THE HONOURABLE MR v. State rep byThe Inspector of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 26.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.1109 of 2004Murugan.. Appellant/AccusedVs.State rep byThe Inspector of Police,Vellore Rural Police Station,Vellore District.(Cr.No.448/1997) .. Respondent/ComplainantPrayer:- This Revision has been preferred against the judgment dated23.4.2004 in C.A.No.44 of 2002 passed by the Additional District &Sessions Judge, Vellore, confirming the judgment in S.C.No.60 of 1999 onthe file of the Assistant Sessions Judge, Vellore, dated 29.4.2002.For Appellant:Mr.L.Mahendran For Respondent :Mr.V.R.Balasubramanian Additional Public ProsecutorJUDGMENTThis revision has been preferred against the judgment in C.A.No.44 of2002 on the file of the Additional District & Sessions Judge, Vellore,which had arisen out of the judgment in S.C.No.60 of 1999 on the file ofthe Assistant Sessions Judge, Vellore.2.The short facts of the prosecution case relevant for the purpose ofdeciding this revision is that, on 30.5.1997 at about 7.00 am the accusdhad committed the offence of rape on the victim girl aged 10 years at thetime of the occurrence in a pumpset room in S.No.253/1 of AvarampalayamVillage.3.The learned Judicial Magistrate No.I, Vellore, after taking the caseon file, issued summons to the accused under Section 207 of Cr.P.C., andsince the case is triable by the Court of Sessions, the learned JudicialMagistrate has committed the case to the Court of Sessions under Section https://hcservices.ecourts.gov.in/hcservices/ 209 of Cr.P.C. The learned Assistant Sessions Judge, Vellore, onappearance of the accused, had framed charge under Section 376(2)(f) ofIPC and when questioned, the accused pleaded not guilty. On the side ofthe prosecution, P.W.1 to P.W.8 were examined and Ex.P.1 to Ex.P.8 wereexhibited. No material objects were marked.4.P.W.1 is the victim girl. According to her, on 30.5.1997 when shewent to the pumpset room belonging to the accused for the purpose ofwashing the cloths, there was a current failure and due to that the motorpumpset came to a halt and at that time the accused came there and askedher (P.W.1) to go inside the pumpset room and to ascertain whether theelectricity supply has been restored. When she went inside the pumpsetroom the accused also followed her and after locking the door of thepumpset room had committed the offence of rape and has also subjected herto sexual assault. She immediately returned to her house and informedabout the incident to her mother. Her mother had preferred Ex.P.1-complaint and that she was admitted in the hospital as an inpatient for 10days.5.P.W.2-Kanniyammal is the mother of P.W.1. According to her, on thedate of occurrence she saw her daughter at about 8.00 am after shereturned from the motor pumpset. She could notice contusion at both thebreast of the victim girl and when she enquired about this P.W.1 hadnarrated what had happened to her in the pumpset and that she preferredEx.P.1-complaint.6.P.W.3 had advised P.W.2 to take P.W.1 to the hospital after knowingabout the occurrence. 7.P.W.4 is the doctor, who had examined P.W.1 on 31.5.1997 in theGovernment Hospital at Vellore. Ex.P.2 is the copy of the accidentregister issued to P.W.1, after examining her for a sexual assault.According to her, there were injuries on the breast of the victim girl andalso injuries found on the both sides of the thigh and the genitalia wasfound to be swollen and that her private part had admitted the tip of thelittle finger. Ex.P.8 is the opinion of P.W.4, the doctor, to the effecthat the victim girl was subjected to sexual assault. 8.P.W.5 is the doctor, who had examined the accused and issued Ex.P.3-certificate declaring him as potent. 9.P.W.8 is the then Inspector of Police, Vellore Taluk Police Station,who had registered the complaint-Ex.P.1 preferred by P.W.2 under Cr.No.448of 1997 of Vellore Taluk Police Station under Section 307IPC. Ex.P.6 isthe copy of the FIR. He had visited the place of occurrence and preparedobservation mahazar Ex.P.5 in the presence of P.W.6. He had also drawn arough sketch Ex.P.7. He had arrested the accused arrested on 4.6.1997and produced before the Judicial Magistrate for judicial remand. He hasexamined the witnesses and recorded their statements. He had sent thevictim girl as well as the accused for medical examination. https://hcservices.ecourts.gov.in/hcservices/

10.P.W.7 is the then VAO of Avarampalayam village. According to himin S.No.253/1 measuring 26 ares in Avaramapalayam village belongs toSagothammal and there is a motor pumpset in the well of the said land.11.P.W.8 after completing the investigation filed the charge sheetagainst the accused. 12.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., he would deny his complicity with the crime. Hehas examined one Rajamanikam as D.W.1. After going through the evidenceboth oral and documentary the learned trial judge has come to theconclusion that the charge under Section 376(2)(f) IPC has been made outagainst the accused and accordingly convicted and sentenced the accused toundergo 7 years RI and slapped a fine of Rs.5,000/- with default sentence.Aggrieved by the findings of the learned trial judge, the accused hadpreferred an appeal in C.A.No.44 of 2002 before the Additional District &session Judge, Vellore. The learned first appellate Judge has alsodismissed the appeal confirming the judgment of the learned trial judge,which necessitated the accused to prefer this revision before this Court. 13.When the revision was taken up for hearing the learned counsel forthe revision petitioner Mr.L.Mahendran would submit that he will confinehis arguments only in respect of the sentence and not on merits. Thelearned counsel for the revision petitioner would contend that an offenceunder Section 376(2)(f) IPC has not been made out even according to themedical evidence available in this case. Relying on the evidence ofP.W.4, the doctor, who had examined the victim girl P.W.1, after theoccurrence, had issued Ex.P.2 copy of the accident register. In Ex.P.2,copy of the accident register, the doctor, has categorically stated thatthe hymen of the victim girl was intact, but he has mentioned about theexternal injuries found on the breast and thigh of the victim girl.Ex.P.8 is the final opinion of P.W.4, the doctor. In Ex.P.8, the doctor,has stated that the victim girl was subjected to sexual assault. In Ex.P.2it has been clearly stated that hymen of the victim girl was intact. 14.The learned Additional Public Prosecutor Mr.V.R.Balasubramanianrelying on 2006(3) SCC (Cri) 556 [Tarkeshwar Sahu Vs. State of Bihar (nowJharkand)], would contend that to attract an offence under Section 376 thepenetration is sufficient and not the rupture of the hymen. The relevantobservation in the above said victim relied on by the learned AdditionalPublic Prosecutor runs as follows:-"From the explanation reproduced above it is distinctlyclear that ingredients which are essential for proving a chargeof rape are the accomplishment of the act with force andresistance. To constitute the offence of rape neither Section375 IPC nor the Explanation attached thereto require that thereshould necessarily be complete penetration of the penis into theprivate part of the victim/prosecutrix. In other words toconstitute the offence of rape it is not at all necessary that https://hcservices.ecourts.gov.in/hcservices/ there should be complete penetration of the male organ withemission of semen and rupture of hymen. Even partial orslightest penetration of the male organ within the labia majoraor the vulva or pudenda with or without any emission of semen oreven an attempt at penetration into the private part of thevictim would be quite enough for the purpose of Sections 375 and376 IPC."It is seen from the evidence of P.W.4 that there was no penetration orpartial penetration in the genitalia of P.W.1. The definite opinion givenby the doctor under Ex.P.8 is that the victim girl was subjected to sexualassault. A careful reading of evidence of P.W.4, the doctor, coupled withthe evidence of P.W.1 the victim girl, will go to show that the accused onthe date of occurrence at the time of occurrence had made an attempt tocommit the offence under Section 375 IPC with the victim girl, whichwarrant conviction and sentence under Section 376 r/w 511 IPC. 15.The learned counsel for the revision petitioner at this stage wouldrepresent that the accused is in jail for the past four years and wouldplead that set of may be given to the accused.16.In the result, the revision petition is partly allowed and theconviction and sentence of the first appellate Court in C.A.No.44 of 2002on the file of the Additional Sessions Judge, Vellore, under Section 376IPC is set aside, instead the accused is convicted under Section 376 r/w511 IPC and sentenced to undergo four years RI and a fine of Rs.5,000/-default to undergo 6 months Simple Imprisonment. Set off is granted underSection 428 of Cr.P.C. The fine imposed by the trial Court, which wasconfirmed by the first appellate Court, will sustain and the same is to beconverted in to a fine paid under Section 376 r/w 511 IPC. The entirefine amount shall be given as a compensation to the victim girl P.W.1under Section 357(1) of Cr.P.C.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.SsvTo,1.The Additional District & Sessions Judge, FTC, Vellore.2.The Assistant Sessions Judge, Vellore.1 and 2 do thro' https://hcservices.ecourts.gov.in/hcservices/

3.The District & Sessions Judge, Vellore.4.The Public Prosecutor, High Court, Madras.5.The Inspector of Police, Vellore Rural Police Station, Vellore District, (Crime No.448 of 1997)6. The Districe Collector,Vellore.7. The Director General of Police,Chennai. Crl.R.C.No.1109 of 2004 BK(CO)RVL 21.08.2007