Madras High Court
P.Senthil Kumar vs State on 24 June, 2015
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24-06-2015 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS Criminal Appeal No.25 of 2011 P.Senthil Kumar ... Appellant/Accused .. Vs .. State rep. by the Inspector of Police, Crime Branch C.I.D., Erode Unit, (in Crime No.60/2008 Appakudal Police Station, Erode District. ... Respondent/Complainant PRAYER: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code to set aside the judgment, dated 20.12.2010 made in S.C.No.169 of 2010 on the file of learned Principal Assistant Sessions Judge, Erode. For Appellant : Mr.Philip Ravindran Jesudoss For Respondent : Mr.P.Govindarajan, Additional Public Prosecutor. - - - - - J U D G M E N T
The sole accused in S.C.No.169 of 2010 on the file of the learned Principal Assistant Sessions Judge, Erode is the appellant.
2. He is alleged to have kidnapped and raped PW-2, a minor girl.
3. The accused has been prosecuted before the said Court for offences under Sections 366 and 372(2)(f) of I.P.C.
4 He was convicted under Section 376(2)(f) I.P.C. and sentenced to 10 years R.I. and fined Rs.1,000/- i/d 6 months R.I. However, he was acquitted from the charge under Section 366 I.P.C.
5. The case of the prosecution runs as under:
(i) PW-4 Manikandan and PW-2 Anandhi, a minor girl are son and daughter of PWs-1 and 3 Periyasamy and Sivagami. They are residing in Perumal Koil Street in Oricherrypudur in Erode District. PW-2 was born on 7.12.2003 (Ex.P-20 Birth certificate). On 19.4.2008, she was 5 years old. The accused was 25 years old. He is residing in the nearby house.
(ii) 19.4.2008 was Saturday. On that day, morning, Pws.1 and 3 left for job. Around 1 p.m., PW-4 left to a shop. PW-2 went to one Megala's house to see T.V. Programme. It was found locked. PW-2 was returning home. On the way, the accused seen her. He gave her sweet and took her to his house. He switched on the T.V. raised its volume. Closed the door. Removed her gown (MO-2) and inner garment (MO-1) and he committed sexual act on her. He threatened to kill her if she reveals it to others. PW-2 returned home and wept.
(iii) Around 6.30 p.m., PW-3 came home. PW-2 narrated her the entire occurrence. Then PW-4 and PW-5 Kaliammal, an acquaintance of PW-3 were also present. P.W.2 also complained of pain in her private part. PW-3 removed PW-2's inner garment and found contusion in her private part. PW-3 applied oil. PW-2 identified the accused. PW-3 scolded him. However, the accused, his mother, her sister have quarrelled with PW-3 and also beaten her.
(iv) Around 8 p.m., PW-9 Easwaramoorthy took PWs-2 and 3 in his moped to PW-6 Dr.Varadharajan's private Clinic in Appakoodal. PW-6 found contusion in the private part of PW-2. He asked her the reason. PW-2 told him that her neighbour had rubbed her private part with something and there was discharge of something white. Since PW-2 complained of pain in her private part, PW-6 gave her paracetamol tablet. Since it is a medico-legal case, he directed them to take her to the Government Hospital, Bhavani.
(v) Around 10.30 p.m., her father/PW-1 came home. PW-3 told him the occurrence. PW-2 revealed the entire occurrence to him. PW-4 prepared the complaint. As it was 11 p.m., there was no bus. PWs-1 and 4 went in a bicycle to Appakoodal Police Station.
(vi) At about 12 midnight, at the said Police Station, PW-1 gave Ex.P-1 complaint to PW-16, Shanmugam, S.I. of Police. He registered this case for offences under Sections 376(2) (f) and 323 of I.P.C. (Ex.P-13 F.I.R.). He sent the express F.I.R. to the authorities.
(vii) On 20.4.2008, at about 5 a.m., PW-17 Pandiarajan, Inspector, Bhavani Circle received a copy of the F.I.R. He took up his investigation. He visited the scene place. In the presence of PW-8 Srirangan and one Govindaraj, he prepared Ex.P-2 Observation Mahazar. He drew Ex.P-14 Rough Sketch of the scene place. In their presence, he seized MOs-1 and 2 jatti and gown of PW-2 under Ex.P-3 Mahazar. He examined PWs-1 to 5 and other witnesses and recorded their statement. On the same day, at Thalavaipet, he arrested the accused. In the presence of said witnesses, he seized MOs-3 and 4 lungi and jatti from the accused under Ex.P-15 Mahazar. He produced the accused before the Court for judicial custody.
(viii) On 21.4.2008, PW-17 gave requisition (Ex.P-19) to the Court to get the blood sample from the accused. P.W.17 handed over MOs-1 to 4 clothes under Form 95 (See Exs.P-16 and 17) to the Court. He gave requisition (Ex.P-18) to the Court to send them to Forensic Science Lab for analysis.
(ix) On 21.4.2006, at about 6.20 p.m., at the Government Hospital, Bhavani, PW-10 Dr.Janatha examined PW-2 and found the following:
(a) Vaginal initio admitted tip of the finger;
(b) There was contusion in the vaginal injuries;
(c) Multiple abrasions on both side of labiya minora;
PW-10 issued Ex.P-16 Accident Register copy.
(x) On 21.4.2008, at about 6.30 p.m., at the said Hospital PW-11 Dr.Dinakar examined the accused. He found him capable of performing sexual act (Ex.P-8 Report).
(xi) The Court sent M.Os-1 to 4 to Forensic Science Lab for analysis (see Ex.P-10 letter). PW-15 Vasantha, Assistant Director, Forensic Science department analysed them and found seminal stains in MOs- 1, 3 and 4. (Ex.P-12 report).
(xii) Subsequently, on the orders of the Director General of Police, Tamilnadu, investigation was transferred to C.B. C.I.D. On 27.5.2009, PW-18 Velmurugan, Inspector, C.B. C.I.D., Erode took up his investigation. He verified the case-records so far collected and statement of witnesses so far recorded by PW-17. He also examined PWs-1 to 3 separately and recorded their statement. He received Ex.P-20 birth certificate of PW-2 from PW-1. He examined Selvi, Thamaraiselvan, Senthamizh Selvi, Grade-I Police Constable, PWs-6, 7, 9 to 12, 16 and recorded their statement. He also examined PW-17. Concluding his investigation, on 30.10.2009, PW-18 filed the Final Report before the Court for offences under Sections 366 and 376(2)(f) of I.P.C.
6 On consideration of the Final Report and the documents attached thereto and upon hearing both, the trial Court framed charges under Sections 366 and 376(2)(f) I.P.C. as against the accused. He pleaded not guilty to the charges.
7 To substantiate the charges, prosecution examined PWs-1 to 18, marked Exs.P-1 to P-20 and exhibited MOs-1 to 4.
8 The trial Court examined the accused on the incriminating aspects in the prosecution evidence.
9 He denied the offence. He marked the biological Report as Ex.D-1. He did not examine any witness on his side.
10 Upon hearing both sides and on consideration of the evidence on record, the trial Court acquitted the accused from the charge under Section 366 I.P.C. however, convicted him under Section 376(2)(f) I.P.C. and sentenced him to 10 years R.I. and also fined him Rs.1,000/- in default to undergo 6 months R.I. 11 The learned counsel for the appellant contended that no rape as defined under section 375 IPC. has been established in this case. To prove the said charge, prosecution has to establish that the appellant had sexual intercourse with P.W.2. However, the evidence would show that no such act has been performed by the accused with P.W.2. Further, PW-3 had applied oil to the private part of her daughter/P.W.2 and rubbed it and that may be a reason for some abnormality found in her private part.
12 The learned counsel for the appellant would also submit that the medical evidence did not establish that P.W.2 has been subjected to sexual intercourse.
13 The learned counsel for the appellant also contended that there was previous enmity between the victim's family and the accused. The sister of PW-3 let her house to the accused and the P.W.2's parents forced him to vacate, but he did not. In the circumstances, enmity arose between P.W.2's parents and the accused.
14 On the other hand, the learned Additional Public Prosecutor would submit that the accused has raped P.W.2, a minor girl. There is no strong reason or evidence to reject her testimony. Further, her evidence has been corroborated by the evidence of PWs-1, 3, 4 and 5 and the medical evidence of PWs-6 and 10 and the scientific evidence of PW-15.
15 The learned Additional Public Prosecutor further submitted that there is no acceptable reason to implicate the accused in this case. The charge under section 376 IPC has been proved beyond all reasonable doubts. Thus, the trial Court has rightly convicted and appropriately sentenced him.
16 I have anxiously considered the rival submissions, perused the impugned judgment and the evidence on record.
17. Now, the question is whether the prosecution has established the charge under section 376 IPC as against the appellant beyond all reasonable doubts.
18 PW-2 is the daughter of PWs-1 and 3. PW-1 lodged Ex.P-1 complaint alleging that on 19.4.2008 at about 3 p.m. in his house the accused had raped his daughter/P.W.2.
19. As per Ex.P-20 birth certificate issued by Erode Municipal Corporation, PW-2 was born on 7.2.2003. Thus, on 19.4.2008 she was a child of 4= years old.
20 The identity of the accused is known to P.W.2 because he is their neighbour. The accused was 25 years old. PW-11 Dr.Dinakar, who examined the accused has stated that the accused is capable of performing sexual intercourse (See Ex.P-8).
21 The accused is accused of having raped PW-2 in his house on 19.4.2008, at about 3 p.m. PW-2 disclosed the same on the same day to her mother PW-3 that the accused gave her sweet and took her to his house, put on television, raised its volume and bolted the door inside. P.W.2 further stated that the accused had removed her gown (MO-2) and her inner-wear (MO-1) and committed sexual act on her. She had stated that he had urinated in her private part and also threatened to kill her if she reveal the incident to others. She returned home, wept and laid herself.
22 P.W.2 also deposed that when her mother/PW-3 returned home, she complained of pain in her private part. PW-3 found contusion in her private part. PW-2 revealed the entire occurrence to her. Then P.W.4, brother of P.W.2, P.W.5, a friend of P.W.3 were also present. PWs-4 and 5 have also stated in their evidence that when PW-2 narrated the entire occurrence they were there. Immediately, to relieve P.W.2 from pain, P.W.3 applied oil to her private part.
23 PW-9 who belongs to the same village took Pws-2 and 3 in his TVS moped to the private Clinic of PW-6, Dr.Varadharajan in Appakoodal. PW-6 had stated that on 19.4.2008, at about 7.30 p.m., PW-3 brought PW-2. He examined PW-2. She complained of pain in her private part. He found contusion in her private part. When asked, PW-2 told him that her next door neighbour the accused rubbed something in her private part, there was discharge of something in white. PW-6 gave paracetamol tablet to P.W.2 to relieve her from pain, since it is a medico-legal case, he referred the case to Government hospital, Bhavani.
24 PW-6 is a private medical practitioner. He has examined P.W.2 and has stated to the Court what he has observed. He has nothing against the accused to rope him in this case. No dent has been made by the defence in his cross examination to reject his testimony.
25 On the same day, around 10.30 p.m., when P.W.2's father/P.W.1 came home P.W.3 told him what was done to P.W.2 by the accused. P.W.1 enquired his daughter, she narrated him also the entire occurrence. He and his son/PW-4 have bicycled to Appapoodal police station and PW-1 lodged Ex.P-1 complaint to PW-16 S.I. of Police, who registered this case.
26 PW-17 Pandian, Inspector of Police, Bhavani Circle gave written requisition to the Magistrate to send PW-2 for medical examination to find out whether she was subjected to any sexual violence. PW-10 lady Doctor at the Government hospital, Bhavani examined PW-2 and found the following:
(a) Vaginal initio admitted tip of the finger;
(b) There was contusion in the vaginal injuries;
(c) Multiple abrasions on both side of labiya minora;
PW-10 issued Ex.P-16 Accident Register copy.
27. In his cross-examination, P.W.6 rejected the defence suggestion that while playing in sand if PW-2 rubbed her private part, she will have such contusion in her private part. PW-10 opined that a well grown, well built man when presses his penis on the private part of a girl of P.W.2's age the contusion that she has noticed in PW-2 will present. In her cross-examination, PW-10 rejected the defence suggestion that if a male urinate into the private part of a girl such kind of contusion will be present.
28. PW-10, when examined the private part of PW-2 had noticed an abrasion of both side of labia minora and P.W.2's vaginal initio admitted the tip of the finger.
29 As per AMA Glossary of Medical Terms (Source:www.ama-assn.org), 'Labia' means 'the two pairs of skinfolds that protect the opening of the vagina'.
30 In British Medical Association's Illustrated Medical Dictionary [published by A Dorling Kindersley Book Penguin Random House, London] as to 'labia', at page 332, it is stated "the folds of skin of the vulva that protect the vaginal and urethral openings. There are 2 pairs of labia. The outer pair, the labia majora, are fleshy folds that bear hair and contain sweat glands. They cover the smaller, hairless inner folds, the labia minora, which meet to form the hood of the clitoris."
31. As per Section 375 I.P.C. a man having sexual intercourse with a woman is a necessary ingredient. However, by way of Explanation to Section 375 I.P.C. it is stated that penetration is sufficient to constitute the sexual inter-course necessary to constitute the offence of rape.
32 P.W.2 a girl child of 4= years old cannot be expected to tell the sexual act committed on her in so many words, with details thereof like a matured girl.
33. The medical evidence adduced in this case shows that PW-2 had been subjected to sexual intercourse. Reading the medical evidence in the light of said Explanation to Section 375 I.P.C., prosecution established that PW-2 had been subjected to sexual intercourse.
34. On 20.4.2008, at about 7 a.m., in the house of PW-2, PW-17 seized MO-1 jetty/underwear and MO-2 gown of PW-2 under Ex.P-3 Mahazar in the presence of PW-8 Srirangan and one Govindaraj, PW-17 I arrested the accused, seized MO-3 lungi and M.O-4, shorts/jetty from him in the presence of the said witnesses and produced MOs-1 to 4 under Form 95 (Exs.P-16 and 17) to the Court with a requisition to send them to Forensic Science Lab for analysis. PW-15 Vasantha, Forensic Scientist who received MOs-1 to 4 through Court analysed them and found seminal stains on MOs.1, 3 and 4. (see Ex.P-12 Report). Thus, it is seen that the underwear then worn by PW-2 (MO-1) and the lungi and underwear then worn by the accused (MOs.3 and 4) found containing seminal stains. It also supplies corroboration to the testimony of PW-2 that she has been subjected to sexual intercourse.
35. The stand of the defence that since the accused had occupied the house of PW-3's sister against the wish of PWs-1 and 3 and had refused to vacate the house and thus Pws.1 and 3, had engineered a false case using their daughter against the accused in the facts and circumstances of the case does not take us to its logical conclusion.
36. On the other hand, PW-2 a then female child of 4= years old, has no need, no courage to implicate the accused and speak falsehood against the accused. No acceptable and strong reason has been added to reject the testimony of PW-2 and others.
37 The evidence of PW-2 is quite natural, unimpeachable and does not suffer from any doubt or infirmity or inherent improbability. She has also been corroborated by other witnesses and also by the medical and scientific evidence. In such circumstances, in sexual violence cases, evidence of such a witness/PW-2 can be acted upon and a conviction can be safely recorded.
38. In view of the foregoings, the prosecution has clearly established the charge under Section 376(2)(f) I.P.C. against the accused beyond all reasonable doubts.
39 Under Section 376(2)(f) I.P.C. the appellant has been sentenced to 10 years R.I. and fined Rs.1,000/- i/d 6 months R.I. 40 The appellant has raped P.W.2 who was then 4= years old. In these days, increasingly women and children are becoming target of lust of men. It is a motiveless crime. It is a beast behaviour. That is why Lord Macanlay, in his Magnum Opus The Great Indian Penal Code, 1860 discarded, dispensed with the requirement of 'mens rea' (guilty mind) as an essential ingredient for an offence under Section 376 I.P.C. Such kind of criminal behaviour does not deserve sympathy. Such kind of vultures cannot be spared lightly.
41 In the administration of criminal justice, pitiable plight of the victims cannot be lost sight of. The victims of sexual violence, the trauma left on them will long last in their memory, it will have psychological impact on their moral and physical activities. The painful event will refuse to fade away from their memory. The victim in a murder case dies once for all, but the victim in sexual violence case dies every day every minute.
42. In the circumstances, the sentence awarded to the appellant is proportionate to the offence established as against him. Thus, there is no need to dilute the rigour of it.
43. In the result, this criminal appeal fails and it is dismissed. The conviction and the sentence awarded to the appellant in the Sessions Case in S.C.No.169 of 2010 by the learned Principal Assistant Sessions Judge, Erode on 20.12.2010 are confirmed.
24-06-2015 Index : Yes/No Internet: Yes/No vaan/svn To
1.The Principal Sessions Judge, Erode.
2.The Principal Assistant Sessions Judge, Erode.
3.The Public Prosecutor, High Court, Madras.
4.The Superintendent, Central Prison, Coimbatore
5. Inspector of Police, Crime Branch C.I.D., Erode.
Copy to The Director, Tamil Nadu State Judicial Academy, Greenways Road, Chennai 28.
P.DEVADASS, J.
vaan/svn
Pre-Delivery Judgment in Crl.A.No.25 of 2011
24-06-2015