Chinna Raja v. The State of Tamil NaduRep. By Inspector of PoliceTiruchengodu Rural Police Station

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 01.04.2008Coram:-The Hon'ble Mr. Justice P.D.DINKARANandThe Hon'ble Mr. Justice R.REGUPATHICriminal Appeal No.985 of 2007Chinna Raja... Appellant/Accusedvs.The State of Tamil NaduRep. By Inspector of PoliceTiruchengodu Rural Police Station,(Crime No.162 of 2002)... Respondent/ComplainantAppeal against the Judgement, dated 27.12.2002, passed by theAdditional District and Sessions Judge-cum-Chief Judicial Magistrate,Namakkal, in S.C. No.136 of 2002.For Appellant: Mr.N.S.SivakumarFor Respondent: Mr.N.R.Elango, Addl. Public Prosecutor.J U D G M E N T(Delivered by R.REGUPATHI, J.)The appellant, who is aged about 26, a married man and father ofa child, faced a charge of having committed rape on a tender childaged about 4 year. As per the charge, on 15.02.2002 at 11 P.M., theappellant has taken away the victim girl, who was sleeping in frontof the house of PW-1 on a cot, to a nearby neighbour's house and atthe low-lying area there, committed rape on her causing bleedinginjuries on the private part and umbilicus; thereby, committed theoffence punishable under Section 376(2)(f) IPC. When initiallyquestioned, the accused denied his involvement in the offence andthereupon, trial against him was taken up by the learned AdditionalDistrict and Sessions Judge cum Chief Judicial Magistrate, Namakkal, https://hcservices.ecourts.gov.in/hcservices/ in Sessions Case No.136 of 2002. In order to substantiate its case,the prosecution examined PWs-1 to 10, marked Exs.P1 to P17 andproduced MOs. 1 to 5. On conclusion of the trial, the learned trialJudge found the accused guilty as charged and sentenced him toundergo imprisonment for life. Aggrieved over such order ofconviction and sentence passed by the trial court, the presentCriminal Appeal has been preferred.2. The prosecution case, in a nut-shell, as projected by itswitnesses, runs thus:-PW-1 is the maternal grand father of the victim girl and PW-2 isthe son of PW-1. PW-1 went to the village of his daughter andbrought his grand daughter, the victim girl, to his village for thefestival celebrations at the temple. On the occurrence day, ie., on15.02.2002, by 8 P.M., PW-1 and PW-2 had gone to the temple to attendthe festival celebrations while the wife and younger daughter of PW-1were at a neighbour's residence watching television and the victimgirl was sleeping on a cot in front of the residence. At 11 p.m.,when PW-1 and his son returned back, they found the victim missing.After conveying the same to his wife and daughter, who were watchingTelevision programmes at the neighbour's residence, they went insearch of the victim. On hearing the noise of the victim from thedirection where the residence of one Pappammal is situated, theyrushed towards that side by flashing torch light and found thedeceased running away from that place towards east and the victimwith bleeding injuries on navel and private parts. On enquiring heras to what happened, the victim stated that the accused bit on herumbilicus and thereafter did something near the private part. Theaccused was apprehended by the villagers and was kept in confinement.The victim was rushed to a Homeopathy Doctor/PW6 available in thevillage, who, after giving first aid, advised PW-1 to take her to theGovernment Hospital at Trichengode. Since it was late night by then,on the next day, the victim was taken to the Government Hospital,Trichengode. PW-7 is the Medical Officer, who examined the child on16.02.2002. It was stated to him that the child was subjected torape at 11 p.m. on the previous day. He issued the wound certificateEx.P5, wherein, the following injuries have been noticed:-" Injuries :(1) Bite mark 3 cm below the umbilicus(2) Contusion injury 3 x 3 cm with bitemark in both Labia Majora https://hcservices.ecourts.gov.in/hcservices/ (3) Laceration of skin posterior aspect oflabia(4) Perineal laceration of size 2 cm. bothsides(5) Laceration and tear of Rectal muscleof 3 cm in length. Blood clots present in thevagina."From the Hospital, PW-1 returned to the village, took the accused,went to the police Station and lodged a complaint under Ex.P1. PW-10 is the Inspector of Police, Trichengode Police Station. Onreceipt of the complaint given by PW-1 on 16.02.2002 at 11 A.M., heregistered a case in Crime No.162 of 2002 for an offence punishableunder Section 376 IPC and Ex.P16 is the printed F.I.R. The Inspectorrecorded the statement of the accused and pursuant thereto, MOs-2 to4 viz., bloodstained shirt, lungi and underwear of the accused, wererecovered under Ex.P4/Form-95 attested by PW-5. As there wereinjuries on the accused, the Inspector sent him to the GovernmentHospital, Trichengode, along with police memo for medical examinationand treatment. Thereafter, he proceeded to the scene of occurrence,prepared rough sketch Ex.P17, observation mahazar Ex.P2 attested byPW-4, recovered bloodstained earth MO-5 and the bloodstained gown/MO1of the victim under Ex.P3 mahazar and examined the witnesses presentthere. After treatment, the accused was brought to the policestation, whereupon, he was sent to judicial custody. A requisitionunder Ex.P7 was given to the court to send the accused to theHospital for virility test. PW-8 is the Doctor, who, after examiningthe accused, has issued Ex.P6 certificate to the effect that theaccused was a virile person. PW-2 is the maternal uncle of the victim, who corroborated thetestimony of PW-1. Though PW-3, the victim girl, who was aged about 5at the time of trial, was examined by the court, on ascertaining hercapability to give evidence, the trial court found that she was notcompetent to tender evidence. The Investigating Officer despatched the Material Objects to theCourt for receiving report from the Analyst. PW-9, the court clerk,on receipt of the Material Objects, forwarded the same to theForensic Lab. Exs.P11 to 15 are chemical analysis and serologist'sreports. On 13.02.2002, the Investigating Officer received thevirility test report. On 22.02.2002, he recorded the statement of thevictim and on 26.03.2002, he recorded the statement of the Doctorwho examined the victim girl. In the medical opinion, it is stated https://hcservices.ecourts.gov.in/hcservices/ that the injuries sustained by the victim are grievous in nature andsuch injuries could have been caused during the course of committingrape. On conclusion of the investigation, the Investigating Officerfiled final report on 02.04.2002.Learned trial Judge, on conclusion of the trial, questioned theaccused under Section 313 Cr.P.C. with reference to the incriminatingmaterials adduced by the prosecution against him, for which, hedenied his complicity in the commission of offence and pleadedinnocence. No oral or documentary evidence has been adduced on theside of the defence. On hearing the arguments advanced by both sidesand considering the materials placed, the trial court convicted andsentenced the accused as aforementioned; hence, the present Appeal.3. Learned counsel for the petitioner submits that the age of thevictim was about 4 year at the time of occurrence and that though shehas been examined as PW-3 during the course of trial, she could notspeak as to what had happened at the time of occurrence; therefore,actually, there is no eye-witness to the occurrence. Though theoffence had taken place at 11 P.M. on 15.02.2002, the complaint wasgiven only on the next day at 12 P.M.; thus, there is considerabledelay in lodging the complaint which would adversely affect the caseof the prosecution. It is the admitted case of the prosecution thaton hearing the cry of PW-3, PWs-1 and 2 and others went to the sceneof occurrence and found the victim with bleeding injuries. Apartfrom the narration of the victim girl and the alleged extra judicialconfession of the accused soon after he was apprehended, there isnothing to connect the appellant with the crime. Though the MedicalOfficer has given a description about the injuries noticed on theprivate part of the victim, the opinion given by her would only showthat a grievous injury has been caused and thereby, the act of rapeis not substantiated in clear terms. Though it is simply stated thatthose injuries would have been caused only during the course of rape,such an imprecise statement cannot be taken as an acceptable opinionin the eye of law. Merely because of the reason that the accused hasstated that he committed rape, he cannot be convicted for such agrave offence of this nature unless the prosecution has substantiatedits case by producing sufficient and acceptable materials. Accordingto the counsel, at any rate, since the prosecution has notestablished its case beyond reasonable doubts, the appellant/accusedmay be acquitted by granting benefit of doubt in his favour.4. Per contra, learned Additional Public Prosecutor submits that,on the date of occurrence, at 11 p.m., at the time when the familymembers of the victim were not in the house, the accused, using suchopportunity, took away the child to a nearby place and committed theoffence. Only on hearing the noise of the victim, the prosecution https://hcservices.ecourts.gov.in/hcservices/ witnesses reached the scene of occurrence and found the victim withbleeding injuries and the accused running away from the scene place.Immediately thereafter, the accused was chased and apprehended by thevillagers and at the time of preferring complaint, he was handed overto the police. The witnesses could identify the victim as well asthe accused with the help of a torch light. The evidence of PWs-1 and2 has been corroborated by PWs-4 and 5, who are independentwitnesses. Since it is a remote village, the victim could not betaken immediately to the Government Hospital in the nearby town and acomplaint also could not be lodged at once for want of transportfacilities. Looking at the nature of injuries sustained by thevictim, as spoken to by PW-7, the Medical Officer, having regard tothe extra judicial confession given by the accused to the villagersas soon as he was apprehended, the case of rape as put forth by theprosecution is well substantiated. According to him, in view of theheinous offence committed and the same having been proved by theprosecution as against the accused beyond any scope for doubt, thisis a fit case to confirm the order of conviction and sentence passedby the court below. 5. We have perused the materials available on record and heardthe submissions advanced on either side. No doubt, the appellant has committed a heinous and grave crimeon a tender girl child, who was aged about 4 year at that time. Theoccurrence is alleged to have taken place at 11 P.M. on the fatefulday. By 8 P.M., PWs-1 and 2 left the child sleeping on a cot in frontof the residence while the daughter and wife of PW-1 had gone to anearby house for watching T.V. Programme. Finding that the victimgirl was left alone and sleeping outside the residence and using suchopportunity, the accused took away the child to a nearby place andcommitted the offence. PWs-1 and 2 narrated the occurrence in anatural manner viz., at the time when they returned back, they foundthe child missing and they were searching for her with the help of atorch light and after hearing the cry of the child, reached the sceneof occurrence and found her with bleeding injuries. At that time,they saw the accused running away from the scene of occurrence andwhen the victim was questioned initially, she has stated that theaccused bit at her umbilicus and had done something near the privatepart. Soon after the apprehension of the accused by the villagers,he had confessed the act committed by him and further stated that hewas fond of girls and therefore, he carried away the child to commitsuch act. Thus, it is clear that the occurrence took place at aboutmid-night time and the witnesses were hurrying from one place toanother for medical treatment of the victim and immediately afteradmitting the child at the Government Hospital, PW-1 returned to thevillage and went to the police station to lodge a complaint.Therefore, the delay occurred in lodging the complaint cannot be said https://hcservices.ecourts.gov.in/hcservices/ to be a serious lapse so as to affect the prosecution case. Insofaras the commission of the offence and causation of injuries on thevictim by the accused are concerned, we again point out that suchaspect has been proved not only through the evidence of PWs-1 and 2but also through Pws-4 and 5, who are independent witnesses in thevillage. They have also accompanied PWs-1 and 2 in searching thechild and found the victim with injuries and the accused running awayfrom the scene of occurrence. Since it is a small hamlet, they couldnot get proper medical assistance, however, PW-6, a homeopathyDoctor, after giving first aid, advised the victim to be taken to thenearby Government Hospital. On examination, PW-7 noticed injury Nos.1to 5 and subsequently has given her opinion to the effect that theinjuries could have been caused in the manner as put forth by theprosecution. On a close scrutiny and marshalling of evidence, we areof the firm opinion that such injuries have been caused on the victimonly by the accused and the accused alone and therefore, we could notpersuade ourselves to take a different view than the one taken by thetrial court as far as the conviction of the appellant is concerned.In that regard, the prosecution version is both truthful andcredible. We are clearly of the view that the appellant had takenaway the victim with a view to outrage her modesty and furthersexually and indecently assaulted her, resulting in grievousinjuries. 6. Now, the moot question which squarely falls for ourconsideration relates to the correct and appropriate sections of thePenal Code under which the appellant is required to be convicted withreference to the offence he had committed. The trial court convictedthe appellant under Section 376 (2) (f) IPC. for 'committing rape ona woman when she is under twelve years of age'. In order to arriveat the correct conclusion, we deem it appropriate to examine thebasic ingredients of Section 375 IPC punishable under Section 376 IPCto demonstrate whether the conviction of the appellant under Sections376 (2) (f) IPC is sustainable.“ 375. Rape.— A man is said to commit "rape" who, exceptin the case hereinafter excepted, has sexual intercoursewith a woman under circumstances falling under any of thesix following descriptions—First.— Against her will.Secondly.— Without her consent.Thirdly.— With her consent, when her consent hasbeen obtained by putting her or any person in whom she isinterested in fear of death or of hurt.Fourthly.— With her consent, when the man knows thathe is not her husband, and that her consent is given https://hcservices.ecourts.gov.in/hcservices/ because she believes that he is another man to whom sheis or believes herself to be lawfully married.Fifthly.— With her consent, when, at the time ofgiving such consent, by reason of unsoundness of mind orintoxication or the administration by him personally orthrough another of any stupefying or unwholesomesubstance, she is unable to understand the nature andconsequences of that to which she gives consent.Sixthly.— With or without her consent, when she isunder sixteen years of age. Explanation.— Penetration is sufficient to constitute the sexualintercourse necessary to the offence of rape."Thus, under Section 375 IPC, six categories indicated above are thebasic ingredients of the offence. In this case, the victim was about4 years of age, therefore, her consent was irrelevant. No offence under Section 376 IPC can be made out unlessthere was penetration to some extent. In the absence of penetrationto any extent, it would not bring the offence of the appellant withinthe four corners of Section 375 of the Penal Code. Therefore, thebasic ingredients for proving a charge of rape are the accomplishmentof the act with force. The other important ingredient is penetrationof the male organ within the labia majora or the vulva with orwithout any emission of semen or even an attempt at penetration intothe private part of the victim completely, partially or slightlywould be enough for the purpose of Sections 375 and 376 IPC. WhatSection 375 IPC requires is medical evidence of penetration, and thismay occur also in a case where the hymen remains intact. The Supreme Court has held in a number of cases thatpenetration is the sine qua non for an offence of rape and in orderto constitute penetration, there must be evidence clear and cogent toprove that some part of the virile member of the accused was withinthe labia of the vagina of the victim, no matter how little.7. Keeping such primary requirements, we have analysed themedical evidence available before us. As could be seen from Ex.P5,the wound certificate issued in respect of the victim girl, injuryNos.1 and 2 are bite marks while injury Nos.3 and 4 are laceration https://hcservices.ecourts.gov.in/hcservices/ near the private part and injury No.5 is described as follows:-" Laceration and tear of Rectal muscleof 3 cm. in length. Blood clots present inthe vagina."By looking at injury No.5, we were under the impression that theaccused first made an attempt at anus and then for penetration,however, on perusal of the oral evidence of the Medical Officer, asregards the said injury, it is seen that the same is described as alaceration between vagina and rectum. Further, though suchdescription has been given in the course of chief examination,neither the prosecution nor the defence endeavoured to getclarification from the Medical Officer (a) as to whether the bloodclots found near vagina was as a result of attempt to penetration and(b) the circumstances under which such grievous injury could havebeen sustained. The report noted in Ex.P5 is to the effect, 'did not detect semen / spermatozoa on itemNo.1 and 2. But the injury is grievous innature.' While giving evidence, it is bluntly stated that injury Nos.1 to 5could have been caused only during the course of rape. Injury Nos.1and 2 are 'bite injuries' and admittedly, injury Nos.3 and 4 aresuperficial lacerations. As could be seen, injury No.5 may also bedue to bite and mishandling; thus, the medical opinion that it wascaused by male organ is missing. That being so, an omnibus opinionwould in no way help in a case involving such a serious nature ofallegation where the punishment provided is imprisonment for life andthe prosecution is expected to substantiate its case beyondreasonable doubt. Simply because of the opinion given by the MedicalOfficer on surmises and conjectures and on imaginary basis, we cannotcome to a firm conclusion that an offence of rape has beensubstantiated against the accused in a case where the importantingredient of the offence under Section 375 punishable under Section376 IPC viz., penetration or an attempt therefor, is altogethermissing. Further, Ex.P6, the virility certificate issued in respectof the accused is silent with regard to the injuries, if any, noticedby the Doctor on the male organ of the accused inasmuch as suchaspect is of much importance in the background of the injuries on thevictim noted in Ex.P5 and the opinion of the Doctor as could be seenfrom her evidence. If injury No.5 was caused by the male organ of theaccused, certainly, the Medical Officer, who examined the accused,could have noticed contusion, laceration or at least reddish bruiseson the male organ of the accused. Though sufficient evidence is https://hcservices.ecourts.gov.in/hcservices/ available in abundance for causing injuries by biting, causation ofinjury No.5 by male organ has not been substantiated beyondreasonable doubt. No material, oral or documentary, has beenproduced in that regard.8. In such circumstances, We are of the considered view thatthe conviction and sentence as imposed by the trial court underSection 376(2)(f) IPC. are not sustainable. However, whileaccepting the opinion given in Ex.P5 that injury Nos.1 and 2sustained by the victim are grievous in nature and such injuries werecaused by biting on the private part of the victim, by invokingSection 222 of the Cr.P.C. which provides that in a case where theaccused is charged with a major offence and the said charge is notproved, the accused may be convicted of the minor offence, though hewas not charged with it, we hold that the accused is guilty of theoffence punishable under Section 326 IPC. As pointed out earlier,since causation of injuries on the private part of the victim hasbeen substantiated, by finding that he has outraged the modesty of afemale child below 12 year of age, we convict him for the offencepunishable under Section 354 IPC. Accordingly, we modify the orderof conviction passed by the trial court from Section 376 IPC. toSections 326 and 354 IPC. 9. Coming to the sentence to be imposed, considering thefact that the sexual offence has been committed against a haplesschild by the accused, a married man and father of a child, andnoticing the manner in which the offence has been committed viz.,causation of grievous injuries at private parts and inflicting biteinjury at umbilicus, we impose 10 (ten) year R.I. for the offenceunder Section 326 IPC and 2 (two) year R.I. under Section 354 IPC.and we order the sentences to run concurrently. 10. In the result, the appeal is allowed in part. Theconviction and sentence imposed by the trial court against theaccused under section 376 (2) (f) IPC. are modified and instead, heis convicted under Sections 326 and 354 IPC. and sentenced to undergoR.I. for 10 years and 2 years respectively and the sentences areordered to run concurrently.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.JI. https://hcservices.ecourts.gov.in/hcservices/ To1.The Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Namakkal.2.The District and sessions Judge,Namakkal District.3.The District CollectorNamakkal District.4.Director General of Police,Chennai.5.The Public ProsecutorHigh Court, Madras.6.The Superintendent of policeCentral Prizon Coimbatore.7.The Inspector of PoliceTiruchengodu Rural Police Station(Crime No.162 of 2002)+ 1 CC to Mr. N.S.Sivakumar Advocate SR NO.18192 Crl.Appeal No.985/2007.ASM(CO)JJM(22/04/08)