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1998 DIGILAW 1308 (MAD)

Sonai v. State Rep. By Inspector of Police, Madurai

1998-09-25

M.KARPAGAVINAYAGAM

body1998
Judgment :- The Order of the Court is as follows: Sonai, the petitioner herein, was convicted for the offence under Section 376, I.P.C. and sentenced to undergo R.I. for 7 years. This conviction and sentence was confirmed by the lower appellate Court. Hence, the revision, 2. The facts of the case are these :- (a) P.W. 1 Parvathi, aged about 14 years went to the field of the petitioner, who is the resident of the local village, for cooly work. On 14-11-88 at about 2.30 p.m., when she was working in the field, the petitioner asked her to go inside the motor room and put on the switch. Accordingly, P.W. 1 went inside the motor room and put on the switch. At that point of time, the petitioner entered into the motor room, locked the room from inside and forcibly pushed her on the ground and after removing her clothes, committed rape on her. (b) Thereafter, P.W. 1 got up, opened the door and came running out of the motor room and told her mother P.W. 2 about the incident. Thereafter, P.W. 2 complained to one Raman, the local Councillor, about the said conduct of the petitioner. (c) Thereafter, there was a panchayat. Since the petitioner did not abide by the panchayat decision, P.W. 1 along with P.W. 2 and the said Raman came to the police station and gave a complaint on 15-11-88 at about 8.00 a.m. P.W. 5 the Head Constable registered the case in Crime No. 711/88 for the offence under S. 376, I.P.C. (d) Ex. P-1 is the complaint. Ex. P-4 is the F.I.R. This was attested by the said Councillor Raman. On the same day, at about 5.30 p.m., P.W. 3 Dr. Parvathathini examined P.W. 1 and issued the wound certificate Ex. P-2 giving opinion that she was subjected to sexual intercourse. (e) P.W. 5 conducted the investigation and at about 12.00 noon, the petitioner was arrested and his clothes were recovered. P.W. 4 Doctor examined the petitioner on 25-10-91 and gave the potency certificate(f) After investigation was over, the chargesheet was filed against the petitioner for the offence under section 376, I.P.C. 3. To establish the case of the prosecution, P.Ws 1 to 5 were examined, Exs. P-1 to P-6 were filed and M. Os. 1 to 9 were marked. P.W. 4 Doctor examined the petitioner on 25-10-91 and gave the potency certificate(f) After investigation was over, the chargesheet was filed against the petitioner for the offence under section 376, I.P.C. 3. To establish the case of the prosecution, P.Ws 1 to 5 were examined, Exs. P-1 to P-6 were filed and M. Os. 1 to 9 were marked. On consideration of the materials, the trial Court concluded that the petitioner had committed the rape and thereby he was convicted and sentenced as referred to above. 4. The petitioner, having aggrieved over the said judgment, filed an appeal before the lower appellate Court, which in turn, after hearing the counsel for the parties, confirmed the said conviction. These impugned judgments of conviction are being challenged in this revision. 5. Mr. Ilamparithi, the learned counsel appearing for the petitioner, while challenging the conviction and sentence, would submit the following :- "P.W. 3 Doctor would say that there is no external injury. As such, the evidence of P.W. 1 is not corroborated by the medical evidence. The clothes recovered from the accused were not sent for chemical examination. Though the prosecution would state that P.W. 1 was aged about 14 years, admittedly, ossification test was not conducted. In those circumstances, it cannot be stated that she was only aged about 14 years. In the absence of any proof regarding the age, it is quite important to see the evidence of P.W. 2, which was not corroborated by P.W. 3 Doctor. The intercourse must have been with the consent of P.W. 1. However, the Doctor would state that the vagina admits one finger easily. One of the material witnesses, Raman, who had attested the FIR was not examined and the non-examination of the said material witness would draw adverse inference against the prosecution. Though the occurrence had taken place in the year 1988, the charge-sheet was filed only in the year 1992. There is no explanation for the said delay. Though the occurrence had taken place on 14-11-88, the complaint was given only on 15-11-88 after a long delay of 17 hours. Moreover, the Inspector of Police who conducted the investigation was not examined." 6. There is no explanation for the said delay. Though the occurrence had taken place on 14-11-88, the complaint was given only on 15-11-88 after a long delay of 17 hours. Moreover, the Inspector of Police who conducted the investigation was not examined." 6. Countering the above submissions, the learned Government Advocate would contend that all these aspects have already been dealt with by the trial Court as well as the lower appellate Court and as such, in the revision these grounds would not be considered to be valid so as to interfere with the factual findings rendered by both the Courts below. 7. I have carefully considered the respective submissions and gone through the records. 8. In support of his submissions, Mr. Ilamparithi, the learned counsel for the petitioner, would cite the following decisions and contend that in these decisions it is held that the accused could not be convicted for the offence under section 376, I.P.C., since the sexual intercourse, which the accused had with the victim, must be with the consent :- (1) Pratap Misra v. State of Orissa,; (2) Tukaram v. State of Maharashtra. 9. In the Apex Court took into consideration not only the absence of injury on the accused as well as the prosecutrix but also had taken into consideration the peculiar facts and circumstances of the case and found that the married woman was subjected to sexual intercourse with three accused with her consent and connivance of her husband. 10. In the accused was acquitted in respect of the offence under section 376, I.P.C. since in the light of the facts of that case, it was held that the victim had consented for the sexual intercourse and she had not complained about the same to any person immediately after the occurrence. 11. Moreover, these decisions would not be applicable to the present case because this is a case where immediately after the rape, P.W. 1 opened the door and came out of the motor room and wept before her mother P.W. 2 and complained about the incident. That was how the matter was taken to panchayat. This evidence of P.W. 1 is fully corroborated by the evidence of P.W. 2. Therefore, it cannot be said that merely because there is no external injury on the body of the victim, the sexual intercourse was made only with the consent of P.W. 1. 12. That was how the matter was taken to panchayat. This evidence of P.W. 1 is fully corroborated by the evidence of P.W. 2. Therefore, it cannot be said that merely because there is no external injury on the body of the victim, the sexual intercourse was made only with the consent of P.W. 1. 12. However, the non-examination of the said Raman would not affect the case of the prosecution. The Court is concerned with the evidence of P.W. 1 and P.W. 2 and admittedly P.Ws 1 and 2 had no axe to grind against the petitioner. It is the case of the petitioner that a false case was foisted against him only at the instance of the said Raman. If it is so, the said aspect would affect only the evidence of Raman, in the event of the said Raman being examined before the Court. Since he was not examined, that question does not arise. 13. Of course, it is true that the correct age has not been found by the Investigating Officer by sending the victim to the Doctor for conducting oscification test. But, both P.W. 1 and P.W. 2 would say that she was aged about 14 years in the complaint as well as in the evidence. There is no challenge with reference to this evidence regarding age. 14. Even assuming that the correct age has not been established, it cannot be said that there was a sexual intercourse with the consent of P.W. 1. The statement of P.W. 1 in the F.I.R. and her deposition before the Court would definitely make it clear that she was forcibly pushed down to the floor and the accused, aged about 45 years, overpowered her by putting cloth into her mouth and by not allowing her to push him aside, committed rape. 15. Admittedly, the victim was examined only on the next day. As the Apex Court often held that there ought to be some delay to lodge complaint in a case of rape. In Bodhisattwa Gautam v. Subhra Chakraborty 1996 CrLJ 1728 ), State of Punjab v. Gurmit Singh, the Apex Court held that if the evidence of victim is believed, no corroboration is required and mere delay in launching the complaint to the police would not affect the credibility of the victim. 16. In Bodhisattwa Gautam v. Subhra Chakraborty 1996 CrLJ 1728 ), State of Punjab v. Gurmit Singh, the Apex Court held that if the evidence of victim is believed, no corroboration is required and mere delay in launching the complaint to the police would not affect the credibility of the victim. 16. So, on the basis of the above decision, if we look into the evidence of P.W. 1, it could be very well concluded that the prosecution has established the case beyond reasonable doubt. Therefore, I do not find any ground to interfere with the impugned judgments of both the Courts below. 17. Under these circumstances, the revision which has no merit, is liable to be dismissed and accordingly, the same is dismissed.