Defect in investigation cannot be the sole ground to acquit an accused: Madras High Court

Crl.A.No.921IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON : 25.03.2021PRONOUNCED ON: 06.07.2021CORAM:THE HONOURABLE MR. JUSTICE P.VELMURUGANCrl.A.No.921Elumalai ...AppellantVs.The Inspector of Police Varanjaram Police Station Villupuram District.(Crime No.805)...Respondent This Criminal Appeal is filed under Section 374 of Cr.P.C. against the judgment of conviction and consequential sentence passed by the learned Sessions Judge Magalir Needhi MandramVillupuram in S.C.No.1409 dated 09.10.2020.1 11 https: www.mhc.tn.gov.in judis Crl.A.No.921For Appellant : Mr.A.G.RajanFor Respondent : Mrs.T.P.Savitha Government AdvocateJUDGMENTThe criminal appeal has been filed against the judgment of conviction and consequential sentence passed by the learned Sessions Judge Magalir Needhi MandramVillupuram in S.C.No.1409 dated 09.10.2020.2The respondent police registered a case in Cr.No.805 against the appellant for the offence punishable under Sections 354 511 r w 376 of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Woman Act against the appellant. After investigation the respondent police laid a charge sheet before the learned Judicial Magistrate Kallakurichi which was taken on file in PRC No.206. Since the offence charged against the appellant was triable only by the Court of 2 11 https: www.mhc.tn.gov.in judis Crl.A.No.921Session the case was committed to the learned Principal District and Sessions Judge Villupuram which was taken on file in S.C.No.1405 and transferred to Additional District and Sessions Court where charges were framed against the appellant for the offence under Sections 354 and 376 r w 511 IPC. During pendency of the above case the learned Principal District and Sessions Judge Villupuram since Special Court was established at Villupuram District transferred the case to the learned Sessions Judge Villpuram. 3Before the trial Court in order to prove the case of the prosecution P.Ws.1 to 6 were examined and Exs.P1 to 6 were marked and no material object was exhibited. After completing examination of prosecution witnesses when incriminating circumstances culled out from the prosecution witnesses and put before the accused by questioning under Section 313 Cr.P.C. he denied the same as false and pleaded not guilty. On the side of the defence no one was examined and no document was marked. 3 11 https: www.mhc.tn.gov.in judis Crl.A.No.9214The learned Sessions Judge Mahila Court Villpuram after trial and hearing arguments advanced on either side by judgment dated 09.10.2020 convicted the accused and sentenced him to undergo rigorous imprisonment for a period of five years with fine of Rs.50 000 in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 376 r w 511 of IPC and no punishment was awarded for the offence under Section 354 of IPC. Aggrieved against the said judgment of conviction and sentence the accused has preferred this criminal appeal. 5The learned counsel appearing for the appellant accused would submit that there is no substantial material to convict the appellant for the offence under Section 376 r w 511 IPC. Originally case was registered for the offence under Section 354 and 323 IPC and thereafter altered into Section 354 and 376 r w 511 IPC without even any material. According to victim girl she lodged complaint on the following day of occurrence at about 3.00 p.m. and went to Hospital for treatment accompanying by a 4 11 https: www.mhc.tn.gov.in judis Crl.A.No.921women police. After four days of the occurrence she again went to the Hospital accompanying her parent for treatment for her injuries but no record was produced regarding the treatments. P.W.4 the Doctor one who examined the victim girl has deposed that the victim girl was brought to the Hospital after the lapse of 17 days from the date of occurrence. But prosecution has not offered any reason for the above delay which creates doubt in the case of the prosecution. P.W.6 the Investigating Officer in his evidence has clearly stated that the victim girl did not say that the appellant committed rape on her and further he did not examine the police who registered the FIR. The person who wrote the complaint was not examined by the prosecution and same is fatal to the case of the prosecution. The prosecution has failed to prove its case beyond reasonable doubt. The trial Court has convicted the appellant without any material which warrants interference of this Court. 6The learned Government Advocateappearing for the respondent police would submit that victim girl is an illiterate and on 29.04.2005 at about 3.00 p.m. when she went to give water to Goats which 5 11 https: www.mhc.tn.gov.in judis Crl.A.No.921were near the appellant s land the appellant forcibly took her by beating and committed rape on her. On hearing the alarm of the victim girl P.W.2 went to the place of occurrence and at the time the appellant showered water on the face of the victim girl and P.W.2 secured the victim girl. Thereafter P.W.1 victim girl lodged complaint and went to the Hospital. P.W.4 the Doctor one who examined the victim girl has stated that the victim sustained injuries and hymen not intact and her vagina admitted two fingers which corroborated evidence of the victim girl. The trial Court convicted the appellant only for the offence under Section 354 and 376 r w 511 IPC and sentenced for the offence under Section 376 r w 511 and no separate sentence was awarded for the offence under Section 354 of IPC. Hence trial Court awarded only a lesser punishment which does not call for any interference of this Court. 7Heard the learned counsel for the appellant and the learned Government Advocateappearing for respondent police and perused the materials available on record. 6 11 https: www.mhc.tn.gov.in judis Crl.A.No.9218Case of the prosecution is that on the date of occurrence when P.W.1 the victim girl went to provide water to Goats which were near the appellant s land the appellant forcibly took her by beating on cheek and committed rape on her. Hence the complaint. 9This Court being an Appellate Court is a final Court of fact finding which has to necessarily re appreciate the entire evidence and give an independent finding. Accordingly this Court has re appreciated the entire oral and documentary evidence produced before this Court.10P.W.1 in her complaint has stated that when she went to give water to the Goats which were near the land of the appellant the appellant followed her and took her by beating on cheek and forcibly committed rape on her. She also deposed that she has injuries on the leg and hand. Further the victim girl while examination in chief before the Court and also in cross examination has reiterated the same that the appellant committed rape on her forcibly and caused injuries. Even though as contended by the learned 7 11 https: www.mhc.tn.gov.in judis Crl.A.No.921counsel for the appellant that the victim was taken to Hospital for examination after the lapse of 17 days P.W.4 the Doctor has stated that while examining the victim she told that she attained puberty only two years back and appellant raped her forcibly. P.W.4 further stated that the victim sustained following injuries.Two scratchers on the left breast measuring 0.5 x 0.5 c.m.Scratch on the right side buttock measuring 0.5 x 0.5 c.m.Two injuries on the right side buttock measuring 0.5 c.m.Scratch on the right side knee measuring 1 x 1 c.m.Further hymen not intact and her vagina admitted two fingers. The Doctor further stated that the victim was subjected for radiology test to ascertain the age and the result showed that her age would be 16 or 17 years. Therefore the delay in producing the victim girl before the Doctor is not fatal to the case of the prosecution. 11The victim girl being an illiterate has made complaint against the appellant narrating the incident in her own language. Normally in the Village no girl would reveal that she was raped thinking about her future. 8 11 https: www.mhc.tn.gov.in judis Crl.A.No.921We cannot expect every victim girl will immediately soon after the occurrence rush to the Police Station and lodge complaint and they will reveal everything before the Court. They only speak in their own language. In this case neither the Investigating Officer nor the trial Court took the matter in a right manner. But unfortunately neither the state nor the victim has filed any appeal and hence this Court cannot go beyond the scope of appeal. 12On a combined reading of evidences of P.W.1 the victim girl and P.W.4 the Doctor and Ex.P1 complaint and Ex.P4 medical report of the victim this Court does not find any reason to discord the evidence of the victim girl. The evidence of the victim girl and Doctor corroborates with the medical records. Ever though there is defect in investigation and the same is not a sole ground to acquit the appellant. Mere laps on the part of the prosecution should not lead to unmerited acquittal subject to rider that in such a situation evidence on record should be clinching. In this case the victim has clearly narrated the entire incidents cogently which corroborated with the medical evidence. If the evidence of sole witness is cogent 9 11 https: www.mhc.tn.gov.in judis Crl.A.No.921credible and trustworthy conviction is permissible. In this case there is no reason to discord the evidence of the victim. 13In fine this Court come to the conclusion that there is no merit in the appeal and there is no sound reason to interfere with the judgment of conviction and sentence. Accordingly this criminal appeal is dismissed. The trial Court is directed to secure the appellant accused to serve remaining period of imprisonment if any. + 06.07.2021Index : Yes NocgiTo1. The Sessions Judge Magalir Needhi Mandram Villupuram.2. The Inspector of Police Varanjaram Police Station Villupuram District.3. The Public Prosecutor High Court of Madras.10 11 https: www.mhc.tn.gov.in judis Crl.A.No.921P.VELMURUGAN J. cgiPre Delivery Judgment inCrl.A.No.92106.07.202111 11 

Summary: Mere lapse on the part of the prosecution should not lead to unmerited acquittal subject to rider that in such a situation evidence on record should be clinching acquittal. If the evidence of the victim is credible and trustworthy, then the conviction is permissible solely on such an evidence. This was decreed by the Madras High court by the Honourable Mr. Justice P. Velmurugan in the case of Elumalai Vs. The Inspector of Police [Crl.A.No.93 of 2021] on the 06th of July 2021. The brief facts of the case are, the victim girl on 29.04.2005 went to give water to the goats near the appellant’s land. The appellant took the girl forcibly and raped her. Thereafter, she filed a complaint against the victim girl and was examined by the doctor who stated that the victim sustained injuries and hymen not intact and her vagina admitted two fingers, which corroborated evidence of the victim girl. The respondent police has registered a case against the appellant under Sections 354, 511 r/w 376 of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Woman Act. The prosecution witnesses were examined but no material object was exhibited before the trial court. On the side of the defence, no one was examined and no document was marked. On 09.10. 2020, the learned judge convicted the accused and sentenced him for rigorous imprisonment for a period of 5 years for the offence punishable under Section 376 r/w 511 of IPC. Aggrieved by this judgement, the present petition is filed by the accused. The counsel for the petitioner submitted that there is no substantial material to convict the appellant for the offence under Section 376 r/w 511 IPC. He also added that, originally the case was registered for the offence under Section 354 and 323 IPC and thereafter altered into Section 354 and 376 r/w 511 IPC without any material. He also further submitted that, the doctor who examined the victim has deposed that she was brought to the Hospital after the lapse of 17 days from the date of occurrence. But, prosecution has not offered any reason for the above delay, which creates doubt in the case of the prosecution. However, the learned counsel for the respondent submitted that, the victim was an illiterate girl who was raped by the appellant. He further submits that the doctor who examined the victim has stated that the victim has injuries which are evidence. He also adds that the trial Court awarded only a lesser punishment. The learned Judge after listening to both the counsels proceeded to re-appreciate the entire evidence and give an independent finding. It was observed that during the process of cross-examination, the victim has stated the same things as mentioned in her FIR. Even though there was a delay in taking the victim to the hospital, it was observed that the victim has sustained injuries and had personally told the doctor that she was forcibly raped. Since the victim was of only 16 or 17 years, the delay in producing the victim girl before the Doctor is not fatal to the case of the prosecution. Since the victim belongs to a village where the thinking is backward and no person comes up to complain when they are raped. The court combined the evidences of the victim, the doctor, the medical report and concluded that the appellant is rightfully convicted. “Court does not find any reason to discord the evidence of the victim girl. The evidence of the victim girl and Doctor corroborates with the medical records. Ever though, there is defect in investigation and the same is not a sole ground to acquit the appellant. Mere laps on the part of the prosecution should not lead to unmerited acquittal, subject to rider that in such a situation evidence on record should be clinching. In this case, the victim has clearly narrated the entire incidents cogently, which corroborated with the medical evidence.” Since the evidence was reliable, the conviction is allowed and the court dismissed the present petition on the lack of grounds to discord the evidence of the victim.