In Re: Periyasami

Rengasamy, J.—This petition coming on for hearing on 24-10-94 upon perusing the petition, and the judgment of the Lower courts and the

record in the case, and upon hearing the arguments of Mr. K. N. Thambi, Advocate for the petitioner, and of Mr. S. Shanmughavelayutham,

Additional Public Prosecutor, on behalf of the State, and the case having stood over for consideration till this day the court made the following

order.

This revision is against the conviction and sentence of the learned Session Judge, Kanyakumari at Nagercoil in C.A. No. 43 of 1987 confirming the

conviction of the Assistant Sessions Judge, Nagercoil in S.C. No. 39 of 1986 for the offence under Ss. 341 and 376 Indian Penal Code to

undergo rigorous imprisonment for 3 years.

The prosecution case is that on 17-2-1985 at about 04:00 p.m., this revision petitioner forcibly took away one Chellammal to a coconut thope

in Kottaram, where she was raped. To prove the charges against the revision petitioner herein, prosecution examined 13 witnesses of whom P.Ws.

6 to 8 and 11 to 13 are the official witnesses namely doctors, court clerk and police officials, to speak about the injuries and age of the victim girl

and about the registration of the case and investigation. P.W. 1 is the victim and P.W. 2 is the eye-witness to the occurrence. The Courts below,

relying upon the evidence of P.Ws. 1 and 2 have accepted the charge of the prosecution to find the revision petitioner guilty of the offence. P.W. 1

is about 13 years old girl and according to the doctor P.W. 6 she has not even attained puberty. P.W. 1 has stated that on 18-2-1985, she was

returning from fields collecting the spilled paddy in the harvested lands and when she was walking along Muthar tank bund from east to west this

revision petitioner, who was coming from the opposite direction suddenly gagged her mouth and lifted her to the nearby coconut thope of

Gopalakrishnan and raped her. She has also stated that when she shouted for help, P.W. 2 and one Muthu Nadar came there and on seeing them,

the revision petitioner ran away though Muthunadar chased him for some distance but could not catch him. P.W. 2 also has stated that he was

going at about 04:00 p.m. on the date of the occurrence to take bath in Muthar tank and on hearing the alarm voice in the nearby coconut thope of

Gopalakrishnan he and Muthunadar went there and saw the revision petitioner raping P.W. 1 and when they attempted to catch him, he ran away.

Thereafter, P.W. 1 was brought by P.W. 2 to her house and as her father P.W. 3 and step-mother were away, she was waiting for them till 1:00

a.m. in the midnight and after their arrival from Nagercoil, she complained to them about the incident and thereafter P.W. 3 took her to

Kanyakumari police station to launch the complaint Ex. P-1 to 12, the women Sub-Inspector of Police.

The whole case rests upon the evidence of P.WS. 1 and 2, which is supported by the medical evidence of P.Ws. 5 and 6. After the complaint in

the midnight in Kanyakumari Police Station at 02:00 a.m. on 18-2-1985, P.W. 1 was sent to the Nagercoil Headquarters hospital where P.W. 5

examined her and as P.W. 1 was looking pale on account of the excessive bleeding and her pulse rate was feeble, she was admitted in the hospital

and treated by P.W. 6. P.W. 6 while examining P.W. 1, has found that in the vaginal part of P.W. 1, there were blood stains and swelling and

laceration in the labium and also found the returned hymen. P.W. 6 in her certificate has expressed the opinion that on account of the rape, she

should have sustained injuries in the private part. The doctor also has found abrasions in the right leg of P.W. 1.

The learned counsel for the petitioner contended that there is unexplained delay of nearly 10 hours in launching the complaint, that no

spermatazoa was found in the vaginal part from the evidence of the expert P.W. 6 and there is inconsistency as to the place of occurrence also and

therefore the prosecution case cannot be accepted. It is true though the occurrence is said to have taken place at 04:00 p.m. the complaint was

given only at 02:00 a.m. on the next day. But the evidence of P.W. 1 clearly explains the reason for the delay. P.W. 1 has lost her mother in her

early years and on the date of the occurrence, her father P.W. 3 and her step-mother went to their relatives house in Nagercoil and therefore there

was no elder member in the house when P.W. returned to the house after the rape. Though the crime was committed against P.W. 1, who is a

young girl of 13 years old, she herself would not have gone to the police station straightway to launch a complaint against the perpetrator of this

crime. As this is a sexual offence, P.W. 2, who was also the eye-witness might have hesitated to set the law in motion, because without knowing

the mind of the father of the girl, he would have hesitated to take the girl to the police station for legal action. Therefore, the unfortunate girl was

waiting for her parents till the night and when her father came by 01:00 a.m. on the midnight, she narrated the incident and immediately she was

taken to Kanyakumari police station where Ex. P-1 complaint was given. Therefore, it cannot be stated that there is no explanation for the delay in

setting the law in motion.

With regard to the absence of spermatazoa, for the absence of the sperm, it cannot be viewed that there could not have been penetration of the

male organ because in this case the evidence is that the revision petitioner was committing the rape, when P.W. 1 was resisting it and was also

shouting for help and that P.W. 2 and one Muthunadar came there hearing the voice of P.W. 1 and the revision petitioner, on seeing them, ran

away from there. The revision petitioner is not a young boy but has crossed the age of 30 and is having wife and children. While he was committing

the sexual intercourse, as P.W. 2 and Muthunadar came there and he ran away, probably before the emission of sperm, as his act was disrupted

there could not have been the sign of sperm in vaginal part or some times the emission of the sperm might have occurred outside the vaginal part,

as P.W. 1 was resisting the violence against her. But one thing is certain and that is the penetration of the male organ, because of the injuries found

on the vaginal part. The hymen also was ruptured and there was swelling in the labium majora, apart from the laceration. Further, P.W. 6 has found

clotted blood in the vaginal part. Therefore, it is certain that because of the forcible thrust of the male organ, the injury must have been caused to

the private part and P.W. 1 therefore had cried of pain and also shouted for help.

Further due to resistance, she also had sustained injuries on her right leg. The learned counsel for the revision petitioner contended that as the

evidence of P.W. 1 is that she was laid flat on the ground face upwards there could not have been any injuries on dorsum of her right leg and,

therefore, the injuries on the right leg could not have been due to the resistance. When the evidence of P.W. 1 is that she was forcibly carried away

to the coconut thope where she was laid on the ground and raped, we cannot presume that she was lying idle on the ground when the sexual act

was committed. As the evidence discloses that she resisted the attempt of the revision petitioner, the abrasions on the right leg were possible during

that act.

There is one other clinching evidence to identity the culprit of this case. P.W. 1 in her evidence has stated that when the revision petitioner was

committing the rape, she resisted and pushed the aggressor by her hands and that time, her nails had made mark in the neck of the revision

petitioner. This has been noted by the doctor P.W. 8, who examined the revision petitioner on 19-2-85. According to P.W. 8, he found 2"", 1

linear scratches in the neck region and those injuries could have been caused two days before his examination. He has also stated that they could

have been caused by the nails. Therefore the nail marks also have been found by the doctor when the revision petitioner was examined by him to

identity the revision petitioner as the culprit of this offence. But the learned counsel for the revision petitioner contended that the nail marks in the

neck of the revision petitioner must have been caused by the police when he was beaten and therefore that injury cannot be taken to connect with

the crime. According to P.W. 13, the revision petitioner was arrested only on 19-2-85 at 05:00 p.m. Within few minutes, he was produced before

the doctor P.W. 8 for examination. Therefore if the police had caused these injuries on his neck by beating him, the injuries must have been fresh

but P.W. 8 has stated that nail mark injuries were about 2 days old. Therefore, the revision petitioner cannot escape by saying that the nail marks

on his neck were caused by the police.

The learned counsel contended that P.W. 1 has stated to the doctor P.W. 6 that she was raped in Gnanamadam whereas her evidence is that

she was raped in a coconut thope near Muthar tank and therefore there is discrepancy as to the place of occurrence. The Muthar tank and

coconut thope are the places. But Gnanamadam is the name of the place. Probably the area or the building the that place might have been known

as Gnanamadam. P.W. 4 in his evidence has stated that there is a building south of the Agathiar temple and that building is known as

Gnanamadam. Anyhow, I do not find any discrepancy in the evidence of P.W. 1 as to the place of occurrence. She has specifically mentioned in

her complaint Ex. P-1 and also in her evidence that she was lifted from Muthar tank bud to the adjacent coconut thope were she was raped.

Mentioning the place Gnanamadam to the doctor P.W. 6, probably must be referring to the name of the locality or the building nearby, Therefore,

it is not creating any doubt as to the place of occurrence.

The learned counsel for the revision petitioner contended that one Muthu Nadar is said to have chased the revision petitioner and therefore he

will be the proper person to speak about the occurrence but he was not examined by the prosecution and therefore the best evidence that is

available in this case has not been placed before the Court. The evidence of P.W. 2 is that when he came to Muthar tank for taking bath, hearing

the voice of P.W. 1, he and Muthu Nadar together went into the coconut thope and saw the revision petitioner committing the rape on P.W. 1.

According to him, as the revision petitioner on seeing them ran away, Muthu Nadar chased him for some distance but the revision petitioner had

escaped. This evidence discloses that Muthu Nadar was in no way has better knowledge than P.W. 2 with regard to the occurrence. Both of them

went together and saw the occurrence. Therefore, it is not necessary that both of them should be examined as witnesses. As P.W. 2 is the eye-

witness and there is nothing to discredit his testimony, the non-examination of the other eye-witness Muthu Nadar is not going to affect the

prosecution case.

A motive has been suggested against P.W. 1 alleging that P.W. 3 the father of the victim girl had brought the wife of another man to live with

him as his second wife and as the father of revision petitioner racked up this matter in the panchayat, P.W. 3 has grievance against the revision

petitioner and therefore the story has been concocted against the revision petitioner through his daughter P.W. 1 to implicate him in this offence. If

the father of the revision petitioner was acting against P.W. 3, that too for marrying the wife of another man, I do not think that P.W. 1 would have

chosen to implicate the revision petitioner in this case. When it is beyond doubt that P.W. 1 has been sexually assaulted because of the injuries in

her vaginal part, there was no reason for P.W. 1 to implicate the revision petitioner allowing the real culprit to escape. There is no reason to

disbelieve the evidence of P.Ws. 1 and 2, whose testimony stands unshattered. Therefore the courts below were perfectly right in acting upon the

evidence of the eye-witnesses, which is corroborated by the medical evidence also, to hold that this revision petitioner is guilty of the offences

under Ss. 341 and 376 Indian Penal Code. Therefore, there is no reason to interfere with the conclusions of the courts below.

Coming to the question of sentence, even thought minimum sentence of 7 years in prescribed for the offence under S. 376 Indian penal Code,

the courts below have taken a very lenient view taking into consideration of the family circumstances of the revision petitioner and have convicted

him to undergo rigorous imprisonment for three years only. The sentence cannot be said to excessive. Therefore, no modification is required in the

sentence also. Hence, the revision is bound to fail.

In the result, the revision is dismissed. If the revision petitioner has undergone the sentence, after the remission of the sentence as per the

Government Orders applicable to him he may be released.

Petition dismissed