{"id":119085,"date":"2004-11-05T00:00:00","date_gmt":"2004-11-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vetrivel-vs-the-state-on-5-november-2004-2"},"modified":"2018-04-01T07:05:44","modified_gmt":"2018-04-01T01:35:44","slug":"vetrivel-vs-the-state-on-5-november-2004-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vetrivel-vs-the-state-on-5-november-2004-2","title":{"rendered":"Vetrivel vs The State on 5 November, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Vetrivel vs The State on 5 November, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 05\/11\/2004\n\nCORAM\n\nTHE HONOURABLE MRS. JUSTICE R.BANUMATHI\n\nCRL.APPEAL No.301 of 2003\n\nVetrivel                       ...  Appellant \/\n                                        Accused.\n\n-Vs-\n\n\nThe State, rep. By the\nStation House Officer,\nValavanur,                                      ...  Respondent \/\nVillupuram District.                            Complainant\n\n\n                This  Criminal  Appeal  arises  out  of  the  Judgment   dated\n07.02.2003  made  in  S.C.No.170  of  2002 on the file of Additional Assistant\nSessions Judge, Villupuram.\n\n!For Appellant  :  Mr.  M.V.Karunakaran.\n\n^For Respondent :  Mr.V.M.R.Rajendran,\n                Additional Public Prosecutor.\n\n:J U D G M E N T\n<\/pre>\n
                Appellant is the Accused in S.C.No.170 of 2002 on the file  of
\nII Additional  Assistant  Sessions  Judge,  Villupuram.  By the Judgment dated
\n07.02.2003,  the  II  Additional  Assistant  Sessions  Judge,  Villupuram  has
\nconvicted the Appellant  \/  Accused  for the offence under S.376 I.  P.C.  and
\nsentenced him to undergo Rigorous Imprisonment for a period of Ten  Years  and
\nalso  imposed  fine of Rs.5,000\/-; in default to undergo Rigorous Imprisonment
\nfor a further period of three months.\n<\/p>\n
                2.  P.W.2 – Vijayalakshmi is the daughter of P.W.1  (Karpagam)
\nand P.W.3  (Pavadai).   Case of prosecution is that P.W.2 – Vijayalakshymi was
\naged 16-18 years at the time of occurrence.  On 19.11.2001 – 2.30 – 3.00 p.m.,
\nP.W.2 was grazing the Cattle near Kalinchikuppam.  At that time,  the  accused
\nclosed  her mouth and had forcibly taken her to the nearby Sugarcane filed and
\nhad Sexual Intercourse with her and thereby committed Rape on her.    P.W.2  –
\nVijayalakshmi complained the act of the accused to her father P.W.3 – Pavadai.\n<\/p>\n
                3.  Registration  of case and Investigation.  P.W.1 (Karpagam)\n<\/p>\n
– mother of P.W.2  went  to  Valavanur  Police  Station  along  with  P.W.4  –
\nAzhagunathan  (Uncle  of P.W.2) and lodged Ex.P.1 – Complaint on 21.11.20 01 –
\n9.00 a.m.  On the basis of Ex.P.1 – Complaint, P.W.9 – Sub Inspector of Police
\nhad registered the case in Crime No.654 of 2001  under  S.376  I.P.C.    under
\nEx.P.7 – First Information Report.  Clothes of P.  W.2 – Vijayalakshmi (M.Os.1
\nto 3)  were  seized  under  Ex.P.2  –  Form  95.  P.W.2 was sent to Villupuram
\nGovernment  Hospital  through  P.W.5  –  Woman  Head  Constable  for   Medical
\nExamination.\n<\/p>\n
                4.   P.W.6  – Dr.Padmini has examined P.W.2 – Vijayalakshmi on
\n23.11.2001 – 12.30 p.m.  She has noted Abrasions in the Right  side  of  upper
\nlip; Upper arm; Left knee and in the Middle of Chest in between two Clavicles.
\nOn Internal examination:- Hymen was found ruptured; Hymenal admits two fingers
\neasily.  P.W.6 opined that P.W.2 is fit for Intercourse (torn).  She was found
\nto be the age of 16 to 18 years, P.W.6 issued Ex.P.4 – Accident Register.\n<\/p>\n
                5.    P.W.12   –   Inspector   of  Police  had  taken  up  the
\ninvestigation.  Scene of occurrence – Sugarcane Field  was  inspected  in  the
\npresence of P.W.4 – Azhagunathan and one Ramesh.  Ex.P.3 – Observation Mahazar
\nand Ex.P.12  – Rough Plan were prepared on the scene of occurrence.  Witnesses
\nwere examined and their Statements were recorded.  On information, the accused
\nwas arrested on 20.12.2001 – 1.00 p.m.  in Panruti Main Road and was  remanded
\nto Judicial  Custody.    Along  with  requisition,  the  accused  was  sent to
\nVillupuram Government Hospital for  Medical  Examination  to  know  about  his
\npotency.\n<\/p>\n
                6.   P.W.7  –  Dr.Sanakaran Murthy has examined the accused on
\n09.01.2 02 – 12.00 Noon.  Opining the age of the accused as Thirty  years  and
\nopining  that  there  is nothing to suggest that the accused is not capable of
\nperforming sex act, P.W.7 issued Ex.P.5 – Potency Certificate and Ex.P.6 – Age
\nCertificate.\n<\/p>\n
                7.  Seized Material Objects were sent for  Chemical  Analysis.
\nOn  receipt  of  the Chemical Report and on completion of material part of the
\ninvestigation, Charge Sheet was filed against the accused under S.3 76  I.P.C.
\non 23.04.2002.\n<\/p>\n
                8.  In the trial Court, to substantiate the Charge against the
\naccused, prosecution  has examined P.Ws.1 to 12.  Exs.P.1 to P.12 were marked.
\nM.Os.1 to 3 were remanded to Court.  The  accused  was  questioned  about  the
\nincriminating evidence  and circumstances under S.313 Crl.P.C.  Denying all of
\nthem, the accused stated that a false case has been foisted against him.\n<\/p>\n
                9.  In consideration of the evidence, the  learned  Additional
\nAssistant  Sessions  Judge  found  that the delay in lodging the Complaint and
\nRegistration of the First Information Report would not in any way  affect  the
\nprosecution case.    The  learned  trial Judge was also of the view that it is
\nquite probable that P.W.2 and her family members might  have  waited  for  the
\nintervention  of  the  Village  Panchayatdars  since  lodging of the Complaint
\ninvolves the reputation of the family.  The trial Court accepted the  evidence
\nof P.W.2,  which  is  corroborated  by  Medical Evidence, as credible.  In its
\nview, non-examination of Eye Witness – Chandra would not  fatally  affect  the
\nprosecution case.    The  defence  version  that a false case has been foisted
\nagainst the accused at the instance of P.W.4 – Azhagunathan  was  rejected  by
\nthe trial  Court.  Finding that the accused had committed Rape upon P.W.2, the
\ntrial Court convicted  the  Appellant  \/  Accused  under  S.376  I.P.C.    and
\nsentenced  him to undergo Ten Years Rigorous Imprisonment as aforesaid in Para
\n(1).\n<\/p>\n
                10.  Aggrieved over the conviction, Appellant  \/  Accused  has
\npreferred this  appeal.  Laying emphasis upon the absence of External Injuries
\non the private parts of P.W.2, the learned counsel for the Appellant \/ Accused
\ninteralia contended that the evidence  of  P.W.2  is  unsupported  by  Medical
\nEvidence.   Prosecution case is assailed on the ground that though one Chandra
\nwas stated as Eye Witness and examined during the investigation, she  was  not
\nexamined  during  trial and nonexamination of Eye Witness – Chandra during the
\ntrial fatally affects the prosecution case.  Learned counsel has further urged
\nthat the trial Court erred in accepting the contention of the prosecution that
\nEye Witness Chandra would have been gained over by the accused.    Prosecution
\ncase  is  mainly assailed on the ground of inordinate delay of nearly 43 hours
\nin lodging the Complaint.  It is submitted that due to Communal Rivalry, P.W.4\n<\/p>\n
– Azhagunathan, Uncle of P.W.2 is inimical towards the  accused  and  a  false
\ncase  has  been  foisted  against  the accused, which defence was not properly
\nappreciated by the trial Court.\n<\/p>\n
                11.  Submitting that the evidence  of  P.W.2  is  trustworthy,
\nwhich  is  amply  strengthened  by  the  Medical Evidence, Mr.V.M.R.Rajendran,
\nlearned Additional Public  Prosecutor  contended  that  the  trial  Court  has
\nrightly believed  the version of P.W.2.  It is further submitted that in cases
\nof Rape, where the reputation of the family is involved, the delay in  lodging
\nthe Complaint  would  not in any way affect the prosecution case.  Drawing the
\nattention of the Court to Ex.P.4 – Accident Register, the  learned  Additional
\nPublic  Prosecutor  has  submitted that the abrasions and the rupture of Hymen
\nwould clearly prove that P.W.2 was subjected to  forcible  Sexual  Intercourse
\nand  that  the  conviction  is  well  balanced  and  that  there  is no reason
\nwarranting interference.\n<\/p>\n
                12.  Upon consideration of  the  submissions  by  both  sides,
\nevidence  and  materials  on  record  and the Judgment of the trial Court, the
\npoint arises for consideration is:- Whether the Appellant \/ Accused is  proved
\nto  have  committed Rape on the victim girl – P.W.2 and whether the conviction
\nof the Appellant \/ Accused under S.376 I.P.C.  warrants any interference ?\n<\/p>\n
                13.   Prosecution  mainly  relies  on  the  evidence  of   the
\nProsecutrix –  P.W.2 (Vijayalakshmi).  P.W.2 aged 16-18 years, living with her
\nparents, is an unmarried girl.  On 19.11.2001 – 2.30  –  3.00  p.m.,  she  was
\ngrazing the Cattle, near Kalinchikuppam.  At that time, the accused closed her
\nmouth  and had forcibly taken her to the nearby Sugarcane Field and had Sexual
\nIntercourse with her and thereby committed Rape on her.  P.W.2 – Vijayalakshmi
\nhas cogently narrated the Rape committed on her by the accused.  The scene  of
\noccurrence  –  Sugarcane  Field  belongs  to  one  Hariraman, which is clearly
\nindicated in Ex.P.12 – Rough Plan.  Evidence of P.W.2 is to be tested for  his
\ntrustworthiness and reliability.\n<\/p>\n
                14.   P.W.2  –  Vijayalakshmi  has  stated that at the time of
\noccurrence, one Chandra was also grassing the Cattle in the nearby field.  The
\nsaid Chandra was examined during investigation; but she was  not  examined  by
\nthe prosecution  during  trial.    Evidence of P.W.2 is mainly attacked on the
\nground of failure to examine the Eye Witness – Chandra.  The said Chandra  was
\nnot examined  on  the ground that she had been gained over by the accused.  On
\nthe ground of non-examination of Chandra, case of prosecution and the  version
\nof P.W.2 cannot be doubted.\n<\/p>\n
                15.   The  main  contention  urged  by the accused is that the
\nevidence of P.W.2 is not at all supported by  Medical  Evidence.    P.W.2  was
\nfound to  be  aged  16-18  years.    She was medically examined by P.W.6 – Dr.
\nPadmini on 23.11.2001 – 12.30 p.m.  P.W.6 has noted  Abrasions  in  the  Right
\nside  of upper lip; Upper arm; Left knee and in the Middle of Chest in between
\ntwo Clavicles.  On Internal examination:- Hymen was  found  ruptured;  Hymenal
\nadmits two  fingers  easily.    For  an  unmarried girl of aged 16 – 18 years,
\nRupture of Hymen and Hymenal admitting two fingers easily are strong pieces of
\nMedical Evidence that she had been subjected to forcible  Sexual  Intercourse.
\nThe  contention urged by the Appellant \/ Accused that the evidence of P.W.2 is
\nnot supported by Medical Evidence has no force.\n<\/p>\n
                16.  During Medical Examination of P.W.2,  External  genitalia
\nwas  found  to  be  normal;  No  blood or Semen was noted over the body or the
\nclothes.  The main point urged by the Appellant \/ Accused is that the  absence
\nof  External  Injuries  on the private parts of P.W.2 – External Genitalia was
\nfound to be normal, disproves  the  prosecution  case  that  the  accused  had
\ncommitted Rape on her.  It is the further contention that P.W.4 – Azhagunathan
\nhas  illicit  relationship  with  P.W.2  and  in that way P.W.2 must have been
\naccustomed to Sexual Intercourse and that a false case is foisted against  the
\naccused.   It  is  not  as  if  there  had  been  total absence of injuries as
\ncontended by the accused.  As noted earlier, Abrasions were noted in the Right
\nside of upper lip; Upper arm; Left knee and in the Middle of Chest in  between
\ntwo Clavicles.    Hence  evidence of P.W.2 cannot be disbelieved on the ground
\nthat the External Genitalia was found to be normal.   The  occurrence  was  on
\n19.11.2001.   P.W.2 – Vijayalakshmi was medically examined only on 23.11.2001,
\nnearly after four days, during which time the External  Genitalia  might  have
\nbecome  normal;  or perhaps being frightened in the fear of the accused, P.W.2
\nhad not offered much resistance.  Merely because External Genitalia was  found
\nto  be  normal  and  the  absence  of other external injuries on the person of
\nP.W.2, the evidence of P.W.2 cannot be disbelieved.\n<\/p>\n
                17.  The occurrence was on  19.11.2001  –  2.30  –  3.00  p.m.
\nP.W.1  (  Karpagam)  – mother of P.W.2 has preferred the Complaint (Ex.P.1) on
\n21.11.2001 – 9.00 a.m., on the basis of which P.W.9 –  S.I.    of  Police  has
\nregistered  the case in Crime No.654 of 2001 of Valavanur Police Station under
\nEx.P.7 – First Information Report.  Case of prosecution is mainly attacked  on
\nthe  ground  of  delay  in  filing the Complaint and Registration of the case.
\nOnbehalf of the accused, it is submitted that the  family  of  P.W.2  and  the
\nPolice  were  only  gaining time to make false accusation against the accused.
\nThis contention has no force.  P.W.1 – Karpagam has explained the  reason  for
\nthe  delay  in  lodging the Complaint stating that they had informed about the
\noccurrence to the Village Panchayatdars and waited  for  their  Mediation  and
\nintervention.  Before approaching the Police, quite probably, the family of P.
\nW.2   might  have  waited  for  Mediation  and  Intervention  of  the  Village
\nPanchayatdars.  P.W.4 – Azhagunathan has written Ex.P.1 –  Complaint  and  has
\naccompanied P.W.1  to  Valavanur  Police  Station.    Merely because P.W.4 has
\naccompanied P.W.1, the contention of the Appellant \/ Accused that a false case
\nhas been foisted against the accused  at  the  instance  of  P.W.4  cannot  be
\naccepted.\n<\/p>\n
                18.   Unlike  in  other cases, in Rape cases, delay in lodging
\nthe First Information Report cannot be urged  as  a  point  for  doubting  the
\nprosecution case  and  discarding  the same on the ground of delay.  More than
\none reason could be pointed out for the delay in lodging the Complaint.  P.W.2
\nwas aged about 16-18 years and unmarried.  If any police complaint  is  to  be
\nlodged  making allegations of Rape being committed on her, her future would be
\nat stake.  That apart, she has to face the tauntings of the Villagers that she
\nhad been subjected to Sexual Violence at the instance of the accused.  In that
\ncircumstance, quite naturally, there would have been reluctance on the part of
\nthe family of P.W.2 to report about the occurrence to the Police.  Evidence of
\nP.W.2 and prosecution case cannot be doubted merely on the ground of delay  in
\nlodging the  First  Information  Report.    The  learned  Additional Assistant
\nSessions Judge has rightly found that the delay in lodging the Complaint would
\nnot affect the prosecution case and the same is to be endorsed with.\n<\/p>\n
                19.  The prosecution case is also attacked on the ground  that
\na false case has been foisted at the instance of P.W.4 – Azhagunathan.  At the
\ntime of occurrence, there had been incidents of Communal Rioting in and around
\nthe area.  The family of P.W.2 and P.W.4 are Caste Hindus; the accused belongs
\nto Schedule  Caste.    A  Criminal  Case  is pending against P.W.4 for alleged
\nviolation of Scheduled Castes and Scheduled Tribes (Prevention of  Atrocities)
\nAct.   It  is contended that since P.W.4 is facing trial in that case, a false
\ncase is foisted against the accused to pressurise him to  settle  the  matter.
\nThis contention  is  totally unsupported by any material.  The accused himself
\nhad not set forth any such plea even during questioning under  S.313  Crl.P.C.
\nNo  previous  enmity  between the family of P.W.2 and the accused; likewise no
\nprevious enmity between the accused and P.W.4  –  Azhagunathan  is  made  out.
\nWhen  that  being  so,  there  is  no  reason for lodging the Complaint making
\nallegations of Rape against the accused.  It is  highly  improbable  that  the
\nfamily of P.W.2 would have gone to the extent of foisting a false case of Rape
\nagainst the accused risking the future of P.W.2.\n<\/p>\n
                20.   Blood  Stained  Clothes  of  P.W.2 viz., M.O.1 – Blouse,
\nM.O.2 – Skirt and M.O.3 – In-skirt, were sent for Chemical Analysis.    During
\nexamination,  Human  Blood was detected but no Semen was detected on the above
\nclothes of P.W.2.  Learned counsel for the Appellant \/  Accused  attacked  the
\nprosecution  case on the ground of non-detection of Semen and Stains in M.Os.1
\nto 3.  Absence of Semen and Stains does not throw  doubt  on  the  prosecution
\ncase.  Perhaps at the time of committing Rape, there was only penetration with
\nno ejection.    It is to be noted that after arrest, the accused was medically
\nexamined on 09.01.2002 .  He was found to be 30 Years of age.  On  examination
\nof  the  accused, P.W.7 – Dr.Sankara Murthy has found that there is nothing to
\nsuggest that the accused is not capable of  performing  the  Sexual  act;  His
\nGenital Organs  were found to be normal.  Under such circumstances, absence of
\nSemen and Stains on the clothes of P.W.2 would not affect the  credibility  of
\nP.W.2.\n<\/p>\n
                21.   The various points urged by the Appellant \/ Accused were
\nwell considered by the trial Court.  The learned Additional Assistant Sessions
\nJudge, who had the opportunity of seeing and observing P.W.2 has accepted  her
\nevidence which  is corroborated by the Medical Evidence as credible.  There is
\nno apparent error in the appreciation of evidence by the  trial  Court.    The
\nreasonings  for conviction are well balanced based upon the evidence on record
\nand the  conviction  is  to  be  sustained.    Considering   the   facts   and
\ncircumstances  of the case, the period of sentence of Rigorous Imprisonment of
\nTen Years also cannot be said to unreasonable or harsh.\n<\/p>\n
                22.  Therefore, the Judgment of the  II  Additional  Assistant
\nSessions Judge, Villupuram in S.C.No.170 of 2002 (dated 07.02.2003) convicting
\nthe Appellant  \/  Accused  under  S.376  I.P.C.   and the sentence of Rigorous
\nImprisonment of Ten Years and the quantum  of  fine  are  confirmed  and  this
\nappeal is dismissed.\n<\/p>\n
Index:  Yes<\/p>\n
Internet:  Yes<\/p>\n
sbi
\nTo<\/p>\n
1.  The II Additional Assistant
\nSessions Judge, Villupuram.\n<\/p>\n
2.  The Sessions Judge,
\nVillupuram.\n<\/p>\n
3.  The Superintendent of Police,
\nCentral Prison, Cuddalore.\n<\/p>\n
4.  The Inspector of Police,
\nValavanur Police Station,
\nVillupuram.\n<\/p>\n
5.  The Public Prosecutor,
\nHigh Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Vetrivel vs The State on 5 November, 2004 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-119085","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVetrivel vs The State on 5 November, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vetrivel-vs-the-state-on-5-november-2004-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vetrivel vs The State on 5 November, 2004 - 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