IMPORTANT POINT
When conclusions recorded by courts below are perverse, accused would be entitled to benefit of doubt.

Headnote:(a) Constitution of India – Article 136 – Supreme Court normally does not interfere with the concurrent findings of the courts below unless such conclusions are manifestly perverse and unsupportable by evidence on record. (Para 19)
        (b) Criminal Trial – Conviction – Sharp inconsistencies in evidence of the girl and his father – Conviction based on totally unconvincing evidence – Not tenable. (Para 36)
        (c) Indian Evidence Act, 1872 – Section 35 – Transfer certificate issued by a Government School and duly signed by the Headmaster is admissible in evidence – However such certificate has no evidentiary value unless proved. (Para 38)
        (d) Indian Penal Code, 1860 – Section 376 – Age of the victim – Burden of proving the transfer certificate not discharged by prosecution – Such certificate cannot be relied upon to definitely fix age of the victim. (Para 40)
        (e) Indian Penal Code, 1860 – Section 376 – Age of the victim – Medical examination would only point out the age approximately with a variation of two years – Exact age cannot be determined by medical examination. (Para 41)
        (f) Indian Penal Code, 1860 – Section 376 – Age of the victim – School transfer certificate not proved – Medical assessment not ruling out possibility of victim girl being major – Prosecution failed to prove that the girl was minor. (Para 42)
        (g) Indian Penal Code, 1860 – Section 36 – Testimony of victim of sexual assault stands at par with testimony of an injured witness, and is entitled to great weight – Therefore, corroboration for testimony of the victim would not be insisted upon if the same does not suffer from any basic infirmities and the probability factors do not render it unworthy of credence. (Para 45)
        (h) Administration of Justice – Judicial review – In view of conclusions recorded by courts below being perverse, accused are entitled to benefit of doubt. (Para 48)
       Facts of the case:
        1. Appellants had kidnapped the victim girl. One of the accused forcibly married her and raped her for three days.
        2. In the meantime FIR was lodged u/s 376.
        3. The accused were convicted and sentenced by the trial court which was maintained by the High Court.
       Finding of the Court:
        Prosecution has failed to prove beyond reasonable doubt any of the offences with which the appellants had been charged.
       Result : Appeals allowed.

JUDGMENT

Surinder Singh Nijjar, J. —

1. These three appeals are directed against the common judgment of the High Court of Judicature at Madras dated 6th February, 2008 in Criminal Appeal Nos. 406 and 414 of 2000 confirming the common judgment passed in S.C. No. 255 of 1997 by the learned Assistant Sessions Judge, Namakkal dated 28th April, 2000 whereby the trial court had convicted and sentenced the appellants as under:-

The appellants in Criminal Appeal No. 1053 of 2009 had been convicted under Sections 366 and 376 read with Section 109 IPC and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for a period of three months.

In Criminal Appeal No. 1063 of 2009, Sekar, appellant No.1, had been convicted under Sections 366 and 376 IPC and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.500/- in default of payment of fine to further undergo rigorous imprisonment for a period of three months. Appellant No.2 Kandasamy had been convicted under Sections 366 and 376 read with Section 109 IPC and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for a period of three months.

In Criminal Appeal No.1062 of 2009, both the appellants were convicted under Sections 366 and 376 read with Section 109 IPC and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.500/- in default of payment of fine to further undergo rigorous imprisonment for a period of three months.

2. Briefly stated the prosecution story is that PW2 (hereinafter referred to as the “victim” or “girl” according to context) is the daughter of Chinnathambi, (PW1) who is a teacher and resident of Nedupatti Village, Namakkal District, Tamil Nadu. The victim had failed in the SSLC examination. Therefore, she was admitted in private tutorial college called Seran Tutorial College.

3. It is alleged that on 31st July, 1993 at about 3.00 p.m. when she was walking near Nedupatti on the way to her house from the local bus stop, after attending her tutorial classes, Sekar (A1) told her that he loved her and wanted to marry her. The victim, however, did not agree to such proposal. Thereafter, a car bearing registration No. TTA 1886 came near the victim and she was forcibly pushed into the car by Sekar (A1). Rangaswami (A2), Paramasivam (A4) and Alamelu (A5) were already inside the car. This incident was informed to the father (PW1) of the victim by one Sugavanam, who had received a call from Sekar (A1). The incident was confirmed by another person called Thangavel (PW3) who informed PW1 about an hour later.

4. Since PW1 is a handicapped person and unable to walk, he sent his relatives in search of his daughter. According to the prosecution case, the car was taken to the residence of Selvi, who is the sister of Sekar (A1) at Pudupatti. Thereafter, Parmasivam (A4), Alamelu (A5) and Subramani (A8) were advising the victim to marry Sekar (A1), however, she refused to do so. At that stage, Kandasamy (A7) declared that it is not necessary to take the consent of PW2 and they should just go to the temple in the morning and perform the marriage ceremony.

5. The next morning, on 1st August, 1993 at 4 ‘o’ clock, they all took the victim to Arapaleeswarar Temple at Kolli Hills. On reaching the temple, Sekar (A1) tied the mangalsutra on the neck of the victim in spite of her resistance. Thereafter, she was taken to Mullukurichi. She was kept in a house and repeatedly raped for three days.

6. On 4th August, 1993, she was taken by Sekar (A1) to Palampatti. Since it was known to Sekar (A1) that the police was searching for the girl (PW2), he took her to Thiruverumbur Police Station. He told the police officials there that they were husband and wife and had been legally married.

7. In the meantime on 3rd August, 1993, PW-10, the Sub- Inspector of Police of Vennandur

Click Here to Read the rest of this document

2011 Supreme(SC) 74

IMPORTANT POINT When conclusions recorded by courts below are perverse, accused would be entitled to benefit of doubt.

Cases Referred (4)

IMPORTANT POINT
When conclusions recorded by courts below are perverse, accused would be entitled to benefit of doubt.