Madras High Court
Karuppaiah vs State on 22 November, 2019
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
Criminal Appeal No.454 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.10.2019
Pronounced on 22 .11.2019
CORAM:
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
CRIMINAL APPEAL No.454 of 2016
Karuppaiah ... Appellant/Accused
-vs-
State, represented by
The Inspector of Police,
Sembanarkoil Police Station,
Nagapattinam District.
(Crime No.599 of 2012) ... Respondent/Complainant
Criminal Appeal filed under Section 374 Cr.P.C. against the order of
conviction passed by the Sessions Judge, Fast Track Mahila Court,
Nagapattinam, in S.C.No.49 of 2013, dated 28.05.2015, convicting the
Appellant for seven years Rigorous Imprisonment with fine of Rs.1,000/- or
in lieu to undergo one year Simple Imprisonment for the alleged offence
punishable under Section 376 of the Indian Penal Code, acquit the
accused/appellant of the charges levelled against him.
For Appellant : Mr.Sarath Chandran
for M/s.K.M.Vijayan Associates
For Respondent : Mr.B.Arulmozhi Maran,
Government Advocate (Crl. Side)
*****
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Criminal Appeal No.454 of 2016
JUDGMENT
The Appellant is the sole accused in S.C.No.49 of 2013 on the file of the learned Sessions Judge, Fast Track Mahila Court, Nagapattinam. He stands convicted for the offence under Section 376 I.P.C. and sentenced to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for one year. Challenging the same, he is before this Court with this Appeal.
2. The case of the prosecution is that, on 01.11.2012, at 8.30 p.m., when the victim went to the Toilet situated at the backyard of her house, to attend nature's call, the Appellant/Accused rushed towards her, closed her mouth, lifted her to the nearby Coconut grove and raped her, in spite of, the victim raising her voice. While so, P.W.2 - the victim's sister and P.Ws.3 and 4 - neighbours, came to the scene of occurrence in search of the victim. On seeing them, the Appellant/Accused ran away, and the victim lost consciousness. Thereafter, the victim was taken to Mayiladuthurai Government Hospital. While the victim was undergoing treatment in the Hospital, Women Police recorded her statement, which is Ex.P1, and registered a case in Crime No.599 of 2012 for the offence under Section 376 I.P.C.
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3. During the trial, in order to establish the charges, the prosecution examined 12 witnesses as P.Ws.1 to 12; exhibited 13 documents as Exs.1 to 13 and marked Material Objects as M.Os.1 and 2. P.W.1 is the victim; P.W.2 is the elder sister of the victim; P.Ws.3 and 4 are neighbours of the victim; P.W.5 is the Assistant Surgeon in Mayiladuthurai Periyar Government Hospital, who examined the victim and issued Accident Register, Ex.P2; P.W.6 is the Senior Surgeon in Mayiladuthurai Periyar Government Hospital, who examined the Appellant/Accused and issued Ex.P3. P.W.7 is the Assistant Director at Forensic Science Laboratory, Tiruvarur, who issued Ex.P5-Report; P.W.8 is the Mahazar witness; P.W.9 is the Sub-Inspector of Police, Vaitheeswaran Koil Police Station, who received intimation from the Government Hospital, Mayiladuthurai; P.W.10 is the Assistant Surgeon, who examined the victim and issued Final Opinion vide Ex.P9; P.W.11 is the Special Sub-Inspector of Police, Sembanar Koil Police Station and P.W.12 is the Investigating Officer.
4. Learned counsel for the Appellant/Accused assailed the findings of the Trial Court on the following grounds:
(i) the guidelines under 154 Cr.P.C. have not been followed and that, P.W.1 - victim has simply affixed her thumb impression in the complaint, without knowing its contents;
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(ii) though P.W.2 - sister of the victim, in her chief- examination has deposed that two Women Police enquired P.W.1 - victim and recorded the statement from her, in the cross-examination, she has given different versions, initially stating that 'she lodged the complaint' and subsequently stating that 'she did not lodge the complaint'.
(iii) there is no eye-witness to the alleged incident and that soil in the grove, where the victim was alleged to have been made to lie down, was not subject to examination;
(iv) though the place of the alleged incident as per the Sketch, is just behind the house of the victim, other persons residing in the neighbouring houses were not examined;
(v) even in the Material Objects collected, there is no semen found and that merely because, there is injury in the victim's lips, it cannot be construed that the Appellant has committed the offence under Section 375 I.P.C. to be sentenced under Section 376 I.P.C.
5. According to the learned counsel for the Appellant, the alleged offence of rape has not been committed by the Appellant/Accused and even http://www.judis.nic.in Page No.4 / 17 Criminal Appeal No.454 of 2016 assuming for the sake of argument, at the most, it can be treated only as an attempt, and this Court is empowered to reduce the conviction imposed, by setting off the period of incarceration already undergone by him, in terms of Section 428 Cr.P.C.
6. Heard the learned counsel for the Appellant and the learned Government Advocate (Criminal Side) appearing for the Respondent, and perused the material documents available on record.
7. Admittedly, P.W.1 - victim is aged 40 years and that, she has no physical growth for her age, and hence, she had remained unmarried. Also, it is admitted that the victim is mentally immature.
8. In her evidence, P.W.1-victim has categorically stated that, the Appellant/Accused was residing three houses away from her house and that, he is married and has two male children. According to her, on the date of the alleged incident, around 8.00 p.m., when she went to the backyard of her house, to attend nature's call, the Appellant/Accused came over there, covered her mouth and took her to the Coconut Grove belonging to one Nagarajan, and raped her. While so, the cell phone, which she was holding, fell down. She has further deposed that after the alleged incident, P.W.2 - her sister and P.Ws.3 and 4, came there and on seeing them, the http://www.judis.nic.in Page No.5 / 17 Criminal Appeal No.454 of 2016 Appellant/Accused fled from the scene of occurrence. Thereafter, the victim became unconscious and she was taken to the Hospital, where, two Women Police enquired her and recorded Statement from her, vide Ex.P1.
9. In the cross-examination, P.W.1 - the victim has stated that, on instructions, she affixed her thumb impression in the complaint, without knowing its contents. She has further stated that, she is not in the habit of talking to the Appellant/Accused and that, there is no misunderstanding between her and the family members of the Appellant/Accused. It is also her deposition that, she holds a Cell phone and that, she will attend phone calls. According to her, she was holding a Cell phone at the time of the alleged occurrence.
10. For better appreciation of the case, the evidence of P.W.1 - victim, is extracted, as under:
"Kjy; tprhuiz:
ehd; md;dg;gd;ngl;il/ vd;Dld;
mf;fh. jk;gp. jk;gp kidtp. mk;kh
trpf;fpd;wdh;/ vd; taJ 40/ ehd;
gpwe;jjpy; ,Ue;J ,t;thW tsh;r;rp
,y;yhky; ,Uf;fpd;nwd;/ vdf;F
jpUkzkhftpy;iy/ vjphp bjhpa[k;/ vd;
tPl;oypUe;J 3tJ tPL/ vjphpf;F
jpUkzkhfptpl;lJ/ 2 Mz; gps;isfs;
cs;sJ/ 2 tUl';fSf;F Kd; xUehs;
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Criminal Appeal No.454 of 2016
,ut[ 8 kzpf;F ehd; bfhy;iy gf;fk;
ghj;U:k; nghtjw;fhf brd;nwd;/ m';F
vjphp te;J thia bghj;jp. ehfuh$d;
bjd;de;njhg;gpw;F J}f;fp brd;Wtpl;lhd;/
ehd; rj;jk; nghl;nld;/ vjphp vd;id
bfLj;Jtpl;lhd;/ ifapy; itj;jpUe;j
nghd; fPnH tpGe;Jtpl;lJ/ rk;gtj;jd;W
vd; mf;fh. jk;gp bgz;lhl;oia miHj;J
bfhz;L M!;gj;jphpf;F brd;Wtpl;lhh;/
rk;gtj;jpw;F gpd;. vd; mf;fh. uh$KUfd;.
bt';fnlt&;k; te;jdh;/ mth;fis
ghh;j;jt[ld;. vjphp Xotpl;lhd;/ vdf;F
kaf;fkhfptpl;lJ/ vd;id M!;gj;jphp
miHj;J brd;wdh;/ m';F bgz; nghyP!;
te;jdh;/ ehd; bfhLj;j g[fhh; th/K:/
m/rh/M/1/ nghyPrhh; tprhhpj;jhh;fs;/
kWehSk; nghyPrhh; te;J tprhhpj;jhh;fs;/
FWf;F tprhuiz:
gpwe;J tsh;e;jJ md;dg;gd;ngl;il/
vjphp v';fs; bjU jhd;/ g[fhh; ehd;
bfhLj;njd;/ g[fhhpy; vd;d tptuk; vd
bjhpahJ/ nuif itf;f brhd;dhh;fs;.
itj;njd;/ vd; tPl;ow;F nkw;nf bkapd;
nuhL/ vjphpapd; tPL vd; tPl;oypUe;J 3tJ
tPL/ vjphpaplk; rhjhuzkhf ngrkhl;nld;/
vjphp vd;dplk; jz;zPh; nfl;ftpy;iy/
vjphpf;Fk; vdf;Fk; gHf;fk; cz;L vd;why;
rhpay;y/ vjphpapd; tPL v';fs; tPl;oypUe;J
buhk;g J}uk; js;sp cs;sJ vd;why;
rhpay;y/ g[fhhpy; brhy;tJ nghy; vjphp
ve;j jtWk; bra;atpy;iy vd;why; rhpay;y/
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Criminal Appeal No.454 of 2016
kUj;Jth; vd;id ghpnrhjpj;j nghJ
mJnghd;w mwpFwpfs; vJt[k; bjhpatpy;iy
vd;W brhd;dhy; rhpay;y/ vd;dplk;
bry;nghd; cs;sJ/ ahuhtJ ngrpdhy;
ngRntd;/ rk;gt rkaj;jpy; bry;nghd;
itj;jpUe;jjhf bgha; brhy;fpnwd; vd;why;
rhpay;y/ vjphpf;Fk;. vjphpapd; tPl;oy;
cs;sth;fSf;Fk; vdf;Fk; ve;j kd frg;g[k;
,y;iy/ ehd; brhy;tJ nghy; brhd;d
,lj;jpy; rk;gtk; elf;ftpy;iy vd;why;
rhpay;y/ vjphp ve;j Fw;w braypYk;
<Lgltpy;iy vd;why; rhpay;y/"
11. P.W.2 - sister of the victim, in the chief-examination, has stated that, on 01.11.2012, she took her brother's wife to Hospital and returned home around 8.30 p.m. and at that time, P.W.1 - victim was not found at home. Hence, she rang up to the victim's cell phone, however, the victim did not attend her call. Thereafter, she went to the backyard of her house and in the adjoining Coconut Grove belonging to one Nagarajan, she heard a Cell phone ringing and she saw the Appellant/Accused lying on the victim. She has further stated that P.Ws.3 and 4 - her neighbours, followed her to the grove and on seeing them, the Appellant/Accused ran away and that, the victim was lying unconscious. Thereafter, as the victim was not well, they took her to Mayiladuthurai Government Hospital at 2.00 p.m. and that, two Women Police enquired the victim and recorded complaint from her.
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12. In the cross-examination, P.W.2 - sister of the victim has stated that, P.W.1 - victim has no physical growth for her age and that her mental growth is also less, however, she has got understanding capacity. She further stated that the victim will always be holding a Cell Phone and used to attend calls. She has also deposed that there is no enmity between her family and that of the Appellant's family.
13. P.Ws.3 and 4 are neighbours of P.W.1 - victim. Both of them have categorically stated in their evidence that, on hearing the noise of P.W.2 - victim's sister, they went to the house of the victim. They saw P.W.2 standing in the Coconut Grove of one Nagarajan, where, they also witnessed P.W.1-victim lying in a disorderly state. They also deposed that at that time, the Appellant/Accused was fleeing from the Grove.
14. P.W.2 - sister of the victim and P.Ws.3 and 4 - neighbours of the victim, have corroborated the evidence of P.W.1 - victim. There is no hostile witness in the case on hand.
15. P.W.5 - Doctor, who examined the victim on 02.11.2012 at 2.30 a.m. at Mayiladuthurai Periyar Government Hospital, has deposed that the victim has expressed pain in her right breast, and that there is human bite mark in her upper lip. The Accident Register issued by P.W.5 - Doctor is http://www.judis.nic.in Page No.9 / 17 Criminal Appeal No.454 of 2016 marked as Ex.P2. In the cross-examination, P.W.5 - Doctor has categorically stated that, the victim was conscious at the time of examination and furnished particulars.
16. P.W.6 is the Doctor, who examined the Appellant/Accused. On examination, he gave a Certificate vide Ex.P3 that, the Appellant/Accused is capable of having sexual intercourse.
17. P.W.7 - Assistant Director at Forensic Science Laboratory, Tiruvarur, who examined the Material Objects, i.e. M.O.1 - Skirt and M.O.2 - Shirt, issued Report vide Ex.P5, opining that, there is no semen in both materials, however, there were blood stains in M.O.1 - Skirt and that, no blood stains were found in M.O.2.
18. P.W.9, who was then working as Sub-Inspector of Police, Sembanarkoil Police Station, on the basis of the information received from Mayiladuthurai Government Hospital on 02.11.2012 around 2.30 a.m., recorded statement from P.W.1 - victim and obtained her left thumb impression in the statement, after reading out the contents to her. In the cross-examination, P.W.9 has reiterated her stand that she recorded statement from the victim, after reading out the contents to her, as the victim was an illiterate.
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19. P.W.10 - Assistant Surgeon, who examined the victim on 02.11.2012, has categorically stated that, the victim is mentally immature; her Blood Pressure was high and that, there were bruises in her upper and lower lips. She also stated that there were stains of semen in the victim's skirt, however, there were no blood stains. She went on to state that the victim's hymen was torn to a certain extent and that, there was blood in the private part.
20. As to the first ground of attack of the learned counsel for the Appellant/Accused that, the guidelines under 154 Cr.P.C. have not been followed, as the victim - P.W.1 has simply affixed her left thumb impression in the complaint, without knowing its contents, this Court is of the view that a rape victim, on account of the physical attack sustained, will certainly not be in a state of mind to read the complaint as regards the offence committed on her, and thereafter, affix signature/thumb impression. From the deposition of P.W.9-Sub-Inspector of Poilce, Sembanarkoil Police Station, it is vivid that the victim was conscious at the time of giving statement to the Police. As she could not read and write, the contents of the statement recorded, were read out to her and thereafter, she has affixed her left thumb impression in it.
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21. In the case on hand, P.W.1 - victim is physically and mentally immature. Mental immaturity is different from mental illness. If a person is mentally ill, there would not be clarity in his/her statement. Here, the victim has given a brief statement of what had happened to her. Though, she has not got the reasoning capacity of a 40 year old, she has got the capacity of understanding as to what is happening around her, which, can be equated to the mental maturity of a ten year old. One cannot expect cogency in the statement of a mentally immature person, like that of the victim.
22. Hence, the contention of the learned counsel for the Appellant that in terms of Section 154 Cr.P.C., the statement given by P.W.1 - victim itself has to be ignored, is rejected, in view of the categorical evidence of P.W.9.
23. The second contention of the learned counsel for the Appellant is that P.W.2 - sister of the victim, has given different versions in her chief and cross-examinations, as to the lodging of the complaint. From the evidence of P.W.9 - Sub-Inspector of Police, Sembanarkoil Police Station, it is clear that P.W.9 had gone to the Government Hospital, immediately after receiving information, and recorded statement from the victim. The http://www.judis.nic.in Page No.12 / 17 Criminal Appeal No.454 of 2016 statement obtained from the victim is the formal complaint. The complaint, which, P.W.2 refers to, is only oral in nature and is, certainly not a written one. Hence, the second contention of the learned counsel for the Appellant is also rejected.
24. As to the third contention of the learned counsel for the Appellant that, there is no eye-witness to the alleged incident, it has to be noted that the incident is corroborated by P.W.2 - sister of the victim and two other independent witness viz. P.Ws.3 and 4. P.W.2 has categorically stated in her evidence that, on her hearing her noise, P.Ws.3 and 4, who are her neighbours, came to the Grove. Even, P.Ws.3 and 4, in their evidence, have deposed that on hearing the noise of P.W.2, they came in search of her and, in the Grove, they saw the victim lying down in a disorderly state and the Appellant/Accused running away from the scene. Any prudent man will shy away from standing as a witness to an incident. P.Ws.3 and 4 - neighbours of the victim have seen the Appellant/Accused fleeing from the scene of occurrence, and they have stood as independent witnesses. Hence, the evidence of P.Ws.2 to 4, cannot, at any stretch of imagination, said to be contradictory and disbelieved.
25. The next contention of the learned counsel for the appellant is that the soil in the grove, where the victim was alleged to have been made http://www.judis.nic.in Page No.13 / 17 Criminal Appeal No.454 of 2016 to lie down, was not subject to examination. Admittedly, the soil in the grove was not subject to examination. Non-examination of soil in the grove may not be a major concern and it is not going to be detrimental to the case, as, apart from the evidence of P.W.1-victim, two other independent witnesses, i.e. P.Ws.3 and 4 have corroborated the statement of P.W.1- victim. Hence, non-examination of soil in the grove will not, in any way, distort the evidence given by the corroborating witnesses - P.Ws.2 to 4, in a cogent manner.
26. As to the contention of the Appellant that the grove is just behind the victim's house and three persons alone have made a complaint apart from the victim, and that, other neighbours who might have heard the noise of P.W.2, did not come and depose, this Court is of the view that the number of witnesses who have deposed, need not be taken into account, as per Section 134 of the Indian Evidence Act.
27. The last contention of the learned counsel for the Appellant is that, even in the Material Objects collected, there is no semen found and that merely because, there is injury in the victim's lips, it cannot be construed that the Appellant has committed the offence of rape. P.W.1 - victim, has stated in her evidence that the Appellant/Accused has raped her and P.Ws.2 to 4 have seen the Accused running from the scene of http://www.judis.nic.in Page No.14 / 17 Criminal Appeal No.454 of 2016 occurrence. When there is a categorical evidence by P.W.1 - victim, both in the chief-examination and cross-examination that the Appellant/Accused has raped her in a Coconut grove behind her house, and when the said incident has not only been corroborated by P.W.2 - victim's sister, but also corroborated by independent witnesses, P.Ws.3 and 4, that they have seen that Appellant/Accused fleeing from the scene of occurrence, this Court finds no reason to disbelieve the case of the prosecution. Accordingly, the said contention of the learned counsel for the Appellant/Accused, is rejected.
28. As regards the contention of the learned counsel for the Appellant that, the punishment imposed on the Appellant/Accused could be reduced and the punishment already undergone shall be treated as sufficient punishment, this Court is of the view that the said contention of the learned counsel for the Appellant cannot be appreciated, as the incident of rape of the victim by the Appellant/Accused has not only been witnessed by P.W.2 - victim's sister, but, two independent witnesses, i.e., P.Ws.3 and 4 have witnessed the fleeing of the Appellant/Accused from the scene of occurrence. That apart, the minimum punishment prescribed under the Act, for the offence of rape is seven years, and it cannot be reduced. http://www.judis.nic.in Page No.15 / 17 Criminal Appeal No.454 of 2016
29. In view of the foregoing, this Court holds that, the prosecution has proved that, the Appellant/Accused has committed rape on P.W.1 - victim. Thus, I do not find any merit at all in this Appeal.
30. In the result, the Criminal Appeal fails and accordingly, the same is dismissed. The conviction and sentence imposed by the trial Court on the Appellant are confirmed. Consequently, connected Crl.M.P.No.6701 of 2016 is closed.
22.11.2019
Index : Yes
Speaking Order : Yes
(aeb)
To:
1. The Inspector of Police,
Sembanarkoil Police Station, Nagapattinam District.
2. The Sessions Judge, Fast Track Mahila Court, Nagapattinam.
3. The Public Prosecutor, High Court, Chennai.
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(aeb) Pre-deliveryJudgment in Criminal Appeal No.454 of 2016 22.11.2019 http://www.judis.nic.in Page No.17 / 17