Surendhar vs The Inspector of Police
- Court
- Madras High Court
CRL A(MD) No. 286 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 14-10-2026
PRONOUNCED ON : 27.10.2026
CORAM
THE HON'BLE MR.JUSTICE S.KARTHIKEYAN
CRL A(MD) No. 286 of 2022
CNR:{HCMD010332632022}
and CRL MP(MD) No. 16219 of 2023
Surendhar
..Appellant(s)
Vs
State represented by,
The Inspector of Police
All Women Police Station, Aranthangi,
Pudukkottai District.(In Crime No.01/2019).
..Respondent(s)
PRAYER: Criminal Original Petition filed under Section 374(2) of Cr.P.C., to
call for the records relating to the Sessions Case No.85 of 2019 on the file of the
Mahila Court, Pudukkottai and set aside the Judgment dated 15.03.2022 passed
therein and acquit the appellant by allowing the criminal appeal.
For Appellant(s): Mr.R.Karunanithi
for Mr.A.Arul Jenifer
for M/s.KBS Law Office
For Respondent(s): Mr.A.Robison
Additional Public Prosecutor
JUDGMENT
This appeal is directed against the judgment of conviction and sentence
passed by the learned Sessions Judge, Mahila Court, Pudukkottai, in Sessions
Case No. 85 of 2019, dated 15.03.2022.
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2. On careful perusal of the records, it is found that, on 14.01.2019, at
around 20.30 hours, P.W.1-Jeya appeared before P.W.6-Shanthi, the then Sub-
Inspector of Police, All Women Police Station, Pudukkottai and lodged Ex.P.1-
complaint. Based on Ex.P.1-complaint, P.W.6 registered Ex.P.8-First
Information Report in Crime No. 1 of 2019 for the offence punishable under
Section 376(2)(m) of the Indian Penal Code (IPC). She forwarded the original
complaint and the First Information Report to the learned Judicial Magistrate,
Aranthangi.
3. P.W.7-Kavitha, the then Inspector of Police, All Women Police
Station, Aranthangi, took up the investigation of the case on 14.01.2019 at
around 21.00 hours. She examined the de facto complainant and recorded her
statement. At around 21.30 hours, she recovered the clothes worn by the victim
under Ex.P.9-Form 95. She examined Ajithkumar, Raja and Palaniyayi and
recorded their statements. She then sent the victim to the Government Hospital,
Aranthangi, for medical examination through WPC 1355-Rajalakshmi.
4. On 15.01.2019, at around 03.30 a.m., she arrested the Accused, who
was sleeping at Valividu Vinayagar Temple, Melapattu, brought him to the
police station and remanded him to judicial custody. At around 09.00 a.m., she
proceeded to the place of occurrence and prepared Ex.P.4 Observation Mahazar
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and Ex.P.10-Rough sketch in the presence of P.W.2-Tamilvendan, Ramanathan,
Vellaiyammal and Periyanayaki, as identified by the de facto complainant. She
examined Tamilvendan, Ramanathan, Vellaiyammal and Periyanayaki and
recorded their statements.
5. On 18.01.2019, she submitted a request to the Judicial Magistrate,
Aranthangi, for recording the victim's statement under Section 164 of the Code
of Criminal Procedure (Cr.P.C.). The victim was produced before the Magistrate
for recording her statement under the said provision. On the same day, she also
requested that the Accused be subjected to medical examination.
6. On 22.01.2019, she forwarded the clothes worn by the victim at the
time of the occurrence to the Court under Form 95. The clothes were
subsequently sent to the Forensic Science Laboratory for chemical examination
and Ex.P.11-biological report was obtained.
7. On 23.01.2019, the Accused was taken to the Government Hospital,
Pudukkottai, for medical examination through WPC-Karthika and PC 1728-
Muruganandam. On 29.01.2019, she examined Dr. Valliyappan, Dr. Abirami,
WPC-Karthika and PC-Muruganandam and recorded their statements. On
05.02.2019, she examined Dr. Vizhimozhi, who had conducted the medical
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examination of the de facto complainant, and recorded her statement. She also
examined WPC 1355-Rajalakshmi and recorded her statement. On 19.02.2019,
she examined Shanthi, the Sub-Inspector of Police who had registered the First
Information Report, and recorded her statement. On the same day, she
completed the investigation and filed the final report before the learned District
Munsif-cum-Judicial Magistrate, Thirumayam.
8. The learned District Munsif-cum-Judicial Magistrate, Thirumayam,
took cognizance of the final report and issued summons to the Accused. Upon
his appearance, copies of the documents relied upon by the prosecution were
furnished to him under Section 207 Cr.P.C. As the offences alleged were
exclusively triable by the Court of Sessions, the Magistrate committed the case
to the Principal Sessions Court, Pudukkottai, under Section 209 Cr.P.C. The
Principal Sessions Court, Pudukkottai, took cognizance of the case in S.C. No.
85 of 2019 and made it over to the Mahila Court, Pudukkottai, as the alleged
offences had been committed against women.
9. Upon the appearance of the Accused and after hearing both sides, the
trial Court framed charge against him for the offence punishable under Section
376(2)(m) IPC. The charge was read over and explained to the Accused, which
he denied. Hence, he was tried by the trial Court.
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10. On the side of the prosecution, P.Ws. 1 to 7 were examined, Exs. P.1
to P.11 were marked, and M.Os. 1 to 3 were also marked.
11. Upon the closure of the prosecution evidence, the incriminating
circumstances appearing against the Accused were put to him under Section
313(1)(b) Cr.P.C. The Accused denied the allegations as false and stated that he
has witnesses to examine on his behalf. On the side of the defence, D.Ws. 1 to 3
were examined. However, no documents were marked. Thereafter, the defence
evidence was closed.
12. After hearing both sides, the trial Court found the appellant guilty of
the offence punishable under Section 376(1) IPC and sentenced him to undergo
ten years of rigorous imprisonment and to pay a fine of Rs. 5,000/-, with a
direction that, in default of payment of the fine, he should undergo simple
imprisonment for one year. Aggrieved by the judgment of conviction and
sentence, the Accused has preferred the present appeal.
13. In this appeal, the learned counsel for the appellant and the learned
Government Advocate (Criminal Side) for the respondent were heard. The
records of the trial Court were called for and perused.
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Point for determination :
14. Whether the conviction and sentence passed against the appellant
herein by the trial Court is sustainable?
Answer :
15. On careful perusal of the records, it is found that it is the case of the
prosecution that the de facto complainant, P.W.1-Jeya, was aged about 45 years
and residing at Melapattu, Keelatheru, within the jurisdiction of the Aranthangi
Police Station. The Accused, aged about 20 years, was also residing at
Melapattu, Keelatheru, along with his parents. P.W.1 had been living separately
from her husband for the past ten years and was residing at the above-mentioned
address with her son and mother. While so, on 14.01.2019, at around 06.00 p.m.,
when P.W.1 had been grazing goats near Melapattu, Pillayar Temple, North
channel bund, the Accused herein had gone there, removed his pants and shirt,
and carried P.W.1 near the field bund. He had put her on top of the thorny plants
and, in spite of P.W.1-Jeya defending herself against him, he had pushed her,
removed her saree, and tore her blouse. He had wrestled with her by uttering the
words that she has no husband and he would remain as a husband for her, kept
his mouth on her breast and sucked and raped her, and sat on top of P.W.1,
inserted his private part into her mouth, asked her to lick, and committed rape on
her. Further, he caught hold of the neck of P.W.1 tightly and told her that if she
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was left alive, she would tell the matter outside, and had threatened her. Thus, he
committed an offence punishable under Section 376(1) I.P.C. To substantiate the
said case, the prosecution has projected P.W.1 to P.W.7 and exhibited Ex.P.1 to
E.P.11 and M.O.1 to M.O.3.
16. On careful perusal of the records, it is found that the
prosecutrix/victim was examined as P.W.1. In her evidence, she deposed that
she was engaged in construction work and knew the Accused. She was married
and has a son named Ajith Kumar. She had been living separately from her
husband for the past ten years, and her husband was residing in Chennai. She
was residing at her father's house along with her son. In the year 2019, on the
day of the Bhogi festival, she was grazing goats near the channel bund at
Melapattu.
17. She further deposed that on 14.01.2019 at around 06.00 p.m., the
Accused arrived at the spot, removed his shirt and pants. The victim was under
the impression that he was going to wash his hands and legs, and she was
looking toward the north. The Accused then came from behind her, lifted her
onto the channel bund, pushed her down, and tore her jacket. He demanded that
she perform a sexual act on his private parts and further assaulted her by sucking
her breast.
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18. She further deposed that the victim informed the Accused that she
was his paternal aunt. In response, he stated that let her be the maternal aunt and
forcibly engaged in sexual intercourse with her. Although she attempted to push
him away, she was unable to do so. She pleaded with him to release her,
promising that she would not reveal the incident to anyone. However, he refused
to let her go, stating that she would tell others. As she attempted to escape his
control, the Accused pushed her again, threw her to the ground, and demanded
her to hold his private part.
19. She further deposed that at that time, her neighbour, Vellaiammal,
came there and shouted, asking whose goat was grazing in her field. On hearing
her voice, the Accused ran away from the place. P.W.1 informed Vellaiammal
that the Accused had ravished her. Immediately, Vellaiammal called her son.
Her son came and searched for the Accused but could not find him. Vellaiammal
advised P.W.1 to go to the Accused's house and enquire about him.
20. She further deposed that accordingly, she went to Accused's house in
the same clothes she had been wearing at the time of the occurrence. The mother
and sister of the Accused were present there. She informed them that the
Accused had ravished her. The Accused's mother asked her not to shout, stating
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that there had already been a problem. She covered P.W.1's mouth with her
hands and instructed her not to disclose the incident to anyone, including her
family members.
21. She further deposed that his mother went in search of her son. She
also came to know that the Accused had committed a similar act against a 60-
year-old woman who was on the verge of death. Subsequently, P.W.1 returned
to her house, where her son, brother and mother were present. She informed
them about the occurrence. Thereafter, she proceeded to the All Women Police
Station, Aranthangi, and lodged Ex.P.1-complaint. The complaint was written
by her son as per her instructions, and she affixed her thumb impression to it.
She handed over the clothes she had worn at the time of the occurrence, namely,
M.O.1-jacket, M.O.2-light-green skirt and M.O.3-black saree mixed with rose
and cement colours. The police obtained her thumb impression on Form 95. She
also gave Ex.P.3-statement under Section 164 Cr.P.C. before the learned Judicial
Magistrate, Aranthangi. The police asked her to identify the place of occurrence,
and she accordingly showed the place to them.
22. P.W.2-Tamilvendhan, one of the witnesses to the observation
mahazar, deposed that the Aranthangi All Women Police Station personnel
prepared Ex.P.4 Observation Mahazar to which he had affixed his signature.
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23. P.W.3-Dr. Vizhimozhi, in her evidence, deposed that, on 14.01.2019,
at around 10.30 p.m., WPC Rajalakshmi brought the victim, Jeya, to the hospital
for medical examination, along with the relevant medical requisition. The victim
disclosed that, on 14.01.2019, at around 06.00 p.m., a person known to her had
ravished her. Upon examination, the victim complained of pain in her hands and
legs. The doctor noted a linear abrasion measuring 3 cm in the upper neck region
and multiple linear abrasions on both arms. No other obvious external injuries
were found. There were no injuries to her private parts, and no foreign matter
was detected. Vaginal and cervical smears were collected and forwarded to the
Government Medical College Hospital, Pudukkottai, for examination. On
04.02.2019, a report was received stating that no semen was detected. The
doctor opined that the victim was physically capable of having sexual
intercourse. However, she stated that it could not be concluded from the medical
examination alone that the victim had been subjected to sexual intercourse. No
injuries were found on the victim's private parts or elsewhere on her body,
except for the linear abrasions on her neck and hands. In this regard, she issued
Ex.P.5-accident register.
24. P.W.4-Dr. Valliyappan, who examined the Accused, deposed that the
Accused was produced before him on 23.01.2019, at around 02.00 p.m. Upon
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examination, he opined that there was nothing to suggest that the Accused was
impotent or incapable of doing sexual intercourse. In this regard, he issued
Ex.P.6-certificate.
25. P.W.5-Shanthi was the person who admitted the Accused to the
Government Hospital, Pudukkottai. Ex.P.7 is the Accident Register recorded by
her.
26. P.W.6-Shanthi was the Sub-Inspector of Police who registered the
First Information Report. P.W.7-Kavitha was the Investigating Officer. In her
evidence, she spoke about the investigation conducted by her, including the
examination of the de facto complainant and other witnesses, the production of
the victim and the Accused for medical examination, the preparation of the
observation mahazar and rough sketch, the recording of the victim's statement
under Section 164 Cr.P.C., the collection of samples from the victim and their
forwarding to the Forensic Science Laboratory, the examination of the doctors
and the recording of their statements, and the filing of the final report before the
jurisdictional Magistrate.
27. On careful perusal of the records, it is found that the case of the
prosecution rests entirely upon the solitary evidence of the victim. According to
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the oral evidence of the victim, on the day of Boghi in the year 2019 at around
06.00 p.m., the Accused came there, removed his clothes, lifted her to the
channel bund, pushed her down, tore her jacket, asked her to suck his private
part, sucked her breast, and ravished her. At that time, D.W.1-Vellaiyammal
came there and shouted, asking whose goat was grazing in her field. On hearing
her voice, the appellant ran away from the scene.
28. However, on careful perusal of record, it is found that though D.W.1-
Vellaiyammal was cited as a prosecution witness, she was not examined on the
side of the prosecution before the trial Court. No explanation was offered as to
why she was not examined as a prosecution witness. However, the defence
examined her as D.W.1. On careful perusal of the evidence of D.W.1, it is found
that she has not supported the case of the prosecution.
29. According to her, she was aware of what had happened on the date of
the occurrence. In the evening, when she went to her field, she found that
P.W.1's goat was grazing there. The Accused's field was adjacent to her field.
The Accused had also come to graze his cattle in his field. She shouted at P.W.1
for allowing her goat to graze in her field. At that time, the Accused came there
and questioned them as to why they were quarrelling, after which he proceeded
to his field. She remained in her field until 06.00 p.m. and then returned home.
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While she was in the field, P.W.1 left the place. She further stated that she had
given the same version in her statement to the police.
30. From the evidence of D.W.1, it is evident that she has not supported
the case of the prosecution and has given a different version of the occurrence.
According to her, no incident had taken place on that day. Though she was
cross-examined by the prosecution, her testimony could not be shaken during
cross-examination. Even in her cross-examination, she asserted that no
occurrence had taken place on the date in question.
31. During the cross-examination of P.W.1, the prosecution sought to
contradict her with the statement of D.W.1 recorded under Section 161 Cr.P.C.
However, under Section 162 Cr.P.C., a statement recorded under Section 161
Cr.P.C. cannot be used for any purpose except as provided under the said
section. On a perusal of the proviso to Section 162 Cr.P.C., it is clear that where
a witness is called for the prosecution, the statement recorded under Section 161
Cr.P.C. may be used by the Accused and, with the permission of the Court, by
the prosecution to contradict such witness in the manner provided under Section
145 of the Indian Evidence Act.
32. In the present case, D.W.1 was not called as a witness for the
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prosecution but was examined on the side of the defence. Therefore, the
prosecution could not contradict P.W.1 by relying on the statement of D.W.1
recorded under Section 161 Cr.P.C. Further, even under the proviso to Section
162 Cr.P.C., the prosecution may contradict a witness with such a statement
only with the permission of the Court.
33. On careful perusal of the cross-examination of D.W.1, it is found that
the prosecution did not seek the Court's permission to contradict the said witness
with her previous statement recorded under Section 161 Cr.P.C. Therefore, the
procedure adopted by the prosecution cannot be sustained in law.
34. The learned Additional Public Prosecutor may contend that, by
permitting the prosecutor to cross-examine the witness, the Court had accorded
its tacit approval. However, the Privy Council, in the case of
Ammathayarammal Vs. The Official Assignee reported in
Manu/TN/0145/1932 , made it clear that, under Section 154 of the Indian
Evidence Act, when the prosecution seeks permission to cross-examine its own
witness, such permission shall be expressly granted by the Court. There can be
no tacit permission in this regard. Therefore, the attempt made by the
prosecution to contradict the witness with her previous statement recorded under
Section 161 Cr.P.C. is nothing but a futile exercise.
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35. In the backdrop of the evidence of D.W.1, if we look at the evidence
of P.W.1., the evidence of D.W.1 creates doubts in the version spoken to by
P.W.1.
36. Further, P.W.1 deposed that the occurrence took place at around
06.00 p.m. She was subjected to medical examination at 10.30 p.m., within four
and a half hours of the alleged occurrence. From the evidence of P.W.3-Dr.
Vizhimozhi, it is found that vaginal and cervical smears were collected from the
victim. However, as per the report, neither semen nor spermatozoa was detected
in the vaginal or cervical smears. The absence of semen or spermatozoa raises
further doubts regarding the ocular testimony of the victim. Further, the doctor
opined that it could not be conclusively stated that the victim had been subjected
to sexual intercourse.
37. The medical evidence further reveals that no foreign body was
detected in the victim's private parts. Except the injuries on her neck and hands,
no other injuries were found on her body. During cross-examination, P.W.3-Dr.
Vizhimozhi admitted that the linear abrasions found on the victim's body could
have been caused while she was grazing cattle in an area containing thorny
bushes. Further, the age of the said injuries were also not proved by the
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prosecution. Therefore, the testimony of the victim was not corroborated by the
medical and scientific evidence.
38. Further, from the evidence of P.W.1, it is found that the clothes worn
by her at the time of the alleged occurrence were produced and marked as M.Os.
1 to 3. The said clothes were forwarded to the Regional Forensic Sciences
Laboratory, Tiruchirappalli, and Ex.P.11-Forensic Science Report was obtained.
On a perusal of Ex.P.11, it is found that neither blood nor semen was detected in
any of the clothes marked as M.Os. 1 to 3. Therefore, the recovery of M.Os. 1 to
3 does not lend any support to the case of the prosecution.
39. The defence has also brought out, through the evidence elicited from
P.W.1 and the testimony of D.W.1, that there was previous enmity between the
family of the de facto complainant and the Accused. Therefore, the possibility of
the Accused having been falsely implicated in the case cannot be ruled out in
view of the alleged previous enmity.
40. Further, from the evidence of the Investigating Officer, it is found that
Ex.P.4-Observation Mahazar was prepared in respect of the place identified by
P.W.1. The Hon'ble Apex Court, in Tort Singh v. State of U.P., reported in AIR
1962 SC 399 , has held that the preparation of an observation mahazar based on a
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statement made by a witness or the de facto complainant may attract the bar
under Section 162 Cr.P.C. Therefore, since Ex.P.4-Observation Mahazar was
prepared in respect of the place identified by P.W.1, the admissibility of the said
document requires consideration in the light of the aforesaid decision. The
prosecution cannot rely upon the observation mahazar to establish the place of
occurrence if it is found to be inadmissible in law.
41. Further, on a careful perusal of Ex.P.4-Observation Mahazar, it is
found that no signs of struggle were noted or recorded therein. This aspect was
also elicited from the Investigating Officer during cross-examination.
42. It is a well-established principle of law that, where two views are
reasonably possible on the evidence on record, the view favourable to the
Accused must be adopted. In the present case, two versions emerge from the
evidence: one put forward by the prosecution and the other projected through the
defence evidence. The testimony of D.W.1 casts doubt on the prosecution's
version of the alleged occurrence. Upon an overall consideration of the oral and
documentary evidence, this Court is of the considered view that the prosecution
has failed to prove its case beyond a reasonable doubt. Consequently, the
Accused is entitled to the benefit of the doubts arising from the evidence
discussed above.
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43. In the result, the Criminal Appeal is allowed. The conviction and
sentence imposed on the appellant are hereby set aside. The appellant is in
custody and is directed to be set at liberty forthwith, unless his detention is
required in connection with any other case. Any fine amount paid by the
appellant shall be refunded to him.
27-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
PS
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To
1.The Sessions Judge,
Mahila Court,
Pudukkottai.
2.The Inspector of Police
All Women Police Station,
Aranthangi, Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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S.KARTHIKEYAN, J.
PS
Judgment made in
CRL A(MD) No. 286 of 2022
and CRL MP(MD) No. 16219 of 2023
27-10-2026
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