Bail SlipThe v. State rep. byInspector of Police,Maraimalai Nagar Police Station,Kancheepuram District

Bail SlipThe Appellant/Accused namely Punniakoti was directed to bereleased on bail as per order of this court dated 9.4.2003 and madein Crl.MP.No.3137/2003 in Crl.A.No.290/03 on the file of thisCourt.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9.8.2007CORAM:THE HON'BLE MR. JUSTICE R. REGUPATHICRL.A.No.290 of 2003Punniakoti..Appellant/Accusedvs.State rep. byInspector of Police,Maraimalai Nagar Police Station,Kancheepuram District.Respondent/ComplainantCr.No.167/1997Appeal filed under Section 374 Cr.P.C. against the convictionand sentence passed by the Additional Assistant Sessions Judge,Chingleput in his judgment made in S.C.No.132 of 1998 dated28.1.2003. For Appellant:Mr. S. Shanmuga VelayuthamSenior Counselfor Mr. N. ShankarFor Respondent:Mr. Hasan Mohamed JinnahGovt. Advocate (Crl. Side)J U D G M E N TThe appellant/sole accused in the case was tried in S.C.No.132of 1998 on the file of the Additional Assistant Sessions Judge,Chengleput for the offences under Sections 366 and 376(i) I.P.C.and was convicted and sentenced to undergo rigorous imprisonmentfor 7 years and 10 years respectively and a fine of Rs.500/-, indefault to undergo simple imprisonment for two months, for eachoffence, by judgment dated 28.1.2003. Both the sentences wereordered to run concurrently. Aggrieved against the conviction andsentence, the present appeal has been preferred by the accused. https://hcservices.ecourts.gov.in/hcservices/

2.The charges levelled against the accused are that on25.2.1997 at about 10.00 a.m. he has induced one Vimala Mary-thevictim girl aged about 12 years, who is a mentally retarded andtaken her to his residence, saying that the dog of the victim girlis with him, and thereafter, he bolted the doors from inside andcommitted rape upon her. 3.The prosecution examined P.Ws.1 to 13 and marked ExhibitsP.1 to P.18 & M.Os.1 to 5 to substantiate its case. When theaccused was questioned under Section 313 Cr.P.C., he has denied theoffence and on his side neither oral nor documentary materials weremarked. 4.The learned trial Judge, assessing the oral anddocumentary evidence and on perusal of the materials producedbefore the Court, came to the conclusion that the charges framedagainst the accused are proved and convicted and sentenced him asaforementioned. 5.The case of the prosecution in brief:(a)P.Ws.1 & 2 are the father and mother of the victim girl,P.W.3. On 25.2.1997 at about 9.00 p.m., P.W.2 sent P.W.3 to bringmilk from a nearby shop and since she did not return back evenafter 10 minutes, P.W.2 went in search of her and after gatheringinformation from the neighbours that the girl has been taken by theaccused, she reached the residence of the accused, where she foundthe door locked from inside and when she knocked the door, therewas no response and heard only the T.V. noise. Therefore, shesought the assistance of neighbours viz., P.Ws.4, 6 to 8 to openthe door and at the time when the accused opened the door, shefound P.W.3 naked and slovenly on the floor and thereafter she wastaken to their residence. (b)After the arrival of P.W.1, P.W.2 narrated the incidentand with the help of P.W.5, who is a neighbour, P.W.1 lodged acomplaint-Ex.P.1 to P.W.12, the Sub Inspector of Police, on thesame day at about 8.00 p.m., who registered a case inCr.No.166/1997 for the offence punishable under Section 376 I.P.C.and the printed F.I.R. is Ex.P.11.(c)P.W.13, the Inspector of Police took over theinvestigation of the case, reached the scene of crime at 9.00 p.m.,and in the presence of witnesses, prepared observation mahazar-Ex.P.12, rough sketch-Ex.P.13 and recovered petti coat-M.O.1,jacket-M.O.2 of P.W.3 & M.O.3- half sleeve shirt under the cover ofrecovery mahazar Ex.P.14 at 10.00 p.m. and examined P.Ws.1 to 8 andrecorded their statements. He has also arrested the accused on thesame day and recovered his Lungi and an underwear-M.Os.4 & 5 https://hcservices.ecourts.gov.in/hcservices/ respectively under Mahazar-Ex.P.15 and remanded him to judicialcustody on 26.2.1997. (d)On requisition-Ex.P.16, the learned Magistrate ordered tosend both the garments of the victim girl and the accused forexamination and the Chemical Examination Report is Ex.P.10. Thevictim girl has also been subjected to psychiatric test by theProfessor of Psychiatry, Chengalpattu Medical College and Hospital,Chengalpattu and Ex.P.6 is the psychiatric test report. P.W.13 alsosent the victim and the accused for medical examination and theywere examined by P.Ws.9 & 10 respectively. P.W.9 on examination ofP.W.3 issued a certificate-Ex.P.2, wherein it has been stated asfollows:"Patient IQ less. No external injury or abrasions. PA: Ut not palpulu, No other mass or tenderness. PV: Vagina admits two fingers easily painless.CX Ut A.U.N.S. FX free. No discharge PVS/E : CX normal. May not have been raped."P.W.10 on examination of the accused issued a certificate forpotency-Ex.P.4 and Age Certificate-Ex.P5. In Ex.P.4, the doctor hasopined that "there is nothing to suggest that the individual isimpotent". Both P.Ws.9 and 10 have also given evidence to theeffect that they have examined the victim and the accusedrespectively.6.The learned Senior Counsel for the appellant submitsthat admittedly P.W.3 is a mentally retarded girl. Insofar as thecommission of the offence of rape is concerned, only the evidenceof P.W.3 is available and on perusal of the same, the offence ofrape could not be substantiated. It has been stated by her that theaccused has locked the door after taking her to his residence andfallen on her. When the victim girl shouted, the accused threatenedher and fallen on her. It was further stated by P.W.3 that shecould not threw the accused away and at that time her mother cameand beat the accused. Thereafter, she was taken to her residence. Aperusal of the evidence of P.W.2 would only show that theappellant was found in the company of the victim girl within hisresidence. The evidence of P.W.1, the father and P.W.5 theneighbour would only show that a report has been given in thisregard. P.Ws.4, 6 to 8-neighbours, who are alleged to have reachedthe residence at the time when the appellant opened the door, didnot support the case of the prosecution and therefore, they havebeen treated as hostile. Now the only corroborative evidenceavailable for the prosecution to improve their case is the evidenceof P.W.9, the doctor, who examined the victim girl. But even shehas stated in Ex.P.2- the accident register that the victim girlmay not have been raped. She has also did not notice any externalinjuries on the private parts as well as on the body of the victim.Therefore, it is unsafe to convict the accused for the offence of https://hcservices.ecourts.gov.in/hcservices/ rape on the evidence of the victim girl unless it is corroboratedby some independent evidence confirming in material particulars.Under such circumstances, the fact remains that the offence of rapehas not been substantiated. However, relying on the evidence of thevictim girl and P.W.2, if at all the accused could be dealt withunder Sections 366 and 354 I.P.C. and not under Section 376(i)I.P.C.7.Per Contra, the learned Government Advocate submits thatin a case of rape the solitary evidence of the victim girl alone issufficient and requires no corroboration. He further submits thatin Ex.P.1, it has been specifically stated that P.W.2 found thevictim inside the residence of the accused slovenly at the timewhen the accused opened the door. Even in the evidence given byP.W.3, she has stated that the accused took her to his residenceand committed rape. Though the medical evidence does notcorroborate to this effect, the fact remains that the occurrencehad taken place in the manner put forth by the prosecution andunder such circumstances both the offences under Sections 366 and376(i) I.P.C. are made out.8.I have perused the materials available on record andheard the submissions of the learned counsel for the appellant andthe learned Government Advocate.9.It is an unfortunate case where a mentally retarded minorgirl has been taken by the accused, who is a married man and fatherof two children with bad intention. Knowing fully well that thevictim is a mentally retarded, the accused has kidnapped her to hisresidence. On a perusal of the evidence of P.Ws.2 & 3, it appearsthat the accused has committed an act of outraging the modesty ofthe child. On a careful scrutiny of their evidence, the factremains that the victim girl has been taken to the residence of theaccused and though the offence of commission of rape has not beenmade out, the modesty of the girl has been outraged by the accused.In a case of rape, apart from the evidence of the victim, themedical evidence also occupies a prime position. P.W.9 who is aMedical Officer on examining P.W.3 on 27.2.1997, i.e. two daysafter the occurrence, has given positive opinion that there was noexternal injuries on the body of the victim girl and further shehas opined that the victim has not been subjected to rape. Thoughthe evidence of P.W.3 can be taken as a sole material forconvicting the accused, the opinion given by the Professor ofPsychiatry in his report Ex.P.6 cannot be easily brushed aside,where it has been stated as follows:"Vimala Mary D/o. Antony aged 12 years was assessedin the Psychiatric out-patient Department ofChengalpattu Medical College Hospital from 28.2.1997to 11.3.1997. https://hcservices.ecourts.gov.in/hcservices/ Information obtained from the parent of Vimala MaryHer birth and developmental milestones were normaltill the age of 6 years. She was doing firstStandard when she developed Tuberculous. Meningitisand became dull and could not continue her studies.She also developed weakness of the Right Side andbecame hyperactive. She also developed involuntarymovements of the limbs on the Right Side.Examination of Vimala MaryShe is fairly clean ambulant, alert and hyperactive.She is co-operative for the interview. Her talk isrelevant and coherent to simple questions. She isoriented to place and persons. Her attention can bearoused and sustained with difficulty. Her memoryfor recent and remote events is fair. Her abstractthinking is impaired. Her fund of information andintelligence is below average. She has diminishedimpulse control. Her judgment and insight areimpaired.On psychological testing, her intelligence quotientis 44.Based on the above, I am of the opinion that VimalaMary has moderate mental retardation with rightsided hemiparesis with hyperkinetic behaviour as aresult of Tuberculous Meningitis and she is able tonarrate the alleged rape incident."10.The occurrence has taken place on 25.2.1997 and thevictim girl was examined in Court on 13.12.2000. Admittedly, P.W.3is mentally retarded girl. The evidence given by the girl of such amental caliber, before the Court, nearly 3 ½ years after theoccurrence has to be carefully scrutinised and conviction cannotbe based solely upon such evidence. But on a reading of theevidence of P.W.9 as well as the opinion of the Psychiatrist, I amof the considered opinion that the offence of rape has not beenmade out. However the victim was found within the residence of theaccused slovenly and was found nued. Though the personal apparelsof the victim and the accused were sent for chemical analysis, anopinion has been received in Ex.P.10 to the effect that neitherblood nor semen was detected on the material objects viz., M.Os.1,2, 4 & 5. Therefore, I am of the considered opinion that theoffence under Section 376(i) I.P.C. has not been made out and theaccused is acquitted of the said charge, setting aside theconviction and sentence. https://hcservices.ecourts.gov.in/hcservices/

11.The accused knowing fully well that P.W.3 is a mentallyretarded girl induced her dishonestly and taken her to hisresidence. Therefore, I am of the considered opinion that theoffence under Section 366 I.P.C. is made out. Though the appellantis acquitted for the offence punishable under Section 376(i)I.P.C., since the accused removed the dress of the victim and madeher nued, further committed certain acts which would amount tooutraging her modesty, I am of the considered view that the aboveact would attract the offence punishable under Section 354 I.P.C.and therefore, he is guilty of the said offence.12.While coming to the question of sentence, insofar asSection 366 I.P.C. is concerned, the learned Senior Advocate forthe appellant submits that the appellant was in judicial custodyduring investigation and pending appeal for 116 days and therefore,the sentence could be reduced to the extent of the period which hehas already undergone. In view of the facts and circumstances ofthe case, on instructions, the learned Senior Counsel alsosubmitted that the appellant is willing to pay Rs.50,000/- by wayof compensation to the victim and to ascertain whether the victimfamily is willing to accept the compensation, the case has beenadjourned today and both the appellant as well as P.W.2-the motherof the victim girl were present in the Court, who expressed theirwillingness for payment of compensation and Rs.50,000/- has beenhanded over to the mother of the victim girl. Under the abovecircumstances, the sentence of 7 years R.I. imposed for the offenceunder Sections 366 I.P.C. is concerned, it is modified to theperiod already undergone and insofar as the offence under Section354 I.P.C. is concerned, no separate sentence is awarded, in viewof the compensation made. For the foregoing reasons, the accused is acquitted of thecharge under Section 376(i) I.P.C. and the appeal is allowed inpart with the above modification in conviction and sentence. kvSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Addl. Asst. Sessions Judge,Chengalput.2. Do Thro' The Prl Sessions Judge, Chegalput.3. The Additional District Sessions Judge, Fast Track Court,Kancheepuram.4. The Superintendent, Central Prison, Cuddalore.5. The Public Prosecutor, High Court, Madras.6.The Inspector of Police, Maraimalai Nagar Police Station,Kancheepuram District.+ 1 cc to Mr. Shankar, Government Advocate SR No. 49838MDR(CO)SR/23.8.2007Crl.A.No.290 of 2003