Karunakaran vs State

R. Mala, J.—This appeal arises out of the judgment dated 28.11.2012, made in S.C. No. 393 of 2010 on the file of the learned Sessions Judge, Mahila Court Salem, whereby the appellant herein was convicted for the offences under Section 376(1) IPC and sentenced to undergo rigorous imprisonment for 4 years and also to pay a fine of Rs. 10,000/- and the fine amount was ordered to be paid to the victim as compensation and in default in payment of fine amount, to undergo six months simple imprisonment. The case of the prosecution is as follows:

"(i) On 26.08.2010 at about 10.00 a.m. when P.W. 1 Radhika was coming out of the house for disposing the waste after cleaning the house, the accused invited her to his house by offering chocolate and while the victim girl went to receive the same, the accused pulled her hand and took her to his house and committed rape on P.W. 1 Radhika against her will and without her consent. After returning from school she had narrated the occurrence to P.W. 5 Saroja, aunt of the victim girl, since P.W. 2 Saroja mother of the victim girl was not feeling well and also out of fear that her mother might have scolded her having went to the house of accused. On 03.04.2010 P.W. 1 Radhika went along with her mother P.W. 2-Saroja, P.W. 4 Barathi, uncle of the victim girl. P.W. 5 Saroja paternal aunt of the victim girl to the Police Station for giving complaint against the accused. The complaint was orally given and the same was then reduced into writing by Sundaravalli, Grade-I Police Constable and she registered a case in Cr. No. 5 of 2010 under Section 376 IPC and the printed FIR was marked as Ex. P6.

(ii) On receiving the complaint P.W. 8 Malligeswari, Inspector of Police, went to the scene of occurrence on the same date at 19.15 hrs. and prepared observation mahazar- Ex. P2 and rough sketch-Ex. P11 in the presence of P.W. 3 -Selvam and P.W. 4 -Bharathi. Then, P.W. 8 examined P.W. 1, P.W. 2, P.W. 3, and P.W. 4 and recorded their statements. Thereafter, she arrested the accused Karunakaran on the same day. She also sent a requisition letter to the Judicial Magistrate No. II, Salem on 3.4.2010, for sending the victim girl and the accused for Medical Examination under Exs. P3 and P6 respectively. On 04.04.2010 she again went to the spot and examined P.W. -Saroja and L.W. 6 Manjula and recorded their statements. On 6.4.2010, P.W. 8 examined L.W. 7 Sundaravalli, Grade-I Police Constable and recorded her statement. On 13.4.2010, she examined P.W. 7 Dr. Panneerselvam who had examined the accused and obtained the certificate for examination of sexual offences Ex P7. She also obtained the age certificate from pw 7 Dr. Pannerselvam for the accused as well as the victim girl under Exs. P8 and P9 respectively and recorded his statement on 16.06.2010, she examined P.W. 6 Dr. Saralabai, who had examined the victim girl and obtained the certificate for examination of Sexual offences Ex. P4 and recorded her statement. On 30.06.2010 P.W. 8 went to St. Joseph Girls Higher Secondary School, Suramangalam and examined P.W. 9 Sister, Elizebath, the headmistress and obtained the Age Certificate Ex. P12 of the victim girl as per the entry made in the school record and recorded her statement. On completion of investigation she filed a final report alleging the commission of offence punishable u/s. 376(1) of IPC.

(iii) The trial Court placed the incriminating evidence against the accused under Section 313 Cr PC, he denied the same in toto. After considering the oral and documentary evidence the trial Court found the accused guilty under Section 376(1) of IPC and convicted and sentenced him to undergo four years rigorous imprisonment and to pay a fine of Rs. 10,000/- in default in payment, to undergo six months simple imprisonment. The fine amount was ordered to be paid to the victim as compensation. Aggrieved against the same the accused has filed the present Criminal Appeal before this Court."

Challenging the Judgment of conviction and sentence, the learned counsel appearing for the appellant raised two grounds stating that due to previous enmity, a false complaint has been lodged against the accused. He further submitted that the alleged occurrence took place on 26.03.2010 when the victim girl was in school that was evidenced by P.W. 9-Elizabeth, Headmistress of St. Joseph Girls Higher Secondary School Suramangalam and Ex. D1 Attendance register. But, the said factum has not been considered by the trial court in proper perspective. He further submitted that there is a delay in preferring the complaint, it is further submitted that with a view to grap the money from the father of the accused appellant herein, a false complaint has been given and the same has not been proved by examining D.Ws. 1 and 2 and marking the documents Exs. D1 to D4 by preponderance of probabilities But, the said factum has not been considered by the trial Court. Hence, he prayed for setting aside the judgment of conviction and sentence passed by the trial Court.

Resisting the same, the learned Additional Public Prosecutor submitted that since the victim girl was aged about 11 years at the time of occurrence, the delay in preferring the complaint is not fatal to the case of the prosecution. Even though they pleaded that due to enmity between the son of P.W. 5, namely, Raja who is the cousin of P.W. 1 and the father of the accused with regard to sale of property of the father of the accused and to grab the money from him, a false complaint has been given, but the same has not been proved by the defence, He further submitted that Ex. D2 complaint was given in C.S.R. No. 115 of 2010 on 31.3.2010 i.e. Ex. D3 by one Venkatachalam father of the accused to save his son from the clutches of law. He further submitted that the evidence of P.W. 1 itself is fair. Therefore, he prayed for dismissal of the appeal.

I have considered the rival submissions made on both sides and perused the records.

On perusal of records, the admitted facts are that D.W. 1 Venkatachalam''s son is the accused/appellant Karunakaran who is dumb. The victim girl was studying in 7th standard during the relevant period. To prove the age of the victim girl, P.W. 9-Sister Elizabeth, headmistress of the school was examined and Ex. P12-school Certificate shows that P.W. 1 victim girl was born on 10.11.1997. At the time of occurrence, she was aged about 12 years. The alleged occurrence is said to have taken place on 26.03.2010 at 10.00 a.m. But, the complainant has been given on 03.04.2010 at 18.00 hrs.

It is true that there is a delay in preferring the complaint. In the case, like, the offence against a woman, the complaint cannot be given immediately. A girl or a women in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge in genuine father than fabricated.

It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases the victim girl or the family members has courage to go before the police station and lodge a case.

It is submitted by the learned Additional Public Prosecutor that the delay in preferring the complaint will not be fatal to the case of the prosecution. However, in the present case on hand, the facts of the case is entirely different. Because D.W. 1 had given a complaint against P.W. 1''s cousin by name, Raja under Ex. D2 on 31.03.2010 at 10.00 hrs. and the said complaint was closed on 01.04.2010. In Ex. D4 Raja S/o. Saroja has given an undertaking that he will not make any intimidation against the petitioner, on that basis only, the complaint was closed. A letter given by D.W. 1 finds place in the record, wherein, it was stated that he did not sell the property, if he sells the property through a broker, who was introduced by Raja or any other persons, he would inform the same to Raja. Considering the same, there was a difference of opinion between P.W. 5-Saroja''s son, Raja and the appellant''s father, Venkatachalam.

Now, it is appropriate to consider the evidence of P.W. 1. P.W. 1 -Radhika victim girl, in her evidence, stated that she lost her father and is residing along with her mother, P.W. 2 - Saroja, she is having two sisters and both the sisters got married. She is studying in 7th standard at St. Joseph Girls Higher Secondary School, Suramangalam. In her chief examination, she had categorically stated that the alleged occurrence took place on 26.03.2010 at 10.00 a.m. Whereas, the learned counsel for the appellant has taken me through the evidence of P.W. 9 and Ex. D1 in Ex. D1 Xerox copy of Attendance Register, P.W. 1 Radhika is in Serial No. 48 and her Registration number is 17892. As per Ex. D1, she attended the school on 26.03.2010 in both forenoon and afternoon periods.

At this juncture, it is appropriate to consider the evidence of P.W. 9. Ex P12 was marked through P.W. 9. P.W. 9 Sister Elizebath, Headmistress of the school, in her evidence, stated that the school starts at 09.20 a.m. and the prayer conducts for 15 minutes in the class room, and on Monday only, common prayer goes on. After the prayer in the forenoon there are four periods, each period contains 45 minutes and in the afternoon, there are four periods. The attendance of the students is taken in the first period of forenoon and the first period of afternoon. P.W. 1 studying in 7th standard ''B'' section She fairly conceded that on 26.03.2010 P.W. 1 studied in 7th standard ''B'' Section. She fairly conceded that on 26.03.10 P.W. 1 had attended the classes in both morning as well as evening periods. Considering the same, it shows that the case of the prosecution and P.W. 1''s evidence have been falsified by the evidence of P.W. 9 and Ex. D1.

The victim P.W. 1 Radhika, in her evidence, stated that on the date of occurrence,, she had gone to the School by bus, which is situated about 4 km from her house. She stated that the school starts at 9.30 a.m. She left her home to go to school nearly between 8.00 a.m. and 8.15 a.m. Then only, she is able to attend the prayer at 9.30. a.m. P.W. 1, in her cross examination stated that on the date of occurrence, she went to the school at 8.30 am. She denied the suggestion that since D.W. 1 has given a complaint against her aunt and others, with a view to take vengeance, a false complaint has been given with the help of P.W. 1.

In such circumstances it is appropriate to consider the medical evidence, Exs. P4 and P5 have been marked through P.W. 6 Dr. Saralabai. In Ex P4- Certificate of examination for sexual offences, it is stated as follows: "Genitalia developed appropriate to age. No external injuries. Valve normal. Hgnew assent. Vagina admits Index finger easily."

After receipt of the report, i.e. in Ex. P5, the Doctor opined that the girl is used to sexual life. She also stated that if a woman is used to go by a cycle, there is a possibility of tearing Vagina. She further stated that there is no external and internal injuries. So, considering the evidence of P.W. 6 I am of the view that P.W. 1 has not sustained injury and there is no witness to show that she was subjected to rape. But, the trial Court has not properly examined the medical evidence. It is not the case of the prosecution that the accused or any other persons are having sexual intercourse with the victim girl. So, in such circumstances, the evidence of Doctor has not proved that P.W. 1 was subjected to rape. It is not the case of the prosecution that the girl has given a consent for sexual intercourse. Since no external and internal injuries on P.W. 1 there is no medical evidence to show that she was subjected to rape.

Considering the evidence of P.W. 1 she has not intimated about the act of the accused to her mother, but she intimated the same to P.W. 5 Saroja, P.W. 5 alone took her to the Police Station and gave the complaint after 8 days and after closure of C.S.R. No. 115 of 2010. Considering the same, it shows that there is enmity between D.W. 1 and Saroja''s son, Raja, which forced them to give such complaint by using the 11 year-old girl as an instrument and filed a false complaint against the appellant. So, the accused/appellant herein has probabilised his evidence by way of examining D.W. 1 and D.W. 2 and Exs. D1 to D4. So, there is no evidence for rape. As per Ex. D1 and the evidence of his evidence of P.W. 9, P.W. 1-victim girl had attended the school on 26.3.2010. So the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Therefore, the trial court has not considered those aspect in proper perspective. It is well settled law that the guilt of the accused has to be proved beyond reasonable doubt and the accused has to prove his defence by preponderance of probabilities. In the present case on hand, the accused has proved his evidence by way of marking Exs. D1 to D4 and examining D.W. 1 and D.W. 2 and also cross examining P.W. 6 and P.W. 9. In such circumstances, I am of the view that the prosecution has not proved the guilt of the accused for the offence punishable under Section 376(1) of IPC beyond all reasonable doubt and benefit of doubt is given in favour of the accused. Hence, the accused is acquitted from the charge levelled against him under section 376(1) of PC.

Therefore, the judgment of conviction and sentence dated 28.11.2012, in S.C. No. 393 of 2010 passed by the learned Sessions Judge, Mahila Court Salem, is liable to be set aside.

In fine:

"i) The Criminal Appeal is allowed, by setting aside the judgment of conviction and sentence dated 26.11.2012, in S.C. No. 393 of 2010. Passed by the learned Sessions Judge, Mahila Court, Salem.

ii) The appellant herein is acquitted and he is set free.

iii) The fine amount paid by him is ordered to be refunded."