Allowed

Kadhir @ Kadhir Kaman v. the Station House Officer

Madras HC22 Apr 2015CRL A/820/2013

Case brief

AI extract

What is this about?

In an appeal against conviction for rape, the High Court set aside the lower court's verdict acquitting the appellant of one charge but convicting for rape. The Court held that the prosecution failed to prove the rape charge, citing lack of medical corroboration for the victim's testimony and significant delays in submitting witness statements, leading to the appellant's acquittal and release.

What did the court decide?

Conviction under Section 376(2)(f) IPC and sentence set aside; fine refunded; appellant set at liberty.

Kadhir @ Kadhir Kaman Vs the Station House Officer — Murder and Culpable Homicide | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 22.04.2015

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CORAM

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THE HONOURABLE MR.JUSTICE P.DEVADASS

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Criminal Appeal No.820 of 2013

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Kadhir @ Kadhir Kaman ... Appellant

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.. Vs ..

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State

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rep. by the Station House Officer, Pudupet Police Station, Cuddalore District. ... Respondent (Cr.No.37/10)

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PRAYER: Criminal Appeal filed under Section 374 of Criminal Procedure code to set aside the judgment, dated 28.11.2013 made in S.C.No.106 of 2013 on the file of learned Additional Sessions Judge, Mahila Court, Cuddalore.

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For Appellant : Mr.C.Prasanna Venkatesh For Respondent : Mr.P.Govindarajan Addl. Public Prosecutor J U D G M E N T

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The sole accused in the Sessions case is the appellant.

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2 The appellant stood charged under sections 342, 376(2) (f) I.P.C. before the learned Additional Sessions Judge, Cuddalore in the Sessions Case No.106 of 2013.

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The case of the prosecution is as follows: (i) P.W.3 is the daughter of P.Ws.1 and 2. On 23.01.2010, P.W.3 was 7 years old. She was going to school. On that day, P.W.3 told her mother/P.W.1 that the accused took her to a place near Mariamman temple and raped her. P.W.1 told this to her husband P.W.2.

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(ii) On 24.01.2010 at the Pudupettai Police station, Cuddalore District, at about 9 p.m., P.W.1 had lodged Ex.P8 complaint to P.W.9 Head Constable. He registered this case (Ex.P7 F.I.R.). He sent the express F.I.R. to the Court. He gave a copy of it to P.W.10, Inspector of Police.

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https://hcservices.ecourts.gov.in/hcservices/

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(iii) P.W.10 took up his investigation. He visited the scene place. In the presence of P.Ws.6 and 7, prepared Ex.P9 Observation Mahazar. Drew Ex.P10 Rough sketch of the scene place. In their presence, P.W.10 recovered M.O.1 school uniform, M.O.2 Skirt, M.O.3 Petty coat and M.O.4 Inner garment from the scene place under Ex.P11 Mahazar. P.W.10 examined the witnesses and recorded their statements. At about 11.30 a.m. at Punruti-Arasur main road, near Puthur bus stand, P.W.10 arrested the accused and produced him before the Court for judicial custody. P.W.10 gave requisition to the Court to conduct medical examination for P.W.3 and potential test for the accused. P.W.8 Dr.Mohd. Rafeeq Babu examined the accused and gave Ex.P6 positive potential report. P.W.5 Dr.Latha examined P.W.3 and issued Ex.P2 medical report. Concluding his investigation P.W.10 filed the final report for offences under section 342, 376(2) (f) I.P.C. before the committal Court.

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4 Upon hearing both and on consideration of the case records, the trial Court framed charges under sections 342, 376(2)(f) of I.P.C. as against the appellant. He denied the charges. In the circumstances, the trial Court directed the prosecution to produce evidence.

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5 Considering the submissions of both and appreciating the evidence adduced, the trial Court acquitted the appellant from the charge under section 342 I.P.C. However, found him guilty under section 376(2) (f) of I.P.C. and sentenced him to 10 years R.I. and also fined him Rs.5000/- in default 2 months R.I.

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6 The learned counsel for the appellant would contends that there is no acceptable legal evidence to sustain the second charge also. The evidence of P.Ws.1, 2 and 4 does not furnish any incriminating information as against the appellant. Even taking the evidence of P.W.3 the alleged victim girl, there is nothing to show that an offence under section 376 of I.P.C. has been committed.

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7 The learned counsel for the appellant would further contend that there is no medical evidence to corroborate the oral evidence of P.W.3. The evidence of P.Ws.1 and 2 shows that what was stated by P.W.4 grandmother of P.W.3 is the reality of the situation.

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8 The learned counsel for the appellant would further contend that the statement recorded under section 161 Cr.P.C. has been sent to the Court after two years. It indicates that the witnesses are got up witnesses. He would also contend that as between the accused and P.Ws.1 and 2 there was money dispute and keeping this in their mind, through their daughter they have made a false case against the appellant.

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9 The learned counsel for the appellant also contended that the alleged place of occurrence was not established by the prosecution. Further, there is confusion among the prosecution https://hcservices.ecourts.gov.in/hcservices/ witnesses as to the place of the occurrence.

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10 On the other hand, the learned Additional Public Prosecutor would contend that the evidence of P.Ws.3 and P.W.5 Dr.Latha would clearly nail the case to the 2nd charge levelled against the appellant. No dent has been made by the defence when P.W.3 was cross examined. P.W.3 is a minor child. She cannot be expected to depose in the witness box as to the offence of rape as defined in section 375 I.P.C. She was too small a child to recount the ingredients of an offence under section 375 I.P.C.

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11 The learned Additional Public Prosecutor further contended that the motive attributed by the defence is a cock and bull story. It did not carry the defence to its logical conclusion.

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12 I have anxiously considered the rival submissions, perused the impugned judgment, the evidence and the case records.

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13 Now, the question is whether the charge under section 376 (2) (f) of I.P.C. has been proved by the prosecution beyond all reasonable doubts.

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14 In this case, it is alleged that on 23.1.2010, at about 3 p.m. while P.W.3 was returning from her school, the appellant took her to a place near Mariamman temple and raped her.

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15 P.W.1, mother of P.W.3 the alleged victim girl stated to have lodged Ex.P1 complaint. But, in the trial Court, she disowned the complaint. Except her signature Ex.P1 in Ex.P8, she did not support the prosecution version. P.W.2 the father of the P.W.3 also not categorical in his evidence that the appellant has raped his daughter.

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16 In this case P.W.3 is the star witness. At the time of occurrence, she was 7 years old. When she entered the witness box, she was 11 years old. She is a child witness. Children are easy prey to adult person to implicate others. There is much scope for tutoring them. Children also will speak parrot-like. But at the same time, under the Indian Evidence Act, a child is also a competent witness. Because the testimony is coming from the mouth of a child. Such evidence cannot be discarded. But, the evidence of a child must be approached with much care and caution.

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17 P.W.3 is the victim girl. Her evidence assumes signal importance in this case. In her evidence before the trial Court, P.W.3 had stated that the appellant took her to a current shed and did wrong thing to her.

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18 Referring to her said evidence, prosecution contends that P.W.3 is a child witness. She is not a tutored witness. In the language of a child in her natural way, in the witness box, she has https://hcservices.ecourts.gov.in/hcservices/ stated so and it is nothing less of rape.

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19 The importance of medical evidence in a rape case depends on the facts and circumstances of each case. There cannot be any universal proposition that medical evidence is inconsequential in a rape case.

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20 In this case, there is specific version from the mouth of P.W.3 that she has been subjected to sexual violence. P.W.5 Dr.Latha examined P.W.3 on the aspect whether she had been subjected to any sexual violence. She has examined her medically to find out any evidence as to the allegation of rape. It would be profitable to extract the evidence of P.W.5 which runs as under:

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''btspg;g[w fha';fs; VJk; fhzg;gltpy;iy/ mth; ,Jtiu g{g;bga;jtpy;iy vd;W Twpdhh;/ gpwg;g [Wg;g[ ghij ghpnrhjidapy; jput frpt[ vJt[k; ,y;iy/ fd;dpj;jpiu KGikahft[k; ,y;iy/ Mdhy; tpuypd; Edp gFjpTl EiHa Koatpy;iy/ ''

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21 According to P.W.5 there was complete absence of any medical evidence suggesting sexual violence having been committed on P.W.3. Further, the dress collected from P.W.3 was medically examined. It does not contain any semen. Medical report is very specific that there is no semen on the dress.

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22 P.W.4 is grandmother of P.W.4. In her evidence, she had stated that when P.W.3 came crying, she asked her the reason, she told grandmother she told the reason to her parents P.Ws.1 and 2 that the accused had raped her. However, the evidence of P.Ws.1 and 2 is quite contra.

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23 It is pertinent to note that P.W.2 who has not been declared as hostile by the prosecution has stated that his wife/P.W.1 told him that their daughter P.W.3 told her that the accused behaved in an indecent way. In the words of P.W.2, ''vd; kidtp te;J vd; kfsplk; mrp';fkhf ele;J tpl;ljhf brhd;djhy; ehd; fjph;fhkd; tPl;ow;F brd;W nfl;nld;/ ''

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24 The Investigation Officer recorded the statement under section 161 Cr.P.C. It also to be submitted to the Court without any delay. But, delay in sending the statements recorded under section 161 Cr.P.C. will not itself fatal to the case of the prosecution. However, such a delay also assumes signal importance in certain cases where the very genuineness of the prosecution case is doubted. In such circumstances, with least delay section 161 statements should reach the Court.

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25 In this case, only after three years of the occurrence, along with the final report the section 161 Cr.P.C. statements were submitted to the Court. This is a disturbing feature shacking the https://hcservices.ecourts.gov.in/hcservices/ prosecution version of the case.

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26 In this case, the fate of the prosecution case lies on the evidence of P.Ws.3 and P.W.5. P.W.3 has stated that accused did wrong thing to her. The charge No.2 as against the appellant is that he has raped P.W.3. In the circumstances, medical evidence is very important. Medical evidence does not support the version of P.W.3 consequently charge No.2.

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27 Considering all the above aspects, this Court is of the considered view that charge under section 376(2) (f) of I.P.C. framed as against the appellant also has not been proved by the prosecution beyond all reasonable doubts.

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28 In view of the foregoings, this Criminal Appeal is allowed. The Conviction recorded under section 376(2)(f) of I.P.C. and the sentence imposed on the appellant by the learned Additional Sessions Judge, Mahila Court, Cuddalore in S.C.No.106 of 2013 on 28.11.2013 are set aside. Fine amount shall be refunded. He shall be set at liberty, if he is no longer required for any other case.

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Sd/-
Asst.Registrar (CO)
/true copy/
Sub Asst. Registrar
vaan
To
1. The Principal Sessions Judge,
Cuddalore.

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The District and Sessions Judge Cuddalore

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The Additional Sessions Judge, Mahila Court, Cuddalore.

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The Public Prosecutor, High Court, Madras.

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The Superintendent, Central Prison, Cuddalore.

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The Inspector, Pudupet Police Station, Cuddalore.

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https://hcservices.ecourts.gov.in/hcservices/

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The District Collector Cuddalore 8. The Judicial Magistrate No.II Panruti 9. do thro the Chief Judicial Magistrate Cuddalore 10. The Section Officer Crl.Section, High Court, Madras 11. The House Officer Pudupet Police station Cuddalore District 2 ccs to Mr.C. Prasanna Venkatesh, Advocate, Sr.22628,22590 Crl.A.No.820 of 2013 JP (CO) kk 25/5

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https://hcservices.ecourts.gov.in/hcservices/

Kadhir @ Kadhir Kaman v. the Station House Officer

Case brief

What is this about?

What did the court decide?

Kadhir @ Kadhir Kaman v. the Station House Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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