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2012 DIGILAW 3927 (MAD)

R. Gomathi v. Jeeva @ Jeevanandam

2012-09-17

B.RAJENDRAN

body2012
Order:-The revision petitioner is the defacto complainant and she has come forward with this Criminal Revision Petition aggrieved by the order of acquittal passed by the court below, acquitting the accused/first respondent herein. 2. According to the petitioner, she knew the first respondent/accused even when she was studying 7th standard inasmuch he is the friend of her counsin brother namely Murali and both the petitioner and the accused were moving closely and their association was also known to the family of the petitioner. During the relevant time, the petitioner was studying Teacher Education in Pondicherry and at that time, the petitioner was called upon by the accused to come to the Perumal temple around 5.00 pm. Accordingly, the petitioner went to perumal temple by bus, where she was picked up by the accused in his motor bike. When the petitioner questioned as to where he is taking her, he refused to say anything. The petitioner was taken to an isolated place surrounded by bushes in Nathampettai Village by stating that they can sit there and relax for some time. After reaching the said place, the accused removed her thupatta, hugged and kissed her several times. Thereafter, he also removed her churidhar and stripped her naked. When the petitioner was asked to lie down, she refused and on such refusal the accused slapped her. The accused thereafter inserted the condom in his penis and when this was questioned, he replied that it will prevent the child birth and that she can continue her studies without any hindrance. The accused thereafter penetrated his penis into her private parts and indulged in sexual intercourse. The petitioner was thereafter compelled to suck her penis and when this was refused by her, he threatened her by saying that unless she does so, she will not be able to leave that place. Under such intimidation, the petitioner sucked his penis and removed the condom by her mouth. Thereafter, the accused asked the petitioner to wear the clothes and left her in the house in his motor bike. According to the petitioner, this incident was not revealed by her to any one fearing intimidation as the accused warned her not to disclose this to any one, failing which she and her mother will be done to death. Thereafter, the accused asked the petitioner to wear the clothes and left her in the house in his motor bike. According to the petitioner, this incident was not revealed by her to any one fearing intimidation as the accused warned her not to disclose this to any one, failing which she and her mother will be done to death. Further, during the relevant time, her examinations were on the pipeline and therefore also, she did not immediately disclose the incident to her mother. Thereafter, she disclosed the entire incident to her mother and given the complaint dated 18.06.2008, Ex.P1 before the second respondent/police. On the basis of such complaint, the Crime No. 12 of 2008 came to be registered against the accused for the offences punishable under Section 376, 417 read with 506 (ii) IPC. After investigation, the second respondent laid the charge sheet before the court below and it was taken on file in S.C. No.114 of 2009. 3. Before the court below, on behalf of the prosecution, the petitioner examined herself as PW1, her mother was examined as PW2 and eight other witnesses, Pws 3 to 10 were examined and Ex. P1 to P10 were marked. On behalf of the accused, the Inspector of Police, Armed Forces Department was examined as DW1 and Exs. A1 to A2 were marked. Upon trial, the trial court dismissed the Sessions Case and acquitted the accused of all the charges by concluding that the prosecution has not proved the case beyond reasonable doubt. The court below also disbelieved the version of the prosecution witnesses holding that there are lot of inconsistencies and it is not safe to base a judgment of conviction with the evidence available on record. 4. The learned counsel appearing for the petitioner mainly argued that it is well settled that the sole testimony of the prosecutrix is sufficient to base a conviction and it needs no corroboration. In the present case, apart from the evidence of the prosecutrix, PW1, her mother was examined as PW2 and other independent witnesses were also examined. The court below, failed to consider the evidence of the prosecution witness in the proper perspective. The court below also failed to take note of the fact that the accused had committed the act of rape without the consent of the petitioner and by giving a false promise to marry her. The court below, failed to consider the evidence of the prosecution witness in the proper perspective. The court below also failed to take note of the fact that the accused had committed the act of rape without the consent of the petitioner and by giving a false promise to marry her. Therefore, the act complained of against the accused comes within the scope and ambit of Section 376 of IPC but the court below had simply brushed aside the evidence available on record. The court below gave much credence to Exs. D1 and D2, work allocation register maintained by the police department where the accused is working to conclude that the accused was not at all available in the scene of occurrence and that the version of the petitioner is false. In any event, the acquittal of the accused is not in accordance with law and it needs to be interfered with by this Court. 5. On the above submission, I heard the learned Government Advocate appearing for the second respondent/State and perused the materials on record. 6. The accused stood charged for an offence punishable under Section 376, 417 read with 506 (ii) IPC. The trial court disbelieved the version of the prosecution witness, especially the testimony of the prosecutrix which led to the acquittal of the accused in this case. 7. When we analyse the order passed by the Court below, the court below found glaring inconsistencies in the evidence of the prosecution version. According to the complaint given by the petitioner, Ex.P1, the accused requested the petitioner to come to the Perumal temple, accordingly she went to the temple by bus where the accused picked her in his motor bike. Whereas, PW2, the mother of PW1, in her evidence would state that the accused came to her house and taken the PW1 in her bike to the temple. Even in the complaint, Ex.P1, the petitioner has not stated the time at which the accused picked her in his motor bike from the temple, but in her evidence before the court below, she had stated the time of the incident as 5.00 pm in the evening. The version of the complainant in her complaint, Ex.P1 and the evidence given by PW1 before the trial court are contradictory. In the complaint given by the PW1 before the police, the date was mentioned, but the time was not mentioned. The version of the complainant in her complaint, Ex.P1 and the evidence given by PW1 before the trial court are contradictory. In the complaint given by the PW1 before the police, the date was mentioned, but the time was not mentioned. Whereas, in her evidence before the court below, she has mentioned the time of occurrence as 5.00 pm. Similarly, in the evidence of PW2, mother of PW1, she deposed that her daughter, PW1 disclosed the incident to her immediately on the same day, whereas, the version of the prosecutrix was to the effect that she did not immediately disclose the incident to her mother and it was narrated to her after a long time. PW2 also says that it is she who had sent PW1 along with the accused to the perumal Temple, whereas, PW1 would say that she went to Perumal temple by bus directly from the teacher training college. Therefore, these are glaring contradictions in the version of the prosecution witnesses and the court below also pointed out the same to acquit the accused. 8. The petitioner in her complaint, Ex.P1 has stated that she removed her dress voluntarily and she has only objected to the use of condom by the accused. The petitioner has not stated anything in her complaint, Ex.P1 that the accused had committed the act of penetration of his penis into her vagina, but she stated so only in the evidence before the court below. Further the petitioner never stated that she was compelled by the accused and without her consent, he committed the act of rape. 9. PW2 in her evidence stated that during the month of June 2007, the accused came to his house at about 5.00 pm, picked her daughter in his bike by stating that he is taking her to the Perumal temple and left her back in her house by 7.00 pm. At the time when PW1 returned home, she was weeping and crying continuously and when this was questioned, she stated that the accused committed the act of rape on her. Since the examinations are on the pipeline, she did not ask her daughter to prefer any complaint. After examinations are over, at her instance, her daughter gave the complaint, Ex.P1. At the time when PW1 returned home, she was weeping and crying continuously and when this was questioned, she stated that the accused committed the act of rape on her. Since the examinations are on the pipeline, she did not ask her daughter to prefer any complaint. After examinations are over, at her instance, her daughter gave the complaint, Ex.P1. Further, PW2, in her evidence has stated that on the date of occurrence, at about 4.00 am in the morning, the accused called upon the petitioner to come and wait near the Perumal temple bus stand and that the petitioner left her home when she was sleeping. PW1 never stated that immediately after the incident, she disclosed the incident to her mother PW2. Whereas, PW2 has stated that on the same day of the incident, her daughter disclosed the incident to her and it is she, who asked the petitioner not to give any complaint because of the ensuing examinations. Further, the petitioner never stated either in her complaint or in her evidence that the accused raped her, but only stated that the accused attempted to commit the act of rape on her. These glaring inconsistency in the evidence of PW2 was pointed out by the court below to conclude that the evidence of PW2 is not trustworthy and reliable. 10. On behalf of prosecution, Pws 3, 5 and 6 were examined to show that both the petitioner and the accused were moving closely for a long time. First of all, it was not disputed by any one that the petitioner and the accused moved closely. Even PW2, mother of PW1, in her evidence stated that she knew the accused and she also sent the petitioner along with the accused to the temple. Furthermore, Pws 3, 5 and 6 examined on behalf of the prosecution have only stated that they do not know anything about the relationship between the petitioner and the accused and therefore, they were treated as hostile witnesses. 11. PW8 is the Doctor, who examined the prosecutrix, who in her evidence stated that at the time of medical examination, PW1 had stated to her that the accused, who is known to her, attempted to commit the act of rape on her. Further, PW8 in her evidence stated that there is no medical evidence to show that the petitioner was subjected to sexual intercourse at all. Further, PW8 in her evidence stated that there is no medical evidence to show that the petitioner was subjected to sexual intercourse at all. PW8 further stated that the vagina of the petitioner is capable of penetration of a finger, which normally a vagina can accommodate and that she was not subjected to intercourse earlier. Before the Doctor, the victim has only stated that he attempted to commit rape, but not raped her. 12. The complaint, Ex.P1 was given belatedly after one year from the date of alleged occurrence. Even in the complaint, Ex.P1, the petitioner had stated that after eight months from the date of incident the accused refused to marry her and two months thereafter, she preferred the complaint to the respondent/police. Therefore it is clear that the prosecution has not properly explained the delay in filing the complaint, Ex.P1 and therefore the court below is justified in holding that the theory put forward by the prosecutrix is doubtful. It is also not the case of the victim that after giving the promise to marry her, he had sexual intercourse with her. Therefore, the ingredients of Section 417 of also not proved by the petitioner. 13. On going through the entire evidence on record, it has to be pointed out that the accused is a literate and not an illiterate. Even according to the petitioner, at the relevant point of time, she was pursuing her Teacher training course at Pondicherry. While so, the petitioner cannot be expected to be undressed in a public place. It is also not the evidence of the petitioner that she was forcibly undressed by the accused. If really the petitioner was attempted to be raped by the accused in a public place, after undressing her, she could not have kept quiet or came back to her home with the accused in his motor bike. It is also not the case of the petitioner that she raised an alarm and sought any one's help when she was attempted to be raped by the accused. Therefore it is clear that the version of the petitioner is not so natural or it inspires the confidences of this Court. 14. Apart from the inconsistencies pointed out above, on behalf of the defence, the accused marked two documentary evidences, Exs. D1 and D2. Exs. D1 and D2 are work allocation register maintained by the police department. Therefore it is clear that the version of the petitioner is not so natural or it inspires the confidences of this Court. 14. Apart from the inconsistencies pointed out above, on behalf of the defence, the accused marked two documentary evidences, Exs. D1 and D2. Exs. D1 and D2 are work allocation register maintained by the police department. In order to prove Exs. D1 and D2, the accused also examined the Inspector of Police, Armed Forces from his department as DW1 to show that at the relevant date and time, the accused was in duty in the Chief Minister's residence from the morning of 8.45 am on 26.05.2007 till 9.00 am on the next day i.e., 27.05.2007. The evidence of DW1 was not shaken by the prosecution in his cross-examination. Therefore, based on Exs. D1 and D2, the court below has rightly come to the conclusion that the theory put forward by the prosecutrix is doubtful and that the accused was not at all available in the scene of occurrence during the time of alleged incident. 15. The court below, in the order of acquittal, rightly pointed out that except the incident that is said to have taken place on 26.05.2007, the petitioner has not stated that the accused either misbehaved with her or attempted to misbehave with her at any earlier point of time. It was also rightly pointed out by the court below that the prosecution failed to prove by valid evidence as to when and where the accused promised to marry the petitioner. Even in the complaint, Ex.P1, there is no whisper that the accused committed the act of rape on her by falsely promising to marry her. The court below also found that if really the accused cheated her with a false promise to marry her, being a literate, she could have given some complaint to the superior officers of the accused, who is working in the Police Department, but it was not done. Therefore, the court below concluded that based on the inconsistent testimony of the PW1 and PW2, the prosecution cannot succeed and consequently, the accused is entitled for acquittal. 16. Therefore, the court below concluded that based on the inconsistent testimony of the PW1 and PW2, the prosecution cannot succeed and consequently, the accused is entitled for acquittal. 16. The learned counsel for the petitioner relied on the decision of the Honourable Supreme Court reported in (State of Uttar Pradesh vs. Chhotey Lal) (2011) 2 SCC 550 for the proposition that the sole testimony of the prosecutrix, if it is found reliable, is sufficient to convict the accused and no corroboration of her evidence is required. Therefore, according to the counsel for the petitioner, the testimony of the prosecutrix is enough to convict the accused. 17. It is true that the sole testimony of the prosecutrix is sufficient to base a conviction and it needs no corroboration. At the same time, the testimony of the prosecutrix should inspire the confidence of this Court and it must be reliable and trustworthy. The evidence of the prosecutrix should be cogent and should support the case of the prosecution. These ingredients are not fulfilled by the prosecution in this case. As mentioned above, there are many contradictions and inconsistencies in the version of the prosecution witnesses. The independent witnesses examined on the part of the prosecution also turned hostile. There is no concrete evidence to establish the guilt of the accused beyond reasonable doubt, especially in a case of this nature. Therefore, given the magnitude of the inconsistencies and contradictions in the evidence, which are so glaring, I am of the view that it is unsafe to convict the accused for the offence complained of by interfering with the order of acquittal passed by the court below. 18. In the decision of the Honourable Supreme Court reported in (Ram Swaroop and others vs. State of Rajasthan) (2005 SCC (Crl.) 61) it was held that it is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly, it is well settled that if the view taken by the trial court, while acquitting the accused is a possible, reasonable view on the basis of evidence on record, the High Court need not interfere with such an order of acquittal merely because it is possible to take a contrary view. 19. Similarly, it is well settled that if the view taken by the trial court, while acquitting the accused is a possible, reasonable view on the basis of evidence on record, the High Court need not interfere with such an order of acquittal merely because it is possible to take a contrary view. 19. It is evident from the aforesaid judgment of the Hon'ble Supreme Court that this Court cannot appreciate the evidence and interfere with the order of acquittal passed by the trial court as the view taken by the trial court is also a reasonable view on the basis of evidence on record and the evidence recorded by the trial court are not manifestly erroneous or perverse. The revision petitioner is unable to establish, by any valid evidence, that the order passed by the Court below is perverse or contrary to evidence available on record. 20. Applying the aforesaid decision to the facts and circumstances of this case, in the present case, there are no evidence available on record to connect the accused to the offence complained of and the prosecution has miserably failed to establish the guilt against the accused beyond reasonable doubt. Therefore, I am of the view that the order of acquittal passed by the court below is reasonable, plausible and it need not be slightly brushed aside. 21. In the result, the order passed by the Court below is confirmed. The Criminal Revision Petition is dismissed.