Madras High Court
Chitrarasan vs State Rep. By on 9 February, 2015
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.02.2015
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.760 of 2006
and M.P.No.1 of 2015
Chitrarasan .. Appellant/Accused No.1
vs.
State Rep. By
Inspector of Police
Srimushnam Police station
Cuddalore District.
Cr.No.152 of 2005. .. Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 (2) of Cr.P.C., against the judgment of conviction and sentence dated 30.08.2006, made in S.C.No.315 of 2006 on the file of the learned Principal Sessions Judge, Cuddalore.
For Appellant : Mr.PH.Kumaresan
for Mr.C.Ram Kumar
For Respondent : Mr.V.Arul
Government Advocate (crl.side)
J U D G M E N T
This Criminal Appeal arises out of the judgment of conviction and sentence dated 30.08.2006 made in S.C.No.315 of 2006 on the file of the learned Principal Sessions Judge, Cuddalore, whereby the first accused/the appellant herein was convicted and sentenced as follows:
offence under Section Sentence 341 IPC To undergo one month rigorous imprisonment and to pay a fine of Rs.500/- in default in payment to undergo one month rigorous imprisonment.
363 IPC To undergo five years rigorous imprisonment and to pay a fine of Rs.1,000/- in default in payment to undergo two months rigorous imprisonment.
376 IPC To undergo seven years rigorous imprisonment and to pay a fine of Rs.3,000/- in default in payment to undergo six months rigorous imprisonment.
506(ii) IPC To undergo one month rigorous imprisonment and to pay a fine of Rs.500/- in default in payment to undergo one month rigorous imprisonment.
3(1)(xii) SC/ST Act To undergo five years rigorous imprisonment and to pay a fine of Rs.2,000/- in default in payment to undergo two months rigorous imprisonment.
The sentence are ordered to be run concurrently.
2.The case of the prosecution based on the prosecution witnesses is as follows:
(i)On the side of the prosecution, P.W.1 to P.W.20 were examined, Exs.P1 to P24 and M.O.1 to M.O.4 were marked.
(ii) P.W.1/Thenmozhi and P.W.7/Rajadurai are the parents of P.W.2/the victim girl and they were residing in Kozhaisavadi. They belongs to Adi Dravidar Community. On 14.06.2005, when P.W.2/the victim girl went to market along with her brother, namely, Prabakaran and her father, namely, Rajadurai/P.W.7, A1/the appellant herein teased the victim girl/P.W.2. P.W.2 intimated the same to her father, P.W.7/Rajadurai, P.W.7, in turn, intimated the same to the brother-in-law of A1/the appellant herein. On the next day, i.e. on 15.06.2005, P.W.2/the victim girl as usual went to school at Srimushnam at about 8.00 a.m. and in the evening at about 5.00 p.m., when P.W.2 was standing in the Bus Stop near the School, A1 threatened P.W.2/the victim girl with dire consequences. On 16.06.2005, P.W.2/the victim girl and her brother, namely, Prabakaran went to school. Since, P.W.2 had bleeding in her nose, she has not went to school and she went to the house of her Aunt, namely, Ezhilarasi. At about 2.15 p.m., when P.W.2 was waiting in the Bus Stand, her friend, namely, Baladhivya/P.W.11 saw her and took P.W.2 to her house. Thereafter, at about 4.00 p.m., P.W.11/Baladhivya took P.W.2/the victim girl to the Bus Stand to send P.W.2 to her house. Since, the bus has not come for a long time, P.W.11/Baladhivya sent P.W.2 with an old man in a cycle. After sometime, the said old man left P.W.2 on the way to her Village. At that time, three persons were standing with a Van and A1/Chitrasan, the appellant herein was waiting in the van. They took P.W.2/the victim girl in the van by tying her eyes and mouth with a black cloth. Thereafter, they took P.W.2/the victim girl to a place near the Banyan tree and A1/appellant raped her.
(iii) P.W.2/the victim girl got conscious at about 7.00p.m. and after wearing her dress, because she does not know the way to her Village, she went to a nearby village, namely, Thennur. P.W.2 went to the house of an Army man in Thennur, namely, Selvaray and his wife Alphones/P.W.8. They gave her food and shelter on that day and P.W.9/Susai Mary @ Santhosam and P.W.10/Arokiamary were also staying with P.W.2 in the house of P.W.8/Alphones. In the meantime, since P.W.2/the victim girl has not returned to home from the School, P.W.1/Thenmozhi, the mother of P.W.2 and P.W.7/Rajadurai, the father of P.W.2 were searching her. They went to their relatives house and her aunt's house, namely, Ezhilarasi. For which, the said Ezhilarasi said that P.W.2 has left her house at about 2.15 p.m. Further, P.W.1 and P.W.7 went to the house of P.W.11/Baladhivya and searched her and in turn, P.W.11 has stated that P.W.2 left her house at about 4.00 p.m. At that time, they came to understand that P.W.2 was staying in a house at Thennur. Immediately, the father of P.W.2, namely, P.W.7/Rajadurai went to Thennur. Since, P.W.7 came to the house of P.W.8/Alphones with Aruval, P.W.8 refused to hand over P.W.2 to P.W.7. Further, P.W.8 handed over P.W.2/the victim girl to P.W.1/Thenmozhi, the mother of P.W.2. Thereafter, P.W.2 narrated about the alleged occurrence to her parents. Even though the mother of P.W.11/Baladhivya asked the parents of P.W.2 to go for a compromise, the parents of P.W.2 lodged a complaint/Ex.P.1 against the accused.
(iv) P.W.17/Saminathan, Inspector of Police, Srimushnam Police Station received the written complaint/Ex.P.1 from P.W.1 and registered a case in Crime No.152/2005 for the offence under Sections 341, 363, 376 and 506(ii) IPC and prepared printed F.I.R. Ex.P19. Then, he recorded the statement of P.W.1 and P.W.2. They belongs to Hindu Adi Dravidar Community and the A1/the appellant herein belongs to Hindu Vanniyar Community and hence, PW.17 altered the offence from Sections 341, 363, 376 and 506(ii) IPC to Sections 341, 363, 376 and 506(ii) IPC r/w. 3(1)(xii) S.C/S.T. Act and prepared alteration report/ExP.20 and forwarded a copy of Ex.P20 to the learned Judicial Magistrate No.II, Virudhachalam. Thereafter, P.W.17 forwarded a copy of Ex.P20 to P.W.19/Tmt.Jayalakshmi, Deputy Superintendent of Police, Sethiathope Sub Division for further investigation.
(v) P.W.19/Tmt.Jayalakshmi, Deputy Superintendent of Police, Sethiathope Sub Division took up the case for investigation. On 18.06.2005 at about 9.00 a.m., P.W.19 went to the place of occurrence and prepared observation mahazar Ex.P11 and drew rough sketch Ex.P23 in the presence of the witnesses P.W.13/Elangovan and one Sebastia Pillai. On the same day, at about 11.00 a.m., P.W.19 arrested the accused, namely, Chitrasan/the appellant herein near Virudhachalam main road, kunamangalam road. Then, he seized M.O.4/Mahindra Van, bearing Registration No.TN 20-0248 under the Seizure Mahazar/Ex.P.10 in the presence of the witnesses P.W.12/Murugan and one Rajendran. On the same day, P.W.19 submitted requisition to the learned Judicial Magistrate No.II, Virudhachalam to send P.W.2/the victim girl for medical examination.
(vi) On 19.06.2005, P.W.15/Dr.Srimathi, examined the victim girl/P.W.2 and found that her uterus was normal and the hymen got ruptured. She further submitted that no evidence of spermatazoa seen, either motile or non-motile. P.W.15 answered that the victim girl/P.W.2 would have had sexual intercourse, but was not subjected to rape. She issued the Medical Report/Ex.P.14. Then the victim girl and A1/Chitrasan were referred to Radiology Department to find out their age.
(vii) On 19.06.2005, P.W.5/Dr.Natarajan, Radiologist, examined the victim and Ex.P.6/x-rays were taken and Ex.P.5 certificate was issued stating that the age of the victim girl might be between 17 and 18. On 20.06.2005, P.W.5 examined the accused/Chitrasan and x-rays were taken and Ex.P.7 certificate was issued stating that the age of the accused/Chitrasan would be 20.
(viii) On 20.06.2005, P.W.4/Dr.S.Saravanan, examined the accused as per the requisition/Ex.P.24 sent by the learned Judicial Magistrate No.II, Virudhachalam and issued Ex.P.4 Medical Report stating the accused would be about 28 years of age and he is not an impotent.
(ix) On 12.07.2005, P.W.19 examined P.W.1/Thenmozhi, P.W.7/Rajadurai, P.W.8/Alphones, P.W.9/Susai Mary @ Santhosam, P.W.10/Arokiamary and P.W.11/Baladhivya and recorded their statement. On 16.07.2005, P.W.19 arrested the second accused, namely, Palanivel near Kolathankurichi Subramaniam Temple and after investigation, sent the second accused to judicial custody.
(x) On 17.07.2005, P.W.19 submitted requisition/Ex.P.12 to the learned Judicial Magistrate No.I, Virudachalam, namely, P.W.14/Tmt.Suba Anbumani to record Section 164 Cr.P.C. Statement of P.W.2/the victim girl. On 22.07.2005, the learned Judicial Magistrate No.I, Virudhachalam recorded the Section 164 Cr.P.C. Statement of P.W.4 and the same was marked as Ex.P.9. After recording the statement, P.W.14 sent the case documents to the learned Judicial Magistrate No.II, Virudhachalam.
(xi) On 18.07.2005, P.W.19/Investigating Officer contact Mr.Natarajan/P.W.3, Headmaster, D.V.C. Higher Secondary School, Srimushnam and obtained Ex.P3 age certificate of the victim.
(xii) On 22.07.2005, P.W.19/Investigating Officer submitted requisition to P.W.18/D.Selvaraj, Zonal Deputy Tahsildar, Kattumannarkoil to issue a community certificate of the accused 1 and 2. P.W.18 issued Ex.P.21 and Ex.P.22 stating that the accused belong to Hindu Vanniyar. Thereafter, P.W.19 examined P.W.6/Duraikumar, Tahsildar, who issued the Community Certificate/Ex.P.8 of the victim girl stating that the victim girl/P.W.2 belongs to Adi Dravidar Community.
(xiii) On 10.08.2005, P.W.19 seized M.O.1 to M.O.3 from the victim girl/P.W.2 and forwarded the same for chemical analysis. Thereafter, P.W.19 examined the Forensic Expert, namely, Mrs.Rajalakshmi and recorded her statement.
(xiv) P.W.19 examined all the witnesses and recorded their statements. After completing the investigation, filed the charge sheet on 22.09.2005 against the first accused under Sections 341, 363, 376, 506(ii) IPC and 3(1)(xii) of SC/ST Act and against the second accused under Section 363 r/w. 109 IPC.
3.The Trial Court placed the incriminating evidence before the accused under Section 313 of Cr.P.C. and the accused denied the same in toto. On the side of the defence, no oral evidence was examined and no documentary evidence was marked. After considering the oral and documentary evidence, the trial Court convicted the First Accused for the offence under Sections 341, 363, 376, 506(ii) IPC and 3(1)(xii) of SC/ST Act IPC and sentenced them as stated above. Aggrieved over the same, the first accused/appellant has preferred this appeal.
4.Challenging the conviction and sentence passed by the trial Court under Sections 341, 363, 376, 506(ii) IPC and 3(1)(xii) of SC/ST Act the present appeal has been preferred by the first accused/the appellant herein.
5.The learned counsel appearing for the appellant/first accused raised the following points, namely:
(i)The scene of occurrence has not been proved and there are two versions.
(ii)As soon as the alleged occurrence, P.W.2 met P.W.8 and stayed in her house, but she has not disclosed the factum of rape to her.
(iii)P.W.9 and P.W.10, who were accompanying P.W.8 on the day in the same house and the victim girl/P.W.2 has not discloses anything to them.
(iv)Non-examination of mother of P.W.11/Baladhivya and the Aunt of the victim girl/P.W.2 is fatal to the case of the prosecution.
(v)Non-examination of old man, who took the victim girl/P.W.2 in the cycle is also not fatal to the case of the prosecution.
(vi)The evidence of Doctor/P.W.15 has falsify the factum of rape.
(vii)The Trial Court has not considered all these facts and hence, he prayed for setting aside the order passed by the Trial Court.
6.Resisting the same, the learned Government Advocate (Crl. Side) would submit that the victim girl/P.W.2 is aged about 18 years. He would further submit that the evidence of P.W.2 is sufficient to convict this petition. He would further submit that non-sustaining of injury is not fatal to the case of the prosecution. Further, eventhough the P.W.8/Alphones, in her evidence has stated that P.W.2 has not disclose the rape committed by the accused, usually the victim girl cannot disclosed about the rape to third parties and that factum was rightly considered by the Trial Court. He would further submit that non-examination of mother of P.W.11/Baladhivya and the old man, who took the victim girl in the cycle and also the Aunt of P.W.2 is not fatal to the case of the prosecution and the evidence of P.W.2 is trustworthy and does not requires any corroboration. He further submitted that conviction and sentence by the Trial Court does not warrant any interference. Hence, he prayed for dismissal of the petition.
7.Considered the rival submissions made on both sides and perused the typed set of papers.
8.Now, this Court has to consider what is the age of the victim girl/P.W.2? To prove the age of P.W.2, P.W.3/Natarajan, Headmaster, has been examined and through him Ex.P.3/School Certificate has been marked and in that, date of birth of the victim girl/P.W.2 has been mentioned as 29.05.1989. The alleged occurrence said to have taken place on 16.06.2005. On that day, P.W.2 has completed the age of 16 years. But it is not the case of the prosecution that the victim girl has consented for sexual intercourse. So, the age whether she is below 16 years or above 16 years is immaterial to decide the fact.
9.It is also pertinent to note that A1 is belonging to Hindu Vanniyar community and that has been proved by P.W.18/Selvaraj, Zonal Deputy Tahsildar, Kattumannarkoil by marking Ex.P.21. The victim girl/P.W.2 is belonging to Hindu Adi Dravidar and that has been proved by P.W.6/Duraikumar, Tahsildar, Kattumannarkoil by marking Ex.P.8.
10.Usually, in the case of sexual offences, no eye witness is possible. So, the evidence of victim girl alone has been taken into consideration. So, this Court has to decide whether the evidence of P.W.2/victim girl is trustworthy? The alleged occurrence said to have taken place on 16.06.2005. P.W.2/the victim girl was searched and secured on 17.06.2005 and then only, after enquiry complaint has been given on 17.06.2005. So, the delay is not fatal to the case of the prosecution because the delay has been properly explained.
11.Even though, in the Hon'ble Apex Court it was held that disbelieving or sought for corroboration of rape victim is added injury to the victim girl, but an innocent man cannot be convicted solely on the basis of the evidence of victim girl, provided her evidence is not trustworthy. So, this Court has to scrutinize the evidence of P.W.2. P.W.2, in her chief examination has narrated the facts but it is not fully reliable but it is partly reliable. Hence, it needs corroboration in respect of some admitted facts. The victim girl/P.W.2, in her evidence, has stated that after the alleged occurrence she has stayed in the house of P.W.8. That factum has been corroborated by P.W.8/Alphones and also P.W.10/Arokiamary. So, one aspect has been corroborated by them. But securing this P.W.2 has been contradict by P.W.1/Thenmozhi, mother of the victim girl and P.W.7/Rajadurai, father of the victim girl. P.W.8/Alphones, in her evidence, has stated that the father of the victim, namely, P.W.7 came and searched his daughter and at that time, he possessed Aruval. So, she has not handed over the victim girl to him. P.W.8 took the victim girl/P.W.2 and handed over to the mother of the victim girl, namely, P.W.1 in the house of P.W.11. In this aspect, there is contradiction between the evidence of P.W.1 and P.W.7.
12.The learned counsel appearing for the appellant mainly focus on the fact that as soon as the alleged occurrence, the victim girl/P.W.2 has gone to the house of P.W.8/Alphones and took assylum at her house and at that time, she has not disclose anything about the alleged occurrence. But, I am of the view that not disclosing the incident is not fatal to the case of the prosecution because no women or girl will disclose this alleged rape to the third parties, who are unknown to them except the mother. In such circumstances, the arguments advanced by the learned counsel appearing for the appellant that not disclosing the factum of rape to P.W.8 to P.W.10 is not fatal to the case of the prosecution.
13.The learned counsel appearing for the appellant further submits that non-examination of the paternal aunt of the victim girl/P.W.2 is fatal to the case of the prosecution. It is true that the aunt of P.W.2 has not been examined before this Court. But it is not the case of the prosecution that after the incident, the victim girl gone to the house of her Aunt and intimated the fact. But, whereas the case of the prosecution is that P.W.2 along with her brother left the house for School and on the way, she has gone to the house of her Aunt since she had bleeding in her nose. So, she has gone to the house of her Aunt to change the dress and in the evening, when the victim girl/P.W.2 has proceeded to her house, P.W.11/Baladhivya has taken the victim girl to her house. But P.W.11 turned hostile and she does not support the case of the prosecution. The case of the prosecution is that P.W.2 gone to the house of P.W.11 where she stayed sometime and then only, P.W.11 and P.W.2 came to the bus stand. Since the bus has not come, P.W.11 sent the victim girl/P.W.2 along with a old man in a cycle. But it is true that the old man has not been examined. In such circumstances, I am of the view that the non-examination of the old man is fatal to the case of the prosecution.
14.Further, on 17.06.2005 when P.W.2 was handed over to her mother by P.W.8/Alphones in the house of P.W.11/Baladhivya, the mother of P.W.11 told the parents of the victim girl, namely, P.W.1 and P.W.7 to go for a compromise. That factum is very important to decide whether such occurrence was said to have taken place or not. Admittedly, P.W.1 and P.W.2, in their evidence, has stated the same. But, the mother of P.W.11/Baladhivya has not been examined. The non-examination of the mother of P.W.11 is fatal to the case of the prosecution. So, it is appropriate to incorporate a portion of the evidence of P.W.2, which is as follows:
.....kpypl;lhpfhuh; kidtp my;nghd;R vd;id bfhz;L ngha; vd; jhaplk; me;j ghyjpt;ah tPl;oy; xg;gilj;jhh;/ mjw;F ghyjpt;ah mk;kh mth;fs; ,ij g";rhaj;jpy; ngrp Koj;J bfhs;S';fs;/ ,J xU bgz;zpd; thH;f;if vd;W Twpdhh;fs;/
15.The motive for the alleged occurrence, as deposed by P.W.2/the victim girl, was that a day before the incident, when P.W.7/Rajadurai, father of the victim girl, P.W.2/the victim girl and his brother went to market and at that time, this accused/the appellant herein has teased the victim girl/P.W.2 and when P.W.2 intimated the same to her father/P.W.7, P.W.7 in turn intimated the same to the brother-in-law of the accused/the appellant herein. So, the accused taken vengeance and molested the victim girl/P.W.2. Admittedly, the brother-in-law of the accused/the appellant herein also has not been examined. It is well settled dictum that the motive is double-edged weapon and so, in the case of eye witness the motive has not played a vital role.
16.Now, this Court has to take consideration of the evidence of P.W.15/Dr.Srimathi. She has issued Ex.P.14, wherein it is stated that the victim girl would have had the sexual intercourse but she was not subjected to rape. It is further stated therein that the victim girl would have had the sexual intercourse 15 days prior to the date of examination. But the alleged occurrence said to have taken place on 16.06.2005 and the victim girl was examined by the Doctor on 19.06.2005. Furthermore, the evidence of P.W.2/the victim girl itself is contradictory. In such circumstances, without corroboration, the evidence of P.W.2 cannot be looked into. Further, the scene of occurrence has not been correctly given by P.W.2 and in the rough sketch/Ex.P.23 also, the scene of occurrence was not correctly mentioned. As per evidence of P.W.2, the accused took her to Bushes near Palmyra Tree. But, whereas in Ex.P.23/rough sketch, after crossing so many places, lake and also Ramasamy Sugarcane Mill and then only the place of occurrence was mentioned. So, the scene of occurrence also has not been proved by the prosecution beyond reasonable doubt.
17.As discussed in earlier paragraph, the prosecution has miserably failed to prove that P.W.2 was subjected to rape. So the prosecution failed to prove that the accused is guilty under Section 376 IPC beyond all reasonable doubt. So the conviction and sentence under Section 376 IPC is hereby set aside.
18.In respect of Section 341 IPC is concerned, the evidence of P.W.2 is that A1/the appellant herein was in the van and three other accused waylaid her and took her in the van. But, there is no evidence to show that the appellant herein/A1 has wrongfully restrained the victim girl. So, I am of the view that the offence under Section 341 IPC also has not been made out. Hence, the conviction and sentence under Section 341 IPC is hereby set aside.
19.The only point to be decided is whether the prosecution has proved that the accused is guilt under Section 363 IPC. At this juncture, it is appropriate to incorporate Section 363 IPC, which reads as follows:
363. Punishment for kidnapping Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
20.Admittedly, the victim girl is minor below 18 years. But she was kidnapped by the appellant and took her in the van. Hence, the ingredients of Section 359 IPC has been made out. So, I am of the view that conviction under Section 363 IPC is made out. Hence, the Trial Court is correct in convicting the appellant under Section 363 IPC.
21.On perusal of evidence of P.W.2, it has been proved that the appellant is guilty under Section 506(ii) IPC. So, the conviction and sentence passed by the Trial Court under Section 506(ii) IPC is hereby confirmed.
21.In respect of Section 3(1)(xii) of SC/ST Act, once the offence under Section 376 IPC goes, the accused shall not be convicted for the offence under Section 3(1)(xii) of SC/ST Act. So, the conviction under Section 3(1)(xii) of SC/ST Act is hereby set aside. P.W.2 has only deposed that she belongs Adi Dravidar Community but she has not stated that because she belongs to Adi Dravidar Community, she was abducted and subjected to rape.
22.In such circumstances, I am of the view that the prosecution has miserably failed to prove that the appellant is guilty under Sections 341, 376, IPC and 3(1)(xii) of SC/ST Act. As stated above, the conviction and sentence under Sections 341, 376 IPC and 3(1)(xii) of SC/ST Act is hereby set aside and the conviction and sentence under Sections 363 and 506(ii) is hereby confirmed.
23.With regard to the quantum of sentence in respect of Section 363 IPC alone, this Court is inclined to reduce the sentence from five years rigorous imprisonment to one year rigorous imprisonment and the fine amount is enhanced from Rs.1,000/- to Rs.25,000/-, in default in payment, the accused is directed to undergo one month simple imprisonment. Out of the fine amount of Rs.25,000/-, Rs.24,000/- is ordered to be paid as compensation to P.W.2/the victim girl.
24.In fine,
(i)The Criminal Appeal is Partly Allowed.
(ii)Judgment of conviction and sentence passed by the trial Court under Section 506(ii) IPC is hereby confirmed.
(iii)Judgment of conviction and sentence passed by the Trial Court under Section 363 IPC is hereby confirmed. But the sentence has been reduced from five years rigorous imprisonment to one year rigorous imprisonment and fine amount is enhanced from Rs.1,000/- to Rs.25,000/-, in default in payment to undergo one month simple imprisonment. The period of sentence is ordered to run concurrently.
(iv)Out of the fine amount of Rs.25,000/-, a sum of Rs.24,000/- is ordered to be paid as compensation to P.W.2/the victim girl.
(v)Judgment of conviction and sentence passed by the Trial Court under Sections 341, 376 IPC and 3(1)(xii) of SC/ST Act is hereby set aside.
(vi)The fine amount paid by the accused is ordered to be refunded to him.
(vii)Bail bond, if any executed by the appellant/accused shall stand cancelled.
(viii)The trial Court is directed to secure the custody of the appellant/accused to undergo the remaining period of sentence.
(ix)Consequently, connected Miscellaneous Petition is also closed.
09.02.2015 Index:Yes/No Internet:Yes/No cse R.MALA,J.
cse To
1.District and Sessions Judge, Cuddalore.
2.The Inspector of Police Srimushnam Police station Cuddalore District.
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras.
Criminal Appeal No.760 of 2006 and M.P.No.1 of 2015 09.02.2015