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2010 Supreme(Mad) 4759
High Court of Judicature at Madras
S. NAGAMUTHU
Sekaran
Versus
State by Inspector of Police, K.V. Kuppam Police Station
Crl. Appeal No.1014 of 2005
Decided On :11-02-2010
For the Appellant :V. Karthick for T.S. Gopalan & Co., Advocate.
For the Respondent: N.R. Elango, APP.
Ratios:
a. The evidence of a child witness must be evaluated carefully.
b. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on.
c. Court may act upon the evidence of a child witness only if his/her evidence inspires confidence and tutoring is ruled out.
Headnote:(A)Indian Evidence Act, 1872(1 of 1872)-Sec.3-Code of Criminal Procedure, 1973(2 of 1974)-Sec.161, 219, 313-Criminal Trial-Appreciation of evidence-Child witness-Corroboration-Recalling-Delay-Hostile witness-Same transaction-Joinder of charges-Many children of tender years were alleged to have been raped by their headmaster and unnatural offences were also committed on them-During the trial, many children victims were declared hostile but three of them supported the prosecution-After trial, the trial Court convicted the headmaster for rape and unnatural offence-In the appeal preferred by him, the accused contended that the witnesses deposed as per the tutoring by the police and gave contra version in their later cross-examination and their evidences were not corroborated-State resisted the grounds raised by the accused-Held, the children had shown their tendency to be influenced by others and they had accepted that they deposed in chief examination as tutored by the police-They had also deposed contra in their later cross-examination but were not declared hostile-There was an unexplained delay in their examination-They did not say anything to the doctor who examined them-Their parents and classmates were not examined by police to get corroboration-Incriminating materials were not properly put to the accused-Mistakes committed by the trial Court in the trial of rape cases were pointed out and the accused was acquitted-Appeal was allowed.
(B)Indian Evidence Act, 1872(1 of 1872)-Sec.3-Criminal Trial-Appreciation of evidence-Child witness-Corroboration-The evidence of a child witness must be evaluated carefully- Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on.
It is well settled by the Hon’ble Supreme Court that the evidence of a child witness must be evaluated carefully, as the child witness may be swayed by what others tell him and is an easy prey to tutoring. The wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on. Para 15
(C)Indian Evidence Act, 1872(1 of 1872)-Sec.3-Criminal Trial-Appreciation of evidence-Child witness-Corroboration-Court may act upon the evidence of a child witness only if his/her evidence inspires confidence and tutoring is ruled out.
If only, the evidence of a child witness inspires the confidence of the Court and if only tutoring is ruled out, the Court can act upon the uncorroborated testimony of the said child witness. Para 30
The appellant is the sole accused in S.C.No.295 of 2003 on the file of the learned Assistant Sessions Judge, Gudiyattam. He stands convicted for the offences under Sections 377 (2 counts) and 376(2)(b) (2 counts) of IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for two years for each count for the offence under Section 377 of IPC; and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for two years for each count for the offence under Section 376(2)(b) of IPC. Challenging the same, he is before this Court with this Appeal.
2. The case of the prosecution in brief is as follows:-
The appellant was the Headmaster at "Adi Dravida Welfare Primary School" in Pasumathur Village, Katpadi Taluk, Vellore District. P.Ws.1 to 10 were students of the said school and they were aged between 8 – 12 years respectively in the year 2002. According to the prosecution case, these 10 girls were either raped or subjected to unnatural offence in the store room of the school on various dates by the appellant. P.W.11 is the mother of P.W.1. On 02.10.2002 at about 1.00 p.m. when P.W.15, the then Sub Inspector of Police attached to K.V.Kuppam Police Station was on duty, P.W.11 appeared and gave an information in writing (Ex.P.1) alleging that the appellant had taken her daughter P.W.2 -Selvarani, P.W.3-Arulmozhi, P.W.4-Sathya, P.W.5-Jeevitha, and few other students on various dates and committed unnatural offences on them, outraged their modesty and also attempted to rape. On the basis of the said information (Ex.P.1) given by P.W.11, the then Sub Inspector of Police, P.W.15 registered a case in Cr.No.382 of 2002 for the offences under Section 352, 377, 376 r/w 511 of IPC.
3. P.W.17, who was the then Inspector of Police of K.V.Kuppam Police Station, took up the case for investigation on the very same day and he proceeded to the place of occurrence, prepared a rough sketch (Ex.P.23) in the presence of two witnesses. Then, he examined P.W.11 and P.W.1 and recorded their statements. On the very same day , at about 2.30 p.m. he arrested the appellant and after following all legal formalities, he produced the appellant before the Judicial Magistrate for remand with a request to subject the appellant for medical examination. Accordingly, P.W.14, examined the appellant and offered opinion that he was capable of performing sex. Ex.P.12 is the Accident Register issued by him. Thereafter, P.W.17 examined few more witnesses and recorded their statements. On 03.10.2002, he forwarded the alleged victims namely, P.W.8 Nethravathi, P.W.3 Arulmozhi, P.W.2 Selvarani, P.W.7 Divya, P.W.1 Indhuja and P.W.6 Komala to Government Hospital, Gudiyattam for medical examination to ascertain the fact as to whether the victims had been subjected to any sexual assault and also to know about their age. Similarly, on 04.10.2002, he forwarded P.W.9 Parimala, P.W.10 Mathialagi, P.W.5 Jeevitha and P.W.4 Sathya to such medical examination. P.Ws.12 & 13 accordingly examined the victims and offered their respective opinion. Exs.P2 to P.11 are the Accident Registers issued by them. Then, P.W.17 examined the respective Medical Officers and obtained the medical certificates. On 22.10.2002, he gave a requisition for recording the statements of P.Ws.1 to 11 under Section 164 of the Code of Criminal Procedure. P.W.16, who was the then Judicial Magistrate, Ambur, recorded the statements of the said witnesses. On completing the investigation, P.W.17 filed the final report on 09.12.2002 against the appellant under Section 354, 377 and 376(2) (b) of IPC.
4. Based on the above materials, the trial court framed charges for the offences under Sections 354 of IPC (3 counts), 377 of IPC (4 counts), 376 (2)(b) of IPC (7 counts). The appellant denied all the charges.
5. During trial, in order to establish the charges, the prosecuti
