BAIL SLIP --- The Appellant/Accused namely Gopalakrishnan was directed to be released on Bail made in Crl.M.P.No.4230 of 2003 in Crl.Appeal No.494 of 2003 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.494 of 2003 Gopalakrishnan .. Appellant Vs. State, rep. by The Inspector of Police, Vellore Taluk Police Station. .. Respondent Criminal Appeal against the judgment dated 10.2.2003 in S.C.No.98 of 2000 on the file of the Additional District and Sessions Court (Fast Track Court), Vellore. For appellant : Mr.D.Rajagopal For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) ORDER The Criminal Appeal arises out of the judgment dated 10.2.2003 passed in S.C.No.98 of 2000 on the file of the Additional District and Sessions Court (Fast Track Court), Vellore, whereby, the appellant-accused was convicted for the offence under Section 341 IPC and sentenced to undergo one month rigorous imprisonment and to pay a fine of Rs.500/-, in default to undergo two weeks' rigorous imprisonment 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, to undergo three months' rigorous imprisonment. The sentences imposed on the 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.3 Shanthi. 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 back her cow/buffalo. At that time, the appellant-accused Gopalakrishnan way-laid P.W.2 Lakshmi and cunningly took her to a pump-set and attempted to commit rape on her. At that time, P.W.3, the mother of P.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 and disclosed the same to her husband P.W.1. (b) Thereafter, P.Ws.1, 2 and 3 went to the father of the appellant-accused, namely Dharman, for demanding justice and intimated the facts. But he gave evasive reply, which provoked the youngsters of the village, who searched the appellant-accused and brought him and tied him in a common place. But nothing happened in the Panchayat. (c) Thereafter, P.W.1 gave a complaint in Ex.P-1 before P.W.9 Munusamy, Head Constable, who received the same and registered a case in Crime No.223 of 1997 for the offence under Section 376 IPC and prepared Ex.P-4 F.I.R. (d) P.W.10 Inspector of Police took up the matter for investigation and went to the place of occurrence and prepared Ex.P-5 observation mahazar and Ex.P-7 rough sketch in the presence of witnesses. (e) The victim-girl P.W.2 was sent by the Police for medical treatment to hospital, where P.W.8 Dr.Chandrasena examined P.W.2. (f) P.W.10 Inspector of Police arrested the accused and remanded him to judicial custody. Then, P.W.10 Inspector of Police sent the appellant-accused to a Doctor to find out whether he is potent and also for ascertaining the age of the accused. (g) P.W.10 Inspector of Police also seized the dresses of P.W.2, which were marked as M.Os.1 and 2. He gave requisition for medical examination of the accused and P.W.2. Ex.P-2 is the accident register pertaining to the accused and Ex.P-3 is the accident register pertaining to P.W.2. (h) The material objects were seized under Form 95 and it was sent for chemical examination. (i) After concluding the investigation, P.W.10 Inspector of Police filed charge sheet against the accused. 3. The trial Court framed charges against the appellant- accused. The appellant-accused pleaded not guilty. During the course of trial, P.Ws.1 to 10 were examined, Exs.P-1 to P-11 were marked and M.Os.1 to 3 were produced. When the accused was questioned under Section 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 as indicated above. 4. Challenging the conviction and sentence imposed on the appellant, learned counsel for the appellant-accused would contend that there is no medical evidence to corroborate that the accused was guilty 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 prosecution in their chief examination, but during the cross examination, they gave a total go-bye to their earlier version and hence, their evidence 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, during the course of their cross examination, have also not supported the case of the prosecution. Therefore, "benefit of doubt" is to be given in favour of the appellant-accused and learned counsel prayed for allowing the appeal and to acquit the appellant by exonerating the charges levelled against him. 5. Per contra, learned Government Advocate appearing for the respondent-Police would mainly focus his argument only on the evidence of P.W.8 Doctor and Exs.P-2, 3 and 9 and argued that even though P.W.2 victim-girl has not sustained any injury, the Doctor has deposed that she was subjected to sexual assault and hence, the trial Court has considered this aspect in proper perspective. Learned Government Advocate further submitted that the chief examination of all the witnesses were made at the earlier point of time. After long time, they were recalled and re-examined and in the meanwhile, they have been winning over by the appellant-accused and so, their evidence in chief examination has to be considered. It is the dictum of the Apex Court that even though the witnesses were not supporting the case of the prosecution in the cross examination, their chief examination has to be taken into consideration, as laid down by the Supreme Court in the decision reported in 2006 (1) SCC (Cri) 661 (Radha Mohan Singh Vs. State of U.P). Learned Government Advocate prayed for conviction of the appellant-accused and for dismissal of the Criminal Appeal. 6. P.W.1 is the father of P.W.2 victim-girl. P.W.3 is the mother of P.W.2. At the time of occurrence, P.W.2 was seven years old. The case of the prosecution is that on 19.3.1997 at about 5.30 p.m., the alleged occurrence has taken place. At this juncture, it is appropriate to decide as to whether the evidence of P.Ws.1 to 3 has to be taken into consideration. 7. P.W.1 is not the eye-witness. P.W.3 is the mother of the victim-girl P.W.2 and P.W.3 is alleged to be the eye-witness. P.W.3 in her chief examination has deposed that when she was searching for her 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 her daughter, which factum has been intimated to the father of the accused and he gave evasive reply. Then, the accused was caught hold by the youngsters of the village and then only, P.W.1 went to Police Station and gave Ex.P-1 complaint. 8. On a perusal of Ex.P-1 complaint, it is seen that it was given on the next day, i.e. on 20.3.1997 early morning at 3 a.m. and on that basis, the case has been registered. In Ex.P-1 complaint also, it was stated that P.W.3 has witnessed the occurrence when the appellant-accused attempted to rape her daughter. P.W.2 raised alarm unable 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, chemical report was received, in which it was stated as follows: "Did not detect spermatozoa on the smears of the above slides" Final opinion: There is no evidence of sexual intercourse." 9. At this juncture, it is appropriate to consider the evidence of P.W.8 Doctor. In her evidence in cross examination, P.W.8 Doctor has stated that if anybody attempted to rape a person, that person may resist and certainly, the victim will sustain injuries. In the present case, admittedly, there is no injury. Even though the smear been taken and sent for chemical examination, no spermatozoa has been detected and so, the Doctor has given an opinion that she was not subjected to sexual intercourse. In such circumstances, the evidence of Doctor does not prove that she was subjected to sexual assault. 10. P.W.7 Dr.Arunan has examined the appellant-accused and gave Ex.P-2 report stating that he was aged about 18-19 years and he is potent. Merely because he is potent, this Court cannot tax him that he is guilty of the offence under Section 376(2)(f) IPC. It is the 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 the accused during the chief examination, she has given a total go-bye in her cross examination and went to the extent of stating that she has not seen anything and her daughter has also not stated anything and that since the villagers have forced her to sign in the papers, she signed the papers. So, the evidence of P.W.3 is not trustworthy and it is unsafe to convict the appellant-accused on the basis of the evidence of P.W.3. 12. P.W.2 is the victim-girl and she was seven years old at the time of occurrence. Her evidence in chief examination is cogent and 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 and at the time of occurrence, she was only seven years old and at the time of examination before Court, she was 12 years old and in such circumstances, it is the duty of the Court before examining the child witness to ascertain the mental capability of the child as to whether she is competent to depose before Court about the incident. But while perusing the deposition of P.W.2, it is evident the trial Court has not taken any steps to ascertain the mental capability of P.W.2 whether she is capable of giving evidence. It is well settled that the child witness would depose like a parrot-like statement on tutoring by the relatives. In such circumstances, in chief examination, P.W.2 has stated about the alleged happening five years back. But in her cross examination, she has given total go-bye. Therefore, it is unsafe to convict the appellant-accused on the basis of the evidence of P.W.2, the victim girl, who was alleged to be seven years old at the time of the alleged incident and 12 years old at the time of examination before Court. 14. The evidence of P.Ws.1, 2 and 3 is not reliable and there is no evidence available to convict the appellant-accused for the offences under Section 341 IPC and Section 376(2)(f) IPC read with Section 511 IPC. All the other witnesses admittedly were not in the alleged place of occurrence. 15. At this juncture, learned Government Advocate (Criminal Side) relied on the decision of the Supreme Court reported in 2006 (1) SCC (Cri) 661 (Radha Mohan Singh Vs. State of U.P), wherein, the Supreme Court held as follows: "7. ..... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to 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 : 1980 SCC (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 the said judgment. But in the present case, P.Ws.2 and 3 supported the case of the prosecution during the course of their chief examination, but, during cross examination, they have given a total go-bye and said that they did not know anything. P.Ws.2 and 3 were treated hostile and the question was posed before them that since they wanted to save the appellant-accused, they were giving false evidence, which has been denied by P.Ws.2 and 3 during cross examination. In such circumstances, the said decision is not applicable to the present case. 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 their chief examination, but gave a total go-bye during their cross examination. There is no medical evidence to show that P.W.2 was subjected to sexual assault. In such circumstances, I am of the opinion that the trial Court is not correct in concluding that the appellant-accused is guilty of the offences under Sections 341 and 376(2)(f) IPC read with Section 511 IPC. Hence, the conviction and sentence 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-accused shall stand cancelled. (e) The fine amounts, if paid by the appellant-accused shall be refunded. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ cs To 1. 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, Madras 10.The Section Officer, Criminal Section, High Court, Madras-104. 1 cc to Mr.D.Rajagopal, Advocate, Sr.No.7869 Crl.A.No.494 of 2003 AKR {CO} TP/23.2.2010. https://hcservices.ecourts.gov.in/hcservices/