IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/11/2004
CORAM
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
CRL.APPEAL No.263 of 2003
Sankar ... Appellant /
Accused.
-Vs-
The State, rep. By the
Inspector of Police,
Chithamor, Police Station, ... Respondent /
Chengleput District. Complainant
This Criminal Appeal arises out of the Judgment dated
17.12.2002 made in S.C.No.325 of 2001 on the file of Assistant Sessions Judge,
Madhuranthakam.
!For Appellant : Mr. S.Govindarajan
^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.325 of 2001 on the file of
Assistant Sessions Judge, Madhuranthakam. By the Judgment dated 17.12.20 02,
the Assistant Sessions Judge, Madhuranthakam has convicted the Appellant /
Accused for the offence under S.376 (2) (f) I.P.C. and sentenced him to
undergo Rigorous Imprisonment for a period of Ten Years and also imposed fine
of Rs.1,000/-; in default to undergo Simple Imprisonment for a further period
of one month.
2. P.W.1 – Srimathi is the daughter of P.W.3 – Shanthi and
one Devaraj. P.W.2 – Chitra is the Classmate and close friend of P.W.1. Case
of prosecution is that P.W.1, aged 10 – 12 Years at the time of occurrence,
was studying in VI Standard. On the date of occurrence – 1 4.08.1998 – 5.00
p.m., P.W.1 along with her younger sister – Deepalakshi and P.W.2 went to
Thailathope for plucking flowers. At that time, the accused came there and
called her to accompany him to the nearby Palm-grove saying that he would give
her Palm fruits. Believing the same, P.W.1 went along with the accused. The
accused removing his Trouser and Skirt of P.W.1, made P.W.1 to lie down and
the accused laid upon her. When P.W.1 shouted, the accused beat her and had
forcible Sexual Intercourse with her. P.W.1 raised alarm. On hearing the
alarm of P.W.1, P.W.2 – Chitra, P.W.3 – Mother of P.W.1 and her younger sister
came to the scene of occurrence. On seeing them, the accused had run away.
P.W.1 narrated the occurrence to her mother – P. W.3.
3. Registration of case and Investigation. P.W.1 – Srimathi
along with the Villagers went to Chithamor Police Station and lodged Ex.P.1 –
Complaint on 14.08.1998 – 7.00 p.m. On the basis of Ex.P.1 – Complaint,
P.W.11 – Sub Inspector of Police had registered the case in Crime No.295 of
1998 under Ss.376 and 511 I.P.C. Clothes of P.W.1 – Srimathi (M.O.1 series)
were seized in the presence of P.W.4 – Shanmugam and one Kannan. P.W.1 was
sent to Madhuranthakam Government Hospital through P.W.9 – Head Constable for
Medical Examination.
4. P.W.6 – Dr.Tahirinussa has examined P.W.1 – Srimathi. She
has noted Linear abrasion over the right lebia. P.W.6 issued Ex.P.5 – Wound
Certificate. P.W.1 was referred to Chengleput Government Hospital for further
investigation. P.W.8 – Dr.Parasakthi, working in Chengleput Medical College
Hospital, has examined P.W.1 – Srimathi on 17.08 .1998. On examination, her
private parts vulva was normal, Vagina admitted one finger with tenderness;
Hymen absent; tears seen at 5 and 7’0 clock position; Surrounding areas found
reddish, swelling and tenderness seen. P.W.8 opined that P.W.1 would have
been subjected to sexual intercourse. Ex.P.10 is the Certificate of P.W.1
relating to the opinion of P.W.8.
5. P.W.11 – Sub Inspector of Police had taken up the initial
investigation. Scene of occurrence was inspected in the presence of
Witnesses. On information, on 14.08.1998 – 10.30 p.m., the accused was
arrested near Polappakkam Leprosy Hospital. When being interrogated, the
accused had given a Confession Statement (Ex.P.3) in the presence of P.W.5 –
Rajamani and one Bakthavatchalam. Clothes of accused – M.O.2 series were
recovered under Ex.P.4 – Seizure Mahazar in the presence of the same
witnesses. The accused was sent to Madhuranthakam Government Hospital for
treatment for the injuries sustained by him. On 15.08.1998 – 12.00 midnight,
P.W.6 has examined the accused, who reported to her for treatment as to
certain injuries stating that he sustained injuries while he was running at
Chithamor Cootu Road and by falling down. Noting Contusion and Abrasion on
him, P.W.6 issued Ex.P.7 – Wound Certificate.
6. The accused was sent to Chengleput Government Hospital for
Medical Examination to know about his potency. P.W.7 – Dr.K.Gururaj has
examined the accused on 17.08.1998. Opining that there is nothing to suggest
that the accused is impotent, P.W.7 issued Ex.P.8 – Potency Certificate.
7. On the same day P.W.1 – Srimathi was radiologically
examined by P.W.7. She was found to be the age of above Ten years and below
Twelve years. Ex.P.9 is the Age Certificate relating to P.W.1.
8. Seized Material Objects were sent for Chemical Analysis.
Inspector of Police – Ramamoorthy has taken up the further investigation. He
has examined the Medical Witnesses and recorded their statements. On receipt
of the Chemical Report and on completion of material part of the
investigation, Charge Sheet was filed against the accused under S.376 (2) (f)
I.P.C. on 14.05.1999.
9. In the trial Court, to substantiate the Charge against the
accused, prosecution has examined P.Ws.1 to 11. Exs.P.1 to P.16 were marked.
M.Os.1 and 2 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 has stated that he belongs to Madras and that a false case
has been foisted against him.
10. In consideration of the evidence adduced by the
prosecution, the learned Assistant Sessions Judge found that the evidence of
P.W.1 being credible is strengthened by the oral evidence of P.Ws.2 and 3.
The learned Judge was of the view that though P.Ws.1 and 2 are young girls,
their evidence is found to be credible. Pointing out that the evidence of
Victim Girl – P.W.1 is well corroborated by the Medical Evidence of P.Ws.6 and
8, the learned Assistant Sessions Judge held that the prosecution has proved
that P.W.1 was subjected to Sexual Intercourse by the accused and that his
guilt has been proved. The learned trial Judge was of the view that the delay
in receipt of First Information Report in the Court would not in any way
affect the prosecution case.
11. Aggrieved over the verdict of conviction and the sentence
of imprisonment, the Appellant / Accused has preferred this appeal. Attacking
the findings of the trial Court, learned counsel for the Appellant / Accused
contended that the trial Court erred in believing the evidence of P.W.1.
Laying emphasis upon the delayed receipt of First Information Report in the
Court, the learned counsel for the Appellant / Accused has submitted that such
delayed receipt throws serious doubts on the prosecution case. It is further
contended that nondetection of Semen in the Clothes of the Victim Girl – P.W.1
raises serious doubts on the prosecution case. Drawing the attention of the
Court to the evidence of P.W.3 – Mother of P.W.1, where she has admitted that
there had been Blood Stain on the Clothes of P.W.1, it is urged that
non-detection of Blood Stain or Semen during Chemical Analysis seriously
undermines the prosecution case. The main contention urged is that the trial
Court erred in acting on the evidence of P.Ws.1 and 2 who are susceptible for
tutoring and that due to the family dispute, a false case has been foisted
against the accused, which defence was not properly appreciated by the trial
Court.
12. Submitting that the evidence of P.W.1 is trustworthy
which is amply strengthened by the Medical Evidence, Mr.V.M.R.Rajendran,
learned Additional Public Prosecutor has contended that the trial Court has
rightly accepted the version of P.W.1 which is strengthened by the version of
P.Ws.2 and 3. Drawing the attention of the Court to the evidence of P.W.2,
who has seen the accused taking away P.W.1, he has further submitted that
P.Ws.1 and 2, aged about 10-12 years have no reason to falsely implicate the
accused. Drawing the attention of the Court to Ex.P.10 – Certificate of
Examination for Sexual Offence relating to P.W.1 as per which Rupture of Hymen
was noted proving that P.W.1 was subjected to forcible Sexual Intercourse,
learned Additional Public Prosecutor submitted that the conviction of the
trial Court is well balanced and that there is no reason warranting
interference.
13. 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.1 and whether the conviction
of the Appellant / Accused under S.376 (2)(f) I.P.C. warrants any
interference ?
14. P.W.1 – Srimathi, aged 10-12 Years at the time of
occurrence, was studying in VI Standard. On the date of occurrence –
14.08.1998 – 5.00 p.m., P.W.1 along with her younger sister Deepalakshmi and
P. W.2 – Chitra went to Thailathope for plucking flowers. At that time, the
accused told her that he would cut Palm Fruits and he had taken her to the
nearby Palm-grove. Believing his words, when P.W.1 followed him, the accused
removed his Trousers and made P.W.1 to lie down and the accused laid upon her.
When P.W.1 shouted, the accused beat her and had Sexual Intercourse. P.W.1
cried raising the alarm ” fhg; ghj;J’;f fhg;ghj;J’;f “. In the meantime,
P.W.3 (Shanthi) – mother of P.W.1, P.W.2 – Chitra and younger sister of P.W.1
– Deepalakshmi came in search of P.W.1. On hearing the alarm raised by P.W.1,
they rushed to the place. On seeing them, the accused had run away. P.W.1
has narrated about the act of the accused to her mother – P.W.3. P.W.1 has
clearly narrated the occurrence in the Court. Evidence of an young girl like
P.W.1 is to be tested for its credibility and reliability.
15. In the trial Court, before giving evidence, P.W.1 has
been examined as to whether she is of understanding and know of things. The
learned Assistant Sessions Judge, who had the opportunity of seeing and
observing her, found her to be of clear understanding and accepted her version
as credible. No substantial grounds are made out to take a different view.
16. At the time of occurrence – 14.08.1998 – 5.00 p.m., P.W.2
– Chitra went along with P.W.1 – Srimathi for plucking flowers. P.W.2 has
also clearly spoken about the act of the accused in taking P.W.1 to an
isolated place – palm-grove and that P.W.2 has informed the same to P.W.3 –
mother of P.W.1. Thereafter, P.Ws.2 and 3 went in search of P.W.1, who heard
the noise of P.W.1 – Srimathi ” fhg;ghj;J’;f fhg;ghj;J’;f “. On seeing them,
the accused had run away. P.W.1 informed them about the Sexual Molestation
and the Intercourse committed on her by the accused. P.W.2 – Chitra, who went
along with P.W.1 has clearly stated that the accused had taken P.W.1 to an
isolated place. P.W.3 – mother of P.W.1 came in search of P.W.1. While
narrating the occurrence, P.W.2 has only stated ” … _kjp vd;dplk; te;J
r’;fh; vd;id bfLj;Jtpl;lhh; vd;W brhd;dJ/ bfLj;Jtpl;lhh; vd;W jhd; brhd;dJ/
ntW vJt[k; brhy;ytpy;iy … “. Though according to P.W.2, P.W.1 has not
narrated the entire occurrence, but has only stated that she had been Sexually
Molested by the accused, such statement does not in any way undermine the
credibility the P.W.1.
17. Evidence of P.W.3 (Shanthi) – mother of P.W.1 assumes
greater significance. Finding that P.W.1 has not returned back to the house,
quite probably P.W.3 went in search of P.W.1 and that she was informed by
P.W.1 about the act of the accused in committing Rape on her. Evidence of
P.W.3 is cogent and corroborating the evidence of P.W.1. This Court finds
that the evidence of P.W.1 is well corroborated by the evidence of P.Ws.2 and
3.
18. In her evidence, P.W.3 – mother of P.W.1 has stated that
Blood Stain was found in M.O.1 series – clothes of P.W.1 (which were seized
under Ex.P.2 – Seizure Mahazar in the presence of P.W.4 – Shanmugam and one
Kannan). In his evidence, P.W.4 has stated that he has not seen any Blood
Stains on M.O.1 series. M.O.1 series was sent for Chemical Analysis. During
Chemical Analysis, no Blood Stain or Semen was detected. The inconsistency in
the evidence of P.W.3 and nondetection of Blood Stain or Semen in M.O.1 series
is very much relied upon by the Appellant / Accused to assail the prosecution
case and the version of P.W.1. This contention has no force. Either P.W.3
might have mistaken the Stains on the Skirt for Blood Stains or the Blood
Stains might have been disintegrated during Chemical Analysis. Nondetection
of Blood Stains or Semen in the Clothes of P.W.1 would not in any way affect
the prosecution case or the credibility of P.W.3.
19. Evidence of P.W.1 – Srimathi is amply corroborated by the
Medical Evidence. After registration of the case in Crime No.295 of 1998 ,
P.W.1 was referred to Chengleput Medical College Hospital for Medical
Examination. P.W.7 – Dr.Gururaj, Radiologist has examined her and found her
to be of age 10-12 Years (Ex.P.9 – Age Certificate). Keeping the age of P.W.1
in mind, the Medical Evidence of P.W.6 – Dr. Tahirunnisa, attached to
Madhuranthakam Hospital is to be considered. P.W.6 has examined P.W.1 on the
night of 14.08.1998 – 8.50 p.m. On examination, she has noted ” Pain in the
Vagina; Linear Abrasion over the right lebia (N.C.) present about 1 cm in
length “. P.W.6 has clearly asserted that those injuries could not have been
caused either by climbing the tree or by any accidental insertion of a stick
into the private parts of P.W.1. The definite opinion evidence of P.W.6 is a
strong piece of evidence strengthening the prosecution case.
20. P.W.1 was again sent to Chengleput Medical College
Hospital for further investigation, where she was examined by P.W.8 – Dr.
Parasakthi, who has issued Ex.P.10 – Certificate of Examination for Sexual
Offences. On examination of P.W.1, P.W.8 has noted ” Vagina admits one finger
with tenderness; Hymen absent; Tears seen at 5 and 7’o clock position;
surrounding areas found reddish, swelling and tenderness seen “. Absence of
Hymen and Tear seen at Vulva are the strong pieces of evidence that P.W.1 was
subjected to Sexual Intercourse. The definite opinion of P.W.8 that ” Hymen
Absent ” and ” Vagina Admitted one finger with tenderness” should be not
possible by climbing the tree or by accidental insertion of a stick goes along
with the definite findings by P.W.6 supporting the prosecution case.
21. The accused was arrested on 14.08.1998 – 10.30 p.m. near
Polappakkam Leprosy Hospital. He was brought to Chithamor Police Station at
11.00 p.m. He was interrogated in the presence of P.W.5 – Rajamani and one
Bakthavatchalam and his statement was recorded. Clothes of the accused –
M.O.2 series (T.Shirt, Lungi and Trouser) were seized under Ex.P.4 – Seizure
Mahazar in the presence of same witnesses. Since the accused was found to
have sustained injuries, he was referred to Madhuranthakam Government Hospital
for treatment. P.W.6 – Dr. Tahirunnisa has examined the accused at 12.00
midnight on the night of 1 4.08.1998. P.W.6 has noted contusion on the left
eye of the accused. In Ex.P.7 – Wound Certificate of the accused, P.W.6 has
not noted as to who has brought the accused to the Hospital for treatment.
The Column ” accompanied by ” is left blank. When P.W.6 was questioned about
the same, she has stated that there was no requisition from the Police and
that the accused had voluntarily appeared before her. Ex.P.7 – Wound
Certificate is also silent as to who has brought the accused to the Hospital.
Statement of P.W.6 that the accused had voluntarily appeared before her could
only be due to mistake. The arrest of the accused and his interrogation in
the Police Station before the witnesses is clearly brought out on record.
When that being so, the statement of P.W.6 that the accused had voluntarily
appeared before her would not in any way undermine the prosecution case.
22. Blood Stained Clothes of P.W.1 – M.O.1 series (Skirt and
Shirt) were sent for Chemical Analysis. During Chemical Examination, no Human
Blood or no Semen was detected on the clothes of P.W.1. Learned counsel for
the Appellant / Accused has seriously attacked the prosecution case on the
ground of non-detection of Blood Stain or Semen in M.O.1 series. Absence of
Semen or Blood Stain does not throw doubt on the prosecution case; perhaps at
the time of committing Rape, there was no ejection of Semen from the accused
or blood coming out from the private parts of P.W.1. At this juncture, we may
point out the evidence of P.W.7 – Dr.Gururaj. On examination of the accused,
P.W.7 has found the accused to be ” a Well-built male individual; his
Secondary Sexual Characters are well developed; Erection – positive”. P.W.7
has further opined that ” there is nothing to suggest that the accused is
impotent; his Genital organ was found to be normal “. Opinion evidence that
the accused was not incapable of performing sexual act is yet another piece of
evidence in support of the prosecution case.
23. On the basis of Ex.P.1 – Complaint, case in Crime No.295
of 19 98 of Chithamor Police Station has been registered under Ss.376 and 5 11
I.P.C. at 7.00 p.m. on 14.08.1998. (Printed First Information Report not
marked). The First Information Report was received into Court only on
15.08.1998. The distance between the Court and the Police Station is said to
be only 10 kms. The First Information Report and Ex.P.1 – Complaint were
received in the Court on 15.08.1998. Since the First Information Report is
not marked, the time of receipt of Ex. P.1 and First Information Report in
the Court is not known. From Ex. P.1, it comes to be known that the First
Information Report was registered at 7.00 p.m. on 14.08.1998. After
registration of the First Information Report, despatch of the same to the
Court is the work of the Investigating Agency. Evidence of P.W.1 cannot be
thrown away for such lapses or delayed sending of the First Information Report
by the Police Officer. Likewise, the contention urged in the delay in sending
the statements of the witnesses, which were received in the Court only on
01.10.1999 has no force. Such delayed receipt of the statements cannot go in
advantage of the accused.
24. Faced with the definite evidence of P.W.1 and Medical
Evidence, we may consider as to what is the defence. According to the
accused, he belongs to Madras and that a false case has been foisted against
him due to the family dispute between his family and the family of P.W.1. The
defence version that a false case has been foisted against the accused does
not impress this court for more than one reason. Medical Evidence definitely
shows the sexual violence committed on P. W.1. Further P.W.1 was aged only
10-12 years and a tender girl of young age. If any false complaint is to be
lodged against the accused making allegations of Rape being committed on such
young girl, her future would be at Stake. She has to face the scoff of the
Villagers and the place of her study and other places. In consideration of
the tender age of P.W.1, coupled with Medical Evidence, the defence version
that a false case has been foisted has no force.
25. The various points urged by the Appellant / Accused were
well considered by the trial Court. The learned Assistant Sessions Judge, who
had the opportunity of seeing and observing P.W.1 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 Tender age of P.W.1
and the facts and circumstances of the case, the period of sentence of
Rigorous Imprisonment of Ten Years also cannot be said to be unreasonable or
harsh.
26. Therefore, the Judgment of the Assistant Sessions Judge,
Madhuranthakam in S.C.No.325 of 2001 (dated:17.12.2002) convicting the
Appellant / Accused under S.376 (2) (f) 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 Assistant Sessions Judge,
Madhuranthakam.
2. The Principal Sessions Judge,
Chengleput.
3. The Inspector of Police,
Chithamor Police Station,
Chengleput District.
4. The Public Prosecutor,
High Court, Madras.