Madras High Court
Unknown vs Balamurugan on 4 February, 2022
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.02.2022
CORAM
THE Hon'ble MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.A.(MD)No.298 of 2015
State represented by
The Inspector of Police,
Pudur Police Station,
Thoothukudi District.
(Crime No.179 of 2004) : Appellant
Vs.
Balamurugan : Respondent
ORDER
In continuation of the judgment of conviction dated 03.09.2021 by the Appellate Court, Madurai Bench of Madras High Court, reversing the judgment of acquittal by the learned Assistant Sessions Judge, Kovilpatti, dated 26.08.2009. The Respondent/Accused was secured by the police. The case is posted today to hear the arguments of the learned Additional Public Prosecutor 1/15 https://www.mhc.tn.gov.in/judis regarding quantum of sentence to be awarded to the Respondent/Accused and the learned Counsel for the Respondent/Accused regarding quantum of sentence.
Heard Mr.T.Senthil Kumar, learned Additional Public Prosecutor regarding the quantum of sentence that is to be awarded to the Respondent/Accused and Mr.S.Jayasingh, learned Legal Aid Counsel for the Respondent/Accused.
2. It is the submission of the learned Additional Public Prosecutor that the Respondent herein was the Accused before the learned Assistant Sessions Judge, Kovilpatti. The Accused was charged for the offences under Section 376 (l) of IPC and the same reads as under:
“376. Punishment for rape – (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years, and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both;
2/15 https://www.mhc.tn.gov.in/judis Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
The prosecution had examined the witnesses P.W-1 to P.W-12, marked documents Ex.P-1 to Ex.P-5 and material objects M.O-1 and charges were proved by the Prosecution. The then learned Assistant Sessions Judge, Kovilpatti had misdirected himself and on wrong appreciation of evidence based on the evidence in cross-examination of the witnesses P.W-1 to P.W-12, particularly, the victim viz., P.W-4, had misdirected himself and acquitted the Accused ignoring the guidelines of the Hon'ble Supreme Court regarding the burden of proof, its repercussions and appreciation by the trial judges and therefore, this appeal was filed by the Prosecution. The evidence of the Prosecution was beyond reasonable doubt regarding the charge framed against Accused and it was proved. The learned Assistant Sessions Judge had considered only the answers given by the witnesses in cross-examination and had not considered the evidence of the witnesses importance of Section 376 IPC and the provisions of Indian Evidence Act on the special reference to 3/15 https://www.mhc.tn.gov.in/judis offences against woman and thereby committed an error of the guidelines issued by the Hon'ble Supreme Court. Therefore, the appeal filed by the Prosecution.
3.In the appeal, after hearing both parties, the Appellant/Prosecution and the Respondent/Accused the Hon'ble High Court had convicted the Accused and reversed the judgment of acquittal pronounced by the learned Assistant Sessions Judge, Kovilpatti, dated 26.08.2009. Therefore, the Accused had been secured on execution of warrant. This case is posted for hearing the arguments regarding the quantum of sentence. It is the submission of the learned Additional Public Prosecutor that the Accused had been a relative of the victim. His marriage with another woman was already fixed. On the date of his betrothal, he had committed the offence attracting Section 376 (l) of IPC on the victim girl who is deaf and dumb and who was aged 14 years only. Now the victim of this crime is aged 31 years and still unmarried due to the stigma caused by the criminal assault on her by this Respondent/Accused. Therefore, he is to be imposed with heavy penalty and maximum sentence. No leniency 4/15 https://www.mhc.tn.gov.in/judis shall be shown to the Respondent/Accused. Further, the learned Additional Public Prosecutor invited the attention of this Court to the provisions to Section 376(l) of IPC.
Therefore, the submission of the learned Additional Public Prosecutor that the arguments regarding sentencing need not be heard as the minimum sentence itself is 7 years.
4.Any way, the learned Additional Public Prosecutor relies on the report of the Prosecution regarding the incriminating circumstances available against the Accused warranting maximum sentence.
5.The learned counsel for the Respondent/Accused submitted that the mitigating circumstances are in favour of the accused. As per the submission of the learned Counsel for the Respondent/Accused, the Accused had married after the Judgment of acquittal. Now he is the father of two children. He is working as a daily wage labourer and he has to support his family consisting of aged mother, wife and two children. Therefore, the Court may consider his 5/15 https://www.mhc.tn.gov.in/judis social status and his economic status and also the consequences of the Accused being sent to Prison, the livelihood of the aged mother of the Accused, his wife and minor children will be affected. Therefore, the learned counsel for the Respondent/Accused seeks lesser punishment. Also the learned Counsel for the Respondent/Accused submitted that invariably in cases of Appeal against acquittal by Prosecution, there is remote possibility of the Judgment of acquittal being reversed. Especially if the learned trial Judge had properly appreciated evidence in the light of Indian Evidence Act. The alleged occurrence alleged to have occurred in the year 2004. The Judgment of the learned trial Judge was in the year 2009. Appeal filed by the Prosecution in the year 2009 itself but the appeal was taken up by the Hon'ble High Court in the year 2021, roughly 12 years it was pending. The elder son of the Respondent/Accused is 12 years now. If the Accused is imprisoned, the future of the minor children will be affected. Therefore, the learned counsel for the Respondent/Accused sought indulgence of this Court to consider lesser imprisonment less than 7 years for no fault of the Accused for reversing the Judgment of acquittal in this length of time. Therefore, he seeks the Court to apply special circumstances second Clause of Section 376 of IPC “provided that the Court may for adequate and 6/15 https://www.mhc.tn.gov.in/judis special reasons to be mentioned in the Judgment, impose a Sentence of Imprisonment for a term of less than seven years. Also he relied on Section 361 of Cr.P.C., and prayed the Court for lesser Imprisonment.
6. Considered the rival submissions and this Court had questioned the Accused regarding the quantum of Sentence, for which, the Respondent/Accused submitted that the Court may impose lesser punishment. He also submitted that he has a family consisting of his aged mother, wife and two children. He has to support them and if he is sent to Prison, the livelihood of the aged mother, wife and children will be jeopardised. Therefore, he seeks mercy of the Court.
7. The Accused was questioned regarding his capacity to pay compensation, for which, he had replied that even he does not have the ability to engage an individual Counsel. Therefore, the Court had appointed a Legal Aid Counsel for him. Therefore he does not have sufficient resources to pay compensation and he sought leniency.
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8. As per the submission of the learned Additional Public Prosecutor, Victim Compensation Scheme was enacted by the Parliament in 2011 vide notification No.F-3-87/2011/Home-2, dated 03.08.2011 and this Court is empowered to award any amount as compensation, considering the plight of the victim of crime. The learned Additional Public Prosecutor also relied on the Government Order in G.O (Ms) No.33, Social Welfare and Nutritious Meal Programme [SW.S(2)] Department, dated 03.10.2020 regarding payment of compensation to the victim of similar offences attracting provisions of Protection of Children from Sexual Offences Act. Even though it is covered under Protection of Children from Sexual Offences Act, the said Government Order can be utilized for awarding compensation to the victim herein. The State is obliged to pay compensation to the victim. Apart from that as per Section 357(A), the Court is empowered to award any amount as compensation to the victim.
9. In the light of the rival submissions and on questioning the accused regarding sentence, the accused had replied that minimum sentence may be imposed. As per Section 376 (l) IPC as amended in 2013, lesser 8/15 https://www.mhc.tn.gov.in/judis sentence itself is 10 years and fine. Considering the rival submissions of the learned Counsel for the Prosecution and the Respondent/Accused, this Court orders that the Accused is to be sentenced to undergo 5 years of rigorous imprisonment. Since the victim of the sexual assault is to be compensated, this Court is invoking the provisions of Victim Compensation Act which is applied only to offences under Protection of Children from Sexual Offences Act. Still this is an offence attracting the provisions of Protection of Children from Sexual Offences Act, but before the Protection of Children from Sexual Offences Act was enacted, this offence had occurred and therefore it attracts the provisions of Section 376(l) IPC. The ingredients of the offences are same.
10. On perusal of the records, it is found that originally the charge was framed on 07.02.2006 under Section 376 (l) of IPC prior to amendment. Therefore, the trial was conducted based on the charge framed by the learned Assistant Sessions Judge, Kovilpatti and the judgment pronounced on 26.08.2009.
11. Amendment to Section 376 was subsequent to the date of 9/15 https://www.mhc.tn.gov.in/judis occurrence. Therefore, the argument of the learned Additional Public Prosecutor regarding invoking Section 376 (l) will result in miscarriage of justice. The intention of framing charge is to warn the accused in advance that the trial is to be conducted based the charge under Section 376 of IPC attracting punishment not less than 7 years. But which may extend to imprisonment for life and shall also be liable to pay fine. The subsequent amendment brought to Section 376 of IPC, if invoked, amount to miscarriage of justice as the trial was conducted and the defence of the Accused was effectively conducted by the Counsel engaged by the Accused to defend him effectively with all defence available under Section 376 of IPC.
12. These defences are not available to the accused under the amendment to Section 376 of IPC which had been brought out later in point of time. Similarly the offence alleged against the accused attracts provisions of Protection of Children from Sexual Offences also, but Protection of Children from Sexual Offences was enacted in the year 2012 and notified on 19th June, 2012. Considering the submissions of the learned Counsel for the Respondent/Accused invoking the powers of the Court under Section 361 10/15 https://www.mhc.tn.gov.in/judis Cr.P.C., and considering the circumstances in this case, the accused was acquitted by the trial Court in the year 2009, the appeal was taken up by the High Court in the year 2021, in between 12 years have passed and therefore, the arguments of the learned Additional Public Prosecutor that the offences alleged against the accused attracts minimum sentence of 10 years and fine, cannot at all be imposed against the accused, as the amendment to Section 376 of IPC was amended in the year 2013 vide Criminal Law Amendment Act 2013 (13/2013) and the Protection of Children from Sexual Offences Act was enacted in the year 2012. As per the Article 20 of the Constitution of India, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act. Therefore, as on the date of commission of offence i.e., 15.09.2004 the provisions amendment to Section 376 IPC as amended in 2013 was not in force and Protection of Children from Sexual Offences Act did not come into force. Therefore, the submission of the learned Additional Public Prosecutor regarding maximum sentence to the accused not less than 10 years cannot be imposed in this case and the said submission is rejected.
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13. In the light of the above discussion, as the IPC offence under Section 376 of IPC stood as on the date of occurrence it was 7 years of imprisonment minimum. The Accused was acquitted by the learned trial Judge in 2009. Since the Prosecution has filed the appeal in 2009 itself and appeal was pending in the High Court from 2009 till 2021 for which the accused cannot be held responsible or liable. The system works in such a manner. Therefore, imposing seven years imprisonment at this length of time will cause miscarriage of justice not only to the accused but it amounts to punishing his aged mother, wife and minor children. Therefore, the submission of the learned Counsel for the Respondent/Accused regarding mitigating circumstances is taken up and is considered by this Court. Therefore, considering the above, lesser punishment is imposed. Accordingly, the accused is imposed with five years of rigorous imprisonment. Since the Accused is a daily wage labourer, he cannot be imposed with any fine or compensation. Therefore, the Victim Compensation Act is applied and the State Government is directed to pay Rs. 2,00,000/- (Rupees Two Lakhs only) as compensation to the victim for the trauma suffered by her, who is a deaf and dumb and was aged about 14 years at the time of occurrence, now aged 31 years and still unmarried. 12/15 https://www.mhc.tn.gov.in/judis
14. In the result, the accused is convicted under Section 376 of IPC and sentenced to undergo five years Rigorous Imprisonment. Considering the offence having been committed in the year 2004 and the trial ended in acquittal as per judgment dated 26.08.2009. Appeal filed in the year 2009 itself by the Prosecution was taken up for disposal only in the year 2021 and for the length of time, the delay caused and in reversing the judgment are considered as extraneous consideration under Section 361 of Cr.P.C.
Also, the Accused who got married after the acquittal being a daily wage labourer who had to support his aged mother, wife and minor children, are considered as mitigating circumstances and no fine is imposed. The State is directed to pay compensation of Rs.2,00,000/- (Rupees Two Lakhs only) to the victim under the Victim Compensation Act. The period of detention already undergone by the accused prior to filing of final report in the investigation is to be set off under Section 428 of Cr.P.C.
Thiru.Jayasingh was appointed as the Learned Aid Counsel for the 13/15 https://www.mhc.tn.gov.in/judis Respondent/Accused by the Legal Services Authority attached to the Madurai Bench of this Court. For the services rendered by Thiru.Jayasingh, he is to be paid his legal fees as per the rules. The Legal Services Authority attached to the Madurai Bench of this Court is directed to pay the fees to the services rendered by Thiru.Jayasingh. Accordingly, his services are appreciated for disposing of the case.
04.02.2022 Srm/dh Copy to:
1.The District and Sessions Judge, Thoothukudi.
2.The Assistant Sessions Judge, Thoothukudi.
3.The District Collector, Thoothukudi.
(For payment of compensation to Victim under Victim Compensation Act)
4.The Superintendent of Police, Thoothukudi. (For reference)
5.The Deputy Superintendent of Police, Thoothukudi.
6.The Inspector of Police, Pudur Police Station, Thoothukudi District.
7.The Superintendent, Central Prison, Palayamkottai.
([email protected]) SATHI KUMAR SUKUMARA KURUP.J., 14/15 https://www.mhc.tn.gov.in/judis srm/dh CRL.A.(MD)No.298 of 2015 04.02.2022 15/15 https://www.mhc.tn.gov.in/judis