Rethinam @ Rajarethinam v. State Inspector of Police

J U D G M E N T The Criminal Appeal has been preferred against the judgment ofconviction and sentence, dated 09.09.2004, passed by the learnedAssistant Sessions cum Chief Judicial Magistrate, Nagapattinam, inS.C.No.214 of 2003, whereby the accused was convicted for theoffence under Sections 376 (i) and 576(ii) I.P.C. and in respect ofSection 376(i) I.P.C., he was sentenced to undergo 10 years'rigourous imprisonment for each count, which was ordered to be runconsecutively and to pay a fine of Rs.50,000/- for each count, indefault in payment, to undergo six months' simple imprisonment. Inrespect of Section 506(ii) I.P.C., the accused was sentenced toundergo two years' rigourous imprisonment, which was ordered to berun concurrently and to pay a fine of Rs.10,000/-, in default inpayment, to undergo three months' simple imprisonment. The totalfine amount was Rs.1,10,000/-, out of which, Rs.1,00,000/- wasordered to be paid as compensation to the victim girl. 2.The case of the prosecution is as follows:(i)P.W.1-Vijila, P.W.3-Ambika, P.W.4-Gangadharan, P.W.5-Ramaniand P.W.6-Kanaga were studying in Kuravapulam Seethalakshmi MiddleSchool at the time of occurrence and the victim girl was studying in7th Standard. The appellant/accused was working as a Teacher. On26.12.2001, for making arrangement to conduct half-yearlyexamination, P.W.1/victim girl was cleaning the classroom along withother inmates (i.e.) P.W.3 to P.W.6 and others. When P.W.1/victimgirl was brooming VIII B, the accused came inside and locked thedoor of the classroom. Then, the accused trampled her slipper andpulled her down, which resulted to fell down, at that time, theaccused committed rape on her. He also made a criminal intimidationat knife point that if she intimated the matter to anybody, he wouldthrow her into the well and he would set fire on her house, whichwould cause death of entire family. Thereafter, she attendedexamination. On 02.01.2002, at 8.30 a.m., again he committed rape onher in the same classroom. (ii)P.W.2-Tamilarasi, who is the mother of P.W.1, deposed thatP.W.1 had missed her menstrual period for the past two months. Whenshe questioned the same, P.W.1 revealed the fact that she wassubjected to rape on 26.12.2001 and 02.01.2002 by the accused.Immediately, they went to the hospital on 26.03.2002, where P.W.9-Dr.Indira, treated her and accordingly, came to the conclusion thatP.W.1 was pregnant. Then, at the request of P.W.2, P.W.9 wasmedically terminated the pregnancy of P.W.1 on 27.03.2002. Thenonly, they gone to Police station and gave a complaint-Ex.P1 on16.04.2002. https://hcservices.ecourts.gov.in/hcservices/ (iii)P.W.13-Mr.Rajendran, Inspector of Police, registered acase in Crime No.327 of 2002 under Sections 376(2)(b) and 506(ii)IPC and prepared an First Information Report-Ex.P8. Then, he sentthe victim girl to P.W.12-Dr.Thilagam, Government Hospital,Nagapattinam, to ascertain as to whether P.W.1 was subjected tosexual intercourse. P.W.12 examined the girl and gave an accidentregister Ex.P7. Then, P.W.13 went to the place of occurrence andprepared Ex.P3 Observation Mahazar and drew Ex.P9 rough sketch inthe presence of the witness P.W.7-Mathizhalagan, VAO and oneNagarajan. Then, he examined the witnesses P.Ws.2 to 6 & 8 andrecorded their statements. Thereafter, he also seized the dress ofP.W.1 under Form-95 and sent the same to Forensic Department forexamination. On 07.05.2002, he arrested the accused and recorded hisconfession and sent him to Judicial Custody. Thereafter, P.W.13 gavea requisition to P.W.11-Dr.Adhiyaman, to ascertain as to whether theaccused is potent and the respective medical certificate was markedas Ex.P6. P.W.11 also sent the semen of the accused for chemicalexamination. Since P.W.1 underwent the medical termination ofpregnancy, which was performed by P.W.9-Dr.Indra and obtained acertificate Ex.P4 from P.W.9, P.W.13 sent the girl to P.W.10-Dr.Elavarasan to ascertain the age of the victim girl and he gaveEx.P5 Age Certificate, stating that she is aged in between 14 to 15years and also produced X-rays, which has been marked as M.O.1.Thereafter, P.W.13 examined the doctors and other witnesses andrecorded their statements. After completing investigation, he fileda charge sheet against the accused for the offence under Sections376 (2)(b) and 506 (ii) IPC. 3.After committing the case, the learned Assistant Sessions cumChief Judicial Magistrate, Nagapattinam, framed necessary charges.Since the accused pleaded not guilty, the Sessions Court, afterexamining the witnesses P.W.1 to P.W.13, D.W.1 to D.W.3 and Exs.P1to P9 & Exs.D1, D2 and M.O.1, convicted the accused for the offenceunder Sections 376(i) and 506(ii) IPC and sentenced him as statedabove, against which, the present appeal has been preferred by theappellant/accused. 4.The learned counsel appearing for the appellant made hissubmissions on the following grounds:(i) There is a delay in preferring the complaint.(ii) There is a contradiction between the ocular and medicalevidence. https://hcservices.ecourts.gov.in/hcservices/ (iii) On 26.12.2001, the main gate of the school was openedonly at 9.30 a.m., so there is no possibility for the allegedoccurrence at 8.30 a.m. in the classroom on working days.(iv) Even though semen of the appellant/accused has been sentfor examination, no report has been received. So there is noevidence to prove that he is only responsible for the pregnancy ofP.W.1-victim girl.(v) Since P.W.1's brother Ravikumar misbehaved with the wife ofthe accused, P.W.1's mother and brother have come out from thevengeance of the appellant/accused, foisted a false case againsthim.To substantiate his arguments, he relied upon the decisions of apexCourt, various High Court and this Court. 5.Refuting the same, the learned Government Advocate (Crl.side)submitted that the delay in preferring the complaint has beenproperly explained. The Court must take judicial notice that duringthe time of examination, the school and classrooms are opened atearlier hours. He further submitted that there is no concreteevidence that who is having school gate key. So the place ofoccurrence has been clearly proved by the prosecution. The evidenceof P.W.11-Dr.Adhiyaman, has clearly proved that theappellant/accused is potent and for the same, he gave Ex.P6-medicalcertificate of appellant. So it is immaterial as to whether theappellant is able to give birth to a child. So the offence underSection 376 I.P.C. is attempted to penetrate is not necessary. But,here, P.W.1 has conceived and the child has been aborted and thathas been proved by the evidence of P.W.9-Dr.Indra. So there is nocontradiction between the medical as well as ocular evidence. So theAssistant Sessions Court considered all the aspects in a proper andperspective manner and decided the matter on merits. So he prayedfor dismissal of the appeal. 6.Considered the rival submissions made on both sides as wellas the materials available on record. 7..Now, it is appropriate on the part of this Court to decidewhether the offence has been made out under Section 376 I.P.C? The appellant/accused was working as a Teacher in SeethalakshmiMiddle School, Kuravapulam, Shanmuga Kadu and P.W.1-victim girl wasstudying 7th standard therein. At the time of the incident, thevictim girl was 14 years old. So she was minor. Hence, this Courthas considered the evidence of child witness with proper care. https://hcservices.ecourts.gov.in/hcservices/

8.At this juncture, it is appropriate to consider the decisionrelied upon by the learned counsel for the appellant reported in2010-1-L.W. (crl.) 330 (Sekaran v. State by Inspector of Police,K.V.Kuppam Police Station, Vellore District), in that, it wasdecided that evidence of a child witness must be evaluatedcarefully, as the child witness may be swayed by what others tellhim and is an easy prey to tutoring. So this Court ought to havedevoted great care on the evidence of P.W.1 and to consider as towhether the evidence of P.W.1 is sufficient to convict the appellantfor the offence under Section 376 I.P.C. and as to whether it isreliable. 9.Admittedly, the case is sexual offence in nature and there isno eye witness to be needed for commission of offence. In suchcircumstances, the corroboration of other witnesses may not benecessary to convict the appellant/accused for the offence underSection 376 I.P.C. It is also well settled dictum of the apex Courtin this nature of offence under Section 376 I.P.C. that theprosecutrix evidence itself is sufficient to convict the accused andno corroboration is necessary. 10.At this juncture, the following decisions relied upon byboth sides counsel are considered.(i) The learned Government Advocate (Crl.side) relied upon thedecision of this Court reported in Crl.A.No.991 of 2006 (Rangesh v.State rep. by the Inspector of Police, Pallavaram Police Station,Chennai), in that, the apex Court Judgment in paragraphs-10 to 12are held as follows: "10. The Hon'ble Apex Court in Sudhansu SekharSahoo v. State of Orissa reported in AIR 2003 SC2136, held that if testimony of the prosecutrixinspires the confidence in mind of the Court it canbe made sole basis for convicting the accused.11. The Hon'ble Apex Court in Bhupinder Sharmav. State of Himachal Pradesh reported in AIR 2003 SC4684, has held as under:"To insist on corroboration except in the rarest ofthe rare cases is to equate one who is a victim ofthe lust of another with an accomplice to a crime andthereby insulted womanhood. It would be adding insultto injury......" https://hcservices.ecourts.gov.in/hcservices/

12. In State of M.P. v. Dayal Sahu reported in2005 CRI.L.J.4375, the Hon'ble Apex Court has held asunder:"Once the statement of prosecutrix inspiresconfidence and accepted by the Courts as such,conviction can be passed only on the solitaryevidence of the prosecutrix and no corroborationwould be required unless there are compelling reasonswhich necessitate the Courts for corroboration of herstatement. Corroboration of testimony of theprosecutrix as a condition for judicial reliance isnot a requirement of law but a guidance of prudenceunder the given facts and circumstances. Non-examination of doctor and non-production of doctor'sreport would not be fatal to the prosecution case, ifthe statement of the prosecutrix and otherprosecution witnesses inspire confidence." " (ii)Further, the learned Government Advocate (Crl.side) reliedupon the decision of apex Court reported in (2006) 3 SCC 771 (Dineshalias Buddha v. State of Rajasthan), in that the apex Court judgmentin AIR 1954 SC 54 was held that the accused cannot cling to a fossilformula and insist on corroborative evidence even if taken as awhole the case spoken to by the victim strikes a judicial mind asprobable. Hence, as per the dictum of the apex Court that nocorroboration is necessary, if a sole eye witness is sufficient toinspire confidence in the judicial mind. (iii)The learned counsel for the appellant relied upon thedecision of apex Court reported in 2001 (3) Crimes 393 (SC) (Surjanand others v. State of M.P.), in that, it was held that the evidenceof solitary witness should inspire confidence in the judicial mind,and be of such a nature that the Court must be able to certify thatthe testimony is wholly reliable. But, here, P.W.1 is aged about 14years, who is hailing from rustic village and threatened by theaccused/Teacher. Hence, she has not revealed the same to anybody. 11.Now this Court has to decide that as to whether the evidenceof P.W.1 is reliable? Admittedly, P.W.1 was a student and the appellant/accused wasworking as a teacher. Here, the relationship of victim and accused(i.e.) student and teacher, played vital role for deciding thematter. While considering the evidence of P.W.1, even it istrustworthy, other evidence has also to be considered incidentally.Because, the learned counsel appearing for the appellant submittedthat as per the prosecution case, the alleged occurrence has beentaken place on 26.12.2001 and 02.01.2002. But P.W.1 gave Ex.P1 https://hcservices.ecourts.gov.in/hcservices/ complaint only on 16.04.2002. So, there was enormous delay inpreferring the complaint. Furthermore, since Ravikumar, who isbrother of P.W.1 and son of P.W.2, has misbehaved with the wife ofthe accused, a panchayat has been convened and the matter wassettled. So taking vengeance against this accused, a false case hasbeen foisted against him due to previous enmity. Furthermore, thelearned counsel for the appellant stated that there was acontradiction between ocular and medical evidence. So this Court hasto consider as to whether the delay has been played fatal to thecase of prosecution.12.It is pertinent to note that the alleged occurrence wasalleged to be taken on 26.12.2001 and 02.01.2002. Admittedly, Ex.P1complaint has been given on 16.04.2002, after three months from thedate of alleged occurrence. The explanation offered by theprosecution is that the place, where the occurrence has taken place,at Kuravapulam is a rustic village, which was situated inNagapattinam District. P.W.2-Tamilarasi, who is an illiterate ladyhailing from the rustic village, is having two daughters and oneson. Her daughter P.W.1 alone was going to school and was studying7th standard. During the relevant period, her husband was doingcooly work at Malaysia. She along with her son and two daughtersresiding there. Since she is an illiterate lady, who was hailingfrom the rustic village, some leniency must be shown to herevidence. In her evidence, she stated that herself and her twodaughters were having menstruation on the same day. The next monthof alleged occurrence, her daughter P.W.1 has missed hermenstruation period. On questioning the same, she has not taken careof her. Since P.W.1 has missed her menstruation after two months,P.W.2 questioned her. Then only, P.W.1 told her mother that she wasraped by the appellant/accused twice (i.e.) on 26.12.2001 and02.01.2002. Immediately, P.W.2 mother was taken her daughter P.W.1to P.W.9-Dr.Indra on 26.03.2002, who found that the girl waspregnant. Then, at the request of P.W.2, P.W.9 medically terminatedthe pregnancy. P.W.9 also opined that the growth of the foetus was12 to 14 weeks. After termination only, P.W.2 gave a complaintbefore the concerned police on 29.03.2002. 13.At this juncture, it is appropriate to consider the argumentadvanced by the learned counsel for the appellant that P.W.2 gavethe first complaint before the police on 29.03.2002. But, the saidcomplaint was dropped by police and another complaint was given on03.04.2002 before All Women Police Station, Nagapattinam and thathas also been dropped by police. Then, only the present complaintEx.P1 was given by her on 16.04.2002 at Vedaranyam, with the help ofCommunist Party and the same was taken on file and the case has beenregistered and investigation has been done. Considering the same,the medical termination of pregnancy was conducted and the foetus https://hcservices.ecourts.gov.in/hcservices/ was discharged on 27.03.2002. P.W.1 was discharged from the hospitalon 28.03.2002. On 29.03.2002, she gave the first complaint. Sincethere was no male help for P.W.1 and her husband was also working asCooly at Malaysiya. She has no other support, except his son, whowas also younger, even though he was completed 18 years. Sincepolice has not taken any steps and the nature of offence is alsograve in nature, (i.e.) the teacher raped the student, the matterwas taken by the communist party. Then only, the case was registeredand the investigation was done, according to defence. So the delayin preferring complaint has been properly explained by P.W.1 andP.W.2. 14.As per the evidence of P.W.1. when she was subjected torape, she was threatened by the appellant/accused at knife pointthat if she reveals the matter to any body, she would be thrown byhim into the well and he would set her house fire and kill herfamily members. Since she was afraid, because of her age and threatmade by the teacher, she was not revealed the same even to hermother. After the matter provoked, when P.W.2 came to know herdaughter has missed her menstruation period, she was taken herdaughter to the hospital and thereafter, she gave complaint. In suchcircumstances, I am of the view that the delay has been properlyexplained by the prosecution. 15.Now it is appropriate to consider the decisions relied uponby both the counsel in respect of delay. (i) The learned counsel for the appellant relied upon thefollowing decisions of apex Court reported in 1995 SCC (Cri) 826(Jagannivasan vs. State of Kerala) in that it was held that"Prosecutrix keeping quite for six days and telling about theincident to her mother when she allegedly got pain in her privateparts. Story of her getting pain in her private parts found to beunreliable in view of medical evidence. After the sexual act, theprosecutrix going to the dance performance rather than go to herparents and inform them of the crime. In the circumstances of thecase, testimony of the prosecutrix not reliable." But the abovecitation is not applicable to the facts of the present case, becausethe commission of offence itself is doubtful as per the medicalevidence. So story of getting pain in her private part is unreliableand hence, the above citation is not applicable. (ii) 2001 SCC (Cri) 1034 (Ronald Kiprono Ramkat v. State ofHaryana), in that it was held that the explanation was notconvincing the benefit of doubt to be given to the accused. Whileconsidering the case, there was an offence under Sections 376 readwith 302 and 511 I.P.C. and there was a delay in registering F.I.R. https://hcservices.ecourts.gov.in/hcservices/ (iii)1998 SCC (Cri) 1460 (Kuldeep K.Mahato v. State of Bihar)in that it was held that despite sufficient opportunity, theprosecutrix neither running away nor taking the help of neighbours.He further submitted that the conduct of the party has played vitalrole. But the case in hand, P.W.1 was kept quiet all along and onlyon 16.04.2002, she gave complaint against the accused and she neverintimated the same to anybody including her mother till 26.03.2002.So P.W.1 is loose character girl. Hence, appellant/accused isentitled to benefit of doubt. (iv)The learned Government Advocate (Crl.side) relied upon thedecision of apex Court reported in (2006) 3 SCC 771 (Dinesh aliasBuddha v. State of Rajasthan), in paragraphs-9 and 11, it was heldas follows:"9. The physical scar may heal up, but the mental scarwill always remain. When a woman is ravished, what isinflicted is not merely physical injury but the deepsense of some deathless shame. An accused cannot clingto a fossil formula and insist on corroborativeevidence, even if taken as a whole, the case spoken toby the victim strikes a judicial mind as probable.Judicial response to human rights cannot be blunted bylegal jugglery. 11. In the Indian setting, refusal to act on thetestimony of the victim of sexual assault in theabsence of corroboration as a rule, is adding insult toinjury. A girl or a woman in the tradition bound non-permissive society of India would be extremelyreluctant even to admit that any incident which islikely to reflect on her chastity had ever occurred.She would be conscious of the danger of beingostracised by society and when in the face of thesefactors the crime is brought to light, there is inbuiltassurance that the charge is genuine rather thanfabricated...." Since the appellant has made a threat and criminal intimidation, theP.W.1 was put into fear by way of criminal intimidation by theteacher. So she has not revealed the matter even to her mother.P.W.2 came to know about the incident only at the time of missingmenstruation period by P.W.1. Immediately, as a dutiful mother, shetaken her daughter to hospital and verify the same. Then only shegone to the police station and lodged a complaint. So theexplanation given by P.W.1 and P.W.2 is convincing. In suchcircumstances, the decisions relied upon by the learned counsel forthe appellant are not applicable to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/ (v) Further, the learned counsel for the appellant relied uponthe following decision of apex Court reported in 2002(3) Crimes 204(SC) (State of Andhra Pradesh vs. Jalapatghi Subbarayudu & Others)in that it was held that an incident of rape had taken place onintervening night of 4th and 5th July, 1989 and report was lodgedwith police on 10th July 1989. Explanation for delay was thathusband of prosecutrix was away from village. It is no doubt truethat in these matters, the delay by itself cannot be fatal to thecase of the prosecution, but that will depend upon other facts andcircumstances of the case. Considering the decision along with thefacts of the present case, the delay has been properly explained. (vi) 2003 SCC (Cri) 1484( Sudhansu Sekhar Sahoo vs. State ofOrissa), in that it was held that delay in lodging FIR, on facts,also considered to be of some importance. Serious doubt about thegenuineness of the prosecution case. Considering the broadprobabilities of the case, held, the appellant was entitled to thebenefit of doubt. Delay in lodging FIR in rape case, in view of thesocial conditions prevalent in India, there may be delay in givingthe first information of such an offence to the police. Though thedelay as such is not serious, but while considering the broadprobabilities of the case, the delay in giving information to policein the instant case, considered to be of some importance. In theabove case, the conduct of the parties played vital role. The victimwas aged about 29 years and working as a lady supervisor in theIntegrated Child Development Project. The appellant was a DistrictMalaria Officer. During the relevant time, the victim was staying ina rental house owned by the local postmaster. On the date ofoccurrence, P.W.2, a female Anganwadi worker, accompanied with herfemale helper, came to the victim, since she was required by theDistrict Social Welfare Officer. At about 7.00 p.m., all of themleft in the jeep and when they reached the town, which was away fromthe residence of victim, the helper and P.W.2 alighted from the jeepand though the appellant wanted to alight, but she was preventedfrom doing so and the appellant got into the driver seat of the jeepand drove away the vehicle speedily. The jeep driven by theappellant along with the victim, the Malaria Inspector and thedriver reached the house of the appellant at about 11.30 p.m. Thehouse of the appellant was about 120 k.m. away from the place ofresidence of the victim. The conduct of the party has considered bythe apex Court and not accepted the story put forth by the victim.But here, in the case on hand, the victim was a student, aged 14years at the time of the incident. The appellant/accused is ateacher. In such circumstances, I am of the view that the abovecitation is not applicable to the facts of the present case. (vii) The learned Government Advocate (Crl.side) relied uponthe decision of apex Court reported in CDJ 2010 SC 627 (Satpal Singh https://hcservices.ecourts.gov.in/hcservices/ v. State of Haryana) in that it was held that the delay in lodgingirrelevant if the prosecution successfully establishes that it wasnot a consent case. Considering the citation, I am of the view thatthe delay has been properly explained by the prosecution by way ofexamining the witnesses P.W.1 and P.W.2, so the delay is not fatalto the case of the prosecution. So I am of the view that since thedelay in preferring the complaint has been clearly explained by theevidence of P.W.1 and P.W.2, it is not fatal to the case of theprosecution. 16.Now this Court has to decide that as to whether the falsecase has been foisted against the appellant. It is true that on theside of the defence, D.W.1 to D.W.3 were examined and Exs.D1 and D2were marked. D.W.1, who is none other than the wife of theappellant, deposed that brother of P.W.1 had misbehaved with her, sothe accused questioned him. Hence, a false case has been foistedagainst the accused. D.W.3-Saravanan, was a Panchayat Union Memberexamined to prove that the panchayat has been convened in respect ofthe misbehaviour committed by the brother of P.W.1. To prove thesame, he produced Ex.D1-a signature of Ravikumar, who is brother ofP.W.1 and Ex.D2-Muchalika. While considering these document Ex.D2,it is clearly proved that to escape from the clutches of law, theappellant herein has examined his wife as D.W.1 to depose that thebrother of P.W.1 had misbehaved with her. In Ex.D1, signature ofRavikumar, who is the brother of P.W.1, was found, but both theExs.D1 and D2 are only Xerox copies. Furthermore, while perusing thedocuments, it came into existence only on 29.03.2002. In that it wasspecifically mentioned that Ravikumar had foisted a false caseagainst the teacher/appellant and he had taken an undertaking thathereafter, he would not make such a false allegation againstanybody. But in that document, the Panchayat has never mentionedthat Ravikumar misbehaved with the wife of the accused. At thisjuncture, it is appropriate to consider the evidence of D.W.3-Saravanan. In his evidence, he stated that as Ravikumar approachedhim and gave a complaint against the accused to convene thepanchayat, he made an enquiry. But the averment in Ex.D2 has beenfalsified the evidence of D.W.3 and D.W.1. So the evidence of D.W.3is no way helpful to the case of the appellant and Ex.D2 is createdonly on 29.03.2002 for the purpose of this case to escape from theclutches of law (i.e.) after the complaint preferred by P.W.2. Sothe defence of the appellant that the said Ravikumar engaged hissister P.W.1 to give frivolous complaint against the appellant isnot merit acceptance. So the enmity proposed by the appellant is notproved. 17.At this juncture, it is appropriate to consider the decisionof apex Court relied upon by the learned counsel for the appellantreported in AIR 2004 SC 266 (State (Andaman and Nicobar Admn.,) v. https://hcservices.ecourts.gov.in/hcservices/ Shyam Raj), in that it was held that there was an enmity betweenvictims father and accused because of the complaint filed by accusedagainst victims father. But, in the citation, it was held that asalready discussed in earlier paragraphs. So the above citation isnot applicable to the facts of the present case. There is no iota ofevidence produced before the Court to show that brother of P.W.1-victim girl was misbehaved with the wife of the accused. So thestory put forth by the appellant that Ravikumar, brother of P.W.1misbehaved with his wife/D.W.1 and to escape from the clutches oflaw, he foisted the case against the appellant with help of hissister P.W.1. does not merit acceptance. 18.Now it is appropriate to consider the medical evidence. Asper the evidence of P.W.9-Dr.Indra, she did medical termination ofpregnancy of P.W.1-victim girl and the growth of the foetus was 12to 14 weeks. The learned counsel for the appellant submitted that asper the evidence of P.W.9, the victim girl ought to have sexualintercourse only in the first or second week of December 2001. Thenonly there is a possibility for conceiving foetus aged about 12 to14 weeks. So as per the evidence of P.W.9, the abortion has beendone on 27.03.2002 at 1.30 p.m. and 12 to 14 weeks foetus (i.e.)three months foetus was discharged. Since the health of P.W.1 wasgood, she was discharged from the hospital on 28.03.2002. On29.03.2002, the complaint has been preferred by P.W.2. Then onlyEx.D2-Muchalika came into existence. 19.At this juncture, it is appropriate to consider the evidenceof P.W.12-Dr.Thilagam, who treated P.W.1 and gave accident registerEx.P7 and certified that she was subjected to sexual intercourse.Her evidence has proved that occurrence may be taken place on26.12.2001. In her cross-examination, she stated as follows:fUKl;il rpidigapy; ,Ue;J btspna te;j ehspy; ,Ue;JfU jhpf;fhj epiyapy; 14 ehl;fs; fHpj;J fz;og;ghf khjtplha;Vw;gLk;. rhjhuzkhf 28 ehl;fSf;F xU Kiw khjtplha; Vw;gLk;bgz;fSf;F khjtplha; Vw;gl;L 9 ehs; Kjy; 18 ehs; tiu cly;cwt[ bfhz;lhy; fU jhpf;f tha;g;g[ cz;L. khjtplha; Vw;gl;lehspy; ,Ue;J 14 ehs; fHpj;J fU Kl;il rpid igapy; ,Ue;JbtspBa tUk;. xt;bthU bgz;Zf;Fk; 28 ehl;fSf;F xU Kiwkhj tplha; Vw;gLk; vd;W fl;lhak; ,y;iy. khjtplha; Vw;gl;L 14ehl;fs; fHpj;J jhd; rpid Kl;il fUigapy; nUe;J btspna tUk;vd;why; rhpay;y. khjtplha; Vw;gl;ljpy; ,Ue;J 5 ehl;fSf;F gpd;vg;nghJ ntz;Lk; vd;whYk; fUKl;il cUthfp rpidigapy; ,Ue;J btspna tUk;. fUtpy; cs;s FHe;ijapd; taijmjd; msit itj;J jhd; eph;zak; bra;nthk;. filrpahf https://hcservices.ecourts.gov.in/hcservices/ khjtplha; Vw;gl;l ehspy; ,Ue;J FHe;ij gpwf;f Toa njjpiacj;njrpg;nghk;. xU fUtpy; cs;s FHe;ijapd; taij ve;jehspy; ,Ue;Jk; eph;zak; bra;;a KoahJ. FHe;ijapd; msititj;Jjhd; eph;zak; bra;nthk;. ehd; brhy;tJ jtW vd;why;rhpay;y. tp$pyh cly; cwt[ bfhz;ltuh vd;W ehd; ghpnrhjidbra;njd;. ehd; ghpnrhjid bra;j tp$pyh mof;fo cly; cwt[ bfhz;ltuhf mUf;f TLk;."" So considering her evidence, it is medically proved that the foetusmay be formed on 26.12.2001, on the date of commission of offence.Moreover, there is a possibility for pregnancy by having sexualintercourse once. So the arguments advanced by the learned counselfor the appellant that the victim girl must have sexual intercoursein first and second week of December 2001, does not meritacceptance. 20.The learned counsel for the appellant relied upon thedecision of apex Court reported in 2007(4) Crimes 1 (SC) (Radhu v.State of Madhya Pradesh), in that it was held that the medicalevidence being insufficient to establish rape and evidence of theprosecutrix being not trustworthy. So the above citation is notapplicable to the facts of the present case, because it was heldthat the evidence of victim is not trustworthy. Further, the learnedcounsel submitted that as per the evidence of P.W.12-Dr.Thilagam,there is no injury sustained by P.W.1 during the alleged occurrence.But, P.W.12 doctor examined her after three months. Admittedly,the occurrence was taken place on 26.12.2001 and 02.01.2002. But,pregnancy of P.W.1 was medically terminated on 27.03.2002. Then onlyP.W.12-Dr.Thilagam treated her and opined that she has not sustainedany injury on her private parts. Since the evidence of P.W.1 isnatural, cogent and trustworthy. In such circumstances, the abovecitation is not applicable to the facts of the present case. 21.Further, the learned counsel for the appellant argued thatit is impossible for the commission of offence, since the schoolopened only at 9.00 a.m. everyday. So there is no chance for thestudents entered into the school and classrooms at 8.00 or 8.30 a.m.As per the evidence of P.W.8-Headmaster, classrooms were arrangedfor exams before 25.12.2001. Hence, there is no chance for thestudents to enter the school on 26.12.2001 at 8.00 a.m. for cleaningclassrooms. 22.Now it is appropriate to consider that to whom the schoolgate key was entrusted. There are three different versions inrespect of who is having gate key of the school. P.W.1-victim girl,in her cross-examination, stated that only one gate to enter into https://hcservices.ecourts.gov.in/hcservices/ the school. After the school was closed, the gate has been lockedand key was handed over to Sasikala teacher. P.W.8, in her cross-examination, stated that there is only one way to enter into theschool. After the school was closed, school key and outer gate keyare kept under the custody of one Subramania pillai, as per thedirection of school management. In his cross-examination, he statedas follows: " .. gs;sp rhtpa[k; btsp nfl;L rhtpa[k; gs;sp Koe;j gpwFRg;ukzpagps;is tPl;oy; vA;fs; gs;sp eph;thfj;jpdh; bfhLj;J itf;f brhd;djhy;bfhLj;J itj;JtpLnthk;". Per contra, P.W.13-investigating officer,stated that the school gate key was in the custody of one Malarkodi,who is a noon meal organiser. So there are three different versionsin respect of custody school gate key, i.e. key was handed over toSasikala teacher, Subramania pillai and Malarkodi. In suchcircumstances, the defence has not been proved that whom isresponsible for school key and gate key. At this juncture, it isappropriate on the part of this Court to take judicial notice thatduring the time of examination, the school gate will be openedearlier. So it is not an unnatural that the school gate andclassrooms are opened at 8.00 to 8.30 a.m. during the time ofexamination. On the date of occurrence, half yearly exams have beenconducted. So the argument advanced by the learned counsel for theappellant that school will open only at 9.00 a.m., does not meritacceptance. 23.Furthermore, the learned counsel for the appellant arguedthat as per the evidence of P.W.1, there was a bamboo plait inbetween the classrooms of 7th and 8th standard and the same wereremoved on the date of exams. So there is no possibility of rapingP.W.1 at VIII B classroom as stated by her. But, P.W.1, in hercross-examination, stated that she was written her examination onthe common hall of IV standard classroom, since the bamboo plaitswere removed. Further, she stated in her cross-examination that VIIIB classroom has been facing west side and there is a well in 10 feetaway from VIII B classroom and adjacent to VIII B, the office roomis situated there. So as per the evidence of P.W.1 as well as Ex.P3observation mahazar and Ex.P9 rough sketch, they are clearly provedthat VII A, VIII A, B and office room are situated consecutivelyunder one roof and there was a wall in between the same. So theargument advanced by the learned counsel for the appellant thatthere was a bamboo plaits in between eighth standard classrooms andthe same were removed and it was treated as common hall, whereexamination has been conducted, does not merit acceptance. 24.Further, the learned counsel for the appellant argued thatas per the evidence of P.W.8-Headmaster, who deposed that on24.12.2001 itself, he issued a circular and all the classrooms werecleaned and kept ready for conducting examinations. So there is no https://hcservices.ecourts.gov.in/hcservices/ necessity for inviting the students to come on 26.12.2001 morning by8.00 a.m. to clean the classrooms. But, the circular was notproduced before the Court. Therefore, considering the evidence ofP.W.1, there is no motive for her to implicate the appellant/teacherin the occurrence. In such circumstances, the argument advanced bythe learned appellant counsel that there was no possibility forcommission of offence in VIII B Section does not merit acceptance. 25. The learned counsel for the appellant further submittedthat as per the evidence of P.W.1, she was threatened by theappellant with knife point, but the knife has not been seized, it isfatal to the case of the prosecution. To substantiate the same, herelied upon the decision of apex Court reported in 2002 SCC (cri)1149 (State of Rajasthan v. Kishanlal), in this case, the victimlady is major and she is married and hence, the conduct of the partyhas been considered. It was held that the probability of the accusedhaving had sexual intercourse with the prosecutrix with her consentcannot be ruled out. Further, the learned counsel for the appellantrelied upon the decision of apex Court reported in 2001 (3) Crimes393 (SC) (Surjan and others v. State of M.P.), in that, it was heldthat the evidence of solitary witness should inspire confidence inthe judicial mind, and be of such a nature that the Court must beable to certify that the testimony is wholly reliable. In the abovecitation, the victim lady was married twice and deserted by herhusband. The medical examination report has also not produced beforethe Court. There was a delay of 10 days in lodging complaint. Theprosecutrix did not divulge incident to any body including hermother, who confronted her for coming late in the night of thatincident. Considering the above facts, the apex Court was held thatthe testimony of prosecutrix could not be held wholly reliable tosustain conviction. But, here, P.W.1 was aged about 14 years duringthe relevant time and was hailing from a rustic village andthreatened by the accused and hence, the evidence of P.W.1 isreliable. In such circumstances, I am of the view that the abovecitations are not applicable to the facts of the present case. 26.As stated supra, the motive for giving false case againstthe appellant by P.W.1 has not been proved. There is nocontradiction between the ocular and medical evidence. Delay inpreferring complaint has been properly explained. Even though theevidence of P.W.3 to P.W.6, who are the co-students of P.W.1, havenot supported the case of P.W.1 and turned hostile, it will notfatal to the case of the prosecution. As per the dictum of apexCourt that a single related victim in the Indian setting, refusal toact on the testimony of the victim of sexual assault in the absenceof corroboration as a rule, is adding insult to injury. A girl or awoman in the tradition bound non-permissive society of India wouldbe extremely reluctant even to admit that any incident which is https://hcservices.ecourts.gov.in/hcservices/ likely to reflect on her chastity had ever occurred. She would beconscious of the danger of being ostracised by society and when inthe face of these factors the crime is brought to light, there isinbuilt assurance that the charge is genuine rather than fabricated.27.It is settled law that the victim of sexual assault is nottreated as accomplice and as such, her evidence does not requirecorroboration from any other evidence including the evidence of adoctor. In normal course a victim of sexual assault does not liketo disclose such offence even before her family members much lessbefore public or before the police. The Indian women has tendency toconceal such offence because it involves her prestige as well asprestige of her family. Only in few cases, the victim girl or thefamily members has courage to go before the police station and lodgea case. In the instant case the suggestion given on behalf of thedefence that the victim has falsely implicated the accused does notappeal to reasoning. There was no apparent reason for a student tofalsely implicate the accused, who is a teacher, after scatting herown prestige and honour. A rapist not only violates the victim'sprivacy and personal integrity, but inevitably causes seriouspsychological as well as physical harm in the process. Rape is notmerely a physical assault. It is often destructive of the wholepersonality of the victim. A murderer destroys the physical body ofvictim. A rapist degrades the very soul of the helpless female. TheCourt, therefore, shoulders a great responsibility while trying anaccused on charges of rape. They must deal with such cases withutmost sensitivity. The Courts should examine the broaderprobabilities of a case and not get swayed by minor contradictionsor insignificant discrepancies in the statement of the prosecutrix,which are not of a fatal nature, to throw out and otherwise reliableprosecution case. If evidence of the prosecutrix inspiresconfidence, it must be relied upon without seeking corroboration ofher statement in material particulars. 28.The learned counsel for the appellant submitted that eventhough semen of the appellant/accused has been sent for chemicalexamination by P.W.11-Dr.Adhiyaman, but the result is not yetreceived. Hence, there is no evidence on the side of the prosecutionto prove that the appellant only responsible for the pregnancy ofP.W.1. Admittedly, as per the evidence of P.W.11, the appellant iscapable for performing sexual intercourse. In such circumstances, itis immaterial that as to whether the appellant is responsible forthe pregnancy of P.W.1. So non filing of the semen report is notfatal to the case of the prosecution. Hence, the argument advancedby the learned counsel for the appellant in this aspect, does notmerit acceptance. https://hcservices.ecourts.gov.in/hcservices/

29.Considering the same along with the evidence of P.W.1, I amof the view that the evidence of P.W.1 is natural, cogent andtrustworthy and hence, it is reliable. Hence, the trial Courtconsidered all the aspects in a proper perspective and came to thecorrect conclusion that the appellant is guilty for the offenceunder Sections 376(i) (2 counts) and 506(ii) I.P.C. In respect ofquantum of sentence imposed by the trial Court is concerned, it doesnot warrant any interference. Hence, the criminal appeal isdismissed as devoid of merits. 30.In fine,The Criminal Appeal is dismissed.The conviction and sentence passed by the Assistant Sessions Court are hereby confirmed.Bail bond, if any, executed by the appellant/accused shall standcancelled.The Assistant Sessions Court is directed to secure the custody oftheaccused to undergo the remaining period of sentence. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.kj/ogy To 1.The Assistant Sessions cum Chief Judicial MagistrateNagapattinam. 2. Do thro the Principal Sessions Judge,Nagapattinam3. The Director General of PoliceMylapore, Chennai-44. The District CollectorNagapattinam https://hcservices.ecourts.gov.in/hcservices/

5. The Judicial MagistrateThiruthuraipoondi6. Do thro the Chief Judicial MagistrateNagapattinam7. The SuperintendentCentral Prison, Tiruchirappalli.8.The Inspector of PoliceVedaranyam Police Station,Nagapattinam District. 9.The Public ProsecutorHigh Court, Madras. 10.The Record KeeperCriminal Section, High Court, Madras. 2 ccs to Mrs. Sudha Ramalingam, Advocate, Sr. 42263CRL.A.No. 1345 of 2004 JRG (CO)kk 28/7