Madras High Court
George vs State By Inspector Of Police on 2 July, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 02 / 07 / 2012
Coram
THE HON'BLE MR.JUSTICE C.S.KARNAN
Crl.R.C.No.1052 of 2009
George .. Petitioner
Vs.
State by Inspector of Police,
All Women Police Station,
Udhagamandalam.
(Crime No.3 of 2005) .. Respondent
Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to set-aside the conviction and sentence imposed on the petitioner dated 08.02.2007 made in S.C.No.62 of 2006, on the file of Assistant Sessions Judge, Udhagamandalam and the same was confirmed by Sessions Judge of Nilgiris at Udhagamandalam in his judgment made in C.A.No.2 of 2007, dated 23.04.2007.
For Petitioner : Mr.S.Divakar
For Respondent : Mr.C.Balasubramanian
Additional Public Prosecutor
- - -
ORDER
The short facts of the prosecution case are as follows:-
The P.W.1, viz., Vaijayanthi is the wife of P.W.4., Jerald. Their daughter is P.W.3, the prosecutrix. P.W.3 was aged about 9 years and studying in IV standard. P.W.5., Pushparani is the wife of one Alphonse, who died on 05.01.2005. Alphonse is the brother of P.W.4, Jerald. Their sister is P.W.7., Shanthi. Her daughter is P.W.6, Preethi. P.W.2 is the daughter of P.W.5, Pushparani. On the night of 12.02.2005, they assembled in the house of P.W.5, Pushparani to observe Alphonse's 40th day death ceremony. P.W.2, P.W.3 and the other children were taken to the house of the accused viz., George, to sleep. Totally, 7 children, including P.W.2 and P.W.3 were sleeping in a room in the house of the accused. The accused slept next to P.W.3. The accused, during the night, pressed his sexual organ on P.W.3's sexual organ. P.W.3 moved towards P.W.2, but the accused had again pressed his sexual organ on hers. Then P.W.2 and P.W.3 started weeping. The accused gave P.W.2 biscuits. In the morning when P.W.3 went to bathroom, she found that blood was oozing from her private part and she removed her undergarments. Subsequently, she narrated the incident to P.W.6, Preethi on Sunday, on their way to Church. On Monday, P.W.3 was taking rest due to pain. P.W.6, Preethi visited P.W.3 and P.W.3 informed to P.W.6 of the occurrence. She in turn narrated the incident to P.W.1. P.W.4, Jerald, husband of P.W.1, Vaijaynathi returned to the house at 9 p.m., in the evening. He enquired as to what had happened. Then, his wife P.W.1, Vaijayanthi disclosed the said incident to her husband, Jerald. Thereafter, they decided to prefer a complaint to the police station. They went to the police station and P.W.1, Vaijayanthi had lodged a complaint on 14.02.2005 at about 10 p.m. The complaint was marked as Ex.P1. The victim also went along with them. P.W.13, Sharfunissa, the then Sub-Inspectress of Police received the said complaint and registered a case thereon in Crime No.3 of 2005, for the offence under Section 376 and 377 I.P.C. The Ex.P10 is the First Information Report, which had been submitted before the Inspectress of Police.
2. P.W.16, viz., Vasanthamani, the then Inspectress of Police, who was attached to the All Women Wing Police Station took up the investigation. She had visited the scene of occurrence and had recovered the petticoat and skirt of P.W.3, which are material objects. She recovered the silk jacket, skirt and underwear of P.W.2., i.e., (M.O.1 series) under form 95. She visited the scene of occurrence and prepared Ex.P2-observation mahazar and Ex.P18-rough sketch in the presence of P.W.9, Chandran. P.W.16, the Investigation Officer viz., Vasanthamani, the Inspectress of Police, All Women Wing Police Station, arrested the accused on 15.02.2005 at 11.30 a.m., and recorded his confession in the presence of P.W.12, viz., N.Bheeman, the Village Administrative Officer. Ex.P8 is the admissible portion of the confessional statement. She had recovered the pant, shirt of the accused under the cover of Mahazar Ex.P9, in the presence of the above said witnesses.
3. P.W.16, the Investigation Officer also sent requisition, which had been marked as Ex.P9, to the Court of Judicial Magistrate, Udhagamandalam, to cause the accused to be sent for medical examination. She also sent requisition marked as Ex.P20, to the Court of the Judicial Magistrate, Udhagamandalam to cause sending the victims P.W.2 and P.W.3 for medical examination. Accordingly, the requisitions were sent, under Exs.P5 and P13, to conduct medical examinations on 16.02.2005.
4. P.W.15, Dr.Jayalakshmi, the then Assistant Civil Surgeon, attached to the Government Hospital, Udhagamandalam, examined P.W.2 at about 9.15 a.m., and found no external injuries in breast, thigh and perineum. She also found that there was slight bleeding from her private part while doing internal examination. P.W.2 did not co-operate for examination of her pelvic region. Ex.P15, is the accident register issued by her.
5. P.W.15, Dr.Jayalakshmi also examined P.W.3, on the same day for confirming her age, radiologically. She opined that P.W.3 was aged above 13 years and below 14 years. Ex.P16 is the radiology report issued by P.W.15, Dr.Jayalakshmi.
6. P.W.14, Dr.Nirmala, the then Assistant Civil Surgeon, attached to the Government Hospital, Kothagiri, examined P.W.3. on 17.02.2005 at 10.15 a.m. She found that there were no external injuries, but found that her hymen was ruptured. Ex.P11 is the accident register issued by P.W.14, Dr.Nirmala. On the same day, P.W.14, Dr.Nirmala, examined P.W.2 and found that there were no external injuries over breast, but found that her hymen was ruptured. Ex.P12 is the accident register issued by her.
7. P.W.10, Dr.Chidambaram, Senior Civil Surgeon, who was attached to Government Hospital, Udhagamandalam had examined the accused on 25.02.2005 at about 12.30 hours. He found that the accused was potent. Ex.P3 is the "potency report" issued by P.W.10, Dr.Chidambaram. He had also collected the blood samples for the medical examination under Ex.P4.
8. P.W.13, the Sub-inspectress of Police gave Ex.P7 requisition to the Court of Judicial Magistrate, Nilgiri, to record the statement of P.W.1-Vaijayanthi, P.W.2, P.W.3 and P.W.4-Jerald, P.W.5-Pushparani, P.W6-Preethi.
9. P.W.11, Mr.G.Narayanan, the Judicial Magistrate, Kothagiri, recorded the statement of the above witnesses i.e., P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6. Ex.P6 is the statement of witnesses, which had been recorded under Section 164 Cr.P.C.
10. P.W.13, the Investigation Officer sent a requisition marked as Ex.P21 (series) to the Court of Judicial Magistrate, Udhagamandalam to cause sending the articles for chemical examination. Accordingly, Ex.P22 was sent by the Judicial Magistrate, Udhagamandalam. Ex.P23 is the series of chemical reports. Ex.P24 is the series of the Serologist report.
11. P.W.3, the Investigating Officer, had altered the case into one under Section 376 r/w 511 and 376 I.P.C. Ex.P25 is the alteration report. After completion of the investigation, the Investigation Officer laid the charge sheet against the accused before the Court.
12. The accused denied that he was guilty and no witness had been examined on his side.
13. On the side of the prosecution, 16 witnesses had been examined and 25 exhibits were marked and 3 M.Os were produced. 18.
14. On the side of the defence, no oral evidence, but three material objects viz., clothes of the accused were produced.
15. The P.W.1, Vaijayanthi had adduced evidence stating that she knows the accused, and there was a 40th day ceremonial function, regarding the death of the brother of her husband, in her house. As such she was compelled to leave the children at night, in the accused house. The wife of the accused had also made arrangements for the children to sleep in their house. The child of P.W.1 along with the other children were kept in the house of accused for their night time sleep. She further stated that on the very next day morning, her daughter P.W.3, Monisha had informed Preethi that the accused had inserted his penis into her vagina. Because of fear, the said Monisha did not sleep during the night. The accused had asked Monisha and other children to sleep. The next day morning, her daughter passed urine which was mixed with blood. She further stated that her daughter was having pain and she could not attend school. She further stated that her daughter was aged 9 years old and studying IV standard. On Monday night, at about 9 p.m., when her husband came to the house, she informed him about the incident. Thereafter, P.W.1 went to Police Station and lodged a complaint. It was also told by P.W.2, Jennifer that the accused had inserted his fingers into her vagina. P.W.3, Monisha daughter of P.W.1 is residing with her parents at Kandal. She further stated that during her uncle's 40th ceremony, she was sleeping in the house of the accused, and that adjoining to her, another boy Surya was lying on the bed. The accused removed the said Surya to another side and was lying near her. Then the accused inserted his penis into her vagina. At that time, she turned herself towards Jeniffer, P.W.2, who was lying next to her. She further stated that the accused had again and again inserted his penis into her vagina and moved up and down on either side. She further stated that she and P.W.2 woke up and started crying, for some time. Subsequently, they lay down on the bed. A biscuit was given by the accused to her. She further stated that P.W.3 informed to P.W.2, Jeniffer, on the way to Church that while passing urine, blood had also come mixed with it. P.W.6, Preethi told them that the occurrence should not be disclosed to anybody. As such, P.W.2, remained silent.
16. She further stated that one Usha enquired about the matter while they were conversing. Subsequently, P.W.2 and P.W.3 informed P.W.3's aunt Shanthi. Thereafter, P.W.3's mother and others went to police station.
17. P.W.4, father of P.W.3 had stated that his brother had expired for which the 40th day ceremony was performed. After that, he had returned to his house on Monday, and saw his wife crying. On enquiry, he came to know that his daughter had been raped by the accused and that the accused had also raped Jennifer. He further stated that the case had been filed at the police station.
18. P.W.5, Pushparani had adduced evidence which is corroborative with the evidence of P.W.4.
19. P.W.6, Selvi. Preethi stated that when she was going to Church along with P.W.3, Monisha, the victim P.W.3 informed her that she could not walk and revealed the incident. She further stated that on the evening of the next day, P.W.6, Preethi went to P.W.3's house. At that time, P.W.3 told her there was pain in her abdomen. P.W.7 has also deposed evidence corroborating the evidence of P.W.6. P.W.8, who was a hearsay witness had spoken about the incident.
20. P.W.13, Sub-Inspectress of Police had adduced evidence that on 14.02.2005, at about 10 a.m., P.W.1, Vaijayanthi came to the station and gave a complaint. The same was registered in Crime No.3 of 2005 under Sections 376 and 377 of I.P.C. The F.I.R. was marked as Ex.P10. Thereafter, the matter was taken up by the Inspectress, who was the Investigation Officer in the said case.
21. P.W.15, Dr.Jayalakshmi, a Medical Officer in Coimbatore Medical College Hospital had examined one Jennifer to ascertain her age. She further stated that after examination, she opined that she had completed 8 years of age and not 12 years. She had also issued certificate which was marked as Ex.P14 and accident report has been marked as Ex.P15. The P.W.2, Jennifer told her that she was molested by a known person in the night of 12.02.2005. The doctor further stated that there was no external injuries in the vagina of said Jennifer. The doctor further stated that the vagina was not examined as she did not co-operate as there was bleeding in the vagina. She also examined P.W.3-Monisha to ascertain her age and she opined that she completed 13 years of age and not completed age of 14 years. She had marked Ex.P16. The doctor further stated that the victim had told her that she was sexually molested by a known person on 12.02.2005, while she was sleeping.
22. P.W.14, Dr.Nirmala had adduced evidence stating that P.W.3 was sexually molested. There was no external injury in the body of Monisha but her hymen in vagina had been ruptured. There was no external pubic hair. The accident report copy was marked as Ex.P11, wherein it had been stated that she was subjected to have sexual intercourse with the accused. She had also examined P.W.2-Jennifer and found her hymen ruptured but no external injury and she had also been subjected to intercourse with the accused.
23. P.W.10, Dr.Chidambaranathan had examined the accused George. He had stated that the accused has the potency and no external injuries were found on his penis and sunnath had been done on the pelvis of the accused. Saliva, sperm and pubic hair were sent for examination.
24. P.W.11, Thiru.Narayanan, Judicial Magistrate had stated that he had collected statements from witnesses viz., Jennifer, Monisha, Vaijayanthi, Jerald, Pushparani and Preethi.
25. P.W.12, Mr.Bheeman, Village Administrative Officer had accompanied P.W.1 to the police station, to level a case. He further stated that the accused was arrested by P.W.16, the Investigation Officer and his statement was recorded in his presence.
26. P.W.16, Inspectress of All Women Wing Police Station, took the investigation. She further stated that she had gone to the scene of occurrence and prepared observation mahazar and rough sketch, which had been marked as Ex.P18. She further stated that she had collected statements from the accused. The accused was sent for medication examination. She further stated that the case was altered to Section 376 and 376 r/w 511 of I.P.C.
27. On considering the prosecution evidence and perusing the exhibits, the learned judge had viewed that the victims P.W.2 and P.W.3 viz., Jennifer and Monisha were subjected to have intercourse with the accused but that P.W.2 did not support the case of the prosecution and she had been treated as a hostile witness by the prosecution. Hence, the learned trial judge held that the victim girl P.W.3., Monisha alone was raped by the accused and that the guilt of the accused has been proved beyond doubt on the basis of evidence of P.W.1, P.W.3 to P.W.6, P.W.9 to P.W.16 and Exs.P1, P8 and P9. As such, the learned judge sentenced the accused to undergo rigorous imprisonment for seven years and imposed a fine of Rs.2,000/- in default, he was to undergo further rigorous imprisonment for six months. The remand period should be set off under Section 420 of Cr.P.C. He also observed that no case was made out under Section 376 r/w Section 511 of I.P.C., as to the overt tact of the minor Jennifer.
28. Against the conviction and sentence passed by the Assistant Sessions Judge, Udhagamandalam in S.C.No.62 of 2006, dated 08.02.2007, the accused has preferred an appeal in C.A.No.2 of 2007 on the file of Sessions Judge, Nilgiris at Udhagamandalam.
29. The learned appellate judge had an issue, viz., "Whether the conviction and sentence imposed on the accused are just and proper?"
30. The learned judge, after hearing the arguments of both sides and on perusing the impugned judgment of the trial Court, and on perusing the exhibits marked by the prosecution, held that the evidence of P.W.3 was corroborated by medical evidence. Further, P.W.3's evidence was convincing as to the occurrence of rape. A delay of two days had been caused in filing the F.I.R. However the learned judge held that this delay does not affect the prosecution case since P.W.1, as soon as she had received the information from her daughter had given the complaint. Therefore, the learned judge had dismissed the appeal and confirmed the trial Court's conviction and sentence.
31. Aggrieved by the dismissal of the said appeal, the revision has been filed by the accused.
32. The learned counsel for the revision petitioner / accused submits that the evidence of P.W.3, one of the victims as per prosecution case, was not supportive of the prosecution case. As such, the prosecution case has lost its foundation. As such, the subsequent proceedings are vitiated. P.W.2, had stated about the incident, while she was proceeding along with one Usha and Delci, to Church. However, the said Usha and Delci had not been examined. The learned counsel further submits that there were many other children who had slept in the same room along with the victims. As per prosecution case, there were no eyewitnesses. As an afterthought, the case was launched. P.W.3 stated that the accused had inserted his penis into her vagina. Subsequently, the same victim had stated that the accused had inserted his fingers into her vagina. As such there is inconsistency in the statement given by P.W.3. The learned counsel further submits that there are no external injuries as per doctor's evidence. The prosecution case was that P.W.2 and P.W.3 had been raped by the accused, in the night and that both the victims were weeping. It was also alleged that at that time, the accused gave biscuits and quietened them. However, this was not discussed before the trial Court. As per P.W.3's evidence, one boy Surya was sleeping next to her. The boy Surya was not examined regarding the stay of P.W.3 in the house of the accused. The said boy was the main witness. From P.W.1's evidence, it is clear that on the request made to the wife of accused, all of them stayed in the same shelter. No wife would permit her husband to do such a dastardly act. The learned counsel further submits that the accused has been put into prison and he has already been in prison for about six years. He is a coolie and breadwinner of his family.
33. The learned counsel for the State admits that the accused has been in prison for about five years and seven months. The learned counsel for the State further submits that the case was proved beyond doubt. Even though, P.W.2 had turned as a hostile witness, the other victim P.W.3 had narrated the entire facts. Her evidence and medical report and other circumstantial evidence are corroborative and clearly proved the guilt of the accused. P.W.3's hymen was ruptured. The same was confirmed by medical evidence. This is a sexual offence. So P.W.2 and P.W.3 are embarrassed in giving evidence due to fear and shame. Therefore, the victims had informed their parents about the said incident, after a delay of two days after experiencing pain and seeing their urine mixed with blood. Due to this, there was a delay in giving the information given to P.W.1. But no delay has been caused on the side of P.W.1 in filing the complaint.
34. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and on perusing the impugned judgment, this Court is of the considered view that the hymen of P.W.3, who was also one of the victim, was ruptured and the same was proved by her evidence as well as by doctors evidence. The stay of P.W.3 at the accused house in the relevant time was not denied by the accused. P.W.3, due to fear and shame had not disclosed the said occurrence of rape at once. After experiencing pain in her abdomen and after seeing her urine mixed with blood, she was forced to disclose the occurrence to a third person / friend, who had subsequently informed her parents. The prosecution had proved the case beyond doubt through relevant evidence and documentary exhibits. However, the accused is now suffering imprisonment in prison and he has been jailed for a period of about six years and he had also paid a fine of Rs.2,000/-. Therefore, this Court treats the punishment that had already been undergone is adequate punishment in the instant case. As such this Court waives the balance period of imprisonment imposed on the accused. Therefore, the accused is set free, forthwith, from the Central Prison, Coimbatore. As such, this Court directs the Registry to send a copy of this order to the Jail Superintendent, Coimbatore, by speed post, with acknowledgment due. As soon as the Jail Superintendent, Coimbatore receives this order, he shall arrange for release of the accused at once, unless the presence of the accused is required in any other case.
35. Resultantly, the above revision is disposed of with the above observation. Consequently, the judgment of conviction and sentence passed in C.A.No.2 of 2007, dated 23.04.2007, on the file of Sessions Judge of Nilgiris at Udhagamandalam, confirming the conviction and sentence passed in S.C.No.62 of 2006, on the file of Assistant Sessions Judge, Udhagamandalam, dated 08.02.2007, is modified. Accordingly ordered.
/ 07 / 2012
r n s
Index : Yes / No.
Internet : Yes / No.
C.S.KARNAN, J
r n s
To
1. The Assistant Sessions Judge,
Udhagamandalam.
2. The Sessions Judge of Nilgiris,
Udhagamandalam.
Pre-Delivery order made in
Crl.R.C.No.1052 of 2009
02 / 07 / 2012
Pre-Delivery order made in
Crl.R.C.No.1052 of 2009
To
THE HON'BLE MR.JUSTICE C.S.KARNAN
Most respectfully submitted
R.Narender.
P.A. to the Hon'ble Judges