Criminal Appeal No. 1039 of 1998 · Madras High Court

Bail Slip The Appellant in Crl.A.No.1039/98 (Accused in S.C.No.49/98 dated24/11/98 on the file of the Addl. Sessions Court, Pondicherry at Karaikal)Viz. Ravikumar @ Babu was directed to be released on bail as per order ofthe this Court dated 3/8/2000 made in Crl. Mp.No.1417/2000.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25-06-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.1039 of 1998 Ravikumar@ Babu ..Appellant -vs-State of Pondicherryrep. By the Inspector of PoliceNedungadu Police StationKaraikal(Crime No.18/97).. Respondent This appeal is filed against the Judgment made in S.C.No.49/1998dated 24.11.1998 on the file of the Additional Sessions Court, Pondicherryat Karaikal. For appellant : Mr.S.Ashok Kumar Senior Counsel For Mr.V.ParthibanFor respondent : Mr.M.R.Thangavel, Public Prosecutor(for Pondicherry). https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT This appeal has been preferred against the Judgment in S.C.No.49 of1998 on the file of the Additional Sessions Judge, Pondicherry.

The accused has been charged under Section 376 (1) IPC wasconvicted by the learned trial Judge and sentenced to undergo seven yearsrigorous imprisonment against which the accused has preferred this appeal.

The short facts of the prosecution case are that on 24.3.1997 atabout 11.00 hours, the accused having a lust over the victim girl SelviAnthonyammal taking advantage of the loneliness, trespassed into thehouse of the victim, when the victim was actually asleep bounced on her andcommitted the offence of rape punishable under Section376(1) of IPC.

The learned Additional Sessions Judge, Pondicherry at Karaikal, after taking cogizance of the offence, issued summons to the accused, andon his appearance furnished copies under Section207 of Cr.P.C. since thecase is exclusively triable by the Court of Sessions, the learned SessionsJudge has committed the case to the Court of Sessions. The learnedAdditional Sessions Judge, Pondicherry at Karaikal , on the appearance ofthe accused framed charges under Section 376(1) of IPC and whenquestioned, the accused pleaded not guilty.

On the side of the Prosecution , P.Ws 1 to 13 were examined. Exs P1 to P25 were exhibited and M.Os 1 to 13 were marked.

P.W.1 is the victim girl. According to her, she was alone in thehouse on 24.3.1997, and was taking a nap, after finishing her householdwork, resting on a cot in her house, at 11.00.a.m., she suddenly woke updue to a bang and saw the accused entering into her house and bolted thedoor from inside. While she was about to get up from the bed, theaccused caught hold of her hands and pushed her in a cot and due to thisforcible attack, the glass bangles got broken and the broken glass banglepieces caused scratches on her hands and after causing minor injuries, hehas committed the offence of rape. According to her, in the crossexamination due to the criminal act, she was profusely bleeding on herprivate part. After committing an offence, the accused had left her houseafter criminally intimidating her which prevented her from making anydistress call in his presence. Soon after he left the place , she raisedalarm which made the neighbour Anandajothi, came to her rescue, to whom, she had narrated what had happened to her.

When incriminating circumstances under Section 313 Cr.P.C. wereput to the accused, he would deny his complicity with the crime.

After going through the materials available on record before thetrial Court by the prosecution including the oral and documentaryevidence, the learned trial Judge has come to a conclusion that theoffence constituted under Section 376(1) of IPC has been made out againstthe accused by the prosecution beyond any reasonable doubt and accordinglyconvicted the accused under Section 376(1) and sentenced him to undergoseven years Rigorous imprisonment, without slapping any fine amount. Aggrieved by the findings of the learned trial Judge, the accused haspreferred this appeal.

Now the point for consideration in this appeal is whether theoffence contemplated under Section 376(1) of IPC has been committed bythe accused has been proved beyond any reasonable doubt by the prosecutionto sustain the sentence awarded by the learned trial Judge?10..Heard Mr.S.Ashok Kumar, learned Senior counsel appearing for theappellant and Mr.M.R.Thangavel, learned Public Prosecutor(Pondicherry) forrespondent and carefully considered their rival submissions.

The learned Senior Counsel Mr.S.Ashok Kumar, would focus theattention of this Court to the main argument that if the sexualintercourse is committed with the consent of the victim, who is agedabove18 , then the offence under Section 376(1) of IPC will not be https://hcservices.ecourts.gov.in/hcservices/ attracted to warrant conviction. In support of his contention, the learnedcounsel would rely on the evidence of P.W.1 which was not ,according tothe Senior Counsel, corroborated with the medical evidence of P.W.7.According to P.W.1, at the time of occurrence, the accused had caught holdof her hands and due to force used by him, her glass bangles got brokenand the broken pieces caused scratches in her hands and by using force, the accused had committed the offence of rape on her. In the crossexamination, her specific allegation is that during the course ofcommitting the offence, the accused had caused some injuries and nail markon her cheek and also the accused had forcibly closed her mouth and therewere bleeding injuries found on the cheek. She would further go to theextent of saying that while, the accused was shutting her mouth, she hadbitten on the palm of the accused and thereby caused bleeding injuries onthe palm of the accused. She would categorically say in the crossexamination that while the accused was holding her both hands, the glassbangles got broken and punched on her forearm of both hands and causedbleeding injuries on both arms of both hands and that at that time, shewas wearing ten glass bangles on each hands and all the ten glass bangleson each hand got crushed and that all the ten glass bangles in each handscrushed and fell down inside the house. She is very definite in herdeposition that while, resisting the sexual assault made by the accused, she had sustained contusions and scratches all over her body and thatdue to enormous force used by the accused at the time of occurrence, herwearing apparels also got damaged particularly her saree torn into pieces. According to her, due to the force used by the accused, there werebleeding scratches on her chest while, she was resisted the sexualassault of the accused. According to her, she had also received injurieson the outside of the private part. She would categorically depose thatprevious to this incident, she did not have any sexual connection with anyone.

P.W.7, the doctor who had examined the victim on 24.3.1997 at4.10p.m., at the Government Maternity Hospital, Karaikal. According toher, P.W.1 was brought to the Hospital by uncle with the excessivebleeding in her private part from that day morning. The Doctor P.W.7 whohad examined genetilia of the victim has deposed that hymen of the victimwas ruptured and no external injury was seen over the genetilia and nobite marks seen over the body and breasts of the victim. She had foundthat there was a lalteral vaginal wall tear about 6 cm x 5 cm bleedingprofusely was then sutured with cat gut. The doctor has opined that thevictim was aged around 25 years approximately on her physical appearance. To ascertain her age, radiological and dental examination were done. Shehas very definite in her evidence that she has not seen any externalinjuries on the body except injuries on her private part.

The very important piece of evidence of P.W.7 is that P.W.1 usedto an act like that of sexual intercourse since the hymen was lax andvegina roomy. The cross examination of P.W.7 the doctor has deposed tothe fact that since the genetilia of the victim was lax and vegina roomy, she must be used to an act like that of sexual intercourse that means she https://hcservices.ecourts.gov.in/hcservices/ did have similar practice earlier on many occassions. She would furtherdepose in the cross examination that there is no bite or nail mark on thebody of P.W.1 or sign of violence, she has opined that there is no sexualassault on P.W.1. Further in the re-examination, she has given reason forprofuse bleeding from the private part of P.W.1. According to P.W.7, dueto abnormal pressure or force by the person who had sexual intercoursewith the victim, there was a tear of mucus membrane of the vaginal wallresulting profuse bleeding.

The learned Senior counsel relying on a decision reported in Mohan Lal -vs- Sate of Rajasthan(2003(2)Crimes 501(SC) and contended thatin a case of similar nature, the only question which has to be consideredis whether the prosecutrix was a consenting party to the offence. Theshort facts of the above said ratio is that the appellant before the ApexCourt Mohanlal was tried before the Court of Sub Judge, SC/ST(P.A.C.C) in Criminal Case No.4 of 1997 charged for an offence under Section 376 of IPCand under Section 3(2)(5) of the SC/ST(Prevention of Atrocities) Act. Theaccused was found guilty of an offence under Section 376 of IPC andsentenced him to undergo seven years Rigorous Imprisonment and to pay afine of Rs.20,000/- with default sentence. The appellant was however, acquitted from the charges levelled against them under Section 3(2)(5) ofSC/ST (Prevention of Atrocities) Act. The appeal preferred by the accusedagainst the conviction and sentence was dismissed by the High Court of Rajasthan which necessitated the appellant to prefer the appeal by SpecialLeave to the Honourable Apex Court.

Since there was no external injuries found on the person of theprosecutrix, the Apex Court is of the view that there was no force used bythe accused in committing an offence of rape and that the victim /prosecutrix is of 18 years old, since there is no medical evidence tocorroborate her evidence regarding the injuries said to have beensustained in the course of the force used by the accused at the time ofcommitting the crime is not proved , the accused cannot be convicted under Section 376 of IPC.

The above said dictum in all four corners applies to the presentfacts of the case. The learned trial Judge has convicted and sentencedthe accused only on the basis of the evidence of P.W.1 without taking intoconsideration, the age of the victim, which is according to theprosecution, 23 years and also without considering the non corroborativemedical evidence regarding the external injuries spoken to by P.W.1 atthe time of occurrence sustained at the hands of the accused. https://hcservices.ecourts.gov.in/hcservices/

Yet another flaw in the prosecution case pointed out by thelearned Senior counsel is that the material objects like blood stainedwearing apparels at the time of commission of the offence, like M.O.2saree cutting , M.O.7 blood stained sand, M.O.3 and M.O.4 petti coatcuttings were sent to Central Forensic Science Laboratory, Hyderabad forchemical analysis, contained stains of blood belonging to group "A",whereas Ex P16 serologist's report dated 31.12.1997 (at page 76 of thetyped set) shows that the blood group of the victim is "O" and the bloodgroup of the accused is "B". So it goes without saying that the materialobjects sent for analysis do not contain the blood group of the victim aswell as the blood group of the accused. Further it is pertinant to notein this case that as per the evidence of P.W.4, the mother of the victimP.W.1 , she had immediately washed the blood stained wearing appearels ofthe victim handed over to her by one Visuvasamary (who was not examined inthis case) on 24.3.1997 itself, at the time when the victim was admittedin the hospital for treatment. So it is clear that there is nopossibility of sending the samples with stain of blood belonging to thegroup of the victim.

These two important points were not at all being raised andconsidered by the learned trial Judge while convicting and sentencing theaccused under Section376 IPC. Further it is in evidence through the Doctor P.W.7, that the accused is subject to intercourse even prior tothis occurrence whereas P.W.1 in her evidence would depose that before theoccurrence, she never had any intercourse with any person.

Under such circumstances, it cannot be said that an offence under Section 376 of IPC has been committed by the appellant/accused. For theabove said reasonings, I constrained to interfere with the findings of thelearned trial Judge in convicting the accused under Section 376 of IPC andsentencing him to seven years rigorous imprisonment. The point is answeredaccordingly.

In fine, the appeal is allowed and conviction and sentenceunder Section 376 of IPC awarded by the learned trial Judge in S.C.No.49of 1998 on the file of First Additiional Sessions Judge, Pondicherry at Karaikal is set aside and the accused/appellant is set at libertyforthwith, if he is not required in any other case. Bail bond executed bythe appellant shall stand cancelled. sgSd/-Asst. Registrar/true copy/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial 1st class Magistrate, Karaikal2. -do- through The Chief Judicial Magistrate, Pondicherry3. The Additional Sessions JudgeI, Pondicherry at Karaikal.4. -do- through The Principal Sessions Judge, Pondicherry5. The Superintendent of Central Prison, Pondicherry6. The Public Prosecutor, Pondicherry7. The Inspector of Police, Nedungadu Police Station, KaraikalTEJ(CO)dcp/5.7.07Crl.A.No.1039/1998