The appellant, who is the accused in Sessions Case No.400 of 2005 on the file of the learned Sessions Judge, Mahila Court, Chennai, stands convicted for an offence under Section 376(1) IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.25,000/-, in default, to undergo one year rigorous imprisonment and the fine amount should be paid as compensation to the victim girl-P.W.1.
2. Aggrieved by the said conviction and sentence, the appellant/accused has preferred the above criminal appeal.
3. The case of the prosecution, in brief, is as follows:-
P.W.1-Varalakshmi is the daughter of P.Ws.2 and 3 and she was aged about 18 years old at the time of occurrence. The accused is related to her. P.W.1 and her parents were residing at Karaipettai in Kancheepuram District. The sister of the accused, who visited the village assured her to get a job for her in Chennai. On the assurance given by the sister and mother of the accused that they would secure a job for her in a S.T.D. Booth, P.W.1-victim girl came to Chennai and she stayed in the house of the accused from 21.12.2002. But, she could not secure a job. Another sister of the accused by name Maheswari was working in a S.T.D. Booth. As there was no possibility of getting job, P.W.1 wanted to return back to her village. In the meantime, on 05.01.2003, as the brother of the accused went to Sabarimalai temple, all the inmates except P.W.1 had gone to the temple. Therefore, P.W.1 alone was in that house and she received a phone call from the sister of the accused Maheswari to send somebody to bring her back to the house from the S.T.D. Booth, since it was late night. When the accused came to the house at about 9.00 p.m., P.W.1 informed him about the phone call made by Maheswari. The accused asked P.W.1 to accompany him to go and bring Maheswari from the S.T.D. Booth. P.W.1 went along with the accused and on the way near K.P. Park, since it was dark, taking advantage of the said situation, the accused pulled her hand and took her nearby the corner of the said ground and raped her in spite of her cry. She became unconscious and after some time, she regained conscious and questioned the accused as to why he did like this to her. The accused promised her on god that he would marry her and asked her to go to her village and also asked her to give her phone number. The accused also threatened her not to disclose the incident to anyone. In spite of the threat made by the accused, the next day, P.W.1 informed about the incident to the mother of the accused and also to her sister-in-law, and she was taken to her village. P.W.1 also informed about the incident to her mother and the mother of the accused was summoned to the village and there was a talk. The mother of the accused also agreed for the marriage of her son with P.W.1. Though the mother of the accused left the village by saying that she would return with a proposal within four days, she did not return back. The mother of the victim girl scolded her for bringing disrepute to the family. Therefore, P.W.1 made an attempt to commit suicide by consuming poison. On 24.02.2003, P.W.1 was admitted in the Government Hospital at Kancheepuram and was rescued and discharged on 26.02.2003.
(ii) P.W.7-Dr.Jeevanantham, had examined the victim girl-P.W.1 and issued Ex.P.8-Accident Register. After recovery, P.W.1 came with her father to Chennai and gave a complaint under Ex.P.1 on 04.03.2003 in B.4, Basin Bridge Police Station.
(iii) P.W.10-Rajaram, the Inspector of Police received the complaint from P.W.1 on 04.03.2003 and registered a case in Crime No.119 of 2003 for an offence under
Section 376 I.P.C. against the accused. Ex.P.12 is the First Information Report. He took up the case for investigation and recorded the statements of the victim and other witnesses. He also gave requisition for the medical examination of P.W.1. On 06.03.2003, P.W.9-Dr.Thageera Begum examined P.W.1-victim girl and noted the following:-
"Examination of private parts:
4. After completion of the investigation, P.W.10 arrested the accused on 13.03.2003 at about 11.00 a.m. in front of salt quarters in the presence of witnesses P.W.4-Jeyapaul and Mohan. He recorded the confession given by the accused. Ex.P.13 is the admissible portion of the confession given by the accused. The accused produced his clothes M.Os.1 to 3 from his house and it was recovered by P.W.10 under mahazar Ex.P.14.
5. P.W.8 Dr.Selvakumar examined the accused on 17.03.2003 at about 11.15 p.m. On examination, he found that there was no symptom to suggest that the accused was impotent and he gave a certificate Ex.P.9. P.W.10, after completing the investigation, laid a final report on 23.07.2003 for an offence under
Section 376 I.P.C. against the accused.
6. To prove the case, the prosecution examined P.Ws.1 to 10; marked Exs.P.1 to P.14 and produced M.Os.1. to 3. On the side of the accused, one witness was examined as D.W.1.
7. The accused was questioned under
Section 313 Cr.P.C. with regard to the incriminating circumstances and he denied his complicity. He further submitted that the victim girl stayed in his house for 10 days and he returned from Sabarimalai temple only in the evening on the alleged date of occurrence and on the night, his brother was left to Sabarimalai temple and no occurrence had taken place as alleged by the prosecution.
8. The Trial Court, after considering the oral and documentary evidence, convicted the accused for the offence as stated above.
9. The learned counsel for the appellant/accused submitted that there was two months delay in preferring the complaint and P.W.1 was not a minor and her evidence that she was forcibly raped is not corroborated by any material. The learned counsel for the appellant/accused further submitted that even as per the available evidence, it is only established that even if the occurrence is taken place, it was not against the consent of the alleged victim girl and the Doctor also has not stated that the victim girl was not subjected to forcible intercourse.
10. The learned Government Advocate (Crl.Side) submitted that P.W.1 was aged about 18 years at the time of occurrence and she was taken from her house on the pretext of accompanying with the accused to bring his sister. But on the way, it was dark place, P.W.1 was forcibly raped. Though P.W.1 had not given the complaint immediately to the police, she had informed about the occurrence to the mother of the accused and also to her mother. The medical evidence also shows that there was rupture in hymen, which leads to show that she was subjected to sexual intercourse.
11. This Court considered the submissions made by both the parties and perused the records carefully.
12. The evidence of P.W.1 in the chief examination is that she accompanied the accused and she was going out in the night hours. On the way near K.P. Park as the place was dark, the accused pulled her hand and took her near by the corner of the said ground and raped her and then, he promised to marry her. In the cross-examination, P.W.1 had stated that the distance between the house of the accused and the place of S.T.D. Booth, where Maheswari is working, is one kilometer and it is possible to reach the place within fifteen minutes and on that road several buses and autos were running and shops were also available in both sides. But she had stated that the place of occurrence was dark. She also admitted that both the accused and herself were staying in the ground for one hour and no other person was available at that time. She returned to the house along with the accused only. After returning to home, she had not informed about that to anyone. Though she had stated that she informed the incident on the next day to the mother of the accused, she has not given any complaint.
13. According to the evidence of P.W.2, he was not informed by his daughter. He came to know about the incident only from the neighbours and his wife enquired his daughter. P.W.3, the mother of P.W.1 also had stated that as soon as she came to know about the incident from her daughter, she enquired her daughter-in-law and thereafter, the mother of the accused also stated that her son would marry P.W.1. Though there was a promise, for the marriage of the accused with P.W.1, no arrangement was made and therefore, P.W.1 made an attempt to commit suicide by consuming poison. While so, there had been a delay of two months in preferring the complaint. Normally, the delay in preferring the complaint for an offence of rape may not affect the case of the prosecution. But in the circumstance of this case, there is a delay in preferring the complaint.
14. On the side of the defence, D.W.1-Prakash, Watchman of the Gim, which is in the K.P.Park was examined. He had stated that the area is busy area and he should be there in the park from 6.00 p.m. to 10.00 p.m. and people used to visit the park. P.W.1 also had admitted that near the place, shops were available. Further, it is not the case of P.W.1, she made any attempt to escape from the accused or she made any resistance. In any event, after the occurrence, she accompanied the accused to return to the house. Though P.W.1 was examined by P.W.9-Dr.Thageera Begum after two months, according to the certificate Ex.P.10 given by her, it was found the vagina admitting one finger easily and the hymen had a laceration in 3,5,7,9 and 11 O'c clock position.
15. The learned Trial Judge also observed in the Judgment at paragraph No.22 as follows:-
"Obviously consent involves no denial and no resistance. It cannot be equated to resist out of helplessness. The absence of violence or stiff resistance in this case, which could be inferred from the testimony of P.W.1 is due to sheer timidity."
16. All the circumstances put together throw considerable doubt with regard to the version of P.W.1 that she was forcibly raped. On the other hand, it is suggested that the occurrence could have happened with the consent of P.W.1. She also admitted in her cross-examination that she would not have given a complaint, if the accused had married her.
17. From the evidence available, though it is to be held that the ingredients of the offence under
Section 376 I.P.C. are not made out, the ingredients of the offence under
Section 417 I.P.C. has been made out.
18. P.W.1 herself had been a consenting party. Since the accused had promised in the name of God that he would marry her and subsequently, though the mother of the accused also promised to arrange the marriage of the accused with P.W.1 and the marriage did not take place, being dejected, P.W.1 also consumed poison and made an attempt to commit suicide. In the said circumstances, the accused is found guilty for an offence under
Section 417 I.P.C., though no specific charge is framed against him.
19. In the result, the conviction and sentence imposed on the appellant/accused under
Section 376(1) I.P.C. are set aside instead, he is convicted under
Section 417 I.P.C. and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.25,000/-, in default, to undergo three months rigorous imprisonment.
20. The learned counsel for the appellant/accused submits that the appellant was already in jail for more than one year and also paid a sum of Rs.25,000/- as fine, which was imposed on him for the offence under
Section 376(1) I.P.C. The fine amount paid already by the accused will be adjusted to this. The said amount also to be paid to P.W.1-Varalakshmi as compensation under
Section 357(1) (b) of the Code of Criminal Procedure.
T.SUDANTHIRAM, J.
jrl
21. With the above modification, this criminal appeal is partly allowed.
01.09.2009 Index : Yes Internet : Yes jrl To
1. The Sessions Judge, Mahila Court, Chennai.
2. The Inspector of Police, P-4, Basin Bridge Police Station, Chennai.
3. The Public Prosecutor, High Court, Madras.
Crl.A.No.30 of 2006