CRL RC/1654/2001 of DHANAM Vs 1.A.NALLATHAMBI,S/O.APPAVOO @ on 19 December 2003

:O R D E R

A decision to save the accused has been arrived by the investigatingofficer, Additional Public Prosecutor and the Presiding Officer, even beforethe commencement of the trial appears to be the fate of this case. A maleteacher by name A.Nallathambi, aged about 50 years at the time of commissionof rape, much less attempt to rape against a 10 year old student, has beenacquitted by the Assistant Sessions Judge, Kuzhithurai, disbelieving theevidence of the victim girl on flimsy grounds and as if to add fuel to fire,the Assistant Sessions Judge, Thiru.R.Paranjothi has directed prosecution tobe initiated against the victim girl for giving false evidence.

2. Though I am fully conscious of the powers of the High Court indealing with the revision against acquittal by a private party in a caseinstituted on a police report, that the same should not be allowed unlessthere is a glaring illegality or grave miscarriage of justice, or material evidence having been overlooked, I am of the view that this is one classiccase where it certainly amounts to grave miscarriage of justice, since thereasonings given by the court below are contrary to facts and hence, it hasnecessitated me to go into the facts in detail.

3. The brief facts of the prosecution case is as follows:- "a)P.W.1 Danam, a 11 year old girl went to school on 22.03.1990.

During the classes, the Maths Teacher, namely the accused, called her and toldher that she has to come to his home for tuition as usual. Hence, she went tothe house of the accused. He took classes for some time. At that time,P.W.2, Sheeba, had also come there. The accused gave some Maths problems tobe solved. He then went to a separate room and from there, he called P.W.1inside. When she went inside the other room, he asked the girl whether shewas wearing undergarments. When P.W.1 replied in the affirmative, he askedher to remove the same. P.W.1 refused to do so. However, the accused caughthold of her and forcibly removed her undergarments. Then he made her sit onhis lap with both legs around his hips and then committed rape on her.b)P.W.1 started bleeding and the blood had oozed on her dress. Unableto bear the pain P.W.1 shouted but the accused put a piece of cloth in hermouth and went on with his work.

c)After the commission of rape, he asked P.W.1 to put her undergarments and asked her whether she liked it, for which P.W.1 replied inthe negative. P.W.1 said that if her parents knew about the incident, theywould kill her. Thereafter, the accused kissed her cheeks several times andsent her home by giving some flowers which grew in his garden and threatenedher that she should not inform anybody as to what happened and if she did, shewill be torn to pieces. Then she left the place. But by that time, P.W.2,Sheeba had left.

d)As soon as she came back to her house, P.W.1 informed the matter to P.W.4 her mother. P.W.1's father was not in station that day and he came onlyon the night of 23.03.1996 and the matter was reported to him. On 24.03.1996,P.W.1's parents went to the house of P.W.1's paternal uncle. He accompaniedthem to the police station and gave a report. They also took the bloodstained clothes and handed them over to the police.

e)P.W.1 gave a statement to the Inspector of Police, Pudukadai Police

Station, wherein P.W.1 has stated the above mentioned details, except the factthat she was made to sit on the lap of the accused with her two legs aroundhis hips. Therefore, the Investigating Officer has registered the crime onlyunder section 354 IPC i.e. outraging the modesty and took up investigation,and filed charge sheet against the accused for offence under section 354 IPC.

f)However, it is seen that though the First Information Report has been registered under 354 IPC, subsequent statement recorded from Danamclearly establishes the commission of rape.

g)P.W.1 was sent for medical examination and P.W.7, Doctor who examined her on 24.03.1990 found that there were no injuries on her. TheHymen was intact and she has given a certificate that there is no indicationthat P.W.1 had cohabitation with a male. Ex.P-5 is the said certificate. Butit is surprising that the Doctor who has given evidence so, has in Ex.P-5stated "No definite opinion can be given regarding rape." It is strange as tohow the public Prosecutor has not elicited any explanation from her regarding this or the presiding officer taken note of it.h)During the course of the investigation, P.W.1 has in detailmentioned the above facts and in spite of that, the Investigating Officer hasfiled the charge sheet only under section 354 IPC. Therefore, a petition wasfiled on behalf of the prosecution witnesses before this court inCrl.M.P.No.15414 of 1990 and this court by order dated 05.01.1994 had directedthe court below to alter the charge to one under section 376 IPC. Inpursuance of the same, charge under section 354 IPC was altered to 376 IPC andthe trial proceeded."

4. P.W.2, Sheeba said that by about 4 clock in the evening, P.W.1 Danamcame to her house and called her for the tuition. Thereafter, both of themwent together for tuition and she found the wife and children of the accusedto be present in the house. Since it was about to rain, tuition was over soonand they returned home together. After a few days, she was examined by thePolice.

5. P.W.3 is the father of the victim and according to him, he came toknow about the incident on the night of 23.03.1990 and immediately thereon, hewent to his brother's house and from there proceeded to the police stationalong with P.W.1, preferred a statement and counter signed the firstinformation report.

6. P.W.4 is the mother of P.W.1 and she has narrated about the incidentas revealed by P.W.1. She was waiting for her husband to return and on hisreturn, informed the matter to him and thereafter, went to the police stationand gave a report.

7. P.W.5, brother of P.W.3, is also another witness who accompanied theother witnesses to the police station and gave a report. P.W.7 is the Doctorwho examined P.W.1 and she has stated that there was no evidence of rapehaving been committed against her. However, the certificate issued by herwould disclose "No definite opinion could be given regarding rape." The otherwitnesses are formal witnesses.

8. The learned Judge surprisingly has commented upon the orders passedby the High court, which directed the lower court to alter the charge tooffence under section 376 IPC from that of section 354 IPC. The learned Judgehas said that there is absolutely no material for charging under 376 IPC andthat the statements of none of the witnesses would disclose that an offenceunder section 376 IPC is made out and it has been represented to the Highcourt as if the records would disclose an offence under section 376 IPC has infact been made. The learned Judge has also observed that a conspiracy hasbeen hatched to get that order.

9. I am afraid, it is too much for an Assistant Sessions Judge tocomment upon the orders passed by the High court. High Court does not passorders just hearing the petitioner's oral arguments. We see the records andafter being fully satisfied and hearing the other side, pass an order. In thepresent petition, before the High Court, the statement of the victim P.W.1 wasthere, which clearly indicates the commission of rape, much less an attempt to rape. Therefore, the criticism made by the Assistant Sessions Judge isunwarranted.

10. Now coming back to the findings, the learned Judge to begin with,before analysing the evidence of P.W.1 has commented upon the evidence ofP.W.3, P.W.4 and P.W.5, father, mother and paternal uncle of P.W.1respectively, who accompanied P.W.1 to the police station and gave a report.All of them admit that the report which was written by the police officer wasnot read over to