Madras High Court
Sakthivel vs The State
Author: R.N.Manjula
Bench: P.N.Prakash, R.N.Manjula
Crl.A.No.488 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 16.09.2021
Pronounced on .10.2021
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE MS.JUSTICE R.N.MANJULA
Criminal Appeal No.488 of 2018
Sakthivel .. Appellant/Accused
Vs.
The State, Represented by
Inspector of Police,
All Women Police Station,
Tiruppur District.
Crime No.2/2014. .. Respondent/Complainant
PRAYER: This Criminal Appeal filed under Section 374(2) Cr.P.C., against the
judgement dated 30.07.2018 made in S.C.No.229 of 2014 on the file of the learned
Sessions Judge, Fast Track Mahila Court, Tiruppur.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor.
1/20
https://www.mhc.tn.gov.in/judis/
Crl.A.No.488 of 2018
JUDGMENT
R.N.MANJULA, J.
This Criminal Appeal has been preferred by the appellant/Accused to set aside the conviction and sentence made in S.C.No. 229/2014 on the file of the learned Sessions Judge, Fast Track Mahila Court, Tiruppur, dated 30.07.2018, as tabulated hereunder:
Provision under Sl.No Sentence which convicted Life Imprisonment and fine of Rs.1,000/- in 1 Section 376(I) IPC default to undergo one year Rigorous Imprisonment
2. The facts of the case in brief are as follows:
The victim ‘X’ was married to one Sathyamoorthy 6 years prior to the date of occurrence and they were living in the house of her father Nataraj (PW.1). She has moderate mental retardation. The husband of the victim had deserted her after 6 months of marriage and hence the victim was residing along with her parents. On 05.02.2014 at about 3.00 pm the victim ‘X’ went outside her house and was walking a few feet away from her house. The accused who was standing there, 2/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 pulled her hands and took her near a cotton godown and pushed her inside the godown, locked the door and raped her forcibly. On the complaint given by PW1, the father of the victim, a case was registered in Crime No.2/2014 by the respondent Police. After completing the investigation, charge sheet was filed against the accused for the offence under Sec.376(I) IPC.
2.1. The Judicial Magistrate, Avinashi, took cognizance of the charge sheet and furnished copies to the accused. After complying with the due legal formalities, the case was committed to the Principal Sessions Court, Tripupur under section 209
-A Cr.P.C. and subsequently, the case was made over the Fast Track Mahila Court, Tiruppur.
2.2. On hearing the submissions of both sides, the Sessions Court framed charge against the accused for the offence under Sec.376 (I) IPC and read over the charge to the accused. When the accused was questioned about the charge, he pleaded not guilty and claimed to be tried.
2.3. During the course of the trial, from the side of the prosecution, 14 witnesses were examined as P.Ws.1 to 14 and 16 exhibits were marked as Exs.P-1 to P-16 3/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 and M.Os. 1 to 7 were marked. From the side of the defence, no witness was examined and no document was marked.
2.4. After concluding the trial and upon hearing both sides, the trial Court found the accused guilty and convicted him as stated in the opening paragraph. Challenging the same, the appellant/accused has preferred this Criminal Appeal.
3. The evidence of the prosecution witnesses in brief:
PW.1-Nataraj is the complainant and the father of the victim. His evidence would reveal that the victim was under his custody after she was deserted by her husband. PW.1’s wife was bed-ridden, as she was affected by paralysis. PW1 deposed that his daughter is a moderately retarded person. On the date of occurrence, PW.1 and his son Rangasamy went to graze their goats. His daughter ‘X’ was standing near her house and at that time, she was pulled by the accused who was in a drunken mood. Despite her resistance, the accused injured her on the left thigh with a knife and raped her. When PW.1 and his son returned home in the evening, they found the victim ‘X’ lying on the doorsteps. Immediately, PW1 took her to a private hospital at Avinashi for treatment. Thereafter, PW.1 went to the police station and lodged a complaint (Ex.P.1).4/20
https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 3.1. The victim ‘X’ has deposed that on the date of occurrence (05.02.2014), she went to a nearby shop and when she was returning home, the accused took her to the cotton godown and raped her there. She has stated that one Ramasamy was aware of the occurrence. Because of the violence, the victim was bleeding in her private parts and she became unconscious and later, she was taken to a hospital and treated for 10 days.
3.2. P.W.3, Dr.Amirthambal, the doctor who has treated the victim in the private hospital, has stated in her evidence that when she was enquiring the victim she stated that she was raped by an unknown person at about 5.00 pm, on 05.02.2014 at a house. The examination of the doctor revealed that there were lacerated injuries on the vaginal region of the victim and the doctor treated the wounds by putting sutures.
3.3. P.W.2-Dr. Vivekanandhan is the doctor who examined the accused and gave the potency certificate (Ex.P.2) by stating that there is nothing to suspect that he is impotent.5/20
https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 3.4. P.W.7-Ramsamy has stated that both the accused and victim were known to him. He has seen the accused coming from a nearby vacant place and the victim who followed him was crying. Her hairs appeared dishevelled and her dresses were not in order.
3.5. P.W.8-Shanmugam stood as a witness when the police visited the place of occurrence and prepared the observation mahazar and rough sketch. He also stood as a witness when the accused gave his confession statement. The dresses of the accused (M.O.3 to 5) which he wore on the day of occurrence were recovered under the seizure mahazar (Ex.P.7).
3.6. P.W.9-Dr. Srividhya, admitted the victim when she was brought to the hospital on 07.02.2014 at 12.30 hours. She has examined the victim on 08.02.2014, when she was brought to the hospital. The victim told her that on 05.02.2014 at about 5.00 p.m., she was sexually abused by an unknown person and he had also injured her on her private parts with a knife. Since she was bleeding profusely, she was given treatment at a private hospital at Avinashi. PW.9 has recorded in the medical certificate Ex.P8 that sutured wound was present on her private parts.
6/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 3.7. P.W.10. Dr. Saravana Prakash, Psychiatrist, who examined the victim, he had stated that the victim was able to understand the conversation made with her but she could give only a slow response. He found her crying while she was talking to him. His examination would reveal that she is a mentally retarded person at a moderate level (Ex.P.10).
3.8. PW.11-Indhrani, Sub Inspector of Police has registered the First Information Report (Ex.P11) at about 12.30 hours on 06.02.2014 on the complaint (Ex.P.1) given by PW.1. After taking up the case for investigation, P.W.12 – Aruchamy, Inspector of Police went and inspected the place of occurrence and prepared the Rough Sketch (Ex.P.12) and the Observation Mahazar (Ex.P.5) in the presence of the witnesses. He also seized the dresses of the victim (M.O.6 and M.O.7), which she wore at the time of occurrence through the Seizure Mahazar (Ex.P.13). On the same day, PW.12 arrested the accused and recorded his confession statement. He also recovered the dresses of the accused under Seizure Mahazar (Ex.P.7). He sent the material objects to the Forensic Science Department for chemical examination. He enquired the doctors who treated the victim and the accused and got the medical certificate. Subsequently P.W.14 7/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 Meenakumari, the Inspector of Police, All Women Police Station-South, Tiruppur had continued the investigation. P.W.14 once again went to the place of the occurrence and re-examined the witnesses. As they had stated the same facts, she did not record fresh statements. She also examined the doctors who conducted the examination on the victim and recorded their statements. After receiving the chemical report done on the material objects and completing the investigation she filed the charge sheet against the accused for the offence under Sec. 376(I) IPC.
4. Heard the submissions of Mr.N.Manokaran, learned counsel for the Appellant and Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, appearing for the respondent State.
5. The learned counsel for the Appellant submitted that there is a delay in filing the First Information Report and hence, the case of the prosecution is not true; since the victim was suffering from mental retardation, no credence can be attached to her evidence; the victim has stated in her evidence that P.W.6 had seen the occurrence and that itself would falsify her evidence; the evidence of the victim is self-contradictory and does not induce confidence; no semen was detected on the material objects seized from the accused and the victim and this 8/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 would improbablise the occurrence and the Sessions Court omitted to appreciate these and failed to give benefit of doubt to the accused.
6. The learned Additional Public Prosecutor submitted that the evidence of the victim alone is sufficient to convict the accused; the report of the doctor would show that there are injuries on the private parts of the victim; the other evidence of the witnesses would also support the case of the prosecution; since the victim did not suffer with any severe mental retardation, her evidence cannot be rejected.
7. The point for consideration is Whether the conviction and sentence of the accused for the offence under Section 376(I) IPC imposed by the learned Sessions Judge basing on the materials available on record is fair and proper?
8. Point:- It is a pitiable case of a partially retarded woman who was mercilessly subjected to a violent sexual abuse. Her mother was already bedridden due to paralysis. A few years ago, her parents married the victim to a person who deserted her within 6 months of the marriage. Hence, the victim came back to her 9/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 parents' house and was living under the custody of her father (PW1). On the day of occurrence, PW.1 and his son went to graze cattle. At that time, the victim woman went out to a nearby shop. While she was returning home, the accused pulled her hands and took her to a nearby cotton godown and ravished her. PW.7 Ramsamy who already knew both the accused and the victim saw the accused and the victim immediately after the occurrence. PW7, who is a neighbour of PW1, was operating his hand-loom at a rental place in a godown. While he was operating his loom, he saw the accused coming out of the vacant space abutting the godown and the victim following in an askewed appearance. Despite the victim was found to be moderately retarded, the doctor PW.10 has stated that she could understand the questions put to her but give late replies.
9. Before examining the victim as P.W.4, the learned Sessions Judge got herself satisfied about the fitness of P.W.4 to depose evidence. A reading of her evidence would show that she could recollect the date of occurrence and other vital details. It was pointed out by the learned counsel for the defence that the victim had given contrary answers in the cross examination while he posed the question whether the accused had intercourse with her only on her consent. Though she had stated at the first instance, ‘Yes”, immediately thereafter she told, 10/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 ‘No’. When she was asked whether she did not resist the occurrence, she said ‘Yes’ and immediately thereafter she said ‘No’. These answers of the victim cannot be taken as a serious contradiction for the simple reason of her partial retardation. As it is pointed out by the doctor, she had grasped the questions slowly and delivered the answers slowly. Such kind of stammering or blonde moments in the evidence of a person like the victim cannot be considered as a serious or material contradiction. The victim had understood what had happened to her and narrated it in her chief in a language understandable to everyone. When she was grilled in the cross examination, it is quite natural for her to become nervous and pick up the questions slowly.
10. She has stated clearly in her cross examination that she did not know the accused before the occurrence. In such a situation, it is unfair to attribute consent on the part of the victim. The doctor/PW.3-Dr.Amrithambal who had first treated the victim immediately after the occurrence had noted a lacerated injury on the vaginal region of the victim for which she had put sutures. The sutured wound was noticed by PW.9-Dr.Srividhya, before whom the victim was produced on 08.02.2014. As the victim is a helpless woman, one cannot expect her to overpower the accused by showing strong physical resistance, when the accused 11/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 committed the offence.
11. The victim was scolded by her father-PW.1 for possessing a thali on her neck. PW.7-Ramsamy had seen the victim crying and following the accused. At that time, her hairs were dishevelled and her dresses were irregular. These details given by P.W.7 about the appearance of the victim would probabalise the sexual offence that had taken place.
12. PW.6- Raja, who is in-charge of the cotton godown was asked to meet the owner Periyasamy at about 11.00 p.m. As Periyasamy had the knowledge of the occurrence, when PW6 reported to him, he asked PW6 to bring the accused also. After the accused was brought, Periyasami enquired him in the presence of PW.4, about the occurrence for which the accused kept silent. Though it would have been more appropriate if the prosecution had examined Periyasamy also as one of the witnesses, that will not disqualify the evidence of PW.6, who had spoken in his evidence about these events. The above alleged conduct of the accused that he remained silent without denying the occurrence is also a relevant fact in favour of the prosecution.
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13. The victim has stated to PW.9- Dr-Srividhya that the accused had threatened her while committing the offence and scratched her private part. When P.W.1 saw the victim at his doorsteps, he immediately took her to hospital for medical treatment. In those stressful circumstances, one day delay in giving the complaint is very much natural and reasonable.
14. In fact, in cases of sexual offences, the oral testimony of the victim itself is sufficient to inspire confidence in the mind of the Court with regard to the offence of rape. The accused was identified by her in the Court. Her evidence would read as follows:
“ ehd; mtpdhrp bjf;fYhh; R{ughisaj;jpy; FoapUe;J tUfpnwd;. ntiy vJt[k; bra;atpy;iy. Vjphpia bjhpa[k;/ vdf;F jpUkzkhfptpll; J/ jw;nghJ vd; tPlL ; f;fhuh; vd;dDld; ,y;iy/ ehd; vd; mg;gh. jk;gpal[ d; FoapUe;J tUfpnwd;/ rk;gt rkaj;jpy; vd;mg;gh. mk;kh. jk;gpa[ld; FoapUe;J te;njd;/ vd; jk;gpapd; bgah; u';frhkp/ vd; mk;kh ,we;Jtpl;lhu;/ vd; mg;gh ML nka;j;J tUfpwhh;/ 05k; njjp xU ehs; kjpak; filf;F ngha;f; bfhz;L jpUk;gp te;Jf; bfhz;oUe;njd;/ mg;nghJ vjphp vd;id bfLj;j tpguk; uhkrhkp mz;zDf;F bjhpak[ ;/ ,uj;jnk te;jJ/ mjw;F gpd;g[ ehd; ka';fptpl;nld;/ vjphp vd;id thia bghj;jpdhh;/ vjphp vd;id fl;og; gpoj;jhh;/ rhl;rp jd; gpwg;g[Wg;ig fhz;gpj;J bfLj;Jtpll; hh; vd;W TWfpwhh;/ gpd;g[ vd;id muR kUj;Jtkidf;f Tl;og; nghdhh;fs;/ kUf;Jtkidapy; gj;J ehl;fs; ,Ue;njd;/ vd; rpj;jp rpd;dk;kf;fh vd;gth; vd;Dld; ,Ue;jhh;/ v';f mg;gh g[fhu; bfhLj;jhh;/ nghyPrhu; vd;id tprhupjj; hh;/ 13/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 rk;gtj;jpd; nghJ ehd; fUg;g[ fyh; iel;o nghl;oUe;njd;/ mJ rh/bgh/1/ ehd; mzpe;jpUe;j fUg;g[ fyu; $l;o rh/bgh/2/”
15. Once the Court is convinced that the evidence of the victim is acceptable, it is not necessary to look for corroboration. The evidence of a sexual victim should be considered as the evidence of an injured witness and it assumes a greater significance. The Hon’ble Supreme Court has also held in State of Himachala pradesh Vs. Sanjai kumar reported in 2017 (2) SCC page 551 that the victim’s evidence alone is sufficient to convict the accused. In the said judgement the Hon’ble Supreme Court has held as under:
“After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape 14/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh(2003)8SCC 551). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.”(Emphasis supplied)….”
16. In Vijay @ Chinee Vs. State of Madhya Pradesh (Criminal Appeal No.660/2008), the Hon'ble Supreme Court made reference about the case in State of Orissa Vs.Thakara Besra & Anr. (AIR 2002 SC 1963) and held as follows:
“...12.In State of Orissa Vs. Thakara Besra & Anr. AIR 2002 SC 1963, this court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the 15/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 entire case and in such cases, non examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence...”
17. In the light of the aforesaid judgements, the evidence of the victim has to be appreciated. In this case, even when there is no need for corroborative evidence, the medical evidence amply corroborates the evidence of the victim. The manner in which the victim was noticed by PW.7, while she was following the accused from the place of occurrence is another corroborative piece, which strengthens the case of the prosecution.
18. Mr.N.Manokaran, learned counsel for the appellant submitted that as per the prosecution, the occurrence had taken place inside the godown, but PW.7 has stated that he had seen the accused coming from the vacant place nearby. The vacant place was not far away, but it seems to be part of cotton godown and more particularly, it was within the vicinity of PW.7, who was operating his loom there. So, the evidence of the victim that the accused had taken her inside the godown cannot be viewed suspiciously.
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19. PW.1 the father of the victim came to know about the occurrence only from the victim when he enquired her. The victim did not say different stories to people who enquired her and she has been stating about the occurrence in a consistent manner.
20. Neither the victim nor her parents had any motive against the accused to falsely implicate him in this case and that too, by alleging that the victim was raped. The evidence of the victim and other witnesses along with medical evidence prove the guilt of the accused beyond reasonable doubt. The learned Trial Judge has appreciated the evidence in a right perspective and convicted him for the offence under Sec. 376(I) IPC. So, we do not find any reason for interference. Thus, the point is answered.
21. On the date of occurrence, the father and brother of the victim went to graze their cattle for earning their livelihood. The socio-economic condition of the victim would show that she belongs to the lower strata of the society. Her husband had also deserted her within 6 months of her marriage as she was little mentally retarded. The accused had committed the sexual offence on a helpless woman who does not have self- standing and maturity to save herself. He also injured her. 17/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 Taking into consideration the partially retarded nature of the victim and her dependency on her parents, who are also ill and poor, we prefer to enhance the compensation from Rs.3,00,000/- to Rs.5,00,000/- [Rupees Five Lakhs only] and accordingly we direct the Director, Social Welfare and Women Empowerment Department, to disburse 25% of the said sum forthwith to the father of the victim in cash and to deposit the remaining 75% in the joint account of the victim and her father within one month from the date of receipt of the copy of this judgement.
In the result, the Criminal Appeal stands dismissed and the judgement of conviction and sentence dated 30.07.2018 passed in Special Case No.229 of 2014 on the file of the learned Sessions Judge, Fast Track Mahila Court, Tiruppur, is confirmed.
[P.N.P.J.,] [R.N.M.J,] .10.2021 Index : Yes Internet: Yes Speaking / Non Speaking jrs 18/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 Copy to
1. The Sessions Judge, Fast Track Mahila Court, Tiruppur
2. The Public Prosecutor, High Court, Madras.
3. The Inspector of Police, All Women Police Station, Tiruppur District.
4. The Superintendent of Police, Central Prison, Coimbatore.
5. The Director, Social Welfare and Women Empowerment Department, Secretariat, Chennai-9.
6. The Record Keeper, Criminal Section, High Court, Madras.
19/20 https://www.mhc.tn.gov.in/judis/ Crl.A.No.488 of 2018 P.N.PRAKASH, J and R.N.MANJULA, J jrs Predelivery- Judgement made in Crl.A.No.488 of 2018 .10.2021 20/20 https://www.mhc.tn.gov.in/judis/