IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 6-9-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.282 of 2010 Mohan Rao Naidu .. Appellant vs State represented by The Inspector of Police Sathuvachari Police Station Vellore (Crime No.1026 of 2004) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Vellore District, Vellore, dated 12.4.2010 and made in S.C.No.285 of 2005. For Appellant : Mr.K.S.Rajagopalan For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the Principal Sessions Division, Vellore, made in S.C.No.285 of 2005 whereby the sole accused/appellant stood charged, tried, found guilty and awarded punishment as follows:
CHARGES
FINDING
PUNISHMENT
354 IPC
Guilty
No separate sentence
376 IPC
Guilty
Life imprisonment along with a fine of Rs.10000/- and default sentence
201 r/w 376 IPC
Guilty
3 years RI along with a fine of Rs.5000/- and default sentence
506(ii) IPC
Guilty
3 years RI
306 IPC
Guilty
No separate sentence
4 of Tamil Nadu Prohibition of Harassment of Woman Act 1998
Guilty
No separate sentence
4(B) of Tamil Nadu Prohibition of Harassment of Woman Act 1998
Guilty
10 years RI along with a fine of Rs.50000/- and default sentence
2.The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 was working as a Manager (Technical) in National Highways Authority of India in Vellore for nearly about three years prior to the occurrence. He was residing with his wife, the deceased Malla Roja Ramani, and two daughters in a rented house in the first floor bearing Door No.1249, V Main Road, Phase-II, Sathuvachari, Vellore. The accused/appellant working in Bangalore, had been a close friend of P.W.1 for more than two decades as classmate. On 3.10.2004, the accused called P.W.1 by phone and informed that he would be visiting him in the evening. But, in the afternoon, he made another call informing that he would be visiting in the next morning. Accordingly, when he visited P.W.1 in his house at about 6.30 A.M. on 4.10.2004, P.W.1 was just about to start to Chennai to attend a conference. He called the accused/appellant to accompany him; but the accused replied that he wanted to take some rest. Thus leaving the accused/appellant, P.W.1 left for Chennai. P.W.15, the daughter of P.W.1, along with her younger sister went to the School. P.W.3 the servant-maid, as usual came to the work at about 9.00 A.M. that day and left at about 11.00 A.M. when she found accused/appellant sleeping in the bed room.
(b) After attending the conference, when P.W.1 was on his way to Vellore, his Project Officer who came with the family in his car, informed him to stay at Meenakshi Medical College, Kancheepuram. All of them joined and went in their cars. When they reached Wallajah, the Project Officer asked his wife P.W.2 to go to the house of P.W.1 telling that he and P.W.1 would be coming after completing the inspection. P.W.2 along with her children went to the office of P.W.1 at Sathuvachari to enquire the house address of P.W.1 since they could not locate the house of P.W.1.
(c) At about 4.30 P.M., P.W.15, the elder daughter of the deceased, returned home, and she saw the accused and her younger sister sitting in a sofa in the hall, while the deceased was in the kitchen. The deceased asked P.W.15 and her sister to get ready so that they could accompany the accused to the office of P.W.1. Accordingly, the accused took P.W.15 and her sister to the office of P.W.1. They saw P.W.2 and her children and also P.W.18, car driver, there, and P.W.1 who came there at that time, introduced the accused to everyone. P.W.1 asked P.W.15 to take P.Ws.2 and 18 to their home. When they reached home, the house was found locked, and there was no response. At that time, P.W.3, the servant-maid, also came there, and she also knocked the door. Thereafter, P.W.1 was informed, and on receiving the information, P.W.1 rushed home. He also knocked the door. Since there was no response, he forcibly opened the door and entered into the house. They saw the deceased hanging from the ceiling fan in the dining hall by using her saree. Then P.W.1 lifted the deceased, and P.W.3 cut the saree. P.W.1 took the deceased to the hospital along with P.W.18. At about 7.00 P.M., the Doctor attached to the CMC Hospital, on examination declared her dead. Ex.P20 is the certificate issued in that regard. P.W.10, another Doctor, attached to the CMC Hospital, identified the signature of the Doctor who examined and declared her dead. Then, the dead body was sent to the mortuary of the Hospital.
(d) P.W.1 returned to home and took his children and P.W.2 to Hotel Surabi where they stayed during that night. The accused also was staying over with them. Since there was no other responsible officer in the respondent police station, P.W.1 did not lodge any complaint. On 5.10.2004 at about 7.00 A.M., he went to the house to take the clothes of the children where he found Ex.P1, note, which was written in Telegu. In Ex.P1 note, it was written that on 4.10.2004, while the deceased was affixing pottu in front of her dressing table, the accused forcibly had a sexual intercourse, and at the time of ejaculation, the accused withdrew his penis and smeared the semen in the lungi, and he also threatened her that if she revealed to anybody or her husband, she and her children would be done to death. On seeing this, P.W.1 went to the police station along with P.W.18 and lodged a complaint, Ex.P2 at about 8.00 A.M.
(e) P.W.21, the Inspector of Police, on receipt of the complaint registered a case in Crime No.1026 of 2004 under Sections 376, 306 and 506(ii) of IPC and Sec.4(b) of the Tamil Nadu Prohibition of Harassment of Women Act. The printed FIR, Ex.P32 was despatched to the Court. Then he took up investigation, and at about 9.00 A.M., he seized Ex.P1 from P.W.1 under a cover of mahazar, Ex.P27. Thereafter, he went to the scene of occurrence, made an inspection and prepared an observation mahazar, Ex.P29, and also a rough sketch, Ex.P33. He also seized the saree, gel pens, bed spread, cell phone and broken latches, M.O.5 series and M.Os.10 to 14 respectively under a cover of mahazar, Ex.P28. At about 11.30 A.M., he went to the CMC Hospital, and after obtaining the death certificate, he conducted inquest on the dead body of Malla Roja Ramani in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P34. A requisition was given to the hospital authorities for the purpose of postmortem.
(f) On 5.10.2004 at about 5.00 P.M., P.W.12, the Civil Assistant Surgeon, attached to the Government Vellore Medical College Hospital, Vellore, on receipt of the requisition, has conducted autopsy on the dead body of Malla Roja Ramani and has issued a postmortem certificate, Ex.P22, wherein he opined that the deceased would appear to have died of asphyxia due to hanging.
(g) P.W.21, the Inspector of Police, with the help of P.W.20, the Sub Inspector of Police, translated the version of Ex.P1 from Telugu to Tamil, and Ex.P31 is the translated Tamil version. Then the Investigator examined P.Ws.1, 3, 15 and 18 and recorded their statements. He got Ex.P1 laminated in the shop of P.W.6. He also seized the clothes found on the dead body of the deceased namely M.O.1 saree, M.O.2, petticoat, M.O.3, blouse and M.O.4, bra, under Form 95.
(h) Pending investigation, the accused was arrested on 5.10.2004 at about 9.00 P.M., when he gave a confessional statement. The same was recorded pursuant to which he also produced M.O.15, lungi, and M.O.16, T.Shirt, from the brief case, and they were all recovered under a cover of mahazar, Ex.P13. Thereafter, he was remanded to judicial custody. On the very day, P.W.21 examined P.W.19 and recorded his statement. A requisition for medical examination of the accused was given by P.W.21 which is marked as Ex.P13.
(i) P.W.11, the Doctor, attached to the Government Medical College and Hospital, Vellore, on 9.10.2004 at about 2.00 P.M., examined the accused and issued an accident register copy, Ex.P21. P.W.21 sent the hyoid bone and also hair for examination, and the requisition given by him is Ex.P35. The report given by the Forensic Sciences Department is marked as Ex.P36. Further, P.W.21 sent the material objects for chemical analysis along with the requisition Ex.P15. On the same day, P.W.21 examined P.Ws.5 and 6 and recorded their statements.
(j) On 5.11.2004, P.W.21 translated Ex.P1 with the aid of P.W.14, an Advocate, in Tamil and English. The English version of Ex.P1 is Ex.P24 and that of Tamil is Ex.P25. The mother of the deceased went to the police station and handed over the inland letter, Ex.P3, written by the deceased to her. P.W.21 seized the same under Form 95. He gave a requisition for sending Exs.P1 and P3 for the purpose of comparison, to the handwriting expert. Following the same, the handwriting expert has also compared the same and has also given his opinion. On 10.2.2005, P.W.21 examined P.Ws.4, 11 to 14, 17 and 20 and recorded their statements. On 24.2.2005, he examined P.Ws.7 to 9 and recorded their statements. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 21 witnesses and also relied on 36 exhibits and 16 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. Apart from that, he has also filed a written statement specifically stating that the case of the prosecution as to the rape of the victim was false, and he has been falsely implicated in the case, and the documents relied on by the prosecution, were concocted for the purpose of the case. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty as per the charges and awarded the above punishment. Hence this appeal at the instance of the appellant/accused.
4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.K.S.Rajagopalan would submit that the alleged commission of rape has taken place in the evening hours of 4.10.2004; that the prosecution had no direct evidence to offer; that the specific case of the prosecution was that the accused has committed rape and also criminally intimidated and harassed the deceased who was the wife of P.W.1, at the time of occurrence; and that the prosecution, in the absence of any direct evidence, relied upon only the circumstantial evidence, and in particular, Ex.P1, calling it as a suicide note written by the wife of P.W.1.
5.Stressing the words as found in the English version of Ex.P1 namely Ex.P24 “…forcibly enjoyed me…raped me… He fully occupied me.”, the learned Counsel would submit that the deceased was a married lady and sufficiently matured; and that mentioning of all these words would indicate that she should have been forcibly raped by the accused; but the medical opinion canvassed was thoroughly contrary to what are all found in Ex.P24.
6.The learned Counsel drew the attention of the Court to the evidence of P.W.12, who has conducted autopsy on the dead body. He would submit that P.W.12 has categorically deposed that there was no external injuries seen on any part of the body; that the medical person has pointed out in the summary of findings that no external injuries were seen either or external genitalia or other body areas; that equally he has also stated that no seminal fluid was seen, and the vaginal swab was taken and preserved for microscopic examination; and that the report received on the examination of vaginal swab as found in Ex.P6, would clearly indicate that no semen was detected in either of the items which were subjected to examination.
7.Added further the learned Counsel that P.W.12, the Doctor, has also candidly admitted that if there was a forcible rape, there was all possibility of injury to the victim on the private part as well as on the other parts of the body; but, no injury was found on the victim either on the private part or on the other parts of the body, and thus it would be quite clear that there was no application of force or rape as found in Ex.P24; that what is found in Ex.P1 is actually contrary to the medical opinion; and that under the circumstances, from the medical opinion canvassed, there could not have been any sexual assault, much less forcible sexual assault.
8.The learned Counsel also relied on the evidence of P.W.11, the medical Person, who examined the accused on 9.10.2004. He would submit that P.W.11 has categorically deposed that no injury was found in the penis, and also no semen was found to be deposited over or around the penis, and no other foreign materials were also found in the private part; and that all would clearly be indicative of the fact that he could not have committed the offence at all.
9.Added further the learned Counsel that according to the Investigator, following the confessional statement given by him, he produced lungi and T.Shirt, marked as M.Os.15 and 16 respectively, and both of them were sent for analysis which brought forth the report as found under Ex.P5, wherein it is stated that the lungi which was recovered from him, contained the seminal stain. Attacking this part of the evidence, the learned Counsel would submit that there is no evidence available that the accused was actually wearing lungi on that day; that even the Investigator has categorically stated that P.W.1 has not given any statement that the accused was wearing lungi; that no one witness has stated that he was wearing lungi on the day, and hence no reliance could be placed on that evidence.
10.The learned Counsel placed much criticism on Ex.P1, which, according to the prosecution, is a suicide note. He would submit that even according to the prosecution, the occurrence has taken place in the afternoon hours; that according to P.W.15, the first daughter, aged 9, she returned from school, and at that time, her mother was in the kitchen, and the accused and her younger sister were actually sitting in a sofa in the front hall, and it was her mother who asked P.W.15 and her sister to go with the accused to the office of P.W.1; that if really such an incident had taken place, the deceased would not have sent her daughter aged about 9, along with the accused; that if such an occurrence has actually taken place, she would have been under a sorrow; but, that is not the evidence of P.W.15; that according to P.W.3, there was an auto stand, and there was a window; that if such an occurrence has taken place, she would have raised a distressing cry, and it would have been heard by the persons outside; but, she has not done anything; that as far as Ex.P1 document is concerned, the prosecution attempted to prove the same by producing Ex.P3 letter through P.W.16, the mother of the deceased; that a perusal of Ex.P3 would clearly indicate that it was actually not addressed to P.W.16, the mother; but to someone by name Srinivasa Rao; that apart from that, P.W.17 was the expert who has given his opinion that the handwritings found in both the documents namely Exs.P3 and Ex.P1, are tallying with each other and have been written by one person; that this expert’s opinion cannot be relied for the simple reason that in Ex.P3 document, the last two lines were admittedly written by P.W.1, and hence it is not known whether P.W.17 has compared the handwriting of the deceased or of P.W.1, and hence the opinion of P.W.17 as found in Ex.P26, cannot be relied for any purpose; that apart from that, according to P.W.1, he went to the house when it was kept locked, and he forcibly opened the doors and found the dead body of his wife hanging, and immediately he left the place along with the children and stayed in a hotel, but he did not give any complaint to the police that night, and at the time when he went to the house in the next morning to take some clothes, he found Ex.P1 note; that if Ex.P1 note, was found in the house and if really P.W.1 went to the house on the evening hours and found the dead body, one would expect him to look around; and that if he had really done so, Ex.P1 document would have been taken by him; but, he has not done so.
11.Added further the learned Counsel that according to P.W.1, he handed over the document, Ex.P1, along with Ex.P2, the report, to the Police Officer, the next morning; that the Investigator also says that it was actually received by him; but, this document has actually reached the Court along with the final report, and thus it would cast a suspicion whether this document could have come into existence and whether it could have been concocted for the purpose of the prosecution case; that in the instant case, the prosecution much relied on the evidence of Ex.P1, the suicide note, which should have come into existence later; that what are all contained in Ex.P1 note, even assuming to have been written by the deceased, all the factual position which are proved and in particular, the medical opinion, are exactly contrary, and under the circumstances, the prosecution has miserably failed to prove its case, but the trial Judge has taken an erroneous view, and hence he is entitled for acquittal in the hands of this Court.
12.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
13.It is not in controversy that the dead body of one Malla Roja Ramani, the wife of P.W.1, following the inquest made by P.W.21, the Investigator, and the preparation of the inquest report, was subjected to postmortem by P.W.12, the Doctor, who has given a categorical opinion that she died out of asphyxia due to hanging. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court, and hence no impediment was felt by the trial Court in recording so and rightly too.
14.In order to substantiate that the accused has committed sexual assault which resulted in her hanging, the prosecution had no direct evidence to offer. True it is, it relied upon the circumstantial evidence. The Court is not unmindful of the caution made by the settled principle of law that in a given case like this, where the prosecution rested its case exclusively on the circumstantial evidence, the circumstances must constitute a chain without a snap and that too, be pointing to the hypothesis that except the accused, no one could have committed the offence. Even after the application of this cardinal principle, this Court is satisfied that the prosecution has brought home the guilt of the appellant/accused. On scrutiny of the entire materials, this Court has noticed the following circumstances.
15.Admittedly, the accused/appellant was a close friend of P.W.1. As per his phone call, he came to the house of P.W.1 at about 6.30 A.M. on 4.10.2004. At that time, P.W.1 was just about to start, and he called the accused to accompany him to Chennai; but, the accused informed him that he was to take rest, and therefore, he would stay there. Leaving him, P.W.1 has left for Chennai. Both the children namely P.W.15, the elder daughter, and the other daughter of P.W.1, left for school at about 8.30 A.M. P.W.3, the servant maid, has deposed to the fact that the accused was also sleeping, while the deceased was the only person in the house. According to P.W.15, she came from the school at about 4.30 P.M., and she accompanied the accused along with her younger sister to P.W.1’s office, and sometime later, on information, P.W.1 went over there, opened the door and found her hanging. Immediately, he took the dead body and thereafter, went to the police station where there was only a Constable available and hence he could not give any complaint. At this juncture, it is pertinent to point out that the accused was very well available in those hours, and since he happened to be a close friend, P.W.1 did not entertain any suspicion on the conduct of the appellant/accused.
16.According to P.W.1, he was staying in the hotel during night hours, and he went to the house in the next morning and took some clothes, and at that time, he found Ex.P1, note, which was in Telugu, and after reading the same, he came to know that it was the act of the accused. Now, at this juncture, it is pertinent to point out that P.W.1 has categorically stated that when he went to the house on the previous evening and found his wife hanging, he was under shock, and therefore he did not look around, and when he went in the morning for taking clothes, he found the note. Hence no doubt could be thrown on the conduct of P.W.1, and it has got to be believed. It can be well stated that the evidence of P.W.1 that he found Ex.P1 note, only in the morning hours cannot, but be true.
17.Much comment was made by the learned Counsel for the appellant in respect of Ex.P1, note. The same has got to be rejected by the Court for the following reasons. According to the prosecution, Ex.P1, note, was written by the deceased. In order to prove the same, the prosecution has examined not only P.W.1, the husband, but also P.W.16, the mother of the deceased. Both have identified the handwriting of the deceased. That apart, P.W.16 has also produced an inland letter which is marked as Ex.P3. She has also explained that since she was a female, the letter was used to be written to Srinivasa Rao, a close relative, and he used to hand over the letter. Ex.P3 along with Ex.P1 was sent for analysis to the handwriting expert, examined as P.W.17. On examination, he has given a report as found in Ex.P26. As a witness before the Court, he has categorically stated that the handwritings found in Ex.P1 and also in Ex.P3, are by the same person. This Court is of the considered opinion that in order to prove the same, no better evidence could be adduced by the prosecution, and this available evidence would suffice to prove the fact that Ex.P1 was in the handwriting of the deceased.
18.The other comment made by the learned Counsel for the appellant that Ex.P1 document, could have come into existence subsequently cannot be accepted for the simple reason that Ex.P1 document, was actually referred to in Ex.P2, the complaint. According to P.W.1, he handed over the document, Ex.P1, along with the complaint, Ex.P2. The Investigator has also candidly admitted that he received the same from P.W.1 on the very day of the complaint. It is pertinent to point out that Ex.P1 document, was the basis for such a complaint given by P.W.1 as found in Ex.P2, wherein the act of the accused is clearly stated. It is true that the document was actually produced before the Court belatedly. The Investigator has come forward with the clear explanation that after the production of the document with him, he wanted to compare the handwriting for which he was retaining the document, and he called two persons one after another i.e., the Sub Inspector of Police and also an Advocate. The materials as to the comparison of the document, along with the translated version were all produced before the Court. Thus it is quite evident that in the process of comparison, the delay has occurred. So long the prosecution was able to show that the handwriting in Ex.P1 was that of the deceased, and it is also referred to in Ex.P2, the complaint, and it was also the basis for the accusation made against the appellant/accused in the complaint, the delay in production by itself cannot be a reason to reject that part of the evidence. This Court is able to notice that there is some delay on the part of the Investigating Officer in not producing the same before the Court. But, for the above reasons, the delay, in the considered opinion of the Court, cannot be a reason to reject or doubt the prosecution story.
19.Apart from the above, following the confessional statement made by the appellant/accused, two material objects namely T.Shirt and Lungi, marked as M.Os.15 and 16 respectively, were recovered from him. The Lungi was sent for analysis, and the report was received under Ex.P5. Ex.P5 would indicate that the lungi was found to have contained seminal stain. Now, at this juncture, it is pertinent to point out that the deceased has clearly stated in her suicide note, Ex.P1, that at the end of the intercourse, instead of passing the semen into the vaginal part, he has actually smeared it on his lungi. The detection of seminal stain in the lungi recovered from the accused, which fact is also found in Ex.P1, suicide note, will be clearly pointing to the nexus of the crime with the accused.
20.It is true that no external injuries are found on the dead body, as could be seen from the postmortem certificate, Ex.P22. But, the same by itself cannot be a reason to suspect the prosecution case. It is settled position of law that the fact that the injuries are not found in the vaginal part or the other parts of the body cannot by itself be a reason to suspect the testimony of the prosecutrix. It is pertinent to point out that she was aged about 32. Even the medical opinion would go to show that her vaginal part allowed two fingers. Under the circumstances, application of force does not arise. In the instant case, he has also not passed the semen into the private part, but smeared it on his lungi. In this context, it would be more apt and appropriate to reproduce the relevant paragraphs of the decision of the Apex Court reported in (2007) 1 SCC (CRI.) 28 (SANTOSH KUMAR V. STATE OF M.P.), as follows:
“10. The question, which arises for consideration, is whether the proved facts establish the offence of rape. It is not necessary for us to refer to various authorities as the said question has been examined in considerable detail in Madan Gopal Kakkad v. Naval Dubey and paras 37 to 39 of the said judgment are being reproduced below: (SCC pp. 222-23)
37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology, (21st Edn.) at p. 369 which reads thus:
Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.
38. In Parikhs Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
Sexual intercourse.In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
39. In Encyclopfdia of Crime and Justice, (Vol. 4) at p. 1356, it is stated:
… even slight penetration is sufficient and emission is unnecessary. (emphasis in original)
Therefore, the absence of injuries on the private parts of a victim specially a married lady cannot, ipso facto, lead to an inference that no rape has been committed.
11. The medical examination report of the victim shows that she received injuries on front portion of the body and also on her hands. The mere fact that no injuries were found on private parts of her body cannot be a ground to hold that no rape was committed upon her or that the entire prosecution story is false. It may be noted that Halki Bai is a married grown-up lady and in such circumstances the absence of injuries on her private parts is not of much significance.”
21.It is pertinent to point out that in the case on hand, the victim was not alive, and hence she could not be examined. But, at the same time, there was a suicide note, Ex.P1, which would clearly be indicative of the act of the accused.
22.The learned Counsel commented on the conduct of the deceased that if really such an incident had happened, she could not have sent P.W.15, the daughter, and the other daughter along with the accused. But, this contention cannot be countenanced. She has well stated in Ex.P1, suicide note, that after the occurrence was over, she could not digest or could not reveal the same at that time, and thus she had taken a decision to kill herself. But, at the same time, if other persons are available in the house, she could not proceed with her decision. Therefore, she has sent the daughters along with the accused, and after they have gone, she has bolted the doors and had committed this act. The reason for committing the act is actually found in Ex.P1. Under the circumstances, no further reason can be searched for the same.
23.The learned Counsel relying on the evidence of P.W.11, the Medical Person, would urge that according to the Medical Person, the accused was examined by him, and no injury was found in the penis, and also no semen was found to be deposited over or around the penis, and no other foreign materials were also found in the private part, and hence that part of the evidence adduced by the prosecution cannot be relied. This Court is of the opinion that this part of the evidence cannot be accepted for the simple reason that the occurrence has taken place on 4.10.2004, and he was medically examined on 9.10.2010, after a number of days. Therefore, one could not expect the seminal stain or other things to remain after such number of days. Hence that part of the evidence is rejected.
24.While the prosecution is able to prove the fact that Ex.P1, suicide note, was actually written by the deceased, then the accused is unable to show why he should be implicated unnecessarily. The fact that P.W.1 allowed the accused to stay in the house alone, and leaving him, he left for Chennai would be indicative of the degree of confidence which he reposed on his friend, the appellant/accused. Under the circumstances, it would be quite clear that the cordial relationship was actually maintained. Even the accused has admitted that he took food in the house, which was actually served by the deceased. Under the circumstances, there was no reason for the deceased to implicate the accused or P.W.1 to concoct any document as found in Ex.P1, to implicate his friend, the appellant. She has also stated in Ex.P1 note, that the accused was all right till the lunch hours, and thereafter, he has committed the sexual assault. All would clearly indicate that it was the appellant/accused who has committed the sexual assault which was against her will and without her consent. That part, in a case like this, even the mere penetration would suffice to attract the penal provision of Sec.376 of IPC. Taking into consideration the facts and circumstances, this Court feels that awarding a punishment of 7 years Rigorous Imprisonment under Sec.376 of IPC would meet the ends of justice.
25.Accordingly, the conviction of the appellant under Sec.376 of IPC is confirmed, but the life imprisonment awarded by the trial Court, is modified, and he is directed to suffer 7 years Rigorous Imprisonment. The sentence already undergone by him, shall be given set off. However, the fine amount imposed by the trial Court will hold good.
26.The conviction of the appellant under Sec.4(B) of Tamil Nadu Prohibition of Harassment of Woman Act 1998 is confirmed, but the sentence of 10 years Rigorous Imprisonment imposed by the trial Court, is modified, and he is directed to suffer 7 years Rigorous Imprisonment. The sentence already undergone by him, shall be given set off. However, the fine amount imposed by the trial Court, will hold good.
27.In respect of the other charges, the judgment of the trial Court is confirmed. All the sentences are ordered to run concurrently.
28.In the result, this criminal appeal is, accordingly, disposed of.
(M.C.,J.) (M.S.,N.,J.)
6-9-2010
Index: yes
Internet: yes
nsv
To:
1.The Principal Sessions Judge
Vellore
2.The Inspector of Police
Sathuvachari Police Station
Vellore
(Crime No.1026 of 2004)
3.The Public Prosecutor
High Court, Madras.
M.CHOCKALINGAM, J.
AND
M.SATHYANARAYANAN, J.
nsv
CRL.A.No.282 of 2010
Dt: 6-9-2010