Mohammed Sherif & Ors. v. State by The Inspector of Police, Gudiyatham Town Police Station, Gudiyatham, Vellore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 10.6.2009CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.1250 of 20071. Mohammed Sherif2. FasilPetitioners/Accusedvs. State by The Inspector of Police, Gudiyatham Town Police Station, Gudiyatham, Vellore District. Respondent/ComplainantCriminal Revision Case filed under section 397 read with 401Cr.P.C. to call for the entire records connected with the judgmentpassed by the learned Additional District and Sessions Judge (FTC),Vellore in C.A.No.59 of 2003 dated 12.12.2006 dismissing the appealand confirming the conviction of the petitioners herein made inS.C.No.277 of 2001 dated 3.3.2003 by the learned Assistant SessionsJudge, Gudiyatham and set aside the same and acquit the petitionerherein. For petitioners: Mr.MargabandhuFor respondent : Mr.N.Kumanan, Govt. Advocate (Crl. Side)ORDERThe revision is directed against the confirmation of convictionand sentence under section 363 and 376 of the Indian Penal Code bythe Additional District and Session Judge (FTC), Vellore.

The first and second accused, who are the revisionpetitioners herein, stood charged with offences under sections 363and 376 of the Indian Penal Code. Both were convicted thereunderand sentenced to undergo five years and seven years rigorousimprisonment respectively. The Judgment of conviction and sentence https://hcservices.ecourts.gov.in/hcservices/ recorded by the Trial Court was confirmed by the appellate forum. Hence, the revision preferred by the first and second accused beforethis court.

On the side of the prosecution, twelve witnesses wereexamined and as many as twenty documents and 10 material objectswere marked. Neither oral nor documentary evidence was let in onthe side of the defence.

PW1 Jayaraman is the father of the victim girls, PW2 Kavithaand PW3 Manjula. PW1 speaks to the missing of both his daughtersand the first information report, Ex.P1 lodged by him. P.Ws.2 and 3are the victim girls. As per the prosecution, PW2 was aged 15 yearsand PW3 was aged 13 years at the time of occurrence. Theprosecution has chosen to produce the birth certificates of P.Ws.2and 3 as Exs.P19 and P20 respectively. Both of them have spoken tothe effect that on 29.6.2000, at about 4.00 pm, when they werereturning from their friend's house after collecting books, theaccused herein enticed them to go along with them to Vellore, but, when they refused, the accused took both the victims viz., P.Ws.2and 3 in their M80 vehicles. Both the accused left the M80 vehiclesat Pallikonda and thereafter they took P.Ws.2 and 3 by bus to Vellore. The accused took P.Ws.2 and 3 to Selliamman Koil nearVellore. The first accused tied thali on PW1 and the second accusedtied thali on PW3 at Selliamman Koil. Thereafter, they proceeded to Tiruttani where they stayed in a hotel in separate rooms. The firstaccused stayed with PW2 and the second accused stayed with PW3 inseparate rooms in the lodge. Against the will of the victim girls,P.Ws.2 and 3, the first accused had intercourse with PW2 and thesecond accused had intercourse with PW3 in their respective rooms inthe lodge. The next day morning, the accused took PW2 and PW3 to Nagari by bus. They stayed in the friend's house of the accused fortwo days. Thereafter, on 2.7.2000, P.Ws.2 and 3 were brought to Sedhukarai located near Gudiyatham Town from where the victim girlswere retrieved by the police. The victim girls were subjected tomedical examination. PW9 examined both the victims P.Ws.2 and 3. She has expressed in the medical reports, Exs.P13 and P14 that therewas no symptom of intercourse in the near past, though the hymenswere found not intact. The Sup Inspector of Police, PW10 hasinvestigated the case. PW12, having completed the investigation, laid final report as against the accused.

The Trial Court as well as the appellate court heavily reliedupon the evidence of P.Ws.2 and 3 who are the victims in this casein the background of the birth certificates, Exs.P19 and P20, themedical certificates, Exs.P13 and P14 and the evidence of PW9, the https://hcservices.ecourts.gov.in/hcservices/ doctor and returned the verdict of conviction.

Heard the submissions made on their side. The entireevidence available on record was thoroughly perused by this court.

The Trial Court as well as the appellate court have rightlydetermined the age of the victims, PW2 and PW3 as 15 and 13respectively based on the birth certificates, Exs.P19 and P20. Asthe victims were below the age of 16, even if the intercourse hadtaken place with their consent, it is not considered as consent andit would amount to rape. Both the courts below have rightly placedreliance upon the testimony of the victims, P.Ws.2 and 3 who havecategorically spoken to the fact that the first accused hadintercourse with PW2 and the second accused had intercourse with PW3in the lodge at Tiruttani. The victims have also spoken to the factthat they were enticed and taken away from the lawful custody ofPW1. PW1 has also corroborated the evidence of P.Ws.2 and 3 to theeffect that they were taken away from his lawful custody. PW9 isthe Doctor who examined the victims on 6.7.2000 and issued medicalcertificates, Ex.P13 and P14. She has opined that the hymens ofboth the victims were found not in tact, but, there was noindication for very recent intercourse. The courts below haverightly relied upon the medical evidence of PW9 to come to theconclusion that A1 and A2 had intercourse with P.Ws.2 and 3respectively.

The learned counsel appearing for the petitioner, referringto the medical testimony available on record, would submit that themedical evidence does not support the case of the prosecution.

It is to be noted that the victims were retrieved by thepolice team on 2.7.2000 itself. P.Ws.2 and 3 have categoricallystated that they were subjected to intercourse by A1 and A2respectively on 29.6.2000 itself in a lodge at Tiruttani. Therefore, it is found that the victims were rescued only afterthree days. But, unfortunately, the victims were not producedbefore the Doctor for examination forthwith. They were producedbefore the Doctor, PW9 only on 6.7.2000 after a lapse of about fourdays. Such a lapse found on the side of the prosecution will notruin the case of the prosecution inasmuch as the evidence of P.Ws.2and 3 are found to be telling. In all fairness, the investigatingagency should have subjected the victims for examination immediatelyon rescuing them on 2.7.2000 itself. For the lapse on the part ofthe investigating agency, the truthful version emanated from themouth of P.Ws.2 and 3 shall not suffer. https://hcservices.ecourts.gov.in/hcservices/

It is true that PW9 has come out with a version that therewas no injury either on the private parts or at any other parts ofthe victims. Firstly, the court is not dealing with a case of rapeof a woman aged more than 16 years. It is the case of theprosecution that minor girls aged below 16 years were subjected tointercourse by A1 and A2. Further, the victims were completely leftin the hands of the kidnappers at the time of the occurrence. Therefore, any resistance put up by them will be of no avail.P.Ws.2 and 3 would state that against their will and consent, A1 andA2 had intercourse with them. It is not their version that theyresisted during the course of intercourse and thereby they sustainedinjury either on the private parts or any other parts of the body. Further, the victims were subjected to medical examination onlyafter seven days. Therefore, the absence of injury on private partsor any other parts of the victims does not weaken the case of theprosecution.

PW9 has stated in her reports, Exs.P13 and P14 that therewas no indication of recent intercourse. But, the investigatingofficer, PW12, during the course of cross- examination, would statethat the Doctor has opined that there was no indication for rape. It is not at all the case of the prosecution that the victims wererescued immediately after the rape was committed or intercourse wasdone by the accused on P.W.2 and 3. Three days had already lapsedby the time they were secured by the police team. Seven days hadexpired at the time when they were produced for medical examination. No wonder, no injury was found on the person of the victims.

The learned counsel appearing for the petitioners referredto the ratio laid down in YERUMALLA LATCHAIAH v. STATE OF ANDHRAPRADESH ((2006) 9 SCC 713) wherein it has been held as follows:-"In the instant case, age of the victim was onlyeight years at the time of alleged occurrence. Immediately after the occurrence, she wasexamined by Dr.K.Sucheritha (PW7) who has statedin her evidence that no injury was found on anypart of the body of the victim, much less onprivate part. Hymen was found intact and thedoctor has specifically stated that there was nosign of rape at all. In the medical report, ithas been stated that vaginal smears collected andexamined under the microscope but no spermdetected. The evidence of the prosecutrix isbelied by the medical evidence. In our view, inthe facts and circumstances of the present case, https://hcservices.ecourts.gov.in/hcservices/ the High Court was not justified in upholding theconviction. "

That was a case where immediately after the commission ofthe offence of rape, the victim was subjected to medicalexamination. The Doctor, who examined the victim in that case, found that there was no injury on any of the part of the body of thevictim. Very surprisingly, the hymen was found intact in that case. The Forensic Science report also would disclose that there was nosperm detected on the vaginal smears collected and examined by theexpert. Under such circumstances, the Honourable Supreme Court hasheld that the High Court was not justified in upholding theconviction under section 376 of the Indian Penal Code. The case onhand is quite distinguishable from the facts and circumstances ofthe aforesaid case. In the present case, the victims were examinedafter a lapse of about seven days. The hymen was found ruptured. The vaginal smears collected and examined would be of no useinasmuch as the intercourse was not of recent origin. In the abovefacts and circumstances, the court finds that the aforesaid ratiodoes not apply to the facts and circumstances of the case.

In DILIP v. STATE OF MADHYA PRADESH ((2001) 9 SCC 452), the Supreme Court has held that the testimony of the Prosecutrix whichis found contradicted by the medical evidence cannot be safelyrelied upon. That was a case where there was gang rape. TheProsecutrix had come out with a version that there was a sexualassault and as a result of which, there were blood stains on theclothes of the Prosecutrix, but, the report emanated from the Forensic Science Laboratory did not confirm it. The medicalevidence disproved the version of the Prosecutrix that she sustainedbleeding injuries at her private parts and her clothes were stainedwith blood. The Supreme Court has observed that the 'probabilityfactor' virtually operated against the Prosecutrix in the facts andcircumstances of the above referred case. As infirmities were foundin the sole testimony of the Prosecutrix, it was held that it wastotally unsafe to rely upon the testimony of the Prosecutrix. But, in the case on hand, there was no patent contradiction between theevidence of the Prosecutrix and the medical testimony. It is notthe case of the prosecution that the victims sustained any bleedinginjuries in the private parts at the time of occurrence and theywere subjected immediately to medical examination. It is the caseof the prosecution that the victims had to meekly submit themselvesto the accused, of course, with mild objection expressingunwillingness. Therefore, the court finds that no corroboration, asfar as the case on hand is concerned, is required. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel appearing for the petitioner referred toyet another authority in VIMAL SURESH KAMBLE v. CHALUVERAPINAKE APALS.P. AND ANOTHER (2003 SCC (Cri) 596) wherein it has been held thata conviction can be recorded solely on the basis of the testimony ofthe Prosecutrix provided the evidence of the Prosecutrix inspiresconfidence and appears to be natural and truthful. In the aforesaidcase, having found that the testimony of the Prosecutrix was not atall inspiring, the Supreme Court rejected her testimony and upheldthe judgment of the High Court acquitting the accused.

That was a case where the Prosecutrix came out with anartificial version that when the occurrence was taking place atabout 12.30 pm on a Sunday in a thickly populated locality, nobodyturned up to rescue her. It was also pointed out in that case thatthe Prosecutrix chose to loiter leisurely in the locality after thealleged rape till about 2.30 pm. She again went to the flat of thefirst respondent wherein she was residing in the second floor forthe alleged purpose of handing over the keys. She was a marriedwoman. But, she had not chosen to share the said information to herhusband. She came to the house and went to sleep very calmly. Theprosecution has come out with a case very artificially that the Prosecutrix chose to proceed to the house of her brother and sharethe information with her sister-in-law. In the above facts andcircumstances, the Supreme Court has held that the evidence of the Prosecutrix does not inspire confidence. But, in the case on hand, the minors below the age of 16 were subjected to intercourse by A1and A2. They were secured after about three days and subjected tomedical examination after about seven days. They have come out witha consistent version that they have been kidnapped by A1 and A2 andwere subjected to intercourse unmindful of their unwilling to be aparty to the intercourse. The Trial Court and the appellate courthave rightly placed reliance upon the evidence of P.Ws.2 and 3 astheir evidence inspire confidence. Therefore, the aforesaid ratiolaid down by the Supreme Court does not come to the rescue of A1 andA2.

Coming to the age of the victim girls, P.Ws.2 and 3, it issubmitted by the learned counsel appearing for the revisionpetitioners that the birth certificates alleged to have beenproduced by PW1 during the course of investigation were not producedbefore the court but, PW10 produced the alleged birth certificates, Exs.P19 and P20 only during the course of further examination. There was no material on record to show that Indira mentioned in thebirth certificates is actually the mother of P.Ws.2 and 3. Theattention of PW1 was not drawn to the alleged birth certificates, Exs.P19 and P20 which were secured at a later point of time and https://hcservices.ecourts.gov.in/hcservices/ produced before the court. Further, the learned counsel appearingfor the revision petitioners would submit that the Doctor, PW9, whoexamined P.Ws.2 and 3, has fixed the age of PW2 at 16. Therefore, he would submit that the prosecution has failed to establish theexact age of the victim girls.

It is true that PW1 has deposed before the court that he didproduce the birth certificates of his daughters during the course ofinvestigation. There was no explanation from the prosecution as towhat happened to those birth certificates produced by PW1 during thecourse of investigation, but, PW10, the Sub Inspector of Police hasproduced, during the course of further examination, the birthcertificates, Exs.P19 and P20 of P.Ws.2 and 3 respectively.

Though certificates were issued by the Commissioner of Gudiyatham Municipality, who is the competent authority to issuebirth certificates, the Registrar of Birth and Death of GudiyathamMunicipality has also affixed his signature in those birthcertificates. The prosecution has consistently come out with a casethat the victims were below 16 years of age. Of course, PW9 hasrecorded that a girl aged 16 (PW2) was brought to her forexamination. But, it is found that she has not assessed the age ofthe victim girl, PW2.

As rightly pointed out by the learned counsel appearing forthe revision petitioners, the prosecution should have let in someevidence to show that Indira is the mother of the victims, P.Ws.2and 3. But, the court cannot simply forget the fact that the nameof PW1 was mentioned as the father of the girl born in GovernmentHospital. When the certificate was issued by the authority who iscompetent to issue it, the court cannot doubt the veracity of thedetails found in the certificate. There is no cross-examination onthe side of the accused when Exs.P19 and P20 were marked that thewoman Indira is not the mother of the victims, P.Ws.2 and 3. Therefore, there is no reason to reject the birth certificates, Ex.P19 and P20 which have been issued by the competent authority andproduced before the court to support the case of the prosecution.

The learned counsel appearing for the petitioners cited adecision in NARENDRASINGH v. STATE OF MADHYA PRADESH (1996 CRI.L.J.198). That was a case where the age of the victims were fixed basedon ossification test conducted by the Doctor. In suchcircumstances, it has been held therein that marginal benefit of twoyears must go in favour of the accused. No ossification test wasconducted in this case as the birth certificates of the victims werevery much available. Therefore, the question of rendering anymarginal benefit of two years in favour of the accused in this case https://hcservices.ecourts.gov.in/hcservices/ does not arise at all.

The court finds that there is no illegality or improprietyin the decision arrived at by the Trial Court as well as by theappellate court.

During the course of dictating the order, the learnedcounsel appearing for the petitioners would submit, producingcertain alleged love letters emanated from the victims to theaccused, that there had been love affair between the petitioners andthe victim girls and therefore, some mercy may be shown in thematter of awarding sentence.

Firstly, the court finds that those materials were notproduced either before the Trial Court or during the course ofappeal before the appellate forum. Further, it is found that thevictim girls are minor below the age of 16. Therefore, even if loveaffair had been there and the intercourse was done with the veryconsent of the victims, the petitioners cannot escape from the penalprovision under section 376 of the Indian Penal Code.