Madras High Court
Unknown vs Balamurugan on 26 August, 2009
CRL.A.(MD)No.298 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 23.04.2021
DELIVERED ON : 03.09.2021
CORAM
THE Hon'ble MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.A.(MD)No.298 of 2015
State represented by
The Inspector of Police,
Pudur Police Station,
Thoothukudi District.
(Crime No.179 of 2004) : Appellant
Vs.
Balamurugan : Respondent
PRAYER: Criminal Appeal filed under Section 378 of Criminal Procedure
Code, to set aside the judgment of acquittal passed by the learned Assistant
Sessions Judge, Kovilpatti in S.C.No.200 of 2005, dated 26.08.2009 and
convict the respondent/accused.
For Appellant :Mr.K.K.Ramakrishnan
Additional Public Prosecutor
For Respondent :Mr.S.Jayasingh
Legal Aid Counsel
***
JUDGMENT
https://www.mhc.tn.gov.in/judis 1/32 CRL.A.(MD)No.298 of 2015 This is an appeal filed by the State against the judgment of acquittal passed by the learned Assistant Sessions Judge, Kovilpatti in S.C.No.200 of 2005, dated 26.08.2009.
2.The brief facts of the case are as follows:
2.1.The victim and the accused herein are residing in the local limit of Pudur Police Station, Thoothukudi District. The family of the victim is known to the family of the accused. The victim-P.W-3, is the third daughter of P.W-1-Karkkuvelammal and P.W-2-Mariyasingam. P.W-1 and P.W-2 have four children. The eldest daughter is working in a Mill. The second daughter, Nishanthi, is working in a Match Factory. The youngest daughter is studying in School.
2.2.On the date of incident, i.e., on 15.09.2004, P.W-1 and P.W-2 had gone to Kovilpatti regarding the marriage arrangement for their eldest daughter. The eldest daughter and the second daughter had been away from home to attend their regular job. The fourth/youngest daughter had gone to attend the school. Therefore, the third daughter, victim herein, was alone at home.
https://www.mhc.tn.gov.in/judis 2/32 CRL.A.(MD)No.298 of 2015 2.3.On the date of occurrence, around 06.00 p.m., the victim had gone to take bath in the bathroom on the backside of her house. The said bathroom is a thatch covered small hut. By evening, the second daughter Nishanthi had returned home from her work and she noticed that her younger sister/the victim was not at home. Therefore, she went in search of her. When she went near the bathroom to check whether her sister is there, she saw the accused running from the bathroom. She saw the victim girl lying on the floor of the bathroom. Since the victim is a deaf and dumb, she took her to their home by covering her body with a cloth. When she enquired, the victim girl had informed what had taken place through sign language. She waited for the other sisters to join her. When their parents returned, they had informed them about the sexual assault on the victim girl by the accused, who was an acquaintance to the family.
2.4.P.W-1 and P.W-2 approached the family of the accused to insist them to marry the victim girl. They took time and then declined to marry. Therefore, P.W-1 and P.W-2 approached the Pudur Police Station and preferred a complaint under Ex.P-1. The Pudur Police registered a case in Cr.No.179 of 2004. Since the Pudur Police had not taken steps, on 25.09.2006, P.W-1 and P.W-2 approached All Women Police Station, https://www.mhc.tn.gov.in/judis 3/32 CRL.A.(MD)No.298 of 2015 Vilathikulam. P.W-10-Sasikalarani, Sub Inspector of Police, All Women Police Station, Vilathikulam, received the complaint from P.W-1 and P.W-2, and on her enquiry, she came to know that already a complaint had been lodged with Pudur Police Station. P.W-10 then visited the Pudur Police Station and enquired the case in Cr.No.179 of 2006 of Pudur Police Station, and took the FIR, as it is connected to sexual assault on woman, the All Women Police Station, Vilathikulam, has jurisdiction over the same. She took all the files connected with Crime No.197 of 2006 from the Pudur Police Station and sent the express FIR along with the complaint to the learned Judicial Magistrate, Vilathikulam and a copy of the FIR and complaint was sent to P.W-12-Joy Issac Pandi, the Inspector of Police, All Women Police Station, Thoothukudi.
2.5.P.W-12 then visited the place of occurrence, the residence of P.W-1 and P.W-2 on 25.09.2004 and in the presence of P.W-1, P.W-2, and P.W-7- Karuppasamy, she prepared a rough sketch under Ex.P-8 and enquired P.W-1, P.W-2, P.W-3, P.W-4 and other witnesses, Palanisamy Thevar, Karuppasamy, Mariyappan. Since P.W-3-victim, is a deaf and dumb, the sign language of the victim was interpreted to P.W-12-Inspector of Police, All Women Police Station, Thoothukudi, who then sent a https://www.mhc.tn.gov.in/judis 4/32 CRL.A.(MD)No.298 of 2015 requisition to the learned Judicial Magistrate to subject the victim girl for medical examination to determine her age and to examine her regarding the sexual assault on her.
2.6.Based on the request of P.W-12 and on the orders of the learned Judicial Magistrate, P.W-10-Sub Inspector of Police, All Women Police Station, Vilathikulam, accompanied by woman constables subjected the victim to medical examination before the Vilathikulam Government Hospital, who was accompanied by her mother-P.W-1, since the victim girl is a deaf and dumb, where P.W-9-Dr.Sivananthavalli, had examined the victim girl by 05.25 p.m. on 27.09.2004. On her enquiry, P.W-9, came to know that P.W-3-victim girl, was subjected to sexual assault by a known person. Since the victim is deaf and dumb, P.W-1-mother of the victim, interpreted the sign language to P.W-9- Doctor. On her examination, P.W-9 found that there were no nail scratches or bite markings on the body of the victim girl and no visible injury was seen on the body of the victim girl. On her medical examination, she found that the victim girl was subjected to sexual assault, as her hymen was torn and she was bleeding. Therefore, she found that the victim girl was subjected to sexual assault. Her uterus was found normal. For further clinical examination, she was forwarded to https://www.mhc.tn.gov.in/judis 5/32 CRL.A.(MD)No.298 of 2015 Kovilpatti Government Hospital to determine the blood group and to determine the age. The examination report by P.W-9 was marked as Ex.P-5. She had opined that since the alleged sexual assault took place twelve days before the date of examination, there was no physical injury on the body of the victim girl.
2.7.P.W-11 had examined P.W-3-victim girl, on 05.10.2004 at Government Hospital, Kovilpatti. The victim girl was subjected to x-ray test to determine her age. Based on the x-ray examination, P.W-11 had issued Ex.P-7, and M.O-1, x-ray, based on which, she determined the age of P.W-3-victim girl, ranging from 12 to 16.
2.8.The accused in this case had surrendered before the learned Judicial Magistrate-II, Kovilpatti, on 29.09.2004. Therefore, P.W-12 sent requisition to the learned Judicial Magistrate, Vilathikulam, to subject the accused to medical examination. On 06.10.2004, the accused, Balamurugan, was forwarded to Kovilpatti Government Hospital, for medical examination along with Escort Police, Muniyasamy. https://www.mhc.tn.gov.in/judis 6/32 CRL.A.(MD)No.298 of 2015 2.9.P.W-8-Dr.Palaniappan, on 06.10.2004, had received requisition from the learned Judicial Magistrate, Vilathikulam, regarding the medical examination of accused, Balamurugan. He had examined the accused. On medical examination, he had opined that the accused had normal nourished body and he is potent and he had issued potency certificate and his report was marked as Ex.P-4.
2.10.On 01.11.2004, P.W-12, had obtained statement of P.W-8- Dr.Palaniappan, P.W-9-Dr.Sivananthavalli and P.W-11-Dr.Nancydora. She had also enquired and recorded the statement of witnesses, Muthuselvi, Sevathiah and Alaguvel. She had also enquired the Sub Inspector, All Women Police Station, Vilathikulam and recorded her statement. She had enquired P.W-5-Johnson, Teacher from Deaf and Dumb School, Palayamkottai, who interpreted the sign language of the victim girl and she had laid the final report before the Court of the learned Judicial Magistrate, Vilathikulam.
2.11.The learned Judicial Magistrate, Vilathikulam, had taken cognizance of the final report laid by P.W-12-Inspector of Police under Section 173(2) of Cr.P.C., and issued summons to the accused. On https://www.mhc.tn.gov.in/judis 7/32 CRL.A.(MD)No.298 of 2015 appearance of the accused, the case was committed to the Court of the Principal Sessions Judge, as it is triable by the Court of Sessions. The Principal Sessions Judge, had made over the case to the file of the learned Additional Sessions Judge, Kovilpatti. The learned Additional Sessions Judge, Kovilpatti, had taken the case made over to him by the learned Judicial Magistrate in P.R.C.No.07 of 2005 and numbered the case as S.C.No.200 of 2005 and made over to the file of the Assistant Sessions Judge, Kovilpatti, for trial. On receipt of S.C.No.200 of 2005, the learned Assistant Sessions Judge, Kovilpatti, had framed charges under Section 376 of IPC.
2.12.The prosecution had examined the witnesses, P.W-1 to P.W-12 and marked Ex.P-1 to Ex.P-5 and MO-1. On appreciation of the evidence, the learned Assistant Sessions Judge, had acquitted the accused, based on the defence of the accused and based on the evidence in cross examination of witnesses P.W-1 to P.W-4. Aggrieved by the judgment of acquittal by the learned Assistant Sessions Judge, Kovilpatti, the State had filed the present appeal against the acquittal before this Court.
https://www.mhc.tn.gov.in/judis 8/32 CRL.A.(MD)No.298 of 2015
3.The learned Assistant Sessions Judge misdirected himself based on the defence of the accused that there was betrothal between the relatives of the accused and the sister of P.W-1 and only to prevent the marriage between the relative of the accused and the sister of P.W-1, the case was foisted. The learned Sessions Judge believed the said defence and acquitted the accused.
3.1.The Trial Court ought to have held that there were sufficient and adequate materials to prove the charges under Section 376 of IPC. The Trial Court failed to consider the evidence of P.W-5, who had interpreted the sign language of P.W-3-victim. The Trial Court failed to consider the evidence of P.W-11 who had examined the victim girl and issued the age certificate regarding the age of the victim girl that she was aged between 12 and 16. Therefore, the judicial mind is expected to protect the minor girl and believe the evidence of the victim girl.
3.2.The judgment of the learned Assistant Sessions Judge is against the guidelines issued by the Hon'ble Supreme Court regarding the sexual assault on minor victims, particularly, deaf and dumb. The learned https://www.mhc.tn.gov.in/judis 9/32 CRL.A.(MD)No.298 of 2015 Assistant Sessions Judge misdirected himself and acquitted the accused based on surmises and conjunctures, instead of believing the evidence of P.W-3-victim girl, that was available before him, which was corroborated through the evidence of P.W-9 and P.W-11, who had issued certificate under Ex.P-5 and Ex.P-7. Therefore, the judgment of acquittal is perverse.
4.The learned Additional Public Prosecutor submitted that this is a case against the acquittal of the accused by the learned Trial Judge. He would further submit that the findings given by the learned Trial Judge is against the reported Rulings regarding the sexual offences, particularly, dealing with minors and more particularly, deaf and dumb victims. The learned Additional Public Prosecutor drew the attention of this Court to the judgment of the Trial Judge, wherein, he had found fault with the lodging of complaint and disbelieved the complaint on the ground that there had been interpolation. The main attack of the learned Trial Judge was regarding the lodging of complaint and not on the evidence available before the Court from the victim, who was examined as P.W-3. The sister of the victim girl had seen the occurrence. The scene of occurrence is the bathroom, where, the victim was alleged to have been taking bath around 06.00 pm, when the parents were away from home regarding marriage talks for the elder sister https://www.mhc.tn.gov.in/judis 10/32 CRL.A.(MD)No.298 of 2015 of the victim. P.W-4, who is the elder sister of the victim, just returned home and on seeing her sister not at home, she went to look for her and when she went near the bathroom to check whether her sister is there, she saw the accused running from the bathroom. She immediately took the victim to the house. It is her case that the victim was lying without dress in the bathroom floor. The learned Trial Judge did not discuss on those aspects, but, found fault with the evidence of P.W-9-Doctor, and on those grounds, he had acquitted the accused.
5.In short, the guidelines issued by the Hon'ble Supreme Court repeatedly commenting upon the way the Trial Courts deal with the sexual offences had been ignored by the learned Trial Judge. The facts, which were dealt with by the learned Trial Judge, had been misconceived. He had misdirected himself in appreciating the evidence and ignored the guidelines issued by the Hon'ble Supreme Court from time to time repeatedly.
6.If the learned Trial Judge believed the evidence of victim/prosecutrix, it is enough to convict the accused as per the words of the Hon'ble Supreme Court. If the learned Trial Judge, in spite of the evidence available before the Court through prosecutrix, seeks further https://www.mhc.tn.gov.in/judis 11/32 CRL.A.(MD)No.298 of 2015 evidence through corroborating evidence, it is nothing but adding insult to her injury. Therefore, the prosecution had come up with this appeal to set aside the order of acquittal and convict the accused.
7.The learned Additional Public Prosecutor relied upon the following Rulings of the Hon'ble Supreme Court:
(i) State of Maharstra vs Bandu Alias Daulat, reported in (2018) 11 SCC 163. The relevant portion of which reads as follows:
“7.The evidence of the mother of the victim clearly shows that it was the respondent-accused who took away the victim. The victim and the accused were seen together by P.W-2, Gajanan Marutrao Sonule on the date of commission of offence. The victim immediately after the occurrence narrated the same to her mother as to what happened as reflected in the FIR and the version of the P.W-1. Rape has been confirmed by medical evidence. Identity of accused is not in dispute. In these circumstances the trial court having convicted the respondent, the High Court was not justified in setting aside the conviction.”
(ii) State of Rajasthan vs N.K., the Accused, reported in (2000) 5 SCC 30. The relevant portion of which reads as follows:
“9.Having heard the learned counsel for the parties we are of the opinion that the High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. It is true that the golden thread which runs throughout the cob-web of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal https://www.mhc.tn.gov.in/judis 12/32 CRL.A.(MD)No.298 of 2015 jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on prawl for easy preys, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women. In Bharwada Bhoginbhai Hirijibhai Vs. State of Gujarat 1983 Crl.L.J. 1096 this Court observed that refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. This court deprecated viewing evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion.....”
(iii) State of Himachal Pradesh vs Sanjay Kumar Alias Sunny, reported in (2017) 2 SCC 51. The relevant portion of which reads as follows:
“28.It seems that the main reason which has influenced the mind of the High Court is that there were 20-25 persons in the joint family and some of them were bound to be in the house at the time of the incident and, therefore, it was not possible that such an incident would go unnoticed if it had actually happened. This is coupled with the fact that the salwar of the prosecutrix was smeared with blood stains, which could not have gone unnoticed. Here again, the High Court has gone by the aforesaid two facts without going into the details and the discussion is totally perfunctory. The aforesaid two facts are simply noted and on that basis the prosecution version is discarded as unbelievable. These may have been relevant factors only if there was absence of any explanation by the prosecution on these aspects. In the first instance, it may be noticed that the room of the respondent was on the first floor where the prosecutrix was called. Defence has nowhere stated that on the first floor there were rooms adjacent to the room of the respondent and there were other members of the family. What is smoke-screened in the process is that in the cross- examination the prosecutrix categorically stated that the incident had taken place in the morning hours around 8:00 a.m. to 9:00 a.m. and the female members returned back to the house after one hour of the incident. It also came in her cross-examination that during the act https://www.mhc.tn.gov.in/judis 13/32 CRL.A.(MD)No.298 of 2015 of sexual intercourse, she remained confined in the room for about 9-10 minutes. She raised screams but her mouth was gagged. Her confinement by the respondent on the first floor for about 9-10 minutes was insignificant and would not have been taken note of by the other family members who might have been present there. Further, nobody could notice as her screams were doused by gagging her mouth. Her statement also suggests that she had fallen unconscious and on regaining consciousness she did not find anyone in the room. After she came out of the room, she obviously refrained from disclosing the incident to anyone because of the threat extended to her by the respondent. In such a situation, obviously the prosecutrix had ensured that her salwar which was smeared with blood stains is not seen by any person.
(iv) Sham Singh vs State of Haryana, reported in (2018) 8 SCC 34.
The relevant portion of which reads as follows:
“6.We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. (see State of Punjab vs. Gurmit Singh, (1996) 2 SCC 384 (para21)).”
(v) Nayankumar Shivappa Waghmare vs State of Maharastra, reported in (2015) 11 SCC 213. The relevant portion of which reads as follows:
https://www.mhc.tn.gov.in/judis 14/32 CRL.A.(MD)No.298 of 2015 “14.The Learned Counsel for the appellant argued before us that since the trial Court has acquitted the appellant giving him benefit of reasonable doubt, the High Court erred in law in convicting him as it is settled principle of law that where two views are possible, the finding of the trial Court should not be disturbed.
15.The above argument advanced on behalf of the appellant, in the Present case is misconceived for the reason that if the same is accepted, there cannot be any case where appeal against acquittal can be allowed, and the error committed by the trial Court can be corrected. The perusal of the impugned judgment shows that after discussing the evidence on record, the High Court has come to a definite conclusion that the trial Court has erred in law in coming to the conclusion that the charge in respect of offence Punishable undeletions 7 and 13(1) read with Section 13(2) of the Prevention of Corruption Act, 1988 is established. The High Court has clearly held that the trial Court erred in law in giving benefit of reasonable doubt to the accused in the present case. After going through the evidence on record we are also of the opinion that it is not a case where two views are possible. As such, we do not find any illegality in the impugned order reversing the order of acquittal recorded by the trial Court.”
(vi) Anjan Dasgupta vs State of West Bengal and others, reported in (2017) 11 SCC 222. The relevant portion of which reads as follows:
“39....... It is well settled that in case where an order of acquittal has been made on improper and erroneous appreciation of evidence, it is always open to the court of appeal to make proper and reasonable appreciation evidence and differ from the order of acquittal and in such event, it shall never hesitate in reversing the same. ......”
(vii) Laltu Ghosh vs State of West Bengal, reported in (2019) 15 SCC 344. The relevant portion of which reads as follows:
“20.The High Court has found that there are substantial and compelling reasons to differ from the finding of acquittal https://www.mhc.tn.gov.in/judis 15/32 CRL.A.(MD)No.298 of 2015 recorded by the Trial Court. The High Court having found that the view taken by the Trial Court was not plausible in view of the facts and circumstances of the case, has on independent evaluation and by assigning reasons set aside the judgment of acquittal passed by the Trial Court. We concur with the judgment of the High Court, for the reasons mentioned supra.”
(viii) Krishna Ram vs State of Rajasthan, reported in (2009) 11 SCC
708. The relevant portion of which reads as follows:
“15.There cannot be any quarrel with the settled propositions of law that if on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible one as held by the trial court for acquitting the accused and the other for convicting the accused, in such a situation, the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court. It is also equally well-settled that where the material on record leads to a sole and inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court.”
(ix)Harbans Singh and Another vs State of Punjab, reported in AIR 1962 SC 439. The relevant portion of which reads as follows:
“8.The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an Appeal court should not interfere with an order of acquittal. (Vide Suraj Pal Singh v. The State (1); Ajmer Singh v. State of Punjab (2); Puran v. State of Punjab (3). The use of the words "compelling reasons" embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the (1) https://www.mhc.tn.gov.in/judis 16/32 CRL.A.(MD)No.298 of 2015 [1952] S. C. R. 194. (2) [1953] S. C. R. 418. 3)A.l.R. (1953) S. C.
459. words "compelling reasons". In later years the Court has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (Vide Chinta v. The State of Madhya Pradesh (1); Ashrafkha Haibatkha Pathan v. The State of Bombay (2),
9.It is clear that in emphasising in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the Court did not in any way try to curtail the power bestowed on appellate courts under s 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the facts that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the Court was anxious to impress can the appellate courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of this Court on "compelling reasons". But, on close analysis, it iq clear that the principles laid down by the court ill this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine (1) Criminal Appeal No. 178 of 1959 decided on l8-11-60. 2) Criminal Appeal No. 38 of 1960 decided on 14-12-60. the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established.
https://www.mhc.tn.gov.in/judis 17/32 CRL.A.(MD)No.298 of 2015
10.When the High Court's judgment shows clearly that the matter has been approached in the proper manner and the correct principles have been applied, there is very little scope for this Court to interfere with an order made by the High Court convicting an accused person in an appeal against acquittal. Once it is found that the principles laid down by this Court have been correctly applied this Court will not ordinarily embark upon a reappraisal of the evidence to ascertain whether the High Court was right in its view of the evidence. The only examination of the evidence that this Court may find itself called upon to undertake will ordinarily be just so much as is necessary to see whether the High Court has approached the question properly and applied the principles correctly.”
(x) M.G.Agarwal vs State of Maharastra, reported in AIR 1963 SC
200. The relevant portion of which reads as follows:
“17.In some of the earlier decisions of this Court, however, in emphasizing the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the order of acquittal and so, "the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for (1) (1934) L.R. 61 1. A. 398. (2) A.I.R. 1945 P.C. 151, very substantial and compelling reasons": vide Surajpal Singh v. The State (1). Similarly in Ajmer Singh v. State of Punjab (2), it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are "very substantial and compelling reasons to do so.') In some other decisions, it has been stated that an order of acquittal can be reversed only for "good and sufficiently cogent reasons" or for "strong reasons". In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended- to introduce an additional condition in clause (a) of section 423 (1) of the Code. All that the said observations are intended to em- phasise is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in the case of Shoo Swarup, the presumption of https://www.mhc.tn.gov.in/judis 18/32 CRL.A.(MD)No.298 of 2015 innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial." Therefore, the test suggested by the expression "substantial and compelling reasons"
should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan (2), and Harbans Singh v. The State of Punjab (4); and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. ......”
(xi) State of Madhya Pradesh vs Preetam, reported in (2018) 17 SCC 658. The relevant portion of which reads as follows:
“(10) In the present case evidence of prosecutrix (P.W-1) is supported by the medical evidence and also by the evidence of Mangrulal (P.W-4) who saw the accused running away from the scene of occurrence. Insofar as the consent of the prosecutrix (P.W-1) pointed out by the High Court is concerned, we find it difficult to agree with the view taken by the High Court. In her chief examination, Dr. U.S. Vasnik (P.W-6) has stated that the age of the victim could be between 13 and 17 years. Of course in her cross-examination, Dr. Vasnik has agreed to the suggestion that the age of the victim could be 17 years.”
(xii) State of Punjab vs Gurmit Singh and others, reported in (1996) 2 SCC 384. The relevant portion of which reads as follows:
“.....The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape https://www.mhc.tn.gov.in/judis 19/32 CRL.A.(MD)No.298 of 2015 or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.....
8.In all these Rulings, the Hon'ble Supreme Court had reiterated that if the evidence of prosecutrix is believed by the learned Trial Judge, the learned Trial Judge need not search for any further corroboration. Here, the evidence of the Doctor was available and the Doctor had supported the prosecution case. But, the learned Trial Judge himself gives an explanation to the Doctor's evidence, as if the Doctor's evidence is unbelievable and had acquitted the accused, which had ended in miscarriage of justice.
Therefore, the learned Additional Public Prosecutor seeks to set aside the order of acquittal and convict the accused and thus render justice.
9.Mr.S.Jayasingh, learned Counsel for the respondent/accused appeared through High Court Legal Services Committee and advanced his arguments. As per his submission, there was already a complaint from the victim's family to the Pudur Police Station with regard to eve teasing. Therefore, the Pudur Police had warned the accused and entered compromise. Subsequently, the accused in this case wanted to marry a girl of his choice. Only to prevent the betrothal of the said accused, this case https://www.mhc.tn.gov.in/judis 20/32 CRL.A.(MD)No.298 of 2015 had been foisted by the victim's family. The learned Trial Judge, on proper appreciation of the evidence, acquitted the accused. As per the reported Ruling of the Hon'ble Supreme Court, when the Trial Judge acquits the accused, the Trial Judge had the benefit of observing the witnesses and their demeanour. Therefore, the finding of acquittal by the Trial Judge gains more weightage. The learned Trial Judge had appreciated the evidence available before the Court and had come to a clear conclusion that the accused is entitled to acquittal and the prosecution had miserably failed to prove the case beyond reasonable doubt.
10.The learned Counsel for the respondent/accused drew the attention of this Court to page No.30 of the typed set of papers, which dealt with the Doctor's evidence. The Doctor had accepted the suggestions of the defence Counsel in the cross examination and therefore, the Doctor's evidence is not supporting the victim's evidence. In short, the prosecution had miserably failed to prove the case beyond reasonable doubt and on the reasonable doubt only, the learned Trial Judge had acquitted the accused. Therefore, the learned Counsel for the respondent/accused seeks indulgence of this Court to dismiss this appeal filed by the prosecution and confirm the order of acquittal passed by the learned Trial Judge.
https://www.mhc.tn.gov.in/judis 21/32 CRL.A.(MD)No.298 of 2015
11. Point for consideration Whether the judgment of acquittal recorded by the learned Assistant Sessions Judge, Kovilpatti is against the available evidence in favour of the prosecution through the evidence of P.W-3-victim girl and corroborated by the evidence of P.W-9 to P.W-11 or not?
12.On perusal of the records, it is found that the victim girl had deposed cogently. P.W-1 is the mother of the victim. She had spoken to about the incident. Her third daughter is the victim girl. She is a deaf and dumb. The date of occurrence is 15.09.2004. She had stated that on the date of occurrence, ie., on 15.09.2004, she and her husband had gone to Kovilpatti regarding the marriage proposal of her elder daughter, who is employed in a Mill. The second daughter is employed in a Match Factory. The third daughter is the victim girl. The fourth daughter had gone to school. They returned next day after attending the marriage proposal at Kovilpatti. When they returned home, their daughters informed them about the incident. P.W-1 enquired with the victim girl. She had expressed her sufferings through sign language. She was weeping. Therefore, P.W-1 & P.W-2 had gone to Vilathikulam All Women Police Station and preferred a https://www.mhc.tn.gov.in/judis 22/32 CRL.A.(MD)No.298 of 2015 complaint. P.W-2-the father of the victim girl, had also deposed regarding the same.
13.It is the defence of the accused that the accused is known to the family of the victim. The victim and the accused used to meet in the house. Therefore, nobody suspected. The family of the victim insisted the accused to marry her. Since the accused refused, the complaint was preferred against the accused to the Pudur Police Station and they took the matter as eve teasing only and compromised the matter. Subsequently, this case was filed before the All Women Police Station, Vilathikulam.
14.The defence of the accused had been conceded fairly by all the witnesses. That does not mean that the occurrence did not take place. P.W-1 to P.W-14 withstood cross examination and stuck to their stand that P.W-3- victim, was raped by the accused. The delay in lodging FIR is conceded. They waited for the accused to marry the victim. Since he refused, they had lodged the FIR.
https://www.mhc.tn.gov.in/judis 23/32 CRL.A.(MD)No.298 of 2015
15.The defence of the accused is that he was meeting the victim only in the house of the victim and therefore, they were in relationship, but a false case had been foisted. This cannot be accepted, because of the deposition of P.W-9-Doctor. In the cross examination, the Doctor had stated that after twelve days of the occurrence, the victim girl was subjected to medical examination and therefore, there is no evidence of scratches on her breast and other parts of the body. She had specifically denied the suggestion of the defence in the cross examination that even after ten days, the signs of forcible intercourse will be available on the genital of the affected victim girl. She had admitted that after the victim was subjected to forcible intercourse, she would have cried for help. The same suggestion was put to P.W-5-Johnson and Doctor who had stated that deaf and dumb persons will not be able to cry for help. Some exceptions are there, otherwise, the deaf and dumb will not be able to cry for help.
16.The explanation offered by P.W-1 and P.W-2 who are the parents of the victim girl that they waited for ten days for the accused to marry the victim, is found reasonable, considering their helplessness and illiterate status. The fact that only after the said waiting period, they had instituted https://www.mhc.tn.gov.in/judis 24/32 CRL.A.(MD)No.298 of 2015 the case is found reasonable and accepted for the delay in instituting the case.
17.This is a case of sexual harassment. Since the age of the victim girl is below eighteen years on the date of occurrence, consent is immaterial. Having intercourse with the girl, who had not attained the age of majority, is an offence attracting Section 376 of Cr.P.C., for which Section 375 of IPC is the reference Section which reads as follows:
“375. Rape — A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:— First — Against her will.
Secondly — Without her consent.
Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly — With or without her consent, when she is under eighteen years of age.
Seventhly – When she is unable to communicate consent.” https://www.mhc.tn.gov.in/judis 25/32 CRL.A.(MD)No.298 of 2015
18.The learned Additional Public Prosecutor for the appellant relied on the Rulings of the Hon'ble Supreme Court as early as 1963. As far as the offences against the women are concerned, the Hon'ble Supreme Court had time and again reiterated that delay in lodging FIR alone is not a ground to acquit the accused. Also, it had been repeatedly reiterated that the shoddy investigation is not a ground to acquit the accused. If the evidence of prosecutrix inspires confidence of the Trial Judge, the Trial Judge can convict the accused without waiting for corroborative evidence. In case of sexual assault, there will not be corroborating evidence available.
19.In the light of the above Rulings and in the light of the guidelines issued by the Hon'ble Supreme Court, the findings given by the learned Trial Judge in acquitting the accused ignoring the evidence of P.W-3-victim, P.W-5-Teacher from the Government School for Deaf and dumb, who had interpreted the sign language of P.W-3 and the evidence of P.W-9 and P.W-10 are found unacceptable. This Court is convinced with the fact that P.W-3-victim girl was subjected to sexual assault, as stated by P.W-1 and P.W-2 who are the parents and who were not at home and P.W-4 who had immediately seen her in the bath room, when P.W-3 had not returned on https://www.mhc.tn.gov.in/judis 26/32 CRL.A.(MD)No.298 of 2015 time after bath, is found acceptable. The lengthy course of examination and the contradictions cannot be a ground for acquitting the accused. The defence of the accused that a case had been foisted against him to prevent him to contract a marriage in the neighbourhood and forcing him to marry the victim girl, cannot at all be accepted in the light of the evidence available before the Court. Therefore, the judgment of the learned Trial Judge acquitting the accused based on doubts in the prosecution case cannot at all be accepted. As per the Rulings cited above, when the evidence of the prosecutrix, who is the minor on the date of occurrence, is found believable and inspire the confidence of the Court, the Court need not have doubt regarding the occurrence. Therefore, the charges framed against the accused attracts Section 376 IPC.
20.This Court is convinced that P.W-1 and P.W-2 were not at home on the date of occurrence. P.W-4 was available at home and immediately after seeing the occurrence and on her seeing, the accused ran away from the bathroom. She only brought P.W-3 from the bathroom to the home. There are contradictions that she was taken to hospital for the injuries and only after twelve days from the date of occurrence, she was subjected to medical examination. P.W-9, who is the woman doctor, had clearly deposed that the https://www.mhc.tn.gov.in/judis 27/32 CRL.A.(MD)No.298 of 2015 examination of the victim girl/prosecutrix had given clue that she was subjected to intercourse. Therefore, this Court had no doubt to believe the prosecution. The reasons mentioned by the learned Trial Judge acquitting the accused based on the defence of the accused and ignoring the evidence of the victim girl translated to the Court through P.W-5-Johnson, are found unacceptable, in the light of the Rulings of the Hon'ble Supreme Court cited by the learned Additional Public Prosecutor.
21.During the course of arguments, the learned Counsel for the respondent/accused submitted that the judgment of acquittal need not be interfered with by this Court, as the judgment had been pronounced based on the proper appreciation of evidence.
22.The said principle laid down by the Hon'ble Supreme Court is as a general Rule for the Appellate Court not to interfere with the findings of the acquittal by the Trial Court, which is not applicable to cases under sexual assault on woman and children. When the findings of the Trial Court is based on immaterial things, that are found in the cross examination, then it is for the Appellate Court to set right the law. Here, that was a case. There is a delay in lodging FIR. There are minor contradictions between the https://www.mhc.tn.gov.in/judis 28/32 CRL.A.(MD)No.298 of 2015 evidence of P.W-1, P.W-2, P.W-3 and P.W-4. All belong to the same family, but the factum of rape had not been disproved in the cross examination. Therefore, the arguments of the learned Counsel for the respondent/accused that the Appellate Court need not interfere in the judgment of acquittal by the Trial Court, as it had been pronounced based on the proper appreciation of evidence, is rejected in the light of the above Rulings cited by the learned Additional Public Prosecutor mentioned in paragraph 7 above.
23.Therefore, the findings of the learned Assistant Sessions Judge, and the conclusion arrived at based on the defence of the accused and based on surmises and conjunctures are contrary to the guidelines issued to the Trial Courts, which deal with the cases of sexual assault on women and minor children. Here, the fact that the victim is not only a minor, but also a deaf and dumb, was ignored by the learned Trial Judge. The age as per Ex.P-5 is to be considered as a minor. Therefore, the theory that she consented also cannot be accepted since consent is immaterial regarding the minor.
24.In the light of the above discussion, the point for consideration is answered in favour of the appellant/prosecution and against the https://www.mhc.tn.gov.in/judis 29/32 CRL.A.(MD)No.298 of 2015 accused/respondent.
In the result, the appeal filed by the prosecution is allowed. The judgment of acquittal passed by the learned Assistant Sessions Judge, Kovilpatti in S.C.No.200 of 2005, dated 26.08.2009 is set aside. The accused is found guilty to the charge under Section 376 of IPC. The accused is convicted for the offence under Section 376 IPC having committed rape of a helpless deaf and dumb minor girl.
To hear the Prosecution and the Accused regarding sentencing, call on 26.11.2021 through virtual mode. (After the accused is secured by the Pudur Police, Thoothukudi District).
The learned trial Judge/Assistant Sessions Judge, Kovilpatti is directed to issue warrant to secure the accused and remand him. He shall be produced through Video Conferencing to hear the plea of sentencing.
03.09.2021 Index: Yes/No cmr Note:Issue order copy by 23.11.2021 https://www.mhc.tn.gov.in/judis 30/32 CRL.A.(MD)No.298 of 2015 To
1.The Assistant Sessions Judge, Kovilpatti.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 31/32 CRL.A.(MD)No.298 of 2015 SATHI KUMAR SUKUMARA KURUP, J.
cmr Pre-delivery judgment made in CRL.A.(MD)No.298 of 2015 03.09.2021 https://www.mhc.tn.gov.in/judis 32/32