Selvakumar vs The State

S. Nagamuthu, J.—The Appellant is the sole accused in S.C. No. 51 of 2004 on the file of the learned Additional District and Sessions

Judge , Fast Track Court, Namakkal. He stands convicted for offences under Sections 366-A and 376(1) of IPC and sentenced to undergo R.I.

for 3 years and to pay a fine of Rs. 1,000/- in default to undergo R.I. for further 3 months for the offence u/s 366-A of IPC and to undergo R.I.

for 7 years and to pay a fine of Rs. 1,000/- in default to undergo R.I. for further 3 months for the offence u/s 376(1) of IPC by the judgment dated

18.11.2004. Challenging the said conviction and sentence, the Appellant is, now, before this Court with this criminal appeal.

The case of the prosecution in brief is as follows:

During the year 2000, P.W.2 [the victim] was less than 16 years of age. She was a resident of Bodynaickanpatty Village. During that time, she

was staying with her aunt [P.W.3] at Pottireddypatty Village and was studying in a school at Pottireddypatty Village. P.W.1 is her mother. P.W.2

used to go in a bicycle to her school at Pottireddypatty village from the house of P.W.3. While she was proceeding to school, the Appellant who is

a resident of Erumaipatty Village used to follow her. On few occasions, he had told P.W.2 that he would marry and keep provide her good

marrital life. P.W.2 declined. On 02.02.2000, she proceeded to her school in a bus and when the bus was stopped at Thirumanur Village, the

Appellant got her out of the bus and took her to a house. When P.W.2 resisted, the Appellant threatened her of dire consequences. From there,

he took her to another village known as ""Vazhapadi Kurinchi"" and kept her in a house, where the Appellant had sexual intercourse with her against

her resistance. According to P.W.2, thereafter, the Appellant had sexual intercourse frequently with her. From that village, he took her to another

village known as ""Kallakurichi"" where he kept her for two months. There also he continued to have sexual intercourse against her resistance. From

there, he again took her to another village known as ""Chithoore"" where both of them were doing coolie work. There also they stayed together and

the Appellant used to have sexual intercourse with her. In the mean while, a Habeas Corpus Petition came to be filed before the High Court by

P.W.1. The police searched for the girl. Finally, the victim and the Appellant were found at Arakkonam Busstand together and they were brought

before this Court. Before the Division Bench, P.W.2 told that she was willing to go with her mother and accordingly she was sent. In respect of the

above occurrence, P.W.1 preferred a complaint to a Head Constable attached to Erumaipatty Village on 12.02.2000 at 10.00 a.m. under Ex.P.1.

The Head Constable [not examined] registered a case in Cr. No. 39 of 2000 for offence u/s 363 of IPC. He examined P.W.1, P.W.3 one

Sivabakkiyam , Jayapal, and Rajendran and recorded their statements. The investigation was thereafter taken up by P.W.6. On 14.02.2000, he

examined the very same witnesses. On 23.10.2000 , P.W.6 found the Appellant and P.W.2 together at Arakkonam Bus-stand. He took them into

custody. He altered the case into one under Sections 366-A and 376 of IPC and forwarded a report under Ex.P.8 to the Court. The Appellant

was thereafter forwarded for judicial remand. He also sent a request to the Doctor and forwarded the Appellant for medical examination.He

forwarded P.W.2 to Government Hospital for medical examination. Thereafter, he handed over the case diary to P.W.8 for further investigation.

P.W.7 Doctor Vallinayagam examined the Appellant on 27.10.2000 and issued a certificate relating to his age under Ex.P.10. According to

P.W.7, the Appellant was aged between 18 and 20 years at the time of occurrence. Under Ex.P.11 Certificate he has opined that the Appellant

was capable of performing sex with a woman. P.W.5 Doctor Uma Maheswari examined P.W.2 on the request of the police on 01.11.2000.

According to her, the age of P.W.2 would have been around 15 years. She had further found that the hymen was not intact. She further found that

her vaginal cavity easily allowed two fingers to enter. From this , she opined under Ex.P.5 Certificate that P.W.2 would have been subjected to

frequent sexual intercourse for about 8 months. P.W.8, the investigating officer collected the medical certificates and after completing the

investigation, he filed charge sheet against the Appellant.

On considering the above materials, the trial court framed charges against the Appellant for offences under Sections 366-A and 376(1) of IPC.

The Appellant denied the charges. Therefore, he was put on trial. During trial, on the side of the prosecution, as many as 8 witnesses were

examined, 11 documents were exhibited. No material object was marked. When the incriminating materials were put to the Appellant u/s 313 of

Code of Criminal Procedure he denied the same. However, he did not examine any witness on his side nor did he produce any documentary

evidence. Having considered all the above , the trial court found that the Appellant is guilty under Sections 366-A and 376(1) of IPC and

convicted and sentenced him as stated earlier. Aggrieved over the same, the Appellant is, now, before this Court with this criminal appeal.

I have heard Mr. R. Karthikeyan, the learned Counsel counsel for the Appellant and Mr. R. Muniyapparaj, the learned Government Advocate

[Criminal Side] for the State and also perused records carefully.

The learned Counsel for the Appellant would take me through the evidences of P. Ws.1 to 4 wherein P.W.1 has narrated that P.W.2 was found

missing and she has also spoken to about the complaint given by her. P.W.2 has vividly narrated that she was taken by force by the Appellant,

kept at various places and against her will she was subjected to sexual intercourse frequently by the Appellant. P.W.3 is the aunt of P.W.2 with

whom she was staying and studying in a nearby school. She has also spoken to about the missing of P.W.2. P.W.4 is the husband of P.W.3. He

has also spoken to about the missing of the victim girl [P.W.2]. Taking me through the evidence of these witnesses, the learned Counsel would

contend that it is a clear case of elopement on the part of P.W.2 along with the Appellant out of love affair. Therefore, according to the learned

Counsel, neither an offence u/s 366-A of IPC nor an offence u/s 376(1) of IPC could be made out.

A close analysis of the evidence of P.W.2 would go to show that she was a consenting party for the sexual intercourse and it is too hard to

believe that she was taken by force. The very fact that she was with the Appellant for about 8 months and both of them were doing some coolie

work at various places and they were living together would go to show that P.W.2 was a consenting party and, therefore, it cannot be said that she

was taken by force.

The next question is as to whether the so-called consent which is inferable from the evidence of P.W.2 is consent in its stricto sensu as

contemplated in Section 375 of IPC. The learned Counsel for the Appellant would submit that the prosecution has failed to prove the age of

P.W.2. He would submit that according to P.W.5 Doctor as per the medical certificate under Ex.P.5, the age of P.W.2 at the time of occurrence

was approximately 15 years. Therefore, the learned Counsel would submit that the prosecution has failed to prove that P.W.2 was less than 16

years of age as on the date of occurrence and thus, the offence u/s 376(1) of IPC would not be attracted. But, as pointed out by the learned

Government Advocate [Criminal Side] ven in chief examination, P.W.2 has stated that her date of birth is 07.05.1985. The said evidence of

P.W.2 has not been challenged by the Appellant. Almost the said evidence relating to the date of birth of P.W.2 remains to be an admitted fact.

The date of occurrence is 02.02.2000. Therefore, as on the date of occurrence, P.W.2 was aged hardly 14 years and 9 months. As per Section

375 of IPC, consent given by a girl of less than 16 years is not a consent in the eye of law for the purposes of Section 376 of IPC. In the instant

case, since as on 02.02.2000, P.W.2 was hardly 14 years and 9 months, the consent said to have been given by her for sexual intercourse with the

Appellant is not a consent in the eye of law and, therefore, offence u/s 376 of IPC is clearly made out.

But, the learned Counsel for the Appellant would submit that there is no documentary proof such as school certificate to prove the date of birth

of P.W.2. For this proposition, the learned Counsel would rely on a judgment of the Hon''ble Supreme Court in Alamelu and Another Vs. State

represented by Inspector of Police, . In my considered opinion, the facts in the said case are distinguishable. That was a case where the school

certificate was produced in evidence and the same was very seriously challenged by the accused. In those circumstances, the Hon''ble Supreme

Court had to hold that unless the person who gave the information to the school authorities to make entry regarding the date of birth, the date of

birth entered in the school certificate alone cannot be said to be correct age of the victim. But, in the instant case, as I have already stated, there

has been no dispute at all raised by the Appellant in respect of the date of birth of P.W.2 as spoken to P.W.2. When there is no such dispute in

respect of the date of birth of P.W.2 either during cross examination or elsewhere at least u/s 313 of Cr.P.C., the argument of the learned Counsel

that the date of birth has not been proved by documentary evidence needs only to be rejected. It is needless to point out that a fact in issue or

relevant fact can be proved either by means of direct eye witness account or by means of documentary evidence or by means of circumstances. In

the instant case, the fact namely, the age of P.W.2 [the victim] has been proved by the prosecution by oral evidence of P.W.2. Since the same has

not been disputed, it does not require any further adjudication.

The learned Counsel for the Appellant nextly contended that P.W.5 Doctor has opined that the victim girl [P.W.2] would have been aged 15

years approximately at the time of occurrence. Even on her own showing P.W.5 has stated that it is only approximate. It is too difficult for any

Doctor and as a matter of fact, it is impossible to correctly assess the age of a person. It is after all always approximate. The Hon''ble Supreme

Court on several occasions has held that two years margin on either side should be given to the age assessed by the Doctor based on medical

opinion. In this case, if such two years margin is given to the evidence given by the Doctor, surely, it only goes to corroborate the evidence of

P.W.2 who has stated that her date of birth is 07.05.1985. Thus, in my considered opinion, the prosecution has clearly established that the date of

birth of P.W.2 was 07.05.1985 and as on 02.02.2000, the date of occurrence , she was hardly 14 years and 9 months. Thus, she was incapable

of giving a valid consent as enshrined in Section 375 of IPC and, therefore, the argument of the learned Counsel in this regard is liable to be

rejected.

The learned Counsel would further submit that the Appellant and P.W.2 were living together for about 8 months and, therefore, it cannot be

said that the Appellant has committed the offences. This argument would have received acceptance provided P.W.2 had completed 18 years of

age at the time of occurrence to come out of the clutches of Section 366-A of IPC or at least she would have completed 16 years of age to come

out of the clutches of Section 376(1) of IPC. Since P.W.2 was less than 16 years as on the date of occurrence, the contention of the learned

Counsel for the Appellant in this regard is only to be rejected. Thus, I find that the trial court was perfectly right in convicting the Appellant for

offences under Sections 366-A and 376(1) of IPC.

Now, coming to the quantum of sentence, the learned Counsel for the Appellant would submit that at the time of occurrence, the Appellant

was aged hardly between 18 and 20 years and he was an adolescent offender. The learned Counsel would further submit that after the occurrence

P.W.2 has been given in marriage to some one else and similarly, the Appellant has also got married to another girl. He would further add that at

this length of time, if the Appellant is sentenced to imprisonment, it will materially affect the life of another woman namely, the wife of the Appellant.

The learned Counsel would also submit that the Appellant is a poor man. Having regard to all the above, the learned Counsel for the Appellant

would pray for leniency in the matter of sentence.

But, the learned Government Advocate [Criminal Side] would stoutly oppose the said plea.

In my considered opinion too, rigorous imprisonment for 7 [seven] years as imposed by the trial court cannot be sustained. Though u/s 376 of

IPC a minimum sentence for a term of 10 years imprisonment has been prescribed, as per the proviso, for reasons to be recorded, lesser sentence

may also be imposed. It is only by invoking the proviso clause, the trial court itself has imposed sentence of imprisonment for 7 years. In my

considered opinion, having regard to the fact that the occurrence had taken place 11 years ago, during the interregnum period the victim girl has

married some one else and has settled down in her life and also the fact that the Appellant is also married and having regard to the fact that if at this

length of time, the Appellant is sentenced to 7 years of R.I. it may materially affect the marital life of his innocent wife also, as there will be no one

to look after her; further, the age of the Appellant at the time of occurrence was hardly between 18 and 20 years; and having regard to all these

facts and circumstances, which I have already narrated, it will be in the interest of justice to reduce the substantive sentence of imprisonment for

offence u/s 376(1) of IPC to a period of 3 years of R.I. and in respect of the punishment for offence u/s 366-A of IPC, it will be reduced to

rigorous imprisonment to one year of R.I. This, in my considered opinion would meet the ends of justice.

In the result, the criminal appeal is partly allowed in the following terms:

(i) the conviction of the Appellant for offences under Sections 366A and 376(1) of IPC is confirmed;

(ii) the sentence of rigorous imprisonment for 3 years for the offence u/s 366-A of IPC imposed by the trial court is reduced to rigorous

imprisonment for a period of 1 year. The fine of Rs. 1,000/- and the default sentence imposed by the trial court are confirmed.

(iii) For the offence u/s 376(1) of IPC, the sentence of rigorous imprisonment for 7 years imposed by the trial court is reduced to rigorous

imprisonment for a period of 3 years. The fine of Rs. 1,000/- and the default sentence are confirmed.

(iv) The above sentences are ordered to run concurrently. The period of detention already undergone by the Appellant shall be set off.

(v) In all other respects, the criminal appeal stands dismissed.

(vi) The bail bond executed by the Appellant and the sureties shall stand discharged.

(vii) The trial court shall secure the presence of the Appellant and commit him to prison to undergo the remaining period of sentence.