Mere lapse on the part of the prosecution should not lead to unmerited acquittal subject to rider that in such a situation evidence on record should be clinching acquittal. If the evidence of the victim is credible and trustworthy, then the conviction is permissible solely on such an evidence. This was decreed by the Madras High court by the Honourable Mr. Justice P. Velmurugan in the case of Elumalai Vs. The Inspector of Police [Crl.A.No.93 of 2021] on the 06th of July 2021.
The brief facts of the case are, the victim girl on 29.04.2005 went to give water to the goats near the appellant’s land. The appellant took the girl forcibly and raped her. Thereafter, she filed a complaint against the victim girl and was examined by the doctor who stated that the victim sustained injuries and hymen not intact and her vagina admitted two fingers, which corroborated evidence of the victim girl. The respondent police has registered a case against the appellant under Sections 354, 511 r/w 376 of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Woman Act. The prosecution witnesses were examined but no material object was exhibited before the trial court. On the side of the defence, no one was examined and no document was marked. On 09.10. 2020, the learned judge convicted the accused and sentenced him for rigorous imprisonment for a period of 5 years for the offence punishable under Section 376 r/w 511 of IPC. Aggrieved by this judgement, the present petition is filed by the accused.
The counsel for the petitioner submitted that there is no substantial material to convict the appellant for the offence under Section 376 r/w 511 IPC. He also added that, originally the case was registered for the offence under Section 354 and 323 IPC and thereafter altered into Section 354 and 376 r/w 511 IPC without any material. He also further submitted that, the doctor who examined the victim has deposed that she was brought to the Hospital after the lapse of 17 days from the date of occurrence. But, prosecution has not offered any reason for the above delay, which creates doubt in the case of the prosecution. However, the learned counsel for the respondent submitted that, the victim was an illiterate girl who was raped by the appellant. He further submits that the doctor who examined the victim has stated that the victim has injuries which are evidence. He also adds that the trial Court awarded only a lesser punishment.
The learned Judge after listening to both the counsels proceeded to re-appreciate the entire evidence and give an independent finding. It was observed that during the process of cross-examination, the victim has stated the same things as mentioned in her FIR. Even though there was a delay in taking the victim to the hospital, it was observed that the victim has sustained injuries and had personally told the doctor that she was forcibly raped. Since the victim was of only 16 or 17 years, the delay in producing the victim girl before the Doctor is not fatal to the case of the prosecution. Since the victim belongs to a village where the thinking is backward and no person comes up to complain when they are raped. The court combined the evidences of the victim, the doctor, the medical report and concluded that the appellant is rightfully convicted. “Court does not find any reason to discord the evidence of the victim girl. The evidence of the victim girl and Doctor corroborates with the medical records. Ever though, there is defect in investigation and the same is not a sole ground to acquit the appellant. Mere laps on the part of the prosecution should not lead to unmerited acquittal, subject to rider that in such a situation evidence on record should be clinching. In this case, the victim has clearly narrated the entire incidents cogently, which corroborated with the medical evidence.” Since the evidence was reliable, the conviction is allowed and the court dismissed the present petition on the lack of grounds to discord the evidence of the victim.
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