Madras High Court
Sekar And Ors. vs State Rep. By The Inspector Of Police on 6 February, 2008
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. These Criminal Appeals have been filed by the accused Nos. 1,2,4,5,7 and 8 in S.C. No. 255 of 1997 as against their respective conviction and sentences passed by the learned Assistant Sessions Judge, Namakkal, for the offences committed by them under Sections 366 and 376 IPC.
2. The brief facts which lead to the filing of these Criminal Appeals are as follows:
(a) P.W.1 is the father of the victim girl P.w.2. P.W.1 is a Teacher. He is a handicapped person. P.W.2, his daughter had failed in her SSLC Examination and she was admitted in a private Tutorial College by name Seran Tutorial College. On 31.7.1993 at about 8.00 pm., when she was walking near Nadupatti, on the way to her house from the Vennandur Union Bus stop, after attending the Tutorial Classes, A.1 told her that he loves her and wants to marry her, which was disagreed by P.W.2. At that time a car bearing Registration No. TTA-1886 came near her and A.1 pushed PW.2 inside the car by applying force and A.2,4,5 were already in the car. The incident was informed to P.w.1, father of the victim girl by one Sugavanam, confirmed by another person by name Thangavel, after an hour. Since P.w.1 was handicapped and unable to walk he sent her relatives in search of P.w.2 and having failed in their search, at last, he filed Ex.P.1 complaint on 2.8.1993. In the meanwhile A.1, along with A.2,4,5, who kidnapped P.w.2, went to the house of one Selvi, her sister at Pudupatti and locked up her inside a room. Ther, P.W.2 was forced by A.4,6 and 8 to marry A.1, which was refused by P.W.2. Then P.w.7 stated that "why should we get her consent, we should go to the temple on the next day morning where A.1 will marry P.W.2". As stated by A.7, all went to Arapaleeswarar Temple at Kolli Hills on the next day morning and in their presence A.1 put the Thali on the neck of P.W.2, inspite of the resistance shown by P.W.2. Thereafter she was taken to Mullukurichi and in a house she was raped for three days and on 4.8.1993 she was taken by A.1 to Palampatti. In the meanwhile since it was known to A.1 that P.w.2 was being searched by the Police, A.1 taken her to Thiruverumbur Police Station where he informed them that marriage gook place between them.
3. P.W.10, Sub Inspector of Police of Vennandur Police Station at the relevant point of time on receipt of Ex.P.1 complaint on 2.8.1993 went to the place of occurrence no 3.8.1993 and prepared observation mahazar, Ex.P.8 and rough sketch Ex.P.7, and recorded statements from the witnesses. P.W.11, the then Circle Inspector of Rasipuram Circle on receipt of FIR copy on 6.8.1993 taken up his investigation and on receipt of information arrested A.1 and rescued P.w.2 from Thiruverumbur Police Quarters. In the presence of witnesses, P.W.1 recovered, Thali, the dresses worn by the accused and victim under mahazars. He arranged for judicial remand of the accused and the victim who were subjected to medical examination. He also arranged to send the material objects for being subjected to chemical analysis. P.w.13, Dr. Manimekalai Kumar who examined P.w.2, examined her and gave her report in Ex.P.13. She has opined that the age of the victim was between 17 and 19. Likewise PW.14, Dr. Chidambaram who examined A.1, gave Ex.P.15 Potency Report. P.w.12, his successor, after seizing the vehicle used for kidnapping, and after completing the investigation, filed the charge sheet on 19.6.1996.
4. On behalf of the prosecution P.Ws 1 to 14 have been examined and Exs.P.1 to P.16 have been marked, besides M.Os 1 to 11. On behalf of the accused no one was examined and no document was produced.
5. When the accused were questioned with regard to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, all the accused have denied the same as false. A.1 has filed a written statement which reads as follows:
I am innocent. The charge that I have kidnapped P.W.2 and married her and raped her is false. On my enquiry I came to know that P.W.1 and his wife, parents of P.W.2, compelled her to marry her uncle's son. But P.W.2 refused and she has left the house voluntarily. To suppress the mistake committed by P.w.2, at the instance of my enemies after several days a false case has been filed against me" The evidence that P.w.11 arrested me along with P.w.2 at Thiruverumbur Police Colony is false. I was staying in my village and they took me from my house and foisted the case. P.w.3 is the sister's son of P.w.2 and therefore he is deposing falsely. P.W.4 is the co-brother of PW.1 and therefore he is giving evidence in support of P.w.1. P.W.6 is a close relative of P.w.2 and therefore he is giving false evidence.
6. On a consideration of the oral and documentary evidence, the learned Assistant Sessions Judge, Namakkal, convicted A.1 under Sections 366 and 376 IPC and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 500/= for each offence, in default to undergo 3 months rigorous imprisonment. The learned Assistant Sessions Judge convicted accused Nos. 2, 4, 5, 7 and 8 under Sections 366 and 376 IPC read with Section 109 IPC and sentenced each of them to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 500/= each, in default to undergo 3 months rigorous imprisonment. All the sentences to run concurrently. Even during trial of the Sessions Case, the third accused died and the 6th accused has been acquitted of the charges. Aggrieved of the conviction and sentences, the accused the have preferred these criminal appeals.
7. Mr. Gopinath, Learned senior counsel appearing for the appellants contended as follows:
(i) There is a delay of two days in lodging the complaint and the delay has not been properly explained by the prosecution;
(ii) The age of the girl may be above 18 years and she may not be a minor and she could have gone voluntarily with the accused;
(iii) There is no reliable independent witnesses to prove that A.1 married P.w.2 at Arapaleeswarar Temple at Kolli Hills;
(iv) According to the evidence of P.W.1, the victim girl was rescued on 3.8.1993 itself after a Panchayat in the House of one Palaniammal, M.L.A., and the girl was sent along with her parents on the same day and therefore the alleged date of arrest of the accused and rescue of the girl on 11.8.1993 is false;
(v) The evidence of P.w.3, who is a close relative of P.Ws 1 and 2 is not believable.
8. Per contra, the learned Government Advocate appearing for the respondent contended that there is not even a suggestion that there was any love affair between P.w.2 and A.1 as a result of which P.W.2 might have volunteered to go with A.1 to marry him and live with him. The learned Government Advocate further contended that in a case of this nature the parents of victim girl will normally search for the missing girl and will not rush to lodge a complaint immediately because of fear of knowledge to others and also for the apprehension that the girl's future may be spoiled.
9. P.w.2 is daughter of P.W.1. She failed in her 10th standard examination and therefore her father admitted her in Seran Tututorial College at Mallasamudhram. She used to go to the coaching classes by bus and on 31.7.1993 when she was returning from the College at 3.00 pm., after getting down from the bus in the Vennandur Union Bus Stop and was walking towards her house, A.1 followed her and told her that he loves her and asked her to marry him. P.w.2 did not reply and she continued her walk. When she neared A.1's aunt's house, there was a car by registration No. TTA1886 (M.O.9) came near her and all of a sudden A.1 caught hold of her hand and pushed her inside the car and when she tried to open her mouth and raise an alarm, A.1 is said to have gagged her mouth with a Towel. A.2, A.4 and A.5 were also sitting in the Car and A.4 directed the Driver of the Car to take the car immediately and thereafter they went to the house of A.1's sister Selvi at Pudupatti. She was dragged inside the house. A.4, A.6 and A.7 compelled her to marry A.1. On the next day A.4, A.5, A.8 and A.7 took her to the temple by name Arapaleeswarar at Kolli Hills where A.1 is said to have tied Thali on P.W.2. Thereafter she was taken to a place called Mullakurichi where for three days she was raped by A.1. On 4.8.1993 she was taken to a place called Pallampatti and on 5.8.1993 she was taken to the Trichy Police Station where it was represented that they have got married and they have come for a honeymoon. On 10.8.1993 night the Inspector of Police, Thiruverumbur Police Station arrested A.1 and took custody of P.w.2. The above is the evidence of P.W.2 as to the manner of occurrence.
10. Learned senior counsel appearing for the accused would submit that there is a long delay in lodging the complaint which is not explained by the prosecution. P.W.1 is the father of P.w.2 victim girl. He has expected her daughter to return upto 6.00 pm.,. But he was informed by one Sugavanam that A.1 has kidnapped her and since he was a handicapped person, he sent his relatives to search for her daughter. Since the girl could not be traced, on 2.8.1993 he has given a complaint, Ex.P.1 to Vennandur Police Station which was registered as a case in Crime No. 458 of 1993 by P.W.9 at 7.30 pm.,. Therefore for an occurrences said to have happened on 31.7.1993 at 3.00 pm., the complaint has been lodged on 2.8.1993 at 7.30 pm., after a delay of two days. Normally, in a case of this nature, where a girl is missing the parents will not like to give a complaint immediately, because the same may spoil her future. It is the normal practice that the parents will go in for a search to trace the missing girl. In this case also, P.W.1 has stated that because he was handicapped and unable to walk, he has sent his relatives to got in search of the girl and since she was not traced till 2.8.1993m, he has lodged the complaint at about 7.30 pm., at the Police Station. Therefore, the delay in lodging the complaint of a missing girl cannot be taken in the sense of affecting the prosecution case.
11. The next contention is that the girl is a major as she could have gone voluntarily with A.1 to marry him because of the alleged compulsion by P.w.1 and wife to marry her uncle's son. Such a suggestion has been stoutly denied by P.W.1 and 2. As per the school certificate the date of birth of P.w.2 is 15.6.1977 and therefore on the date of occurrences she was aged 16 years 1 month and 16 days. P.W.8 has issued Ex.P.4 certificate wherein he has opined that P.w.2 is aged between 17 and 18 years. To arrive at such a conclusion, he has relied upon 5 x-rays (M.O.10 series). Normally, a cild is admitted at the age of 5 years in the first standard and at the 10th standard, the age will be 15 years. P.W.2 has failed in SSLC and therefore she has been admitted in a tutorial college. Therefore as per school certificate the age is more than 16 years. AS per the Doctors opinion she is above 17 years but below 18 years. Since she has not completed 18 years, she has to be treated as a minor. Therefore, the contention of the learned senior counsel for the accused that P.W.2 was a major and therefore she had given her consent to elope with A.1 to marry him is not sustainable. There is not even a suggestion to P.w.2 or other witnesses that P.W.2 and A.1 had any love affair. No document like any letters exchanged between A.1 and P.w.2 have been produced. Therefore, the contention that P.w.2 volunteered to go with A.1 is not believable.
12. P.w.2 also denied the Panchayat alleged to have been held at the house of Palaniammal, MLA. P.w.2 has been rescued at Trichy on 10.8.1993 and produced before the Magistrate on 11.8.1993. P.w.1's evidence in this regard will not be given much importance. P.w.1 might have been called by the MLA at the instance of A.1 for a Panchayat on 3.8.1993 because on 2.8.1993 the complaint has been lodged by P.w.1 and the case has also been registered against A.1 and others. If actually P.w.2 was sent to the house of Pw.1 on 3.8.1993 itself, the police could not have gone al the way to Trichy to rescue P.w.2 from the house of one Thirunavukkarasu, P.w.5. Though P.W.5 has been treated as hostile witness, during cross examination he has admitted that on 4.8.1993 A.1 came with P.W.2 and told him that he has married PW.2 and want residence and believing his words he allowed them to stay in his house. He has also admitted that on 10.8.1993 at 10.00 p.m., the Inspector of Police, Rasipuram along with the police party came to his house and took A.1 and P.W.2. P.W.6 has deposed about the rescue of P.w.2 on 10.8.1993 night at Thiruverumbur Police colony. Therefore, there is ample evidence to show that till 10.8.1993, P.W.2 was in the custody of A.1 at various places including Trichy.
13. Even considering that P.W.3 is an interested witnesses and his evidence is to be eschewed, the solitary and cogent evidence of P.W.2, victim girl, is enough to bring home the guilt of the accused. The evidence of P.W.2 is corroborated by material objects and medical evidence. Time and again in various decisions, the Hon'ble Supreme Court has held that an accused charged of the offence of rape could be convicted relying upon the testimony of the victim girl and corroboration by independent witnesses is unnecessary.
14. In Inder Singh v. State/Delhi Administration reported in 1978 LW (Crl) 105, the Hon'ble Supreme Court has held as follows:
While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. Proof beyond reasonable doubt is a guideline, not a fetish and guilty men cannot get away with it, because truth suffers some infirmity when projected through human processes.
15. In Vadivelu Thevar v. State of Madras reported in 1957 II MLJ (SC) the Hon'ble Supreme Court has held as follows:
As a general rule, a court can and may act on the testimony of a single witness through uncorroborated, one credible witness outweighs the testimony of a number of other witnesses of indifferent character.
16. The next contention of the learned Counsel for the appellants is that the punishment imposed by the court below is too harsh and severe. The have been convicted to undergo rigorous imprisonment of ten years for the offence under Sections 366 and 376 IPC. The Hon'ble Supreme Court has held in several decisions that the punishment in such offences must be proportionate to the gravity of the offence. In this case, the minor girl was kidnapped on her way to the home and she was forced to marry, she was also assaulted sexually against her will. Therefore, the punishment inflicted by the trial court is justified.
17. In the result, both the Criminal Appeals are dismissed confirming the conviction and sentences of the accused passed by the learned Assistant Sessions Judge, Namakkal, rendered in S.C. No. 255 of 1997. The bail bonds executed by the accused shall stand cancelled. The trial court shall secure the accused to commit them to prison to undergo the remaining period of sentence.