Gopalakrishnan v. State, rep. by The Inspector of Police,Vellore Taluk Police Station

BAIL SLIP---The Appellant/Accused namely Gopalakrishnan was directed to bereleased on Bail made in Crl.M.P.No.4230 of 2003 in Crl. Appeal No.494of 2003 on the file of the High Court, Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.02.2010CORAM:THE HONOURABLE MS.JUSTICE R.MALACrl.A.No.494 of 2003Gopalakrishnan .. AppellantVs.State, rep. byThe Inspector of Police, Vellore Taluk Police Station. .. RespondentCriminal Appeal against the judgment dated 10.2.2003 inS.C.No.98 of 2000 on the file of the Additional District and SessionsCourt (Fast Track Court), Vellore. For appellant : Mr.D.RajagopalFor respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side)ORDERThe Criminal Appeal arises out of the judgment dated 10.2.2003passed in S.C.No.98 of 2000 on the file of the Additional Districtand Sessions Court (Fast Track Court), Vellore, whereby, theappellant-accused was convicted for the offence under Section 341IPC and sentenced to undergo one month rigorous imprisonment and topay a fine of Rs.500/-, in default to undergo two weeks' rigorousimprisonment and was also convicted for the offence under Section 376(2)(f) read with Section 511 IPC and sentenced to undergo four years'rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, toundergo three months' rigorous imprisonment. The sentences imposed onthe appellant-accused was directed to run concurrently.2. The case of the prosecution is as follows:(a) P.W.2 Lakshmi is the daughter of P.W.1 Arumugam and P.W.3Shanthi. On 19.3.1997 at about 5.30 p.m., P.W.2 Lakshmi, who was https://hcservices.ecourts.gov.in/hcservices/ seven years old at that time, went to Reddiar's land to bring backher cow/buffalo. At that time, the appellant-accused Gopalakrishnanway-laid P.W.2 Lakshmi and cunningly took her to a pump-set andattempted to commit rape on her. At that time, P.W.3, the mother ofP.W.2, came in search of her daughter P.W.2 and saw the occurrence. The accused ran from the place. P.W.3 took her daughter to home anddisclosed the same to her husband P.W.1. (b) Thereafter, P.Ws.1, 2 and 3 went to the father of theappellant-accused, namely Dharman, for demanding justice andintimated the facts. But he gave evasive reply, which provoked theyoungsters of the village, who searched the appellant-accused andbrought him and tied him in a common place. But nothing happened inthe Panchayat.(c) Thereafter, P.W.1 gave a complaint in Ex.P-1 before P.W.9Munusamy, Head Constable, who received the same and registered a casein Crime No.223 of 1997 for the offence under Section 376 IPC andprepared Ex.P-4 F.I.R.(d) P.W.10 Inspector of Police took up the matter forinvestigation and went to the place of occurrence and prepared Ex.P-5observation mahazar and Ex.P-7 rough sketch in the presence ofwitnesses.(e) The victim-girl P.W.2 was sent by the Police for medicaltreatment to hospital, where P.W.8 Dr.Chandrasena examined P.W.2.(f) P.W.10 Inspector of Police arrested the accused andremanded him to judicial custody. Then, P.W.10 Inspector of Policesent the appellant-accused to a Doctor to find out whether he ispotent and also for ascertaining the age of the accused. (g) P.W.10 Inspector of Police also seized the dresses ofP.W.2, which were marked as M.Os.1 and 2. He gave requisition formedical examination of the accused and P.W.2. Ex.P-2 is the accidentregister pertaining to the accused and Ex.P-3 is the accidentregister pertaining to P.W.2.(h) The material objects were seized under Form 95 and it wassent for chemical examination. (i) After concluding the investigation, P.W.10 Inspector ofPolice filed charge sheet against the accused. 3. The trial Court framed charges against the appellant-accused. The appellant-accused pleaded not guilty. During the courseof trial, P.Ws.1 to 10 were examined, Exs.P-1 to P-11 were marked andM.Os.1 to 3 were produced. When the accused was questioned underSection 313 Cr.P.C. placing incriminating evidence against him, he https://hcservices.ecourts.gov.in/hcservices/ denied the same. On a perusal of the oral and documentary evidence, the trial Court convicted and sentenced the appellant-accused asindicated above.4. Challenging the conviction and sentence imposed on theappellant, learned counsel for the appellant-accused would contendthat there is no medical evidence to corroborate that the accused wasguilty of the offence under Section 376(f) read with Section 511 IPC.P.Ws.2 and 3, even though they supported the case of the prosecutionin their chief examination, but during the cross examination, theygave a total go-bye to their earlier version and hence, theirevidence cannot be looked into. Learned counsel for the appellant-accused further submitted that P.Ws.4, 5 and 6 who are not the eye-witnesses, their evidence is only hear-say and P.Ws.4 and 5, duringthe course of their cross examination, have also not supported thecase of the prosecution. Therefore, "benefit of doubt" is to be givenin favour of the appellant-accused and learned counsel prayed forallowing the appeal and to acquit the appellant by exonerating thecharges levelled against him. 5. Per contra, learned Government Advocate appearing for therespondent-Police would mainly focus his argument only on theevidence of P.W.8 Doctor and Exs.P-2, 3 and 9 and argued that eventhough P.W.2 victim-girl has not sustained any injury, the Doctor hasdeposed that she was subjected to sexual assault and hence, the trialCourt has considered this aspect in proper perspective. LearnedGovernment Advocate further submitted that the chief examination ofall the witnesses were made at the earlier point of time. After longtime, they were recalled and re-examined and in the meanwhile, theyhave been winning over by the appellant-accused and so, theirevidence in chief examination has to be considered. It is the dictumof the Apex Court that even though the witnesses were not supportingthe case of the prosecution in the cross examination, their chiefexamination has to be taken into consideration, as laid down by theSupreme Court in the decision reported in 2006 (1) SCC (Cri) 661(Radha Mohan Singh Vs. State of U.P). Learned Government Advocateprayed for conviction of the appellant-accused and for dismissal ofthe Criminal Appeal. 6. P.W.1 is the father of P.W.2 victim-girl. P.W.3 is themother of P.W.2. At the time of occurrence, P.W.2 was seven yearsold. The case of the prosecution is that on 19.3.1997 at about 5.30p.m., the alleged occurrence has taken place. At this juncture, it isappropriate to decide as to whether the evidence of P.Ws.1 to 3 hasto be taken into consideration.7. P.W.1 is not the eye-witness. P.W.3 is the mother of thevictim-girl P.W.2 and P.W.3 is alleged to be the eye-witness. P.W.3in her chief examination has deposed that when she was searching forher daughter, she went to the place of occurrence and at that time, https://hcservices.ecourts.gov.in/hcservices/ she has seen that the appellant-accused has attempted to rape herdaughter, which factum has been intimated to the father of theaccused and he gave evasive reply. Then, the accused was caught holdby the youngsters of the village and then only, P.W.1 went to PoliceStation and gave Ex.P-1 complaint.8. On a perusal of Ex.P-1 complaint, it is seen that it wasgiven on the next day, i.e. on 20.3.1997 early morning at 3 a.m. andon that basis, the case has been registered. In Ex.P-1 complaintalso, it was stated that P.W.3 has witnessed the occurrence when theappellant-accused attempted to rape her daughter. P.W.2 raised alarmunable to bear the pain. She was medically examined by P.W.8 Doctor, who gave a report marked as Ex.P-3 accident register and in Ex.P-3,it was stated as follows:"No external injuries, No injury over the genitalia, Hymen intact, Vaginal Semar sent for chemical analysis. Admitted at F.S. I.Ward. The Doctor has also opined as follows:"Alleged rape pending report of chemical analysis."Ex.P-3 was given on 20.3.1997 at 4.30 a.m. Subsequently, chemicalreport was received, in which it was stated as follows: "Did not detect spermatozoa on the smears of the aboveslides" Final opinion: There is no evidence of sexualintercourse."9. At this juncture, it is appropriate to consider theevidence of P.W.8 Doctor. In her evidence in cross examination, P.W.8Doctor has stated that if anybody attempted to rape a person, thatperson may resist and certainly, the victim will sustain injuries. Inthe present case, admittedly, there is no injury. Even though thesmear been taken and sent for chemical examination, no spermatozoahas been detected and so, the Doctor has given an opinion that shewas not subjected to sexual intercourse. In such circumstances, theevidence of Doctor does not prove that she was subjected to sexualassault.10. P.W.7 Dr.Arunan has examined the appellant-accused andgave Ex.P-2 report stating that he was aged about 18-19 years and heis potent. Merely because he is potent, this Court cannot tax himthat he is guilty of the offence under Section 376(2)(f) IPC. It isthe duty of the prosecution to prove the same. 11. In this connection, it is appropriate to consider the https://hcservices.ecourts.gov.in/hcservices/ evidence of P.Ws.1 and 3. Even though P.W.3 has deposed against theaccused during the chief examination, she has given a total go-bye inher cross examination and went to the extent of stating that she hasnot seen anything and her daughter has also not stated anything andthat since the villagers have forced her to sign in the papers, shesigned the papers. So, the evidence of P.W.3 is not trustworthy andit is unsafe to convict the appellant-accused on the basis of theevidence of P.W.3.12. P.W.2 is the victim-girl and she was seven years old atthe time of occurrence. Her evidence in chief examination is cogentand natural. But in her cross examination, she has give a total go-bye to her earlier statement.13. It is pertinent to note that P.W.2 is a child witness andat the time of occurrence, she was only seven years old and at thetime of examination before Court, she was 12 years old and in suchcircumstances, it is the duty of the Court before examining the childwitness to ascertain the mental capability of the child as to whethershe is competent to depose before Court about the incident. But whileperusing the deposition of P.W.2, it is evident the trial Court hasnot taken any steps to ascertain the mental capability of P.W.2whether she is capable of giving evidence. It is well settled thatthe child witness would depose like a parrot-like statement ontutoring by the relatives. In such circumstances, in chiefexamination, P.W.2 has stated about the alleged happening five yearsback. But in her cross examination, she has given total go-bye. Therefore, it is unsafe to convict the appellant-accused on the basisof the evidence of P.W.2, the victim girl, who was alleged to beseven years old at the time of the alleged incident and 12 years oldat the time of examination before Court.14. The evidence of P.Ws.1, 2 and 3 is not reliable and thereis no evidence available to convict the appellant-accused for theoffences under Section 341 IPC and Section 376(2)(f) IPC read withSection 511 IPC. All the other witnesses admittedly were not in thealleged place of occurrence. 15. At this juncture, learned Government Advocate (CriminalSide) relied on the decision of the Supreme Court reported in 2006(1) SCC (Cri) 661 (Radha Mohan Singh Vs. State of U.P), wherein, theSupreme Court held as follows: "7. ..... It is well settled that the evidence of aprosecution witness cannot be rejected in toto merelybecause the prosecution chose to treat him as hostile andcross-examined him. The evidence of such witness cannot betreated as effaced or washed off the record altogether butthe same can be accepted to the extent his version is foundto be dependable on a careful scrutiny thereof. (See Bhagwan https://hcservices.ecourts.gov.in/hcservices/ Singh v. State of Haryana ((1976) 1 SCC 389 : 1976 SCC (Cri)7 : AIR 1976 SC 202), Rabindra Kumar Dey v. State of Orissa( (1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170),Syad Akbar v. State of Karnataka ( (1980) 1 SCC 30 : 1980SCC (Cri) 59 : AIR 1979 SC 1848) and Khujji v. State of M.P.( (1991) 3 SCC 627 : 1991 SCC (Cri) 916 : AIR 1991 SC 1853)......" 16. There is no quarrel over the proposition laid down in thesaid judgment. But in the present case, P.Ws.2 and 3 supported thecase of the prosecution during the course of their chief examination, but, during cross examination, they have given a total go-bye andsaid that they did not know anything. P.Ws.2 and 3 were treatedhostile and the question was posed before them that since they wantedto save the appellant-accused, they were giving false evidence, whichhas been denied by P.Ws.2 and 3 during cross examination. In suchcircumstances, the said decision is not applicable to the presentcase.17. As already stated, P.Ws.2 and 3 are alleged to be the eye-witnesses and they supported the case of the prosecution during theirchief examination, but gave a total go-bye during their crossexamination. There is no medical evidence to show that P.W.2 wassubjected to sexual assault. In such circumstances, I am of theopinion that the trial Court is not correct in concluding that theappellant-accused is guilty of the offences under Sections 341 and376(2)(f) IPC read with Section 511 IPC. Hence, the conviction andsentence imposed on the appellant-accused are liable to be set aside. 18. In fine,(a) the Criminal Appeal is allowed.(b) The conviction and sentence imposed on the appellant-accused are set aside.(c) The appellant-accused is acquitted of the charges.(d) The bail bonds, if any, executed by the appellant-accusedshall stand cancelled.(e) The fine amounts, if paid by the appellant-accused shallbe refunded.Sd/-Asst. Registrar//true copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ csTo1. The Addl. District and Sessions Judge(Fast Track Court), Vellore.2. The Principal Sessions Judge, Vellore.3. The Inspector of Police, Vellore Taluk Police Station.4. The Public Prosecutor, High Court, Madras.5. The Judicial Magistrate No.I, Vellore.6. -do- Thro The Chief Judicial Magistrate, Vellore.7. The Superintendent, Central Prison, Vellore.8. The District Collector, Vellore.9. The Director General of Police, Madras10.The Section Officer, Criminal Section, High Court, Madras-104.1 cc to Mr.D.Rajagopal, Advocate, Sr.No.7869Crl.A.No.494 of 2003AKR {CO}TP/23.2.2010.