Silvester v. The Inspector of Police,V-6 Kolathoor Police Station,Kolathoor, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 17.07.2007Coram:-The Hon'ble Mr. Justice R.REGUPATHICriminal Appeal No.805 of 2003Silvester... Appellant/Accused.vs.The Inspector of Police,V-6 Kolathoor Police Station,Kolathoor, Chennai.... Respondent/Complainant.Appeal filed under Section 374 CPC against the judgment of the SessionsJudge, Magalir Neethimandram at Chennai, dated 06.02.2003, passed in S.C.No.168 of 2002.For Appellant: Mr.P.SelvarajFor Respondent: Mr.Hasan Mohamed Jinnah,Govt. Advocate (Crl. Side)J U D G M E N TThe appellant/sole accused in this case was convicted by thelearned Sessions Judge, Magalir Neethimandram at Chennai, for the offencepunishable under Section 376 read with Section 511 IPC and sentenced toundergo rigorous imprisonment for a period of three years and to pay afine of Rs.2,000/-, in default, to undergo simple imprisonment for aperiod of three months. Aggrieved by the same, the present appeal hasbeen field before this court.2. The case of the prosecution is that, on 17.09.2001 at 1 P.M.,PW-2/victim girl, aged about 8, was returning from school and at thattime, the accused, by stating that she was called by her grandmother, tookher to his house and after removing her undergarment, forcibly committedrape on her. Before trial court, the prosecution, in order tosubstantiate its case, examined PWs-1 to 8, marked Exs. P1 to P8 andproduced MOs.1 to 4.3. PW-1 is the mother of the victim girl. It is her evidence thaton 17.09.2001, she saw her daughter returning from the school weeping andfound her dress stained with blood. On enquiry, complaining pain in theprivate part, PW-2 told that the accused, at the time when she was https://hcservices.ecourts.gov.in/hcservices/ returning from school, took her to his residence and after removing hisundergarment and that of her, committed rape. Immediately, PW-1accompanied by PW-2 went to the police station and gave a complaint underEx.P-1 to PW-8, the Inspector of police. PW-2 is the victim girl. She has stated that, when she wasreturning from school, the accused took her to his residence by statingthat she is called by her grand mother and, after removing herundergarment and that of the accused, he pressed his penis into herprivate part. PW-3 is the mahazar witness, who attested the statement given bythe accused at the time of his arrest on 20.09.2001, and the admissibleportion of the said statement is Ex.P-2. In the presence of PW-3, theInspector seized MOs-1 and 2, half pant and undergarment, from the accused.PW-4 is a neighbour, who has stated that PW-1 was enquiring PW-2on her return from school as to why she was weeping, for which, she toldthat the accused committed rape on her. He has also accompanied PW-1 tothe Police Station.PW-5 is the Medical Officer, who examined the victim on the sameday at 4 P.M. and stated that she could not find any injury on the body ofPW-2 including private part. She has further stated that no mark ofviolence could be seen on the body of the victim. Ex.P-4 is the AccidentRegister and Ex.P5 is the medical report given by her.PW-6 is the Medical Officer, who examined the accused on22.09.2001. He has given certificate regarding the virility of theaccused. PW-7 is the Forensic Expert, who has issued Ex.P7 Report,wherein, as regards item No.3-half pant, it is stated 'a torn faded brownsilken shorts on which were dark brown stains'. In the 'Note', it ismentioned 'Serology report will be sent separately'. PW-8 is the Inspector of Police. On 17.09.2001 at 2.30 P.M., hereceived a complaint from PW-1 accompanied by PW-2, and registered CrimeNo.1179 of 2001 for an offence punishable under Section 376 IPC. Heenquired the victim and seized MO-3 frock and MO-4 undergarment from herunder Form-95. He sent the victim to K.M.C. Hospital through a Constablewith a Memo for treatment and examination. He Prepared observationmahazar and examined other witnesses. On 20.09.2001, at 10 A.M., hearrested the accused and recorded a statement from him. At that time, theaccused produced half-pant and undergarment in the presence of witnessesand the Inspector seized the same. He enquired the Medical Officers, whoexamined the victim as well as the witnesses. He forwarded the materialobjects for getting opinion from the forensic experts. On conclusion ofthe investigation, final report was filed by him for an offence undersection 376 IPC. 4. The accused was questioned under Section 313 Cr.P.C. withreference to the incriminating materials available against him, for which,he pleaded innocence. Neither oral nor documentary evidence was adducedon the side of the appellant/accused. The learned trial Judge, perusingthe materials and considering the arguments advanced on either side,convicted and sentenced the accused as aforementioned. https://hcservices.ecourts.gov.in/hcservices/

5. Learned counsel for the appellant submits that the evidence ofPW-1/mother of the victim to the effect that she noticed swelling on theprivate part and also blood oozing therefrom has not been corroborated bythe Medical Officer PW-5. He points out that PW-5 did not notice anyswelling on the private part or blood oozing therefrom; and further, shehas given a positive opinion that the victim was not subjected to forcibleintercourse/rape. According to him, the conclusion of the trial court thatthe accused made an attempt to commit rape is farfetched. It is furthersubmitted that even accepting the evidence of PWs-1 to 4, it only appearsthat the accused took PW-2 to his residence and made an attempt tooutrage her modesty; that being so, in the absence of positive materialsto come to a definite conclusion that there was an attempt to commit rape,at the most, the appellant could be convicted under Section 354 IPC.Pointing out that the appellant was arrested pending investigation on20.07.2001; enlarged on bail on 08.11.2001; after conviction by the trialcourt, was sent to judicial custody on 06.02.2003; and was in confinementuntil this Court enlarged him on bail on 28.06.2003; thus, all puttogether, he was in custody for 254 days, ie., 8 ½ months, learned counselpleads that the period of imprisonment already undergone by the appellantmay be taken into consideration and leniency may be shown.6. Per contra, learned Government Advocate submits that in a caseof rape and attempt to commit rape, evidence of the victim assumes greatimportance. In the instant case, while deposing before Court, the victim,who was aged 8, has given a graphic picture about the way in which shewas subjected to violence. She also narrated the incident to her mother,who, without any lapse of time, intimated the same to the police. Thelower court, after considering various aspects of the case, has arrived ata just conclusion; hence, the the order passed by it may not be disturbed. 7. I have perused the materials available on record andconsidered the submissions advanced by both sides. No doubt, in a case ofrape or attempt to rape, the evidence of the victim assumes greatimportance. At the same time, it is the duty of the court to see that thesame is corroborated by medical evidence so as to base conviction againstthe accused under Section 376 IPC. From the evidence of PWs-1 to 4, thoughit appears that the victim has been taken by the appellant to hisresidence and thereafter subjected to rape, the same is not corroboratedby medical evidence. On a careful perusal of the medical evidence, thisCourt is unable to come to the conclusion that the appellant attempted tocommit rape on the victim. It is the positive evidence of the mother ofthe victim that she noticed swelling on the private part of PW2 and bloodoozing therefrom. She noticed the same between 12.30 and 1 P.M. on theoccurrence day. The Medical Officer also examined the victim withoutfurther lapse of time on the same day. By stating that she could not findany external injury and bleeding from the private part of PW-2, she hasopined that the victim was not subjected to violence. The MedicalOfficer PW-6, who examined the appellant, has not noticed any injury on https://hcservices.ecourts.gov.in/hcservices/ the private part of the appellant. In her evidence, the victim, thoughstated that she cried unable to bear the pain, also stated that she didnot bleed at that time. She has further stated that she did notexperience pain when the Doctor examined her. At the tender of age of 8,PW-2 might not have been aware of the concept of sex. On an overallassessment of the materials available on record, I am of the view that theoffence of attempt to rape is not substantiated, however, accepting theprosecution version on other aspects, a safe conclusion can be arrived atthat the accused has committed an offence punishable under Section 354IPC. The said Provision reads as follows:-" 354. Assault or criminal force to woman with intentto outrage her modesty.-- Whoever assaults or uses criminalforce to any woman, intending to outrage or knowing it tolikely that he will thereby outrage her modesty, shall bepunished with imprisonment of either description for a termwhich may extend to two years, or with fine, or with both."8. In the result, the order of conviction and sentence passed bythe trial court against the appellant/accused for the offence punishableunder Section 376 read with 511 IPC is set aside, instead, he is convictedunder Section 354 IPC. Considering the facts and circumstances, the periodof imprisonment already undergone by the appellant is treated as thesentence for the offence under Section 354 IPC. 9. With the above modification, the appeal is allowed in part. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.JI.To1. The Sessions Judge, Magalir Neethinmandram, Chennai.2. The The Inspector of Police, V-6, Kolathoor Police Station, Kolathoor,Chennai.3. The Public Prosecutor, High Court, Madras.+ 1 CC To Mr. P.Sevaraj, Advocate SR NO.43749Crl. Appeal No.805/2003nsm[co]gp/6.8.