IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 10.6.2009 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.R.C.No.1250 of 2007 1. Mohammed Sherif 2. Fasil Petitioners vs. State by The Inspector of Police, Gudiyatham Town Police Station, Gudiyatham, Vellore District. Respondent Criminal Revision Case filed under section 397 read with 401 Cr.P.C. to call for the entire records connected with the judgment passed by the learned Additional District and Sessions Judge (FTC), Vellore in C.A.No.59 of 2003 dated 12.12.2006 dismissing the appeal and confirming the conviction of the petitioners herein made in S.C.No.277 of 2001 dated 3.3.2003 by the learned Assistant Sessions Judge, Gudiyatham and set aside the same and acquit the petitioner herein. For petitioners: Mr.Margabandhu For respondent : Mr.N.Kumanan, Govt. Advocate (Crl. Side) ORDER
The revision is directed against the confirmation of conviction and sentence under section 363 and 376 of the Indian Penal Code by the Additional District and Session Judge (FTC), Vellore.
2. The first and second accused, who are the revision petitioners herein, stood charged with offences under sections 363 and 376 of the Indian Penal Code. Both were convicted thereunder and sentenced to undergo five years and seven years rigorous imprisonment respectively. The Judgment of conviction and sentence recorded by the Trial Court was confirmed by the appellate forum. Hence, the revision preferred by the first and second accused before this court.
3. On the side of the prosecution, twelve witnesses were examined and as many as twenty documents and 10 material objects were marked. Neither oral nor documentary evidence was let in on the side of the defence.
4. PW1 Jayaraman is the father of the victim girls, PW2 Kavitha and PW3 Manjula. PW1 speaks to the missing of both his daughters and the first information report, Ex.P1 lodged by him. P.Ws.2 and 3 are the victim girls. As per the prosecution, PW2 was aged 15 years and PW3 was aged 13 years at the time of occurrence. The prosecution has chosen to produce the birth certificates of P.Ws.2 and 3 as Exs.P19 and P20 respectively. Both of them have spoken to the effect that on 29.6.2000, at about 4.00 pm, when they were returning from their friend’s house after collecting books, the accused herein enticed them to go along with them to Vellore, but, when they refused, the accused took both the victims viz., P.Ws.2 and 3 in their M80 vehicles. Both the accused left the M80 vehicles at Pallikonda and thereafter they took P.Ws.2 and 3 by bus to Vellore. The accused took P.Ws.2 and 3 to Selliamman Koil near Vellore. The first accused tied thali on PW1 and the second accused tied thali on PW3 at Selliamman Koil. Thereafter, they proceeded to Tiruttani where they stayed in a hotel in separate rooms. The first accused stayed with PW2 and the second accused stayed with PW3 in separate rooms in the lodge. Against the will of the victim girls, P.Ws.2 and 3, the first accused had intercourse with PW2 and the second accused had intercourse with PW3 in their respective rooms in the lodge. The next day morning, the accused took PW2 and PW3 to Nagari by bus. They stayed in the friend’s house of the accused for two days. Thereafter, on 2.7.2000, P.Ws.2 and 3 were brought to Sedhukarai located near Gudiyatham Town from where the victim girls were retrieved by the police. The victim girls were subjected to medical examination. PW9 examined both the victims P.Ws.2 and 3. She has expressed in the medical reports, Exs.P13 and P14 that there was no symptom of intercourse in the near past, though the hymens were found not intact. The Sup Inspector of Police, PW10 has investigated the case. PW12, having completed the investigation, laid final report as against the accused.
5. The Trial Court as well as the appellate court heavily relied upon the evidence of P.Ws.2 and 3 who are the victims in this case in the background of the birth certificates, Exs.P19 and P20, the medical certificates, Exs.P13 and P14 and the evidence of PW9, the doctor and returned the verdict of conviction.
6. Heard the submissions made on their side. The entire evidence available on record was thoroughly perused by this court.
7. The Trial Court as well as the appellate court have rightly determined the age of the victims, PW2 and PW3 as 15 and 13 respectively based on the birth certificates, Exs.P19 and P20. As the victims were below the age of 16, even if the intercourse had taken place with their consent, it is not considered as consent and it would amount to rape. Both the courts below have rightly placed reliance upon the testimony of the victims, P.Ws.2 and 3 who have categorically spoken to the fact that the first accused had intercourse with PW2 and the second accused had intercourse with PW3 in the lodge at Tiruttani. The victims have also spoken to the fact that they were enticed and taken away from the lawful custody of PW1. PW1 has also corroborated the evidence of P.Ws.2 and 3 to the effect that they were taken away from his lawful custody. PW9 is the Doctor who examined the victims on 6.7.2000 and issued medical certificates, Ex.P13 and P14. She has opined that the hymens of both the victims were found not in tact, but, there was no indication for very recent intercourse. The courts below have rightly relied upon the medical evidence of PW9 to come to the conclusion that A1 and A2 had intercourse with P.Ws.2 and 3 respectively.
8. The learned counsel appearing for the petitioner, referring to the medical testimony available on record, would submit that the medical evidence does not support the case of the prosecution.
9. It is to be noted that the victims were retrieved by the police team on 2.7.2000 itself. P.Ws.2 and 3 have categorically stated that they were subjected to intercourse by A1 and A2 respectively on 29.6.2000 itself in a lodge at Tiruttani. Therefore, it is found that the victims were rescued only after three days. But, unfortunately, the victims were not produced before the Doctor for examination forthwith. They were produced before the Doctor, PW9 only on 6.7.2000 after a lapse of about four days. Such a lapse found on the side of the prosecution will not ruin the case of the prosecution inasmuch as the evidence of P.Ws.2 and 3 are found to be telling. In all fairness, the investigating agency should have subjected the victims for examination immediately on rescuing them on 2.7.2000 itself. For the lapse on the part of the investigating agency, the truthful version emanated from the mouth of P.Ws.2 and 3 shall not suffer.
10. It is true that PW9 has come out with a version that there was no injury either on the private parts or at any other parts of the victims. Firstly, the court is not dealing with a case of rape of a woman aged more than 16 years. It is the case of the prosecution that minor girls aged below 16 years were subjected to intercourse by A1 and A2. Further, the victims were completely left in the hands of the kidnappers at the time of the occurrence. Therefore, any resistance put up by them will be of no avail. P.Ws.2 and 3 would state that against their will and consent, A1 and A2 had intercourse with them. It is not their version that they resisted during the course of intercourse and thereby they sustained injury either on the private parts or any other parts of the body. Further, the victims were subjected to medical examination only after seven days. Therefore, the absence of injury on private parts or any other parts of the victims does not weaken the case of the prosecution.
11. PW9 has stated in her reports, Exs.P13 and P14 that there was no indication of recent intercourse. But, the investigating officer, PW12, during the course of cross- examination, would state that the Doctor has opined that there was no indication for rape. It is not at all the case of the prosecution that the victims were rescued immediately after the rape was committed or intercourse was done by the accused on P.W.2 and 3. Three days had already lapsed by the time they were secured by the police team. Seven days had expired at the time when they were produced for medical examination. No wonder, no injury was found on the person of the victims.
12. The learned counsel appearing for the petitioners referred to the ratio laid down in YERUMALLA LATCHAIAH v. STATE OF ANDHRA PRADESH ((2006) 9 SCC 713) wherein it has been held as follows:-
“In the instant case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr.K.Sucheritha (PW7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction.”
13. That was a case where immediately after the commission of the offence of rape, the victim was subjected to medical examination. The Doctor, who examined the victim in that case, found that there was no injury on any of the part of the body of the victim. Very surprisingly, the hymen was found intact in that case. The Forensic Science report also would disclose that there was no sperm detected on the vaginal smears collected and examined by the expert. Under such circumstances, the Honourable Supreme Court has held that the High Court was not justified in upholding the conviction under section 376 of the Indian Penal Code. The case on hand is quite distinguishable from the facts and circumstances of the aforesaid case. In the present case, the victims were examined after a lapse of about seven days. The hymen was found ruptured. The vaginal smears collected and examined would be of no use inasmuch as the intercourse was not of recent origin. In the above facts and circumstances, the court finds that the aforesaid ratio does not apply to the facts and circumstances of the case.
14. In DILIP v. STATE OF MADHYA PRADESH ((2001) 9 SCC 452), the Supreme Court has held that the testimony of the Prosecutrix which is found contradicted by the medical evidence cannot be safely relied upon. That was a case where there was gang rape. The Prosecutrix had come out with a version that there was a sexual assault and as a result of which, there were blood stains on the clothes of the Prosecutrix, but, the report emanated from the Forensic Science Laboratory did not confirm it. The medical evidence disproved the version of the Prosecutrix that she sustained bleeding injuries at her private parts and her clothes were stained with blood. The Supreme Court has observed that the ‘probability factor’ virtually operated against the Prosecutrix in the facts and circumstances of the above referred case. As infirmities were found in the sole testimony of the Prosecutrix, it was held that it was totally unsafe to rely upon the testimony of the Prosecutrix. But, in the case on hand, there was no patent contradiction between the evidence of the Prosecutrix and the medical testimony. It is not the case of the prosecution that the victims sustained any bleeding injuries in the private parts at the time of occurrence and they were subjected immediately to medical examination. It is the case of the prosecution that the victims had to meekly submit themselves to the accused, of course, with mild objection expressing unwillingness. Therefore, the court finds that no corroboration, as far as the case on hand is concerned, is required.
15. The learned counsel appearing for the petitioner referred to yet another authority in VIMAL SURESH KAMBLE v. CHALUVERAPINAKE APAL S.P. AND ANOTHER (2003 SCC (Cri) 596) wherein it has been held that a conviction can be recorded solely on the basis of the testimony of the Prosecutrix provided the evidence of the Prosecutrix inspires confidence and appears to be natural and truthful. In the aforesaid case, having found that the testimony of the Prosecutrix was not at all inspiring, the Supreme Court rejected her testimony and upheld the judgment of the High Court acquitting the accused.
16. That was a case where the Prosecutrix came out with an artificial version that when the occurrence was taking place at about 12.30 pm on a Sunday in a thickly populated locality, nobody turned up to rescue her. It was also pointed out in that case that the Prosecutrix chose to loiter leisurely in the locality after the alleged rape till about 2.30 pm. She again went to the flat of the first respondent wherein she was residing in the second floor for the alleged purpose of handing over the keys. She was a married woman. But, she had not chosen to share the said information to her husband. She came to the house and went to sleep very calmly. The prosecution has come out with a case very artificially that the Prosecutrix chose to proceed to the house of her brother and share the information with her sister-in-law. In the above facts and circumstances, the Supreme Court has held that the evidence of the Prosecutrix does not inspire confidence. But, in the case on hand, the minors below the age of 16 were subjected to intercourse by A1 and A2. They were secured after about three days and subjected to medical examination after about seven days. They have come out with a consistent version that they have been kidnapped by A1 and A2 and were subjected to intercourse unmindful of their unwilling to be a party to the intercourse. The Trial Court and the appellate court have rightly placed reliance upon the evidence of P.Ws.2 and 3 as their evidence inspire confidence. Therefore, the aforesaid ratio laid down by the Supreme Court does not come to the rescue of A1 and A2.
17. Coming to the age of the victim girls, P.Ws.2 and 3, it is submitted by the learned counsel appearing for the revision petitioners that the birth certificates alleged to have been produced by PW1 during the course of investigation were not produced before the court but, PW10 produced the alleged birth certificates, Exs.P19 and P20 only during the course of further examination. There was no material on record to show that Indira mentioned in the birth certificates is actually the mother of P.Ws.2 and 3. The attention of PW1 was not drawn to the alleged birth certificates, Exs.P19 and P20 which were secured at a later point of time and produced before the court. Further, the learned counsel appearing for the revision petitioners would submit that the Doctor, PW9, who examined P.Ws.2 and 3, has fixed the age of PW2 at 16. Therefore, he would submit that the prosecution has failed to establish the exact age of the victim girls.
18. It is true that PW1 has deposed before the court that he did produce the birth certificates of his daughters during the course of investigation. There was no explanation from the prosecution as to what happened to those birth certificates produced by PW1 during the course of investigation, but, PW10, the Sub Inspector of Police has produced, during the course of further examination, the birth certificates, Exs.P19 and P20 of P.Ws.2 and 3 respectively.
19. Though certificates were issued by the Commissioner of Gudiyatham Municipality, who is the competent authority to issue birth certificates, the Registrar of Birth and Death of Gudiyatham Municipality has also affixed his signature in those birth certificates. The prosecution has consistently come out with a case that the victims were below 16 years of age. Of course, PW9 has recorded that a girl aged 16 (PW2) was brought to her for examination. But, it is found that she has not assessed the age of the victim girl, PW2.
20. As rightly pointed out by the learned counsel appearing for the revision petitioners, the prosecution should have let in some evidence to show that Indira is the mother of the victims, P.Ws.2 and 3. But, the court cannot simply forget the fact that the name of PW1 was mentioned as the father of the girl born in Government Hospital. When the certificate was issued by the authority who is competent to issue it, the court cannot doubt the veracity of the details found in the certificate. There is no cross-examination on the side of the accused when Exs.P19 and P20 were marked that the woman Indira is not the mother of the victims, P.Ws.2 and 3. Therefore, there is no reason to reject the birth certificates, Ex.P19 and P20 which have been issued by the competent authority and produced before the court to support the case of the prosecution.
21. The learned counsel appearing for the petitioners cited a decision in NARENDRASINGH v. STATE OF MADHYA PRADESH (1996 CRI.L.J. 198). That was a case where the age of the victims were fixed based on ossification test conducted by the Doctor. In such circumstances, it has been held therein that marginal benefit of two years must go in favour of the accused. No ossification test was conducted in this case as the birth certificates of the victims were very much available. Therefore, the question of rendering any marginal benefit of two years in favour of the accused in this case does not arise at all.
22. The court finds that there is no illegality or impropriety in the decision arrived at by the Trial Court as well as by the appellate court.
23. During the course of dictating the order, the learned counsel appearing for the petitioners would submit, producing certain alleged love letters emanated from the victims to the accused, that there had been love affair between the petitioners and the victim girls and therefore, some mercy may be shown in the matter of awarding sentence.
24. Firstly, the court finds that those materials were not produced either before the Trial Court or during the course of appeal before the appellate forum. Further, it is found that the victim girls are minor below the age of 16. Therefore, even if love affair had been there and the intercourse was done with the very consent of the victims, the petitioners cannot escape from the penal provision under section 376 of the Indian Penal Code.
25. In view of the above, the conviction recorded and sentence imposed by the appellate forum stands confirmed. The criminal revision case stands dismissed.
ssk.
To
1. The Additional District and
Sessions Judge (FTC),
Vellore.
2. The Assistant Sessions Judge,
Gudiyatham.
3. The Inspector of Police,
Gudiyatham Town Police Station,
Gudiyatham,
Vellore District