AI Structured Summary
Not yet generated for this judgment
Judgment
S. Nagamuthu, J.—The Appellants are the accused 1 to 4 in S.C. No. 109 of 2004, dated 08.04.2005, on the file of the learned Assistant
Sessions Judge, Dharapuram, Erode. The first Appellant/first accused stands convicted for the offences under Sections 363, 366A and 376(1)
IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment
for six months for the offence u/s 363 IPC; to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-, in default to undergo
rigorous imprisonment for six months for the offence u/s 366A IPC; and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.
5,000/-, in default to undergo rigorous imprisonment for six months for the offence u/s 376(1) IPC. The Appellants 2 to 4/accused 2 to 4 have
been convicted for the offences under Sections 366A and 363 IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a
fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for six months for the offence u/s 366A IPC and to undergo rigorous imprisonment
for seven years and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for six months for the offence u/s 363 IPC. The
sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the Appellants are before this Court with this
appeal.
The prosecution case in brief is as follows:
(i) P.W. 1 is the father of P.W. 2. P.W. 2 is the victim girl. At the time of occurrence, the victim girl was aged 16 years. P.W. 3 is the brother of
P.W. 2. P.W. 2 had learnt Tailoring. The first accused, who hails from the same Village used to tell P.Ws. 1 and 2 that he would arrange for loan
for starting business of Tailoring. In such a manner, the first accused used to visit the house of P.W. 1 frequently. On 13.03.2003, at about 10.00
a.m., he took P.W. 2 from the house of P.W. 1 under the guise of going for arranging for loan, at Kangayam Bus Stand.P.Ws. 1 and 3 witnessed
the same. While at Kangayam, accused 2 to 4 also joined the first accused. Thereafter, from Kangayam, he took P.W. 2 to Erode. When P.W. 2
enquired the first accused as to why he was taking her to Erode, he told her that there were two other girls like P.W. 2, for whom also, he was
making arrangement for such loan and in order to take them also, they had to go to Erode. Accordingly, the first accused took P.W. 2 to Erode.
Accused 2 to 4 told her to marry the first accused, for which, she declined and refused to come with them to Erode. But, they dragged her from
that place and took her to Erode. She went to Erode, since, she was kept under the constant threat. From Erode, on the same day, in the night,
they took her to Vellakoil and kept her at the house of one Latha. There, P.W. 2 was offered food. Accused 2 to 4 told Latha that the first
accused was to marry P.W. 2. When Latha enquired her, P.W. 2 told her that she was not willing to marry the first accused. They stayed at the
house of Latha on that day. The next day, the first accused alone took her to Madurai. In Madurai, the first accused took P.W. 2 to some of the
houses. At Madurai, the first accused had sexual intercourse with P.W. 2 against her wish. When P.W. 2 resisted, the first accused told her that he
would kill her father, if she did not give consent for sexual intercourse. Thereafter, the first accused promised her to marry also. Then, he took her
to Vathalagoondu and in a Temple, he married her, against her wish. From the said Temple, he took her to a house. There also, he had sexual
intercourse with her against her wish. From Vathalagoondu, he took her to Tiruchendur and made her to stay in the Temple along with him. The
next day, he brought her back to Kangayam. At Kangayam, they were found together by the Police and taken into custody.
(ii) P.W. 1 preferred a complaint at Kangayam Police Station on 16.03.2003. On the said complaint, P.W. 15 registered a case on 16.03.2003,
at 1.30 p.m., in Cr. No. 90 of 2003 u/s 366A IPC. He forwarded the F.I.R. and complaint to the Court and handed over the Case Diary to P.W.
16 for investigation. On taking up the investigation, P.W. 16 examined P.Ws. 1 to 4 on 16.03.2003 and recorded their statements. P.W. 16 went
in search of the first accused and P.W. 2. On 30.03.2003, at about 6.00 p.m., the first accused and P.W. 2 were found together at Kangayam
Bus Stand. P.W. 16 took them into custody. From the first accused, he recovered the receipt issued by the Temple Authorities and age certificate
issued by P.W. 10- Dr. Mangaiyarkarasi at Nillakottai Government Hospital for P.W. 2 and also the photographs taken by P.W. 2 and first
accused together. He further recovered the wearing apparels of P.W. 2 under Ex. P-9-Mahazar in the presence of P.W. 5 and another witness.
Then, he forwarded the first accused as well as P.W. 2 for medical examination. P.W. 6- Dr. Radha Soundarrajan examined P.W. 2 on
31.03.2003 and gave medical certificate under Ex. P-4. She found the hymen of P.W. 2 ruptured. P.W. 6 did not found any external injuries or
any abnormality. P.W. 6 also found that the vaginal cavity of P.W. 2 allowed two fingers to enter freely. From these findings, P.W. 6 opined that
P.W. 2 had been subjected to sexual intercourse for quite some time.
(iii) P.W. 12-Dr. Suresh, a Radiologist, took x-ray and conducted Radiology examination on P.W. 2 in order to ascertain her age. He issued Ex.
P-12-opinion together with M.O.8-X-rays. According to P.W. 12, from the Radiological examination, the age of P.W. 2 at the time of occurrence
would have been some where between 17 and 18 years. P.W. 12 examined the first accused and gave opinion that he was capable of performing
sexual intercourse with a woman. P.W. 16, examined these Doctors and collected the medical records. He also examined P.W. 10-Dr.
Mangayarkarasi, who had earlier given the age certificate to P.W. 2 on 17.03.2003 under Ex. P-9. According to her, on 17.03.2003, P.W. 2
came to her and requested her to issue the age certificate for the purpose of seeking job. Based on the physical appearance, she gave Ex. P-9,
giving opinion that she must be around 19 years of age. Thereafter, investigation was taken up by P.W. 17, followed by P.W. 18. On completing
the investigation, P.W. 18 laid the chargesheet.
(iv) Based on the above materials, the trial court framed charges under Sections 366, 363 and 376(1) IPC against first accused and Sections 363
and 366 against accused 2 to 4. All the accused denied the charges. Therefore, they were put on trial. During the trial, on the side of prosecution
as many as 18 witnesses were examined and 13 documents were exhibited and 9 material objects were exhibited. When the accused 1 to 4 were
questioned u/s 313 Code of Criminal Procedure as to the incriminating circumstances found in the evidence of prosecution witnesses, they flatly
denied as false. However, they did not choose to examine any witness on their side nor did they mark any defence document. Having considered
all the above materials, the trial court found the accused 1 to 4 guilty and convicted them and sentenced them to undergo imprisonment as narrated
in paragraph No. 1 of this judgment. That is how, the Appellants 1 to 4/accused 1 to 4 are now before this Court with this appeal.
I have heard Mr. R. Rajasekaran, the learned Counsel appearing for the Appellants and Mr. R. Muniapparaj, learned Government Advocate
appearing for the Respondent and also I have perused the records carefully.
At the outset, Mr. R. Rajasekaran, learned Counsel appearing for the Appellants would submit that there has been no charge u/s 366A IPC
against any of the Appellants, whereas, there is conviction u/s 366A IPC. The learned Counsel would submit that one of the charges framed
against all the four accused is u/s 366 IPC simpliciter. But, without there being a charge u/s 366A IPC, according to the learned Counsel, the
conviction has been recorded against all the accused, which is illegal.
On going through the records, Mr. R. Muniapparaj, learned Government Advocate would also concede that there was no charge u/s 366A
IPC, instead, there was only a charge u/s 366 IPC.
Now the question is in the absence of any charge u/s 366A IPC, whether the conviction of these Appellants under the said provision is
sustainable.
For this, I may usefully refer to Section 222 Code of Criminal Procedure, which reads as follows:
When offence proved included in offence charged.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor
offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, thought he was
not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence,
although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately
charged.
(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of
proceedings in respect of that minor offence have not been satisfied.
Here, in this case, though the offences under Sections 366 and 366A are of more or less similar in nature, still the punishment provided for both
the offences is imprisonment for ten years and fine. Therefore, the offence u/s 366A is not a minor offence to Section 366 IPC, so as to invoke
Section 222(2) Code of Criminal Procedure. Thus, in my considered opinion, the conviction of these Appellants/accused 1 to 4 u/s 366A IPC,
without there being a charge, is illegal and therefore, the same is liable to be set aside.
Now coming to the charge u/s 363 IPC, I am unable to understand as to how the Court can frame simultaneously two charges under Sections
366 and 363 IPC, relating to one and the same occurrence. It is noticeable that these two charges have not been framed as alternative charges.
Any how, since, I am holding that the conviction u/s 366A is illegal, I may now proceed to analyse as to, whether the charge u/s 363 IPC has been
proved by the prosecution beyond reasonable doubt.
As I have already narrated, P.Ws. 1 and 3 have seen P.W. 2 being taken by the first accused under the guise of taking her to Kangayam in
connection with arranging for loan. At the time, when she was taken from the house of P.W. 1, she went on her own accord, that too, with the
consent of P.Ws. 1 and 3. Therefore, taking of P.W.2 from the house of P.W. 1 cannot be stated to be either abduction or kidnapping. After
going to Kangayam, accused 2 to 4 joined with the first accused and they took her by force to Erode and from Erode to Vellakoil. This according
to prosecution amounts to kidnapping. After Vellakoil, accused 2 to 4 did not proceed further and it was only the first accused, who proceeded
further taking P.W. 2 to Madurai, Tiruchendur and other places.
Now the question is, whether P.W. 2 was taken against her wish or she was a consenting party to go with the first accused.
In this regard, I have carefully gone through the evidence of P.W. 2. During cross-examination, she has clearly admitted that at several places
when she was in the company of first accused, there were general public and even there were some known people, but, she did not raise any
alarm, hue & cry or any resistance. Apart from that, even before the occurrence, P.W. 2 went to P.W. 10-Dr. Mangayarkarasi, at Nillakottai and
obtained the age certificate showing that she was more than 19 years. This shows that she prepared herself to go along with first accused.
Therefore, from the conduct of P.W. 2, it is clear that she proceeded along with the first accused to various places freely without raising any
objection, resistance or hue and cry and therefore, it can be safely concluded that she was a willing party to go with the first accused.
Now, the next question is, whether the said act of the first accused in taking her, even with consent, to various places amounts to an offence u/s
363 IPC.
In this regard, the age of the victim girl plays a vital role. It is the burden of the prosecution to prove that P.W. 2 was a minor at the time of
occurrence. The learned Counsel for the Appellants would straightaway rely on the evidence of P.W. 10-Dr. Mangayarkarasi and Ex. P-9 to
show that at the time of occurrence, she was aged 19 years. But, in my considered opinion, no weightage could be given to the evidence of P.W.
10 in this regard. P.W. 10 has given the opinion that P.W. 2 was aged about 19 years from out of the physical appearance of P.W. 2 and it is not
based on any medical examination. Such opinion based on mere physical appearance cannot either go to conclusively prove the age of the victim
or atleast to guide the Court to arrive at the correct age of the victim girl. Therefore, I have no hesitation to reject the evidence of P.W. 10 and Ex.
P-9.
Nextly, the prosecution relied on the evidence of P.W. 12- Dr. Suresh, the Radiologist. On conducting Radiology examination, he has opined
that the victim girl was aged between 17 and 18 years. Scientifically, it can be said that from the fusion of iliac crust a girl has completed 18 years
of age. In this case, from the x-rays taken P.W. 12 has given the opinion that there was no fusion of iliac crust and she was aged between 17 and
18 years. This evidence of P.W. 12 has not been seriously disputed by the Appellants. Though, P.W. 2 has been cross-examined, nothing has
been brought on record to disbelieve the evidence of P.W. 12. Therefore, the evidence of P.W. 12 needs acceptance and so, I have no hesitation
to hold that P.W. 2 was aged some where between 17 and 18 years at the time of occurrence.
Now coming to the school certificate upon which much reliance is placed upon by the prosecution to show that P.W. 2 at the time of
occurrence was hardly aged 16 years, in my considered opinion, no reliance can be placed on the said Certificate. The prosecution has examined
P.W. 7, the Head Master of the School, where P.W. 2 studied for some time. He has issued a certificate-Ex. P-5 based on the school records
showing that the date of birth of P.W. 2 is 15.03.1987. But during cross-examination, P.W. 7 has admitted that at the time when P.W. 2 was
admitted in the School, he did not work in the said School and therefore, he does not know anything about the entry made in the School records
about the date of birth of P.W. 2 and therefore, the oral evidence of P.W. 7 does not go to help the prosecution case in any manner to prove that
the date of birth mentioned in the school records represents the correct date of birth of P.W. 2.
But, the learned Government Advocate would submit that P.W. 7 in his evidence has stated that the date of birth was entered in the school
records based on the birth certificate. Relying on that part of the evidence of P.W. 7, the learned Government Advocate would submit that since
the entry of date of birth was made in the school records based on the birth certificate, the said date of birth mentioned in the school records
should be concluded as the correct date of birth. Though, the said argument seems to be attractive at the first instance, it deserves only to be
dismissed for the following reasons. First of all, the birth certificate has not been produced before the Court. The secondary evidence i.e., oral
evidence can be let in in respect of a primary evidence only if only the requirements of Section 65 of the Evidence Act, are satisfied. In this case,
since, there is no explanation offered as to, why the birth certificate of P.W. 2 has not been produced, the oral evidence of P.W. 7 in this regard
deserves only to be rejected as the same is only secondary evidence. Apart from that, P.W. 7 has stated that as per the school records, the entry
of the date of birth of P.W. 2 was found to have been made on the basis of the birth certificate. This part of oral evidence also being secondary
deserves only to be rejected for want of satisfaction of Section 65 of the Evidence Act. In the absence of production of the original school records
containing the entries, the oral evidence of P.W. 7 to the effect that school records contain an entry that the date of birth was entered in the school
records based on the birth certificate cannot be looked at all for any purpose. It is not explained to the Court, as to, why the original school
records have not been produced.
In this regard, the learned Counsel relied on the judgment of the Hon''ble Supreme Court rendered in Alamelu and Another Vs. State
represented by Inspector of Police, , wherein, the Hon''ble Supreme Courts has held that the date of birth mentioned in the Transfer Certificate
would have no evidentiary value, unless, the person, who made the entry or who gave the date of birth is examined. In this case, neither P.W. 1
nor P.W. 3 has stated that they gave information regarding the date of birth to the School authorities for making entry. The Head Master, who
made the entry also has not been examined. P.W. 7, who claims to be the Head Master subsequently alone has been examined.
Apart from that, we may also look into Section 35 of the Evidence Act, which states that any entry in any public or other official book, register
or record or electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, is relevant.
Thus, this provision make the official book only relevant and therefore, admissible. In this provision, there is no presumption provided that such
entry represents the correct facts.
Now, one may refer to Section 114(e) of the Evidence Act, which states that the Court may presume that the judicial and official acts have
been regularly performed. This presumption can be raised only to a limited extent i.e., to presume that the entry made was genuinely made by the
officer, who made the entry in discharge of his official duty. Beyond that, there cannot be a presumption that the information furnished to the
Officer, who made the entry itself is a correct information. Therefore, in the instant case, simply because in Ex. P-5, P.W. 7 has stated that the date
of birth of the victim girl is 15.03.1987, the same will not either give rise to a presumption or go to conclusively prove that her date of birth is
15.03.1987. In view of the above, as I have already stated relying on the evidence of the Radiologist, I hold that the victim girl was aged between
17 and 18 years at the time of the occurrence.
When, I am holding that P.W. 2 was still a minor at the time of occurrence, the next question would be as to, whether the offence u/s 363 IPC
would be made out.
For this, the learned Counsel appearing for the Appellants would rely on the judgment of the Hon''ble Supreme Court rendered in S.
Varadarajan Vs. State of Madras, , wherein, the Hon''ble Supreme Court has held that if a girl, who is in the border of attaining majority and
capable of knowing the full import of what she is doing and went on her own accord, the same cannot make out any offence u/s 363 IPC.
Applying the said principles to the facts of the present case, if we analyse the evidence of P.W. 2, it goes without saying, as I have already
concluded, that P.W. 2 willingly went along with the first accused to various places and therefore, no offence u/s 363 IPC would be attracted
against the first accused. As a corollary, Appellants 2 to 4 are also entitled for acquittal. Thus, I hold that the Appellants 1 to 4 are entitled for
acquittal from the conviction and sentence imposed against them u/s 363 IPC.
Now coming to the conviction u/s 376(1) IPC, the learned Counsel for the Appellants would submit that from the evidence of P.W. 2, it can
be inferred that P.W. 2 was a consenting party for sexual intercourse with the first accused. He would further add that since, P.W. 2 was more
than 16 years of age, and so, she is capable of giving free consent for sexual intercourse, the act of sexual intercourse committed by the first
accused with P.W. 2 will not make out an offence u/s 376(1) IPC.
But, the learned Government Advocate would vehemently oppose the said contention. According to him, a close analysis of the evidence of
P.W. 2 would go to show that she never consented for sexual intercourse. Therefore, the first accused is liable to be punished u/s 376(1) IPC, the
learned Government Advocate contended.
I have considered the above submissions. Here, there are two aspects to be considered by this Court. The first aspect is, as I have already
held, P.W. 2 was a consenting party for going along with the first accused and to be in the company of accused 2 to 4. To this extent there was
free consent on the part of P.W. 2. Therefore, as I have already held kidnapping has not been committed by accused 1 to 4. The second aspect is
the so called consent for sexual intercourse. There can be no doubt in legal sense that since P.W. 2 was more than 16 years of age as on the date
of commission of the offence, she was capable of giving free consent for sexual intercourse. If only there are materials to show that she gave such
free consent for sexual intercourse, then the first accused can come out of the clutches of Section 376(1) IPC. In this case, P.W. 2 has been cross-
examined at length to elicit from her that at the first time, when the first accused attempted to have sexual intercourse with the first accused, she
resisted. Not only P.W. 2 resisted, but, she further deposed that when force was used upon her, she tried to resist by kicking the first accused.
P.W. 2 has further stated that she tried to push him away, but, she could not do so. It is also elicited during cross-examination that the first accused
by force even tore her jacket, so as to molest her sexually. It has also been elicited during cross-examination that her petty coat was removed by
force by the first accused. Thereafter, she was made to be passive leaving her body to be enjoyed by the first accused sexually. Thus, from the
answers elicited during cross-examination, it has been brought on record that against her wish and against her willingness, sexual assault was made
on P.W. 2 by the first accused. There is no dispute in this case that P.W. 2 had been subjected to sexual intercourse. Therefore, I hold that there is
no consent, muchless, free consent by P.W. 2, at the first time, when sexual assault was made on her. Therefore, the sexual intercourse, which the
first accused indulged on P.W. 2 on the first occasion clearly makes out an offence u/s 376 IPC, for which, he is liable to be punished.
The learned Counsel for the Appellants would, however, contend that the medical evidence does not corroborate the evidence of P.W. 2. He
would take me through the medical evidence to show that there is no external injury or bite mark on P.W. 2, whereas, P.W. 2 has stated during
cross-examination that the first accused bite on her chest. This argument also cannot be countenanced for the simple reason that P.W. 2 was sent
for medical examination, nearly ten days after the occurrence. Therefore, the medical evidence in respect of the absence of external injury cannot
be given much weightage of.
Lastly, a close consideration of the defence taken by the first accused would go to show that it is not the case of the first accused that he never
had any sexual intercourse with P.W. 2. Though, the first accused had been cross-examined at length, I am at a loss to find a denial to the effect
that the first accused had no sexual intercourse with P.W. 2. Even in the statement made u/s 313 Code of Criminal Procedure, he has not stated
that he had never had any sexual intercourse with P.W. 2. Thus, in the absence of any denial on the part of the first accused, it would only go to
show that it is his admitted case that he had sexual intercourse with P.W. 2. Once, he takes such a defence that he had sexual intercourse with
P.W. 2, unless, he establishes that there was free consent by P.W. 2, then, he cannot escape. In this case, the first accused has not pleaded free
consent from P.W. 2 explicitly. Assuming that such free consent can be inferred in law from the materials available on record, in this case as I have
already stated the inference is that there was no free consent from P.W. 2. For all these reasons, I have no hesitation to hold that the prosecution
has proved that the first accused has committed the offence of rape falling u/s 376(1) IPC, for which, he is liable for conviction.
Now coming to the question of quantum of punishment for the said offence, the learned Counsel for the Appellants would submit that at the
time of occurrence, he was hardly aged 28 years and after the occurrence, several developments had occurred. Even during cross-examination,
P.W. 2 has admitted that after the occurrence, she has married some one else and got a child. Thus, P.W. 2 has settled down in her life. According
to the learned Counsel for the Appellants, the first accused is a poor man and he has not been able to pay even the fine amount imposed by the
trial Court. He would further submit that the first accused has been continuously in the prison for more than 51/2 years. He would further add that
his entire family members are also suffering. The learned Government Advocate is not in a position to dispute these factual aspects.
In my considered opinion, these facts stated by the learned Counsel for the Appellants would only mitigate the circumstances, so as to reduce
the sentence. Though, for the offence u/s 376(1) IPC, a minimum punishment of ten years of imprisonment has been prescribed, under the proviso
to the said provision, for the reasons to be recorded lesser punishment may also be imposed. In this case, for the reasons, which the learned
Counsel for the Appellants narrated above, which are acceptable to the Court, in my view, the imposition of rigorous imprisonment for a term,
which he had already undergone would meet the ends of justice. The learned Counsel for the Appellants, now, brings to my notice that one year
before, he has paid the fine amount. Since, the first accused is a very poor man, I am of the view that the fine amount imposed on him cannot be
sustained.
In the result, the appeal is partly allowed in the following terms:
i. The conviction and sentence imposed on Appellants 2 to 4/accused 2 to 4 by the learned Assistant Sessions Judge, Tharapuram, Erode, in S.C.
No. 109 of 2004, dated 8.4.2005, for the offences under Sections 366A and 363 IPC are set aside and they are acquitted of all the charges
levelled against them. The fine amount, if any paid by them, shall be refunded to the respective accused. The bail bond, if any executed by
Appellants 2 to 4/accused 2 to 4, shall stand discharged.
ii. The conviction of the first Appellant/first accused passed by the learned Assistant Sessions Judge, Tharapuram, Erode, in S.C. No. 109 of
2004, dated 8.4.2005, for the offences under Sections 366A and 363 IPC is set aside and he is acquitted of those charges and the fine amount, if
any paid by him, shall be refunded to him.
iii. The conviction of the first Appellant/first accused passed by the learned Assistant Sessions Judge, Tharapuram, Erode, in S.C. No. 109 of
2004, dated 8.4.2005, for the offence u/s 376(1) IPC is confirmed, but, the sentence imposed by the trial Court is reduced to the period already
undergone by him. The fine amount imposed by the trial Court is also set aside.
iv. The first Appellant/first accused is, therefore, directed to be set at liberty forthwith, if his detention is not required in connection with any other
case.
v. In other respects, the appeal stands dismissed.