IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.10.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.708/2006 Senthil Appellant/Accused Vs State by Inspector of Police T.R.Pattinam Police Station Karaikal, Pondicherry Respondent/Complainant (Cr.No.163 of 2001) Prayer:- This Criminal Appeal is filed to set aside the conviction and sentence imposed in SC.No.23/2003 dated 5.8.2005 by the learned Additional Assistant Sessions Judge, Pondicherry. For Appellant : Mr.N.Duraisamy for Mr.R.Sankarasubbu For Respondent : Mr.M.R.Thangavel for PP(P) ORDER The appellant/accused has filed this Criminal Appeal to set aside the conviction and sentence imposed in SC.No.23/2003 dated 5.8.2005 by the learned Additional Assistant Sessions Judge, Pondicherry to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.5000/-, in default to under Rigorous Imprisonment for one year. 2. The case of the Prosecution is as follows:- PW.1 Rajeswari was residing at Polagam, T.R.Pattinam at Karaikal and her husband was residing with his Parents at Thiruverkadu Village near Boombukar and he used to come once in a month to the house of the victim. The accused is residing at the third house from the house of the victim woman. On 1.9.2001 in the evening, the victim woman went to collect firewood in the lake area at Polagam and at about 5.45 p.m. the accused came there, pushed her down and closed her mouth with a cloth which was used by her for carrying the wood on her head and committed sexual assault on her. The accused also threatened her not to reveal the matter to any one. After she returned to her house, she informed to her brother's wife Kalaiarasi PW.3 and later both of them went to the victim woman's brother's (PW.2) house and then PW.1 and PW.2 went to the police station and lodged a complaint under Ex.P1 before PW.8 Sub Inspector of Police and PW.8 on receiving the complaint https://hcservices.ecourts.gov.in/hcservices/ registered a case in Cr.No.163/2001 under Section 376 of IPC and Ex.P12 is the printed FIR. 3. PW.8 proceeded to the victim's house and seized MO.1 Saree and MO.2 pettycoat in the presence of the victim woman under a cover of mahazar Ex.P2. At 1.15 hours, the victim woman was sent to the Government Hospital, Karaikal for medical examination and Dr.Anne Bullah Juliet PW.5 examined her and gave opinion that there was an evidence of forcible sexual intercourse considering the presence of bite marks and nail marks on her face. Ex.P7 is the report of external genitalia. Ex.P8 is the case sheet and Ex.P9 is the requisition given by the police to the Doctor at Government Hospital. Thereafter PW.8 went to the place of occurrence and prepared crime details form under Ex.P13 in the presence of PW.4. PW.8 examined the witnesses Kalairarasi and Veerasamy. On 2.9.2001 at about 15.30 hours, he arrested the accused in his residence and brought him to the Police Station and recorded the voluntarily confession give by the accused. On the basis of the said confession, he seized MO.3 Lungi and Banian MO.4 worn by the accused at the time of occurrence under a cover of mahazar Ex.P5 in the presence of the witnesses PW.4 and one Sanjeevi. On 3.9.2001 at 9.00 hours, the accused was sent to the Government Hospital, Karaikal along with a Police Constable 1724 for medical examination. PW.6 has given an opinion that the accused was capable of having sexual intercourse and his report is Ex.P10. 4. On 17.9.2001 PW.8, in continuation of the investigation, received the MOs of the accused and the victim woman and the samples taken by the Doctor under a mahazar Ex.P14 and later he sent those samples to the Hydrabad Lab through HC1100 and 1165. On 10.1.2003, PW.1 examined the photographer, recorded the statement and seized the photos Ex.P11 (Series). On completion of the investigation, PW.8 filed a final report against the accused under Section 376 of IPC. 5. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses to which the accused denied the same and no witness was examined on his side. 6. The Appellant had taken a plea before the court below that even prior to the incident he was having illicit intimacy with the victim woman and on the date of occurrence, when he was having sexual intercourse with her consent, her brother PW.2 had seen them and in order to overcome the said situation, she had lodged the complaint against the Appellant at the instance of her brother PW.2. The said defence is reiterated in this appeal also. 7. Mr. N.Duraisamy, the learned counsel for the Petitioner drew the attention of this court to the medical evidence, wherein no external injury has been noted in the private parts and in any other parts of her body except her cheek. The learned counsel would submit that the victim girl being a woman https://hcservices.ecourts.gov.in/hcservices/ aged about 35 years and a mother of three children, would have overpowered the accused if she was not the consenting party, more so, when the occurrence had taken place in the open field. 8. The said contention of the learned counsel for the Appellant does not merit acceptance, because The testimony of PW.1 has been corroborated by the medical evidence. As the Doctor who had examined her has noted bite marks and nail marks on her face coupled with the examination report of the Central Forensic Service Laboratory which found semen on her petticoat and vaginal swab indicating that the victim woman had been subjected to sexual intercourse forcibly. Her evidence does not suffer from any infirmity and is consistent with other evidence and circumstances of the case. 9. A girl, who is a victim of an outrageous act is, generally speaking cannot be treated as an accomplice, though the rule of prudence required that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it. In the case of Bhogin Bhai Hirijibhai Vs. State of Gurajar [AIR-1983-SC- 753], their Lordships of the Honourable Supreme Court had strongly commented upon the insistence of corroboration in case of rape committed on the victim girl. The relevant passage in the said judgement is extracted below:- "In the Indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles filed with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the change of male chauvinism in a male dominated society." 10. Bearing in mind the above said observation, it is quite true that it is not proper for the court in a case of rape to insist on the same amount of corroboration, as in a case in which grown up women is alleged to have been raped. However, in the case of grown up woman the testimony of the victim must be corroborated by other evidence in all material aspects. 11. It has been pointed out by the learned counsel for the Appellant that a charge of rape is a very easy charge to make and a very difficult one to refute and in this particular case, when the Appellant has consistently taken a defence that the victim woman was a consenting party, the court should insist on corroboration of the complainant's story in all aspects. He would submit that the bite marks and nail marks on her face are likely to occur even while she is a consenting party and that should not have weighed the court to come to the conclusion that the Appellant has subjected her to sexual intercourse without her consent. https://hcservices.ecourts.gov.in/hcservices/ 12. Though the argument advanced by the learned counsel for the Appellant appears to be sound, but at the same time the absence of any injury on the person of the victim may not by itself discredit the statement of the victim. 13. In the case of State of Rajasthan Vs. NK, the Honourable Supreme Court has held thus:- "The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injury or that she had offered no resistance at the time of the commission of the crime. Absence of injuries ... is not an evidence of falsity of the allegation or an evidence of consent.... It will depend on the facts and circumstances in each case. 14. In the instant case, the evidence on record do not disclose any strong motive for the victim to falsely involve the Appellant. Therefore, I am unable to agree with the submission made by the learned counsel. The evidence led by the Prosecution has proved the sexual assault committed by the Appellant and I do not find any unreasonableness in the finding of the learned Sessions Judge. Hence, the conviction of the Appellant on the evidence of the prosecutrix, which stood corroborated by medical evidence is liable to be confirmed. However, considering the facts and circumstances of the case and the age of the prosecutrix, who is a well grown up women aged about 35 years and the appellant is aged about 31 years, the sentence imposed can be reduced. 15. At this juncture, it is relevant to refer to the observations made by the Honourable Supreme Court in the case of Phul Singh Vs. State of Haryana [Air-1980-SC-249], while taking a lenient view and reducing the sentence from 4 years to 2 years Rigorous Imprisonment, the Honourable Supreme Court has held that though in our condition of escalating sex brutality a four year term for rape is not excessive, however, considering that the accused was in his early twenties and he was not a habitual offender the sentence can be reduced from 4 years to 2 years Rigorous Imprisonment. 16. In this case, keeping in mind the age of the victim woman and the Appellant and he is in custody for more than 4 years and taking into account the poor condition of the Appellant, the sentence is reduced to 5 years from 7 years Rigorous Imprisonment and the fine amount is reduced from Rs.5000/- to Rs.1000/- in default to undergo Rigorous Imprisonment for 6 months. This Criminal Appeal is disposed of accordingly. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ Srcm To: 1. THE ADDITIONAL ASSISTANT SESSIONS JUDGE, PONDICHEERY 2. -Do-Thro THE PRINCIPAL SESSIONS JUDGE PONDICHERRY 3. THE JUDICIAL MAGISTRATE NO.II KARAIKAL 4. -Do-Thro THE CHIEF JUDICIAL MAGISTRATE PONDICHERRY 5. THE SUPERINTENDENT CENTRAL PRISON PUDUCHERY 6. THE DISTRICT COLELCTOR PONDICHERRY 7. THE DIRECTOR GENERAL OF POLICE CHENNAI 8. THE INSPECTOR OF POLICE T.R.PATTINAM POLICE STATION KARAIKAL, PONDICHERRY 9. THE PUBLIC PROSECUTOR HIGH COURT,MADRAS 10. THE SECTION OFFICER CIRMINAL SECTION HIGH COURT, MADRAS 1 cc To The Public Prosecutor, Pondichery, SR.56364 Crl.A.No.708/2006 PUR(CO) SRA(3/11/2009) https://hcservices.ecourts.gov.in/hcservices/