Sivaswamy, Thangammal, Illamadhi and Thamilarasan vs The Inspector of Police

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred by the accused in S.C.No.124 of 2004 on the file of the Additional

Sessions Judge, (Fast Track Court) Ariyalur, Perambalur District.

According to the prosecution, on 10.7.2002 ,A1 under the pretext of marrying the victim girl had subjected her to the offence of rape and in the

course of the transaction, the accused had given tablet to abort the featus and in the panchayat conducted in this connection on 17,.2.2003, A1 to

A3 have abused the victim girl in filthy language and on the same day, A4 had criminally intimidated the victim girl and the accused under the

pretext of marrying the victim girl had committed the offence of rape. So the accused have been charged under Sections 417, 313, 294(b), 506(ii)

and 376 of IPC.

The case was taken on file by the learned Judicial Magistrate, perambalur and on the appearance of the accused, had furnished the copies u/s

207 of Cr.P.C. and since the case is triable by a Court of Sessions, the learned Judicial Magistrate had committed the case to the Additional

Sessions Judge,(Fast Track Court) Ariyalur u/s 209 of Cr.P.C. On appearance of the accused, the learned Sessions Judge had framed charges

against A1 under Sections 417, 313 and 294(b) and 376 of IPC , against A2 and A3 charge u/s 294(b) IPC and against A4 charge u/s 506(ii) of

IPC have been framed and when questioned, the accused pleaded not guilty.

On the side of the Prosecution , P.Ws 1 to 8 were examined. Exs P1 to P15 were exhibited.

4a. P.W.1 is the Doctor who had examined the victim girl P.W.2 on 31.12.2003 at about 1.30p.m., on the basis of the letter of requisition Ex P1

from the Court for ascertaining the age of the victim girl. Ex P2 is the copy of the accident register issued by P.W.1. According to her, the hymen

of the victim girl was not in tact and the doctor would say that according to her, the victim girl had not crossed the age of 18 years.

4b.P.W.2 is the victim girl. She used to graze her sheep in the nearby forest and A1 also used to graze his cattle there and she had fell in love with

him and both of them are lovers and on the pretext of marrying her, A1 had sexual intercourse with her on several occasions and that he, on

10.7.2002, had sexual intercourse with her for the first time and it continued thereafter and she became pregnant and when this fact was informed

to A1, he had asked her to take pills for aborting the featus but even without taking any tablet or medicine for the said purpose, her pregnancy

automatically aborted and that she had informed the fact to A1 through one Chinnaponnu and that only Chinnaponnu knows about the love affair of

P.W.2 with A1. According to her, A3 after knowing that the illicit intimacy between A1 and P.W.2 abused her in filthy language and had warned

not to continue her illicit relationship with A1 and that A1 offered Rs.50/- to take nutritious diet after the abortion. After hearing that A3 had

abused her(P.W.2) , her mother enquired and that she had revealed the entire facts to her and that her uncle and another Ramalingam and

Ganapathy took her to the accused''s house for mediation. There also A1 had abused her in filthy language and A2 had also intimidated her along

with A4 and thereafter she approached the police and preferred Ex P3 complaint.

4c. P.W.3 is the mother of P.W.2. She would corroborate the evidence of P.W.2 to effect that A3 came to her house and abused P.W.2 in filthy

language which made her to enquire P.W.2 who had admitted the illicit relationship, she had developed with A1 and that P.W.2 had made an

attempt to commit suicide which was prevented by her. When her husband(P.W3''s husband) and his brother made an attempt to mediate at the

house of the accused, both A2 and A3 have abused and A4 has pushed them on the ground. Thereafter, P.W.2 had preferred the complaint with

the police.

4d. P.W.4 Chinnaponnu has not supported the case of the prosecution hence she was treated as a hostile witness.

4e. P.W.5 is the uncle of P.W.2 the victim girl. On 24.12.2003, he went to the house of P.W.2 at the request of her parent,after knowing that

P.W.2 had developed intimacy with A1 and P.W.2 had also informed him that only under the pretext of marrying her A1 had sexual intercourse

with her and in this regard , he along with his other brothers and father of P.W.2 went to the house of the accused for a mediation. But A2 and A3

have abused P.W.2 and at that time A1 and A4 were not available in the house. Hence P.W.2 has preferred the complaint with the police.

4f. P.W.7 is the then Sub Inspector of Police, All Women Police Station, Perambalur who had registered the case under Perambalur Police

Station crime No.33/2003 under Sections 417, 323, 506(i) and 294(b) of IPC on the basis of the complaint preferred by P.W.2. Ex P5 is the

copy of the first information report. She had visited the place of occurrence and prepared Ex P4 Observation Mahazar in the presence of P.W.6.

She has examined the witnesses and recorded their statements. Ex P6 is the rough sketch drawn by her. She had sent P.W.2 along with Ex P7

requisition to the Court to subject herself for medical examination by a Government Doctor. She had arrested A2 and A4 on 29.12.2003 and

produced them before the Judicial Magistrate for judicial remand. A1 and A3 have obtained anticipatory bail. Under Ex P8, he had given another

requisition to the Court on 18.2.2004 with a request to send A1 for medical examination regarding his potency. Ex P10 is the certificate issued by

the doctor, after examination of A1 certifying that he is potent. Ex P11 is the letter of requisition issued by the Court to the Government Hospital

requesting the doctor to subject P.W.2 for medical examination to ascertain her age. ExP12 is the age certificate issued by the doctors. Ex P13 is

the requisition given by P.W.7 to the doctor. He has also examined the Doctors viz., Dr.Saravanan and Dr.Karthikeyan and recorded their

statements. After completing the formalities, he has filed the final report against the accused.

When incriminating circumstances u/s 313 Cr.P.C. were put to the accused, they would deny their complicity with the crime. After going

through the evidence both oral and documentary, the learned trial Judge has come to a conclusion that an offence under Sections 376, 417, 294(b)

of IPC have been made out against A1 and accordingly convicted and sentenced A1 u/s 376 of IPC to under go seven years rigorous

imprisonment and a fine of Rs.2000/0 with default sentence and has convicted and sentenced A1 u/s 417 of IPC to undergo six months Rigorous

imprisonment and was also convicted and sentenced u/s 294(b) to pay a fine of Rs.500/- along with A2 and A3 each. A4 was convicted and

sentenced u/s 506(II) to under go six months rigorous imprisonment and a fine of Rs.500/- with default sentence. Aggrieved by the findings of the

learned trial Judge, the accused have 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 under

Sections 376, 417, 294(b) and 506(ii) of IPC is liable to be set aside for the reasons stated in the memorandum of appeal?

Heard Mr. S.Samuel Rajapandian(Amicus Curiae),the learned counsel appearing for the appellants and Mr.V.R. Balasubramaniam, learned

Additional Public Prosecutor for the State and carefully considered their rival submissions.

8 The Point:

A2 and A3 have been convicted by the trial court u/s 294(b) of IPC and A4 has been convicted and sentenced u/s 506(ii) of IPC. P.W.5 is the

uncle of P.W.2 who had mediated after hearing the illegal intimacy between P.W.2 and A1. On 24.12.2003, P.W.5 along with P.W2''s father and

other relations like Ramalingam and Chitra went to the house of the accused and at that time A2 and A3 have abused them and A1 and A4 were

not present in the house. According to P.W.2, at the time, when P.W.5 and other relations went to the house of A2, A1 had abused her in filthy

language and A2 had intimidated her and A4 also criminally intimidated her. So this part of the evidence is diametrically opposite to the evidence

spoken to by P.W.5. In Ex P3 complaint, there is absolutely no allegation against the accused that they have abused P.W.2 at the time when the

mediation took place at 7.00p.m., on 24.12.2003 in the house of the accused. In Ex P1, it is the specific case of P.W.2 that A1 to A3 alone have

caught hold of her tuft and kicked her on the chest and apart from this there is no allegation in Ex P3 complaint against A4 that with an aruval, he

had criminally intimidated P.W.2. Under such circumstances, it cannot be said that the charge levelled against A2 and A3 u/s 294(b) of IPC and

against A4 u/s 506(ii) of IPC have been proved beyond any reasonable doubt. So the conviction and sentence by the trial Court against A2 and

A3 u/s 294(b) of IPC and as against A4 u/s 506(ii) of IPC is liable to be set aside and the same is hereby set aside.

Now the remaining charge against A1 is under Sections 376, 417 and 294(b) of IPC. According to the case of the prosecution, the victim girl

P.W.2 was a minor at the time of occurrence and it has been proved through the evidence of P.W.1, the doctor who had issued Ex P2 copy of the

accident register which shows that the victim girl has been subjected to sexual assault. The doctor has opined in Ex P2 that the age of the victim girl

P.W.2 must be below 18 years.

Ex P1 is the letter of requisition given by the Judicial Magistrate, Perambalur to the Superintendent Government Headquarters Hospital,

Perambalur wherein it has been specifically requested to furnish the age certificate and also virgin certificate for the victim girl. P.W.1 has not stated

anything in her deposition about the examination conducted by the victim for ascertaining her age. According to P.W.7, the Investigation Officer,

P.W.2 was subjected to radiology test by two doctors viz.,Dr.Saravanan and Dr.Karthikeyan to ascertain her age. Ex P13 is the letter of

requisition given by P.W.7 to the Judicial Magistrate, Perambalur. In the letter of requisition, the Investigation Officer P.W.7 has stated that as per

the opinion of P.W.1 the doctor Premasakunthala, the age of the victim girl P.W.2 is below 18 years. But the complainant has stated her age in the

complaint as 19 and according to her school certificate her date of birth is 15.4.1986 and on that score, he had requested the Court to subject

P.W.2 for a radiology test to ascertain her correct age. But unfortunately in this case, even according to P.W.7, P.W.2 was examined by the

Radiologist viz., Dr.Saravanan and Dr.Karthikeyan neither Dr.Saravanan nor Dr.Karthikeyan was examined before the trial Court and the X-rays

were taken for the victim girl to show that ossification test was conducted on her and the Radiologist report showing her age are all not produced

before the trial Court. So absolutely there is no medical evidence to fix the age of the victim girl at the time of occurrence. To prove ExP14, school

record sheet, the author of Ex P14 namely the headmaster of the school which issued Ex P14 was not examined. Under such circumstances, the

date of birth given in Ex P14 for P.W.2 cannot also be taken into consideration for ascertaining the age of P.W.2.

Mr.S.Samuel Rajapandian,Amicus Curiae, the learned Counsel appearing for the appellants would focus the attention of this Court to various

complaints preferred in this case before Ex P3. Even according to P.W.7, the Investigation Officer, the complaint was preferred on 26.12.2003

and a receipt under No.462/2003 was also issued by P.W.7. Under Ex P3, the occurrence said to have been taken place on 24.12.2003 but the

complaint under Ex P3 was registered on 27.12.2003. According to P.W.5, P.W.2 had preferred a complaint with the police at 5.00p.m., on

24.12.2003 itself on the date of occurrence. The prosecution is silent in respect of the earlier admitted complaint preferred by P.W.2. According

to P.W.1, she had informed about the occurrence ie., the offence of rape committed by A1 on her (P.W.2) to one Chinnaponnu. The said

Chinnaponnu was examined in this case on the side of the prosecution as P.W.4. But she has not supported the case of the prosecution. Hence she

was treated as a hostile witness by the Assistant Public Prosecutor. According to P.W.2, A1 had raped her for the first time on 10.7.2002 and

according to her, A1 used to continue the same on several occasions and that she became pregnant and the accused had advised her to take

tablets for aborting the featus. But the trial Court has not convicted the accused u/s 313 of IPC on the ground that the charge has not proved

against him.

Relying on a decision reported in Johny and others State 1990 Cri.L.J.505 the learned Counsel appearing for the appellants would represent

that the long and unexplained delay in lodging FIR is fatal to the case of the prosecution. The exact observation in the above said dictum runs as

follows:

The first information report, a document of considerable importance is produced and proved in criminal trials not as a piece of substantive evidence

but with the avowed object of obtaining the early information of the alleged criminal activity and to have a record of the circumstances before there

was time for them to be embellished or forgotten. A quick first information report which reaches the court or the Magistrate with promptitude will

be a towering circumstance which will go a long way to assure veracity of the prosecution story, for, there can be no time to create and deliberate

a false case against the accused. It may be that, in some cases, the delay in lodging the first information report may be inevitable but such delay

may have to be satisfactorily explained. Court have held that long and unexplained delay not only in lodging the first information report but also in

its receipt in the Court are suspicious circumstances to be taken into consideration while judging the bonafides of the prosecution story,as delay

may bring in a coloured version of the whole incident. A delayed first information report in prosecutions where there are more accused than one,

will require careful scrutiny and more so when the possibility of false implication looms large.

Even under the above said dictum, if the delay is satisfactorily explained then it can be condoned. In this case, the explanation given by the

prosecutrix for the delay in preferring the complaint is that the accused under the pretext of marrying her, not for one or two days, for more than a

year had prevented her from lodging a complaint against A1 soon after the occurrence even according to her which took place on 10.7.2002. To

warrant conviction u/s 376 of IPC , the prosecution must prove that at the time of occurrence, the victim P.W.2 was a minor. But unfortunately in

this case, the prosecution has miserably failed to prove through convincing and acceptable medical evidence to show that at the time of occurrence,

the victim girl was a minor. Even according to P.W.7, the Doctor, radiologists viz., Dr.Saravanan and Dr.Karthikeyan who have examined P.W.2

the victim girl were not examined on the side of the prosecution to prove the age of the victim girl. Only doctor who was examined before the trial

Court has not issued any age certificate for the victim girl. Even in Ex P2 copy of the accident register marked through P.W.1 was also the age of

the victim girl was stated to be approximately 18 years.

The learned Counsel appearing for the appellants relying on a decision reported in T.T. Antony v. State of Kerala, Damodaran v. State of

Kerala, State of Kerala and Ors. v. Revada Chandrasekhar AIR 2001 Supreme Court,2673 would contend that there cannot be more than one

first information report and registered in a criminal case and if there are more than one first information report REGISTERED MAIL in a criminal

case then it will vitiate the entire case of the prosecution. The relevant observation in the above said ratio decidenti runs as follows:

An information given under Sub section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (FIR) though this term is

not used in the Code. It is very important document and as its nick name suggests it is the earliest and the first information of a cognizable offence

recorded by an officer-in-charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which

ends up with the formation of opinion under Sections 169 or 170 of Cr.P.C. as the case may be, and forwarding of a police report u/s 173 of

Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer-in-charge of a police station

in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the

station house diary and this is implied in Section 154 of Cr.P.C. apart from a vague information by a phone call or cryptic telegram, the information

first entered in the station house diary, kept for this purpose, by a police officer-in-charge of police station is the First Information report-FIR

postulated by Section 154 of Cr.P.C. All other information made orally or in writing after the commencement of the investigation into the

cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police Officer or

such other cognizable offences as may come to his notice during the investigation, will be statements falling u/s 162 of Cr.P.C.No such

information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the

same cannot be in conformity with the scheme of Cr.P.C.

In the above said case, the first information report was registered against the accused under Sections 307 and 326 of IPC. Thereafter, after the

death of victim, another fresh first information report was registered u/s 302 of IPC which is held by the Honourable Apex Court as irregular. But

in the present case on hand, even though, according to the witnesses, three complaints were preferred , only Ex P3 First information report was

registered and there is no material on record to show that apart from Ex P3 first information report there is also another first information report

registered by the complainant.

For the same point, the learned Counsel appearing for the appellants has relied on a decision reported in Kari Choudhary v. Most Sita Devi

and Ors. 2001(8) Supreme 706 in which case also the Honourable Apex Court has condemned the police registering the first information report

viz., F.I.R.No.135 and another FIR No.208 for the same occurrence as irregular and cannot be acted upon. But as I have already observed that

there is no two first information reports registered in this case. Hence the above said ratios will not be applicable to the present facts of the case.

The learned Additional Public Prosecutor relying on a decision reported in Yedla Srinivasa Rao v. State of A.P (2007)1 SCC 557 would

contend that the consent obtained under misconception playing a fraud on the victim who is aged about 16 years obtained by the accused by

making a false promise to marry her which he never intended to fulfil will squarely attracts the offence u/s 375 of IPC punishable u/s 376 of IPC.

There cannot be two opinions in respect of the principle laid down in the above said dictum. But in this case, there is no satisfactory evidence let in

by the prosecution to show that the victim girl was a minor at the time of occurrence through medical evidence like radiologist report to ascertain

the age of the victim. So the accused cannot be convicted u/s 376 of IPC. But still the fact remains that the victim girl P.W.2 has been deceived by

A1 in having sexual intercourse with her on the pretext of marrying her for nearly one year. This fact has been spoken to by the victim girl P.W.2,

P.W.3, the mother of P.W.2 and also by P.W.5 the uncle of P.W.2. Who had acted as a mediator on 24.12.2003 between the accused and the

parents of the victim girl including P.W.2. It is in evidence that subsequent to the occurrence, P.W2 has been married to another person and she is

now settled in life. Under such circumstances, even though the accused cannot be held guilty u/s 376 of IPC , he is to be convicted and sentenced

u/s 417 of IPC.

In fine, the appeal is partly allowed and the conviction and sentence against A1 under Sections 376 and 294(b) of IPC and against A2 and A3

u/s 294(b) of IPC and against A4 u/s 506(ii) of IPC by the learned trial Judge in C.C.No.124 of 2004 on the file of the Additional Sessions Judge,

(Fast Track Court) Ariyalur is hereby set aside. The conviction and sentence of A1 u/s 417 of IPC , the Judgment of the learned trial Judge is

hereby confirmed. The trial Court is directed to secure A1 to undergo unexpended portion of the sentence. The set off is ordered u/s 428 of

Cr.P.C. The fine amount paid by A1 for an offence u/s 376 of IPC and A2 , A3 and A4 are to be refunded to them. The fine amount imposed

against A1 u/s 417 of IPC will sustain.

The service rendered by Mr.S.Samuel Rajapandian,Anmicus Curiae appearing on behalf of the appellants is recorded with appreciation. The

Member Secretary to the Tamil Nadu State Legal Services Authority is directed to pay a sum of Rs.3,000/- to the Amicus Curiae towards his

remuneration.