Abimannan vs State by Inspector of Police

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred by the accused in S.C.No.10 of 2005 who has been convicted and

sentenced for an offence u/s 376 of IPC by the learned trial Judge to under go eight years rigorous imprisonment and a fine of Rs.5000/- with

default sentence is the appellant herein.

Before the learned Judicial Magistrate No.1, Perambalur, the charge sheet was filed against the accused alleging that he had committed an

offence of rape against P.W.8 a deaf and dumb lady. The learned Judicial Magistrate on appearance of the accused, had furnished the copies u/s

207 of Cr.P.C. and since the case is exclusively triable by a Court of Sessions had committed the case to the Court of Sessions u/s 209 of Cr.P.C.

The learned Additional District and Sessions Judge(Fast Track Court) Ariyalur on appearance of the accused had framed charge u/s 376 of IPC

and when questioned the accused pleaded not guilty.

Before the trial Court P.Ws 1 to 13 were examined and Exs P1 to P12 were exhibited and M.O.1 was marked.

P.W.1 is the father of the victim girl. According to him, the victim Thenmozhi was born through his first wife and that she is suffering from

congenital deformity of deaf and dumb and that she was a spinster. According to P.W.1, the victim girl P.W.8 could not speak coherently but she

could speak one or two words and that he had deposed before the trial Court that four years prior to the occurrence ,he went along with one Raju

for purchasing the spare parts for repairing his cycle, by the time, he came to the house after purchasing the spare parts for the cycle, he saw his

house was closed but while he was repairing his cycle, the door of his house was opened and could hear the murmuring noise of P.W.8 and the

door was kept ajar and he found the accused standing behind the door, when he entered into the house , he saw his daughter P.W.8 Thenmozhi

was adjusting her cloths and there was a mat on the floor and the accused was also requested him with folded hands not to reveal what he had

seen in the house to anyone. While he was about to catch him, the accused through the door ranaway from the place of occurrence. Thereupon, he

had approached the father of the accused who is residing on the next door and requested him to take action against his son and that he left the

house to report the matter to the Panchayatars. On his return, he found his wife had recovered the inskirt of P.W.8, the victim girl, since the father

of the accused had not taken any concrete steps against his son, and also the panchayatars, he rushed to the police station and preferred Ex P1

complaint and also handed over M.O.1 in skirt worn by the victim girl at the time of occurrence, to the police.

4a. P.W.2 Balamani is the wife of P.W.1. She has also corroborated the evidence of P.W.1. According to her , at the time of occurrence, she was

not in the house and she returned to the house only at 2.00l.p.m. According to her,she came to know from P.W.8 the victim girl that the accused

had raped her through body language. She had also seized the inskirt of her and found a stain of semen in it. According to her, when she came to

the house of P.W.1 as his second wife, the victim girl Thenmozhi was aged 10.

4b. P.W.3 had repaired the cycle along with P.W.1 on the date of occurrence in front of P.W1''s house. He would also depose that at about

2.00p.m on the date of occurrence, he saw the accused present in P.W1''s house and when P.W.1 entered into the house,the accused was seen

behind the door of P.W1''s house wherein P.W.8 Thenmozhi the victim girl was also found and that P.W.1 had informed him that the accused had

committed rape on P.W.8 and that inskirt of P.W.8, the victim girl was collected by her mother P.W.2,Along with the Inskirt P.W.1 left the house

for preferring a complaint with the police.

4c. P.W.4 is the witness in the recovery mahazar for the recovery of inskirt of the victim girl.

4d. P.W.10 is the then Sub Inspector of Police, Ambavoor Police Station to whom P.W.1 had preferred the complaint Ex P1 on 5.8.1999 at

about 21.00 hours which was registered by P.W.10 under Arumbavoor Police Station Crime No.230 of 1999 u/s 376 of IPC.Ex P6 is the first

information report. According to him, the inskirt M.O.1 was also produced by P.W.1 at the time of preferring the complaint.

4e. P.W.11 is the Investigating Officer who after perusing the first information report registered in this case proceeded to the place of occurrence

on 6.8.1999 at about 6.00a.m and prepared Observation Mahazar Ex P2 in the presence of P.W.5. Ex P7 is the rough sketch drawn by P.W.11

for the place of occurrence in the presence of P.W.5 and another witness. He had examined the witnesses and recorded their statements. He had

arrested the accused at about 11.00 a.m on the same day. He had also recovered the wearing apparels of the accused and produced him before

the Judicial magistrate for remand. Under Ex P8 letter of requisition, the accused was sent by P.W.11 to the medical Officer for examination. Since

the accused is a deaf and dumb, he has given a letter of requisition to the Judicial Magistrate, to examine her with the help of a teacher of deaf and

dumb school.

4f. P.W.12 is the successor of P.W.11. P.W.6 is the doctor who had examined the accused on 11.8.1999 and issued Ex P4 potency certificate

stating that the accused is potent. P.W.7 is the doctor who had examined the victim girl on 6.8.1999 and issued Ex P5 certificate indicating that the

hymen of the victim girl was ruptured. The doctor has opined that the victim girl is subject to intercourse previously also.

4g. P.W.8 is the victim girl. She was examined with the help of a teacher of deaf and dumb school. According to her, at the time of occurrence, the

accused had caught hold of her hands and committed the offence and she had handed over the inskirt , she was wearing at the time of occurrence

to her mother after the occurrence. According to P.W.9, the Head Master of the deaf and dumb school, Tanjore.P.W.8 was produced by the

police on 7.2.2001 and her statement was recorded by the Inspector of Police has translated by him. According to P.W.9, P.W.8 the victim girl is

partially impaired of hearing and was able to speak ''father'' and ''mother'' only. After completing the formalities, P.W.12 has filed the charge sheet

against the accused u/s 376 of IPC on 10.12.2003.

When incriminating circumstances u/s 313 Cr.P.C. were put to the accused, he would deny his complicity with the crime.

He would say that he is the neighbour of P.W.1 and since he refused to marry the victim girl, P.W.1 has foisted the case against him. He has not

examined any witness on his side.

The learned trial Judge, after meticulously going through the evidence both oral and documentary has come to a conclusion that the offence u/s

376 of IPC has been made out against the accused and accordingly convicted and sentenced the accused u/s 376 of IPC to undergo eight years

rigorous imprisonment and a fine of Rs.5000/- with default sentence which necessitated the accused to prefer this appeal before this Court.

Now the point for consideration in this appeal is whether the conviction and sentence against the accused u/s 376 of IPC is sustainable for the

reasons stated in the memorandum of appeal?

8.Heard Mr.Ganesh Rajan, learned Counsel appearing for the appellant and Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor for

the State and carefully considered their rival submissions.

The age of the victim girl at the time of occurrence is more than 18 years and she is a major. Even as per Ex P1 complaint preferred by P.W.1,

the age of the victim girl was stated to be 23 years. When P.W.8 was produced before the Doctor, on 6.8.1999 at 7.50.a.m., to the Doctor the

age of the victim girl was informed as 26 years as seen in Ex P5. As per Ex P11 age certificate, the age of the victim girl is above 18 years but

below 20 years. The radiologist who had given Ex P11 was not examined in this case.

A person can be held guilty under an offence of rape as per Section 375 of IPC only if he commits an offence without her consent, if she is

above the age of 18 or if her consent has been proved to be obtained by putting her in fear of death or hurt of if her consent was obtained when

the accused knows that he is not her husband and her consent was given because she was under the belief that he is another man to whom she was

lawfully married or at the time of her consent, she was of unsoundness of mind or under intoxication or was in a position not to understand the

nature and consequence of what had happened. Admittedly, the victim girl P.W.8 was a major at the time of occurrence. The prosecution has not

proved that the offence said to have been committed by the accused will squarely come within the exceptions secondly, thirdly , fourthly or fifthly

to Section 375 of IPC.

11.The evidence of the doctor who had examined the victim after the occurrence viz., P.W.7 who had issued Ex P5 has opined that the victim girl

is subject to sexual intercourse even prior to the occurrence. If the victim girl would have resisted the accused from committing the offence

certainly, she would have sustained minor injuries on her hands, neck or on other parts. But according to P.W.7, the doctor ,she had not seen any

external injuries on the person of the victim girl. But she had deposed to the fact that the hymen of the victim girl was found ruptured. From the

evidence of P.W.1, and P.W.2, it can be inferred that the accused had outraged the modesty of P.W.1 at the time of occurrence. Even if , the

accused is not guilty u/s 376 of IPC definitely, he is guilty u/s 354 of IPC.

Mr.V.R.Balasubramaniam,the learned Additional Public Prosecutor relying on a decision reported in Tarkeshwar Sahu v. State of Bihar(now

Jharkhand) 2006 3 SCC 556 and contended that if the victim girl is forcibly taken to his gumti with intention to commit illicit intercourse then he is

liable to be punished under Sections 366 and 354 of IPC even though there is no specific charge framed against him. The exact observation in the

above said ratio runs as follows:

In view of the foregoing facts and circumstances of the case, we are of the opinion that the crime committed by the accused was at the initial stage

of preparation. The offence committed does not come within the purview of offence punishable under Sections 376/511 IPC. The offence

committed squarely covers the ingredients of Sections 366 and 354 IPC. The appellant was charged under Sections 376/511 IPC but on invoking

the provisions of Section 222 of the Code of Criminal Procedure, the accused charged with major offence can always be convicted for the minor

offence, if necessary ingredients of minor offence are present.... On evaluation of the entire evidence and documents ono record, in our considered

view, the appellant is clearly guilty of the offences under Sections 366 and 354 IPC. In the facts and circumstances of this case, the ends of justice

would be subserved by convicting the appellant under Sections 366/354 IPC.

The above facts of the case will be applicable to the present facts of the case because here also there is no specific charge u/s 354 of IPC has

been framed against the accused as observed in the above dictum u/s 222 of Cr.P.C., the Court is competent to convict and sentence the accused

u/s 354 of IPC even though there is nospecific charge framed in this case.

At this juncture, the learned Counsel appearing for the appellant would represent that from 21.4.2005, the accused is in jail. Under such

circumstances, I am of the view that the accused can be convicted u/s 354 of IPC and sentenced for the period already undergone.

In fine, the appeal is partly allowed and the conviction and sentence by the learned trial Judge in S.C.No.10 of 2005 on the file of the

Additional District and Sessions Judge(Fast Track Court) Ariyalur u/s 376 of IPC is hereby set aside but the accuse is convicted and sentenced

u/s 354 of IPC for the period already undergone and with the fine of Rs.5000/- in default to undergo six months simple imprisonment. The entire

fine amount is ordered to be paid to P.W.8 victim girl as compensation u/s 357(1) of Cr.P.C. The fine amount paid by the accused u/s 376 of IPC

is to be treated as the fine paid by the accused u/s 354 IPC.