Madras High Court
Vinoth vs State By on 24 October, 2019
Author: C.Saravanan
Bench: C.Saravanan
Crl.A.No.606 of 2015
IN HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 27.07.2019
Pronounced On 24.10.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
Crl.A.No.606 of 2016
Vinoth .. Appellant
vs
State By:
The Inspector of Police,
Nannilam Police Station,
Tiruvarur District.
(Crime No.301 of 2010) .. Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C, to call
for the records of the judgment of the learned Mahila Court Judge,
F.T.C. Tiruvarur in S.C.No.56 of 2013 dated 17th February 2015 and
set aside.
For appellant : Mr.A.Arasu Ganesan
For Respondent : M/s.V.Saratha Devi
Govt. Advocate (Crl. Side)
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Page No 1 of 24
Crl.A.No.606 of 2015
JUDGMENT
The present Criminal Appeal is directed against order dated 23.02.2015 passed by the Sessions Judge, Magalir Neethimandram, (Fast Track Mahila Court), Tiruvarur in S.C.No.56 of 2013.
2.By the impugned order, the learned Sessions Judge has found the appellant guilty of offence under Section 376 of the Indian Penal Code and has sentenced the appellant to undergo Rigorous Imprisonment for a period of 7 years and has further imposed a sum of Rs.1,000/- as fine and in default to undergo six months Rigorous Imprisonment.
3.The sessions Judge has also found the appellant guilty of offence under Section 4 of the Tamil Nadu Prohibition of Women Harassment Act, 2002 (TNPWH Act, 2002) and has sentenced the appellant to undergo Rigourous Imprisonment for a period of 2 years and a fine of Rs.10,000 and in default to undergo six months Rigourous Imprisonment.
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4.The appellant was accused of committing rape and outraging the modesty of victim PW 20 on 28.10.2010 at about 12 in the noon when the victim PW 20 was alone bathing at the backyard of her house.
5.The PW 20 victim is a speech impaired and partially deaf and dump person with low IQ. She is a mentally challenged person and was aged between 17-18 years at the time of commission of the alleged offence by the appellant. The appellant was living next door and was aged 25 years.
6.The appellant was charged as follows:-
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mtuJ tPlb ; d; nfhy;iy Gwj;jpy; aged 18/2010 was mentally Fspj;Jf;nfhz;bUe;jNghJ ePh;> retarded/ deaf and dumb by birth tPlb ; y; ahUk; ,y;yhj NghJ me;j ,lj;jpw;F te;J mtiu thia and therefore you committed the nghj;jp ifia KWf;fp offence of rape punishable under kNdhfhpapd; tpUg;gj;jpw;F khwhf fl;lhag;gLj;jp td;Gzh;rr ; papy; Section 376 of the Indian Penal <Lgl;l nra;if ,jr gphpT 376 d;
Code.
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kw;Wk; rk;gtj;jpd; njhlu;rr
; pahf Secondly:- For the above act you
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7.21 witnesses were examined and 8 Exhibits were marked on behalf of the prosecution. The appellant neither produced any evidence nor marked any exhibits before the trial court.
8.Apart from the official witnesses, other witnesses are the victim herself, her parents and neighbours of the victim, a Special teachers from a deaf and dump school and a Director Cum Psychologist of a School for Mentally Challenged Persons namely Sudar School for Mentally Retarded, Thanjavur and three Panchayat witnesses.
9.PW 3 in her statement dated 09.11.2013 recorded under in Section 161(3) of Cr.P.C stated that she heard a loud wail coming http://www.judis.nic.in______________ Page No 4 of 24 Crl.A.No.606 of 2015 from the PW 20 Victim’s house and therefore went to see. She stated that the appellant ran seeing her and she found that the victim lying undressed with her hands tied at the back. She claims to have bathed and dressed the victim and took her inside the house. There she found out from the victim based on the sign language that she had been raped by the appellant who closed her mouth and held her hands together while raping her. However, during trial, PW 3 turned hostile. This lacuna in the evidence is being used in the present appeal.
10.PW21 physician, in her statement during trial confirmed the content of Exhibit P8 dated 20.01.2011 medical certificate that the victim’s hymen was partially ruptured which admitted one finger and therefore confirmed that rape and a sexual intercourse with a man could not be ruled out. Exhibit P2 dated 23.1.2013 given by PW8 Doctor also confirms that the appellant was potent.
11.Though the victim was mentally challenged and deaf and dumps and was incapable of giving statement on oath, she was examined as PW20. She was examined in the presence of PW 10 who suggested that the evidence of P.W.20 victim can be elicited in http://www.judis.nic.in______________ Page No 5 of 24 Crl.A.No.606 of 2015 presence of a person who is familiar with her such as victim’s parents and a neighbour and relatives.
12.The victim was therefore examined in presence of PW1 defacto complainant/mother of the victim and a neighbour named Sasikala who is stated to have known the victim from her childhood.
Latter assisted the Court while recording evidence.
13.To demonstrate that the victim can communicate with Sasikala, she asked the victim through sign language whether the victim had eaten. The victim sighed yes by nodding which was explained by Sasiskala to the Court. She thereafter asked the victim in sign language “shall we go to school” to which the victim again nodded her head by tilting her head left and right signifying yes. Thereafter, she asked “shall we eat” to which also the victim sighed/nodded her head by tilting her head left. Thereafter, she asked shall we go out to which the victim responded by raising. Thereafter, the case was adjourned for the victim go out and to finish her lunch.
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14.Thereafter, the victim was recalled and the examination was continued in presence of the said Sasikala and the mother of the victim. When the said Sasikala asked who the appellant was, the victim sighed by shaking her right hand clock wise implying she did not know who the appellant was.
15.Again she asked the victim by sign as to what the appellant had done to her by pointing to him. The victim sighed by putting her right hand over the left hand and thereafter put her right hand on the mouth. Thereafter, the victim put her head down and did not sigh implying discomfort. This was explained as use of force on the victim by the appellant.
16.The victim was thereafter asked whether she can speak to the appellant. The victim turned her head sideways showing her dejection and vulnerability. There was no cross examination of victim by the appellant.
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17.Deposition was thus recorded by the trial court by interpreting the gesture/sign of the PW 20 victim with the help of the said Sasikala who was neither a person named in the list of prosecution witness nor examined on oath as a witness.
18.Based on the answers elicited, the Trial Court has found appellant guilty of offence under section 376 of the Indian Penal Code and under section 4 of the Tamil Nadu Prohibition of Women Harassment Act, 2002.
19.The operative portion of the impugned order reads as under:-
27…………………“Admittedly, in this case, the victim girl is deaf and dumb and mentally not matured. She has no such a mental ability to give consent for sex to this accused by an act of reason accompanied with deliberation, the mind weighing as imbalance, the good or evil naughty the side. Hence, the alleged consent of the victim girl in this case is not at all consent. Hence, this court held that the accused found guilty under Section 376 IPC and section 4 of TNPWH Act, 2002.
28. In this case, the victim girl is deaf and dumb and mentally not matured girl. She is residing along with her parent and they are very old and not in a position to maintain the victim girl. In this http://www.judis.nic.in______________ Page No 8 of 24 Crl.A.No.606 of 2015 circumstances, it is just a necessary to award compensation to the victim girl, accordingly this court referred the District Legal Service Authority,Thiruvarur to fix the quantum of compensation to the victim girl and to allow this court to allot her within 2 months from the date of receipt of the judgement.
20.The appellant seeks to assail the impugned order of the trial court on the ground that PW3 who had given evidence had turned hostile and the evidence of PW1 and PW2 namely the mother (the defacto complainant) and the father of the victim PW 20 were hearsay.
21.The appellant also seeks to assail the order of the trial court on the ground that both PW 10 and PW11 experts themselves have expressed their inability to elicit any information from victim PW20.
22.It was submitted that while recording evidence of the victim PW 20, the court erred in taking the assistance of the said Sasikala, the alleged neighbour of PW20 victim who was neither in the list of witness on behalf of the prosecution nor was examined on oath. It is submitted that only based on interpretation of the gesture http://www.judis.nic.in______________ Page No 9 of 24 Crl.A.No.606 of 2015 of PW20 by said Sasikala, the court has found the appellant guilty of offences under Section 376 IPC and section 4 of TNPWH Act, 2002.
23.It is submitted that the said Sasikala was not an expert to give reliable interpretation of the gesture/sign of the victim PW20 and therefore the order was liable to be set aside. It was further submitted that the victim herself being mentally challenged person was incapable of giving statement.
24.In this connection learned counsel for the appellant submits that the order of the trial court was liable to be set aside in the light of the decision of this court in 1986 (3) Crimes 237 as the victim is not in a position to understand the sanctity of oath and her statement could not have been recorded to convict the appellant. It was further stated that similar point was discussed in 2006 (1) Crime in Sunil Kumar versus State of Himachal Pradesh.
25.The learned counsel for the appellant also drew my attention to the decision of the Honourable Himachal Pradesh High Court in the case of Suneel Kumar @ Sony Vs State of Himachal http://www.judis.nic.in______________ Page No 10 of 24 Crl.A.No.606 of 2015 Pradesh, 2006 Crl LJ 1471. The learned counsel submitted that though “the victim girl was not in a position to take oath as she was deaf and dumb, she was allowed to depose by this Court and was further to examined as witness.”
26.Per contra, the learned Government Advocate submitted that the victim girl is a Deaf and Dumb girl who was overpowered by the Appellant/Accused and forced himself on her and committed an offence under Section 376 of I.P.C., and Section 4 of the TNPWH Act. The victim girl has affirmed during examination that the Appellant/Accused was in person who had indulged in the act and that the evidence of the victim cannot be ignored.
27.The learned Government Advocate (Crl. Side) submits that the order of the Sessions Judge is well-reasoned and requires no interference. In this connection, the attention was drawn to the deposition of the victim girl herself who was examined as P.W.20 wherein the victim girl has confirmed the involvement of the Appellant/Accused in the alleged offence. http://www.judis.nic.in______________ Page No 11 of 24 Crl.A.No.606 of 2015
28.I have considered the facts of the case. I have also perused the evidence on record.
29.The alleged crime is supposed to have taken place on 28.10.2010 at about 12 noon when the victim was alone at home and was having a bath at the backyard of her house.
30.The victim is alleged to have been overpowered by the appellant by taking advantage of the fact that the victim was alone at home who was a deaf and dumb person with low IQ and mentally challenged. The appellant is alleged to have covered her mouth and tied her hands together and sexually assaulted and raped her.
31.Though the alleged offence is said to have been committed on 28.10.2010, complaint was filed only on 9.11.10 by the PW1 mother of the victim/defacto –complainant. According to the PW1, the intervention of the local panchayat was first sought for and who later directed the PW1 to approach the Police. She was earlier dissuaded from precipitating the issue further by the appellant’s mother.
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32.Thereafter, a complaint was filed vide Ex.P1 dated 9.11.2010 and the victim PW20 was sent for medical examination. As per the deposition of PW21 and the Ex.P8 Medical Certificate given by the said witness, it stands confirmed that the victim’s hymen was ruptured and possibility of rape/sexual intercourse could not be ruled out. The victim was aged between 17-18 years on the date of alleged offence and was deaf and dumb by birth and is stated to be mentally challenged with low IQ.
33.The case of appellant is that there is no direct evidence to prove that the victim was raped by him. PW3 produced by the prosecution also turned hostile. Therefore, conviction solely based on the deposition of the PW20 victim herself who was incapable of giving statement based on the interpretation of the gesture/sign of P.W.20 with the help of Sasikala was unsustainable.
34.It has been held that even if the statement of other witness are ignored, the statement of victim cannot be ignored. In a rape case, the victim is best witness. In State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990) 1 SCC 550, Hon’ble http://www.judis.nic.in______________ Page No 13 of 24 Crl.A.No.606 of 2015 Justice. Ahmadi (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words:-
16.A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy.
If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the http://www.judis.nic.in______________ Page No 14 of 24 Crl.A.No.606 of 2015 evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
“It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.” With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
35.Only when the Court for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for other evidence which may lend assurance to her testimony short of corroboration required. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. Normally, if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix http://www.judis.nic.in______________ Page No 15 of 24 Crl.A.No.606 of 2015 does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.”
36.Dealing with a somewhat similar case, the Hon’ble Supreme Court recently in State of Maharashtra vs Bandu alias Dault, (2018) 11 SCC 163, restored the conviction of the accused under Section 376 IPC and sentenced him to undergo rigorous imprisonment for seven years and thereby reversed the judgment of the High Court acquitting the accused.
37.In State of Punjab vs Gurmit Singh, (1996) 2 SCC 384, the Hon’ble Supreme Court held that courts must, “while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the http://www.judis.nic.in______________ Page No 16 of 24 Crl.A.No.606 of 2015 females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of http://www.judis.nic.in______________ Page No 17 of 24 Crl.A.No.606 of 2015 a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
38.In this case the accused is placing reliance on technicality. In my view, merely because the help of the said Sasikala was sought for ipso facto is not fatal.
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39.The objective facts that come out from the narration of the facts of the case is that the PW20 victim was subjected to sexual assault albeit rape. Considering the fact that the victim was mentally challenged person with low IQ, question of victim consenting for sex does not arise. The fact that the victim was deaf and dumb and also mentally challenged with low IQ makes it clear that she could not have consented for a casual sex. It confirms that the victim was raped.
40.Victim PW 20 during the course of examination has given indication that she was forced upon by the appellant. Though there were constraints in eliciting detailed answers from the victim considering the fact that the victim PW 20 was not only mentally challenged/retarded with low IQ but also deaf and dumb from birth, victim PW 20 has nevertheless explained sufficiently and the circumstances surrounding the episode.
41. The deposition of the victim reads as follows:
“Witness has been recalled and examined before her mother and one neighbour Sasikala. On questioning, whether the victim girl knows the accused, the victim girl gestured as that she did not http://www.judis.nic.in______________ Page No 19 of 24 Crl.A.No.606 of 2015 know him. And, when she was questioned as to what did the accused do, she gestured as if he held her hand and closed her mouth. Thereafter, she bowed down her head and did not gesture anything.”
42.Under Section 118 of the Indian Evidence Act, 1872 even a lunatic person is competent to testify. Further, under Section 119 of the Indian Evidence Act, 1872 , a witness who is unable to speak may give evidence in any other manner in which he/she can make it intelligible as by writing or by sign provided such writing must be written and the sign must be made in the court and such evidence of given is be deemed oral evidence.
43.The court has liberty of taking the assistance of an interpreter or a special educator in recording the statement and such statement is now required to video graphed.
44.Further, in this case PW-10 expert himself has stated that the evidence of the victim can be elicited with the help of friends and relatives who have known the victim considering the fact that the victim was not only mentally challenged but was also deaf and dumb person.
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45.In State of Rajasthan vs Darshan Singh, (2012) 5 SCC 789, it was held that “To sum up, a deaf and dumb person is a competent witness. If in the opinion of the court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.
46.The appellant now seeks to extricate himself by taking advantage of the fact that the eyewitness namely PW3 turned hostile and the manner of recording of evidence with the help of Sasikala. The evidence of the victim was elicited with the help of the said Sasikala not only in the presence of mother of the victim but also in presence of expert PW 10 who himself suggested that the statement of the victim can be elicited with the help of friends, relatives and the parents who have known the victim from childhood. Therefore, I do not find any infirmity in the recording of evidence of PW 20.
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47.In the present case, the interpreter was a person who is from the same surrounding. The appellant has not shown that the said sasikala was interested in his conviction.
48.The prosecution would have booked the appellant under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) if the offence was committed after its enactment considering the fact that the victim was aged below 18 years on the date of the alleged offence. However, since the offence pre-dates the aforesaid enactment, the case cannot be examined from the prizm of the said Act.
49.The victim in this case is a vulnerable person who fell prey to the lust of the appellant who overpowered the victim by taking advantage of the fact that she was alone at home and was bathing at the back yard of a house.
50.Pw1 Mother had asked mother of the appellant to intervene who merely appears to have asked her to let the bye gone be bye gone which is quite natural considering the societal pressure. http://www.judis.nic.in______________ Page No 22 of 24 Crl.A.No.606 of 2015
51.The Court is also entitled to presume existence of facts in the course of natural events, human conduct in relation to the facts of this case. The fact that the victim’s hymen was ruptured shows that she had been subjected to sexual intercourse. Considering the fact that the appellant was a neighbor of the victim, it can be assumed that the appellant was certainly aware of the victim and her incapacities and the time when she was likely to be alone.
52.The evidence elicited during the trial before the trial court inspires confidence of the court. P.W.20 victim was subjected to sexual assault amounting to rape by the appellant. It is also noticed that while giving statement under Section 313(1) of Cr.P.C, the appellant had denied the allegation as false. However, at the time of sentencing the appellant has merely prayed to reduce the punishment while recording statement under Section 235(2) Cr.P.C.
53.Therefore, I do not find any reasons to interfere with the finding of the trial court and the awarding sentence. http://www.judis.nic.in______________ Page No 23 of 24 Crl.A.No.606 of 2015 C.SARAVANAN, J.
Jen
54.For the above reasons, the present Criminal Appeal is dismissed.
24.10.2019 Index :Yes/No Internet :Yes/No jen To
1.The Inspector of Police, Nannilam Police Station, Tiruvarur District.
2.Magalir Neethimandram, (Fast Track Mahila Court), Tiruvarur.
3.The Section Officer, V.R.Section. High Court, Madras.
Pre-Delivery Judgment in Crl.A.No.606 of 2016 http://www.judis.nic.in______________ Page No 24 of 24