IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.12.2009
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH
CRIMINAL APPEAL No.617 of 2009
Settu ..Appellant
Vs.
State by:
Inspector of Police,
All Women Police Station,
Tirupattur, Vellore District.
(Crime No.5 of 2008) ..Respondent
This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District and Sessions Judge, (Fast Track Court) Tirupattur, Vellore District made in S.C.No.254 of 2008 dated 30.7.2009.
For Appellant : Mr.R.Sankarasubbu
For Respondent : Mr.Babu Muthu Meeran, Addl.P.P
J U D G M E N T
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court, Tirupattur, Vellore District, made in S.C.No.254 of 2008 whereby the sole accused/appellant stood charged under section 376(2) IPC and awarded life imprisonment.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.Ws. 1 and 2 are the parents of the victim girl examined as P.W.6. The occurrence had taken place on 1.3.2008. At the time of occurrence, P.W.6 was aged 11 years. P.W.1, as usual, went to Madras to attend his job. P.W.2 went to Shandy and returned home at about 10.00 a.m. and was feeding her another child. P.W.3 was in kitchen in the cooking process. At that time, P.W.6 was playing in the street. Suddenly, they heard the distress cry of the victim/P.W.6 in front of the house. They all came out and went to the front portion of the house. On seeing them, the accused fled from the place of occurrence. P.W.6 informed to P.W.1 and others that the accused forcibly had intercourse with her. They noticed blood stains in her petticoat. Immediately, P.W.2 took P.W.6 to the private clinic at Jollarpet and there first aid was given to P.W.6. Thereafter, P.W.6 was taken to the Vaniampadi Government Hospital and was given treatment. Thereafter, the victim was taken to the Government Hospital at Tirupattur where she was medically examined and given treatment by P.W.9, doctor and the wound certificate, Ex.P.6 was issued in that regard.
(b) In the meanwhile, P.W.1, father of the victim was informed about the occurrence. He went to the village. On the next day morning, he proceeded to the respondent police station and gave a report Ex.P.1. On the strength of Ex.P1, a case came to be registered in Crime No.5/2008 under section 376 IPC. The F.I.R., Ex.P10 was despatched to Court.
(c) Immediately, P.W.11 took up investigation. She proceeded to the spot, made an inspection and prepared the observation mahazar, Ex.P2. He recovered the blood stained petticoat of the girl and drew a rough sketch, Ex.P11 in respect of the occurrence and recorded the statement of the witnesses. The material object was sent to Forensic Department through Court for analysis. Further, she arrested the accused. The accused was taken to the Government Hospital for potency test. P.W.8, doctor after conducting potency test on 26.3.2008, gave Ex.P5 certificate that the accused was potent. The chemical report, Ex.P8 was received and placed before the Court. On completion of the investigation, the investigating officer filed a final report.
(d) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 11 witnesses and relied on 18 exhibits and 1 material object. On completion of the investigation, the accused was questioned under section 313 Cr.P.C as to the incriminating circumstances found in the prosecution. He denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved its case beyond reasonable doubt and rendered the judgment of conviction and sentence as referred to above. Hence, this appeal at the instance of the appellant.
3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that the prosecution has miserably failed to prove its case beyond reasonable doubt. The gist of the case of the prosecution was that on the date of occurrence, that was on 1.3.2008, when the inmates of the house including the victim's mother were watching television and the victim was playing in the street in front of the house, the accused took the victim to the front portion of the house and forcibly committed rape on her. P.W.2 would claim that the accused was well present at the place of occurrence. But when P.W.6/ victim informed to her mother that she was forcibly raped by the accused, no steps were taken to give a complaint to the police or to the Village Administrative Officer, even though there were male members available at that time. Added further learned counsel, according to P.W.2, the child was first taken to a private clinic at Jollarpet at 10.30 a.m. i.e., within a short span of half an hour. The doctor examined the victim and gave initial treatment but no documentary evidence was shown in that regard nor the said doctor was examined. Thereafter, the child was taken to Vaniyampadi Government Hospital and was given treatment. Naturally, the doctor should have got information from the victim and would have recorded the same in the accident register copy or in the wound certificate but the said doctor was not examined and no documentary evidence was produced before the Court in that regard.
4. Learned counsel would further submit that P.W.1 would claim that on information, he came to the village and thereafter, he went to the police station and gave a complaint. Though the occurrence was alleged to have taken place at 10.00 a.m. on 1.3.2008, the complaint was given only at 7.00 a.m. on 2.3.2008. There was a delay of 21 hours. The explanation given by the prosecution was that P.W.1 was in Chennai and on telephonic information, he came to the village and went to the Police Station, the next day morning and thus, the delay had caused, cannot be accepted for the simple reason that the girl aged 11 years was raped by the accused and she immediately informed it to her mother/P.W.2 but P.W.2 did not take any steps to give a complaint to the police. Thus, the delay was not explained by the prosecution proper. The learned counsel would further added that it was P.W.9 who gave treatment to the victim girl at Tirupathur Government Hospital. She has also given the wound certificate Ex.P6 From the evidence of P.W.9 and on perusal of Ex.P6,wound certificate it would go to show that the child had informed the doctor that the accused inserted his finger into her vagina and had done nothing more. Added further learned counsel, pointing to the evidence of P.W.6/ victim would submit that she has not whispered about rape but has stated that the accused had inserted his finger into her private part. Thus, even the victim has not spoken anything about the alleged rape.
5. Added further learned counsel, the petticoat of the child and the clothes of the accused were recovered and they were sent for analysis and not even in any one of the objects, semen was detected. Thus, the prosecution has miserably failed to prove its case. Even if the Court comes to a conclusion that the factual position putforth by the prosecution was proved, the accused would be found guilty only under section 354 IPC for outrage of modesty. Insofar as the alleged rape is concerned, even for attempt of rape, there is no iota of evidence at all. The trial Court has not considered these factually positions but found the accused guilty under section 376(2) IPC. Hence, the judgment of the trial Court has got to be set aside and the accused has got to be acquitted in the hands of this Court.
6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
7. The charges levelled against the appellant was that he committed rape on P.W.6, a girl aged 11 years on 1.3.2008 at about 10.00 a.m. when she was playing in front of the house. P.Ws. 1 and 2 are the parents of the child. From the evidence of P.W.1, it is quite clear that on the date of occurrence, he was at Madras and he went to his native place at Jollarpet only on receiving information from his wife, P.W.2.
8. P.W.2 has given evidence before the trial Court to the effect that on the date of occurrence,she went to the Shandy in the morning hours and returned home; that while she was feeding her another child, at about 10.00 a.m., she heard distress cry of her daughter P.W.6 from the front portion of the house; that immediately herself and all the other family members rushed over there and noticed the accused running from the place; that P.W.6/minor child informed her that the accused has committed rape on her; that thereafter, P.W.2 and other members of the family took her to a private clinic at Jollarpet at about 10.30 a.m. where she was give initial treatment; that thereafter, she was taken to Vaniyampadi Government Hospital where she was given treatment; that subsequently, she was taken to Tirupathur Government Hospital for further treatment. Insofar as this part of the evidence adduced by the prosecution through P.W.2 is concerned, she has given a clear narration as to the incident.
9. A comment was made by the learned counsel for the appellant that the doctor of the private clinic at Jollarpet and also the doctor attached to the Government Hospital Vaniyampadi were not examined and no documentary evidence were produced in that regard. The Court is able to see some force in the contention putforth by the learned counsel for the appellant. From the evidence of P.W.2 it is quite clear that after taking the child to the private clinic and Vaniampadi Government Hospital and getting initial treatment, the child was taken to Tirupathur Government Hospital where she was given treatment by P.W.9 doctor who has given evidence before the trial Court. The wound certificate of the victim girl was also marked as Ex.P6. A perusal of the evidence of P.W.9 and also Ex.P6 wound certificate would clearly indicate that the accused penetrated his fingers into the private part of the victim girl. In a given case of rape, the evidence of the victim would be suffice to sustain the conviction but in the instant case, the learned counsel for the appellant brought to the notice of the court that the victim girl, at the time of cross examination, has stated that when the appellant inserted his fingers she immediately cried and her mother and grand mother arrived at the spot and there is nothing more whispered by the victim which would be indicative of the fact of rape or atleast attempt to commit rape. Further, the evidence of P.W.6 coupled with the evidence of P.W.9 doctor and also the contents of the wound certificate Ex.P6 would not be suffice to record the finding that there was an act of rape.
10. Added circumstance is that, after the potency test, the semen of the appellant was taken and the petticoat of the girl was also recovered and they were subjected to analysis by the forensic Science Department and the reports were also received and placed before the court and no semen was detected in the petticoat of the victim. From the evidence available, it would be difficult to accept the case of the prosecution that there is a commission of rape by the accused/appellant. The Court is able to notice that the evidence is to the effect that the accused took her to the front portion of the house and inserted his finger inside her private part and only to this effect the evidence of the doctor, who medically examined the victim and wound certificate, Ex.P6 were in supportive of the prosecution case. On scrutiny of Ex.P6, it is seen that the private part of the P.W.6 was found to be swelling and blood was found. All would indicate that the prosecution has proved the case only to the extent that the accused outraged the modesty of the victim girl. Therefore, the Court is of the considered opinion that the accused would be found guilty of the offence of outraging the modesty of a girl aged 11 years and he is liable to be punished only under section 354 IPC. The judgment of the trial Court finding the accused guilty under section 376 (2) cannot be sustained.
11. Accordingly, the judgment of conviction and sentence imposed by the lower court on the appellant under Section 376(2) IPC is modified and instead, the appellant is convicted under Section 354 IPC and sentenced to undergo 2 years rigorous imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off.
12. With the above modification in conviction and sentence, the criminal appeal fails and the same is dismissed.
vsi
To
1. The Additional District and Sessions Judge,
(Fast Track Court) Tirupattur, Vellore District
2. The Inspector of Police,
All Women Police Station,
Tirupattur, Vellore District.
3. The Public Prosecutor,
High Court,
Chennai
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