Paul Pazham @, Pazham vs State

P.R. Shivakuinar, J.—The sole-accused in Sessions Case No. 468 of 2002 disposed of by the Mahila Court Tirunelveli, by Judgment, dated 8.2.2006 is the Appellant in this Appeal. He was prosecuted before the Trial Court for alleged offences punishable under Sections 450, I.P.C. & 376, I.P.C.

The learned Trial Judge upon consideration of the evidence held the prosecution to have proved the charges against the Appellant/Accused beyond reasonable doubt and accordingly, convicted the Appellant herein/Accused holding him guilty of the above said offences with which he stood charged with the following punishments:

Section

Punishment

450, I.P.C.

Rigorous Imprisonment for 7 years and a tine of Rs. 5,000/- with a default sentence of 2 years Rigorous Imprisonment

376, I.P.C.

Rigorous Imprisonment for 7 years and a fine of Rs.5,000/- with a default sentence of 2 years Rigorous Imprisonment

The Judgment of the Trial Court dated 8.2.2006 made in the said Sessions Case. No.468 of 2002 is challenged by the Appellant/Accused in this Appeal on both the grounds namely, regarding the conviction and quantum of punishment.

The case of the prosecution, in brief, is as follows:

(i) The victim (PW1) & (PW2) the sister of the victim are the residents of Azhagappauram village, Radhapuram Taluk. Tirunelveli District The parents of the victim used to stay in then work place situated at about 5 kms away from Azhagappauram and as such, it was quite useful for the victim (PW1) and her sister (PW2) alone to spend their nights in their hut at Azhagappauram. On 13.10.2000 at about 01.00 a.m. with an intention of having sexual intercourse with the victim (PW1), the Appellant. Accused entered the house sneaking through the gap between the wall and the thatched roof After gaining access into the house, he lifted the Petticoat of PW1, jumped over her and attempted to have sexual intercourse with her without her consent When she resisted and attempted to raise an alarm, the Appellant Accused subdued her attempt by putting his shirt removed from his body into her mouth, over powered her and had sexual intercourse with PW1 without her consent and against her will.

(ii) PW2 got awakened by the noise created by the struggle made by PW1 to escape from the clutches of the Appellant/Accused and she lighted the Chimney Lamp besides lighting a torch light with the illumination of winch both PWs.1 & 2 were able to see the face of the Appellant/Accused and identify him to be Paul Pazham alias Pazham of Melatheru, Azhagappapuram. Immediately, the Appellant/Accused escaped from the scene of occurrence.

(iii) The message regarding the above said incident was conveyed by PW8-Rajalingam, the maternal uncle of PW1 to PW3-Selvamani, the father of PW1 at 9.00 am on 13.10.2000 PW3, on his arrival at Azhagappapuram took PW1 to Panagudi Police Station and lodged a complaint under Ex P1 PW11, the Sub-Inspector of Police registered an FIR under Ex P5 based on the above said Complaint viz., Ex P1 and placed the CD file before the PW12, the Inspector of Police, for investigation.

(iv) PW12. the Investigating Officer, during investigation, visited the place of occurrence, prepared Ex P2-observation mahazor and Ex P6-Rough Sketch, examined the witnesses, arrested the Accused and sent him for remand, referred the victim girl to the Medical Officer for Medical-examination and also referred the Appellant. Accused for potency test. During the course of investigation, the Investigating Officer (PW12) also obtained Ex P3-School Certificate of PW1 from PW9, Headmaster of the School in which PW1 allegedly studied up to 5th standard in order to show that she was a minor less than 16 years old as on the date of occurrence.

(v) PW10-Dr Vanaja Jasmine, treated PW1 and issued Ex.P4-Certificate opining that PWI was not a virgin but sire could have had sexual intercourse not in the recent past but long before her examination by PW 10. The Investigating Officer received the sard Certificate and the Certificate issued by the Medical Officer after conducting Potency Test for the Appellant/Accused, completed the investigation and submitted a Final Report alleging commission of lurking house trespass punishable under Section 457, I.P.C. and rape punishable under Section 376, I.P.C.

After the case was duly committed for trial by the committal Magistrate in P.R.C.No. 4 of 2002, the case was taken on file in the Sessions case Division of Tirunelveli as Sessions Case No.468 of 2002 and on the question of jurisdiction, it was made over to the Mahalir Needhimandram (Mahila Court), Tirunelveli for trial and disposal.

In order to prove the prosecution case, as many as 12 witnesses were examined as PWs 1 to 12 & 9 documents were marked as Exs 1 to 9 besides producing two material objects as MOs.1 & 2 on the side of the prosecution. After being questioned under Section 313(1)(b), Cr.P.C regarding the incriminating materials found in the evidence adduced on the side of the prosecution, no witness was examined and no document was produced on the side of the Appellant/Accused.

The learned Trial Judge, after hearing the arguments advanced on both sides, considered the evidence in the light of the points urged in the arguments and upon such consideration pronounced a Judgment holding the Appellant/Accused guilty of both the offences punishable under Sections 457 & 376, I.P.C., for which he was prosecuted, convicted him as per the charges and punished him as indicated supra.

The points that arise for consideration in this Appeal are

(i) Whether the Trial Court has committed an error in convicting the Appellant/Accused for the offences punishable under Sections 457 & 376, I.P.C., holding him guilty of the said offences?

(ii) in case the answer to the question (i) is in the negative, whether the punishment imposed is excessively disproportionate and liable to be reduced ?"

The arguments advanced by Mr. V. Kathirvelu, learned Senior Counsel for the Appellant/Accused and Mr. T. Mohan, learned Additional Public Prosecutor are heard. The Judgment of the Trial Court and other materials available on record are also perused. This Court also reappraised the evidence in order to find out whether the finding of the Court below can be sustained or not.

It is the contention of the learned Senior Counsel appearing for the Appellant Accused that the learned Trial Judge, disregarding a number of discrepancies found in the prosecution case and the evidence adduced though the prosecution witnesses, both oral and documentary chose to record a conviction for the offences, that the said finding of the Trial Court ts totally erroneous, infirm and defective and that hence, the same should be interfered with and reversed by this Court. In support of the said contention, learned Senior Counsel has made the following submissions:

"The prosecution itself was not sure of its case as to whether there was any consent or absence of consent on the part of PW1 for the alleged sexual intercourse. The same was the reason why the prosecution had chosen to rely on Ex P3-Record Sheet obtained from PW9, who was a retired Headmaster of a School, in order to show that the victim was aged below 16 years as on the date of occurrence, so that the consent, if any, might be immaterial in establishing the prosecution case of commission of offence under Section 376, I.P.C. The said document is totally unreliable in the light of the evidence adduced by the victim girl herself as PW1 that she has studied only up to 3rd Standard, whereas in Ex. P3 entries had been made as if she studied up to 5th Standard and passed even 5th Standard. The same was the reason why the Prosecuting agency did not produce the Report of the Ossification Test which could have been conducted as usually done in case, the victim happens to be on the border line of age 16 years. The Medical evidence regarding the age of the victim has been deliberately suppressed in order to project the case to be a case of rape of a girl aged below 16 years. PW10, Medical Officer also opined that the victim had completed the age of 16 years. The vital discrepancy regarding the source of light with which PWs 1 & 2 were able to identify the Accused was not adverted to by the learned Trial Judge. Had the Trial Judge property considered the evidence of PWs 1 & 2 regarding the illumination point throwing light on the face of the accused to be identified by PWs. 1 & 2, it would have definitely disbelieved the evidence of PWs 1 & 2 regarding the identification. The improbability of the Accused sneaking through a small gap in between the wall and the roof without being caught and detained by the victim girl and her sister, who were two in number, was also not adverted to by the learned Trial Judge which resulted in an erroneous finding if not perverse. The learned Trial Judge also omitted to consider the fact that no torch light was shown to the Investigating Officer and torch light allegedly used by PW2 was neither shown at the time of preparing of Observation Mahazor Ex. P2 nor recovered by the Investigating Officer. The learned Trial Judge also simply avoided noticing the discrepancies in the evidence of PWs 1 & 2 as to whether the flame of Chimney Lamp was increased by PW2 or the Chimney Lamp which was not burning at the time of occurrence and was ignited by PW2 on hearing the struggling the noise of PW1. There is also no explanation as to how the Appellant/Accused was able to identify in the dark when both the PWs.1 & 2 were sleeping side by side without being detected by PWs.1 or 2. The Medical evidence adduced through PW10 will falsify the prosecution case that she was subjected to forcible sexual intercourse on the alleged date of occurrence. As the evidence of PW10 and Ex P4-Certificate issued by PW10 revealed the fact that she could not have had sexual intercourse (either voluntary or involuntary) in the recent past namely, a few days prior to her examination by PW10. There is also a discrepancy regarding who was the scribe of Ex P1-Complaint and where it was prepared. According to PW11''s evidence, a mitten Complaint was handed over to him, based on which, he prepared the FIR PW1 also says the same thing. But none of the Prosecution Witnesses speak about the place wherein the Complaint was prepared and the scribe who wrote the Complaint. If at all the above said aspects were taken into consideration by the learned Trial Judge, the Taal Court would have arrived at a conclusion that there were many imponderables and more reasonable doubts regarding the prosecution version, resulting in a decision that the prosecution failed to prove the charges against the Appellant/Accused beyond reasonable doubt. As the learned Trial Judge had not considered those aspects, it resulted in an erroneous finding holding linn guilty of the offences with which he stood charged and convicting him accordingly".

Based on the above said submissions, the learned Senior Counsel for the Appellant/Accused argued that this Court, on re-appreciation of evidence, should hold the finding of the Trial Court to be erroneous, set aside the Judgment of the Trial Court and acquit the Appellant/Accused holding that the prosecution miserably failed to prove its case beyond reasonable doubt.

Per contra, Mr. T. Mohan, learned Additional Public Prosecutor, would contend that in the absence of Birth Certificate or other authentic document to show the date of birth or the age of the victim (PW1), reliance made on the School Certificate could not be found fault with and that since the victim girl was aged below the 16 years as per Ex P3-School Certificate as on the date of occurrence, the presence or absence of consent shall be immaterial and the proof of sexual intercourse alone will be enough to prove the charge of committing the offence punishable under Section 376, I.P.C. made against the Appellant/Accused. It is the further contention of the learned Additional Public Prosecutor that the minor discrepancies found in the evidence of the Prosecution Witnesses are blown out of the proportion by the learned Senior Counsel for the Appellant Accused and an attempt has been made by the learned Senior Counsel for the Appellant/Accused to show that the prosecution has not proved its case beyond reasonable doubt. Learned Additional Public Prosecutor would contend further that the trivial differences cannot be termed contradictions much less material contradictions and they are to be ignored, that even if the Court does not believe the evidence of other witnesses, the cogent evidence adduced by the victim (PW1) herself cannot be rejected as it is quite natural and that convicting the Accused on the basis of the evidence of the prosecutrix is not against law and is not unknown to law.

Based on the above said submissions, the learned Additional Public Prosecutor, submits that there is no error or defect, much less a grave error found in the Judgment of the Trial Court convicting the Appellant Accused for the offences punishable under Sections 457 & 376, I.P.C. warranting interference by this Court

This Court paid its anxious considerations to the above said submissions made on both sides.

Let us now consider whether the prosecution has proved its case beyond reasonable doubt and whether the finding of the Trial Court in this regard can be termed either defective, infirm or perverse, warranting interference by this Court. The occurrence is said to have taken place during night hours i.e., one hour after midnight. The occurrence place is a small house which can be termed as cottage According to the prosecution case, the Appellant/Accused did not break open the lock of the main door or any door of the said house to gain access into the house in order to accomplish his intention of having sexual intercourse with the victim (PW1). On the other hand, as per the evidence of PWs.1 & 2 which is also corroborated by PW12-Investigating Officer and by the Observation Mahazor marked as Ex P2, there was a short wall and the thatched roof of the house was rested on the wall leaving a gap of 1 feet between the wall and the roof According to the prosecution case, the Appellant Accused peeped into the house through the said gap for gaming his access. The evidence makes it clear that a person can gain access through the said gap only in a horizontal lying position, that too with much difficulty. This is so clear from the evidence of PW2. If at all, a person could choose such a gap as a point of access into the house, that too during night hours, the same may give rise to a suspicion that he could have done so on previous occasions also. If the same is considered in the light of the fact that no alarm was made by the victim (PW1) and there were also discrepancies regarding whether she could recognise the person having sexual assault on her to be the Appellant Accused. When there are discrepancies regarding on what light PW1 saw the face of the Accused, as rightly contended by the learned Senior Counsel for the Appellant/Accused, it may lead to an inference or a suspicion, at least, that there could have been an invitation and a consent on her part.

If at all the prosecution story of the alleged occurrence could be true, as rightly contended by the learned Senior Counsel for the Appellant/Accused, the prosecution would not have suppressed the result of the Ossification Test and Medical examination conducted for fixing the age of the victim. We have to presume that the Investigating Officers and the officials assisting during investigation did their duties in proper manner and they would not omit necessary tilings to be done towards the collection of evidence for ascertaining the truth and prosecuting the Appellant Accused. Whenever a case of rape is reported, it is quite mandatory and it is quite probable for the Investigating Officer to produce the victim before the Magistrate and get an Order for Medical examination, which would include the examination for ascertaining the age of the victim. Such a requirement shall be more stringent when the victim is an unmarried girl in the age group of below 18 years or below When it has been contended by the prosecution that the victim was aged below 16 years and no Birth Register extract was produced, the Investigating Agency ought to have and could have referred the victim girl (PW1) to the Medical Officer for fixation of the age. It is not in dispute that the victim girl (PW1) was referred to the Medical Officer by an order of Magistrate. However, the requisition made by the Investigating Officer either to the Judicial Magistrate concerned or to the Medical Officer, for Medical examination has not been produced and it has been suppressed. As rightly contended by the learned Senior Counsel for the Appellant, Accused, had the Letter/Order requesting Medical examination of the victim girl been produced, it would have shown that a request for fixing the age of the victim was also made and that the suppression of the same will give rise to an adverse inference that the request as well as the Medical evidence regarding the fixation of age were burked as the same would go against the prosecution version in respect of the age of the victim.

The very foundation of the prosecution is the FIR. If the foundation is shaking, then the prosecution story is to be viewed with suspicion. In this case, we cannot find fault with the father of the victim (PW3) taking the victim girl (PW1) to the Police Station to give the Complaint/Ex.P1 came to be lodged with the Police only at 9 p.m. on 13.10.2000. There was a time gap of 20 hours from the alleged time of occurrence. According to the prosecution case, PW3 received information at 10.00 a.m. Thereafter, there was a delay of 11 hours. Of course, in sensational cases like child sexual abuse or sexual assault on an unmarried girl, there shall be hesitation on the part of the parents and a lot of deliberations or consultation as to whether it would be advisable to lodge a Complaint or not shall take place before taking a decision. Therefore, the said time gap alone shall not be taken as a material which would make the case of the prosecution unbelievable or improbable. However, in this case, besides such a delay in lodging the Complaint, there is also a discrepancy as to how the Complaint was lodged According to PWs 1 & 11, a Written Complaint was given in the Police Station. But PW1 was not in a position to say at what place it was written and who acted as the scribe of the Complaint. PW3''s evidence in this regard is not clear as to whether the Complaint was written at some other place or it was written in the Police Station.

The neighbours examined on the prosecution side as PWs 4 to 6 to prove that they heard the hue and cry from PWs.1 and 2 have not supported the prosecution version and they were treated hostile and cross-examined by the Public Prosecutor with the permission of the Court. But the cross-examination of the said witnesses made by the Public Prosecutor did not result in elicitation of any answer favourable to the prosecution case or supporting the prosecution version. PW7, Rajalingam is the maternal uncle of PWs 1 & 2 residing in the very same village According to his evidence, it was informed by PW1 only at 7:00 a.m. In the absence of parents, it is quite natural for the girls who were sexually assaulted to go and inform the near relative like PW7 immediately. But there is no explanation as to why there was a delayed information to PW7 who in turn had to inform the parents of the victim girl.

The evidence of PW10, the Medical Officer who examined PW1, shows that there was no external injury on the face, chest or the female genital organ of PW1. Her evidence shows that hymen had been ruptured, but the vaginal smear taken did not evidence the presence of discharge of any liquid or presence spermatozoa. She was examined on 15.10.2000 and opined that PW1 was not virgin, but she could not have had sexual intercourse in the recent past Then a question would arise how the hymen had been ruptured. If at all it was the forcible rupture of hymen, the wound would not have heeled within two days and the Medical Officer would have noted it. Though the Medical Officer opined that the girl could have been raped without causing any external injury after gagging her mouth with a linen, she has also made it clear that she was not subjected to sexual intercourse in the recent past and the rupture of hymen could have been even caused due to homosexual activities.

According to the prosecution version as spoken to by PWs.1 & 2, after the Appellant Accused was identified by them, he did not open the door and ran away and on the other hand, he again exited through the gap in between the wall and the roof which was small enough for a person to suddenly escape through such gap. If at all, an attempt was made by him to escape through such gap, he could have been caught by PWs 1 & 2 and overpowered him while he had protruded a part of his body through the gap outside the house and still the other part would have been inside the house. Nothing was done either by PW1 or PW2 to catch him and bring it to the notice to the neighbours by raising alarm.

So far as the identification of the Accused by PWs.1 & 2 during his action is concerned, the story propounded by the prosecution does have a number of loopholes. First of all, there is a vital discrepancy between the evidence of PWs.1 & 2 as to whether the Chimney Lamp was burning with a small flame which was increased by PW2 or it was not burning making it necessary for PW2 to lit the Chimney Lamp. It is the evidence of PW1 that the Chimney Lamp was not burning and it was dark when the Appellant/Accused committed sexual assault on her and that when she raised a voice, her younger sister namely, PW2 switched on the torch light in the illumination of which she was able to identify the Appellant/Accused However, PW2 gives a contrary version. She would say that while they were sleeping on dreadful night, the Chimney Lamp was burning and on hearing the noise of the struggle made by PW1, she switched on the torch light and identified the Appellant/Accused. She has also given version in the cross-examination, contrary to what she had stated in the chief-examination. Giving a go bye to the statement made in the chief-examination that the Chimney Lamp was burning, during the cross-examination she stated that the Chimney Lamp was not burning and the entire room was in dark. The subsequent act on the part of PW2 also gives use to a suspicion. As per her version, she acted very normally and she went to the school in the morning on the alleged date of occurrence and only after she came from the School, she accompanied her parents and PW1 to the Police Station to lodge a Complaint. PW2 in her evidence says that when she accompanied her parents to the Police Station, the Police recorded the Complaint/Statement to their dictation. This is contrary to the evidence of PWs 1 & 11 that a written Complaint was lodged.

We have already seen that the presence of torch light in the scene of occurrence was not noted by the Investigating Officer while preparing the Observation Mahazar marked as Ex P2 and Rough Sketch marked as Ex P6. It was also not produced before the Investigating Officer and it was not recovered to show that there was a torch light and the same was used by PW2 to identify the Appellant/Accused Even though the MO1, the shirt of the Appellant Accused was produced which was allegedly used for gagging the mouth of the victim (PW1) at the time of his alleged act of raping PW1, there is no reliable evidence to connect the said shut with the Appellant Accused. Except a bald statement that the shut had been left by the Appellant Accused in the place of occurrence and the same was handed over by the victim (PW1) to the Police officials at the time of lodging the Complaint, there is no evidence to show that the said shirt belonged to the Appellant/Accused. It was also not tried on the Appellant/Accused to find out whether it could have been to his size. The tailor or the shop in which it was purchased if it was a ready made shirt also has not been examined and no investigation in this regard was conducted. Even though, the Petticoat of the Victim (PW1) was produced as MO2, there was no seminal stain found in the Petticoat indicating that she could have been subjected to intercourse. In fact MO1-Shirt was not sent to the forensic Lab. On the other hand, MO2-Petticoat, which was sent to the Forensic Lab for Chemical examination, resulted in no opinion useful to the prosecution. In fact the examination of the Petticoat did not result in detection of any semen or spermatozoa. If all the above said aspects are taken into consideration, any reasonable person can arrive at a conclusion that the prosecution failed in many respects and the improbabilities in the prosecution case created by the discrepancies/contradictions, which cannot be termed trivial, will lead to the only conclusion that the prosecution miserably failed in its attempt to prove either the charge of lurking house trespass punishable under Section 457, IPC or the charge of rape punishable under Section 376, I.P.C. Proper appreciation of evidence will lead to the inescapable conclusions that there are many loopholes and reasonable suspicion regarding the prosecution version and hence, it is not desirable in the interest of justice to convict the Appellant/Accused on the strength of the above evidence. The learned Trial Judge committed an error without taking into consideration the above said aspects and thus, the learned Trial Judge has rendered a finding holding the Appellant Accused guilty of the offences punishable under Sections 457 & 376, IPC. The said finding cannot be confirmed and it deserves to be set aside and reversed.

For all the reasons stated above, this Court comes to the conclusion that the conviction of the Appellant Accused for the offences under Sections 457, I.P.C. & 376, I.P.C., recorded by the Trial Court is liable to be set aside and that the Appellant/Accused is entitled to be acquitted holding him not guilty of any of the offences for which he was prosecuted since the prosecution has not proved its case beyond reasonable doubt.

Accordingly, the Criminal Appeal is allowed The Judgment of the Trial Court is set aside regarding the conviction as well as the sentence and the Appellant/Accused is acquitted of both the offences with which he stood charged. The fine amount if any, paid by him shall be refunded. As it is reported that the Appellant/Accused is on bail, the bail bond shall stand cancelled.