Appeal against conviction under sections 376(2)(g) and 506 (1) IPC
1. This appeal challenges the final judgment and order dated 27th August 2019, passed by the learned Single Judge of the High Court of Judicature at Madras, whereby vide a common judgment, the High Court dismissed Criminal Appeal Nos. 449 and 840 of 2012. The present Appellant, who is Accused No. 2, had filed the Criminal Appeal No. 840 of 2012, along with Accused Nos. 3 and 4, under Section 374 of Criminal Procedure Code, 1973, challenging the judgment and order dated 26th June 2012, passed by the learned Additional District and Sessions Judge, Court No. III, Thirupathur, Vellore District, in Sessions Case No. 277 of 2010, whereby the trial court had convicted and sentenced the accused persons for offences punishable under Section 376(2)(g) and 506(1) of Indian Penal Code, 18604, and Section 4 of the Tamil Nadu Prevention of Women Harassment Act.
FIR on gang rape
2.1 On 28th January 2006, Police Station Vaniyampadi Town received a written information from the victim (PW-1), to the effect that she had been gang raped. On the basis of the said written information, Police Station Vaniyampadi Town registered a First Information Report (FIR), vide P.S. Crime No. 115 of 2006 for the offence punishable under Sections 341, 323, 376 and 506(2) IPC read with Section 4 of Tamil Nadu Prevention of Women Harassment Act. On registration of the FIR, Shri Loganthan, Inspector of Police, Vanianpadi Town Police Station (PW-13) (I.O.) visited the place of occurrence and prepared observation Mahazar and sketch. He recorded the statement of witnesses. The accused persons were arrested. The medical officer examined the victim and her statement was recorded under Section 164 CrPC by the Judicial Magistrate, Thirupattur.
2.2 The prosecution case, in a nutshell, is that the victim was working at Emerald Shoe Company, Vaniyampadi for three years leading upto the day of the incident. On the day of the incident, i.e., 27th January 2006, at about 7 PM, when the victim, aged 22 years, was returning to her house, after completing her work, the Accused No. 1 who was the Manager/Owner of the said Company came to her and told her that he wanted to talk to her about certain matter and so he took her to a place near the Railway Bridge, where already the other four persons (Accused Nos. 2 to 5) were standing, who then forcibly dragged her to a secluded place and threatened to throw her on the railway track if she shouted. They then stripped her. The victim cried for help, upon which she was threatened with a knife. The accused persons committed gang rape on her. Accused No. 1 assaulted the victim as well. The act continued till 3:30 AM, the next morning, when she escaped and came back to her house. On her return, she informed her mother (PW-2) and aunt (PW-3) and later during the same day, she got the FIR registered.
Investigation and committal
2.3 At the conclusion of the investigation, a charge-sheet came to be filed by the I.O. in the Court of Vanianpadi Judicial Magistrate. Since the offence charged against the accused persons was triable only by the Court of Sessions, the case was committed to the learned Principal District and Sessions Judge, Vellore, and the same was made over to the learned trial court, for disposal.
Framing of charges
2.4 Charges were framed by the trial court under Sections 376(2)(g) and 506(1) of IPC and Section 4 of Tamil Nadu Prevention of Women Harassment Act.
Trial and conviction
2.5 The accused persons pleaded not guilty and claimed to be tried. To bring home the guilt of the accused, the prosecution examined fourteen (14) witnesses, twenty-five (25) exhibits were marked along with two (2) material objects. The defence of the accused was that they had been falsely implicated. At the conclusion of the trial, the trial court found that the prosecution had proved the case beyond reasonable doubt against the accused persons and so convicted them under Section 376(2)(g) and 506(1) IPC and Section 4 of Tamil Nadu Prevention of Women Harassment Act and sentenced each accused person to 10 years rigorous imprisonment and fine of Rs. 5,000/- for the offence committed under Section 376(2)(g) IPC, 1-year rigorous imprisonment and fine of Rs. 1,000/- for the offence committed under Section 506(1) IPC and 1-year imprisonment for the offence committed under Section 4 of the Tamil Nadu Prevention of Women Harassment Act, in default of payment of fine they were to undergo 3-months simple imprisonment. The sentence was to run concurrently and the period already undergone was to be set-off. Since the Accused No. 5 had died during the trial, the case against him stood abated.
Conviction confirmed by the Hon’ble Madras High Court
2.6 Being aggrieved thereby, the accused persons preferred appeal against the final judgment and order of the trial court. There were two appeals before the High Court. Accused No. 1 filed Criminal Appeal No. 449 of 2012 and the Accused Nos. 2 to 4 filed Criminal Appeal No. 840 of 2012. Vide impugned judgment, the High Court dismissed both the criminal appeals and upheld the findings of the trial court.
Main witnesses including prosecutrix turned hostile in cross-examination
8. No doubt that the prosecutrix and her mother and aunt in their cross-examination, which was recorded three and a half months after the recording of the examination-in-chief, have turned around and not supported the prosecution case.
The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him
9. A 3-Judge Bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh [(1991) 3 SCC 627 : 1991 INSC 153], relying on the judgments of this Court in the cases of Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 : 1975 INSC 306], Sri Rabindra Kuamr Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 INSC 204], Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1979 INSC 126], has held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
12. Relying on the aforesaid judgments, this Court has taken a similar view in the case of Rajesh Yadav and Another v. State of Uttar Pradesh [(2022) 12 SCC 200 : 2022 INSC 148]
Since there is a long gap between the Chief and Cross examination it appears that the witnesses were won over
13. In the present case also, it appears that, on account of a long gap between the examination-in-chief and cross examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in-chief which fully incriminates the accused. However, when the evidence of the victim as well as her mother (PW-2) and aunt (PW-3) is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the Medical Expert (PW-8), we find that there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief.
14. Insofar as the reliance placed by the learned counsel for the appellant on the judgment of this Court in the case of Rai Sandeep alias Deepu (supra) is concerned, the said case can be distinguished, inasmuch as in the said case except a minor abrasion on the right side of the neck below jaw, there were no other injuries on the private part of the prosecutrix, although it was allegedly a forcible gang rape. As such, the said judgment would not be applicable in the present case.
15. In the result, we find no reason to interfere with the concurrent findings of fact recorded by the trial court as well as the High Court on appreciation of the evidence.
16. The appeal is dismissed
Party
SELVAMANI …APPELLANT(S) VERSUS THE STATE REP. BY THE INSPECTOR OF POLICE …RESPONDENT(S) – CRIMINAL APPEAL NO. 906 OF 2023 – 2024 INSC 393 – MAY 08, 2024.
