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2019 Supreme(Mad) 3379
IN THE HIGH COURT OF MADRAS
A.D. Jagadish Chandira, J.
Udayakumar - Appellant
Versus
State - Respondent
Crl. A. No. 620 of 2009
Decided On : 29-07-2019
For the Appellant : G. Prabhakaran
For the Respondent: K. Prabakar, APP
Headnote:
Indian Penal Code,1860 - Section 342,376(2)(f) - Criminal Procedure Code,1973 Section - 428 - case as per charges framed against appellant/accused is that on - Appellant/accused with an intent to commit rape, took victim/PW. 2 aged about 5 years, inside lavatory room and bolted room from inside and committed forcible intercourse with her, thereby appellant/accused was charged for offences punishable under Sections 342 and 376 IPC - On completion of evidence on side of prosecution, accused was questioned under Section 313[1][b] Cr.P.C. as to circumstances found in evidence of prosecution witnesses and accused had come with version of total denial and stated that he has been falsely implicated in case due to existing enmity between families - On behalf of defence, two inmates of Scene of Occurrence/vicinity DW. 1 2-Raja were examined and however, no documentary evidence was marked side of . It is defence of appellant/accused that a false case has been foisted against him due to existing enmity to wreck vengeance against family of appellant/accused by PW. 1 with aid of PW. 4 and his friends - Whether prosecution has proved the case beyond all reasonable doubts and - Whether evidence of witnesses adduced on side of prosecution, can be believed - Whether Trial Court was right in convicting and sentencing appellant/accused – Held,court that there is every possibility of false implication of accused in this matter to take revenge against family of accused because of longstanding disputes inter se between the two families - Court has to carefully look into evidence of the other witnesse - . PW1 had deposed in Chief examination as to how she had come to know that appellant/accused committed rape on her child inside the lavatory - As per the evidence of PW. 1 it is clear that she could not have seen what had happened inside lavatory - . Immediately after rescuing the child from the lavatory, she had claimed that she had enquired the child and the child had narrated the happenings which took place inside the lavatory - Court is of considered view that prosecution has not proved its case beyond reasonable doubt and trial Court erred in convicting appellant/accused on wrong appreciation of facts necessitating interference of Court to set aside the impunged judgment - None of them have been examined by prosecution whereas appellant/accused had examined D.W. 1 and D.W. 2. D.Ws. 1 and 2 are independent witnesses and their evidence was not shaken in cross examination by prosecution and there is nothing on record to discredit and discard their evidence - As stated above, evidence of P.W. 1, P.W. 3 and P.W. 4 is improbable and untrustworthy as it is belied by evidence of P.W. 9-Doctor - "One of fundamental principles of criminal jurisprudence is undeniably that burden of proof squarely rests on prosecution and that general burden never shifts.- There can be no conviction on basis of surmises and conjectures or suspicion howsoever grave it may be - Strong suspicion, strong coincidences and grave doubt cannot take place of legal proof - Criminal Appeal is Allowed
JUDGMENT :
A.D. Jagadish Chandira, J.
1. This Criminal Appeal is filed against the judgment of conviction and sentence, dated 03.09.2009 made in SC. No. 525/2002 by the learned Assistant Sessions Judge, Ponneri. The appellant stood charged and tried for the commission of the offences under sections 342 & 376[2][f] IPC and the Trial Court, vide impugned judgment dated 03.09.2009, had found the appellant guilty for the commission of the offences under sections 376 [2][f] and 342 IPC and convicted him and sentenced him to undergo 9 months simple imprisonment and to pay a fine of Rs. 900/- with a default sentence of one month simple imprisonment for the commission of the offence u/s. 342 IPC and to undergo rigorous imprisonment for 9 years and to pay a fine of Rs. 9000/-, in default, to undergo one year rigorous imprisonment for the offence under Section 376(2)(f) of IPC. The sentences were ordered to run concurrently and set-off was also granted u/s. 428 Cr.P.C.
2. The brief facts of the case as per the charges framed against the appellant/accused is that on 16.01.2002 at about 1.15 p.m. the appellant/accused with an intent to commit rape, took the victim/PW. 2 aged about 5 years, inside the lavatory room and bolted the room from inside and committed forcible intercourse with her, thereby the appellant/accused was charged for offences punishable under Sections 342 and 376 IPC.
3. The case was taken on file in PRC No. 31/2002 on the file of the learned District Munsif cum Judicial Magistrate No. 2, Tiruvotriyur and subsequently, the case was made over to the Trial Court, viz., the learned Assistant Sessions Judge, Ponneri, in SC. No. 525/2002 and necessary charges were framed. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the prosecution examined 12 witnesses as PW. 1 and PW. 12 and out of the witnesses, PW. 1 is the mother of the victim/defacto complainant. PW. 2 is the victim/minor girl, whose evidence was not recorded by the Trial Court on the ground of lack of rationality. PW. 3 is the fatter of the victim. PW. 4 is the passerby in the street and a witness to the occurrence and he has also stood as a witness to all the mahazars. PW. 5 and PW. 6 are the witnesses for the arrest and confession of the appellant/accused and both the witnesses have turned hostile. PW. 7 is the Doctor who examined the appellant/accused for potency test. PW. 8, PW. 10 and PW. 12 are, respectively the police officers who have registered the FIR; conducted initial investigation and laid the final report. PW. 9 is the Doctor who had examined the victim girl/PW. 2 in respect of sexual assault and PW. 11 is the Forensic Expert.
4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313[1][b] Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused had come with the version of total denial and stated that he has been falsely implicated in this case due to existing enmity between the families. On behalf of the defence, two inmates of the Scene of Occurrence/vicinity, viz., DW. 1-Vijaya and DW. 2-Raja were examined and however, no documentary evidence was marked on the side of the defence. It is the defence of the appellant/accused that a false case has been foisted against him due to existing enmity to wreck vengeance against the family of the appellant/accused by PW. 1 with the aid of PW. 4 and his friends. The motive being that, scene of occurrence/vicinity contains 5 row typed residential tenements (compound houses) and let out to various tenants including PW. 1's family. The family of the defacto complainant resides in one portion and the family of the appellant/accused resides in another portion. The mother of the appellant/accused had been on behalf of the owner/landlord of the premises, taking care of the maintenance of the entire property including collection of rent, payment of electric
