IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.305 of 2007 Subramanian ... Petitioner vs. 1.Chithuli @ Rajan 2.State, rep.by the Inspector of Police, Kammapuram Police Station, Cuddalore District. ... Respondents (Crime No.9 of 2000) Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgement dated 20.11.2002 passed by the Additional District Judge (Fast Track Court III), Vridhachalam, in S.C.No.72 of 2001. For Petitioner : Mr.D.Veerasekaran For Respondents : Mr.Sai Bharath and Ilan for R1 Mr.R.Muniyapparaj,G.A.for R2 ORDER Challenging and impugning the judgement dated 20.11.2002 passed by the Additional District Judge (Fast Track Court III), Vridhachalam, in S.C.No.72 of 2001, this criminal revision case is focussed. 2. Broadly but briefly, narratively but precisely, the facts which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:- The police laid the police report in terms of Section 173 of Cr.P.C. for the offences under Sections 354 and 306 of IPC and under Section 4 of the Tamil Nadu Prohibition of Eve Teasing Act as against the accused on the ground that on 9.1.2000 at about 7.00 a.m. at Melar, C.Keeranur Village, within Kammapuram Police Station limits, the accused teased and harassed the deceased Ilavarasi, aged about 14 years, and spate on her face, and that too after pulling her jacket collar and also uttered out filthy and derogatory words as against her. Whereupon, as a sequela of the incident, she set herself ablaze in her house. Inasmuch as the accused pleaded not guilty, the trial was conducted. https://hcservices.ecourts.gov.in/hcservices/ (b) During trial, on the prosecution side P.W.1 to P.W.12 were examined, Exs.P1 to P7 and M.Os.1 to 4 were marked. On the accused's side, no oral or documentary evidence was adduced. (c) Ultimately, the trial Court acquitted the accused of all the offences with which he was charged. 3. Being aggrieved by and disconcerted with the judgement of the lower Court, this revision is focussed on various grounds, the gist and kernal of them would run thus: From the available evidence, the trial Judge ought to have convicted the accused, but without proper appreciation of evidence, simply acquitted him. Simply because dying declaration was not available in the case, the Court viewed it seriously and acquitted the accused. The discrepancies in the evidence of prosecution case were not so material. Accordingly, the revision petitioner prayed for setting aside the judgement of the lower Court and for passing the suitable orders. 4. Heard both sides. 5. The point for consideration is as to whether there is any perversity or non-application of law in acquitting the accused of all the charges, with which he was charged. 6. The learned counsel for the revision petitioner, by inviting the attention of this Court to the various portions of the evidence, would develop his argument that the factum of the accused having harassed, humiliated and teased the victim is clear from the evidence and it is because of that alone, the victim committed suicide by herself ablaze, but, the lower Court, failed to take note of the same. 7. The learned counsel for the first respondent/accused would set forth and put forth his argument that the trial Judge, took into account all the relevant points and gave the benefit of doubt in favour of the accused, warranting no interference by this Court; the alleged First Information Report itself is missing; even though, the dying declaration is claimed to have been recorded by various police personnel, such as I.O. himself and also the out post Police Constable of JIPMER hospital nonetheless nothing has been produced; the Doctor also did not record the dying declaration of the deceased, even though the deceased was conscious at the time when she was admitted in the JIPMER hospital; the narration of the incident was so murky that there were material contradictions; the lower Court developed doubts about the genuineness of the evidence placed before it and correctly acquitted the accused. The learned counsel would also submit that nine years have elapsed from the alleged date of incident and so, no interference by this Court is warranted. https://hcservices.ecourts.gov.in/hcservices/ 8. Heard the learned Government Advocate also, who would submit that no appeal has been preferred by the State as against the acquittal. 9. At this juncture, I would like to call up and recollect the following decisions of the Honourable Apex Court: (i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus: "13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus: "22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." 10. A bare perusal of those decisions would exemplify and demonstrate that the High Court, while exercising its revisional jurisdiction is not expected to interfere with the finding of fact arrived at by both the Courts below simply because one other view is possible or a different view could be taken. https://hcservices.ecourts.gov.in/hcservices/ 11. In the wake of the aforesaid two precedents, I would like to peruse the records. 12. A plain reading of the judgement of the lower Court and the records would enable this Court to understand and come to the firm conclusion that no offence under Section 306 of IPC is made out. All the witnesses in unison would state that the deceased set herself ablaze by fearing that her mother, after questioning the accused, would come and question her also and as such, out of fear alone she set herself ablaze. If that be so, I am at a loss to understand as to how the ingredients of Section 306 of IPC would be attracted. 13. Hence, it is just and necessary to extract hereunder the ingredients of Section 306 of IPC: "Ingredients of Section 306 IPC: a) a person must commit suicide; b) the accused must abet the commission of such suicide." 14. A plain reading of the ingredients of Section 306 IPC would make it clear that if at all there is any close nexus between the act constituting the alleged abatement and the committing of suicide, the question of invoking Section 306 IPC would not arise. 15. But this is a peculiar case in which the very prosecution witnesses themselves have deposed only to the extent that the deceased fearing that her mother, after questioning the accused, would also question her, indulged in self-immolation. In such a case, the ingredients of Section 306 IPC cannot be applied at all. 16. Over and above that, the trial Court also highlighted as to how in this case the police personnel were out and out faulty in doing the investigation. The investigating Officer himself would state that he recorded the statement of the deceased. If that be so, he ought to have filed it in Court as the dying declaration of the deceased and it is for the Court to either believe it or not. But in this case, the I.O. Had not chosen to do so. The out post Police Constable of JIPMER Hospital, Pondicherry, recorded the statement of the deceased when she was brought to the hospital from Virudhachalam, which is 75 Kms away from the JIPMER hospital. By way of adding fuel to the fire, the Doctor himself, in the absence of getting magisterial assistance, who was expected to record the statement of the deceased, as the deceased was conscious when she was admitted in the JIPMER hospital, failed to record so. These facts alone would exemplify and evince, display and demonstrate as to how the police and medical personnel were so callous and careless in handling the medical legal case. https://hcservices.ecourts.gov.in/hcservices/ 17. Be that as it may, now that the question arises as to whether the revisional powers of this Court could be exercised in remanding the case back to the trial Court at least in respect of Section 354 of IPC and Section 4 of the Tamil Nadu Prohibition of Eve Teasing Act. 18. P.W.1, even though in the chief examination is claimed to be an eyewitness to the occurrence, during cross-examination, he would give some answers, which caused the Court to look askance at his evidence. Furthermore, the other witnesses also would state that only on P.W.1 having been informed, he came to the house of the deceased, where the deceased committed self-immolation, wherefore, the discarding of the evidence of P.W.1 by the lower Court might be tenable. 19. So far the evidence of P.Ws.3,6 and 7 are concerned, they claimed to be the eyewitnesses and the police also cited them as eyewitnesses. But the trial Judge, having arrived at the conclusion that the case has to be acquitted under Section 306 of IPC, simply throw the baby along with bath water. The trial Judge would have incidentally, having decided to acquit the accused under Section 306 IPC, concentrated and analysed the evidence of P.W.3, 6 and 7 for the purpose of finding out as to whether any offence has been made out as against the accused under Section 354 of IPC and Section 4 of the Tamil Nadu Prohibition of Eve Teasing Act. Simply because P.W.3 and P.W.6 are related witnesses, the Court cannot discard their evidence. However, the lower Court discussed the evidence of P.W.6 and was reluctant to place reliance on the sole testimony. Similarly, the lower Court also apparently mistook P.W.3 as non-eyewitness, but, her deposition would speak otherwise. P.W.7 also is an eyewitness, but the trial Judge has not given cogent reason for discarding his evidence. 20. The contention that even before taking the victim to the JIPMER Hospital, the local police was informed, but no FIR was registered, but the FIR was registered only after the death of the victim, which creates doubt and it has to be taken with a pinch of salt. At this juncture, I would like to refer to the decision of the Honourable Apex Court reported in (2009)1 Supreme Court Cases (Cri) 351 – STATE OF HIMACHAL PRADESH VS. PREM SINGH, certain excerpts from it would run thus: Penal Code, 1860 – Ss.376, 354 and 506 – respondent- accused alleged to have sexually ravished P.W.1 and outraged the modesty of several other girl students of the school where he was a teacher – High Court setting aside his conviction considering delay in lodging FIR – Held, delay in a case of sexual assault, cannot be equated with the case involving other offences – There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint – In a tradition-bound society prevalent in India, more https://hcservices.ecourts.gov.in/hcservices/ particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was some delay in lodging the FIR – Further, though prosecution had failed to establish allegations of rape but commission of offence punishable under Ss.354 and 506 have clearly been established – Hence, respondent deserves to be convicted for the offences punishable under Ss.354 and 506 – Criminal Procedure Code, 1973 – S.154 – FIR – delay in lodging of – Sexual offence(s) involved – Different considerations apply 6. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. In that score, learned counsel for the appellant is right that the High Court has lost sight of this vital distinction. 7. Additionally, we find that the prosecution has clearly established commission of offence punishable under Sections 354 and 506 IPC. So far as the offence punishable under Section 376 IPC is concerned, the basis ingredients are set out in Section 375 IPC. On a reading of the evidence of the prosecutrix, we find that a case of rape has not been established so far as the respondent is concerned. 8. That being the position, we allow the appeal of the State to the extent that the respondent is convicted for the offences punishable under Sections 354 and 506 IPC. The sentences are two years' and six months' rigorous imprisonment respectively. It is stated that the respondent has suffered more than that period of custody. If that being so, he need not surrender to custody. The appeal is allowed to the aforesaid extent.(emphasis supplied) 21. No doubt, here from the evidence it is clear that even though on the way to the JIPMER Hospital, P.W.1 informed the local police, they have not chosen to register the FIR and in view of such fault, the prosecution case has to be scrutinised carefully, but it does not mean that on that ground alone the case has to be discarded. 22. P.W.2, P.W.3 and P.W.6 in their deposition narrate about the factum of they having witnesses the occurrence relating to outraging the modesty of the deceased Ilavarasi and also having caused harassment to her within the meaning of Section 4 of the Tamil Nadu Prohibition of Eve Teasing Act and the trial Court is expected to delve deep into their depositions independently, after https://hcservices.ecourts.gov.in/hcservices/ hearing both sides and arrive at a conclusion with reference to the precedents governing the same. As such, I am of the considered opinion that the matter has to be remitted back to the trial Court to consider the evidence available with reference to Section 354 of IPC and Section 4 of the Tamil Nadu Prohibition of Eve Teasing Act, untrammelled and uninfluenced by any of the observations made by this Court for remitting the matter back to the trial Court and accordingly, it is remitted back. 23. The learned counsel for the revision petitioner also has raised an apprehension that since this Court is remitting the matter back relating to the offence under Section 354 IPC and Sec.4 of the Tamil Nadu Prohibition of Eve Teasing Act, the trial Court may tend to convict blindly the accused. 24. I make it explicitly clear that after thoroughly analysing the records, hearing both sides and applying the law, it is for the trial Court either to acquit or convict the accused and the trial Judge should not have any misconception that the case has been sent back only for recording conviction as against the accused. msk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Additional District Judge (Fast Track Court III), Vridhachalam, 2. Do Through The Principal Sessions Judge, Cuddalore. 3. The Public Prosecutor, High Court. 4. The Additional Judicial Magistrate, Vridhachalam. 5. Do Through The Chief Judicial Magistrate, Cuddalore. 6. The Inspector of Police, Kammapuram Police Station, Cuddalore District. https://hcservices.ecourts.gov.in/hcservices/ 7. The Section Officer, Criminal Section, High Court, Madras. + 1 cc to Mr. Sai Bharath & Ilan, Advocate SR No.31417 + 1 cc to Mr. D. Veerasekaran, Advocate SR No.31381 KSJ(CO) SR/10.8.2009 Crl.R.C.No.305 of 2007 https://hcservices.ecourts.gov.in/hcservices/