors, provided the said evidence inspires the confidence of the Court in which event, the ball falls in the court of the accused to discharge the presumption u/s 29 of the POCSO Act. Lack of inspiration in the evidence of the victim and the corroborating and attributing factors not coming to the aid of the victim in bolstering up her testimony would necessarily lead to the inference that the presumption u/s 29 of the POCSO Act stood discharged on the basis of the evidence let in by the prosecution and no separate evidence need to be let in by the accused to prove their innocence. Keeping the above said legal proposition in mind, this Court now proceeds to analyse the evidence of the prosecution witnesses as also the documentary evidences in relation to the evidence of the victim to see whether the conviction and sentence recorded by the trial court is justifiable. ___________ http://www.judis.nic.in Crl. A. No.485/2019 13
23. This Court will now endeavour to embark on the task of stifling through the evidence of the witnesses to find out whether the case projected by the prosecution relating to the sexual assaults committed by the appellant/A-3 could be sustained.
24. The most crucial evidence, which vindicates the stand of the appellant/A-3 is that the victim, P.W.2, in her examination in chief has not mentioned the name of the appellant/A-3, but has mentioned the name of one Pandiyaraj, as the person, who sexually assaulted her on 28.6.15. The evidence of P.W.6, who is a relative of P.W.1, the mother of P.W.2, also comes to the aid of the appellant/A-3, wherein, P.W.6, in chief examination has deposed that one Kali @ Kalidoss had perpetrated the sexual assault on P.W.2. Further, a careful analysis of the deposition of all the prosecution witnesses reveal that none of the witnesses have stated the name of the appellant/A-3 to be one of the person, who perpetrated sexual assault on P.W.2. NAME IN THE FIR. In such a backdrop, this Court is at a loss to understand as to the basis on which the appellant/A-3 has been roped in as an accused in the occurrence. Even the evidence of the investigating officer is silent on how the offence has been fastened on the appellant/A-3. In the absence of any material connecting the ___________ http://www.judis.nic.in Crl. A. No.485/2019 14 appellant/A-3 with the commission of the offence, the inclusion of the name of the appellant/A-3 in Ex.P-15, the printed FIR does not in any way further the case of the prosecution.
25. According to the evidence of P.W.1, while the complaint was lodged on 9.10.15, the sexual exploitation on the victim by the appellant/A-3 had taken way back on 28.6.15. It is the evidence of P.W.1 that on seeing the victim crying, when enquired, P.W.1 was informed by the victim that she was verbally abused by the accused and the victim had further gone on to state, on further enquiry by P.W.1, that she was sexually exploited by the accused on different occasions at different places. Though P.W.2, the victim had given specific dates on which she was sexually exploited, however, curiously it is seen that the time when the said act of sexual exploitation was committed has not been given by the victim. Even according to the prosecution, the victim is a student studying in school and that P.W.1 is a working mother, who returns home from work by 5.30 p.m. every day. Therefore, the time when the sexual exploitation, as alleged, has taken place, gains much more significance. When the victim is able to remember the dates when such alleged acts have taken place with ease, then equally the victim would also be able to remember about the time when such acts were perpetrated on ___________ http://www.judis.nic.in Crl. A. No.485/2019 15 her. However, her evidence is silent on this aspect and more so, the prosecution has not put any particular questions to the victim with regard to the time of commission of the said acts. Non-examination of the victim in chief about the time of the day when the sexual exploitation is alleged to have taken place casts a stigma on the prosecution theory and pushes it into the realm of doubt.
26. It is true that the the evidence of the victim alone is suffice and corroborating and attributing factors need not be placed for rendering a conviction under the POCSO Act. However, the said ratio laid down in a catena of decisions is subject to just exceptions. The evidence of the victim should be such that it should leave no room for any doubt as to the evidence and the said evidence should inspire the confidence of the court that no amount of ambiguities otherwise would shake the substratum of the evidence of the victim. However, in the case on hand, contradictions galore in the evidence of P.W.s 1 and 2 vis-a-vis the evidence of P.W.s 12 and 13.
27. While it is the evidence of P.W.1 that on 8.10.15, at about 5.30 p.m., coming to know about the details of sexual exploitation from P.W.2, she immediately went to the police station and lodged a complaint and that the ___________ http://www.judis.nic.in Crl. A. No.485/2019 16 criminal machinery was set in motion, however, the evidence of P.W.12 is otherwise, as according to P.W.12, the Sub Inspector of Police, who registered the complaint and prepared the FIR, the said complaint was registered only on 9.10.15 at about 5.00 p.m., which is almost 24 hours after the time when P.W.2 had stated about giving the complaint. Further it is the evidence of P.W.s 1 and 2 that they were examined at the police station upto 12 midnight by the police officers and that the accused were taken to the police station between 0100 and 0200 hours on the early morning, however, the evidence of P.W.13, the Inspector of Police, who deposed on behalf of the investigation officer, the accused were arrested on 10.10.15 near Kaliamman Koil. In fact, it is the evidence of P.W.2, the victim in this case, that the accused were in the police station when they lodged the complaint. These contradictions in the lodging of the complaint, which culminated in the registering of the FIR and the presence of the accused at the time of the lodging of the complaint, raises a grave doubt in the theory projected by the prosecution.
28. Further, the doubt in the dates relating to giving of the complaint and its consequent registration raises a doubt as to the real culpability of the accused in the commission of the offence. A cursory examination of Ex.P-1, the complaint ___________ http://www.judis.nic.in Crl. A. No.485/2019 17 alleged to have been given by P.W.1 reveals that it was given only on 9.10.15 and not on 8.10.15, as deposed by P.W.1. Neither any steps have been taken by the prosecution to address the contradiction, nor any explanation has been furnished by the prosecution explaining the delay in lodging the complaint, leading to the registration of the FIR. The above delay in lodging the complaint throws a doubt on the veracity of the case projected by P.W.1. The said contradiction in the evidence of P.W.1, vis-a-vis the documentary evidence, leads this Court to the irrefutable conclusion that it is necessary for this Court to browse through the evidence of P.W.2, the victim, with a fine toothed comb to appreciate its sufficiency in fixing the culpability on the accused.
29. Much reliance has been placed on the evidence of the victim to suggest that the said evidence, standing alone, by itself is sufficient to establish the charge against the accused. This Court has gone through the evidence of the victim in chief as also her evidence in cross. To say the least, the evidence in chief, to the mind of this Court, does not inspire confidence and it reveals only a parrot like version being stated by the victim, which can only be inferred as a tutored version and not otherwise. Further, the evidence of the victim clearly shows that her school starts at 9.00 a.m. and that she returns home after school at 3.30 p.m. ___________ http://www.judis.nic.in Crl. A. No.485/2019 18 It is to be remembered that P.W.1, after her work, returns home at 5.30 p.m. Therefore, time of commission of the act alleged assumes significance in establishing the hand of the accused in sexually exploiting the victim. While the defence has elicited the time when the victim is at home and the possibility of sexual exploitation, however, for reasons best known, the prosecution has not taken any effort to establish the time when the sexual exploits are said to have taken place.
30. A conspectus reading of the evidence of P.W.s 1 and 2 as also the evidence of P.W.s 12 and 13 and taking into consideration the evidence of the victim leads this Court to the undeniable conclusion that the evidence of the victim alone cannot be sufficient in the present case to establish the charge against the accused.
31. The last piece of jigsaw in the case of the prosecution is the medical evidence, both oral and documentary. According to the prosecution, it is the evidence of P.W.s 1 and 2 that P.W.2 was sexually exploited by the appellant/A-3 on 13.7.14. A perusal of Ex.P-8, accident register, reveals that the hymen of the victim was not intact, meaning thereby, that the victim has already been ___________ http://www.judis.nic.in Crl. A. No.485/2019 19 subjected to sexual assault, either voluntarily or through pressure. However, it is the case of the prosecution that the offence of sexual assault has been perpetrated on the victim. But it is to be pointed out that Ex.P-8 reveals that there are no external injuries on the private parts of the victim.
32. The evidence of P.W.7, the doctor, who examined P.W.2 also is to the same effect as to the contents reflected in Ex.P-8. P.W.7 has categorically deposed that the victim was subjected to sexual assault. It is the further evidence of P.W. 7 that the smear of P.W.2, when subjected to serological test, returned a negative result to the effect that grouping of the semen was not conclusive. Similarly, the evidence of P.W.9, the forensic analyst, who tested the swabs containing the smear obtained from P.W.2 has deposed that the smear did not contain any semen and had further deposed that analysis of the slides containing the semen of the A-1 and A-2, the blood group was not detectable and to that effect had issued Ex.P-12. It is to be pointed out that smear was not obtained from the appellant/A-3 and the fallacy in the investigation in not obtaining the smear from the appellant/A-3 has not been explained by the prosecution, more so, when the appellant has also been shown as A-3. This is one of the very crucial link to establish the involvement of the appellant/A-3 in the commission of the offence. ___________ http://www.judis.nic.in Crl. A. No.485/2019 20 Further, when the prosecution has taken steps to obtain the smear of A-1 and A-2, there is no explanation for not obtaining the smear of the appellant/A-3. Therefore, from the above evidence, it is categorically clear that the involvement of the appellant/A-3 in the alleged offence has not been established by the prosecution, except for the evidence of P.W.s 1 and 2, which suffers with grave contradictions.
33. On an overall analysis of the evidence, both oral and documentary, it is manifestly clear that the case projected by the prosecution against the appellant/A-3 does not fall short of evidence, but it is clearly a case of no evidence. The contradictions in the evidence of P.W.s 1 and 2, the medical evidence, which does not in any way further the case of the prosecution, except for the fact that the victim had been subjected to sexual exploitation coupled with the delay in lodging the complaint clearly stares at the prosecution theory and this Court is left with no other alternative but to set aside the conviction and sentence awarded by the Court below.
34. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the appellant/A-3 by the Sessions Judge, Fast Track Mahila ___________ http://www.judis.nic.in Crl. A. No.485/2019 21 Court, Virudhunagar @ Srivilliputtur, in Spl. S.C. No.1/2016 dated 06.08.2019 are set aside and the appellant/A-3 is acquitted of all the charges framed against him. The appellant/A-3 is directed to be released forthwith unless his custody/detention is required in connection with any other case/proceeding. Fine amounts, if any, paid by the appellant/A-3 shall stand refunded. Consequently, connected miscellaneous petition is closed.
18.11.2019
Index : Yes / No
Internet : Yes / No
GLN
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http://www.judis.nic.in
Crl. A. No.485/2019
22
To
1. The Sessions Judge
Fast Track Mahila Court
Virudhunagar at Srivilliputtur.
2. The Superintendent of Prison
Central Prison, Madurai.
3. The Inspector of Police
All Women Police Station
Sattur, Virudhunagar District.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court
Madurai.
5. The Section Officer
Criminal Records
Madurai Bench of Madras High Court
Madurai.
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http://www.judis.nic.in
Crl. A. No.485/2019
23
V.PARTHIBAN, J.
GLN
PRE-DELIVERY JUDGMENT IN
CRL. A (MD) NO. 485 OF 2019
Pronounced on
18.11.2019
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http://www.judis.nic.in
Crl. A. No.485/2019