Durai vs State

S. Nagamuthu, J.

The appellant is the second accused in S.C. No. 3 of 2005 on the file of the learned Sessions cum Mahila Court, Tirunelveli. The first accused is one Mr. Esakkiappan. Both the accused stood charged for the offences under Sections 452, 341, 376 r/w 511 and 506(ii) of IPC. During the course of trial, it turned out that the first accused Mr. Esakkiappan was a juvenile as on the date of commission of the crime. Therefore, the case against him was split up and the same was transmitted to the Juvenile Justice Board to enquire as per the procedure laid down in the Juvenile Justice (Care and Protection of Children) Act, 2000. Therefore, the trial against the appellant alone proceeded. Finally, by judgment, dated 29.01.2007, the trial Court found him guilty under all charges and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for three months, for the offence under Section 452 IPC; to undergo simple imprisonment for one month, for the offence under Section 341 IPC; to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for three months, for the offence under Section 376 r/w 511 IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for three months, for the offence under Section 506(ii) IPC. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.

The case of the prosecution in brief is as follows;

(a) PW1, who was hardly aged at 18 years during the alleged occurrence, was a resident of Kothankulam. On 21.11.2001, at about 05.15 a.m. she was alone at her house. At that time, the appellant, along with juvenile accused Esakkiappan, trespassed into her house. The juvenile enquired her as to where the other family members were. She replied that her grandmother had gone for plugging flowers. After having ascertained that PW1 alone was there, the juvenile got hold her hands and the appellant lifted her petticoat with a view to rape her. She raised alarm which attracted the neighbours. On seeing the arrival of the neighbours, the accused fled away from the scene of occurrence. While leaving, they threatened the de facto complainant that she should not disclose the offence to anybody. Thus, they criminally intimidated PW1. After the occurrence PW1 was waiting for the arrival of her grandmother. She returned at about 3.00 p.m. Along with her grandmother, she went to the house of her uncle PW3 - Yacoob and informed him about the occurrence. Thereafter, he took her to the Police Station to make the complaint.

(b) PW8 - Mr. Balasubramanian was the then Sub Inspector of Police, attached to Palavoor Police Station. On 21.11.2001 at about 05.30 p.m. PWs.1 and 2 appeared before him and PW1 presented a written complaint (Ex.P1). Based on the same, he registered a case in Crime No. 205 of 2001 under Sections 452, 341, 376 r/w 511 and 506(i) IPC. He forwarded the FIR and the complaint to the Court and forwarded PW1 for examination by a Doctor. Then, he handed over the Case Diary to PW7 - Inspector of Police, for investigation.

(c) PW7 - Dr.Ganesan examined PW1 on 21.11.2001 at about 9.30 p.m. at Radhapuram Government Hospital. He was told by PW1 that an attempt was made by two known persons to rape her. He found the following injuries on her (i) a lacerated injury measuring 1/2 x 1/4 x 1/4 c.m. on her upper lip; (ii) the upper lip was swollened; (iii) an abrasion measuring 1/2 x 1/2 c.m. on the right side of the cheek; (iv) an abrasion measuring 1/2 x 1/2 c.m. on the nose; (v) an abrasion measuring 1/2 and 1/2 c.m. near the left eye; (vi) a contusion measuring 1/2 x 1 c.m. on the right wrist joint; (vii) a contusion measuring 1 x 1 c.m. on the left forearm. Then, she was sent for further examination by a doctor at Tirunelveli Medical College Hospital.

(d) PW6 examined PW1 at the Government Medical College Hospital, Tirunelveli, on 23.11.2001 at 03.00 p.m. He found an abrasion measuring 2 x 1 c.m. on the left side of her chest and her female genitalia allowed one finger to move freely. PW6 opined, on the basis of chemical report, that there was no spermatozoa found on her female genitalia. He further opined that she would have subjected to sexual intercourse.

(e) Taking up the case for investigation, PW9 rushed to the place of occurrence and prepared observation mahazar in the presence of two witnesses and also rough sketch and examined PW1 and few more witnesses, and recorded their statements. After examining the Doctor, he filed the final report.

Based on the above materials, the trial Court framed charges as narrated in the first paragraph of this judgment. The accused denied the charges. In order to prove the case, the prosecution examined as many as 9 witnesses (PW1 to PW9) and marked 8 documents (Exs.P1 to P8). No material object was marked. PW1 - victim has vividly spoken to about the occurrence. PW2 has turned hostile and he has not supported the case of the prosecution in any manner. PW3 has spoken to the fact that he took PW1 to the Police Station. PW6 and PW7 are Doctors and they have spoken to about their examination on PW1. PW8 and PW9 are the Police Officers, who registered the case and investigated the same. When the accused was questioned under Section 313 of Cr.P.C. in respect of the above incriminating materials, he denied the same as false. Having considered all the above materials, the trial Court has found him guilty and accordingly punished him under various penal provisions as detailed in the first paragraph of this judgment. That is how the appellant is before this Court with this appeal.

I have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent. I have also perused the records carefully.

The learned counsel appearing for the appellant would submit that the evidence of PW1 remains uncorroborated from any other source and hence, the same deserves to be rejected. He would further submit that there is inordinate delay in preferring the complaint which creates doubt in the case of the prosecution. He would further submit that due to previous animosity, the appellant has been falsely implicated. He would also submit that the punishment imposed on the appellant is highly disproportionate to the charges.

The learned Additional Public Prosecutor would however oppose this appeal vehemently. According to him, the evidence of PW1 itself is very convincing which does not require any corroboration, because, according to him, it is the settled law that the evidence of prosecutrix is trustworthy, even in the absence of any corroboration, the Court can base the conviction on the said uncorroborated testimony of the prosecutrix. In this case, according to the learned Additional Public Prosecutor, there is no reason to reject or even to suspect the evidence of PW1. So far as the delay is concerned, the learned Additional Public Prosecutor would submit that in cases of rape, it cannot be expected that the rape victim would rush to the Police station with a complaint, thereby risking her modesty and future. So far as the sentence is concerned, the learned Additional Public Prosecutor would submit that the trial Court has imposed very reasonable sentence. Thus, according to him, the appeal deserves to be dismissed.

I have considered the above submissions.

According to the case of the prosecution, the occurrence happened at about 5.15 a.m. The complaint to the police was made at 05.30 p.m. on the same day. The delay has been duly explained by PW1. She has stated that she was waiting for the arrival of her grandmother and after her arrival, being illiterates, they went to the house of PW3 and along with PW3, she went to the Police Station. Thus, in my considered view, the delay has been explained. Apart from that, in cases of rape, it cannot be excepted that the victim would rush to the Police Station immediately with a complaint, because, it involves the modesty of the girl and her future also. Quite naturally a rape victim would take some time to come out of trauma and then, to go to the Police Station. Therefore, on the ground of delay, in this case, I do not find any reason to suspect the case of the prosecution.

Now, turning to the evidence of PW1, she has very vividly stated as to how an attempt was made to rape her. Though she has been subjected to lengthy cross examination, nothing could be elicited to doubt her evidence. Though it is the contention of the learned counsel for the appellant that there is no corroboration for the evidence of PW1, in fact, it is not so. The medical evidence duly corroborates her evidence. PW7 - Dr.Ganesan, who initially examined her, found number of abrasions and contusions on her body. Thereafter, PW6 found injuries on her chest and other parts of the body. Thus, the medical evidence duly corroborates the eyewitness account of PW1. Apart from that, the motive suggested by the accused has got no base at all. As has been rightly pointed out by the learned Additional Public Prosecutor, in a case of rape, it is the settled law that if the evidence of the prosecutrix is convincing, even in the absence of corroboration from any other source, the conviction can be recorded. But, in this case, the evidence of PW1 is duly corroborated by medical evidence also. Thus, I do not find any reason to interfere with the finding of the trial Court that the appellant has committed the offences and thus, the charges stand proved beyond any reasonable doubt.

Now, turning to the quantum of sentence, it is submitted by the learned counsel for the appellant that now the appellant is aged about 33 years and during the trial of the case, he was married and now he has got two children, who are studying in 4th and 3rd standard respectively. He has got old parents, who are also taken care of only by him. There is no other male member in his family and he has got no bad antecedents and there is no previous case against him. He is the only son to his parents. He is an agricultural coolie. Now, PW1 has also been married and she is living happily with her husband. These mitigation circumstances are to be taken into consideration. So far as the aggravating circumstances are concerned, the major offence is attempt to rape for which sentence upto 10 years can be imposed. Now, balancing between the aggravating circumstances and mitigating circumstances, this Court has to decide about the quantum. By striking such a balance between the aggravating circumstances and mitigating circumstances, I deem it appropriate that at this stage, if the appellant is sent to prison for a long time, it will have adverse impact on his old parents, children and wife also. Further, he has also reformed and there is no report that either before or after this occurrence, he has shown any dereliction. He has chosen the right path to marry and to lead a responsible life. Therefore, going by the totality of the circumstances, I deem it appropriate to reduce the sentence to six months rigorous imprisonment and to direct him to pay a fine of Rs. 30,000/-, in default to undergo rigorous imprisonment for one month. This quantum of sentence, in my considered view, would meet the ends of justice.

In the result, the appeal is partly allowed in the following terms;

(i) the conviction of the appellant/A2 under Sections 452, 341, 376 r/w 511 and 506(ii) IPC are confirmed.

(ii) For the offence under Section 452 IPC, he is sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for one month; for the offence under Section 341 IPC, he is sentenced to undergo rigorous imprisonment for 15 days; for the offence under Section 376 r/w 511 IPC, he is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 28,000/-, in default to undergo rigorous imprisonment for one month and for the offence under section 506(ii) IPC, he is sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for 15 days. It is directed that the sentences imposed herein shall run concurrently.

(iii) The total fine amount of Rs. 30,000/- is hereby ordered to be paid to PW1 as compensation.

(iv) The fine amount already paid by the appellant is ordered to be adjusted. The period of sentence already undergone by him also is ordered to be set off under Section 428 of Cr.P.C.

(v) The appellant, who is present before this Court today, is directed to appear before the lower Court on 20.04.2015, on which date the lower Court shall set off the sentence already undergone by the appellant/A2 as under trial prisoner and as convict prisoner, and if any period remains to be undergone by the appellant, the trial Court shall commit him in prison. If he has already undergone the total period of six months, the trial Court shall set him free.