Albert vs The State of Tamil Nadu

S. Thangaraj, J.—The accused in S.C. No. 19/90 on the file of the Assistant Sessions Judge, Kuzhithurai, has filed this appeal.

The Inspector of Police, Kuzhithurai, has filed a chargesheet against the accused, alleging that on 3.12.1987 at about 5:00 p.m. at Muvottukonam near Nallayan Church, the accused carried Sandiya aged about 9 years to the nearby room (Pathiriyar Medai) and forcibly committed rape on her and thereby committed punishable under Sections 341 and 376, I.P.C.

The Judicial Magistrate, Kuzhithurai, committed the case to the Court of Sessions, Nagercoil, u/s 209(a) Cr.PC. and the Sessions Judge transferred the case to the Assistant Sessions judge, Kuzhithurai on point of territorial jurisdiction. The Assistant Sessions Judge, Kuzhithurai, framed a charge u/s 376 IPC against the accused, read over and explained to him and the accused pleaded not guilty to the said charge.

The evidence adduced on the side of the prosecution is as follows:

(a) P.W. 3 Sarojini Amma is the wife of Balakrishnan and the couple has a daughter by name Sandiya, who was studying in 3rd standard at the time of occurrence. On 3.12.1987, at about 5 P.M. when Sandiya and other children were playing near the Nallayan Church at Muvottukonam, the accused Albert came there and gave 10 paise each to the children playing there and asked them to get sweets. When the other children left the place, the accused caught hold of the hand of P.W. 1 Sandiya, lifted her in his hands, took her to nearby room and made her to lie down on the floor. The accused raised the skirt of P.W. 1 Sandiya, who raised alarm and the accused threatened to kill her if she raised alarm or inform to any one. By saying so, the accused placed his penis on the vulva of P.W. 1 and pushed it. P.W. 1 observed that P.W. 2 Roslyn saw the occurrence and she went away from there by spitting on the floor. When the accused removed his penis, P.W. 1 found a white jelly like substance on her private parts, thigh and skirt. Once again, the accused threatened her to kill, if she informs to any one else. The accused gave P.W. 1 20 paise and she returned home. After some time, P.W. 3, her mother Sarojini Amma, returned home and questioned P.W. 1 as to why she was weeping. P.W. 1 told her what had happened. At about 9:00 p.m., her father Balakrislman came to the house and P.W. 3 informed the occurrence to him. As it was late, they went to the Police Station on the next morning.

(b) P.W. 7 Manohara Kumar was the Sub-Inspector of Police, Kaliakavilai Police Station. On 4.12.1987 at about 7:10 a.m. When he was on duty, P.W. 1 went to the Police Station along with her father and orally complained to him of the occurrence. P.W. 7 recorded the complaint (Ex. P.1) and registered the same in Crime No. 184/1987 u/s 376 IPC, sent the original F.I.R. (Ex. P.5) to the court and copies to the concerned officials. P.W. 7 sent P.W. 1 to the hospital for examination and treatment.

(c) P.W. 5, Dr. Ponkumari was the Assistant Civil Surgeon in the Government Hospital, Kuzhithurai, On 4.12.1987 at 10:00 a.m. she examined P.W. 1 who told her that on 3.12.87 at 5:30 p.m. one known person raped her.

(1) No external injuries.

(2) Vaginal Examination:

Labium minora slightly congested. No injuries. Hymen in tact edges

regular 4 MM size hole admits tip of little finger, vaginal smear taken and preserved.

The copy of the accident register is Ex. P. 3.

(d) P.W. 7 seized the skirt, which P.W. 1 was wearing at the time of occurrence, under a cover of mahazar (Ex. P.6). He sent an intimation Ex. P.7, to the Court for sending the skirt for chemical analysis. He went to the place of occurrence and drew a rough sketch (Ex. P.8) and prepared an observation mahazar (Ex. P. 9) in the presence of witnesses. He examined P.W. 2, Balakrishnan, Sudharsanan, Sarojam, Devaraj, P.W. 5 and others. P.W. 7 searched for the accused who was absconding.

(e) P.W. 9 Kamaraj, Inspector of Police, Vilavangodu, took further investigation in this case and examined the wife of the accused by name Annammal and recorded her statement. He sent the accused for medical examination. P.W. 6 Dr. Sahul Hameed examined the accused and issued a certificate (Ex. P.4). P.W. 9 examined P.W. 6 and recorded his statement. He examined witnesses Kanagaraj, Bindu, Vinu and recorded their statements. He examined P.W. 4 Dasaiyan, Head Master of the Primary School wherein P.W. 1 was studying, and P.W. 4 issued Ex. P.2 a Certificate regarding the date of birth of P.W. 1 by going through the records. On 1.9.89 P.W. 9 took P.W. 1 for Medical Examination. P.W. 8 Dr. Sarojini, Radiologist examined P.W. 1 Radiologically and gave her opinion that P.W. 1 had completed twelve years of age on that date. The report given by P.W. 8 is Ex. P.10. The X-Ray photographs are M.O.2 series. The X-ray report is Ex. P.11. P.W. 9 examined P.W. 8 and recorded her statement. On completion of investigation P.W. 9 laid chargesheet against the accused for offences under Sections 341 and 376, I.P.C.

When the accused was examined u/s 313 Cr.P.C. he denied the allegations against him. Only one witness was examined on the side of the accused.

D.W.1 Thangasamy has stated that the room, wherein the occurrence had alleged to have been taken place, is 10 feet away from the road and no one can enter inside the room in the absence of the Priest. On 3.12.87 at about 5:00 p.m. he heard a noise and found the accused was shouting with some ladies saying that they had committed theft of Tapioca from his garden. The accused searched the basket of P.W. 1 and found Tapioca in the basket. Thereafter there was a quarrel between the father of P.W. 1 and the accused, which continued for 25 minutes and D.W.1 separated them.

Learned Assistant Sessions Judge, Kuzhithurai, found the accused guilty u/s 376 convicted and sentenced him to undergo rigorous imprisonment for ten years. Aggrieved by the said conviction and sentence, the accused has preferred this appeal.

Learned Counsel appearing for the appellant has argued that the case for an offence u/s 376 has not been proved, as there is no oral corroboration for the evidence of P.W. 1 that the medical evidence is not in support and that M.O.1 Skirt has not been sent to chemical analysis though a requisition was sent to that effect to the Court. Learned Public Prosecutor repelled each one of the allegations and has made his submissions. P.W. 1, the victim girl, who was aged about 12 years, while playing with other children on 3.12.87 at about 5:00 p.m. the appellant sending away the other children by giving them money to purchase sweets, caught hold of P.W. 1, took her to a nearby room of the Priest and sexually assaulted her. In Ex. P.1, P.W. 1 has clearly stated that the accused took her to the room, kept her on the floor and lifted her skirt under threat of murder and kept his penis in her vulva, and pushed his penis inside. The victim girl has stated every such particular before the Court also, when she was examined as P.W. 1. From the evidence of P.W. 1 it is clear as to what had happened on that date. P.W. 2 Rosiyn did not support the case of the prosecution and as such there is no ocular corroboration for the evidence of P.W. 1. P.W. 3, the mother of P.W. 1 had learnt the occurrence from P.W. 1 and she had not seen the occurrence. P.W. 3 in turn informed the matter to her husband Balakrishnan when he returned home at 9:00 p.m. on that date and on the next morning they went to the Police Station and laid the complaint. The evidence of P.W. 8 and also Exs.P.10, 11 and M.O.2 series clearly proved that P.W. 1 had completed 12 years of age at the time of occurrence and she had not attained puberty. There is no challenge regarding the age and the physical condition of P.W. 1 and she was only a child at the time of occurrence. The defence of the accused was that on the evening of the day in question, P.W. 1 who collected grass for sheep had committed theft of Tapioca from the garden of the accused and when he caught hold of P. W. 1 there was a quarrel between him and the father of P.W. 1 and on account of that this case has been foisted on the appellant. D.W.1 has spoken to such facts in his evidence before Court. However, it is clear that such a defence is a well thought out one to suit the occasion and there is no reason to believe such a defence. Coming to the uncorroborated testimony of P.W. 1 we have to see the circumstance of the case. P.W. 1 and her parents had no enmity against the appellant for foisting the case of this nature. No female child or her parents would come forward with such a false case of rape since it will be suicidal for the good reputation of the family and the future of the female child.

In S.I.(Jem) Pramodh Singh Vs. State of Jammu and Kashmir, the Supreme Court held In so far as the accusation of criminal assault is concerned she stood fully corroborated by the statements of PWs 2 and 3 and then that of her father PW4. As against this the appellant has no explanation to offer as to why a young child and her father would join hands to implicate him falsely. The prosecutrix was a student going to school. She would normally be not made to expose herself to shame and ignominy in the school as also in the society. Thus the assertion of the appellant that he was falsely implicated carries no weight. In this situation, we unhesitatingly come to the view.

The reasonings given by the Supreme Court also would also make the defence unacceptable. The evidence of P.W. 1 is cogent and convincing and there is nothing to disbelieve or discredit her evidence. The trial Court has accepted the evidence on well founded reasons of P.W. 1

In Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, The Supreme Court held--

On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form or eye-witness account of an independent witness may often be forthcoming in physical assault case, such evidence cannot be expected in sex offences, having regard to the very nature of the offence.

In State of Maharashtra Vs. Chandraprakash Kewalchand Jain, the Apex Court, held--

A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness u/s 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more.

The said view has been confirmed by two other decisions of the Supreme Court in Karnel Singh Vs. State of M.P., State of Punjab Vs. Gurmit Singh and Others, From these decisions, corroboration is not an absolute necessity for the evidence of prosecutrix if her evidence is acceptable. As such the evidence of P.W. I cannot be thrown out on the ground that there was no corroboration to her evidence.

P.W5 (Dr. Ponkumari) who has examined P.W. 1 did not find any injury and not even a scratch or swelling on the private parts of P.W. 1. The hymen was in tact and there was no mark of violence. The Doctor found that the labium minora was slightly congested. Though in the examination-in-chief she has stated that the congestion could have been due to the penis forcibly touching that portion of the vulva in the cross examination she has stated that congestion could have been caused due to disease and she had not given any final opinion in that regard. Further, P.W. 1 told her that a known person laid on her body after raising her skirt above and she did not tell her that she was raped by the said person. This portion of the evidence was relied on by the appellant and the Learned Counsel for the appellant argued that as P.W. 1 did not tell the Doctor that she was raped and therefore her evidence should not be believed. However, there are sufficient reasons to believe the evidence of P.W. 1 and the very purpose of taking her to the Doctor was for examination for the alleged rape. P.W. 1 was too small at the time of occurrence to know the sexual activities and when she had stated that a known person laid on her body after raising her skirt above and tried to introduce his penis into her vulva will be sufficient to hold that person did it for the purpose of committing rape on her. Though the skirt wherein the stains of semen was found has not been sent for chemical analysis the same has not been relied upon by the prosecution to prove the case against the appellant. However, failure to send the skirt for chemical analysis will not diminish the value of P.W. 1''s oral evidence. If the presence of semen in the skirt of P.W. 1 was proved that would have been an additional circumstance against the accused and the failure to prove the said circumstance will not go against the case of the prosecutrix.

Learned Counsel for the appellant has relied on a decision of the Apex Court in Rahim Beg and Another Vs. State of U.P., wherein it was held-

According to Dr. Kativar, Medical Officer of District Jail Rae Bareli, if a girl of 10 or 12 years who is virgin and whose hymen is in tact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence.

Of course, from the evidence of P.W. 6 who examined the appellant shows that there was no injury on his penis. However, the occurrence had taken place on 3.12.1987, but whereas he was examined by the Doctor on 29.7.89. No one could expect any such injuries nineteen months after the occurrence. As the medical examination was conducted after a delay of 19 months, this decision cannot be applied to the instant case. A decision of Raj as than High Court in Papuria @, Rajesh v. State 1995 3 Crimes page 114 was relied on by the appellant wherein it was held that when the Doctor''s evidence was not disclosing with certainty that the prosecutrix was sexually ravished and that another eye-witness turned hostile and that the father of prosecutrix had executed a writing before Panchayat that the injury to the prosecutrix was caused due to fall, it was insufficient to maintain conviction on the uncorroborated testimony of the prosecutrix. However, a catena of decisions of the Supreme Court which we have referred to above would go to show that no corroboration is necessary to the evidence of prosecutrix if it is acceptable and in such circumstance we cannot place much reliance on this decision. As the evidence of P.W. 1 is cogent and convincing and there is no valid reason either to discredit or to disbelieve the same, the arguments advanced on the side of the appellant cannot be accepted.

Learned Assistant Sessions Judge, Kuzhithurai, found the accused guilty u/s 376 I.P.C. convicted and sentenced him to undergo rigorous imprisonment for ten years. However, from the materials available on record, it can be safely said that an offence u/s 376 IPC has not been made out, as P.W. 1 is a minor girl who has not attained puberty, and the medical evidence is also not in favour the case of the prosecution since P.W. 5 the Doctor has stated the hymen was in tact and there was no injury on the private parts of P.W. 1 to prove rape. In such circumstance an offence punishable u/s 376 IPC has not been made out. However, from the decisions of various Courts, in such circumstance the offence can be taken as one u/s 376 IPC read with 511 IPC or u/s 354 IPC. On the instant case; as the medical evidence is very weak and there are sufficient materials from the evidence of P.W. 1 to hold that the accused had outraged the modesty of P.W. 1, it can be safely said that the accused is liable for offence u/s 354, IPC. In a similar case in S.I.(Jem) Pramodh Singh Vs. State of Jammu and Kashmir, (referred above) the Apex Court has confirmed the conviction u/s 354, IPC and the sentence of rigorous imprisonment for one year and fine of Rs. 500/-. As the said view is more appropriate to the instant case, basing reliance on the said decision, it can be held that the accused is guilty u/s 354, I.P.C.

In the result, the conviction and sentence u/s 376, IPC arc modified, instead the accused is found guilty u/s 354, IPC and convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for three months. The period of detention undergone by the accused, if any shall be set off against the sentence of imprisonment. The trial Court shall issue necessary warrant for arrest of the appellant, if he is on bail, and commit him to prison to undergo the unexpired portion of the sentence.