Madras High Court
Govinda Reddy vs State By Sub-Inspector Of Police on 5 July, 1996
Equivalent citations: 1997CRILJ148
ORDER
1. This is revision filed by the petitioner, challenging the judgment in C.A. No. 58 of 1991, on the file of Sessions Court, Chengalpattu M.G.R. District confirming the judgment rendered in SC No. 51 of 1984, on the file of Additional Assistant Sessions Judge, Chengalpattu, convicting him for an offence under S. 376, IPC and sentencing him to undergo R.I. for 7 years.
2. The short facts that could be discerned from the materials produced by the prosecution could be summarised as follows :-
P.W. 1 Jeganathan is working as a driver in Simson Co. His sister P.W. 2 Susistra a 22 years girl was working in Kalpana Lamp at Madhavaram, as a machine operator. P.W. 1 Jeganathan, P.W. 2 Susitra have been residing along with their mother in the same house. The father of P.Ws. 1 and 2 died in the year 1961. Thereafter, P.W. 1 Jeganathan, as the head of the family has been looking after the mother and sister P.W. 2.
3. The working hours for P.W. 2 are between 8-30 a.m. and 5-00 p.m. on Sundays, if P.W. 2 has been asked to do over time work, she would come home late. The revision petitioner Govinda Reddy was Supervisor in the said company, under whom P.W. 2 was working.
4. On 22-4-1983 at about 8-00 a.m., P.W. 2 left her house at Thiru Vi. Ka. Nagar to attend her duty in her factory premises at Madavaram. Till 6-00 p.m., P.W. 2 did not turn up to her house. So both P.W. 1 and his mother thought that she would be in the factory premises itself for doing the overtime work. On 22-4-1983 at about 5.00 p.m., when P.W. 2 finished her duty, the petitioner, Supervisor of the factory informed her that she would have to do the over time work, since 12 burners have to be made on that day itself. So P.W. 2 began her overtime duty, which (was entrusted to her. Unfortunately, at 6.00 p.m., the machine did not work. P.W. 2 informed this to the petitioner/accused. Then the accused asked her to go and take rest in the coating room and then he would call for after the machine was got repaired. As instructed by him. P.W. 2 went and took rest. Since she was working all along from the morning she felt tired, and slept there itself. Suddenly she woke up and found that the petitioner/accused forcibly overpowered her. Despite her resistance, the petitioner committed rape on her. The coating room was completely covered by glass windows. She cried, resisted and wept. Despite this, he committed rape on her and warned her that she should not tell that to any other person else she would have to face serious consequences. Since she was in a sudden shock due to the forcible rape and intimidation by the accused, she became afraid. Then she was taken in the company van by the accused and left in the church bus stop, near her house.
5. She went to her house and informed this to her brother P.W. 1 and mother. Immediately thereafter, P.W. 1, P.W. 2 and their mother went to Sembiam Police Station. There, they were directed to go to Madavaram Police Station, which is the jurisdiction police station. So, they went to Madavaram Police Station and gave to the complaint Ex. P. 1 to P.W. 6 Dhayalan Sub-Inspector of Police, who in turn registered a case in Cr. No. 125 of 1983 for offences under Ss. 341 and 376. IPC P.W. 2 the victim was sent to the hospital along with Police memo. The saree and pettycoat was worn by the victim were recovered under Ex. P. 14, mahazar.
6. P.W. 3 Doctor Chitra, working at Kosha Hospital (Kasthuri Bai Gandhi Hospital, Triplicane) Madras, examined P.W. 2 on 23-4-1983 at 3-00 a.m., and found irregular vaginal tear 4 cm x 1.5 cm x 1 c.m. with profuse bleeding. Since there was continuous bleeding the victim/P.W. 2 was given general anasthesia and wound was stiched. Only then the bleeding was stopped. She gave opinion in a certificate Ex. P. 2, that the irregular vaginal tear in posterior vagina wall would occur due to forcible rape and that a recent intercourse would have been taken place.
7. P.W. 6 arrested the accused on 23-4-1983 at 6-00 a.m., and recovered his clothes M.Os. 3 to 6 under Ex. P. 15 mahazar. Thereafter, he went to the spot at 11-00 a.m., and prepared Ex. P. 16 observation mahazar, and when these M.Os. were sent to Court by P.W. 6 Sub-Inspector, the requisitions Exs. P. 5 and P. 6 were also sent to the Magistrate by P.W. 6 for sending the M.Os. to chemical analysis. P.W. 4, the Head Clerk of Judicial Second Class Magistrate's Court. Thiruvetriyur on the instruction of the Magistrate under Ex. P. 7 requisition sent these M.Os. for chemical analysis. Exs. P. 8 and P. 9 are the Chemical analyst's report and serologist's report. The accused also was examined by the Doctor and the certificate is Ex. P. 11. Then, Dhayanithi, the successor of P.W. 6, Sub-Inspector of Police, filed the chargesheet against the accused under S. 376 IPC, on 15-1-1984.
8. After examination of all the witnesses, on the side of prosecution, the accused was questioned under S. 313, Cr.P.C., to explain the incriminating circumstances found against him in the evidence brought on record, the accused pleaded that he was innocent. As such, the case of the defence was that of whole denial.
9. On conclusion of trial, the trial Court convicted the accused for an offence under S. 376, IPC, and dealt with him as stated earlier and the same has been confirmed by the first appellate Court. Challenging these judgments, the petitioner has filed this revision.
10. Mr. T. Sudanthiram, learned counsel appearing for the petitioner took me through the entire evidence and the judgment of the Courts below and strenuously contended that there is no material to prove the charge against the petitioner, and as such, the accused is entitled to be acquitted. His contentions in brief could be summarised as follows :-
"The Courts below have over looked the facts that P.W. 2 was a consenting party for the sexual intercourse with the petitioner, since even after the alleged occurrence, she had travelled in the van along with the accused and others and she had not raised any hue or cry after the occurrence and not reported the incident to any person and that she told the matter to her mother and brother, only when they questioned her about the bloodstain on her clothes. But for that question, the matter would not have come to light."
11. I have heard Mr. Elange, learned Govt. Advocate, representing the State. Of-course, it is not the case of the defence, either while cross-examining the witnesses or giving statement under S. 313, Cr.P.C., that the sexual intercourse between the petitioner and the victim P.W. 2 was only with the consent. However, the said plea was raised only before the first appellate Court. The first appellate Court had given various reasons for rejecting the plea by the accused, while confirming the judgment of the trial Court, convicting the accused. So, on that basis, there is no difficulty in allowing the petitioner to argue on the point of consent in this revision though the same was not raised before the trial Court.
12. As such this Court would very well consider and decide the issue of consent, which is raised in this revision. So, the only question that has to be considered in this revision, whether there are materials so as to enable this Court to come to the conclusion as to whether the possibility of consent cannot be ruled out. For the purpose of considering this question, the reference of certain vital materials culled out from the evidence of some of the witnesses would be most essential.
13. As fairly admitted by learned counsel for the petitioner, there is evidence to establish that there was a sexual intercourse between the accused and P.W. 2, on the date of occurrence i.e. on 22-4-1983 in the coating room of the factory premises of Kalpana Lamp at Madavaram and that this is corroborated by the evidence of P.W. 3 Doctor also. Regarding the fact 'Consent', learned counsel for the petitioner contended that as per the evidence of P.W. 1 that on seeing some bloodstains on the saree worn by the victim P.W. 2 he enquired her, as to what happened and only then, P.W. 2, the victim informed him about the alleged rape and as such, the failure of P.W. 2 to inform about the incident to any other persons, while travelling in the van or failure to report to the police station and failure to inform her brother P.W. 1, immediately after her entry into the house would be a telling circumstance against the prosecution, which would probabilse the theory of consent, on the part of the victim.
14. I am not impressed with this submission, in view of the fact that there are over whelming evidences available in this case, to show that there could not have been any possibility for the consent. It is the evidence of P.W. 2 that the petitioner being the Supervisor, under whom she was working, after committing rape, threatened her, not to divulge the act of rape to anyone and that, if she had informed he would not leave her safe.
15. P.W. 1 stated that at 6-00 p.m., she felt dead tired and she was also hungry and so she went and laid down in the coating room, as instructed by the accused. Taking advantage of the fact that she was alone and the coating room was completely covered with glass windows, the accused entered into the room and caught hold of her hands and legs and forcibly raped her. During that time, it is the evidence of P.W. 2, that all the other workers left and no one was available then. She further states that (Vernacular matter omitted.) In these circumstances, the hue and cry made by the victim did not yield any result.
16. Even when she was travelling in the van, P.W. 2 did not inform this to the driver of the van and one another worker by name David. The reason is so obvious, as those two persons were also working under the petitioner/accused and she thought that if she attempted to complain about this, then she would be in danger at the hands of the revision petitioner. That was the reason as to why she came to the house, without informing any other person, since the petitioner was all along present in the van. After she got down from the van, she straightway came to her house, and informed this to her brother, P.W. 1 and mother.
17. P.W. 1 Jeganathan, would say, (Vernacular matter omitted.) In the light of this evidence, it cannot be contended that the victim/P.W. 2 informed P.W. 1 only after his enquiry on seeing the blood-stains on her pettycoat. It is the specific evidence of P.W. 1 that P.W. 2/victim came to the house in an unusual and ugly manner. If there was consent, she would not have come to the house in this manner. Moreover, immediately she was taken to the police station, from there, she was brought to the hospital, where P.W. 3 Doctor examined her and found continuous profused bleeding due to the irregular vaginal tear in the posterior vagine wall. It is specific evidence of the Doctor, that this vaginal tear would occur due to the forcible rape and that the said rape would have taken place at the time and manner alleged by the Victim P.W. 2.
18. It is also argued by learned counsel for the petitioner that P.W. 3 Doctor did not find any other external injury and as such, the inter-course must be only with the consent. This submission would be of no significance, in view of the fact that there is an irregular Vaginal tear (4 cm x 1.5 cm x 1 cm). with profuse bleeding, which could be done only by forcible rape, as per the evidence of the Doctor. That apart, P.W. 2 was admitted in the Kosha Hospital, as in-patient and treatment was given for one week. This is clear from the evidence of P.Ws. 2 and 3.
19. Much was argued by learned counsel for the petitioner about the admission of P.W. 5, the van driver, that while traveling in the van, both P.W. 2 and the accused were found talking in a cheerful mood and that when she got down from the van, she showned 'tata' to the accused, and learned counsel contended that would show that there could not be any forcible rape, A complete reading of the evidence of P.W. 5 would clearly show that he has adduced the evidence in order to help the accused, who is his boss. Of-course this witness has been treated as hostile, even he admits in his cross-examination by the learned Asst. Public Prosecutor that both the accused and himself were still working in the same concern. Moreover with reference to this evidence, as referred to by P.W. 5 no question was put to P.W. 2 in her cross-examination. This would show that P.W. 5, a hostile witness was set up in order to show to the Court that there could have been possibility for the consent. However, ultimately the defence has miserably failed to establish the same.
20. P.W. 1, the brother of the victim, and P.W. 2 the victim, have no axe to grind to speak falsehood against the petitioner, If, there was any consent for the said sexual intercourse, there is no reason for P.W. 2 to report to the police station immediately, i.e., on the same night. So, the trial Court and the first appellate Court have considered and appreciated the evidence of all the witnesses and come to a correct conclusion that the offence of rape has been proved against the petitioner. In view of the above reasons and the reasons given in the judgments of the Courts below, I am of the considered opinion that the petitioner has committed forcible rape in the manner alleged by the prosecution.
21. Learned counsel for the petitioner relied upon the decision in Pratap Misra v. State of Orissa, , in which the plea of consent was accepted and the accused was acquitted. The anology which has been propounded in that case on the facts of that case, will not be applicable to this case, since this case stands on a different footing. That was a case, where rape was committed on P.W. 1, concubine of P.W. 2 by three N.C.C. students, one after another. When the door was open, A-1 went inside with a towel and raped her. After A-1 came out, A-2 went inside and raped her. After A-2 came out, A-3 went inside and raped her. It is an admitted case of the prosecution that door was open at that time there was no attempt on the part of victim to run away and no injury was found on the victim. The prosecution case was that few days after the incident, the prosecutrix/P.W. 1 had an abortion. The evidence of Doctor in that case is that, if there is no consent, the abortion would have taken place immediately after the rape in a state of shock. Mainly, on these grounds, the Supreme Court, acquitted the accused, holding that P.W. 2 would probably have been a pimp, allowing A-1 to A-3 to have sexual inter-course with his concubine. That is not the case here, in view of the discussion made above.
22. The next decision referred to by learned counsel for the petitioner is Biram Soren v. State of West Bengal, 1992 Cri LJ 1666, wherein the accused in a rape case was acquitted by the Calcutta High Court, accepting the plea of consent, since the FIR was lodged ten days after the incident and the prosecutrix did not inform the name of the accused to her parents early. Though in that case also there was profuse bleeding, it was established by the defence that there was a love affair between the accused and the victim and the age of the girl was only 16 years at that time of incident. But, herein in this case, P.W. 2 immediately informed the incident of rape and the name of the assailant to her brother and mother and so, this decision would not be applicable to the facts of the present case.
23. A decision of the Himachal Pradesh High Court in Chain Ram alias Chaini v. State of H.P. (1984) 3 Crimes 240, has also been referred to by learned counsel for the petitioner, where the accused was acquitted, as no blood was found in the private part of the prosecutrix. It is held in that case that the absence of any blood from the private parts of the prosecutrix at the time of the alleged commission of sexual intercourse and at the time of her medical examination would only show that either she was not subjected to sexual intercourse. Since there was no injury found on the private parts of the victim, the accused was acquitted in that case, which is not applicable to the facts of the present case.
24. Yet another decision referred to by learned counsel for the petitioner is rendered by Bombay High Court in State of Maharashtra v. Vasant Madhav Devre, 1989 Cri LJ 2004. That was a case, when a police constable entered into the house and committed rape on a married woman, the husband came inside the house and only at that time, both the accused and the victim got up from the bed. Originally, there was a Panchayat among the villagers and in the panchayat the accused was asked to pay a sum of Rs. 3000/- as compensation. He did not pay the same. So, after three days, the complaint was given. In that case also no injury was found on the private part of the victim.
25. In all these decisions referred to by learned counsel for the petitioner, the accused were acquitted, holding that possibility of consent could not be ruled out, because of the fact that there was no injury on the private part of the victim. These decisions would not be applicable to this case, in view of the different and peculiar facts as narrated above in this case.
26. While concluding, it is but necessary to refer some of the observations made by the Apex Court in State of Maharashtra v. Chardraprakash Kavalchand Jain, AIR 1990 SC 358 : (1990 Cri LJ 889) (paras 16 and 17) :
"The prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime (rape) ........ If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hestigation in accepting her evidence. Therefore Ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted ........ It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime ........... It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eveteasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if the Courts deal strictly with those who violate the social norms ........... Courts must also realise that ordinarily a woman, moreso a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
So. in the light of the above observations, this Court has no hesitation to accept the evidence of P.W. 2, which in fact is fully corroborated by the evidence of P.Ws. 1 and 3 and come to the conclusion that the verdict given by the Courts below does not call for any interference by this Court.
27. Moreover, this is a revision preferred under Ss. 397 and 401, Cr.P.C., the Apex Court often held that the scope of revision is so limited and the factual aspects which have been considered and appreciated by the trial Court and the first appellate Court should not normally be disturbed, in view of the above fact situation, I feel that the revision has no merits and deserves to be dismissed and accordingly the same is dismissed.
28. Petition dismissed.