S. Pandi vs The State

S. Nagamuthu, J.—The appellant is the sole accused in S.C. No. 94 of 2006, on the file of the learned Sessions Judge/Mahila Court, Madurai. He stood charged for the offences under Sections 450 and 376 of the Indian Penal Code. By Judgment dated 11.05.2007, the Trial Court convicted him under Section 450 and Section 376 r/w. Section 511 of the Indian Penal Code, instead of Section 376 of the Indian Penal Code. The Trial Court imposed sentence of rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months for the offence under Section 450 of the Indian Penal Code and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months for the offence under Section 376 r/w. Section 511 of the Indian Penal Code. Challenging the same, the appellant is now before this Court with this Criminal Appeal. The case of the prosecution, in brief, is as follows:--

PW-1 is a resident of Thirumalpuram in Madurai. PW-2 is her husband. They have a daughter, by name, Ms. T. Palaniselvi. Some time before the occurrence, Ms. T. Palaniselvi had brain fever and in the result, there was no full recovery. She became mentally ill. During night time, Ms. T. Palaniselvi would not sleep. Therefore, on the advise of the doctor, PW-1 and PW-2 used to give sleeping drugs to her. Ms. T. Palaniselvi used to sleep in the house of her uncle, which is adjoining the house of PW-1 and PW-2. PW-1 and PW-2 used to sleep on the verandah of the house. On the night, intervening 23.01.2006 and 24.01.2006, Ms. T. Palaniselvi was sleeping inside the house as usual. PW-1 and PW-2 were sleeping on the verandah of the house. When they were fast asleep, they heard alarm raised by Ms. T. Palaniselvi from inside the house. On hearing the hue and cry raised by her, both of them rushed into the house. It was around at 01.00 A.M.

1.1. To their shock, they found the accused half naked and the dress of Ms. T. Palaniselvi was not in order. She was lying her face downwards. PW-1 and PW-2 caught hold him, brought him outside and tied him so as to prevent him from escaping. PW-1 informed the relatives of the accused about the occurrence. One Mr. A. Balu and Mr. B. Velmurugan, the relatives of the accused, came and rescued the accused. They told PW-1 and PW-2 that they could discuss about the matter in the morning. On 24.01.2006, since there was no response from the said Mr. A. Balu and Mr. B. Velmurugan, PW-1 went in search of Mr. A. Balu in the evening. The accused was not found at the house of Mr. A. Balu. However, Mr. A. Balu told PW-1 that if he had so decided, he could go to the police station and make complaint. Thereafter, PW-1 and PW-2 were in search of the accused for about five days. But, they could not find him anywhere. Finally, on 29.01.2006, PW-1 went to the All Women Police Station at Thallakulam, Madurai and made a complaint, under EX-P1.

1.2. PW-13 was the then Inspector of Police, attached to the All Women Police Station, Tallakulam, Madurai. On receipt of EX-P1, at 10.00 A.M., on 29.01.2006, she registered a case in Crime No. 3 of 2006 under Section 376 of the Indian Penal code. EX-P11 is the First Information Report. He forwarded EX-PI and EX-P11 to the Court. PW-13 took up the case for investigation. She found that Ms. T. Palaniselvi was mentally ill and therefore, she could not be examined. She examined PW-1 and PW-2 and recorded their statements. Then, she proceeded to the place of occurrence at 11.30 A.M. and prepared an Observation Mahazer and a Rough Sketch showing the place of occurrence. At 12.15 P.M., she recovered a Chudithar Pant and a shirt worn by Ms. T. Palaniselvi at the time of occurrence under EX-P2, Mahazer. Then, she examined few more witnesses. On 29.01.2006, at 04.00 PM, she arrested the accused at Jawaharlalpuram. On such arrest, he made a voluntary confession statement, in which he stated that he had hidden his dress materials at his house. Based on the same, he took PW-13 and the other witnesses to his house and produced the pant, MO-3 from his house. Then, she forwarded the accused as well as Ms. T. Palaniselvi to the Jurisdictional Magistrate. Since it was too late, the learned Judicial Magistrate directed them to be produced on the next day. Accordingly, they were produced. At the request of the Inspector of Police, the victim girl was sent to the Government Rajaji Hospital, Madurai, for examination.

1.3. PW-8, Dr. Shanthi examined Ms. T. Palaniselvi and found that there were no external injuries. Her hymen was intact. There was no bleeding or discharge. She found that Ms. T. Palaniselvi had not been subjected to sexual intercourse. PW-9, Dr. V. Ramanujam, examined Ms. T. Palaniselvi and gave opinion that she suffered from paranoid schizophrenia. EX-P7 is the treatment records of Ms. T. Palaniselvi. PW-10, Dr. J. Alavudin, examined the accused and found that he was not an impotent. EX-P10 is the certificate issued by him. Continuing the investigation, PW-14 examined few more witnesses, collected medical records and filed the final report.

1.4. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, the prosecution examined as many as 14 witnesses and 16 documents were exhibited, besides 3 Material Objects.

1.5. Out of the fourteen witnesses, PW-1 and PW-2 have spoken to about the occurrence. Ms. T. Palaniselvi could not be examined as she was mentally ill and unfit to give evidence. PW-3 to PW-5 have turned hostile and they have not supported the case of the prosecution in any manner. PW-6 is the neighbour of PW-1 and she has stated that on hearing the alarm, when she came out her house, she found that Mr. A. Balu was requesting PW-1 and PW-2 to release the accused. PW-7 has turned hostile. The others are either doctors or police officials.

1.6. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of incriminating evidences available against him, he denied the same as false. However, he did not choose to examine any witnesses nor to exhibit any documents.

Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment. That is how, the appellant is now before this Court with this Criminal Appeal.

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

The learned Senior Counsel appearing for the appellant would submit that though the main charge framed was under Section 376 of the Indian Penal Code, from the evidences of PW-1 and PW-2, the Trial Court has found that there was only an attempt to rape. But, the learned Senior Counsel would submit that even if the evidences of PW-1 and PW-2 are taken into account, it would not make out an offence under Section 376 of the Indian Penal Code. At the most, it would make out an offence under Section 354 of the Indian Penal Code. The learned Senior Counsel would further submit that the evidences of PW-1 and PW-2 are highly motivated and therefore, their evidences should not be believed. He would further add that there is enormous delay of five days in making the complaint, which creates a doubt in the case of the prosecution.

Per contra, the learned Additional Public Prosecutor would submit that the delay of five days in making the complaint was explained by PW-1 to the satisfaction of the Court. He would further submit that there is no reason to reject the evidences of PW-1 and PW-2. He would also add that the evidences of PW-1 and PW-2 would clearly go to show that the offences committed by the accused would fall under Section 450 and Section 376 r/w. Section 511 of the Indian Penal Code. Thus, according to him, there are no reasons to interfere with the well considered Judgment of the Lower Court.

I have considered the above submissions. Of course, there is a delay of about five days in making the complaint to the police. In a case of this nature, it is a common knowledge that the victims may not go to the police station immediately, because such occurrence involves modesty of the victims. Here, in this case, from the medical records, it is crystal clear that Ms. T. Palaniselvi was mentally ill, as she was suffering from paranoid schizophrenia. Therefore, PW-1 and PW-2, who are illiterates, have taken some time to think it over to go to the police station to make complaint. As a matter of fact, Mr. A. Balu intervened and rescued the accused. Because of his intervention, they did not go to the police station immediately. Thereafter, PW-1 and PW-2 were in search of the accused. But, they could not find him. This has caused delay of five days. Thus, this explanation offered by PW-1 is acceptable, as the same is highly probable.

The presence of the accused at the crucial time has been spoken to not only by PW-1 and PW-2, but by PW-6 also, who is a neighbour of PW-1. PW-6 has stated that at the request of Mr. A. Balu, PW-1 and PW-2 released the accused. There is no reason to reject the evidence of PW-6. Thus, from the evidences of PW-1, PW-2 and PW-6, it has been clearly established that the accused had trespassed into the house of PW-1.

Though it is stated by the learned Senior Counsel appearing for the appellant that due to previous motive, the accused was falsely implicated in this case, I do not find any force in the said argument, as except making such suggestion, no material has been brought to the notice of this Court even to probabilise such motive. Therefore, this argument is rejected.

Nextly, the learned Senior Counsel would submit that even assuming that the evidences of PW-1, PW-2 and PW-6 are believable, the offences said to have been committed by the accused would not fall under Section 376 r/w. Section 511 of the Indian Penal Code. I find every force in the said argument advanced by the learned Senior Counsel. The evidences of PW-1 and PW-2 would go to show that at the time of occurrence, the accused was found inside the house. Ms. T. Palaniselvi cried. These two facts would, at the most, give an inference that the accused would have outraged the modesty of Ms. T. Palaniselvi. Absolutely, there is no evidence to show that he made any attempt to rape her. Therefore, the above act of the accused would make out an offence under Section 354 of the Indian Penal Code.

Now, turning to the offence under Section 450 of the Indian Penal Code, since the accused had trespassed into the house of PW-1 and there was no attempt to rape her, such an act of trespass would only make out an offence under Section 448 of the Indian Penal Code.

Now, turning to the quantum of punishment, the learned Senior Counsel would submit that the appellant is a poor man and he has got no properties. He is a heart patient and he has undergone open heart surgery and thus, he cannot do any physical work and as such, he is not able to earn anything.

The wife of the appellant, who is present before this Court, says that her husband has undergone open heart surgery, due to which he is not in a position to go for work. To support her claim, she had also produced medical records. She would further submit that she is an agricultural coolie and she is taking care of her husband from out of her earnings and she would only plead mercy.

Going by the medical records also, it is crystal clear that the accused will not bear the jail atmosphere, as his health condition would not permit. Going by all these mitigating circumstances and going by the gravity of the offences, to strike the balance between these two, I have to decide the quantum of punishment. In my considered view, in the matter of punishment, the accused deserves for some leniency. It is reported to this Court that the accused had already undergone imprisonment for a period of 54 days. This, in my considered view, would be sufficient to meet the ends of justice. In the result, this Criminal Appeal is party allowed in the following terms:--

The conviction of the appellant under Section 450 of the Indian Penal Code and Section 376 r/w. 511 of the Indian Penal Code is set aside and instead, the appellant is convicted under Sections 354 and 448 of the Indian Penal Code. Insofar as the sentence is concerned, the period of sentence already undergone is held to be sufficient for both the offences and accordingly, he is set at liberty, as he has served the sentence. No fine is imposed and the fine amount already paid by the appellant is ordered to be returned to him.