Madras High Court
Panneerselvam vs State Rep.By on 18 November, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.11.2014
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
CRIMINAL APPEAL No.82 of 2008
and
CRIMINAL REVISION CASE No.261 of 2009
Criminal Appeal No.82 of 2008
Panneerselvam .. Appellant
..vs..
State rep.by
the Inspector of Police,
Vennandhur Police Station,
Namakkal District.
(Crime No.114/2005) .. Respondent
Criminal Revision Case No.261 of 2009
S.Raja .. Petitioner
vs.
1.The State rep.by
the Inspector of Police,
Vennanthur Police Station,
Namakkal District.
(Crime No.114/2005)
2.Panneerselvam .. Respondents
Criminal Appeal filed under Section 374 of the Criminal Procedure Code against the judgment dated 31.12.2007 made in S.C.No.35 of 2007 on the file of the Additional District and Sessions Court/Fast Track Court, Namakkal.
Criminal Revision Case No.261 of 2009 filed under Section 397 r/w Sec.401 of Cr.P.C. against the order passed by the learned Additional District and Sessions Judge, Fast Track Court, Namakkal, for enhancement of the punishment awarded under Section 366-A and 376(1) of the IPC for the second respondent.
Criminal Appeal No.82 of 2008
For Appellant : Mr.B.Vasudevan
For respondent : Mr.A.N.Thambidurai,
Additional Public Prosecutor
Criminal Revision Case No.261 of 2009
For petitioner : Mr.G.K.R.Pandiyan
For first respondent : Mr.A.N.Thambidurai,
Additional Public Prosecutor
For second respondent: Mr.B.Vasudevan
COMMON JUDGMENT
By the judgment of the Additional District and Sessions Judge, Fast Track, Namakkal, dated 31.12.2007 made in S.C.No.35 of 2007, the accused / appellant in Criminal Appeal No.82 of 2008 was convicted for offences under Section 366A and 376(1) of the IPC and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment for offence under Section 366A of the IPC and sentenced to undergo 7 years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment for the offence under Section 376(1) of the IPC. Aggrieved by the same, the Appeal is filed by the first accused / appellant.
Criminal Revision Case No.261 of 2009 is filed by the complainant for enhancing the sentence imposed on the first accused, namely, the appellant in Criminal Appeal No.82 of 2008 vide judgment dated 31.12.2007 made in S.C.No.35 of 2007 by the learned Additional District and Sessions Judge, Fast Track Court, Namakkal.
2. The case of the prosecution is that PW.3 was aged 15 years and she discontinued her studies in IX Standard on 18.11.2002 and she was attending tution class for X Standard in J.V.Tution Centre. The first accused, namely, the appellant was employed in Mythili Crusher and the working place is near the house of PW.3 and both PW.3 and the first accused had fallen in love with each other and the first accused belongs to Scheduled Caste Community and PW.3 belongs to Gounder Community and the first accused wanted to marry PW.3 and that was refused by PW.3 and A.2 was employed in the Crusher and A.3 and A.4 are the parents of A.1. A.5 and A.6 are the brothers of A.1. A.7 and A.8 are the friends of A.1 and A.2 to A.8 were supporting the love affair of A.1. On 2.4.2005, all the accused conspired in the Crusher where A.1 was employed to kidnap PW.3 and get herself married to A.1 and pursuant to the said conspiracy, on 9.4.2005 at about 11.00 a.m., with the help of the other accused, A.1 took PW.3 to Mathur Allah Gate, a place in Karnataka and kept her in the house of witness Palani and marriage between PW.3 and the first accused was solemnised on 11.4.2005 in a Sivan Temple and thereafter, A.1 had sexual relationship with PW.3 till 17.4.2005 in the house of Palani. Both A.1 and PW.3 stayed together and during that period with or without consent A.1 had sexual relationship with her. On 18.4.2005, PW.3 was taken to one Raja's house at Indira Nagar, Shimoga in Karnataka and kept her there till 31.5.2005 and A.1 repeated the sexual act several times and from that place PW.3 was taken to Sujurahalli and on 2.6.2005 at about 12.00 noon at the bus stop of Sujurahalli, the police arrested A.1 and rescued PW.3 and therefore, the charge sheet was filed against the appellant and the other accused for offences under Sections 120-B, 363, 366, 376(1) IPC r/w 109 IPC and Section 4 of Child Marriage Restraint Act r/w 109 IPC.
3. The trial Court on the basis of evidence, acquitted A.2 to A.8 from the offence punisahble under Sections 366A r/w 109 of the IPC and Section 4 of the Child Marriage Restraint Act r/w 109 of the IPC and also acquitted the first accused of the charge under Section 4 of Child Marriage Restraint Act r/w 109 IPC and convicted the first accused for offence under Section 366A and 376(1) of the IPC and sentenced to undergo rigorous imprisonment for the periods stated above.
4. During trial, the prosecution examined 17 Witnesses and marked 17 Exhibits. PW.1 and PW.2 are the parents of the victim girl. PW.3 is the victim girl. PW.4 is the owner of the Crusher. PW.5 is the husband of the owner of the tuition centre where PW.3 was going for tuition. PW.6 is the neighbour who saw A.1 and PW.3 standing at the Bus Stop on the date when PW.3 was alleged to have been kidnapped by the accused. PW.7 accompanied to arrest A.1 in Karnataka State. PW.8 is the Principal of Sri Vinayaka Matriculation School, Vaiyappamalai, where PW.3 was studying IX Standard and PW.9 is the Doctor who examined PW.3. PW.10 is the Scientific Assistant. PW.11 to PW.13 are the Head Constables. PW.14 is the Doctor who examined PW.3 and A.1 and issued certificate regarding her age. PW.15 is the Head Clerk of Judicial Magistrate's Court, Rasipuram. PW.16 is the Sub-Inspector of Police who conducted initial investigation. PW.17 is the Inspector of Police who filed charge sheet.
5. It is submitted by the learned counsel for the appellant that the trial Court without properly appreciating the basic requirement about whether PW.3 is a minor or major presumed that PW.3 is minor and convicted the appellant for offence under Section 366A and 376(1) of the IPC. He further submitted that no age proof was filed by the prosecution to prove that PW.3 was a minor, aged below 18 years and Ex.P.5, Transfer Certificate cannot be taken into consideration for arriving at the conclusion that PW.3 was aged less than 18 years and PW.14 Doctor, though gave a certificate to the effect that the victim girl must be between 16 and 18 years and in the absence of any test or X-Ray is taken, the opinion of the Doctor cannot be accepted as true. Therefore, as the age of the victim girl has not been proved to be less than 18 years, it cannot be stated that PW.3 was a minor and she was kidnapped and raped against her consent. He also submitted that PW.3, initially, was in love with A.1 and though she denied the same, in the cross examination, the Investigating Officer PW.16 admitted that PW.3 was in love with A.1 and as per the evidence of PW.4 also PW.3 and A.1 were lovers and PW.4 has stated that he informed PW.1 about the relationship between PW.3 and A.1 and these facts would prove that PW.3 would have not have been taken against her will and she had gone with A.1. A.1 had no other alternative except to take her to various places as PW.3 insisted him to take her. He also submitted that the sequence of events that took place between 9.4.2005 and 2.6.2005 also would lead to conclusion that there was no question of kidnapping and PW.3 must had gone with A.1 on her own volition. He submitted that it was admitted by PW.3 that while she was in Karnataka State in a house, A.1 went for employment and even during that period, she did not make any attempt to complain about the kidnapping or sexual assault on her by A.1. Admittedly, there are more than 100 houses where she was living with A.1 and she was taken to various place by A.1 and even during that transit, she never created any scene making complaint against A.1 and these facts would also prove that she was a consenting party. It is also submitted that as per the evidence of PW.3, she was initially taken to Salem in a Bus along with A.7 and A.8 and thereafter, she went with A.1 from Salem to Karnataka. A.1 married her in Siva Temple at Karnataka and she never complained to the passengers in the Bus or to the Poojari in Siva Temple where the marriage was solemenised and no attempt was made by the prosecution to examine the Poojari of Siva Temple or the neighbours where PW.3 was kept in confinement by A.1 and all these would prove that PW.3 was not kidnapped against her will and she was a consenting party and having regard to the fact that A.1 belongs to Scheduled Caste and PW.3 belongs to a higher community and at the instance of parents, she deposed against the first accused and therefore, the prosecution failed to prove that PW.3 was kidnapped against her will and without her consent, A.1 had sex with her against her will and therefore, the trial Court ought not to have convicted A.1 for offence under Section 366-A and 376(i) of the IPC.
6. The learned Additional Public Prosecutor submitted that Ex.P.5 is the Transfer Certificate issued by the School authorities wherein the Date of Birth of PW.3 is mentioned as 17.7.1989. PW.14 Doctor, on the basis of X-Ray would opine that the victim girl must be between 16 and 18 years and therefore, having regard to the evidence of PW.8, PW.14 and Ex.P.5 and Ex.P.14, the age certificate issued by the Doctor PW.14, the prosecution proved that the victim girl was a minor when the occurrence took place and therefore, when the victim girl was a minor, a clear case of 366A of the IPC is made out, even assuming that she went on her own with A.1. He further submitted that even assuming that the victim girl is between 16 and 18 years as per the evidence of PW.14 Doctor, when A.1 had sex with her without her consent, it amounted to rape and these aspects were rightly and properly appreciated by the trial Court and the trial Court rightly convicted the first accused for the offence under Section 366-A and 376(i) of the IPC. He further submitted that the trial Court has rightly acquitted the other accused. Therefore, the judgment of the trial Court need not be interfered with and the conviction and sentence imposed on the first accused may be sustained.
7. The revision petitioner / defacto complainant has filed Criminal Revision Case for enhancing the sentence and according to him, the trial Court having convicted the first accused for offence under Section 366A and 376(1) of the IPC ought to have given life sentence for committing the offence of rape and therefore, the Revision has to be allowed. The learned counsel for the revision petitioner supported the arguments of the learned Additional Public Prosecutor and submitted that PW.3 has clearly stated that she was kidnapped and raped by A.1 and being a girl of 16 years, one cannot expect her to create scene when she was taken by A.1 along with the other accused and even according to her, she was kept in illegal confinement in Karnataka and she was kept in a place where she did not know the language and therefore, the fact that she had not created any scene cannot be taken in favour of the accused to arrive at the conclusion that she was a consenting party. He therefore submitted that having regard to the evidence of PW.3, PW.8 and PW.14, the prosecution clearly proved that she was a minor and she was raped against her will. It is pertinent to note that in the matters of crimes against women, the Courts are imposing harsh punishments and in this case, the punishment imposed by the trial Court on the first accused is inadequate and the same may be enhanced.
8. Considering the submissions of the learned counsel for the appellant as well as the learned Additional Public Prosecutor and the learned counsel for the revision petitioner, we will have to see -
(i) whether the victim girl PW.3 was aged between 16 and 18 years at the time of occurrence?
(ii) whether the victim girl was taken by A.1 against her will and whether A.1 had sex with her against her will so as to attract the offences under Section 366-A and 376(i) of the IPC?
9. As stated supra, PW.1 and PW.2 are the parents and PW.3 is the victim girl. PW.1 gave the complaint after searching her daughter for a few days. On coming to know that A.1 had kidnapped her along with the other accused, he gave the complaint on 12.4.2005. It is also admitted that the occurrence took place on 9.4.2005. PW.2, the mother of the victim girl, also corroborated the evidence of PW.1. PW.3 is the victim girl. She has supported the case of the prosecution and deposed that A.1 proposed to marry her and she refused to do so and even one week prior to the occurrence, he attempted to kidnap her and on 9.4.2005 when she was going to tuition centre at about 9.00 a.m., as soon as she got down from the bus, A.1 along with the other accused, called her and threatened to kill her if she refused to come with A.1 and on saying so took her to Karnataka where she met Palani and Govindasamy and in Siva Temple A.1 compelled to marry her and both of them got married and A.1 had sex with her against her wish.
10. Therefore, we will have to see whether PW.3 was aged between 16 and 18 years as per the prosecution case. PW.8 is the Principal of Sri Vinayaga Matriculation School, Vaiyappamalai, where PW.3 studied during the year 2002 and according to the evidence of PW.8, in the academic year 2002-2003, PW.3 studied IX Standard and discontinued her studies in November, 2002. She produced a a copy of the Transfer Certificate, which was marked as Ex.P.5 wherein the Date of Birth of PW.3 is mentioned as 17.7.1989. PW.14 is the Doctor who examined PW.3 and arranged to take X-ray and issued Ex.P.14 Age Certificate to the effect that the victim girl PW.3 must have been between 16 and 18 years of age. The prosecution relied upon Ex.P.5 and Ex.P.14 and the evidence of PW.14 and contended that these evidences would prove that PW.3 was a minor and she was aged between 16 and 18 years on the date of occurrence. In Ex.P.14, it is also stated that the victim girl must be aged about 16 years but below 18 years. The Doctor has not stated in the Certificate Ex.P.14 that on the basis of X-ray, he gave that opinion. No doubt, he has deposed that on the basis of X-rays taken, he gave opinion and also mentioned the date of X-rays. The X-rays were not marked during trial. Therefore, in the absence of any X-ray marked in the trial Court and in the absence of any statement in the certificate that on the basis of X-rays, he gave the opinion, the evidence of Doctor cannot be taken to arrive at the conclusion that the victim girl was aged between 16 and 18 years on the date of occurrence. Ex.P.5 is not the Birth Certificate and Ex.P.5 is the Certificate issued by PW.8. It is stated by PW.8 that in the year 2004 PW.1 asked for the Transfer Certificate and from the records, they issued Transfer Certificate by filling the Date of Birth as 17.7.1989 PW.8 has stated that as per the Transfer Certificate the Date of Birth was mentioned as 17.7.1989 and also admitted that she was not aware about whether the Date of Birth of the girl mentioned as 17.7.1989 was the correct Date of Birth of PW.3. She also admitted that PW.3 was studying in IX Standard in the year 2002 and she discontinued her studies on 18.11.2002. She further deposed that PW.3 was transferred from another school and joined her school, her Date of Birth was mentioned in Ex.P.5 as 17.7.1989 on the basis of Date of Birth mentioned in the Transfer Certificate issued by the previous School. PW.1, the father of the victim girl, did not state that his daughter was born in 1989 and her Date of Birth was 17.7.1989 and PW.2 also did not state so and PW.2 only stated that her daughter's age might be 16 years on the date of occurrence.
11. Therefore, according to me, having regard to the evidence of PW.8 and PW.14 one cannot come to the conclusion precisely that the victim girl was less than 18 years when X-rays were not marked and in Ex.P.14, Doctor did not state that he gave opinion on the basis of X-rays. Further, admittedly, in 2002, the victim girl was studying IX Standard. Normally, a girl must be 14 or 15 years if she studies IX Standard. The occurrence took place in 2005. Therefore, there is possibility that the victim girl might be 17 years or must have crossed 18 years. In the absence of any specific proof that the girl was less than 18 years, it cannot be presumed that the girl was a minor and was aged between 16 and 18 years. Further, the Date of Birth given in Ex.P.5 cannot also be accepted as the same was contrary to the Doctor's opinion. If the Date of Birth in Ex.P.5 is taken into consideration, the victim girl must be 16 years on the date of occurrence. But the Doctor gave opinion that she must be above 16 years but below 18 years. Therefore, Ex.P.5 cannot be taken into consideration to arrive at the conclusion that the girl was 16 years or less than 18 years. Similarly, Ex.P.14 cannot also be taken into consideration to arrive at the conclusion that the victim girl was aged more than 16 years and less than 18 years in the absence of any test concerned. Therefore, the benefit of doubt can be given to the accused and I am of the opinion that the prosecution failed to prove that the victim girl was a minor aged less than 18 years on the date of occurrence. Hence, the appellant cannot be convicted under section 366A of the IPC.
12. When it is held that the victim girl was aged more than 18 years, whether this appellant can be convicted for the offence under Section 376(1) of the IPC.
13. Insofar as the conviction under Section 376(1) of the IPC is concerned, PW.3 during investigation told the police that she was in love with A.1 and that was admitted by PW.16 I.O.,. PW.16 also deposed that he was informed by PW.1 about the relationship between PW.3 and A.1. PW.3 the victim girl also deposed that A.1 proposed her to marry him and she refused and one week prior to the occurrence, there was an attempt to kidnap her and she did not report the same to her parents. When she was taken in the public transport by A.1, A.6 to A.8 and especially, they threatened, she did not cry for help when admittedly five or six persons were in the Bus Stand at the relevant point of time. She also admitted that she was taken in a Bus from her place to Salem and from Salem to Karnataka. During that travel, she did not raise any alarm or complaint to the passengers in the Bus about the kidnapping by the accused. Though it is contended by the learned Additional Public Prosecutor and the learned counsel appearing for the revision petitioner that PW.3 was kept under threat and therefore, she did not create any scene, that was not spoken to by PW.3 and she did not say that she was kept under threat when she was taken to Salem and thereafter to Karnataka. She also admitted that she did not inform the Poojari when she was supposed to marry A.1 and though she was living in a house in Karnataka along with A.1 for more than 50 days, she never made any attempt to seek help from the neighbours about the illegal acts committed by A.1. It is admitted that A.1 went out for employment and she was in the house and even during that period, there was no attempt made by her to escape from that place. These facts coupled with the admission that they were lovers would lead to the presumption that she must be a consenting party and that was the reason for keeping quiet for all those days and after she was rescued from A.1, she has given evidence against A.1 at the instance of her parents. Admittedly, A.1 belongs to Scheduled Caste Community and PW.1 to PW.3 belongs to Gounder Community which is considered to be a higher caste. Therefore, the submission of the learned counsel for the appellant that at the instance of her parents, she gave evidence against A.1 after going with A.1 and therefore, such part of evidence which is against the accused need not be given credence. Therefore, the conduct of PW.3 at the time of kidnapping and thereafter, would lead to the presumption that she must be a consenting party as stated supra, and she was a major, and in such circumstances, no offence is said to have been committed by A.1 and these aspects were not properly appreciated by the trial Court.
14. Hence, I hold that the trial Court failed to prove that PW.3 was taken by force against her will by A.1 and PW.3 was retained against her will by A.1 and having come to the finding that PW.3 was major, and she was not taken against her will and conviction under Sections 366A and 376(1) of the IPC cannot be sustained.
15. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant by judgment of the trial Court is set aside. The appellant is acquitted from the charges levelled against him and he is set at liberty. The bail bond executed by the appellant shall stand terminated and the fine amount, if any, paid by him shall be refunded.
16. Having regard to the findings given above, the Criminal Revision Case filed by the complainant is liable to be dismissed and hence, it is dismissed.
18.11.2014 Index: yes / no Internet: yes / no asvm To
1.The Additional District and Sessions Judge/ Fast Track Court, Namakkal.
2.The Inspector of Police, Vennandhur Police Station, Namakkal District.
(Crime No.114/2005) R.S.RAMANATHAN, J.
(asvm) Crl. Appeal No.82 of 2008 and Crl.R.C.No.261 of 2009 18.11.2014