Criminal Appeal No. 50 of 2006 · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06-08-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.50 of 2006State: rep.byThe Inspector of PoliceVaduvur Police StationThiruvarur District(crime No.533/1999).Appellant /Complainant-vs-Kalaiarasan.. Respondent /AccusedThis appeal is filed U/S 378 Cr PC against the Judgmentmade in S.C.No.230/2001 dated 22.09.2003 on the file of theAssistant Sessions Judge, Thiruvaur.For appellant : Mr.V.R.Balasusbramaniam Additional Public ProsecutorFor respondent : Mr.D.Veerasekaran JUDGMENT The State, who has preferred an appeal against theorder of acquittal against the accused, who has faced thecharge under Sections 366A,376 and 506(ii) of IPC inS.C.No.230 of 2001 on the file of Assistant Sessions Judge,Thiruvarur, is the appellant herein.2. After taking cognizance of the offence, the learnedCommittal Magistrate, on appearance of the accused, hadfurnished the copies under Section 207 of Cr.P.C. and sincethe case is exclusively triable by the Court of Sessions, hadcommitted under Section 209 of Cr.P.C.. On appearance beforethe learned Sessions Judge, the charges under Sections 366A,376, and 506(ii) of IPC, were framed against the accused andwhen questioned, the accused pleaded not guilty.3. On the side of the Prosecution , P.Ws 1 to 18 wereexamined. Exs P1 to P21 were exhibited and M.Os 1 to 5 weremarked. https://hcservices.ecourts.gov.in/hcservices/

4. P.W.1 is the mother of the victim girl"A" a minorgirl, who was studying in III Standard at the time of theoccurrence. On 17.11.1999 at about 5.30p.m., when P.W.1 hadreturned from her agricultural coolly work, she found herdaughter"A" has stained with blood in her inskirt,whenenquired, her daughter had informed that the accused hadkidnapped her to the house of Kanagambal and committed anoffence of rape on the verandah of Kanagambal's house. She(P.W.1) had taken the victim girl to Doctor Ashok Kumar atMannargudi, who had given first aid to her and advised her(P.W.1) to take her (P.W.2) to Tanjore Medical CollegeHospital. On 17.11.1999/18.11.1999 at about 1.00 a.m, thevictim girl was admitted in the Medical College Hospital,Tanjore and on the next day ie., on 18.11.1999 police came tothe hospital and received the complaint Ex P1 from her(P.W.1).4a. P.W.2 the victim girl, who had also corroborated theevidence of P.W.1 to the effect that on the date ofoccurrence, the accused took her to the house of Kanagambaland committed an offence of rape on the verandah of the houseof Kanagambal and that she was taken to Doctor Ashok Kumar,who gave an injection and referred her to Government Hospitalat Tanjore where her mother had preferred a complaint to thepolice, who visited there on the next day and M.O.1 is thepolyster blood stained inskirt.4b. P.W.3 is the father of P.W.2 victim girl. Accordingto him, he had returned to his house on 17.11.1999 at about8.00p.m., in the work spot and that his wife(P.W.1) hadinformed that P.W.2 her daughter was subjected to sexualassault by the accused. He further deposed that she (P.W.1)immediately took P.W2 to the Doctor Ashok Kumar, who hadgiven first aid to her and as per his advise the victim girlwas taken to Medical College Hospital, Tanjore from where ExP1 complaint was preferred by his wife P.W.1 and that he hadhanded over M.O.1 to the police at the Medical CollegeHospital, Tanjore, which was recovered by the police underMahazar.4c. P.W.4 is the witness in Ex P2 observation Mahazar,which was prepared by P.W.16. P.W.15 is the then Inspector ofPolice, Vaduvur Police Station (in charge) who on the receiptof wireless information proceeded to the Tanjore MedicalCollege Hospital on 18.11.1999 at 10.00 a.m and recorded thestatement of P.W.1 and registered the case under VaduvurPolice Station Crime No.533/1999 under Sections 376 and 506(ii) of IPC. Immediately, he had visited the place ofoccurrence and prepared Ex P2 observation Mahazar in the https://hcservices.ecourts.gov.in/hcservices/ presence of P.W.4. He had drawn a rough sketch under Ex P11and Ex P12 is the first information report. He had alsorecovered M.Os 2 to 5 blood stained cement floor, samplecement floor, blood stained sand and sample sand respectivelyin the presence of P.W.5. He has examined the witnesses andrecorded their statements. He had taken the accused to thepolice custody on 13.12.1999 at 4.30p.m., and has recorded hisvoluntary confession statement in the presence of P.W.6. Ex P3is the signature of P.W.6 in the confession statement of theaccused. Thereafter, on 14.12.1999 at about 10.30 a.m., hehad subjected the accused for potency test under Ex P16. ExP17 is the letter of requisition given by P.W.15 to theJudicial Magistrate to send the blood sample and semen to theforensic science laboratory for chemical examination andP.W.16 is the successor of P.W.15. He has also examined theother witnesses and recorded their statements.4d. P.W.7 is the headmaster of Primary Panchayat UnionSchool at Vettrikadu. Ex P4 is the age certificate issued byP.W.7 stating that the date of birth of the victim girl as25.6.1993. P.W.8 is the police constable through whom theaccused was subjected to potency test. P.W.9 had produced thematerial objects connected with this case to the MedicalCollege Hospital laboratory for chemical examination. 4e. P.W.10 is the doctor, who had examined P.W.2 on18.11.1999 at about 1.00a.m., at Medical College Hospital,Tanjore. Ex P5 is the copy of the accident register. He hadnoticed a nail mark on the left hand of the victim girl P.W.2.P.W.11 is the doctor, who had examined the accused and issuedEx P6 declaring that the accused as potent. P.W.12 is the ladydoctor, who had examined the victim girl but she has deposedbefore the Court that she has not seen any injury on theperson of the victim girl or on any parts of the body and thatthe hymen of the victim girl was found in tact. But she woulddepose that the certificate issued by her to that effect wastaken away by the hospital authorities. P.W.13 Dr.Ashok Kumarwho had examined P.W.2 on 17.11.1999 soon after the occurrenceand had given first aid, Ex P7 is the wound certificate.P.W.14 is the chemical analyst through whom ExP10 anyalyst'sreport was marked. According to him, he had examined the bloodstained inskirt of the victim girl with that of the sampleblood taken from the accused and has opined that blood stainin the inskirt of P.W.2 and the sample blood taken from theaccused belongs to the same "O" group.4f. P.W.17 is a Lab Technician in a private clinic atMannargudi. He would depose that he had tested the sampleblood of P.W.2 and has given a certificate stating that it https://hcservices.ecourts.gov.in/hcservices/ belongs to "O" group and handed over the same to P.W.1, themother of the victim P.W.2. P.W.18 is the analyst in theRegional Forensic Science Laboratory at Tanjore. He had alsoexamined the material objects connected with this case andissued Ex P19 analyst report and Ex P20 serologist's report.P.W.16 after completing the formalities has filed the finalreport on 8.10.2000 under Sections 366A ,376(f) and 506(ii) ofIPC. 5. When incriminating circumstances under Section 313Cr.P.C. were put to the accused, he would deny his complicitywith the crime.After going through the materials available on record beforethe trial Court by the prosecution including the oral anddocumentary evidence meticulously, the learned trial Judge hascome to an unassailable conclusion that the charges levelledagainst the accused were not proved beyond any reasonabledoubt and accordingly acquitted the accused from all thecharges which necessitated the State to prefer this appeal.6. Now the point for determination in this appeal iswhether the findings of the learned trial Judge is full ofmanifest error or perverse in nature leading to miscarriageof justice,to warrant any interference from this Court?7.Heard Mr.V.R.Balasubramaniam, learned Additional PublicProsecutor appearing for the State and Mr.D.Veerasekaran,learned counsel appearing for the respondent and consideredtheir respective submissions.8. The Point:P.W.2 is a minor aged 5 ½ years at the time of the occurrence.According to her evidence, the accused took her to P.W.5'shouse and committed the offence of rape. According to her,there was profuse bleeding from her genitalia after theoccurrence. P.W.1 would also depose in the chief examinationthat she would find blood stain in the wearing apparels ofP.W.2 and that she had handed over the inskirt of P.W.2 to thepolice when the victim was undergoing treatment at MedicalCollege Hospital, Tanjore on the next day ie., on 18.11.1999.According to P.W.1, after her husband had returned home atabout 7.00p.m., she took the victim to Dr. Ashokkumar,P.W.13, the local doctor at Mannargudi who had givenfirst aid to the victim girl and referred to Tanjore MedicalCollege Hospital. But P.W.13, Dr Ashok Kumar in his evidencehas deposed that he was informed at the time, when P.W.2 wasproduced before him for treatment stating that some one hadmade an attempt to rape P.W.2 and that he had given ATS https://hcservices.ecourts.gov.in/hcservices/ injection to the child. P.W.10 is the doctor, who had examinedP.W.2 the victim girl on 18.11.1999 at 1.00p.m at TanjoreMedical College Hospital. He had seen only a nail mark on theleft hand of the victim girl P.W.2 and has opined that thesaid injury is simple in nature. The victim girl P.W.2, whowas also subjected to medical examination by a lady doctorP.W.12 on 24.12.1999 but unfortunately the certificate issuedby P.W.12 was not produced by the prosecution before the trialCourt. P.W.12 doctor has clearly stated in her evidence thatthe hymen of the victim girl was found in tact and she couldnot see any nail mark or bite mark on the person of the victimgirl. 9. It is the case of the prosecution that the blood stainfound in the inskirt of the victim girl, which was recoveredat the time when she was undergoing treatment at the MedicalCollege Hospital, Tanjore. On analysis found that it belongsto "O" group and the blood sample taken from the accused alsobelongs to "O"group. But unfortunately in this case, there isno evidence on record to show that the blood stain found inM.O.1 inskirt belongs to the victim girl and the inskirt gotstained during the occurrence. The doctor viz P.W.13 AshokKumar, who had seen the victim girl for the first time afterthe occurrence,according to the prosecution, P.W.10 anotherdoctor who had examined the victim girl on the next day ie.,18.11.1999 at 1.00p.m., have not deposed before the Courtthat they have seen blood injury in any parts of the body ofthe victim girl during their examination. The evidence of thelady doctor P.W.12 , seven days after the occurrence, haddeposed before the Court that she found the hymen of thevictim girl in tact and had not seen any injury over any partof the body of the victim girl P.W.2.10. The prosecution has seized the blood stained cementpiece and also sample piece and blood stained sand and samplesand from the place of occurrence and send for chemicalexamination and filed analyst's report through P.W.18.According to P.W.15, those material objects viz., M.O.2 toM.O.5 were seized from the place of occurrence on 18.11.1999at about 4.15p.m., in the presence of P.W.5. But P.W.2 thevictim girl in her evidence in the cross examination wouldadmit that even on the date of the occurrence ie., on17.11.1999 itself, the place of occurrence was washed away bythe owner of the house. So the evidence of P.W.15 that he hadcollected blood stained cement piece and the blood stainedsand from the place of occurrence cannot at all be believed. 11. The accused was also subjected to medical test byP.W.16 and the doctor who had examined the accused is P.W.11 https://hcservices.ecourts.gov.in/hcservices/ who had not seen any external injury on the male organ of theaccused. Even according to P.W.10, the doctor who hadexamined the victim girl on 18.11.1999 at about 1.00 a.m.,he could see only a nail mark on the left hand of the victimgirl.12. Under such circumstances, there is absolutely noevidence to link the accused, who is admittedly an Engineeringstudent at the time of the occurrence with this heinous crime.The prosecution, as rightly observed by the learned trialJudge, has miserably failed to prove the guilt of the accusedbeyond any reasonable doubt . Under such circumstances, I donot find any reason to interfere with the findings of thelearned trial Judge, which is not perverse in nature leadingto miscarriage of justice to warrant any interference fromthis Court. Point is answered accordingly.13. In fine, the appeal is dismissed confirming theJudgment in S.C.No.230/2001 dated 22.09.2003 on the file ofthe Assistant Sessions Judge, Thiruvaur.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsgTo1. The Assistant Sessions Judge., Thiruvarur.2. -do-the Principal and Sessions Judge,Thiruvarur.3. The Public Prosecutor, High Court, Madras4. The Inspector of Police, Vaduvur Police Station,Thiruvarur District.5.The District Collector, Thiruvarur.6.The Director General of Police, Chennai.+1cc Mr.D.Veerasekaran, Advocate Sr 49157NSM (CO)km/13.8.Crl.A.No.50/2006