Sathya v. State

Bail SlipThe Appellant/Accused namely Sathya was directed to be release onbail as per order of this Court dated 27.11.2006 inCrl.M.P.No.4495/06 in CA NO.335/06.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09-08-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.335 of 2006Sathya..Appellant -vs-State rep. by itsInspector of PoliceSathuvachari Police StationVellore District... Respondent This appeal is filed under section 374 of CR PC against theJudgment made in S.C.No.425/2005 dated 08.02.2006 on the file of theAdditional Assistant Sessions Judge-cum- District Judge(Trainee),Vellore.For appellant : Mr.R.John SathyanFor respondent : Mr.V.R.Balasubramaniam, Additional Public Prosecutor JUDGMENT This appeal has been preferred by the accused in S.C.No.425 of2005 on the file of the Additional Assistant Sessions Judge-cum-District Judge(Trainee), Vellore. The accused was charged underSections 363, 366 and 376(1) of IPC who was convicted only underSection 376(1) of IPC to undergo seven years rigorous imprisonmentand a fine of Rs.1000/- with default sentence is the appellantherein.2. The learned Judicial Magistrate No.V,Vellore the committalMagistrate, has furnished copies under Section 207 of Cr.P.C. to the https://hcservices.ecourts.gov.in/hcservices/ accused on appearance on summons under Section 209 of Cr.P.C.committed the case to the Court of Sessions, since the case isexclusively triable by a Court of Sessions. The learned trial Judgehas framed charges under Sections 363, 366 and 376(1) of IPC andwhen questioned the accused pleaded not guilty.3. Before the trial Court P.Ws 1 to 13 were examined and Exs P1to P17 were exhibited and M.O.1 to M.O.7 were marked.4.P.W.1 is the father of the victim girl"A" who was aged 13 atthe time of the occurrence and was studying in VIII Standard in HolyCross School. According to P.W.1, his daughter left the house on9.3.2005 morning at 6.00 a.m., for tuition. But she did not returneven after 8.00 a.m., on 9.3.2005. The enquiry at the tuitionteacher revealed that the victim girl did not come for tuition on9.3.2005. Immediately, he preferred a complaint under Ex P1 withSathuvachari police Station. ExP2 is the birth certificate of thevictim girl. On 16.3.2005 at about 9.00 a.m., to respond to the callfrom Sathuvachari Police Station, he went along with his wife, themother-in-law to the station and found his daughter the victim girland the accused. The police have informed him that they have securedthe victim girl along with the accused in a lodge at Chengi. He hasinformed to the police that the accused was working as a driver underhim and since he had informed that he had fell in love with thevictim girl"A", he dismissed the accused from service and that hisdaughter, the victim girl had complained to him that the accused usedto threaten her and on 16.3.2005, the accused had informed her tocome out of the house, and afraid of his criminal intimidation, shehad budged to his request on 9.3.2005 and left the house at 5.00a.m.,as though she is going to attend the tuition and that the accused hadtook her in his Hero Honda motor cycle bearing Registration No.TN-23-F-3911 to Pondicherry where she has stayed with the accused fornearly six days in a lodge and under the pretext of marrying her,had sexual intercourse with her against her will and that on15.3.2005 the accused had taken her to Chengi where they stayed inM.G.Lodge and there also had sexual intercourse with her twice andthereafter, they went to a film and on 16.3.2005 at about 5.00.a.m.,Sathuvachari police have secured her and brought toSathuvachari,along with the accused.4a. P.W.2 is the victim girl "A'. According to her, on 9.3.2005at about 5.00.a.m., due to criminal intimidation of the accused, sheleft the house along with the accused in a hero honda motor cyclebearing Registration No.TN-23-F-3911 to Pondicherry and had stayed inthe house of one Krishnan, a friend of the accused and under thepretext of marrying her, the accused had sexual intercourse with her(P.W.2) on several occasions. On 15.3.2005 on information that thepolice and the parents of the victim girl "A" is in search of her andthe accused, the accused took her to Cuddalore and from there to https://hcservices.ecourts.gov.in/hcservices/ Chengi in the same bike and stayed in M.G. Lodge at Chengi where alsothe accused had sexual intercourse with her twice and that sheaccompanied him to a film and on the following early morning, thepolice have arrested them. She had identified M.O.4 as the motorcycle in which the accused had taken her to Pondicherry and otherplaces.4b. P.W.3 is the mother of the victim girl P.W.2 and the wife ofP.W.1. At the time of the occurrence, she was working as a Principalof Mother's College, Trichur and on hearing the occurrence, shereturned to Vellore on 9.3.2005 and a complaint was preferred on16.3.2005 with the police. She has also deposed that her mother hadnarrated the criminal intimidation made to her by the accused onseveral occasions before the occurrence. She also corroborates theevidence of P.W.1.4c. P.W.4 is the Mathematics teacher in Government School,Mechari who is the tuition teacher for P.W.2 who would admit thattill the date of the occurrence, she was taking tuition to P.W.2 buton 9.3.2005, P.W.2 did not attend the tuition and on the fact wasinformed to P.W.1, the father of P.W.2.4d. P.W.5 is conducting STD Booth at M.G.Lodge, Chengi.He speaksthat Hero honda motor cycle bearing Registration No.CPZ-TN-23-F-3911was seized by the police from M.G.lodge on 15.3.2005.4e. P.W.6 an employee of M.G.Lodge who would admit that on15.3.2005 M.O.4 Motor cycle was seized by the police under ExP3mahazar in his presence and that in room No.204, one Pandian hadstayed with a girl on 15.3.2005. 4f.P.W.11 is the then Sub Inspector of Police, SathuvachariPolice Station who would depose that on 9.3.2005 at about 10.00 a.m.,P.W.1 appeared in the police station and prepared ExP1 complaintwhich was registered under Sathuvachari Police Station crime NO.268of 2005 .Ex P12 is the first information report.4g. P.W.12 is the Investigating Officer in this case wouldexamine the witnesses and recorded their statements who had securedthe victim girl P.W.2 and the accused in room No.204 in M.G.Lodge ,Chengi on 15.3.2005 and brought to Sathuvachari Police station on15.3.2005 at about 9.00.a.m., . After altering the charges under ExP13. He had arrested the accused and recorded his voluntaryconfession statement and recovered the wearing apparels of theaccused, Bond paper, cellphone without simcard under Ex P14 mahazar.ExP15 is the admissible portion of the confession statement. M.O.5 isthe bond paper recovered from the accused under mahazar Ex P14.M.O.6is the cellphone and M.O.7 is the wearing apparels of the accusedrecovered under Ex P14 mahazar. He had recorded the statement of the https://hcservices.ecourts.gov.in/hcservices/ victim girl P.W.2 and recovered M.O.1 to M.O.3 wearing apparels ofthe victim girl. He had proceeded to Chengi and recovered M.O.4 motorcycle in the presence of the witnesses. The accused was producedbefore the Judicial Magistrate for judicial remand. P.W.2 wassubjected to medical examination through Court.4h. P.W.7 is the doctor who had examined the accused and issuedEx P5 certificate certifying that the accused as potent. P.W.8 is thedoctor who had examined the victim girl P.W.2 and issued Ex P7certificate stating that the victim girl was subjected to sexualintercourse more than once and there was no external injuries foundon the person of P.W.2 and that her hymen was found ruptured. P.W.9is the doctor who had examined P.W.2 the victim girl for ascertainingthe age of the victim girl. The doctor had taken x-rays and issued ExP8 age certificate stating that the victim girl may be about 17 yearsbut below 18 years of age. M.O.5 series are the X-rays taken forP.W.2 on 18.3.2005. He has examined the accused and issued Ex P11age certificate declaring the age of the accused as above 21 years.4i. P.W.10 is the head constable of Sathuvachari Police Stationwho had produced the victim girl before the Judicial Magistrate No.2with the help of a women police constable who took her to thehospital for medical examination and took the accused after remand tothe Judicial custody.4j. P.W.12 after completing the formalities had laid the chargesheet against the accused on 22.9.2005.under Sections 363,366, and376(1) of IPC.5. When incriminating circumstances under Section 313 Cr.P.C.were put to the accused, he would deny his complicity with the crime.According to the accused, even after he left the job, the victimgirl P.W.2 used to contact him over telephone and also gave letters .He has produced Exs D1 and D2 bunch of letters written by P.W.2 tohim.6. The learned trial Judge, after meticulously going throughthe evidence both oral and documentary has come to a conclusion thatthe charges levelled against the accused under Sections 363,366 and376(1) of IPC were not proved beyond any reasonable doubt andaccordingly acquitted the accused for an offence under Sections 363,and 366 of IPC. But the learned trial Judge has convicted theaccused under Section 376(1) of IPC and sentenced to undergo sevenyears rigorous imprisonment and slapped a fine of Rs.1000/- withdefault sentence which necessitated the accused to prefer thisappeal before this Court.7. Now the point for consideration in this appeal is whetherthe conviction and sentence against the accused under Section 376(1) https://hcservices.ecourts.gov.in/hcservices/ of IPC is sustainable for the reasons stated in the memorandum ofappeal?8.Heard Mr.R.John Sathyan,learned counsel appearing for theappellant and Mr.V.R.Balasubramaniam, learned Additional PublicProsecutor for the State and carefully considered their rivalsubmissions.9. The Point:Ex P2 birth certificate relating to P.W.2 will go to show that thevictim girl"A" was minor aged only 13 at the time of the occurrence.It is in evidence that the accused was working as a driver in thehouse of P.W.1, the father of the victim girl P.W.2. P.W.2 thevictim girl"A" was only under the protection and care of her grandmother since her mother P.W.3 and her father P.W.1 are all employedout of Sathuvachari. The occurrence took place on 9.3.2005 on whichdate P.W.2 did not return from tuition even after 8.00 a.m., Anenquiry with the tuition teacher P.W.4 revealed that on 9.3.2005P.W.2 did not attend the tuition . It is in evidence that P.W.2 hadleft the house along with the accused in his Hero Honda motor cycleM.O.4 to Pondicherry and stayed there in a house of one Krishnan, thefriend of the accused and thereafter the victim girl left with theaccused in the same motor cycle to Cuddalore on 15.3.2005 and fromthere to Chengi where they stayed in room No.204 at M.G.Lodge.P.W.2would admit that she had sexual intercourse with the accused on manyoccasions during their stay at Pondicherry and also at Chengi. Theevidence of the doctor P.W.8 who had issued Ex P7 , the hymen of thevictim girl P.W.2 was found ruptured and that the victim girl wassubjected to sexual intercourse for more than once. There isabsolutely no evidence on record to show that the accused hadabducted the victim girl under threat. Even according to the evidenceof P.W.2, the victim girl , she had travelled along with the accusedin M.O.4 motor cycle from Sathuvachari to Pondicherry and from thereto Cuddalore and Chengi. It is in evidence of P.W.2 the victim girlthat she had also accompanied him to a film while her stay at Chengiin a lodge. The conduct of the victim girl will clearly go to showthat she never resisted to accompany the accused either toPondicherry or to Chengi during the period between 9.3.2005 and15.3.2005, the date on which she was secured by the SathuvachariPolice. The letters Exs D1 and D2 produced by the accused will go toshow that the victim girl is very much in love with the accused. Theonly embargo is the age of the victim girl at the time of theoccurrence. Admittedly, she was minor as per ExP2 age certificate.10. The learned counsel appearing for the appellant relying onthe evidence of the Doctor P.W.9 who had examined both the accused aswell as the victim girl in his answers to question put by the Courthas stated that there may be two years variations in his assessmentof age of the victim girl. Relying on this part of the evidence of https://hcservices.ecourts.gov.in/hcservices/ P.W.9, the learned counsel would contend that at the time of theoccurrence, the victim girl should be a major crossing the age of 16.But when Ex P2 birth certificate is available on record, we cannotgive much reliance on the evidence of P.W.9, the doctor which is nota conclusive in nature. So I am of the view that the findings of thelearned trial Judge that the accused is liable to be convicted underSection 376(1) of IPC cannot be set aside on the basis of theavailable documentary evidence.11. When coming to the question of sentence, the learnedAdditional Public Prosecutor would bring to the notice of this courtin a ratio decidenti in State of Chhattisgarh-v- Lakhram(2006)3Supreme Court Cases (cri) 66) wherein in a case of similar nature inwhich the prosecutrix is below the age of 16 years, the evidenceadduced in that case would reveal that the victim girl voluntarilyeloped with the accused and was in his custody for nearly 1 ½ yearsand allowed the accused to have free sex with her, the HonourableApex Court thought it fit that the sentence can be modified to thatof the period already undergone in the interest of justice. Undersuch circumstances, I am of the view that the same yardstick can beapplied to the present facts of the case while confirming theconviction of the learned trial Judge, the sentence alone can bemodified to that of the period already undergone.12. In fine, the appeal is dismissed confirming the convictionof the learned trial Judge in S.C.No.425 of 2005 under Section 376(1)of IPC but the sentence alone is modified to that of the periodalready undergone instead of seven years rigorous imprisonmennt andfine of Rs.1000/- . The said fine amount of Rs.1000/- will sustain.Sd/Asst.Registrar/true copy/Sub Asst.Registrarsg https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional Sessions Judge.District Judge(Trainee) Vellore2. The Public Prosecutor, High Court, Madras3. The Superintendent of Central Prison, Vellore4. The Inspector of Police, Sathuvachari Police Station,Vellore District5. The Director General of Police, Mylapore, Chennai6. The District Collector, VelloreAD (CO)km/17.8.Crl.A.No.335/2006