K.Sundararajan vs State Rep. By The on 7 November, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 07.11.2017

Reserved on : 12.10.2017

Pronounced on: 07.11.2017

CORAM

THE HONOURABLE MR .JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Crl.A.(MD).No.242 of 2017

K.Sundararajan .. Appellant/
Sole accused

Vs.

State rep. by the
Inspector of Police,
Thanjavur All Women Police Station,
Thanjavur District.
(Crime No.175 of 2013) .. Respondent/
Complaint

PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C. against the
judgment, dated 05.05.2014, made in S.C.No.01 of 2013, by the learned
Sessions cum Fast Track Mahila Court, Thanjavur.

!For appellant : Mr.A.Haja Mohideen

^For respondent : Mr.R.Ramachandran
Additional Public Prosecutor

:JUDGMENT

[Judgment of the Court was made by R.SUBBIAH, J.]
This appeal has been filed by the appellant / sole accused as against
the conviction and sentence, dated 05.05.2014, made in S.C.No.1 of 2013 by
the learned Sessions cum Fast Track Mahila Court, Thanjavur.

2.The appellant stood convicted and sentenced to undergo imprisonment
as detailed hereunder:

Conviction U/s.

Sentence
Fine amount
376(2F)
IPC r/w 4 of the Protection of Children from Sexual Offences Act,
2012

To undergo imprisonment for life.

506(i) IPC

To undergo rigorous imprisonment for 2 years
To pay a fine of Rs.5,000/-, in default to undergo six months rigorous
imprisonment.

(All the sentences were ordered to run concurrently.)

3.The case of the prosecution is consciously narrated below:

(a) PW1 and her husband viz., PW15 were doing coolie work by staying
in Vijay Farm at Suriyapatti. PW1 and PW15 are having one son by name
Senthilkumar and one daughter by name Tamilselvi (PW2). PW2 was given in
marriage to one Chandrasekar about five years ago and she gave birth to a
female child by name Suriya (PW9), now aged about 4 years. Due to
misunderstanding between PW2 and her husband, PW2 and her daughter (PW9) were
staying along with her parents viz., PW1 and PW15. The accused used to play
with the child. On 05.05.2013 at 10.30 a.m. the accused carried PW9. PW1, who
was grazing the goats, watched the same and questioned him. The accused
replied that he is taking the child to go around mango trees. After some
time, when PW1 was going towards pump-set room, she saw the accused lying on
PW9, after removing his dress and the dress of PW9, and attempting to commit
penetrative sexual assault on PW9. On seeing this, PW1 rushed there and
attacked the accused with stick. The accused threatened and pushed away PW1
by his hands. At that time, due to the hue and cry raised by PW1, PW2 to PW6
and PW19 came to the place of occurrence. On seeing them, the accused ran
away from the scene of occurrence. Immediately, PW1 went to the Thanjavur
Taluk Police Station and gave a complaint.

(b) PW17 ? the then Sub Inspector of Police, has recorded the statement
of PW1 and registered a case in Crime No. 376(2) and 506(i) r/w
Section 4 of
the Protection of Children from Sexual Offences Act, 2012 and forwarded the
FIR through PW18 ? Head Constable to the Court. Thereafter, she recovered
the underwear of PW9 under form 95 and sent the child to the hospital for
examination through PW19 ? Constable. Then, as per the instruction of the
Deputy Superintendent of Police, she forwarded the complaint – Ex.P1 and FIR

– Ex.P11 to PW21 – the Inspector of Police, Thanjavur All Women Police
Station, for investigation.

(c) PW8 – Dr.Meenambigai, attached to the Thanjavur Government
Hospital, has examined PW9 and she was informed that on 05.05.2013 at 10.00
a.m. at Suriyampatti Mango grove, a 60 years old man attempted to rape PW9.
After examination, she found the following marks in the private part of PW9:

“1. Nail marks seen over mons pubis, inner aspect of both thighs.

2. Linear laceration of size 0.3 x 0.2 x 0.1 cm seen in the skin in
between the labia majora labia mino (NC) left side and it appears fresh red
in the surrounding edema. No active bleeding from that injury. Hymen appears
intact.

Smears for spermatozoa take and sent. Pubic hair absent. No (NC)
present.”

Ex.P3 is the wound certificate.

(d) PW21 took up the investigation on the same day and went to the
place of occurrence and prepared an Observation Mahazar (Ex.P2) and Rough
Sketch (Ex.P13) in the presence of PW7 and one Saravanan. Then, she examined
PW3, PW4, PW7 and one Saravanan, and recorded their statements. On the same
day, at 6.00 p.m., PW21 arrested the accused at Nanjikottai Bye-pass Road in
the presence of PW10. On such arrest, the accused gave a voluntary
confession in the presence of PW10, in which he disclosed the place where he
had hidden the lungi. In pursuance of the said disclosure statement, he took
the Police and witnesses to the place of hide out and produced lungi (MO.2).
PW21 recovered the same under a mahazar. On returning to the Police Station,
PW21 forwarded the accused to the Court for judicial remand and handed over
the material objects under Form 95 to the Court. At her request, the material
objects were sent for chemical examination through Court. The forensic report
(Ex.P15) and chemical examination report (Ex.P16) disclosed that there are no
spermatozoa or semen and blood on both MOs.1 and 2.

(e) On a request made by PW-21, the accused was forwarded for medical
examination. PW-11 – Dr.K.Tamilmani examined the accused on 06.05.2013 and
found that the accused was not an impotent. He found the following injuries
on the backside of the accused :

“1.Abraded contusion of size 7 x 2 cm seen over back of upper part of
right chest.

2.Abraded contusion of size 6 x 2 cm seen over back of lower part of
right chest.

3.Abraded contusion of size 6 x 2 cm seen over back of upper part of
left chest.”

Ex.P6 is the medical examination report.

(f) On 13.05.2013, PW21 produced PW1 and PW9 before the learned
Judicial Magistrate No.III, Thanjavur (PW14). PW14 recorded the statements
of PW1 and PW9 (Exs.P10 and P9 respectively) under
Section 164 Cr.P.C. During
the course of investigation, PW21 collected the medical records and examined
medical witnesses and few more witnesses, and recorded their statements.
After completion of investigation, she laid charge sheet against the
accused.

4.Based on the above materials, the trial Court had framed as many as
two charges against the accused. When the accused was questioned in respect
of the charges, he pleaded innocence. In order to prove the charges, on the
side of the the prosecution as many as 21 witnesses were examined as PWs.1 to
PW21 and Exs.P1 to P16 were exhibited, besides two Material Objects (MOs.1
and 2).

5. When the accused was questioned under Section 313 of Cr.P.C. with
reference to the incriminating materials adduced by the prosecution, the
accused denied his complicity in the crime and pleaded innocence. On the side
of the accused, one Ravi was examined as DW1. However, no document was
marked.

6.The trial Court, after considering the oral and documentary evidence,
has found the accused guilty of both the charges and accordingly, convicted
and sentenced the accused, as stated supra. Challenging the said conviction
and sentence, the appellant/accused has come up with this appeal.

7. The learned counsel for the appellant would submit that the entire
case of the prosecution rests only on artificial allegations and not on
material evidences. Only due to previous motive, the present false complaint
has been lodged by PW1. In order to substantiate the same, on the side of the
appellant/accused, one Ravi was examined as DW1 and DW1 has categorically
stated in his evidence that on the date of occurrence ie., on 05.05.2013 in
the early morning at 5.30 a.m. there was a quarrel between the accused and
PW15 about missing of cell phone of PW15 and after some time, the cell phone
was traced out by PW15 and that there was also a dispute with regard to
missing of mangoes between them. Thus, according to the learned counsel for
the appellant, only pursuant to the said quarrel, the present false complaint
has been lodged against the accused. But, the Trial Court has failed to
properly appreciate the evidence of DW1.

8. The learned counsel for the appellant would further submit that PW2
to PW6 and PW15 are close relatives of PW1 and the prosecution has failed to
examine independent witnesses.

9.The learned counsel for the appellant would next submit that the
prosecution has failed to establish the ingredients of
Section 376(2F) of the
Indian Penal Code r/w
Section 4 of Protection of Children from Sexual
Offences Act, 2012. Hence, the conviction and sentence passed by the trial
Court is liable to be set aside.

10.The learned counsel for the appellant would further submit that the
forensic report (Ex.P15) and chemical examination report (Ex.P16) have
clearly disclosed that there are no spermatozoa or semen and blood on both
MOs.1 and 2 and thus, the occurrence has not been proved. When the
occurrence itself has not been proved, the entire case of the prosecution
falls to the ground and the appellant/accused is to be acquitted. Thus, the
learned counsel for the appellant/accused prayed to set aside the conviction
and sentence passed by the trial Court and to acquit the accused.

11.Per contra, the learned Additional Public Prosecutor submitted that
the prosecution has clearly proved the case of the prosecution by examining
PW1 and the victim girl PW9, and their evidences have also been corroborated
by PW2 to PW6. The evidence of PW1 is that on seeing the accused attempting
to commit penetrative sexual assault on PW9, she attacked the accused by
stick on his backside. The same has been clearly proved through medical
examination report of the accused ? Ex.P6. Thus, the prosecution has
categorically proved the guilt of the accused beyond reasonable doubts. Under
such circumstances, no infirmity can be found on the conviction and sentence
passed by the trial Court. Thus, he prayed for dismissal of the appeal.

12. We have given our anxious considerations to the rival submissions
made on either side and perused the materials available on record.

13. In this case, PW1, who is the grandmother of the victim girl ? PW9,
aged about 4 years, is the defacto complainant. PW1 has stated in her
evidence that she along with her husband (PW15), daughter (PW2) the
granddaughter (PW9) were residing in Vijay Farm at Suriyapatti and doing
coolie work. The accused, who was working as a watchman in the said farm,
used to play with the child. On 05.05.2013, PW15 was at home due to ill-
health and at 10.30 a.m. the accused carried PW9 stating that he is taking
the child to go around mango trees. After some time, when PW1 was searching
for child, she saw PW9 was lying on a towel without any dress and the accused
was lying on PW9 without any dress and attempting to commit penetrative
sexual assault on PW9. On seeing this, she rushed there and attacked the
accused with stick on his backside. The accused threatened to kill her and
pushed her away by his hands. Thereafter, due to the alarm raised by her,
PW2, PW15, PW5, PW6, PW4 and others came to the place of occurrence.

14. PW15, who is the grandfather of the victim girl ? PW9 and who was
available in the house at the time of occurrence, has stated that due to ill-
health, he took leave and stayed at home and PW9 was with him. PW1 went to
graze the goats. PW2 went to coolie work. At 9.30 a.m., the accused was
playing with the child. Due to stomach pain, he went inside the house.
After some time, when he called the child (PW9), she did not come. Then, he
informed to PW2 that the child (PW9) was with the accused. In order to give
feeding to PW9, PW1 and PW2 went to search the child. At that time, PW1
raised an alarm that the accused raped the child.

15. PW2, who is the mother of PW9, has stated that on 05.05.2013 at
10.30 a.m. the child was playing in the house and at that time, the accused
came there, spoke with the child and carried the child stating that he will
give mango to her. PW2 had further stated in her evidence that since PW9 was
not found for some time, PW1 went in search of the child PW9. After seeing
the occurrence, PW1 raised alarm. The accused ran away from the place of
occurrence, after pushing away PW1. On hearing the alarm raised by PW1, PW2
and others rushed to the place of occurrence and took PW9 to the hospital.
Thus, PW2 has corroborated the evidence of PW1. PW3 has also corroborated
the version of PW1 and he has further stated that when they tried to catch
the accused, the accused ran away after pushing them away. PW4 to PW6 are
also corroborated the evidence of PW2. PW13 and PW16 are hearsay witnesses.
PW7 has stated about the preparation of observation mahazar by the
investigating officer. PW8 – Dr.B.Meenakbigai, who examined the victim girl,
has stated that nail marks were seen over mons pubis, inner aspect of both
thighs of PW9 and there was also linear laceration of size 0.3 x 0.2 x 0.1 cm
seen in the skin in between the labia majora labia mino (NC) left side.
She has further stated that the above said injuries might have been caused at
the time of sexual assault. PW9, who is the victim girl, has also
categorically stated in her evidence that the accused removed her dress and
the accused was not wearing dress and PW1 attacked the accused with stick.
PW10 has stated about the arrest of the accused and seizure of Lungi. PW11
has stated that the accused is not an impotent and also stated about the
injuries on the backside of the accused. PW12, who is the member of the
Child Welfare Board, has stated that the statement given by PW9 (Ex.P8)
before the Board. PW14 – the Judicial Magistrate No.III, Thanjavur has
stated about the preparation of 164 Statement under Exs.P9 and P10 and also
the categorical versions of PW1 and PW9. PW17 has stated about the
registration of FIR. PW18 has stated about forwarding of FIR to the learned
Magistrate. PW19 has stated about production of PW9 before the doctor for
medical examination. PW20 has stated about the production of the accused
before the doctor (PW11) for medical examination. PW21 has stated about the
investigation done.

16. From the above categorical evidences of PW1, PW9, PW2, PW15, PW3
coupled with the medical witnesses PW8 and PW9, and the documents, the
prosecution has clinchingly proved that this accused has committed the above
offences.

17. The first and foremost submission of the learned counsel for the
appellant is that the motive suggested by the accused through the evidence of
DW1 has not been properly considered by the trial Court. DW1 has simply
stated in his evidence that on the date of occurrence ie., on 05.05.2013 in
the early morning at 5.30 a.m. there was a quarrel between the accused and
PW15 about missing of cell phone of PW15 and after some time, the cell phone
was traced out by PW15 and that there was also a dispute with regard to
missing of mangoes between them. DW1 has further stated that in the evening,
he came to know that the police arrested the accused as he had behaved
wrongly with PW9, and he does not know as to what extent that would be true.
According to the appellant, in order to wreak vengeance for the incident that
occurred in the morning, the present false complaint has been lodged by PW1
and her husband (PW15). But, DW1 did not state that for the occurrence that
happened in the early morning, the present false complaint has been lodged.
Absolutely, there is no material to connect both the occurrences. This Court
is of the view that for the simple occurrence that happened in the morning,
PW1 and PW15 might not have falsely given a complaint, that too by involving
their granddaughter (PW9), who was aged about only 4 years. More over, the
accused has nowhere stated anything about the incident stated to have taken
place in the morning. Hence, this contention is rejected.

18. The next submission of the learned counsel for the appellant is
that there was no independent witness examined to speak about the occurrence.
On perusal of the record, it is seen that PW2, PW9 and PW15 are the family
members of the defacto complainant / PW1. Except their evidences, the
prosecution has examined PW3 to PW6, who were working in the farm. PW3 has
categorically stated that on hearing the alarm raised by PW1, he along with
others came to the place of occurrence and when he tried to catch the
accused, the accused escaped after pushing them away. Admittedly, the
occurrence is stated to be happened in a private farm and not in a public
place. Therefore, the witnesses would be only the employees or owner of the
farm. Further, PW3 to PW6, who are farm workers, are not related to PW1. They
have categorically stated that they knew the defacto complainant as well as
the accused. Therefore, they are not the related to PW1, but they are
independent witnesses. Therefore, this contention is also rejected.

19.The next submission of the learned counsel for the appellant is that
the prosecution has failed to establish the ingredients of
Section 376(2)(f)
of the Indian Penal Code r/w
Section 4 of Protection of Children from Sexual
Offences Act, 2012. Hence, the conviction and sentence passed by the trial
Court is liable to be set aside. Before going into the said question, this
Court is inclined to extract
Section 375 IPC hereunder:

“375.Rape – A man is said to commit “rape” if he-

(a) penetrates his penis, to any extent, into the vagina, mouth
urethra or anus of a woman or makes her to do so with him or any other
person; or

(b) inserts, to any extent, any object or a part of the body, no being
the penis, into the vagina, the urethra or anus of a woman or makes her to do
so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of such woman
or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes
her to do so with him or any other person, under the circumstances falling
under any of the following seven descriptions:-…….”

20. The Hon’ble Supreme Court has in the decision in State of U.P. v.

Babulnath, reported in (1994) 6 SCC 29 has held that to constitute the
offence of rape, it is not at all necessary that there should be complete
penetration with the male organ with the emission of semen and rupture of
hymen. Even partial or slightest penetration of the male organ in the labia
majora or the vulva or pudenda with or without any emission of semen and even
an attempt of penetration into the private parts of the victim would be quite
enough for the purpose of
Sections 375 and 376 IPC. That being so, it is
quite possible to commit legally the offence of rape even without causing any
injury to the genitals or leaving any seminal stains.

21. The above dictum has been reiterated by the Hon’ble Supreme Court
in
Aman Kumar v. State of Haryana reported in AIR 2004 SC 1497.

22. From the above provision and dictum, it is clear that even a
partial or slightest penetration or an attempt of penetration into the
private parts of the victim is sufficient enough to constitute the offence
under
Section 376 IPC, for which ejaculation is not a sine qua non.

23. In this case, the victim girl – PW9 has categorically stated that
the accused removed her dress and the accused himself removed his dress and
then the accused put her in a towel and then, the accused lied on her. PW9
has further stated that PW1 attacked the accused with stick. However, PW9 was
not able to say what the accused did thereafter, because she was only a
child, hardly aged about 4 years. But, she has stated that the accused pushed
her. PW1 has stated in her evidence that the accused and PW9 were without any
dress and the accused was attempting to commit penetrative sexual assault on
PW9 by nudely lying over her. She shouted at him and attacked him with stick
and then, the accused threatened her and pushed her away. PW1 has stated in
her cross examination that PW9 was given treatment for three days. PW8 has
categorically stated in her evidence that she found nail marks and small
laceration in the private parts of PW9 and the same could have been caused by
the sexual assault. More over, PW11, who examined the accused, has stated
that the accused is not an impotent and that the accused had sustained three
injuries on his backside. PW14 – learned Judicial Magistrate No.III,
Thanjavur has categorically stated that he has recorded the statements of PW1
and PW9 under
Section 164 Cr.P.C. and that they have categorically stated
that this accused has committed the offence of rape. From the categorical
evidences of PW1 and PW9 coupled with the evidences of PW8, PW11 and PW14,
the prosecution has clearly established that the accused has committed the
offences beyond reasonable doubts. In view of all the above, we have no
hesitation to hold that the accused has committed the offence punishable
under
Sections 376(2)(f) IPC r/w Section 4 of the Protection of Children from
Sexual Offences Act, 2012 and
Section 506(i) IPC.

24. Yet another submission of the learned counsel for the appellant is
that the forensic report (Ex.P15) and chemical examination report (Ex.P16)
have clearly disclosed that there are no spermatozoa or semen and blood on
both MOs.1 and 2, and thus, the occurrence has not been proved. As stated
earlier, the sine qua non of the offence of rape is penetration and not
ejaculation and therefore, this contention is also rejected.

25. Now, turning to the quantum of punishment, it is an important task
of the Court to measure the gravity of the offences, to have regard to the
mitigating circumstances and then, to impose appropriate punishment on the
accused. It involves an adjudication and the same cannot be decided in a
mechanical fashion. The accused, at the time of occurrence, was 54 years old.
The accused has got no bad antecedents. It is stated by the learned counsel
for the appellant/accused that he has to take care his big family and there
is likelihood of his reformation. Therefore, we find that this Court has to
take a lenient view, while deciding the quantum of punishment so as to afford
an opportunity for the accused to reform and to become a responsible citizen
of this Country. Having regard to the same, we are inclined to reduce the
sentence to 10 years and to confirm the fine amount imposed on him by the
Trial Court.

26. In the result, this criminal appeal is partly allowed and the
conviction passed by the learned trial Court in S.C.No.1 of 2013 under
Section 376 (2)(f) IPC r/w Section 4 of the Protection of Children from
Sexual Offences is confirmed. However, the sentence imposed by the trial
Court alone is modified as 10 years. The conviction and sentence passed by
the trial Court under
Section 506(i) IPC are confirmed. The sentences shall
run concurrently.

To

1.The Sessions cum Fast Track Mahila Court, Thanjavur.

2.The Inspector of Police,
Thanjavur All Women Police Station,
Thanjavur District.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

4.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.

.

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