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2007 DIGILAW 2257 (MAD)

John v. State by Inspector of Police Chennai

2007-07-19

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- This appeal has been preferred by the accused in S.C.No.57 of 2005 on the file of District and Sessions Judge, Mahila Court, Chennai /(In charge ) Fast Track Court No.2. 2. The case of the prosecution in a nutshell is that on 15. 2004 at about 1.00p.m., the accused had taken the minor victim girl aged 8 years by name Nishath to the back side of Eldams Road Bus Stop and attempted to commit the offence of rape. 3. XIV Metropolitan Magistrate ,Egmore, Chennai had taken the case on file , issued summons to the accused and on his appearance furnished copies under Section 207 of Cr.P.C.and since the case is exclusively triable by a Court of Sessions had committed the case to the Court of Sessions under Section 209 of Cr.P.C.. The trial was conducted by the Additional Sessions Judge(Fast Track Court No.2) , Chennai on appearance of the accused had framed charge under Section 376 r/w 511 of IPC and when questioned the accused pleaded not guilty. 4. Before the trial Court P.Ws. 1 to 12 were examined and Exs. P1 to P13 were exhibited and M.O.1 to M.O.4 were marked. 5. P.W.1 is the mother of the victim minor child. According to her, the age of the victim child Nishath was 8 years at the time of occurrence and that she was studying III standard at the relevant point of time and that one day in the month of May in the year 2004, at about 1.00p.m., while she was selling the flowers in the platform near her house, another child by name Salima who was playing with the victim child P.W.2 rushed towards her and informed that the accused is lying on P.W.2 and immediately she rushed to the place of occurrence and saw her child in a nude posture embraced by the accused, without any lungi on his person. On seeking her approaching, the accused took to his heels and that she preferred a complaint with the police under Ex P1 and that her daughter P.W.2 was sent to childrens hospital where she was taking treatment as an in patient for three days. 5a. P.W.2 is the victim child. On seeking her approaching, the accused took to his heels and that she preferred a complaint with the police under Ex P1 and that her daughter P.W.2 was sent to childrens hospital where she was taking treatment as an in patient for three days. 5a. P.W.2 is the victim child. According to her, on the date of occurrence, at the place of occurrence, the accused was lying on her with jatty and on seeing her mother, the accused ranaway from the place of occurrence and that she was examined by a lady doctor. 5b. P.W.3 is the another child witness who would depose that at the time of occurrence, the accused had removed his cloths except the inner garments and had done something with P.W.2 and on seeing P.W.1, the accused ranaway from the place of occurrence. 5c. P.W.4 has also accompanied with P.W.1 after hearing the occurrence through P.W3. She has also corroborated the evidence of P.W.1 to the effect that at the time, when she saw the accused, he was lying over P.w.2 only with an inner garment on his person. 5d. P.W.11 is the then Sub Inspector of Police who had registered the case under Chintadripet police Station Crime No.1418 of 2004 under Sections 376 r/w 511 of IPC. Ex P10 is the first information report. He had also seized the inner garment of the victim girl produced by her mother P.W.1 at the time of preferring the complaint. The Investigating Officer had proceeded to the place of occurrence on 15. 2004 at about 1.30p.m., and prepared Ex P3 observation mahazar in the presence of P.W.4. The Investigating Officer had also drawn a rough sketch Ex P12 for the place of occurrence in the presence of the same witness. He had arrested the accused on the same day at 2.15p.m., and has recorded his voluntary confession statement and has also seized M.O.3 full hand shirt,M.O.4 lungi from the accused. 5e. P.W.5 the doctor, who had examined the accused and issued Ex P5 certificate certifying that the accused is potent. P.W.6 is the doctor who had examined the victim child P.W.2 and issued Ex P6 copy of the accident register. According to the doctor, the hymen of the child was in tact and there was no external injuries on the person of the child. P.W.6 is the doctor who had examined the victim child P.W.2 and issued Ex P6 copy of the accident register. According to the doctor, the hymen of the child was in tact and there was no external injuries on the person of the child. Ex P7 is the chemical analysts report received from the forensic science laboratory stating that there was no semen detected in the material object sent for chemical examination. 5f. P.W.7 is the analyst in the forensic science laboratory, Chennai. According to him, as per the letter of requisition Ex P8, he had examined torn half drawer, torn polyster gown, blood stained full hand shirt, blood stained lungi. His report is Ex P7. 5g. P.W.8 is also a friend of P.W.1 who would depose that she came to know about the occurrence only through the victim child. P.W.9 has also deposed that he heard the cry of P.W.2 at the time of occurrence. But she has not seen the accused. 5h. P.W.10 is the father of P.W.2 who had handed over M.O.1 and M.O.2 to the police after the occurrence. ExP9 is the Mahazar witness for M.O.1 and M.O.2 in which he has signed as a witness. P.W.11 has examined the witnesses and recorded their statements. P.W.12 is the successor of P.W.11 who had examined the chemical analyst of the forensic science laboratory and recorded his statement and after completing the formalities had filed the charge sheet against the accused on 18. 2004. 6. When incriminating circumstances under Section 313 Cr.P.C. were put to the accused, he would deny his complicity with the crime. He has not examined any witness on his side. 7. The learned trial Judge, after meticulously going through the evidence both oral and documentary has come to an unassailable conclusion that the offence under Section 376 r/w 511 of IPC has been proved beyond any reasonable doubt against the accused and consequently convicted and sentenced the accused under Section 376 r/w 511 of IPC to undergo 11 years rigorous imprisonment and a fine of Rs.1000/- with default sentence which necessitated the accused to prefer this appeal before this Court. 8. Now the point for consideration in this appeal is whether the conviction and sentence against the accused under Section 376 r/w 511 of IPC is sustainable for the reasons stated in the memorandum of appeal? 9. 8. Now the point for consideration in this appeal is whether the conviction and sentence against the accused under Section 376 r/w 511 of IPC is sustainable for the reasons stated in the memorandum of appeal? 9. Heard Mr.M.G.Sankaran, learned counsel appearing for the appellant and Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor for the State and carefully considered their rival submissions. 10. The Point: The learned counsel appearing for the appellant relying on a decision reported in Tarkeshwar Sahu-vs- State of Bihar (Now Jharkhand) (2006)3 Supreme Court Cases (cri) 556) and contended that only an offence under Section 354 of IPC has been attracted against the accused and not an offence under Section 376 r/w 511 of IPC. Relying on the evidence of P.W.1 and P.W.2, the learned counsel would contend that the ingredients for bringing the guilt of the accused under Section 376 r/w 511 of IPC cannot be sustainable but the evidence of P.W.2 coupled with the evidence of the Doctor P.W.6 will bring home the guilt of the accused under Section 354 of IPC . A perusal of Ex P6 copy of the accident register as spoken to by P.W.6, will go to show that there was no sexual assault made on the victim child P.W.2 and that there was no external injuries found on the genitalia of the child or on other parts of the body. According to P.W.6, the doctor, the hymen of the child was found in tact. Even according to the evidence of P.W.1 and P.W.2 at the time of occurrence, the accused was lying on the victim girl P.W.2 with his inner garment. Under such circumstances, an offence under Section 354 of IPC alone is attracted and not an offence under Section 376 r/w 511 of IPC ,as per the dictum laid down by the Honourable Apex Court in the above said ratio decidenti. The relevant observation in the above said dictum runs as follows: "Under Section 375 IPC six categories indicated above are the basic ingredients of the offence. In the facts and circumstances of this case, the prosecutrix was about 12 years of age, therefore, her consent was irrelevant. The appellant had forcibly taken her on his gumti with the intention of committing sexual intercourse with her. The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. The appellant had forcibly taken her on his gumti with the intention of committing sexual intercourse with her. The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore, the basic ingredients for proving the charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ with the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376IPC." 11. The learned Additional Public Prosecutor relying on the same Judgment would submit that even without a specific charge under Section 354 of IPC, the Court can convict the accused under Section 354 of IPC as per the provisions laid down under Section 222 of Cr.P.C. So by invoking Section 222 of Cr.P.C., I am of the view that the accused even if not guilty under Section 376r/w 511 of IPC is liable to be convicted and sentenced under Section 354 of IPC. 12. The learned counsel appearing for the appellant would represent that the accused is in jail from 26. 2005 and would submit that set off may be given to him. 13. In fine, the appeal is partly allowed and the conviction and sentence by the learned trial Judge in S.C.No.57 of 2005 on the file of the District and Sessions Judge/ Mahila Court, Chennai/Fast Track Court No.2, Chennai is hereby set aside. The accused is convicted under Section 354 of IPC instead of under Section 376 r/w 511 of IPC and sentenced to undergo two years rigorous imprisonment under Section 354 of IPC. Set off is ordered under Section 428 of Cr.P.C. The fine amount imposed by the trial Court will sustain and it is to be converted as a fine levied under Section 354 of IPC instead of Section 376 r/w 511 of IPC.