BAIL SLIP v. State, rep. byDeputy Superintendentof Police,Virudhachalam

BAIL SLIP The Appellant/Accused was directed to be released on bail by theorder of this Court dated 20/6/03 and madein Crl.MP.4539/03.IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 06.07.2007Coram:-The Hon'ble Mr. Justice R.REGUPATHICriminal Appeal No.744 of 2003Murugan... Appellant(Accused)vs. State, rep. byDeputy Superintendentof Police, Virudhachalam.... Respondent(Complainant)Appeal against the judgment of the Principal Sessions Judge, Cuddalore, passed in S.C. No.79 of 2001, dated 25.04.2003.For Appellant: Mr.C.Prasanna VenkateshFor Respondent: Mr.Hasan Mohamed Jinnah, Govt. Advocate (Crl. Side).J U D G M E N T The appellant/sole accused was tried by the learned PrincipalSessions Judge, Cuddalore, for offences under Sections 341, 354 & 376 IPC.and Section 3(2) (v) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989. He was convicted under Section 376IPC. and sentenced to undergo Rigorous Imprisonment for seven years and topay a fine of Rs.1,000/-, in default, to undergo R.I. for two months. Hewas also found guilty under Sections 341 and 354 IPC., however, noseparate sentence was awarded for those offences. The trial court foundhim not guilty of the offence under Section 3(2) (v) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. https://hcservices.ecourts.gov.in/hcservices/ Aggrieved against the order of conviction and sentence imposed by thetrial court, the present appeal has been preferred.2. Before the trial court, the victim, who is alleged to havesubjected to rape by the accused, was examined as PW-1. The victim is deafand dumb; hence, her evidence was recorded with the help of a Teacherworking in the Government School for Deaf and Dumb, Cuddalore, whointerpreted her gesticulations. It is her evidence that, on 02.06.2000, atabout 5.00 P.M., she was returning from the School for Deaf and Dumb, where she was working and, at that time, the accused intercepted her, caught hold of her tuft, pushed her down on ground, tore her jacket andcommitted rape on her, causing injuries on the right hand, neck andbreasts. It is specifically stated that the accused had bitten the leftbreast and severed the nipple. PWs-2, 7 and 8 reached the scene ofoccurrence on hearing the noise of the victim and found her with bleedinginjuries. The accused, who was seen running away from the occurrenceplace, was apprehended by them and produced before the panchayatdars ofthe village. Thereafter, on 04.06.2000, at 6 P.M., PW-1, accompanied by herhusband PW-6, went to the police station and lodged a complaint. PW-12 SubInspector of Police, on receipt of the complaint, registered a case inCrime No.189 of 2000 under Section 376 IPC and Section 3(2)(v) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. Ex.P-14 is the Printed First Information Report. The Sub Inspectorforwarded copy of the printed F.I.R. to his higher officials. PW-13, the Deputy Superintendent of Police, on receipt of the F.I.R.on 04.06.2000 at 6.30 P.M., commenced the investigation. She went to thescene of occurrence and prepared observation mahazar Ex.P2 and the samewas attested by PW-3 and another. Ex.P-15 is the rough sketch. The DeputySuperintendent of Police seized the cloths of the victim viz., MO-1Petticoat, MO-2 Sari and MO-3 Blouse, under Ex.P-3 Mahazar. She arrestedthe accused on 05.06.2000 at 3 P.M. The cloths of the accused viz., M.O.4lungi and M.O.5 T.Shirt, were seized under mahazar Ex.P.4, attested by PW-4. PW-5 is the Tahsildar, who issued Community Certificate to PW-1 tosubstantiate that she belongs to 'Adi Dravida' Community. PW-9 is the Medical Officer, who examined PW-1. After examinationof the victim on 06.06.2000 at 3.10 P.M., she has given the followingopinion:-" OPINION:-1) No evidence of rape.2) No evidence of spermatozoa wet and stained vaginalsmear.3) Nail Mark in left areola and left nipple. https://hcservices.ecourts.gov.in/hcservices/ 4) No teeth injury on chest, face, nipple and vagina."PW-10 is the Medical Officer, who examined the accused and issuedpotentialitycertificate Ex.P9. PW-11 is the Court Clerk. PW-13, afterexamination of the witnesses and collecting all materials includingforensic and medical opinions, filed final report on 28.08.2000. 3. After examination of the prosecution witnesses and markingexhibits, the accused was questioned under Section 313 Cr.P.C., for which, he pleaded innocence. Learned trial Judge, on considering the oral anddocumentary evidence and upon hearing both sides, convicted and sentencedthe accused as aforementioned, resulting in filing of the present Appealbefore this Court.4. Learned counsel for the appellant submits that the victimbeing deaf and dumb and her evidence before court having been reduced toform through interpretation of the gesticulations made by her, the samehas to be scrutinised by court with due diligence and caution. Accordingto him, a close reading of her evidence would reveal that she wanted toconvey something; however, what she conveyed has been narrated totally ina different way. He points out that in the F.I.R. it is stated thatinjuries have been caused by the accused on her breast, neck, hand, mouthetc. while committing rape, whereas, in evidence before court, it has beenspecifically stated that severe injuries have been caused on breasts tosuch extent that left nipple has been severed. It is also stated that asurgery has been performed on the left breast. Learned counsel submitsthat had such serious injury been caused, resulting in performance ofsurgery, the same would have been noticed by the Medical Officer PW-9,but, she has not at all noticed any such injury/surgery marks. Hespecifically points out to the opinion of the Doctor to the effect thatthere is no evidence of rape. In respect of the nail mark in the leftareola noticed by the Medical Officer, he submits that the Medical Officerherself has explained the same by stating 'nail marks on the left nippleis possible by herself by her own nail'. In such circumstances, it iscontended that the evidence of PW-1 cannot be believed. To substantiatesuch contention, learned counsel has relied on a decision of the supremeCourt reported in 2006 (10) SCC 92 (Sadashiv Ramrao Hadbe vs. State ofMaharashtra and another), wherein, the evidence of the prosecutrix was notsupported by medical evidence/scientific evidence produced; therefore, finding that absence of injuries on the body improbablise the prosecutionversion, conviction was set aside by the Apex Court, giving benefit ofdoubt to the accused. 5. Insofar as the apprehension of the accused while he tried torun away from the scene of occurrence, it is submitted that the saidaspect may be a relevant factor to substantiate his presence at the sceneof occurrence, but, in the absence of positive materials for the https://hcservices.ecourts.gov.in/hcservices/ commission of rape, the appellant cannot be convicted under Section 376IPC. particularly when the offence of rape cannot be substantiated in thelight of medical evidence. Relying on the evidence of PW-1 corroboratedby the testimonies of PWs-2, 7 and 8, at the most, the appellant can beconvicted for outraging the modesty of PW-1, and apart from that, there isno material available against him.6. Per contra, learned Government Advocate submits that thevictim in the instant case is deaf and dumb. The appellant, takingadvantage of her feeble position, pushed her down, caused injuries andcommitted rape, which could be seen from the narration of the victim PW-1.Though the medical evidence does not corroborate her statement as to theinjuries, other relevant aspects viz., the presence of the accused at thescene of occurrence; PWs-2, 7 and 8 finding the victim with bleedinginjuries and torn cloths; and apprehending the accused when he was tryingto run away from the scene place, cannot be lost sight of. In suchcircumstances, the narration given by PW-1 victim coupled with otherrelevant aspects as aforementioned are sufficient to sustain theconviction and sentence imposed by the trial court.7. I have perused the materials available on record andcarefully considered the rival submissions advanced on either side. Nodoubt, the evidence of the prosecutrix is sufficient and conviction couldbe based solely on her evidence. However, in cases of this nature, acareful scrutiny of the evidence is also required to see whether thevictim's evidence is corroborated by medical evidence so as to sustain theconviction and sentence under Section 376 IPC. It could be seen from theevidence of PW-1 that she has given graphic picture about the injuriescaused on her breast, severance of nipple, etc. The occurrence had takenplace on 02.06.2000 and the Medical Officer examined the victim on06.06.2000. At the time when PW-9 examined the victim, none of thoseinjuries, as described the victim, in particular severance of leftnipple/marks of surgery, have been noticed by the Medical Officer. Theonly injury noticed by the Medical Officer is a nailmark in left areolaand left nipple. Further, No injury was found at the neck, fingers orother parts of the body including breast. Had a surgery been performed asa result of severance of nipple, the same would not have been leftunnoticed by the Medical Officer. To test the veracity and truthfulnessin the statement of the victim, medical evidence plays a vital role and, in the instant case, if medical evidence is relied on, the evidence of thevictim may have to be disbelieved insofar as the veracity of theprosecution case is concerned. It is the positive statement of theMedical Officer that there is no evidence of rape. In such circumstances,I am of the considered view that the appellant cannot be convicted for theoffence of rape. Even though the offence of rape is not substantiated, onthe basis of other materials viz., narration of PW-1, corroborated by theevidence of PWs-2, 7 and 8, one can https://hcservices.ecourts.gov.in/hcservices/ safely come to a conclusion that, in the occurrence, the appellantoutraged the modesty of the victim. Cloths of the victim have beenrecovered and marked as MOs-1 to 3. The act of violence on the victimcould be presumed by looking at the torn cloths. Thus, even though thereis no positive evidence for commission of rape, I am of the consideredview that the victim has been subjected to sexual harrassment and that theappellant has outraged the modesty of PW-1. In such circumstances, whileacquitting the appellant/accused of the offence under Section 376 IPC.,the conviction given by the trial court for offences punishable underSections 341 and 354 IPC is confirmed. 8. Learned counsel for the appellant submits that pendinginvestigation and trial, the appellant was in judicial custody for 117days. I am of the considered view that the period of imprisonmentundergone by the appellant could be treated as the period of sentenceunder Sections 341 and 354 IPC. with a fine of Rs.1,000/- which hasalready been paid. 9. With the above modification, the appeal is allowed in part. JI.Sd/-Asst. Registrar/true copy/ Sub Asst. RegistrarTo: 1. The Principal Sessions Judge, Cuddalore.2. The Judicial Magistrate No.I,Vridhachalam.3. -do- Thro' The Chief Judicial Magistrate, Cuddalore.4. The Superintendent, Central Prison, Vellore.5. The Public Prosecutor, High Court, Madras.6. The Deputy Superintendent of Police, Vridhachalam.7. The Director General of Police, Chennai.8.The District Collector, Cuddalore.+1 cc to Mr.C.Prasanna Venkatesh, Advocate Sr.No.41057.BK(CO)dcp/26.7.07C.A. No.744 of 2003.