Bail SlipThe v. State byThe Inspector of Police

Bail SlipThe Appellant/Accused was directed to be released on bail by the orderof this Court dated 05.03.2007 and passed in Crl.MP.No.175 of 2007IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 08.08.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.224 of 2006Prabhakaran .. Appellant (Accused)Vs.State byThe Inspector of Police,H-6, Radhakrishnan Nagar Police Station,Chennai.Cr.No.1194/2004 .. Respondent (Respondent)Prayer:- This appeal has been preferred against the judgments dated16.11.2005 made in S.C.No.365 of 2005 on the file of the SessionsJudge/Mahila Court/Magalir Neethimandram, Chennai.For Appellant :Mr.N.Sudharasan For Respondent :Mr.V.R.Balasubramanian Additional Public ProsecutorJUDGMENTThe accused, who has been convicted under Section 366 and Sentenced toundergo 7 years RI and a fine of Rs.1,000/- with default sentence andconvicted and sentenced under Section 376 IPC to undergo 7 years RI anda fine of Rs.1,000/- with default sentence in S.C.No.365 of 2005 on thefile of the Magalir Neethimandram, Chennai, is the appellant herein.2.The short facts of the case of the prosecution is that on 18.10.2004the accused had kidnapped the victim girl while she was proceeding to herschool, to the house of his uncle's son Samuvel. Thereafter, on thefollowing day took her to Voyila village at Nellur, Andra Pradesh, wherehe stayed with the victim girl in the house of one Kondamma, a knownperson and then on the next day ie. on 20.10.2004 the accused took thevictim girl to Kuchi village in Andhra Pradesh, where they stated in thehouse of Bhavani for two days and on 22.10.2004 the accused took the https://hcservices.ecourts.gov.in/hcservices/ victim girl to Kavali village in Andra Pradesh and stayed in the house ofone Kotaiah and while they were staying at Voyila village for two days,the accused had in order to prevent the victim girl from making any alarmgagged her and during the stay at Voyila village in the house of Kondammahad committed the offence of rape on the victim girl and thus the accusedhas been charged under Section 366, 341 & 376(1) IPC. 3.The case was taken on file by the learned XV MetropolitanMagistrate, George Town, in PRC.No.128 of 2004 and on appearance of theaccused on summons furnished copies under Section 207 of Cr.P.C., andcommitted the case to the Court of Sessions under Section 209 of Cr.P.C.4.The learned trial Judge on appearance of the accused had framedcharges against the accused under Section 366, 341 & 376(1) IPC andcharges were explained to the accused and when questioned the accusedpleaded not guilty. Before the trial Court P.W.1 to P.W.8 were examinedand Ex.P.1 to Ex.P12 were exhibited. No material objects were marked.5.P.W.1 is the mother of the victim girl. According to her, herhusband had deserted her some 15 years prior to the occurrence and thatthe victim girl is her youngest daughter and at the time of occurrence herdaughter, the victim girl Santhiya Rani was studying in DanielMatriculation School in 9th standard. On 18.10.2004 it was drizzling asher daughter went to the school, but did not return in the evening. Herson, who was studying 11th standard went to the school in search of thevictim girl Santhiya Rani, returned by stating that that he was informedthat his sister did not come to school. After her search in the relativeshouse proved futile, she preferred a complaint with the RK Nagar policestation on 19.10.2004 at 7.00 pm under Ex.P.1. On 26.1.2004 at about 4.00pm to respond a call from the police station she went there and saw herdaughter in the police station. On enquiry the victim girl informed thatshe was kidnapped by the accused to Athippattu, thereafter to Nellur andwas subjected to sexual assault by the accused and that the date of birthof her daughter victim girl is 18.1.1991. Ex.P.2 is the birth certificate.6.P.W.2 is the victim girl. She would admit that her date of birth is18.1.1991 and that she knows the accused, who was residing with his aunt'shouse under the same roof. But she was residing with her parentsseparately. On 18.10.2004 at about 8.40 am her mother accompanied her tothe school since it was drizzling. After her mother had left for home,the accused came there and asked her to follow him. When she refused to gowith him he pacified her by saying that only to have a chat he requestedher to come along with him. According to her, he criminally intimidatedher and took her in an auto and got down at Basin Bridge railway stationfrom where he took her to Athipattu village in a train and that she statedthere in one of the relatives house of the accused and that nothinghappened on the said night. But on the following day ie., on 19.10.2004,the accused took her to Voyila village and stayed in one of his relativeshouse, where he had committed the offence of rape after gagging her. On20.11.2004 the accused took her to Kuchi village and informed the https://hcservices.ecourts.gov.in/hcservices/ villagers that he is going to marry her (P.W.2), where she had stayed in ahouse for two days, where also the accused had sexual intercourse withher. Thereafter on 22.11.2004 the accused took her to Kavali village andstayed in a rented house for two days and on the 3rd day her uncle camethere with four or five persons and took her to the village on 24.11.2004and that she had narrated to her uncle what had happened to her. Shewould depose that the accused also accompanied her up to the house of thepanchyat president and with the help of her uncle, she came to Madras andthat she was produced before the police on 26.10.2004. She had also givena statement to the police and two months thereafter she was taken to aMagistrate Court from where she was sent to hospital for a medical checkup and was also examined at RSRM hospital.7.P.W.3 is the grand father of P.W.2. He would depose that his granddaughter P.W.2 went to school on 18.10.2004, but did not return in theevening and that his daughter had preferred a complaint on 19.10.2004 withthe police, but the police have refused to register the complaint. Hence,he went and met the Commissioner of Police on 20.10.2004 and on the adviseof the Commissioner, he again went to the police station and preferred thecomplaint on 21.10.2004. His grand daughter, the victim girl, returned tothe house on 25.10.2005. As per the instruction of the police hisdaughter had stated in the complaint that her daughter the victim girl hadleft the house in anger since she was not offered with new cloths. Onenquiry his grand daughter P.W.2 had informed that the accused took her tomany villages and committed the offence of rape. Since the police havefailed to take action on the complaint preferred by them, with the help ofan advocate a petition was filed before the High Court for necessarydirection to the police to take necessary action in the complaintpreferred by his daughter. 8.P.W.4 is the uncle of the accused. He has not supported the case ofthe prosecution. Hence, he was treated as hostile witness.9.P.W.8, the Investigating Officer in this case, in his evidence wouldstate that on 21.10.2004, P.W.1 appeared before the police station andpreferred a complaint which was registered by then Sub-Inspector of Policeunder Cr.No.1194 of 2004 under the caption 'girl missing'. On 26.10.2004P.W.1 again appeared in the police station and informed that her daughterP.W.2 had voluntarily came to the house and has requested the police notto take any action on the complaint preferred by her. P.W.3 had filedCrl.O.P.No.35407 of 2004 before the High Court for direction and as perthe order of this Court in the said OP by the High Court, the case wastaken up for investigation.10.P.W.7 is the Sub-Inspector of Police, who had registered the caseunder Cr.No.1194 of 2004 under the caption 'girl missing' on the basis ofEx.P.1 complaint preferred by P.W.1. Ex.P.9 is the printed FIR. He wouldalso state that on 26.10.2004 P.W.1 again appeared in the police stationand informed that her daughter had come back to the house and that she isnot pressing the complaint. https://hcservices.ecourts.gov.in/hcservices/

11.P.W.5 is the doctor, who had examined P.W.2 on 4.12.2004 brought bywoman police constable No.244 and head constable NO.11053. On examinationshe could not find any injury on the person of the victim girl. The hymenof the victim girl was absent and her vagina admits one finger. Ex.P.4 isthe certificate issued by her. Ex.P.5 is the relevant form annexed withEx.P.4-certificate. Ex.P.6 is the vaginal smear report.12.P.W.6 is the doctor, who had examined the accused and issued Ex.P.8certificate on the basis of the letter of requisition Ex.P.7. The doctorhas proclaimed that the accused is potent. 13.P.W.8 had continued his investigation and examined the witnessesand recorded their statements. He had arrested the accused on 6.12.2004 at9.45 am and has recorded the statement of the accused. After followingthe formalities, he had filed the charge sheet against the accused on16.3.2005 under Section 341, 366 & 376(1) IPC. 14.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., he would deny his complicity with the crime. Hehas not examined any witness on his side. After analysing the evidenceboth oral and documentary the learned trial Judge has come to theconclusion that the offence under Sections 341, 366 and 376 IPC have beenproved beyond any reasonable doubt against the accused and accordinglyconvicted and sentenced the accused under Section 366 IPC to undergo 7years RI and slapped a fine of Rs.1,000/- with default sentence and hasconvicted and sentenced the accused under Section 376(1) IPC to undergo 7years RI and a fine of Rs.1,000/- with default sentence, and has notimposed any separate sentence for an offence under Section 341 IPC.Aggrieved by the findings of the learned trial Judge, the accused haspreferred this appeal.15.Now the point for determination in this appeal is whether theconviction and sentence passed by the trial Court against the accusedunder Section 366, 341 & 376 IPC are sustainable for the reasons stated inthe memorandum of appeal?16.The Point:- 16(a)Heard the learned Counsel Mr.N.Sudharsan appearingfor the appellant and Mr.V.R.Balasubramanian, the learned AdditionalPublic Prosecutor and considered their respective submissions. The learnedcounsel appearing for the appellant would contend that there is absolutelyno evidence on record to show that the accused had kidnapped the victimgirl from the lawful custody of her parents to warrant conviction underSection 366 IPC. A careful consideration of the evidence of P.W.2, thevictim girl, will go to show that on the date of occurrence ie., on18.10.2004 at about 8.40 am while she was proceeding to her school sincethere was drizzling her mother accompanied her till halfway and after hermother's return, the accused came there and asked her to follow her andcriminally intimidated her to board in an auto and took her to BasinBridge railway station and from there took her to Athipattu in train. The https://hcservices.ecourts.gov.in/hcservices/ complaint Ex.P.1 itself was preferred only on 21.10.2004. The explanationgiven in the complaint for the delay in preferring the complaint is thatafter coming to know that P.W.2, victim girl, did not attend the class on18.10.2004, a search was made in the relatives house for two days, andthereafter the complaint was preferred on 21.10.2004, since the searchended in vain. According to the evidence of P.W.2 she had accompanied theaccused to Athipattu in a train from Basin Bridge railway station,thereafter to Voyila village and from there to Kuchi village in Nellurdistrict, Andra Pradesh, from there to Kavali village and for nearly oneweek she (P.W.2) had stated with the accused in the above said villages.Even in her evidence before the Court as P.W.2, the victim girl, had notstated that she had made any resistance or complained to any person duringthose days. According to her, her uncle came and rescued her with 4 or 5persons at Kavali village. The said uncle of P.W.2 was also not examinedin this case to show that only under the rescue operation of the uncle ofP.W.2, P.W.2 was rescued from the clutches of the accused. Even on18.10.2004 at about 8.40 am near the school from where the accused is saidto have kidnapped the victim girl P.W.2, she has not raised any alarm ordistress call to attract her schoolmates or the public to warrantconviction under Section 366 IPC. As per Section 366 IPC, there must be anintention on the part of the accused to kidnap or abduct the victim girlfor the purpose of compelling her to marry against her will or by force orseduce for illicit intercourse. From the evidence of P.W.2 it cannot besaid that the accused had with an intention to kidnap or abduct P.W.2. Onthe other hand without any resistance P.W.2 had eloped with the accusedfrom Chennai to Voyila, Kuchi and Kvali villages in Andra Pradesh. So theconviction and sentence by the trial Court under Section 366 IPC, I am ofthe view, cannot by sustainable.16(b)When coming to the conviction and sentence of the accused underSection 376 IPC, the evidence of P.W.2 is that the accused had sexualintercourse with her at Voyila and also at Kuchi villages. The evidenceof P.W.2 has been corroborated by the medical evidence of P.W.5, thedoctor Premalatha. As per Ex.P.3 copy of the accident register issued byP.W.5, the lady doctor, the hymen of P.W.1 was found ruptured. Thedoctor P.W.6, who had examined the accused had certified that the accusedis capable to committing the offence of rape. There is no externalinjury found in the person of the victim girl P.W.2 as per the evidence ofP.W.5, the lady doctor. According to P.W.2, her date of birth is18.1.1991. The occurrence had taken place on 19.10.2004. So at the timeof occurrence, the victim girl P.W.2 was only 13 years of age, a minor.Under such circumstances, even though P.W.2 is a consenting party to thecrime since it is proved that at the time of occurrence the victim girlwas only a minor below the age of 16 years, the consent of P.W.2 isimmaterial to bring home the guilt of the accused under Section 376 PC.The leanred counsel for the appellant at this juncture would plead forsome leniency on the question of sentence of the accused, taking intoconsideration the age of the boy and the circumstances that both theaccused and the victim girl are relatives, living in the same compound.The learned counsel for the appellant would further plead for the https://hcservices.ecourts.gov.in/hcservices/ appellant that if the girl is not a minor at the time of the occurrence,then the charge under Section 376 IPC itself will go against him. Sotaking into consideration the age of the boy and close relationship of thevictim girl and the accused and also the fact that the victim girl hadaccompanied the accused to several villages without any resistance inAndra Pradesh, I am of the view that while confirming the findings of thelearned trial judge under Section 376 IPC the sentence alone can bemodified to that of 4 years RI instead of 7 years RI. Point is answeredaccordingly.17.In fine, the appeal is allowed in part and the conviction andsentence under Section 366 IPC in S.C.No.365 of 2005 on the file SessionsJudge/Mahila Court/Magalir Neethimandram, Chennai, is set aside and theconviction under Section 376 IPC is confirmed but the sentence alone ismodified to that of 4 years RI instead of 7 years RI. The fine imposed bythe trial Court under Section 376 IPC will sustain. The accused isentitled to refund of the fine of Rs.1000/- paid by him under Section 366IPC. The conviction and sentence under Section 341 is also set aside,since there is no evidence to show that the victim girl has wrongly beenrestrained by the accused.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo,1.The Sessions Judge, Magahir Neethimandram, Chennai.2.The Principal Sessions Judge, Chennai.3.The VII Metropolitan Magistrate, Gorge Town, Chennai.4.-do-The Chief Metropolitan Magistrate, Egmore, Madras.5.The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/

6.The Inspector of Police, H6, Radhakrishnan Nagar Police Station, Korrukupet, Chennai,(Cr.No.1194/2003)7.The Superintendent, Central Prision, Vellore.8. The Director General Police,Chennai.9. The District Collector,Chennai.+ 1 CC To Mr.N.Sudharsan Advocate SR NO.49731.Crl.A.No.224 of 2006 BK(CO)RVL 17.08.2007