THE HONOURABLE MR v. State byThe Inspector of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 06.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.1183 of 2004Viswan @ Viswanathan.. Appellant/Accusedvs.State byThe Inspector of Police,Vellitiruppur Police Station,Erode District,(Cr.No.269 of 2002). .. Respondent/ComplainantPrayer:- This appeal has been preferred against the judgment dated8.12.2003 made in S.C.No.80 of 2003 on the file of the Principalsessions Judge, Erode.For Appellant :Mr.V.Parthiban (Legal Aid Counsel)For Respondent :Mr.V.R.Balasubramanian Additional Public ProsecutorJUDGMENTThis appeal has been preferred against the judgment inS.C.No.80 of 2003 on the file of the Principal Sessions Judge,Erode. The accused, who has been convicted and sentenced underSection 376 r/w 511 IPC by the learned Sessions Judge, is theappellant herein.2.The short facts of the prosecution case sans irrelevantparticulars are that on 21.2.2002 at about 2.00 pm the accused hadmade an attempt to rape P.W.2-Krishnaveni, the deaf and dumb girlaged about 13 years.3.The learned Judicial Magistrate, Bhavani, after takingcognizance of the offence, had issued summons to the accused and onhis appearance copies under Section 207 of Cr.P.C., were furnishedto the accused and since the offence is triable by a Court of https://hcservices.ecourts.gov.in/hcservices/ Sessions the learned Judicial Magistrate has committed the case tothe Principal Sessions Judge, Erode, under Section 209 of Cr.P.C.On appearance of the accused, the learned Sessions Judge has framedcharges under Section 376 r/w 511 IPC and also under Section 3(ii)(V) of the SC/St (Prevention of Attracities) Act, and whenquestioned, the accused pleaded not guilty. 4.On the side of the prosecution P.W.1 to P.W.19 wereexamined. The eye witnesses to the occurrence are P.W.1 and P.W.4.5.According to P.W.1, the victim girl viz. P.W.2 and P.W.4went near the garden belonging to Thulasimani Gounder for thepurpose of reaping grass and at about 12.00 noon on the date ofoccurrence they heard a distress call from P.W.2-Krishnaveni andshe (P.W.1) and P.W.4 rushed to the place of occurrence and saw theaccused running from the place of occurrence folding his dothi andthat when they went near the victim girl, she had informed by usingbody language that the accused had made an attempt to rape her andthat she (P.W.1) could see some lacerated injuries on the neck ofthe victim girl and later she was taken to the government hospitalat Anthiyur from where she was referred to government hospital atErode and that since the victim girl is a deaf and dumb person, she(P.W.1) preferred Ex.P.1-complaint with the police. 6.P.W.2 is the victim girl, whose evidence was translated withthe help of Thiru.Arjunan, a Secondary grade teacher in the deafand dumb school, R.N.Puthur, Erode. According to the translatedversion of deposition of P.W.2, in the year 2002 she along with twoother ladies went for reaping the grass and at that time theaccused came there and pushed her and had torn her jacket and placeher half saree's end into her mouth and tried to rape her and thatimmediately she raised an alarm which brought P.W.1 and P.W.4nearer to her and that the accused ran away from the place ofoccurrence after folding his dothi and that she was taken to thehospital were she was treated. She has identified M.O.1 as Saree,M.O.2 as jacket and M.O.3 as inskirt worned by her at the time ofoccurrence. 7.P.W.3 is the translator Arjunan, who would depose that on2.2.2002 police took him to P.W.2's house and with the help of himDeputy Superintendent of Police recorded the statement from P.W.2,who is deaf and dumb.8.P.W.4 is an eye witness to the occurrence, who hadaccompanied P.W.1 and P.W.2 on the date of occurrence to the placeof occurrence for the purpose of reaping grace and at theinstigation of P.W.1 after hearing the distress call from P.W.2 shealso accompanied P.W.1 to the place of occurrence and saw theaccused pushing down P.W.2 on the ground and lying over her and onseeing P.W.1 & P.W.4, the accused ran away from the place of https://hcservices.ecourts.gov.in/hcservices/ occurrence after folding his dothi and that she and P.W.1 broughtP.W.2 to the house from where she was taken to the governmenthospital Anthiyur and later to government hospital Erode. 9.P.W.5 is the VAO of Bargoor Village in whose presence theobservation mahazar-Ex.P.2 was prepared by P.W.17, theinvestigating officer.10.P.W.6 is the witness in Ex.P.3-recovery mahazar for therecovery of M.O.1 to M.O.3, wearing apperals of P.W.2, the victimgirl, recovered by P.W.17.11.P.W.17, on the basis of the complaint preferred by P.W.2,visited the place of occurrence and also had drawn the roughsketch-Ex.P.22 and since the victim girl belongs to ScheduleCaste, he has obtained a certificate for the same from the SpecialTahsilhar and altered the charges from section 376 r/w 511 IPC tosection 376 r/w 506(ii) IPC and under Section 3(1)(12) & 3(1)(5) ofthe SC/ST (Prevention of Attrocities) Act. Ex.P.24 is thespecial report filed by him in this regard. 12.Further investigation was continued by P.W.18, DSP, CrimeBranch, Erode District. P.W.18 has arrested the accused andrecovered his wearing apparels like M.O.4-lungi, M.O.5-Jatty underEx.P.4 in the presence of P.W.7. P.W.18 has also recorded theconfession statement of the accused in the presence of P.W.7 andhas also recorded the statement of P.W.1 with the aid of P.W.3since P.W.2 is deaf and dumb. He has also examined P.W.11 andrecorded his statement and obtained a community certificate fromP.W.11 for P.W.2, the victim girl. 13.P.W.8 is the doctor, who had examined P.W.2 on the basis ofEx.P.5 requisition made by the Judicial Magistrate, Bhavani. TheDoctor could see two scratch marks on the left cheek of P.W.2measuring 1 X 5 mm and 1 X 6 mm respectively and alsoscratch mark on the left side of the neck measuring 1 x 6 mm andshe had noticed the pubic hair and armpit hair of the victim girlwere found removed. She has deposed to the fact that the hymen ofthe victim girl was intact and that she is a virgin. The liquidcollected from the genitalia of the victim was sent for chemicalanalysis. Ex.P.7 is the analyst's report, which shows that thereis no presence of semen found in the liquid sent for chemicalexamination. Ex.P.6 is the copy of the accident register. Thedoctor has further deposed to the fact that she could not see anysemen in the genitalia of the victim. The final opinion of P.W.8is Ex.P.8.14.P.W.9 is another doctor, who had examined the accused on31.10.2002 at about 1.20 pm. Ex.P.10 is the potency certificate https://hcservices.ecourts.gov.in/hcservices/ issued by P.W.9 for the accused certifying that he is potent.15.P.W.10 is the Radiologist, who had examined P.W.2 and gaveEx.P.11-age certificate stating that P.W.2 seems to be above 13years of age and below 15 years as on 26.10.2002.16.P.W.11 is the Special Tasildhar, who had issued Ex.P.12-community certificate stating that P.W.2 belongs to Schedule Caste.17.P.W.12 is the Deputy Tasildhar, who had issued Ex.P.13-community certificate to the accused stating that he belongs tomost backward community. 18.P.W.13 is the Sub-Inspector of Police, Vellithirupur PoliceStation, who had received the intimation from the governmenthospital Anthiyur at about 8.30 pm on 21.10.2002 about theadmission of P.W.2 in the hospital and later P.W.2 was referredfrom Anthiyur government hospital to Erode government hospital,where P.W.13 visited at about 10.00 pm on the same day and foundP.W.2 as a deaf and dumb and examined P.W.1, aunt of P.W.2, andregistered the complaint-Ex.P.1 and proceeded to Vellithirupurpolice station and registered the case under Cr.No.269 of 2002under Section 376 r/w 511 IPC. Copy of FIR is Ex.P.15.19.P.W.14 is the then Head Clerk of the Judicial MagistrateCourt, Bhavani. He had sent material objects connected with thiscase for chemical analysis on the basis of the requisition madeunder Ex.P.16 by P.W.18 with Ex.P.17-letter of requisition of theJudicial Magistrate. Ex.P.18 is the chemical analyst's report.20.P.W.15 is the doctor, who had examined P.W.2 on 21.10.2002at about 6.00 pm. P.W.2 was referred to government headquartershospital Erode, after noting aberrations on her left chest.Ex.P.20 is the copy of the accident register.21.P.W.16 is the doctor, who had examined P.W.2 at governmentheadquarters hospital Erode on 21.10.2002 at about 10.10 pm. Hecould find nail marks on both the hips of P.W.2. Ex.P.21 is thecopy of the accident register. The doctor has referred P.W.2 forsubjecting herself to a medical examination by a lady doctor.22.After completing the formalities P.W.19, who succeededP.W.18, had filed the final report on 31.3.2003 against theaccused. 23. When incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C., the accused denied his complicitywith the crime. The accused has not examined any witness on hisside nor exhibited any documents. After going through theavailable evidence both oral and documentary, the learned trial https://hcservices.ecourts.gov.in/hcservices/ judge has convicted and sentenced the accused under Section 376r/w 511 IPC to undergo 7 years RI and a fine of Rs.1,000/- withdefault sentence, but acquitted the accused from other charges,which necessitated the accused to prefer this appeal.24.Now the point for determination in this appeal is whetherthe conviction and sentence against the accused under Section 376r/w 511 IPC can be sustainable for the reasons stated in thememorandum of appeal?25.The Point:- Heard Mr.V.Parthiban, Legal Aid Counsel,appearing for the appellant and Mr.V.R.Balasubramanian, AdditionalPublic Prosecutor, and considered their respective submissions. 25(a) According the learned counsel for the appellant,even according to the case of the prosecution as spoken to by theeye witnesses P.W.1 & P.W.4, the offence under Section 354 IPCalone has been made out but the learned trial judge has erroneouslyconvicted the accused under Section 376 r/w 511 IPC. In support ofthis contention the learned counsel would rely on 1998(2) LW(Crl)463 (Albert Vs. The State of Tamil Nadu, rep. by Inspector ofPolie, Kaliakkavilai, kanyakumari District). The facts of theabove cited case is that the accused therein was charged for anoffence under Section 341 and 376 IPC stating that on 3.12.1987 atabout 5.00 pm at Muvottukonam near Nallayan Church, the accusedcarried the victim girl aged about 9 years to the nearby room(Pathiriyar Medai) and forcibly committed the offence of rape onher. The learned Assistant Sessions Judge, Kuzhithurai had foundthe accused guilty under Section 376 IPC and accordingly convictedand sentenced him to undergo rigorous imprisonment for ten years.On appeal before this Court, the learned Judge of this Court hasheld that an offence under Section 354 IPC alone has been made outand not the offence under Section 376 r/w 511 IPC relying on thejudgements of Honourable Apex Court in karnel Singh Vs. State ofMadhya pradesh (1995)5 SCC 518, and State of Punjab Vs. GurmitSingh and others (1996) 2 SCC 384, holding that the corroborationis not necessary for the evidence of prosecutrix in such a type ofoffence. But the doctor, who had examined the victim girl P.W.1had found any injury on the person of the victim and on examinationof her she found the hymen of the victim intact and there was nomark of violence. Only under such circumstances, basing on theevidence of P.W.5 in that case, a learned Judge of this Court hasmodified the conviction and sentence of the accused from underSection 376 IPC r/w 511 IPC to one under Section 354 IPC and thesentence was also reduced from 7 years to 1 year with a fine ofRs.1,000/- with default sentence. 25(b) The learned Additional Public Prosecutor relied on thedictum AIR 1998 SC 386 (Manda Lal Vs. State of Jammu and Kashmir),wherein the accused who was convicted under Section 376 IPC r/w 511IPC and sentenced to undergo rigorous imprisonment for a period of https://hcservices.ecourts.gov.in/hcservices/ 5 years and a fine of Rs.2,000/- with default sentence by the HighCourt of Jammu and Kashmir). The charge against the accused isthat the accused who is a headmaster of a middle school attemptedto commit rape on Raji (aged 13), a student of the same school.The learned trial judge after trial has held that the chargeagainst the accused under Section 376 r/w 511 IPC has not beenproved by the prosecution beyond any reasonable doubt, againstwhich the State preferred an appeal before the High Court of Jammu& Kashmir, which reversed the order of acquittal passed the trialCourt and held that the charge against the accused under Section376 r/w 511 IPC has been proved by the prosecution and accordinglyconvicted and sentenced the accused to undergo 5 years RI and afine of Rs.2,000/- with default sentence. The accused preferredan appeal challenging the orders of the High Court before theHonourable Apex Court, wherein it was held by the Honourable ApexCourt that from the available evidence it can be held that only anoffence under Section 376 r/w 511 IPC has been made out and notunder Section 354 IPC. The important observation made by theHonourable Apex Court in the above cited dictum is as follows:-"The difference between preparation and an attemptto commit an offence consists chiefly in the greaterdegree of determination and what is necessary to provefor an offence of an attempt to commit rape has beencommitted is that that accused has gone beyond the stageof preparation. If an accused strips a girl naked andthen making her flat on the ground undresses himself andthen forcibly rubs his erected penis on the private partof the girl but fails to penetrate the same into vaginaand on such rubbing ejaculates himself then in cannot besaid that it was case of merely assault under Section 354IPC and not an attempt to commit rape under Section 376read with 511 IPC. In the facts and circumstances of thecase the offence of an attempt to commit rape by accusedhas been clearly established and the accused was rightlyconvicted under Section 376 r/w 511 IPC."25(c) Now the point to be decided in this case is whether theaccused had made any preparation to commit the offence of rape towarrant conviction under Section 376 r/w 511 IPC. The evidence ofP.W.1, P.W.2 & P.W.4 in this regard is note worthy to be mentioned.According to P.W.1, after hearing the distress call of P.W.2, she(P.W.1) and P.W.4 rushed to the place of occurrence and saw theaccused running from the place of occurrence folding his dothi.P.W.4 would also corroborate the evidence of P.W.1 in this regard,but she would add that the accused had picked up the dothi andfolded and ran away from the place of occurrence. Relying on thispiece of evidence the learned Additional Public Prosecutor wouldcontend that the accused had also made a preparation for committingthe offence since he was also present at the time when P.W.4 sayhim. But P.W.2, the victim girl, would depose to the fact that the https://hcservices.ecourts.gov.in/hcservices/ accused had ran away on seeing both P.W.1 and P.W.4 approaching herto the place of occurrence, lifting his dothi. P.W.2 has notstated in her evidence that the accused had picked up the dothifrom the ground and then ran away. So it is clear from theevidence of P.W.1 and P.W.2 that he was wearing dothi at the timeof occurrence. According to the evidence of P.W.2, the accused hadpushed her on the ground, tore her jacket and placed the end of thehalf saree in her month and made an attempt to rape her. InEx.P.1-complaint, P.W.1 has stated that at the time when she sawthe victim girl the accused was lying on the victim girl and thaton seeing both the P.W.1 & P.W.4 the accused ran away by foldinghis dothi. The prosecution has recovered the wearing apparels ofboth the accused as well as the victim girl. It is in evidencethat there was no stain of semen found either on the wearingapparels of the accused or on the victim. The evidecne of P.W.8,doctor, is to the effect that the hymen of the victim girl wasfound intact. In Ex.P.1, P.W.1 has stated that she could find somescratch marks on the neck of the victim girl which has also beencorroborated by P.W.8.25(d) In AIR 2004 SC 1497 (Aman Kumar and another vs. State ofHaryana), in a case of similar nature, it has been held by theHonoruable Apex Court that if there is no evidence for specificpenetration then the accused can be convicted only under Section354 and not under Section 376 r/w 511 IPC. The relevant observationin the above said dictum runs as follows:-"The statute merely requires evidence ofpenetration, and this may occur with the hymen remainingintact. The actus reus is complete with penetration. Itis well settled that the prosecutrix cannot be consideredas a accomplice and, therefore, her testimony cannot beequated with that of an accomplice in an offene of rape.In examination of genital organs, state of hymen offersthe most reliable clue. While examining the hymen,certain anatomical characteristics should be rememberedbefore assigning any significance to the findings. Theshape and the texture of the hymen is variable. Thisvariation, sometimes permits penetration without injury.This is possible because of the peculiar shape of theorifice or increased elasticity. On the other hand,sometimes the hymen may be more firm, less elastic andgets stretched and lacerated earlier. This a relativelyless forceful penetration may not give rise to injuriesordinarily possible with a forceful attempt. Theanatomical feature with regard to hymen which meritsconsideration is its anatomical situation. Next to hymenin positive importance, but more than that in frequency,are the injuries on labia majora. These, viz., labiamajora are the first to be encountered by the male organ.They are subjected to blunt forceful blows, depending onthe vigour and force used by the accused and counteracted https://hcservices.ecourts.gov.in/hcservices/ by the victim. Further, examination of the females formarks of injuries elsewhere on the body forms a veryimportant piece of evidence. To constitute the offence ofrape, it is not necessary that there should be completepenetration of the penis with emission of semen andrupture of hymen. Partial penetration within the labiamajora of the vulva or pudendum with or without emissionof semen is sufficient to constitute the offence of rapeas defined in the law. The depth of penetration isimmaterial in an offence punishable under Section 376IPC.The plea relating to applicability of Section 376r/w section 511 IPC needs careful consideration. Inevery crime, there is first, intention to commit,secondly preparation to commit it, thirdly, attempt tocommit it. If the third stage, that is, attempt issuccessful, then the crime is complete. If the attemptfails the crime is not complete, but law punishes theperson attempting the act. Section 511 is a generalprovision dealing with attempts to commit offences notmade punishable by other specific sections. It makespunishable all attempts to commit offences punishablewith imprisonment and not only those punishable withdeath. An attempt is made punishable, because everyattempt, although it falls short of success, must createalarm, which by itself is an injury, and the moral guiltof the offender is the same as if he had succeeded. Moralguilt must be united to injury in order to justifypunishment. As the injury is not as great as if the acthad been committed, only half the punishment is awarded....................................................................................................................An attempt to commit an offence is an act, or a series ofacts, which leads inevitably to the commission of theoffence, unless something, which the doer of the actneither foresaw nor intended, happens to prevent this.An attempt may be described to be an act done in partexecution of a criminal design, amounting to more thanmere preparation, but falling short of actualconsummation, and, possessing, except for failure toconsummate, all the elements of the substantive crime. Inother words, an attempt consists in it the intent tocommit a crime, falling short of, its actual commission.It may consequently be defined as that which if notprevented would have resulted in the full consummation ofthe act attempted. The illustrations given in Section511 clearly shows the legislative intention to make adifference between the cases of a mere preparation and anattempt. https://hcservices.ecourts.gov.in/hcservices/ .........................................................................................................Though the prosecutrix's version in Court was of rape,when it is compared with the one given duringinvestigation, certain irreconcilable discrepancies arenoticed. The evidence regarding actual commission ofrape is at variance from what was recorded by policeduring evidence. The evidence of PW-11, the father whoaccording to prosecution made departure from what heallegedly stated during investigation is to the effectthat his wife PW-9 told him that the prosecutrix wasteased by the accused persons. Merely because he wastermed as a hostile witness his entire evidence does notget effected. Significantly, the evidence of prosecutrixand the doctor does not specifically refer to penetrationwhich is sine qua non for the offence of rape.There is no material to show that the accused weredetermined to have sexual intercourse in all events. Inthe aforesaid background, the offence cannot be said tobe an attempt to commit rape to attract culpability underSection 376/511 IPC. But the case is certainly one ofindecent assault upon a woman. Essential ingredients ofthe offence punishable under Section 354 IPC are that theperson assaulted must be a woman, and the accused musthave used criminal force on her intending thereby tooutrage her modesty. What constitutes an outrage thefemale modesty is nowhere defined. The essence of awoman's modesty is her sex. The culpable intention ofthe accused is the crux of the matter. The reaction ofthe woman is very relevant, but its absence is not alwaysdecisive. Modesty in this Section is an attributeassociated with female human beings as a class. It isvirtue which attaches to a female owning to her sex. Theact of pulling a woman, removing her dress coupled withthe request for sexual intercourse, is such as would bean outrage to the modesty of a woman, and knowledge thatmodesty is likely to be outraged, is sufficient toconstitute the offence without any deliberate intentionhaving such outrage alone for its object. As indicatedabove, the word 'modesty' is not defined in IPC. TheShorter Oxford Dictionary (third edn.) defines the word'modesty' in relation to woman as follows:-"Decorous in manner and conduct: not forward orlower Shame-fast; Scrupulusly chaste."The facts in the above said case will exactly fit in with the factsof the case on hand. In the case hand, the accused, according toP.W.2, had removed her saree and both P.W.1 & P.W.4 have seen theaccused running from the place of occurrence folding his dothi.Except the scratches found on the chest and cheek of the victim,there is no other injury found on the person of the victim. It has https://hcservices.ecourts.gov.in/hcservices/ been stated in the cross-examination of P.W.8, doctor, that sincethe place of occurrence was sugarcane field, there is a possibilityof the injury might have been caused by the sharp leaf of thesugarcane. 25(e) Under such circumstances, I am of the view that anoffence under Section 354 IPC alone has been made out against theaccused and not an offence under Section 376 r/w 511 IPC, asrightly contended by the learned Legal Aid Counsel for theappellant. Point is answered accordingly.26.In the result, the appeal is allowed in part and theconviction and sentence of the accused in S.C.No.80 of 2003 on thefile of the Principal Sessions Judge, Erode, is set aside and theaccused is convicted under Section 354 IPC and sentenced to undergo2 years RI. Set off is ordered under Section 428 of Cr.P.C.The services rendered by the Legal Aid Counsel Mr.V.Parthibanis recorded with appreciation. His remuneration is fixed atRs.3,000/- to be paid by the Tamil Nadu State Legal ServicesAuthority, through Member Secretary.SsvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo,1.The Principal Sessions Judge, Erode.2.The Public Prosecutor, High Court, Madras.3.The Inspector of Police, Vellitiruppur Police Station, Erode District, (Cr.No.269 of 2002)4.The Superintendent of Central Prison, Coimbatore.5. The District Collector, Erode, https://hcservices.ecourts.gov.in/hcservices/

6. The Director General of Police, Chennai7. The Secretary Tamil Nadu State Legal Service Authority+ one cc to Mr. V. Parthiban, Advocate sr no. 40654VRK(CO)NM(17.07.07)Crl.A.No.1183 of 2004