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2002 DIGILAW 1415 (MAD)

Murthy v. State rep. By Inspector of Police

2002-11-15

P.SATHASIVAM

body2002
Judgment :- The accused in Sessions Case No.65 of 1999 on the file of the Principal Assistant Sessions Judge, Mayiladuthurai is the appellant in the above appeal. He was charged for the offences punishable under Sections 376 and 323 of the Indian Penal Code (in short "I.P.C."). 2. The case of the prosecution is briefly stated hereunder: On 24.09.1997, at about 10.00 a.m., while Palaniammal - P.W.1 went to casurena grove in order to watering the casurena trees, the accused, came to that place pulled her down and committed rape on her. P.W.1 raised alarm, thereby, her father - P.W.2, mother - P.W.3, brother - P.W.4 went there. They saw the accused raping P.W.1 by pushing her hands down. When P.W.2 caught hold of the accused, the accused caused injuries on the forehead and nose of P.W.2 by throwing a stone. When P.W.3 caught hold of him, she was pushed down by the accused and sped away from the spot. Thereafter, P.Ws.1, 2 and 3 went to Police Station at Sirkazhi. P.W.1 made a complaint - Ex.P.1. In the complaint, P.Ws.1 and 2 put their signatures. They also entrusted petti-coat - M.O.1; blouse - M.O.2 and half-saree - M.O.3 of P.W.1 to the Inspector of Police. P.W.11 registered the complaint and prepared the First Information Report - Ex.P.10 and the same was entrusted to P.W.12 for further investigation. P.W.1 was taken for medical examination by P.W.6. On direction by the Judicial Magistrate, Sirkazhi, P.W.1 was sent to Government Hospital for examination. Thereafter, she was taken to Government Hospital, Tanjore on 26.05.1997 for further examination. Prior to this, on 25.05.1997, Dr. Sudhandira Devi - P.W.10 examined P.W.1. She also examined P.Ws.2 and 3 and issued wound certificates. Ex.P.7 is a certificate relating to P.W.1 and Ex.P.8 is a certificate relating to P.Ws.2 and 3. X-rays have been marked as M.O.4 series. P.W.9 assessed the age of P.W.1 and according to him at the relevant time her age was between 17 and 18. The accused was taken to the medical examination by P.W.8 - Dr. Thambusamy. P.W.8 examined him and certified that he is potent. P.W.8 has also issued a certificate to show that there was an injury on the chest of the accused and the wound certificate has been marked as Ex.P.4. P.W.12 - Inspector of Police arrested the accused and obtained his confessional statement. Thambusamy. P.W.8 examined him and certified that he is potent. P.W.8 has also issued a certificate to show that there was an injury on the chest of the accused and the wound certificate has been marked as Ex.P.4. P.W.12 - Inspector of Police arrested the accused and obtained his confessional statement. He prepared a observation mahazar Ex.P.12 in the presence of P.W.5. Sketch - Ex.P.11. P.W.12 also seized M.Os.5 to 8 from the accused under mahazar Ex.P.13. After completion of the investigation, P.W.12 filed a charge sheet against the accused. 3. The learned Principal Assistant Sessions Judge on appreciation of oral and documentary evidence, found that the accused was guilty under Sections 376 and 323 (two counts) of I.P.C., imposed a sentence of rigorous imprisonment for a period of eight years for an offence under Section 376 I.P.C. and also a fine of Rs.3,000/- in default of which, to under go rigorous imprisonment for a period of two months. In respect of the charge under Section 323 I.P.C., he imposed a fine of Rs.250/- in default of which, to undergo rigorous imprisonment for one month. Out of fine amount of Rs.3,000/-, the learned Judge directed to pay Rs.2,500/- to P.W.1. Aggrieved by the conviction and sentence, the accused has preferred the above appeal. 4. Heard the learned counsel for the appellant as well learned Government Advocate (Criminal Side) for State. 5. For convenience, I shall refer the appellant as 'accused' and the respondent as 'complainant'. 6. Mr. K.V. Sridharan, learned counsel appearing for the accused after taking me through the oral and documentary evidence, would contend that since according to P.Ws.1 to 4 the alleged occurrence took place within the distance of 10 feet from their house, it is highly impossible and improbable to accept their case. He also contended that in view of different version regarding the age of the victim, the prosecution case is liable to be rejected. He further contended that in the light of the evidence of Doctors - P.Ws.8 and 10, it is not safe to convict the accused under Section 376 of I.P.C. 7. He also contended that in view of different version regarding the age of the victim, the prosecution case is liable to be rejected. He further contended that in the light of the evidence of Doctors - P.Ws.8 and 10, it is not safe to convict the accused under Section 376 of I.P.C. 7. On the other hand, learned Government Advocate would contend that in the light of the evidence by the victim herself as P.W.1 corroborated by P.Ws.2 to 4, the Court below is perfectly right in convicting the accused and there is no merit in the appeal and the same is liable to be dismissed. 8. I have carefully considered the rival submissions. 9. Among other witnesses' evidence, the evidence of P.W.1 - victim girl is relevant. While deposing before the Court below, P.W.1 stated that two years ago while she was watering the casurena grove, the accused - Murthy, who came to that place, closed her mouth, folded her two hands and after pushing her to the land, he raped her by inserting his pennis into her famale part. She further deposed that due to pain she shouted. Meanwhile, the accused injected sperm into her female part. Because of the high handed act of the accused, she sustained injuries on her left hand and on hearing voice, her father, mother and brother (P.Ws.2, 3 and 4 respectively) came there. According to her, at that time the accused was lying over her, P.W.2 caught hold of the accused. On seeing the act of P.W.2, the accused caused injuries on his forehead, nose etc., by throwing a stone. Thereafter, P.W.3 also caught hold of the accused, however, by pushing her, the accused sped away from the spot. P.W.1 informed her mother about the pain in her female part and she was taken by P.Ws.2 and 3 to Police Station at Sirkazhi. She made a complaint to a Woman Sub-Inspector. Ex.P.1 is the complaint, wherein, P.W.3 put her thumb impression, P.W.2 signed therein. Her petti-coat; blouse and half-saree - M.Os.1 to 3 were handed over to the police. By pointing out P.W.1's statement in cross examination that she did not read Ex.P.1 and not signed on both the pages, learned counsel for the accused would contend that her statement is unbelievable. Her petti-coat; blouse and half-saree - M.Os.1 to 3 were handed over to the police. By pointing out P.W.1's statement in cross examination that she did not read Ex.P.1 and not signed on both the pages, learned counsel for the accused would contend that her statement is unbelievable. By drawing my attention to the statements of P.Ws.1 to 4 regarding the distance between their house and the place of occurrence, namely 10 feet, he contended that it is also unbelievable and the occurrence could not have taken place as claimed by the prosecution. As far as statement of Ex.P.1 is concerned, it is seen that on the dictation of P.W.1, the same was written by the Woman Sub-Inspector and P.Ws.1 and 2 signed Ex.P.1, and P.W.3 also put her thumb impression in Ex.P.1. It is also seen that P.W.1 had signed at the end of Ex.P.1. In such a circumstance, merely because she has not signed on the first page, the same cannot be rejected as claimed by the learned counsel for the accused. It is clear that based on the statement of P.W.1, the same was written in the form of a complaint and ultimately P.W.1 herself has signed the same. There is no reason to reject Ex.P.1 as claimed. 10. I have already referred to the evidence of P.W.1 and it is seen that on hearing alarm from P.W.1, her father, mother and brother, who were in their house, rushed to the place of occurrence. They narrated the act of the accused. After going through their evidence, there is no reason to disbelieve their version. 11. Coming to the distance between the place of occurrence and the house of P.W.1, it is useful to refer Ex.P.11, which is a sketch prepared by the Investigating Officer. Ex.P.11 refers the place of occurrence, water canal, casurena grove and the residence of P.Ws.1 to 4. A perusal of Ex.P.11 shows that their house is surrounded by casurena trees and merely because the occurrence had taken place within a distance of 10 feet from their house, their (P.Ws.2 to 4) statement cannot be rejected as claimed. 12. Now, I shall consider the age of the victim P.W.1. In the chief examination of P.W.1, she had stated that at the time of occurrence she was 15 years old. In cross examination she had stated that her date of birth is 21.07.1982. 12. Now, I shall consider the age of the victim P.W.1. In the chief examination of P.W.1, she had stated that at the time of occurrence she was 15 years old. In cross examination she had stated that her date of birth is 21.07.1982. With reference to a question put to her, she explained that based on the entry in her horoscope, she came to know her date of birth. If her statement in cross examination is accepted, namely, her date of birth is 21.07.1982 at the time of occurrence, she was aged about 14 years and 10 months and she was a minor. It is true that the father and mother - P.Ws.2 and 3 respectively did not give her date of birth. Even the Inspector of Police - P.W.12 has admitted that he did not obtain the birth certificate of P.W.1 from the competent authority. P.W.9 - the Doctor working in Government Rajaji Hospital, Madurai after examination, opined that at the time of occurrence she would be above 17 and below 18 years. By pointing out the above discrepancies and inconsistency with regard to the age of P.W.1, learned counsel appearing for the accused would contend that it is clear that she was above 16 at the time of occurrence. I am unable to accept the said contention. Even though there is no consistent version regarding her age, a perusal of all the materials clearly show that P.W.1 had not completed 16 years at the time of occurrence. Even otherwise, if we accept the stand of the defence, it cannot be construed that P.W.1 gave consent, more particularly in the light of her raising voice for help, immediate complaint before Woman Sub-Inspector of Police and her subsequent follow up action by subjecting herself before a Medical Officer etc. Accordingly, I reject the contention of the learned counsel for the accused. 13. Now, I shall consider the injuries sustained by the victim. Learned counsel for the accused, by drawing my attention to the evidence of P.W.10 - who examined P.W.1 on 25.05.1997 would contend that in the light of the specific statement, the entire case of the prosecution has to be rejected. 13. Now, I shall consider the injuries sustained by the victim. Learned counsel for the accused, by drawing my attention to the evidence of P.W.10 - who examined P.W.1 on 25.05.1997 would contend that in the light of the specific statement, the entire case of the prosecution has to be rejected. He also relied on the decision of the Supreme Court in the case of Lakshman Prasad vs. State of Bihar reported in 1981 S.C.C. (Cri.) 642 and Hardeep vs. State of Haryana and another reported in 2002 S.C.C. (Cri.) 1547. In the first case, their Lordships have held that, " It is well settled that while witnesses may lie, circumstances do not. " In the latter case, the following observation is pressed into service. "12. .... In this connection it may be observed, in criminal cases the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. ...." Absolutely, there is no dispute regarding the principles laid in those cases. 14. Learned counsel for the accused very much relied on the answer given by Doctor - P.W.10 in her cross examination, which runs as follows. In the light of the clarification made by P.W.10 herself, her statement in the earlier part of cross-examination cannot affect the case of prosecution. Accordingly, I reject the argument of the learned counsel for the accused. 15. It is seen from the evidence of P.W.8 - the Doctor who examined the accused in the hospital noted two teeth marks on his right chest. The said aspect supports the claim of the prosecution that the accused forcibly pulled P.W.1 and committed rape. P.W.8 has also assessed his age as 27 years and certified that he is qualified as a man. The injury on the part of the accused and the evidence of P.W.1 prove the presence of the accused at the occurrence and he is potent in all aspects. It is relevant to note that in spite of the request by Doctor - P.W.8, he refused to give sperm for examination. 16. Learned counsel for the accused highlighting the fact that there is no injury on the body of the raped victim - P.W.1, except abrasion in her left hand would contend that it shows that she consented on her part for sexual inter-course. Here again, I am unable to appreciate the said contention. 16. Learned counsel for the accused highlighting the fact that there is no injury on the body of the raped victim - P.W.1, except abrasion in her left hand would contend that it shows that she consented on her part for sexual inter-course. Here again, I am unable to appreciate the said contention. I have already referred to the evidence of P.W.1 to the effect that on sudden and forcible act of the accused, she raised alarm, her statement before the Women Sub-Inspector of Police, evidence of P.Ws. 2 to 4, who reached the occurrence immediately on hearing the noise. In this regard, it is relevant to refer the decision of the Madhya Pradesh High Court Indoor Bench in the case of Nawabkhan and others vs. The State reported in 1990 Criminal Law Journal 1179. The following conclusion in paragraph 12 is relevant. "12. The presence or absence of injury on the body of the rape victim, is relevant to decide whether the act of sexual intercourse was committed with consent or not. It may be recalled that in view of s.114A of the Evidence Act, as inserted by the Criminal Law Amendment Act, 1983, if the prosecutrix states in her evidence that she did not consent to the sexual intercourse, the onus to prove consent lies on the accused. The fact of sexual intercourse is no doubt requires to be established by the prosecution. As pointed out by the Supreme Court in Rafiq v. State of U.P., A.I.R. 1981 SC 559: (1980 Cri.LJ 1344), absence of marks of injury on victim is not fatal in each case; nor does the absence of such physical injuries on the prosecutrix warrant the presumption of consent on her part. ...." 17. It is also useful to refer the recent decision of the Hon'ble Supreme Court in the case of State of Rajasthan vs. N.K. (accused) reported in 2000 Criminal Law Journal 2205. "16. ..... The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case. .... " 18. In the light of the above decisions and in view of testimony of prosecutrix (P.W.1) regarding resistance offered by her and the manner in which the crime was committed, inspiring confidence and the other evidence, namely P.Ws.2 to 4, which lending support to her testimony show that absence of injuries on the person of prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. In other words, I am of the view that considering all the materials, absence of injuries found in the injured (P.W.1) is not a fatal to the prosecution. 19. Regarding sentence, no serious argument has been advanced. Even other wise, inasmuch as the prosecution has established its case under Sections 376 and 323 of I.P.C. beyond reasonable doubt by placing acceptable materials and got imposed appropriate punishment, I do not find any valid reason for interference. Net result, the appeal fails and the same is dismissed.