Saminathan vs State

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred by the accused in S.C.No.155 of 2003 on the file of the Additional

Sessions Judge, Chidambaram,Cuddalore District.

The case of the prosecution in a nutshell is that on 26.9.2002 between 8.00p.m., and 10.30p.m., the accused had lift the victim girl aged 12 to

the field of one Pandurangan and committed the offence of rape. Copies u/s 207 of Cr.P.C. were furnished to the accused by the learned Judicial

Magistrate, Parankipettai who had committed the case u/s 209 of Cr.P.C. on the ground that the case is triable only by a Court of Sessions. The

learned Additional Sessions Judge,Chidambaram on appearance of the accused had framed charge against the accused u/s 376 of IPC and when

questioned, the accused pleaded not guilty.

On the side of the Prosecution , P.Ws 1 to 16 were examined. Exs P1 to P16 were exhibited and M.Os 1to 4 were marked.

P.W.1 is the father of the victim girl. According to him, on the date of occurrence, while he was sleeping on the pial of his house along with his

daughter(P.W.2) the victim, another daughter Priya, his father, his wife P.W.3 and his sister''s son Kumar P.W.4 and at 10 O'' clock , when he

woke up, found her daughter missing and on search he could find her daughter lying on the ground in a nude posture with injuries on the face, chin,

mouth and neck and the girls was found in a semi unconscious stage and there was bleeding from her genetilia. Immediately he removed her

daughter to Government Hospital, Chidambaram and to the Doctor, he informed the injuries might have been caused due to dog''s bite. The next

day,there were panchayat in which P.W.6,P.W.11 Jayaraman and Shanmugam called the accused and enquired, before whom the accused had

admitted for having committed the offence and that on the next day at about 12 noon, he preferred a complaint with the police and had also

produced the Lungi worn by the accused and inskirt used by his daughter. Ex P1 is the complaint preferred by him. M.O.1 is the inskirt of his

daughter. M.O.2 is the lungi belonged to the accused. Ex P2 is Form 95 under which M.O.1 and M.O.2 were sent to the Court.

4a. P.W.2 is the victim girl aged about nine years at the time of deposition before the Court. She would depose that on the date of occurrence,she

was sleeping along with her father, mother,sisters, grand father and paternal uncle Kumar and that the accused under pretext of offering chocolate

lift her to the nearby sugarcane garden and had committed the offence of rape and that she became unconscious and only in the hospital where she

admitted for treatment, she regained her conscious and that her father has preferred the complaint.

4b. p.W.3 is the mother of P.W.2 and the wife of P.W.1. She has also corroborated the evidence of P.W.1 and would depose that when she saw

P.W2 after the occurrence, she noticed injuries on the lips, chin, and neck and genetilia of the victim girl P.W.2 and that at that time she does not

know the cause for the injury on P.w.2. She informed the doctor that the injuries on P.W.2 may be due to Dog''s bite and that inskirt of her

daughter and the blood stained lungi of the accused were recovered by the panchayatars in the panchayat held on the next day. Since the

panchayat could not be fructified , the panchayatars instructed P.W 1 her husband to prefer a complaint with the police who had handed over the

blood stained lungi of the accused as well as the inskirt of her daughter to the police.

4c. P.W.4 is one Kumar, the paternal uncle of P.W.2. He would corroborate the evidence of P.W.1,P.W.2, P.W.3 to the effect that on the date

of occurrence ie., on s26.9.2002 at about 8.00p.m., he was sleeping with P.W.1,P.W.2, P.W.3, his grand father and aunt on the pial of the house.

After hearing hue and cry raised by the other witnesses, he also woke up and saw P.W.2 lying near the land without any wearing apparels on her

body and that he could see the injuries on the face of P.W.2. On the next day before the Panchayat , the accused had admitted the offence and

that P.W.1 has preferred the complaint on 28.9.2002 at about 12 noon.

4d. P.W.5 is the grand father of P.W.2 who has also corroborated the evidence of other witnesses viz., P.W.1, P.W.2,P.W.3,P.W.4 to the effect

that on the previous night to the date of occurrence, he was also sleeping on the pial along with other witnesses including the victim girl.

4e. P.W.6 has not supported the case of the prosecution. P.w.7 is not an eye witness. P.W.8 has not supported the case of the prosecution.

P.W.9 would depose that before the panchayat the accused had admitted his guilt. P.W.10 would corroborate the evidence of P.W.9 to the fact

that the accused had admitted the offence before the panchayatars. He has also signed as witness in Ex P2 form 95.

4f. P.W.15 is the then Head Constable of Buvanagiri Police Station who had registered the case under Buvanagiri Police Station crime No.336 of

2002 u/s 376 of IPC on the basis of the complaint preferred by P.W.1. Ex P8 is the first information report. P.W.16 is the Investigating Officer

who had visited the place of occurrence on 28.9.2002 at about 13.15 hours and had prepared Ex P3 observation mahazar in the presence of

P.W11 and P.W.12. He has also recovered M.O.3, blood stained sand and M.O.4 sample sand under Ex P4 mahazar in the presence of P.W.11

and P.W.12.

4g. P.W.13 is the doctor who had examined the victim girl on 2.10.2002 at about 1.35 p.m Ex P5 is the wound certificate issued by him to the

injuries sustained by P.W.2. P.W.14 is the lady doctor who had examined P.W.2 on 1.10.2002 at about 6.45p.m., The doctor has deposed that

she could see human bite mark on the left cheek of the victim girl and also could see two bite marks on the upper lip and also around the neck of

the victim. The doctor had also seen nail marks on the nap, on the back and also on the right armpit. Her definite evidence is that hymen of the

victim girl was found ruptured. Ex P6 is the wound certificate issued by P.W.13.The accused was also examined by Doctor Prabu. Ex P7 is the

certificate issued by him stating that the accused was potent. Since Dr.Prabu was not available, Ex P7 certificate was marked through P.w.14 who

is well versed with the signature of Dr.Prabu.

4h. P.W.16 has examined the witnesses and recorded their statements. He has arrested the accused and has recorded the confession statement

and after arrested the accused and produced before the Magistrate for Judicial remand. After completing the formalities, he has filed the charge

sheet against the accused u/s 376 of IPC on 23.12.2002.

When incriminating circumstances u/s 313 Cr.P.C. were put to the accused, he would deny his complicity with the crime.

He would further state that while he was taking his meals in the houe about five or six persons took him to the panchayat and also informed about

the occurrence and insisted him to admit the offence and also offered Rs.50,000/- , if he admits the offence to which course he was not amenable.

He would further admit that he was beaten with stick and broom stick. He would further narrate the cruelty , he met at the hands of the

panchayatars.

On the above evidence, the learned trial Judge has come to a conclusion that the charge levelled against the accused u/s 376(2)(f) of IPC has

been proved beyond any reasonable doubt and accordingly convicted and sentenced the accused to undergo ten years rigorous imprisonment and

a fine of Rs.10,000/- with default sentence. The learned trial Judge has also directed that out of the fine amount, the entire amount of Rs.10,000/-

is to be given as compensation to P.W.2 the victim girl u/s 357(1) of Cr.P.C. Aggrieved by the findings of the learned trial Judge, the accused has

preferred this appeal.

Now the point for consideration in this appeal is whether the conviction and sentence of the learned trial Judge against the accused u/s 376(2)(f)

of IPC is sustainable in law for the reasons stated in the memorandum of appeal?

Heard Mr.R.Balakrishnan, learned Counsel appearing for the appellant and Mr.V.R. Balasubramaniam, learned Additional Public Prosecutor

for the State and carefully considered their rival submissions.

The Point:

Mr.R. Balakrishnan, the learned Counsel appearing for the appellant would take me to the entire evidence let in by the prosecution and also point

out the discrepancy found in the evidence of P.W.1 ,P.W.3 and other witnesses. The learned Counsel would focus the attention of this Court to

the discrepancy in the evidence of P.W.1 which was also corroborated by the evidence of P.W.13, the doctor. After the occurrence, admittedly

the victim girl was taken to Government Hospital, Cuddalore. Before the Doctor, P.W.1 the father of the victim P.w.2 who is the complainant in

this case had informed that his daughter P.W.2 had sustained injuries due to dog''s bite. P.W.13 the doctor who had examined P.W.2 would also

depose to the fact that at the time of admission in the hospital by P.W.1, he(P.W.13) was informed by P.W.1 that the victim girl had sustained

injuries due to dog''s bite. But he would depose in the cross examination itself that the victim''s father P.W1 has informed him that the injuries

caused to P.W.2 was by a human being. The charge levelled against the accused is that he had committed the offence of rape. P.W.14 is the lady

doctor who had examined the victim girl to show whether she had subjected to the offence of rape would categorically depose that P.W.2 the

victim girl was subjected to the offence of rape by saying that her hymen was not in tact and there were nail marks and human bite marks seen on

the left cheek, upper lip and also around the neck.

So under such circumstances, it cannot be said that the offence of rape was not committed by a human being but by any animal. The injuries

found on the body of P.W.2 was only made due to human bite and not due to dog''s bite. So the discrepancy found in the evidence of P.W.1

cannot in no way affect the case of the prosecution. The evidence of P.W.2, the victim girl corroborated by the evidence of P.W.14, the doctor

and the evidence of Panchayatars P.W.5 and P.W.7 before whom the accused had admitted the guilt will go to show that an offence u/s 376(2)(f)

of IPC has been attracted against the accused as rightly held by the learned trial judge.

When coming to the question of sentence, the learned Counsel appearing for the appellant would contend that the accused is aged only 20 at

the time of committing the offence and while sentencing him , some leniency may be shown on him. Per contra, the learned Additional Public

Prosecutor relying on a decision reported in Rameshwar Prasad and Others Vs. Union of India (UOI) and Another, wherein the accused said to

have committed an offence of rape of a child aged below 12 years was awarded life imprisonment by the High Court of Rajasthan. On appeal, the

Honourable Apex Court while reducing the sentence of life to that of ten years rigorous imprisonment has observed as follows.

Corroboration is not the sine qua non for conviction in a rape case. The observations of Justice Vivian Bose, in Rameshwar v. State of Rajasthan

were (SCR p.386). ""The rule , which according to the cases has hardened into one of law, is not that corroboration is essential before there can be

a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it ,

must be present to the mind of the Judge...."" The measure of punishment in a case of rape cannot depend upon the social status of the victim or the

accused. It must depend upon the conduct of the accused, the state and the age of the sexually assaulted female and the gravity of the criminal act.

Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the

victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is

required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances

bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The Courts must hear the

loud cry for justice by society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by

imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are

no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum

on the respondent.

In this case for showing some leniency in the sentence, the fact that the accused had admitted his guilt before the panchayatars P.W.5 andP.W.7 is

also to be taken into consideration besides his age. Under such circumstances, I am of the view that while confirming the conviction, the sentence

alone can be modified to that of seven years rigorous imprisonment instead of ten years rigorous imprisonment.

The point is answered accordingly.

In fine, the appeal is dismissed. The accused is convicted u/s 376(2)(f) of IPC and sentenced to under go seven years rigorous imprisonment

instead of ten years rigorous imprisonment for the special reasons indicated by me above. In other aspects, the findings of the learned trial Judge

will sustain.