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2003 DIGILAW 1043 (MAD)

Murugan v. State by Inspector of Police

2003-07-14

M.CHOCKALINGAM

body2003
Judgment :- The sole accused in a case of rape has brought forth this appeal. 2. The brief facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 Ranganayaki is the mother of the young victim of the sexual violence, aged 9 years at the time of occurrence. The appellant/accused who was the uncle's son of P.W.2 Anjali, was staying in the family of P.W.1. On the date of occurrence namely 13.3.2000 P.W.1 accompanied by her children including P.W.2 and the appellant/accused went to her mother's house, which is situate nearby. After sometime, P.W.1 sent back her daughter P.W.2 along with the accused to her house. After P.W.2 and the appellant/accused reached the house of P.W.1, the appellant pushed the young victim down and had forcible intercourse, and she had profuse bleeding in her vagina. P.W.2 rushed to her grandmother's house and informed P.W.1 that she fell down from the fish cart. P.W.1 took P.W.2 to Dr.Dhanaraj Hospital, where P.W.2 was medically examined. The Doctor informed P.W.1 that P.W.2's hymen was ruptured and advised her to take P.W.2 to a baby hospital. P.W.1 took her daughter to Egmore Children's Hospital, where she was medically examined by P.W.6 Dr.Malathi. The Doctor informed P.W.1 that P.W.2 was subjected to forcible intercourse. The accident register in that regard was marked as Ex.P5. P.W.2 was admitted in the Hospital and given treatment for a reasonable period. P.W.1 gave Ex.P1 complaint. P.W.11 Sudarsan, who was in charge Inspector of K-8 Arumbakkam Police Station, on receipt of the complaint on 19.5.2000 at 8.30 P.M. registered a case in Crime No.302 of 2000 under S.376 of I.P.C. Ex.P11 printed F.I.R. was despatched to the concerned Metropolitan Magistrate's Court. (b) The young victim was sent to K.M.C. Hospital with police memo. Further investigation was taken up by P.W.12 Loganathan, Inspector of Police. P.W.9 Dr.Rajapandian who was the Medical Officer in Kilpauk Government Hospital on 19.5.2000 examined her medically. He was informed that the young victim was given treatment at Egmore Children's Hospital for the injuries that resulted from the commission of rape on 13.3.2000. The girl was sent to Gynaecological opinion, and wound certificate issued by P.W.9 was marked as Ex.P9. P.W.10 Dr.Santhi Gunsingh examined the girl on 20.5.2000 and found the following. He was informed that the young victim was given treatment at Egmore Children's Hospital for the injuries that resulted from the commission of rape on 13.3.2000. The girl was sent to Gynaecological opinion, and wound certificate issued by P.W.9 was marked as Ex.P9. P.W.10 Dr.Santhi Gunsingh examined the girl on 20.5.2000 and found the following. - Colostomy wound - Hymen not intact - Perineal body laceration present - Anovaginal fistula Ex.P10 is the wound certificate issued in that regard. (c) P.W.12 Inspector, who took up the further investigation in the case, visited the site of occurrence, made an inspection, prepared the observation mahazar in the presence of the witnesses and also the rough sketch. He recorded the statements of the witnesses. He arrested the accused and seized the clothes from the victim under mahazar in the presence of P.W.4 Palani and other witness. The confessional statement of the accused in the presence of P.W.5 Pachaippan and other was recorded by the Investigating Officer. He sent the clothes for chemical examination. P.W.8 Dr.Manohar examined the accused Murugan on 5.6.2000 at Kilpauk Hospital on the requisition given by the V Metropolitan Magistrate, Madras. Ex.P7 is the age certificate, while Ex.P8 is the certificate of examination for the sexual offence. P.W.13 Ramachandran, Inspector of Police, K-3 Police Station, after completing the further investigation in the case, filed a charge sheet against the accused. 3. In order to prove its case, the prosecution examined 13 witnesses and marked 11 exhibits. No material objects were marked. After the evidence of the prosecution was completed, the accused was questioned under S.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, and the accused flatly denied the same as false. No defence witness was examined. After hearing the rival submissions and the scrutiny of the available materials, the trial Court found him guilty under S.376(1) of I.P.C. and sentenced him to undergo R.I. for 7 years and to pay a fine of Rs.15,000/-, and in default of payment of fine, to undergo S.I. for 1 year. Against this, the appellant/accused has preferred this appeal. 4. After hearing the rival submissions and the scrutiny of the available materials, the trial Court found him guilty under S.376(1) of I.P.C. and sentenced him to undergo R.I. for 7 years and to pay a fine of Rs.15,000/-, and in default of payment of fine, to undergo S.I. for 1 year. Against this, the appellant/accused has preferred this appeal. 4. Arguing for the appellant, the learned Counsel would submit that the prosecution has not proved the charge that was levelled against the appellant/accused; that it is pertinent to note that at the earliest, P.W.2 has informed her mother P.W.1 that she fell down from a fish cart and sustained injuries; that even when she was taken to the Doctor, P.W.2 has stated so, and the same has been recorded; that there was inordinate delay of 67 days in lodging the complaint, and this would be indicative of the falsity of the prosecution case; that there was a demand of Rs.1,00,000/- from the appellant/accused; that when the demand was not met, they come forward with a false case implicating him in a case of rape like this; that had the case of the prosecution been true, a complaint should have been given within a reasonable time; that even the medical evidence has not supported the prosecution case; that not even the penetration has been proved through the medical evidence; that the lower Court should have drawn adverse inference on the non-seizure of the clothes said to have been worn by the accused and the victim at the time of occurrence; that the error that was committed was not curable and that would be fatal to the prosecution case; that though the accused was subjected to medical examination, no injuries were found in his organ; that this would go to show that an attempt was made by P.W.2 to make him as a scapegoat; that the lower Court without proper appreciation of evidence and without considering the points raised above, has found him guilty, and hence, he is entitled for an acquittal in the hands of this Court. 5. 5. Opposing strongly the above contentions, put forth by the appellant's side, the learned Government Advocate (Criminal Side) would urge that the prosecution has proved its case beyond reasonable doubt; that the medical evidence has thoroughly corroborated the ocular evidence; that P.W.2 though of tender age, has categorically spoken about the incident; that no reason or circumstance was shown to reject the testimony of P.W.1; that it is true that there was some delay in making the complaint, but the delay has in no way affected the prosecution case; that in view of the evidence of P.W.2 the victim coupled with the medical evidence, the prosecution has clearly proved the case of rape, and hence, the lower Court's judgment has got to be sustained. 6. This Court paid its full attention on the rival submissions made and made a close scrutiny of all the available materials, as a result of which the Court is of the considered view that the appeal is devoid of substance. 7. Admittedly, the appellant/accused who was the uncle's son of the young victim of sexual violence, was staying in the house of P.W.1. The specific case of the prosecution was that on 13.3.2000 at about 7.00 P.M., P.W.1 accompanied by her daughter P.W.2 and the appellant went to her mother's house situate nearby, wherefrom P.W.2 and the appellant were sent back; and that when both of them came to the house of P.W.1, the appellant pushed her down and forcibly had intercourse with her. In the instant case, the only witness who could speak about the sexual violence on the young victim was P.W.2 only. It is not the case of the prosecution that anyone else witnessed the occurrence. The lower Court after testifying the mental maturity, has examined her. She has given a graphic narration of the incident. Her evidence inspires the confidence of the Court. 8. From the available evidence, it would be clear that the young victim was taken to Dr.Dhanaraj Hospital and subjected to medical test by a Doctor within a very short time. The Doctor after medical examination informed P.W.1 that P.W.2's hymen was ruptured and advised P.W.1 to take her to the Children's Hospital. The Medical Officer who examined the victim P.W.2 medically at Egmore Children's Hospital and the other Medical Officer who examined the victim girl at Kilpauk Hospital were examined as P.W.6 and P.W.10 respectively. The Doctor after medical examination informed P.W.1 that P.W.2's hymen was ruptured and advised P.W.1 to take her to the Children's Hospital. The Medical Officer who examined the victim P.W.2 medically at Egmore Children's Hospital and the other Medical Officer who examined the victim girl at Kilpauk Hospital were examined as P.W.6 and P.W.10 respectively. According to P.W.6 Doctor, she found profuse bleeding in the genital organs of the victim. The wound certificate given by P.W.10 Doctor was marked as Ex.P10, wherein the injuries found on the genital organs are described as follows. "Colostomy wound Hymen not intact Perineal body laceration Anovaginal fistula" The above medical evidence which came into existence within a few hours of interval from the time of occurrence, would clearly indicate that the incident as spoken to by P.W.2 young victim was true. Thus, the ocular evidence was fully corroborated by the medical evidence. 9. At the instance of P.W.1, a case was registered by P.W.11 Inspector of Police on 19.5.2000. Thus, a delay of 67 days is noticed. At this juncture, it has got to be pointed out that the appellant/accused was none else than the uncle's son of P.W.2, the victim, and thus, he was closely related. From the evidence available, it would be clear that there was some panchayat constituted, but it did not fructify. Therefore, in view of the available evidence as narrated above, the Court is of the considered view that much importance need not be attached to the delay so caused. That apart, the appellant's side is unable to show any improvement or embellishment made in the prosecution case due to the said delay. 10. After the case was registered, the investigation was taken up by P.W.12 Inspector of Police. Again P.W.2 was subjected to medical test by P.Ws.9 and 10 Doctors. They have given evidence and wound certificates were also marked. From the evidence of P.W.1 and P.W.22 the young victim coupled with the evidence of the Doctors who examined her the very day, it would be abundantly clear that the injuries found in the vagina of the girl was caused only due to the forcible penetration made by the appellant/accused. Even a penetration would be sufficient to constitute an offence of rape as defined under S.375 of the Penal Code. In the instant case, the prosecution has proved the same beyond reasonable doubt. Even a penetration would be sufficient to constitute an offence of rape as defined under S.375 of the Penal Code. In the instant case, the prosecution has proved the same beyond reasonable doubt. The Court is unable to notice any reason or circumstance why P.W.1 should come forward with to foist a case against her brother's son namely the appellant/accused or P.W.2 of tender age who could not understand what is what, has come forward to narrate the sorrowful incident that took place on the date of occurrence. Thus, the prosecution has clearly proved the sexual assault committed by the appellant/accused on the victim of tender age on that day. The lower Court has rightly found the appellant/accused guilty under S.376(1) of the Penal Code, and there is nothing to interfere in the conviction recorded by the Court below. The judgment of conviction passed by the lower Court has got to be confirmed. 11. Coming to the question of punishment, the lower Court has sentenced the appellant/accused to undergo 7 years R.I. along with a fine of Rs.15,000/- and in default of the payment of fine amount, to undergo 1 year S.I. The learned Counsel for the appellant brought to the notice of the Court that the appellant at the time of occurrence was aged between 16 and 18 years, and he relied on Ex.P7 age certificate to have support for his contention. According to P.W.8 Doctor, who issued Ex.P7 certificate, the accused is aged above sixteen years but below eighteen years at the time of occurrence. Taking into consideration the facts and circumstances of the case, the Court is of the firm view that for these reasons, the sentence of imprisonment imposed by the lower Court has got to be reduced to five years R.I., and the same would meet the ends of justice. 12. In the result, the sentence of 7 years R.I. imposed by the lower Court on the appellant/accused under S.376(1) of I.P.C. is modified, and the appellant/accused shall undergo R.I. for 5 (five) years. In other respects, the judgment of the lower Court is confirmed. With the above modification, this criminal appeal is dismissed.