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2015 DIGILAW 3530 (MAD)

Tharman v. State by Inspector of Police

2015-10-28

S.VIMALA

body2015
JUDGMENT : S. Vimala, J. 1. The accused in S.C. No. 89 of 2004 on the file of the Additional Sessions (Fast Track Court No. 2), Pattukkottai, Thanjavur District, is the appellant herein. 1.2. By judgment dated 03.02.2005, the accused was convicted under Sections 341, 376and 506(ii) of IPC and sentenced to: (a) undergo imprisonment for one month in respect of the offence under Section 341 IPC; (b) undergo rigorous imprisonment for 7 years in respect of the offence under Section 376 IPC and (c) undergo rigorous imprisonment for 1 year in respect of the offence under Section 506(ii) IPC. 1.3. Challenging the conviction and sentence imposed on him, this appeal has been filed. 2. Brief facts: "The occurrence is stated to have taken place during the month of May 2001. The victim girl (name changed) went out of the house to answer the call of nature. At that time, accused followed her and he took her to a nearby coconut thope and committed forcible sexual intercourse with her. She did not immediately informed this incident to the family members. The explanation is that, fearing threat to her life, as the accused threatened to do away with her life if the incident is disclosed to anybody else, she did not inform anybody. Later on, on sensing that there was a foetus inside the womb, she disclosed the same to her mother. She was admitted to the Thanjavur Medical College Hospital. The doctors confirmed the pregnancy and thereafter she preferred a complaint to the All Women Police Station. She delivered a child on 27.02.2002 and the child is stated to be studying 9th Standard at Pattukkottai Government Higher Secondary School." 2.1. The victim's mother has been examined as P.W.2. The doctor who examined the accused, P.W.9-Dr. Sekar, gave a certificate stating that there is nothing to suggest that the accused is impotent. P.W.10, Dr. Jayanthi, who conducted radiological examination upon the victim girl and based upon the request made by the Judicial Magistrate, gave an opinion that she has completed 14, but did not complete 16. P.W.13-Dr. Kasturi, examined her after delivery and she has given an opinion that there are evidences to show the child birth, but obviously she could not give opinion as to whether there are available evidence to indicate whether she could have been subjected to sexual intercourse or not. P.W.13-Dr. Kasturi, examined her after delivery and she has given an opinion that there are evidences to show the child birth, but obviously she could not give opinion as to whether there are available evidence to indicate whether she could have been subjected to sexual intercourse or not. In other words, the examination of the victim girl by the doctor has lost all relevance, after the victim girl having delivered the child, namely, the second victim on account of the occurrence. The victim girl as well as the accused have been subjected to forensic DNA examination and the forensic experts have given opinion that the accused is the putative father of the child. The forensic expert has given an opinion that the possibility of the accused being father of the child is 99.9998%. Therefore, it is a case not only of the victim, by the victim, for the victim, but also the victim of the victim. 3. The case of the defence is that the victim girl wanted to marry the accused, but as she was short-statured and not good looking, the accused refused to marry her and that is why this case has been falsely foisted against him. In the evidence, it is stated that the victim girl was aged 26 or 27 even at the time of the incident, and not 16 to 18 as contended by the prosecution. 4. Accepting the evidence of P.W.1, giving a finding that the contradictions and omissions need not be given much importance, the Court has convicted the accused under Section376 IPC and sentenced to undergo 7 years of rigorous imprisonment. 5. The victim of the victim, namely, the child born to the accused and the victim girl is present before this Court along with her uncle, Ramamoorthy, S/o. Manickam. One Nirmala, who is stated to have married the accused, through whom she has got two children by names Yuvaraj and Desika, is also present. The villagers, viz. Baladhandayutham, S/o. Chinnaiyan and T. Thangaraj, S/o. Thirumeni are also present. 6. It is the case of the victim girl that there was a consensual sexual intercourse on the strength of the promise made that the accused would marry her and later on, on account of some misunderstanding, they could not marry each other and therefore, they must be allowed to enter into a compromise, at least in the interest of her daughter. Unfortunately, on account of abnormal delay in disposal of this Appeal, this Court had to see the daughter of the victim also who pleaded before this Court that her education must not be stopped on account of the accused being sent to jail. The victim girl appears to be too old and her maturity level seemed to be too low. 7. So far as the wife of the accused is concerned, she would state that in the interest of her family and the children and having regard to the age of the victim girl at the time of incident itself, they must be allowed to enter into a compromise and with very great difficulty, she has arranged the financial assistance to be given to the daughter of the accused (daughter of the victim) for the purpose of her sustenance and education. This kind of request on behalf of the accused cannot be entertained as it is not open to the accused to father a girl and then to say that he has married somebody and has given birth to two children. But the wife of the accused would submit that unaware of the criminal case pending against the accused, she married the accused and only after the birth of the child, she came to know about the pending case against the accused and she is not able to leave the company of the accused because of her poor financial position. The brother of the victim girl would submit that despite he being a married person, on account of love and affection, he is taking care of the family of the sister and he being a coolie worker, the financial interest of the victim has to be protected and they must be allowed to enter into a compromise. To the said effect, all of them have filed respective affidavits requesting the Court to permit them to enter into a compromise, contending that no offence under Section 376 IPC will be made out, as it was by consensus. 8. As rightly submitted, if an offence under Section 376 IPC is made out, certainly the court cannot permit the parties to enter into the compromise, as the public interest involved is much higher than the private interest of the parties. 8. As rightly submitted, if an offence under Section 376 IPC is made out, certainly the court cannot permit the parties to enter into the compromise, as the public interest involved is much higher than the private interest of the parties. De hors the statement made by the victim now, the evidence indicates that the act of sexual intercourse must have been only by consent. The only question is whether the consent is a valid consent or invalid consent (on account of the age). 9. So far as the facts of the case are concerned, this incident has been brought to light by the victim only after the pregnancy becoming visible to the parents. Had it been the case of forcible sexual intercourse, naturally the victim girl would have informed her parents or relatives or friends or anybody who is close to her, immediately after the occurrence or at least within a reasonable time thereafter, but it is not so. Though it is alleged that the accused threatened her not to disclose the incident, at some point of time or the other, the victim girl would have been tempted to disclose the incident, having regard to the gravity of the offence alleged. Only after delivery, this incident has catched up fire. The totality of the circumstance only indicates that the act of sexual intercourse must have been with consent only. 10. At the time of incident, the age of the victim is stated to be about 16 and below 18. In the radiological report, it is stated so. When the age is ascertained radiologically, the settled opinion is that the margin of error is (with regard to age) two years on either side. If this yardstick is adopted, having regard to the evidence of the accused that the victim was aged 26 to 28 at the time of incident, it may be safely said that the victim girl was aged above 18 at the time of the incident and when she was above 18 and when she has consented for sexual intercourse, it can be said that the offence under Section 376IPC is not made out as against the accused. Therefore, when the accused is charged with the major offence under Section 376 IPC and when that is not made out, he can be held responsible for the lesser offence under Section 417 IPC, based on facts proved before this Court. The facts proved before the Court would make out the offence under Section417 IPC. 11. Section 417 of IPC is a compoundable offence. Considering the request of the victim that she needs justice only in terms of financial compensation from the accused, this Court is of the opinion that they must be allowed to compound the offence under Section417 of IPC. 12. The accused has come forward to pay a compensation of Rs. 1,50,000/- to the victim girl. Out of the said amount, towards the expenses already incurred and to be incurred towards her education of his daughter, Rs. 25,000/- is ordered to be paid to the victim girl immediately and the remaining amount of Rs. 1,25,000/- is ordered to be deposited, in a Fixed Deposit Account, in the Indian Bank attached to the Madurai Bench of Madras High Court Branch, in the name of the daughter of the victim girl. The interest accrued in the deposit shall be withdrawn by the victim girl, once in every three months directly from the bank, which shall be utilised for the benefit and welfare of the daughter of the victim girl. 13. Before parting with this case, this Court wishes to point out that the trial court should make use of the provisions of Section 357 Cr.P.C., providing for compensation to the victims of the offence in all cases and more especially, in the cases of this nature, which involves not only the victim but also the offspring of the victimization. 14. In the result, the Criminal Appeal is partly-allowed and the accused is acquitted of the charge under Section 376 IPC. The offence under Section 417 IPC is ordered to be compounded and hence the accused is acquitted of the charge under Section 417 IPC. Bail bonds, if any executed by the accused, shall stand discharged.