Judgment 1. The revision petitioner / appellant / accused has filed the present Criminal Revision in Crl.R.C.No.489 of 2001 against the judgment made in C.A.No.49 of 2000, on the file of Principal Sessions Judge, Nagapattinam, confirming the conviction and sentence passed in S.C.No.21 of 2000, on the file of Additional Assistant Sessions Judge, Mailaduthurai. 2. The short facts of the prosecution case is as follows:- The defacto complainant viz., M.Murugeswari (minor), who is studying in the IVth class at Government High School, Thirumullaivasal, Mailaduthurai, had levelled a case before the Inspector of Police, Sirkali Police Station stating that the first accused is a teacher and had removed her inner dress and attempted to rape her. Immediately, she attempted to prevent the same, but the first accused had pinched her cheek and caused simple injuries. The second accused, who is a noon meal scheme worker, at the same school, enticed her with boiled egg and took her to the store room and attempted to outrage her modesty. The said case was registered by the respondent Police in Crime No.177 of 1997, for the offence under Sections 376 r/w 511, 323, 506 (i) IPC against the first accused, and under Section 354 of IPC against the second accused. 3. After investigation, charge sheet has been filed before the concerned Judicial Magistrate. Thereafter, the case was referred to the Additional Assistant Sessions Judge, Mailaduthurai, wherein the case was renumbered as S.C.No.21 of 2000. 4. On the side of the prosecution, 16 witnesses were examined viz., P.W.1-M.Murugeswari, P.W.2-Gomathi, P.W.3-Sundari, P.W.4-Sarala, P.W.5-P.Murugeswari, who are all co-students of the victim, P.W.6-Dr.Suthanthira, P.W.7-Dr.S.Gurunathan, P.W.8-K.Vasudevan, P.W.9-Rajagundu, P.W.10-V.Gurumurthi, P.W.11-Rajeshwari, P.W.12-Sangeetha, P.W.13-Madanthaiyan, P.W.14-r.Sivakozhunthu, P.W.15-Madhan Mohan, P.W.16-Sandhosham. Six documents were marked viz., Ex.P1-complaint dated 18.03.1997, Ex.P2-Medical Certificate issued by P.W.6 to P.W.1 on 20.03.1997, Ex.P3-Observation Mahazar dated 18.03.1997, Ex.P4-medical certificate regarding age of P.W.1 issued by P.W.14, Ex.P5-First Information Report registered by P.W.15 on 18.03.1997 and Ex.P6-rough sketch prepared by P.W.15. On the side of the defence, D.W.1, one Veerammal was examined. No document was marked. No material evidence was produced by either of the sides. 5. On the side of the defence, D.W.1, one Veerammal was examined. No document was marked. No material evidence was produced by either of the sides. 5. P.W.1 had adduced evidence that she is studying in the IV standard at Government High School, Thirumullaivasal; that the first accused is her class teacher and that the second accused is the nutritious meal scheme worker; that P.W.2, P.W.3, P.W.4 and P.W.5 are co-students in the same class; that both the accused used to call P.W.1 during school interval periods, but she had refused to go; that both of them had beaten her; that the first accused had asked the male students to sit in front of the black board and he had asked the female students to sit behind them. Thereafter, A-1, inserted his toes under the buttocks of P.W.1, and had also pinched her cheek. 6. P.W.2, enticed her with egg and had taken her to the godown of nutritious meal centre, wherein he had caught hold of P.W.1 and kissed her. This type of harassment has been going on for some period. After about four days from the date of incident i.e., 18.03.1997, at about 11 o' clock, the first accused forcibly took her to the class room and raised her petticoat and inserted his finger in her vital parts. P.W.1 raised an objection and resisted the same, but A-1 pinched her left cheek and caused simple injury. Besides A-1 threatened her not to disclose the said incident to any one. Due to fear, P.W.1 did not disclose this to any one. Thereafter, on 17.03.1997, in the evening, P.W.1 revealed the entire incident to her father. The same was known to a few students of the school. The father of the victim i.e., P.W.13 had immediately appealed to the Village Panchayatdars on 18.03.1997. Subsequently, all rushed to the respondent police at about 4.30 p.m., and registered the case against the accused persons. 7. P.W.15, had inspected the occurrence place, in the presence of P.W.9 and one Appadurai and prepared rough sketch. On 20.03.1997, at about 10.00 p.m., the first accused was arrested and remanded into judicial custody. 8. On the side of the prosecution, the witnesses to the said incident viz., P.W.2 to P.W.5 were examined and they had adduced evidence which are corroborative with the evidence of P.W.1. On 20.03.1997, at about 10.00 p.m., the first accused was arrested and remanded into judicial custody. 8. On the side of the prosecution, the witnesses to the said incident viz., P.W.2 to P.W.5 were examined and they had adduced evidence which are corroborative with the evidence of P.W.1. P.W.6-Dr.Sudhandira had examined P.W.1 and had adduced evidence that the victim's virginity had not been tampered with, and in support of her evidence, she had issued medical certificates Ex.P2. P.W.7-Dr.Gurunathan had also adduced evidence that he had examined A-1 and verified that A-1 had the vitality to have sex with opposite genders. P.W.8, Mr.Vasudevan, Headmaster of the school had adduced evidence which is supportive of the prosecution case. The other witnesses were examined as independent witnesses. P.W.14-Dr.Sivakozhunthu, had stated that the victim's age was 12 years. 9. D.W.1, one Veerammal had adduced evidence stating that she was the noon meal organizer in the said school. She stated that the accused never misbehaved with female students. P.W.9, one Rajagundu had asked A-1 and A-2 to provide noon meal to the non-students also. The same was refused by the accused. Therefore, on the instigation of P.W.9, the case was foisted against the accused. 10. On considering the evidence of the prosecution, defence evidence and on hearing the arguments of the learned counsels on either side, the learned judge had come to a conclusion that the charges under Sections 376 r/w 511, 323, 506 (i) IPC against the first accused had not been proved. But the prosecution had proved the case under Section 354 IPC against the first accused. Therefore, the first accused was convicted of offence under Section 354 of IPC and sentenced to undergo rigorous imprisonment for a period of one year and also imposed a fine of Rs.1,000/-on him in default, he was to undergo a further period of simple imprisonment for three months. The charges under Section 354 of IPC had been proved against the second accused, beyond any doubt, by the prosecution. Therefore, he was sentenced to undergo rigorous imprisonment for a period of six months and a fine of Rs.600/-was imposed on him, in default, he was to undergo a further period of two months simple imprisonment. 11. Against the conviction and sentence passed in S.C.No.21 of 2000, dated 07.12.2000, both the accused had filed an appeal in C.A.No.49 of 2000 before the Principal Sessions Judge, Nagapattinam. 11. Against the conviction and sentence passed in S.C.No.21 of 2000, dated 07.12.2000, both the accused had filed an appeal in C.A.No.49 of 2000 before the Principal Sessions Judge, Nagapattinam. The learned judge after hearing the arguments of the learned counsels on both sides and on perusing the impugned judgment of the trial Court, dismissed the appeal and confirmed the trial Court's judgment. The learned judge had also assigned the reason that the evidence of defence witness, one Veerammal was discarded as she was of a questionable character and as she was an erring erstwhile employee of the same school, and after holding from the prosecution evidence that there was an outrage on modesty of P.W.1 and that the accused was facing three such cases before the appellate Court for similar offences. 12. Against the dismissal of the said appeal, the above revision has been filed. 13. The learned counsel for the revision petitioner argued that the joint trial was conducted by the trial Court for the said two accused, which is void and illegal and is not curable by provision of Criminal Procedure Code. As per prosecution case, the occurrence took place at two different times and dates. Therefore, the cause of action are different. As such, the prosecution case cannot be tried on the basis of a single F.I.R. The learned counsel further contended that there was no eyewitness in the said occurrence. The occurrence place is a public premises i.e., a school, where more than 500 students are studying. Therefore, there is no possibility of outrage on modesty. Initially, the case was registered under Sections 376 r/w 511, 323, 506 (i) IPC. Thereafter, the section was modified. As per the doctors evidence, viz., P.W.6, the victim's virgin status remains unaltered. Therefore, the prosecution's allegation against A-1 and A-2 are not sustainable under law. The specific allegation against A-1 that he had inserted his finger into the vital parts of the victim has not been proved as per the evidence of P.W.6., Dr.Sudanthira. The prosecution charge was that both the accused pinched the victim's cheeks and caused injuries. This was not proved by the prosecution. Therefore, the trial Court discharged the accused from the said charge. The learned counsel further argued that the occurrence had happened four days prior to the registering the F.I.R. As such, the prosecution case was a concocted story. The prosecution charge was that both the accused pinched the victim's cheeks and caused injuries. This was not proved by the prosecution. Therefore, the trial Court discharged the accused from the said charge. The learned counsel further argued that the occurrence had happened four days prior to the registering the F.I.R. As such, the prosecution case was a concocted story. The case was registered on the instigation of P.W.9, Rajagundu, who had developed enmity with the accused on the earlier occasion due to non providing of meals to the children who were not studying there. The same was confirmed by the evidence of D.W.1, who is not a stranger, but she had already worked there and was well aware of the conduct and character of the accused. Both the Courts discarded her evidence without any valid reasons. The learned counsel further argued that the victims father P.W.13 gathered the village supporters and lodged a complaint with the respondent Police. The respondent Police had also registered a case due to the influence of the village people. P.W.2 to P.W.5 are minors, but they are not eyewitness. There is absolutely no documentary evidence, circumstantial evidence and eyewitnesses to prove that the accused had committed the offence. 14. The learned counsel for the revision petitioner has cited the following citations in support of the revision case:- (a) K. LAKSHMANA RAO v. PUBLIC PROSECUTOR reported in (1979) 4 SCC 638 "Criminal Trial - Appreciation of evidence -New allegations and overt acts attributed to the accused at the trial which were not mentioned in the F.I.R. Held, should not have been believed where the F.I.R had been filed after due deliberation, the complainant being a mature educated woman-On facts, no offence under Section 354 I.P.C. made out. Criminal Procedure Code, 1973 - Sections 378 and 386 -Reversal of acquittal by High Court not justified merely because another view of the evidence was possible." (b) Shekara v. State of Karnataka reported in 2009 (1) Crimes 472 (SC) "Indian Penal Code, 1860-Section 350 -There is no abstract conception of modesty that can apply to all cases - Essential ingredients stated AIR 1967 SC 63 - Relied upon. Indian Penal Code, 1860 - Section 354 -A victim of molestation and indignation is in the same position as an injured witness - Her testimony should receive the same weight Trial Court and High Court concurrently finding the accused guilty - However the conviction was erroneously made under Section 376 instead of under Section 354" 15. The learned counsel for the State argued that A-2 had showed boiled eggs and enticed P.W.1 and took her to store room, wherein he had caused outrage of P.W.1's modesty by way of catching hold of her and kissing her. This kind of distasteful activity has been caused by the accused on several occasions. The same was confirmed by the co-students i.e., P.W.2 to P.W.5. P.W.1 being a student of this school was initially afraid to disclose this distasteful activities of the accused. The learned counsel further submitted that A1 was also involved in similar cases. The defence witness is an interested witness. The learned counsel further submits that the F.I.R. was registered on 18.03.1997 and that it was not registered on the basis of a single incident but due to continuous harassment of P.W.1 by the accused. P.W.1 had stated that A-1 had outraged her modesty in the class room. 16. Per contra, the learned counsel for the revision petitioner submitted that the revision was filed by the second accused, but the entire allegations are against A-1. There is no specific date or time mentioned for the said occurrence. 17. After verifying the facts of the case and on perusing the judgments of the Courts below, this Court is of the considered view that:- (i) the F.I.R was registered on 18.03.1997. As per F.I.R, the occurrence took place about four days prior to the date of F.I.R. (ii) no eyewitness was examined to prove that the revision petitioner / A-2 had outraged the modesty of P.W.1. (iii) date and time of occurrence has not been clearly mentioned. (iv) there was no material objects collected by the prosecution in support of their case. (v) Witnesses P.W.8 to P.W.16 are hearsay witnesses and their evidence cannot be taken as true and absolute. (vi) P.W.2 to P.W.5 evidences are unclear and they had not stated the place, time, date of occurrence. (vii) The whole prosecution case has been levelled against A-1. 18. (v) Witnesses P.W.8 to P.W.16 are hearsay witnesses and their evidence cannot be taken as true and absolute. (vi) P.W.2 to P.W.5 evidences are unclear and they had not stated the place, time, date of occurrence. (vii) The whole prosecution case has been levelled against A-1. 18. On considering the prosecution case and on submission made by the learned counsels on either side, and on perusing the judgment and conviction of the appellate Court in C.A.No.49 of 2000, on the file of Principal Sessions Judge, Nagapattinam, this Court finds the deficiencies listed above as (i) to (vii) and hence the prosecution had not proved the case beyond doubt and as such the conviction and sentence passed by the appellate Court in so far as the revision petitioner / A-2 is concerned is set-aside and the second accused is acquitted from the prosecution case. 19. Resultantly, the above Criminal Revision is allowed and consequently the conviction and sentence passed in C.A.No.49 of 2000, on the file of Principal Sessions Judge, Nagapattinam, dated 02.03.2001, confirming the conviction and sentence passed by the Additional Assistant Sessions Judge, Mailaduthurai in S.C.No.21 of 2000, dated 07.12.2000 is set-aside, in so far as the revision petitioner herein / second accused is concerned, and the second accused is acquitted from the prosecution case. The revision petitioner is at liberty to receive the fine amount. Accordingly ordered.