State by the Public Prosecutor vs Kalaiarasan

This Criminal Appeal is filed by the State represented by the Public Prosecutor, High Court, Madras, against the judgement of acquittal, dated 10.12.2015 made in SC.No.42 of 2013 by the Sessions Judge, Mahila Court, Perambalur, acquitting the accused, who is the Respondent herein and was charged under Section 376 of IPC.

The case of the Prosecution was that when the complainant PW.1, Pappa, who is a spinster and residing at North Street, Alathur Taluk, Perambalur District, was working in the fields on 8.4.2013, the accused, who was also residing in the same Street, came there, pushed her, removed her saree and raped her. On the complaint given by PW.1, a case was registered by Perambalur All Women Police Station in Cr.No.9 of 2013 under Section 376(1) of IPC. A final report was placed before the Judicial Magistrate, Perambalur, which was taken on file as PRC.No.48 of 2013 and subsequently, committed to the court of Sessions and taken cognizance by the Sessions Judge, Mahila Court, Perambalur in SC.No.42 of 2013.

On appearance of the accused, copies were furnished and thereafter charges were framed under Section 376(1) of IPC. To establish the charge, the Prosecution examined as many as 16 witnesses and produced seven documents. On consideration of the oral and documentary evidence, the Trial Court had acquitted the accused by the impugned judgement. As against the same, this Criminal Appeal has been filed by the State.

This court heard Mr.K.Madhan, the learned Public Prosecutor for the Appellant and Mrs.S.S.Jothivani, legal aid counsel for the Respondent.

Even at the outset, before going into the details of the case and whether the Prosecution had actually established the case beyond reasonable doubt, this court has to express its concern at the recording of evidence of PW.1, who was the prosecutrix. The Trial Court had disbelieved the evidence of PW.1 and that was the primary ground, on which acquittal was granted.

PW.1, as stated above, was a spinster, aged 41 years. In her evidence in chief, she deposed very lucidly regarding the incident. However, during the cross examination, which was done on the same day, she started giving incoherent answers. She stated that she did not know what was written in the complaint. She then stated that she did not come to the Police Station at all and that the police did not examine her. She stated that the prosecutor was present in the Police Station. The Trial Court then recorded that the witness did not hear properly and was not able to understand the proceedings properly. She then stated that she did not know the difference between good and bad and true and false. She stated that she did not tell the police that the accused raped her. Thereafter, the Trial Court had recorded that when the witness was asked whether she had given the complaint, she stated that she did not know and when suggestion was put to her whether it was Collector Office, or Taluk Office or Court, she has stated that she did not remember the place. Therefore, the Trial Court had recorded as follows:- "VERNACULAR MATTER OMITTED"

The Trial Court further observed as follows:-

"VERNACULAR MATTER OMITTED"

In the further cross examination, she also stated that the Advocate, S.Radha, who is the Prosecutor, had given instructions to her.

It is obvious that the witness was not very comfortable during her examination. It is also not known whether the entire examination was conducted in camera. It is also not known what was stated in camera. On the basis of such evidence, it would not be possible to give any finding and it would be in the interest of justice that the matter is remanded back to the court below for retrial. This is because the accused is charged of a very serious offence of rape and even according the complainant she had informed the village head persons about the incident and only thereafter, the police registered the case and even in the Police Station, the Prosecutor, S.Radha was present. In such hostile circumstances, the witness could not be able to depose freely in the court. The Trial Court also did not examine the witness in camera.

In the result, this Criminal Appeal is allowed. The impugned judgement of acquittal, dated 10.12.2015 in SC.No.42 of 2013 by the Sessions Judge, Mahila Court, Perambalur is set aside. Since PW.1 was not comfortable with giving evidence at Perambalur, the Sessions Division is changed, trial shall take place at Ariyalur in the court of the Principal Sessions Judge, Ariyalur. The accused to appear before the Principal Sessions Court, Ariyalur on receipt of summons. The matter is remanded back to the Principal District and Sessions Court, Ariyalur for fresh trial to be commenced from framing of charges onwards. Since the matter is to be reheard, it is hoped that both the Prosecution and the accused would cooperate and it is also directed that the trial should be commenced at the earliest and completed by 31.01.2018.