Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 683 (MAD)

J. Fransis Xavier v. State

2020-03-18

T.RAVINDRAN

body2020
JUDGMENT : T. Ravindran, J. 1. The Session Judge, Manila Court, Coimbatore, by judgment dated 24.09.2013, passed in S.C. No. 3 of 2009 has convicted the appellant/accused, after holding that the accused is not guilty of Section 376 (1) IPC, under Section 376 read with 511 IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 10,000/- in default to undergo rigorous imprisonment for a period of three months and under Section 506(i) IPC and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 3,000/- in default to undergo rigorous imprisonment for a period of one month and the period of sentences imposed on the appellant/accused has been ordered to run concurrently. 2. Impugning the same, the criminal appeal has been preferred by the appellant/accused. 3. Briefly stated, according to the prosecution, the accused on 14.2.2007 at about 4 P.M., took the victim girl aged about six years to his house, lied her on the bed and removing her clothes had sexual intercourse with the victim girl, a minor, against her Will and without her consent and after committing the offence of rape on the victim girl, threatened her by saying 'btspapy; brhd;dhy; mog;ngd;' and thereby, according to the prosecution, the accused has committed offences punishable under Sections 376(1) and 506(i) IPC. The criminal law has been set in motion, in such view of the matter, based on the complaint launched by PW1 Tmt. Muthammal, the mother of the victim on 24.02.2007, marked as Ex. Pl and on the basis of Ex. Pl complaint, FIR had been registered by PW9 Sridharan under Section 376 IPC and forwarded the FIR to Court and higher officials for investigation and the printed FIR has been marked as Ex. P6. Following the same, it is found that the victim girl was subjected to medical examination and medical certificate issued by the Doctor examined as PW6 has been marked as Ex. P3 and subsequently, the medical certificate issued by the medical officer examined as PW5 has been marked as Ex. P2 and the age of the victim girl was determined as being between 5 to 7 years and the radiologist report pointing to the same has been marked as Ex. P4. P3 and subsequently, the medical certificate issued by the medical officer examined as PW5 has been marked as Ex. P2 and the age of the victim girl was determined as being between 5 to 7 years and the radiologist report pointing to the same has been marked as Ex. P4. The IO, during the, course of investigation, has also endeavoured to obtain the potency certificate of the accused marked as Ex. P7 and after examining the various witnesses and collecting other materials and concluding the investigation, as above pointed out, laid the final report against the accused. 4. To sustain the prosecution case, PWs 1 to 15 were examined, Exs. P1 to P10 were marked. No M.O. has been marked. On the conclusion of the prosecution evidence, the accused was questioned qua the incriminating evidence and the accused had denied the same. On the side of the accused, no oral and documentary evidence has been adduced. No M.O. has been marked. 5. On an appreciation of the materials placed on record, both oral and documentary, the trial Court was pleased to convict and sentence the accused as aforestated. Impugning the same, the criminal appeal has been preferred. 6. The accused is charged with the offences punishable under Sections 376 (1) and 506(i) IPC. According to the prosecution, on 14.02.2007 at about 4 p.m., the accused took the victim girl to his house. The victim girl is aged about 6 years on the date of the occurrence. The accused lied the victim girl on his bed and after removing her cloths had sexual intercourse against her Will and without her consent and after the commission of the aforesaid offence, threatened her that he would assault her in the event of disclosing the same and hence it is put forth that the accused has committed the offences levelled against him. 7. The date of occurrence, according to the prosecution, is 14.02.2007, however, it is found that the complaint has been lodged only on 24.02.2007. Therefore, it is evident that there is a delay of 10 days in the lodgement of the complaint. The primary point to be noted in this matter is that the victim girl is a child aged about 6 years on the date of the occurrence. The victim girl has been examined as PW4. Therefore, it is evident that there is a delay of 10 days in the lodgement of the complaint. The primary point to be noted in this matter is that the victim girl is a child aged about 6 years on the date of the occurrence. The victim girl has been examined as PW4. It is found that the trial Court after ascertaining the competency of the victim girl to depose in the matter and on being satisfied with the same, proceeded to examine the victim girl as PW4. The victim girl has clearly tendered evidence that the accused took her to his house forcibly by shutting her mouth and lied her on his bed and removed her clothes and pressed his private part on her private part and thereafter, threatened her that he would assault her in any event of she disclosing the same and the relevant portion is extracted below for better appreciation: 8. Therefore, in the light of the threat meted out to the victim girl by the accused and the victim girl being a child on the date of occurrence, naturally, she would have apprehended danger in the event of the acts committed by the accused being disclosed, however, as she had developed pain in her private parts, she had chosen to disclose the same to PW2, David balan, who is the son of her maternal aunt and consequently, PW2 had informed the same to PW1, Tmt. Muthammal, the mother. Accordingly, the sister of PW1, Lilly Flora PW3, also coming to the know of the occurrence, resultantly, it is found that the victim girl was taken to the hospital for providing treatment for the injuries alleged by her in the private parts. It is also noted that the mother had given a complaint about the occurrence marked as Ex. P1. 9. It is also noted that the mother had given a complaint about the occurrence marked as Ex. P1. 9. The medical officer who examined the victim girl had also noticed that the victim girl, on examination, complained of pain in the vagina and on examination also noticed redness and swelling in the vagina and accordingly, she had provided medicine to her and advised them to take the victim girl to a Gynaecologist and therefore, considering the abovesaid evidence in toto, accordingly, it is found that apprehending danger and hurt at the hands of the accused who is also a nearby resident of the victim girl and subsequently, unable to bear the pain experienced by her due to the offences committed by the accused, left with no other alternative, it is seen that the victim girl had chosen to disclose the acts committed by the accused and in the light of the abovesaid factors, as rightly determined by the trial Court, the delay in the lodgement of the complaint has been properly explained by the prosecution and in such view of the matter, in my considered opinion also, the delay in the lodgement of the complaint would not in any manner affect or undermine the prosecution case. 10. That the victim girl was aged between 5 to 7 years on the date of the occurrence could be gathered from the radiologist report marked as Ex. P4 and as above pointed out, according to the prosecution case, the victim girl was aged about six years on the date of the occurrence. The victim girl having suffered onslaught committed by the accused on her, though she being a minor girl and further, on the date she had been examined in the Court, she being aged about eleven years, however, the Court on being satisfied that she is competent to depose in the matter, accordingly, proceeded to examine the victim girl and as rightly determined by the trial Court, the victim girl has clearly tendered evidence regarding the unlawful acts committed by the accused against her body and considering the evidence of the victim girl, in toto, accordingly, in my considered opinion, it is found that the sole evidence of the victim girl alone would be sufficient to uphold that the accused is guilty of the offences attributed against him. Despite cross examination of the victim girl, as rightly contended by the Government Advocate, nothing has been pointed out by the accused to discredit the evidence of the victim girl and on the other hand, the evidence of the victim girl is found to be cogent, reliable, acceptable and convincing. 11. No doubt, as regards the evidence of PWs 1 to 3, there are some contradictions. However, as rightly held by the trial Court, the contradictions pointed out in their evidence on the part of the accused is found to be only on. the minimum and not affecting the prosecution case, as such and the contradictions centering on only with reference to the mode of the lodgement of the complaint and the date of occurrence etc., however, in my considered opinion, the abovesaid contradictions in the evidence of PWs 1 to 3 would not in any manner affect the prosecution case, as such, particularly, when the evidence of the victim girl is highly reliable and trustworthy. The victim girl has no motive to depose against the accused and on the other hand, considering the unimpeachable evidence of the victim girl, it is found that the accused has committed offences put forth against him. 12. That the accused is a potent person has been established by the prosecution with the potency certificate marked as Ex. P7. 13. However, considering me evidence of PW5, Dr. Anitha Rose and the medical certificate issued by her marked as Ex. P3, it is found that hymen is intact and no external injuries had been noted and no semen is also available either in the sample collected as well as from the accused as reflected in Exs. P8 and P9. In such view of the matter, the trial Court has rightly held that the offence put forth against the accused under Section 376 IPC has not been made out and in such view of the matter, considering the evidence of the victim girl, the accused is found to have attempted to rape the victim girl one way or the other. The acts committed by the accused to the victim girl has been clearly set out by the victim girl as above pointed out. In such view of the matter, the trial Court is wholly justified in convicting the accused under Section 376 read with 511, IPC. The acts committed by the accused to the victim girl has been clearly set out by the victim girl as above pointed out. In such view of the matter, the trial Court is wholly justified in convicting the accused under Section 376 read with 511, IPC. Similarly, as the accused had put the victim girl under apprehension that she would face danger and assault from him in the event of disclosing the same, accordingly, it is seen that the trial Court is right in holding that the accused has committed offence under Section 506 (i), IPC. 14. During the course of arguments, the accused counsel mainly contended the delay aspect of the lodgement of the complaint. However, as above pointed out, the delay in the lodgement of the complaint has been properly explained by the prosecution side. 15. Similarly, the accused counsel pointed out about the lodgement of complaint that PW1 had informed the police orally and the same had been recorded by the police and PW9 having deposed that a written complaint has been, brought by PW1, the abovesaid aspects, in my considered opinion, do not, as such, vitiate the prosecution case, particularly, considering the offences committed by the accused against the victim girl, as spoken to by the victim girl and in such view of the matter, the contradictions in the prosecution case qua the-mode of lodgement of the complaint, in my. considered opinion, would not be fatal to the prosecution case as such. 16. Further, during the course of arguments, the accused counsel contended that there is violation of Section 53-A as regards the potency report pertaining to the accused and infraction of Section 164-A with reference to the medical certificate issued to the victim girl. considered opinion, would not be fatal to the prosecution case as such. 16. Further, during the course of arguments, the accused counsel contended that there is violation of Section 53-A as regards the potency report pertaining to the accused and infraction of Section 164-A with reference to the medical certificate issued to the victim girl. However, considering the abovesaid documents, in toto and though there is some delay in the despatch of the same to the Court, however, when the abovesaid documents had been procured by the prosecution during the course of investigation and nothing serious has been pointed out to invalidate the same, as such and even assuming that there are some defects in the abovesaid certificates as sought to be project by the accused counsel, however, when the basic case of the prosecution has been clearly established, in such view of the matter, the alleged irregularities projected by the accused counsel surrounding the abovesaid certificates cannot be blown out of proportion with a view to reject the prosecution case as such. Therefore, the defects in the investigation as such would not affect the truth of the prosecution case as disclosed by the victim girl and accordingly, the abovesaid factors cannot be the basis for holding that the accused has not committed the offences projected against him. 17. In the light of the abovesaid reasons, the conviction and sentence imposed on the accused under Sections 376 read with 511 IPC and 506 (1), IPC by the Session Judge, Mahila Court, Coimbatore, by judgment dated 24.09.2013, passed in S.C. No. 3 of 2009 are confirmed and resultantly, the criminal appeal is dismissed. The trial Court is directed to secure the presence of the accused and commit him to prison to undergo the sentence imposed on him as per law.