R. PALANISAMY V. STATE BY INSPECTOR OF POLICE ON 23 APRIL 2013
| Citation | Crl. A. No. 158 of 2013 |
| Date of Judgement | 23 April , 2013 |
| Court | High Court of Judicature at Madras |
| Case Type | Criminal Appeal |
| Appellant | R. Palanisamy |
| Respondent | State by Inspector of police |
| Bench | Justice K.N. Basha and Justice P. Devdass |
| Referred | Section 374 of Cr. P. C. and Section 376(1) and section 504 of Indian Penal Code |
FACTS OF THE CASE
The above mentioned case is in the form of a criminal Appeal filed under Section 374 of Cr. P.C.
to set aside the judgement passed in S.C. No. 199 of 2010 on 28 . 1. 2013 by the Additional Session Judge . The appeal by the Father of complaint is challenging the convention and sentence passed against him under the Section 376 (1) and 506 of Indian Penal Code on 28.1.2013 in S.C.no. 199 of 2010 . The appellant was convicted and sentenced to life in the session court Judgement with fine of Rs. 5000/- under section 376(1) of I.P.C. and convicted and sentence him to 7 years rigorous imprisonment with fine of Rs. 3000/- under section 506 of I.P.C.
The case which was filled against the appellant was rape case under section 375 of I.P.C. The appellant was alleged to have committed the rape of his own daughter . On 1.9.2006 the unwed pregnant girl of 16 years of age was brought to Thayarammal Poly Clinic Coimbatore . On examination by the doctor it was found that the foetus was 24 weeks in her womb. With the consent of her parents the doctor aborted it. On 31.7.2009 girl gave complaint in the police station that she has been raped by her father due which she got pregnant and same was aborted and she was again raped by her father and Criminally intimidated her and her mother . Following that F.I.R was registered .
After this statement the girl was recorded and father was arrested by the police . The final report against the accused was filled for offence of section 376(1) and 506 of I.P.C. In the trail court proceeding there was also a fact brought forward that there was an affair between the daughter of the accused and the boy named Raja. The learned Additional Session Judge convicted and sentenced the victim on the basis of statements of the girl and doctor . But it is believed on the side of accused that he has not committed such offence and based on only statement court can not pass judgement
In respondent to that criminal appeal is filled by complaint Crl, A. No. 158 of 2013.
ISSUES:
1.Whether accused should be set free from convention under section 376(1) and 506 of Indian Penal Code or not?
ARGUMENTS
When the case was scheduled for hearing the issue was formulated by cited judgments which were related to the case by the knowledgeable Lawyers.
In BHAJJU @ KARAN SINGH VS. STATE OF MADHYA PRADESH [2012 (4) SCC 327], the Hon’ble Supreme Court held as under :
It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence.
Recently, in HARADHAN DAS VS. STATE OF WEST BENGAL [2013 (2) SCC 197], the Hon’ble Apex Court observed as under :
It is a settled principle of law that the statement of a witness who has been declared hostile by the prosecution is neither inadmissible nor is it of no value in its entirety. The statement, particularly the examination-in-chief, insofar as it supports the case of the prosecution is admissible and can be relied upon by the Court.
Thus, it is seen that the witnesses cited and examined by the prosecution, when did not support the prosecution and who has been declared as hostile witness and with the leave of the Court, can be cross-examined by the prosecution and still if he reiterates what he had stated in his chief-examination, namely, not spoken in favour of the prosecution case, he has completely turned hostile. In such circumstances, since nothing incriminating is available in his evidence in favour of the prosecution, any part of his such evidence cannot / could not be used to record an adverse finding as against the accused or cannot be used to link with any other incriminating evidence available in favour of the prosecution.
With regard to the statement of a witness recorded by a Magistrate u/s.164 Cr.P.C., in RAMPRASAD VS. STATE OF MAHARASHTRA [1999 CRI.L.J. 2889 (SC)], the Hon’ble Apex Court observed as under :
Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 .
“No doubt, a man making a statement on oath before a Magistrate under Section 164, Criminal P.C., should speak the truth but if he does not, the least he can do is to tell the truth when subsequently he goes in the witness box. To prosecute a man who has resiled from a false statement, made under Section 164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment for having made a false statement under Section 164 than that he should be induced to believe that it is to his interest, however false the statement may have been to adhere to it, and thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent person is too great to be risked.”
JUDGEMENT :
In the result after hearing of all the arguments from both sides the judgement was passed by the respective bench in the present case that is as follows:
Thus, none of the basis chosen by the trial court to convict the accused has the sanction of law. The bench has no hesitation to accept the arguments of Mr.C.S.Dhanasekaran, the learned counsel for the appellant that this case is a classic case of findings recorded not based on any legal evidence and the findings are made without any acceptable evidence.
Thus, the prosecution has not established the charges framed against the accused beyond all reasonable doubts. Consequently, the conviction and sentences passed against him must go.
In the result, this Criminal Appeal is allowed. The conviction and sentences imposed upon the appellant by the learned Additional Sessions Judge, Mahalir Neethimandram, Coimbatore in S.C.No.199 of 2010 are set aside. The appellant is acquitted from all the charges. The Superintendent, Central Prison, Coimbatore shall release him forthwith, if his further custody is no longer required in connection with any other case / proceedings. Fine amount, if paid already, shall be refunded.
REFERNCES:
This Article is written by Sukhman Kapoor of Panjab University , Chandigarh , Intern at Legal Vidhiya.
