Procedure adopted by the special judge: splitting up the case & recording of deposition
4. The learned Special Judge carefully analysed the final report and found that the offences allegedly committed by the four accused were not committed in the course of the same transaction and therefore, he split up the case qua each accused and assigned separate case numbers to conduct the trials simultaneously and not jointly. The details of the case numbers are as under:
Sembulingam – Spl.S.C.No.5 of 2017
Murugesan @ Murugan – Spl.S.C.No.8 of 2017 (Appellant herein)
Sivakumar @ Ramesh – Spl.S.C.No.9 of 2017
Vijayakumar – Spl.S.C.No.10 of 2017.
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8. We find that the chief-examination of all the prosecution witnesses is common to the four cases but only the cross-examination differs. The trial Court cannot be faulted for adopting such a procedure in the peculiar facts and circumstances of the present case.
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IQ level of the victim is important to decide the case: Less IQ and hence there is every chance of tutoring
17. In a case of this nature, the Courts are expected to act upon the evidence of the victim girl and not to search for any corroboration, if the evidence does not lack credibility. However, in the present case, the evidence of the doctors viz., P.W.7 and P.W.13 shows that the intelligence quotient level of “X” is below average and she is not even capable of remembering things which happened six months back. Keeping the same in mind, we have to necessarily assess her evidence with more care and caution. While undertaking this exercise, this Court, in Crl.A.No.424 of 2017 and Crl.A.No.558 of 2019, has found that “X” has a poor intellectual capacity and there is a possibility of tutoring her. That apart, the medical examination of “X” does not reflect the fact that she was subjected to repeated sexual assault by four persons. Even the medical officer, who was examined as a witness was not able to give definite opinion, as to whether “X” was subjected to repeated penetrative sexual assault.
18. In the light of the above, it will not be safe to rely upon the evidence of “X” and the same coupled with the patently contradicting versions given by P.W.1, P.W.15 and P.W.17, it will be unsafe to sustain the conviction of the appellant. We are aware of the fact that there is a reverse burden provided under Sections 29 and 30 of the POCSO Act and hence, there is a legal presumption against the accused persons. These presumptions will come into operation, only when the prosecution places a reasonably probable story before the Court and not otherwise. That apart, this Court has appraised the evidence of “X”, P.W.1, P.W.15 and P.W.17 and has given sound reasons for rejecting their testimonies.
19. In view of the same, we have to concur with those findings and we are of the view that it will be highly unsafe to convict the appellant with a grave crime, when the evidence available on record is wholly unreliable.
In the result, this Criminal Appeal is allowed and the appellant is acquitted of all the charges. The conviction and sentence imposed on the appellant by the Additional Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Erode, in Spl.S.C.No.8 of 2017 vide judgment and order dated 23.06.2017, are set aside. The appellant is directed to be released forthwith, unless his presence is required in connection with any other case.
Party
Murugesan @ Murugan vs. State rep. by The Inspector of Police All Women Police Station Gobichettipalayam Erode District Cr.No.6/2016 – CRL.A.No.125 of 2022 – 09.01.2023 – Madras Division Bench.
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1013037
