Madras High Court
Manikandan vs State Rep.By on 21 January, 2022
Author: R.N. Manjula
Bench: R.N.Manjula
Crl.R.C.No.1069 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.01.2022
CORAM :
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
Crl.R.C.No.1069 of 2016
Manikandan .. Petitioner
Vs.
State rep.by
The Sub Inspector of Police,
All Women Police Station,
Chengam.
Crime No.15 of 2015 .. Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to call for the records relating
to the judgment made in Crl.A.No.1 of 2008 dated 12.04.2016 on the file
of the learned Sessions Judge, Thiruvannamalai, confirming the trial Court
judgment passed in S.C.No.26 of 2007 dated 17.12.2007 on the file of
learned Additional Assistant Sessions Judge (i/c) Principal Assistant
Sessions Judge, Thiruvannamalai and set aside the same.
For Petitioner : Mr.M.G.Udayashankar
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.side)
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ORDER
This Criminal Revision Case has been preferred challenging the judgment of the learned Sessions Judge, Thiruvannamalai, dated 12.04.2016 made in C.A.No.1 of 2008, which was confirmed by the judgment of the learned Additional Assistant Sessions Judge, Thiruvannamalai, dated 17.12.2007 made in S.C.No.26 of 2007.
2. The revision petitioner before me was the 1st accused before the trial Court. The short facts of the prosecution is that PW.4/ the victim girl was an orphan, living under the custody of her grand father/PW.5. Somewhere in the year 2004, while the victim girl was playing in the village temple during Deepam festival, the accused 1 to 3 took her to a nearby society building and committed the offence of rape on her, one by one. By taking advantage of her vulnerability, they have committed the said offence on several occasions. They also threatened her that if revealed it to anyone, they would do away with her. Even on a subsequent day, the 1st accused came to her house during night hours and committed the offence of rape. When she shouted, her grand father had caught hold of the accused; but the accused managed and escaped from 2/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 there; they cannot get any legal relief by way of lodging a complaint because of the pressure given from various circles. Even the complaint given to the Sathanur police station in this connection was withdrawn by her uncle /PW.6 on 24.09.2005. However the complaint was given again on 30.09.2005 to the All Women police station, Chengam. Based on the complaint, a case was registered in Crime No.15 of 2005 by PW.8 /Leela Bai/ the Inspector of police and she prepared the F.I.R. Since her investigation disclosed the commission of the offence as alleged by the prosecutrix, she completed her investigation and filed a charge sheet against the accused for the offence under Section 376 and 506(ii) IPC.
3. The case was taken on file by the learned Judicial Magistrate, Chengam, in P.R.C.No.26 of 2007. After complying the legal mandates, the case was committed to the learned Principal Sessions Judge, Thiruvannamalai. From there it was assigned to the file of the Assistant Sessions Judge, Thiruvannamalai for tiral. On being satisfied with the materials available on record, the learned trial Judge framed the charges against the accused under Sections 363, 366, 376(2)(g) and 506(ii) r/w. 34 IPC. The accused were questioned about the charges, they pleaded 3/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 innocence and claimed to be tried.
4. During the course of trial, on the side of the prosecution, eight (8) witnesses were examined as PW.1 to PW.8 and fourteen (14) documents have been marked as Ex.P.1 to Ex.P.14. After completing the prosecution evidence, when the incriminating materials found on the prosecution evidence were put to the accused under Section 313 Cr.P.C., they denied the same. No witness was examined on their side, however one document has been marked as Ex.D1 during the cross examination of PW.4.
5. After the conclusion of the trial and on consideration of the materials available on record, the learned trial Judge found the 1st accused guilty for the offence under Section 376 IPC, convicted and sentenced the accused as follows:
Rank of Charges Findings of Punishment
the the trial
accused Court
1st accused U/s 376 IPC Guilty convicted and sentenced to
undergo 7 years Rigorous
Imprisonment and imposed with
a fine of Rs.10,000/-, in default
to undergo 6 months Simple
Imprisonment.
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Crl.R.C.No.1069 of 2016
Rank of Charges Findings of Punishment
the the trial
accused Court
U/s.366 and Not guilty Acquitted
506(ii) IPC
A2 and A3 U/s.366, 376 Not guilty Acquitted
and 506(ii)
IPC
6. The appeal filed by the 1st accused in C.A.No.1 of 2008 was also dismissed on 12.04.2016. Aggrieved over the said dismissal, 1st accused had preferred the present Criminal Revision Case.
7. Heard the learned counsel for the revision petitioner /1st accused and the learned Government Advocate (Crl.side) for the prosecution.
8. The learned counsel for the revision petitioner submitted that despite an earlier complaint was withdrawn and closed, the prosecution had once again taken up a fresh case on the second complaint and it is illegal; the evidence of the victim/PW.4 is not trustworthy and reliable and it is wrong on the part of the Courts below to convict the 1 st accused based on the evidence of PW.4; the age of PW.4 was determined 5/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 basing on the radiological examination and it cannot be taken as her true age; the other accused viz. A2 and A3 were found not guilty and they have been acquitted and the same benefit ought to have been given to the 1 st accused also; hence the revision case should be allowed.
9. The learned Government Advocate (Crl.side) for the prosecution submitted that the victim was a girl of below 16 years at the time of occurrence; even her medical age did not show that she was a major; the evidence of PW.4 would clearly show that the 1st accused had committed the offence of rape and her evidence is very much reliable; when the evidence of the victim itself is trustworthy and convincing, it is not necessary to look for any other corroborative evidence. Hence, the Courts below have rightly convicted the 1st accused for committing the rape.
10. Points for consideration:
Whether the finding of the guilt of the accused for the offence under Section 376 IPC is fair, proper and legal?
11. On perusal of the said complaint given by the victim 6/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 girl/PW.4 on 30.09.2005 [Ex.P4], it is seen that the victim herself has stated that an earlier complaint was given with regard to the same offence of rape committed by the 1st accused and others; but she was not able to pursue the case because of the pressures given by the local people; hence, it had been withdrawn. Thereafter at the intervention of All Women Police Station, a case was registered on the basis of the complaint given by the victim.
12. It is the submission of the learned counsel for the petitioner that, the complaint was given just to extort money from the accused. Before adverting into the genuineness of the complaint, it is relevant to know about the social status of PW.4 / victim. Her cross examination would show that she has no father and mother and she was under the care of her grand father/PW.5. Prior the said occurrence, her lifestyle was begging after the occurrence, her uncle took her with him and kept her under his custody. It is not an wonder for a girl of that status to get yielded to pressures and withdraw the complaint. The victim girl and her grand father were helpless. The evidence of PW.4 would reveal that after the complaint was given, the father of the 1st accused was giving 7/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 pressure to her grand father that they should not dare to disclose it to anyone especially to police. After PW.4's uncle took the victim to Thiruvannamalai and the victim girl was brought out of the influence of the local people, she could give the complaint to All Women Police Station. The occurrence had taken place more than once. Though the victim girl could not successfully lodge a complaint for the earlier occurrence, she had managed to convince her uncle to give the present complaint when the 1st accused came and raped her at her house once again.
13. The victim girl was not a school going child who could have the school certificate to prove her date of birth. Even her birth certificate is not available. Hence, she was subjected to radiological examination for the purpose of assessing her age. The doctor who conducted radiological examination on PW.4 has given a report stating her medical age, and the report has been marked as Ex.P.4. PW.2 has stated that the radiological examination revealed that the age of the victim is between 13 and 14.
14. The learned counsel for the revision petitioner submitted that fixing the age of the victim girl through medical examination is not 8/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 reliable and that alone cannot be conclude that the victim was 13 to 14 years. He invited the attention of this Court to the judgment of the Delhi High Court rendered in the case of Shweta Gulati & Anr. Vs. The State Government of NCT Delhi, to sustain his contention. There is no disagreement on the point that the determination of age through medical examination is inconclusive. Even the Hon'ble Supreme Court has stated in several decisions that there can be marginal error and the age cannot be assessed through radiological assessment and the error can be two years on either side. When the age of the victim is not known and there are no documentary proof available to show her age, the one and only option left to determine her age is through medical examination only.
15. In the decision of the Hon'ble Supreme Court rendered in State of Madhya Pradesh Vs. Anoop Singh [(2015) 7 SCC 773]. In the said judgment and it is held as below:
“10. We believe that the present case involves only one issue for this Court to be considered, which is regarding the determination of the age of the prosecutrix.
11. In the present case, the central question is whether the prosecutrix was below 16 years of age at the time of the incident. The prosecution in 9/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 support of their case adduced two certificates, which were the birth certificate and the middle school certificate. The date of birth of the prosecutrix has been shown as 29.08.1987 in the Birth Certificate (Ext. P/5), while the date of birth is shown as 27.08.1987 in the Middle School Examination Certificate. There is a difference of just two days in the dates mentioned in the abovementioned Exhibits. The Trial Court has rightly observed that the birth certificate Ext. P/5 clearly shows that the registration regarding the birth was made on 30.10.1987 and keeping in view the fact that registration was made within 2 months of the birth, it could not be guessed that the prosecutrix was shown as under-aged in view of the possibility of the incident in question. We are of the view that the discrepancy of two days in the two documents adduced by the prosecution is immaterial and the High Court was wrong in presuming that the documents could not be relied upon in determining the age of the prosecutrix.
12. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under:
“Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining –
(i) the matriculation or equivalent certificates, if available; and in the absence whereof;10/18
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(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.”
16. The determination of age of the victim of rape can be done in the similar manner in which the age of the juvenile is determined, in accordance with Rule 12(3), Juvenile Justice (Care and Protection of Children) Rules, 2007. In the present case on hand, the radiological examination of the victim determined that the age of the victim as between 13 and 14 years. Even if the marginal error is given on either side her age 11/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 would be either 11 or 16. When two views are possible about a matter, the view which in favourable to the accused should be taken up for consideration. By adopting the said principle, the age of the victim can be taken as 16. Since the occurrence had taken place before the Criminal Law amendment 2009, this case is governed by the old Criminal Law. Under the old law, the man is said to have committed the crime of rape with a woman with or without her consent when she is under 16 years of age.
17. PW.3 is the doctor who examined the victim on 02.10.2005. Her evidence would reveal that her hymen was absent. So the learned counsel for the revision petitioner drew the attention of this Court that the above evidence of the doctor and claimed that the victim had repeated sexual exposure and hence no much credence can be given to her evidence. The previous life style of sexual victim is immaterial for the offence of rape committed on a victim who is 16 years. So the evidence of the victim has to be appreciated irrespective of her past sexual history, if any. The victim who was examined by PW.4 has stated in her evidence that even prior to the occurrence she was molested by the 1st accused and his friends on several occasions.
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18. On the specific date of the occurrence, which is referred in the present complaint, the 1st accused came to PW.4's house and committed the act of rape once again. When she shouted, her grand father attempted to catch hold of the 1st accused, but he managed to escape. Thereafter, her grandfather went and questioned the father of the accused. But they were compelled not to go to police. Even after victim's uncle / PW.4 came to her village, he was also not able to pursue any criminal action and he took the victim to his village and kept her under his custody. Only subsequent to that, a case was registered by the police and the investigation was conducted. In these back ground of the case, the withdrawal request marked as Ex.D1 cannot be given much significance and hence the evidence of PW.4 can not be discarded.
19. The learned counsel for the revision petitioner submitted that the delay in giving the complaint would cause doubt on the prosecution. It is needless to say that the dire consequences which was faced by the victim and her family was the major factor in approaching the police and set the law in motion.
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20. In sexual offences the delay in registering the FIR cannot be viewed seriously. The above position of law has been once again confirmed in the decision of the Hon'ble Supreme Court reported in the case of karnel Singh Vs. State of Madhya Pradesh [(1995) 5 SCC 518] as under:
“the submission overlooks the fact that in India women are slow and hesitant to complaint of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. the reluctance to go the police is because of society's attitude towards such women. it casts doubt and shame upon her rather than comfort and sympathize with her. therefore, delay in lodging complaints in such cases does not necessarily indicate that version is false.” It has been repeatedly held in various decisions of the Hon'ble Supreme Court that the delay in lodging the complaint cannot be viewed as a serious impediment in the cases of sexual offences.
21. So far as the evidence of PW.4 about the occurrence is concerned, she has stated about the occurrence in a clear, understandable words and that has been rightly appreciated by the learned trial Judge. 14/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 PW.5 /the grandfather of PW.4 was present at the time of occurrence. He has stated that on hearing of the noise of PW.4, he got up and caught hold of the accused. However PW.5 has further stated that he caught hold of the accused and tied him with a rope and thereafter he escaped. So, PW.5 could not take the accused immediately to police. His evidence is corroborates the fact that the 1st accused entered into his house and committed the offence as stated by P.W.5.
22. No motive can be attributed by her grandfather or her uncle for lodging a false case against the accused. The one and only motive alleged by the defence is that the victim and her guardian gave the case just for extorting money from the accused. The trial Court has rightly observed that had the prosecutrix intended to extort money she could have done that by making such attempt when the offence had taken on the earlier occasion also.
23. The learned trial Judge had given the benefit of doubt for A2 and A3. However he found the evidence against the 1st accused is concrete and solid. It is once again needless to point out that the evidence 15/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 of the victim should be considered like that of the evidence of the injured witnesses. Hence, it is not wrong on the part of the trial Court for convicting the accused basing on the evidence of the victim. In this regard, it is relevant to refer the recent decision of the Hon'ble Supreme Court in Ganesan Vs. State represented by its Inspector of Police [(2020) 10 SCC 573] with regard to the evidential value of the victim of sexual offence. In the said case and it has been held as under:
“10.2. In Krishnan Kumar Malik V. State of Haryana, it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.”
24. In the present case, not only the evidence of the victim is available, but her grandfather and the doctor have also corroborated her evidence. The cumulative effect of this evidence would prove the guilt of the accused for the offence under Section 376 IPC.
25. In any angle I do not find any factual or legal error in the judgment of the trial Court and it has been correctly upheld by the appellate Court. Hence the judgment of the first appellate Court does not 16/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1069 of 2016 warrant any interference.
In the result, this Criminal Revision case is dismissed and the judgment of the learned Sessions Judge, Thiruvannamalai, dated 12.04.2016 passed in C.A.No.1 of 2008 is confirmed. The period of sentence already undergone by the accused shall be set off under Section 428 of Cr.P.C. The trial Court is directed to issue NBW to secure the petitioner/accused and commit him to prison to undergo the remaining period of sentence.
21.01.2022 Index : Yes/No Internet : Yes/No rpl To
1. The Sessions Judge, Thiruvannamalai.
2.The Additional Assistant Sessions Judge (i/c) Principal Assistant Sessions Judge, Thiruvannamalai.
3.The Sub Inspector of Police, All Women Police Station, Chengam.
R.N. MANJULA, J.
rpl
4.The Public Prosecutor, High Court, Madras.
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