IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05/11/2004
CORAM
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
CRL.APPEAL No.301 of 2003
Vetrivel ... Appellant /
Accused.
-Vs-
The State, rep. By the
Station House Officer,
Valavanur, ... Respondent /
Villupuram District. Complainant
This Criminal Appeal arises out of the Judgment dated
07.02.2003 made in S.C.No.170 of 2002 on the file of Additional Assistant
Sessions Judge, Villupuram.
!For Appellant : Mr. M.V.Karunakaran.
^For Respondent : Mr.V.M.R.Rajendran,
Additional Public Prosecutor.
:J U D G M E N T
Appellant is the Accused in S.C.No.170 of 2002 on the file of
II Additional Assistant Sessions Judge, Villupuram. By the Judgment dated
07.02.2003, the II Additional Assistant Sessions Judge, Villupuram has
convicted the Appellant / Accused for the offence under S.376 I. P.C. and
sentenced him to undergo Rigorous Imprisonment for a period of Ten Years and
also imposed fine of Rs.5,000/-; in default to undergo Rigorous Imprisonment
for a further period of three months.
2. P.W.2 – Vijayalakshmi is the daughter of P.W.1 (Karpagam)
and P.W.3 (Pavadai). Case of prosecution is that P.W.2 – Vijayalakshymi was
aged 16-18 years at the time of occurrence. On 19.11.2001 – 2.30 – 3.00 p.m.,
P.W.2 was grazing the Cattle near Kalinchikuppam. At that time, the accused
closed her mouth and had forcibly taken her to the nearby Sugarcane filed and
had Sexual Intercourse with her and thereby committed Rape on her. P.W.2 –
Vijayalakshmi complained the act of the accused to her father P.W.3 – Pavadai.
3. Registration of case and Investigation. P.W.1 (Karpagam)
– mother of P.W.2 went to Valavanur Police Station along with P.W.4 –
Azhagunathan (Uncle of P.W.2) and lodged Ex.P.1 – Complaint on 21.11.20 01 –
9.00 a.m. On the basis of Ex.P.1 – Complaint, P.W.9 – Sub Inspector of Police
had registered the case in Crime No.654 of 2001 under S.376 I.P.C. under
Ex.P.7 – First Information Report. Clothes of P. W.2 – Vijayalakshmi (M.Os.1
to 3) were seized under Ex.P.2 – Form 95. P.W.2 was sent to Villupuram
Government Hospital through P.W.5 – Woman Head Constable for Medical
Examination.
4. P.W.6 – Dr.Padmini has examined P.W.2 – Vijayalakshmi on
23.11.2001 – 12.30 p.m. She has noted Abrasions in the Right side of upper
lip; Upper arm; Left knee and in the Middle of Chest in between two Clavicles.
On Internal examination:- Hymen was found ruptured; Hymenal admits two fingers
easily. P.W.6 opined that P.W.2 is fit for Intercourse (torn). She was found
to be the age of 16 to 18 years, P.W.6 issued Ex.P.4 – Accident Register.
5. P.W.12 – Inspector of Police had taken up the
investigation. Scene of occurrence – Sugarcane Field was inspected in the
presence of P.W.4 – Azhagunathan and one Ramesh. Ex.P.3 – Observation Mahazar
and Ex.P.12 – Rough Plan were prepared on the scene of occurrence. Witnesses
were examined and their Statements were recorded. On information, the accused
was arrested on 20.12.2001 – 1.00 p.m. in Panruti Main Road and was remanded
to Judicial Custody. Along with requisition, the accused was sent to
Villupuram Government Hospital for Medical Examination to know about his
potency.
6. P.W.7 – Dr.Sanakaran Murthy has examined the accused on
09.01.2 02 – 12.00 Noon. Opining the age of the accused as Thirty years and
opining that there is nothing to suggest that the accused is not capable of
performing sex act, P.W.7 issued Ex.P.5 – Potency Certificate and Ex.P.6 – Age
Certificate.
7. Seized Material Objects were sent for Chemical Analysis.
On receipt of the Chemical Report and on completion of material part of the
investigation, Charge Sheet was filed against the accused under S.3 76 I.P.C.
on 23.04.2002.
8. In the trial Court, to substantiate the Charge against the
accused, prosecution has examined P.Ws.1 to 12. Exs.P.1 to P.12 were marked.
M.Os.1 to 3 were remanded to Court. The accused was questioned about the
incriminating evidence and circumstances under S.313 Crl.P.C. Denying all of
them, the accused stated that a false case has been foisted against him.
9. In consideration of the evidence, the learned Additional
Assistant Sessions Judge found that the delay in lodging the Complaint and
Registration of the First Information Report would not in any way affect the
prosecution case. The learned trial Judge was also of the view that it is
quite probable that P.W.2 and her family members might have waited for the
intervention of the Village Panchayatdars since lodging of the Complaint
involves the reputation of the family. The trial Court accepted the evidence
of P.W.2, which is corroborated by Medical Evidence, as credible. In its
view, non-examination of Eye Witness – Chandra would not fatally affect the
prosecution case. The defence version that a false case has been foisted
against the accused at the instance of P.W.4 – Azhagunathan was rejected by
the trial Court. Finding that the accused had committed Rape upon P.W.2, the
trial Court convicted the Appellant / Accused under S.376 I.P.C. and
sentenced him to undergo Ten Years Rigorous Imprisonment as aforesaid in Para
(1).
10. Aggrieved over the conviction, Appellant / Accused has
preferred this appeal. Laying emphasis upon the absence of External Injuries
on the private parts of P.W.2, the learned counsel for the Appellant / Accused
interalia contended that the evidence of P.W.2 is unsupported by Medical
Evidence. Prosecution case is assailed on the ground that though one Chandra
was stated as Eye Witness and examined during the investigation, she was not
examined during trial and nonexamination of Eye Witness – Chandra during the
trial fatally affects the prosecution case. Learned counsel has further urged
that the trial Court erred in accepting the contention of the prosecution that
Eye Witness Chandra would have been gained over by the accused. Prosecution
case is mainly assailed on the ground of inordinate delay of nearly 43 hours
in lodging the Complaint. It is submitted that due to Communal Rivalry, P.W.4
– Azhagunathan, Uncle of P.W.2 is inimical towards the accused and a false
case has been foisted against the accused, which defence was not properly
appreciated by the trial Court.
11. Submitting that the evidence of P.W.2 is trustworthy,
which is amply strengthened by the Medical Evidence, Mr.V.M.R.Rajendran,
learned Additional Public Prosecutor contended that the trial Court has
rightly believed the version of P.W.2. It is further submitted that in cases
of Rape, where the reputation of the family is involved, the delay in lodging
the Complaint would not in any way affect the prosecution case. Drawing the
attention of the Court to Ex.P.4 – Accident Register, the learned Additional
Public Prosecutor has submitted that the abrasions and the rupture of Hymen
would clearly prove that P.W.2 was subjected to forcible Sexual Intercourse
and that the conviction is well balanced and that there is no reason
warranting interference.
12. Upon consideration of the submissions by both sides,
evidence and materials on record and the Judgment of the trial Court, the
point arises for consideration is:- Whether the Appellant / Accused is proved
to have committed Rape on the victim girl – P.W.2 and whether the conviction
of the Appellant / Accused under S.376 I.P.C. warrants any interference ?
13. Prosecution mainly relies on the evidence of the
Prosecutrix – P.W.2 (Vijayalakshmi). P.W.2 aged 16-18 years, living with her
parents, is an unmarried girl. On 19.11.2001 – 2.30 – 3.00 p.m., she was
grazing the Cattle, near Kalinchikuppam. At that time, the accused closed her
mouth and had forcibly taken her to the nearby Sugarcane Field and had Sexual
Intercourse with her and thereby committed Rape on her. P.W.2 – Vijayalakshmi
has cogently narrated the Rape committed on her by the accused. The scene of
occurrence – Sugarcane Field belongs to one Hariraman, which is clearly
indicated in Ex.P.12 – Rough Plan. Evidence of P.W.2 is to be tested for his
trustworthiness and reliability.
14. P.W.2 – Vijayalakshmi has stated that at the time of
occurrence, one Chandra was also grassing the Cattle in the nearby field. The
said Chandra was examined during investigation; but she was not examined by
the prosecution during trial. Evidence of P.W.2 is mainly attacked on the
ground of failure to examine the Eye Witness – Chandra. The said Chandra was
not examined on the ground that she had been gained over by the accused. On
the ground of non-examination of Chandra, case of prosecution and the version
of P.W.2 cannot be doubted.
15. The main contention urged by the accused is that the
evidence of P.W.2 is not at all supported by Medical Evidence. P.W.2 was
found to be aged 16-18 years. She was medically examined by P.W.6 – Dr.
Padmini on 23.11.2001 – 12.30 p.m. P.W.6 has noted Abrasions in the Right
side of upper lip; Upper arm; Left knee and in the Middle of Chest in between
two Clavicles. On Internal examination:- Hymen was found ruptured; Hymenal
admits two fingers easily. For an unmarried girl of aged 16 – 18 years,
Rupture of Hymen and Hymenal admitting two fingers easily are strong pieces of
Medical Evidence that she had been subjected to forcible Sexual Intercourse.
The contention urged by the Appellant / Accused that the evidence of P.W.2 is
not supported by Medical Evidence has no force.
16. During Medical Examination of P.W.2, External genitalia
was found to be normal; No blood or Semen was noted over the body or the
clothes. The main point urged by the Appellant / Accused is that the absence
of External Injuries on the private parts of P.W.2 – External Genitalia was
found to be normal, disproves the prosecution case that the accused had
committed Rape on her. It is the further contention that P.W.4 – Azhagunathan
has illicit relationship with P.W.2 and in that way P.W.2 must have been
accustomed to Sexual Intercourse and that a false case is foisted against the
accused. It is not as if there had been total absence of injuries as
contended by the accused. As noted earlier, Abrasions were noted in the Right
side of upper lip; Upper arm; Left knee and in the Middle of Chest in between
two Clavicles. Hence evidence of P.W.2 cannot be disbelieved on the ground
that the External Genitalia was found to be normal. The occurrence was on
19.11.2001. P.W.2 – Vijayalakshmi was medically examined only on 23.11.2001,
nearly after four days, during which time the External Genitalia might have
become normal; or perhaps being frightened in the fear of the accused, P.W.2
had not offered much resistance. Merely because External Genitalia was found
to be normal and the absence of other external injuries on the person of
P.W.2, the evidence of P.W.2 cannot be disbelieved.
17. The occurrence was on 19.11.2001 – 2.30 – 3.00 p.m.
P.W.1 ( Karpagam) – mother of P.W.2 has preferred the Complaint (Ex.P.1) on
21.11.2001 – 9.00 a.m., on the basis of which P.W.9 – S.I. of Police has
registered the case in Crime No.654 of 2001 of Valavanur Police Station under
Ex.P.7 – First Information Report. Case of prosecution is mainly attacked on
the ground of delay in filing the Complaint and Registration of the case.
Onbehalf of the accused, it is submitted that the family of P.W.2 and the
Police were only gaining time to make false accusation against the accused.
This contention has no force. P.W.1 – Karpagam has explained the reason for
the delay in lodging the Complaint stating that they had informed about the
occurrence to the Village Panchayatdars and waited for their Mediation and
intervention. Before approaching the Police, quite probably, the family of P.
W.2 might have waited for Mediation and Intervention of the Village
Panchayatdars. P.W.4 – Azhagunathan has written Ex.P.1 – Complaint and has
accompanied P.W.1 to Valavanur Police Station. Merely because P.W.4 has
accompanied P.W.1, the contention of the Appellant / Accused that a false case
has been foisted against the accused at the instance of P.W.4 cannot be
accepted.
18. Unlike in other cases, in Rape cases, delay in lodging
the First Information Report cannot be urged as a point for doubting the
prosecution case and discarding the same on the ground of delay. More than
one reason could be pointed out for the delay in lodging the Complaint. P.W.2
was aged about 16-18 years and unmarried. If any police complaint is to be
lodged making allegations of Rape being committed on her, her future would be
at stake. That apart, she has to face the tauntings of the Villagers that she
had been subjected to Sexual Violence at the instance of the accused. In that
circumstance, quite naturally, there would have been reluctance on the part of
the family of P.W.2 to report about the occurrence to the Police. Evidence of
P.W.2 and prosecution case cannot be doubted merely on the ground of delay in
lodging the First Information Report. The learned Additional Assistant
Sessions Judge has rightly found that the delay in lodging the Complaint would
not affect the prosecution case and the same is to be endorsed with.
19. The prosecution case is also attacked on the ground that
a false case has been foisted at the instance of P.W.4 – Azhagunathan. At the
time of occurrence, there had been incidents of Communal Rioting in and around
the area. The family of P.W.2 and P.W.4 are Caste Hindus; the accused belongs
to Schedule Caste. A Criminal Case is pending against P.W.4 for alleged
violation of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act. It is contended that since P.W.4 is facing trial in that case, a false
case is foisted against the accused to pressurise him to settle the matter.
This contention is totally unsupported by any material. The accused himself
had not set forth any such plea even during questioning under S.313 Crl.P.C.
No previous enmity between the family of P.W.2 and the accused; likewise no
previous enmity between the accused and P.W.4 – Azhagunathan is made out.
When that being so, there is no reason for lodging the Complaint making
allegations of Rape against the accused. It is highly improbable that the
family of P.W.2 would have gone to the extent of foisting a false case of Rape
against the accused risking the future of P.W.2.
20. Blood Stained Clothes of P.W.2 viz., M.O.1 – Blouse,
M.O.2 – Skirt and M.O.3 – In-skirt, were sent for Chemical Analysis. During
examination, Human Blood was detected but no Semen was detected on the above
clothes of P.W.2. Learned counsel for the Appellant / Accused attacked the
prosecution case on the ground of non-detection of Semen and Stains in M.Os.1
to 3. Absence of Semen and Stains does not throw doubt on the prosecution
case. Perhaps at the time of committing Rape, there was only penetration with
no ejection. It is to be noted that after arrest, the accused was medically
examined on 09.01.2002 . He was found to be 30 Years of age. On examination
of the accused, P.W.7 – Dr.Sankara Murthy has found that there is nothing to
suggest that the accused is not capable of performing the Sexual act; His
Genital Organs were found to be normal. Under such circumstances, absence of
Semen and Stains on the clothes of P.W.2 would not affect the credibility of
P.W.2.
21. The various points urged by the Appellant / Accused were
well considered by the trial Court. The learned Additional Assistant Sessions
Judge, who had the opportunity of seeing and observing P.W.2 has accepted her
evidence which is corroborated by the Medical Evidence as credible. There is
no apparent error in the appreciation of evidence by the trial Court. The
reasonings for conviction are well balanced based upon the evidence on record
and the conviction is to be sustained. Considering the facts and
circumstances of the case, the period of sentence of Rigorous Imprisonment of
Ten Years also cannot be said to unreasonable or harsh.
22. Therefore, the Judgment of the II Additional Assistant
Sessions Judge, Villupuram in S.C.No.170 of 2002 (dated 07.02.2003) convicting
the Appellant / Accused under S.376 I.P.C. and the sentence of Rigorous
Imprisonment of Ten Years and the quantum of fine are confirmed and this
appeal is dismissed.
Index: Yes
Internet: Yes
sbi
To
1. The II Additional Assistant
Sessions Judge, Villupuram.
2. The Sessions Judge,
Villupuram.
3. The Superintendent of Police,
Central Prison, Cuddalore.
4. The Inspector of Police,
Valavanur Police Station,
Villupuram.
5. The Public Prosecutor,
High Court, Madras.