IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED.18.08.2011 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN Crl.A.No.309 of 2009 And M.P.No.1 of 2011 Balan (a) Kulla Balan S/o.Chithirai ... Appellant Vs. The State of Tamil Nadu Rep. By the Inspector of Police Pallavaram Police Station Pallavaram, Chennai – 47. ... Respondent Prayer: Appeal is filed under Section 374 (2) Cr.P.C. praying to set aside the order dated 16.04.2009 and made in S.C.No.91 of 2007 on the file of the Learned Sessions Judge Mahila Court, Chengalpattu. For Appellant : Mr.V.Bhiman For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor. J U D G M E N T Challenge is made in this appeal by the appellant/accused to the conviction and sentence imposed on him dated 16.04.2009 and made in S.C.No.91 of 2007 on the file of the Learned Sessions Judge Mahila Court, Chengalpattu. 2. Pending disposal of this appeal the appellant has filed a petition under Section 389(1) Cr.P.C to suspend the sentence and fine imposed on him. When the petition was taken up for hearing, Mr.V.Bhiman, the learned counsel for the appellant has urged before this court that instead of taking this petition in Crl.M.P.No.1 of 2011 for suspending the sentence, the main appeal could be taken up and disposed of as it is in the admission stage. Mr.A.N.Thambidurai, learned Additional Public Prosecutor has also conceded to take up the https://hcservices.ecourts.gov.in/hcservices/ main appeal itself for disposal. Since the learned counsel for the appellant as well as the learned Additional Public Prosecutor have mutually agreed to take up the appeal for disposal, this Court has heard both the learned counsels and the appeal is accordingly disposed of in this judgment. 3. The facts germane to the case are detailed as under. 3.1. PW 3 who is the victim girl aged about 8 years at the relevant period is the daughter of PW 1 and PW 2. PW 4 is the owner of the house wherein PW 1 and PW 2 had been residing along with their daughter PW 3 as tenant. The appellant being the first accused in this case had also been residing in the house of PW 4 along with his wife who is the second accused in this case. The house of the appellant was just located opposite to the house of PW 1 and PW 2. 3.2. That on 13.06.2006 in the morning the appellant had taken PW 3 to his house, and he himself had undressed first and then PW 3 was stripped off and made nude. After making her to lie, the appellant had placed his penis in the vagina of PW 3 and withdrawn, and he was repeating this act. Since she felt pain, she had cried out as amma amma. At about 10.30 am., when PW 1 was returning to her house from her work spot her younger son only was found playing. Her elder daughter viz., PW 3 was not present there. Since the door of the house of the appellant was partly opened, she had just peeped inside. While so, she happened to see that the appellant and her daughter were in compromising position. Her daughter (PW 3) was found lying on the floor while the appellant was lying on her. Both were in nude posture. On noticing this PW 1 had shouted at the appellant brought her daughter home. 3.3. In the evening when PW 2 had returned from the work spot PW 1 had informed him about the incident. Then PW 1 and PW 2 went to the house of the appellant and shouted at him. While so, the appellant along with his wife who is the second accused in this case had assaulted PW 2. On the next day i.e., on 14.06.2006 at about 01.45pm., when PW 9, Inspector of Police attached to Palavaram Police Station was present in his office PW 1 had lodged a complaint under Ex.P1. On receipt of the complaint PW 9 had registered a case in Crime No.796 of 2006 under Section 376(2)(f) and under Section 323 of IPC. The printed first information report was marked as Ex.P10. Ex.P1 and Ex.P10 were sent to the Learned Judicial Magistrate, Tambaram and the copies were sent to Police higher officials. Then PW 9 had examined PW 3, victim girl in the presence of PW 10, Inspector of Police attached to All Women Police Station, Ashok Nagar and recorded her statement. He had also sent the victim girl (PW 3) to Crompet Government Hospital along with a medical memo. 3.4. At about 03.35pm., he had been to the place of occurrence, https://hcservices.ecourts.gov.in/hcservices/ inspected the same in the presence of the witnesses and prepared an observation mahazar and a rough sketch under Exs.P11 and P12 respectively to that effect. Then at about 4pm., he had recovered the green colour nighty which was worn by the victim girl at the time of occurrence in the presence of the witnesses under a mahazar which was marked as Ex.P13. At about 05.45pm., he had arrested the appellant and his wife near Malanganandapuram Lake. On interrogation the appellant had voluntarily given the confessional statement in the presence of PW 5 and PW 6 which was reduced in to writing by PW 9. On the basis of his disclosure statement (Ex.P14), the dhoti which was worn by him prior and after the sexual intercourse with the victim girl was seized under a seizure mahazar. The nighty of the victim girl and the dhoti of the appellant was marked as MO1 and MO2 respectively. On the fixed date i.e., on 15.06.2006, the appellant and his wife being the second accused in this case were sent to court along with the victim girl. On the requisition under Ex.P16, the first accused and the victim girl PW3, were sent to medical examination by the Learned Judicial Magistrate, Tambaram. 3.5. PW 7 Dr.Ranjini Bheemrao had examined the first accused to ascertain his potentiality. After completion of her examination on 16.06.2006, she had issued a certificate of examination for sexual offences under Ex.P6 in which she had stated that there is nothing to suggest that he is impotent. Similarly, PW 8 Dr.Pramila had examined the victim girl PW3. and after the completion of her examination she had issued two certificates; (1)Ex.P8 in which she has stated that she was of opinion that the victim girl was aged about 6 years but below 8 years. (2)Ex.P9 certificate of examination for sexual offences in which she had stated that; (a)vulva normal (b)vagina admits tip of the little finger, (c)hymen intact, (d)perinea intact (e)Cervix clear, (f)no nail marks or any other injuries seen on the face, mouth, lips, chest and thigh. 3.6. Since PW 9 went on transfer, the case records were taken up by PW 11 for further investigation. PW 12 Tmt.Vimalathyagarajan, Scientific Officer from the Forensic Sciences Laboratory Chennai, had examined the dhoti stained with the semen. After her examination she had issued a Serology report dated 22.09.2006, in which she had stated that the semen found on the dhoti was detected to be human origin and that the result of grouping test was inconclusive. PW13 Dr.Kamalakshi Krishnamoorthy, Assistant Director, FSL Chennai had examined MO1 and MO2 viz., nighty and the dhoti and after her examination she had issued Ex.P18 Biology report, in which she had stated that in Item Nos.1 and 2 viz., nighty and dhoti, no blood was https://hcservices.ecourts.gov.in/hcservices/ detected, whereas in Item No.2 Dhoti, semen was detected but not in Item No.1. They both were examined by PW 11 and recorded their statements. After the completion of his investigation PW 11, had laid a final report against the appellant as well as against his wife (A2) under Sections 376(2)(f) and 323 r/w 34 IPC. With the evidence of PW 13 the prosecution has closed its side. 3.7. When the incriminating circumstances arising out of the testimonies of the prosecution witnesses were explained to the appellant as well as to his wife (A2), during the course of the proceedings under Section 313(1)(b) of Cr.P.C. the appellant had replied that on account of a dispute arisen out of a chit transaction, this complaint was foisted on the instigation of PW 4 Shankar. Neither oral nor documentary evidence was led on behalf of the defence. On evaluating the evidences both oral and documentary, the trial court has found the appellant/first accused guilty under Section 376(2)(f) convicted thereunder and sentenced as aforestated. In so far as the offence under Section 323/34 IPC is concerned, both the appellant and his wife were found not guilty and were also acquitted of the charges. 4. Heard Mr.Bhiman, learned counsel for the appellant and Mr.A.N.Thambidurai the learned Additional Public Prosecutor. 5. In so far as this case is concerned the testimonies of PW 1, PW 3, PW 4 and PW 8 are quite relevant. The facts need not be repeated once again as they have been narrated in detail in the opening paragraph of this judgment. 6. PW 3 being the victim girl aged under 8 years was not able to specify the date and time of occurrence in her evidence. She would however state that she was taken by the appellant to his house, removed her dress as well as his dress, made her to lie and subsequently, put his penis on her private part and taken out. She had also stated that he had been repeating this act. She has also disclosed another fact that when she felt pain she cried out as 'amma amma'. But this fact has not been stated by PW 1 either in her chief or in her cross examination. She would state that at about 10.30am., on 13.06.2006 when she was returning to her house from her work spot her younger son alone was found playing but she was unable to find her elder daughter viz., PW 3 the victim girl. As revealed from her evidence, the door of the appellant's house was partly opened, and when she had just peeped inside, she happened to see the appellant and her daughter were lying in compromising position. PW 3 was found lying nude on the floor while the appellant was lying nude over her. The evidence of PW 3 victim girl, with regard to her crying as 'amma amma' out of pain has not been supported by PW 1. If she was able to hear the cry of her daughter she would have stated in her evidence that after hearing the crying sound of her daughter, she had been to https://hcservices.ecourts.gov.in/hcservices/ the house of the first appellant and seen the occurrence, but she had not stated like that. Even in her complaint under Ex.P1 also she did not disclose this fact. 7. In her complaint she would state that at 10.00am., when she was returning from the work spot her daughter PW 3, was present in the opposite house. Since the door was partly opened she peeped inside and found that the appellant was indulging in sexual intercourse with her daughter after removing and placed aside his lungi. Even in her chief examination also PW 1 has stated the same version. 8. On coming to the evidence of PW 9, Investigating Officer, he would state that on the basis of the disclosure statement under Ex.P4, the accused had taken him and produced a dhoti which was said to have been worn by him prior and after the sexual intercourse. But no lungi was seized by PW 9 as spoken to by PW 1 in her complaint. PW 5 and PW 6 who are said to be the mahazar witnesses have turned hostile as they have not supported the case of the prosecution. 9. PW 4 Shankar, is the owner of the house of PW 1, PW 2 and the appellant. As adumbrated supra, both PW 1, PW 2 and the appellant were residing in the house belonging to PW 4. PW 4 have spoken to about a similar previous incident. He would state that 1 ½ years before, at the bank of lake at about 01.30pm., when he had been there for answering the call of nature, he had found the appellant lying over the victim girl and on seeing him the appellant had started running. Immediately he had informed this fact to PW 1, but PW 1 did not initiate any action on the information supplied by PW 4. Though PW 3, victim girl had disclosed this fact in her evidence, she had not informed about the previous incident either to her mother or to her father. PW 2 being the father of the victim girl had not seen the occurrence directly but he was informed about this fact by PW 1. 10. PW 11, who had laid the charge sheet had charged the appellant and his wife under the following two charges; (1)As against the appellant (A1) – under Section 376(2)(f). (2)As against the appellant(A1) and his wife Selvi @ Murugammal (A2) – under Section 323 r/w 34 IPC. 11. The trial court has found both the appellant and his wife (A2) not guilty under Section 323 r/w 34 IPC and therefore, they were acquitted of the above said charges. But the appellant was found guilty under Section 376(2)(f) IPC, as the victim girl PW3, was under the age of 8 years at the time of occurrence. 12. In so far as this case is concerned, the testimonies of PW 1, PW 3, PW 8 and Ex.P9 are available against the appellant. Based on the testimonies of Pws. 1,3,8 and Ex.P9 a question is arisen as to https://hcservices.ecourts.gov.in/hcservices/ whether these evidences are sufficient to bring the criminal conduct of the appellant under the amplitude of Section 375 (sixthly) to punish him under Section 376(2)(f) of IPC. 13. The phrase 'rape' has been explained under Section 375 of IPC. Section 375 enacts as follows; "A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:— First — Against her will. Secondly — Without her consent. Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law-fully married. Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe-fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.— With or without her consent, when she is under sixteen years of age. Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." 14. In the given case on hand as per Ex.P8, age certificate issued by PW 8, Dr.Pramila, tutor in FSL Chennai, PW 3 was aged about 6 years but below 8 years. Therefore, it is crystal clear that the testimonies of PW 1, PW 3 and PW 8 with the assistance of Ex.P9 certificate of examination for sexual offences issued in respect of the victim by PW 8 are going to pointing out that the very intentional act of the appellant may be termed as an offence of rape and therefore, he may be brought under the amplitude of the ingredient sixthly of Section 375 of IPC because the victim was aged below 8 years at the material time. 15. The explanation to Section 375 contemplates that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. To establish 'penetration' the https://hcservices.ecourts.gov.in/hcservices/ evidence of PW 3, PW 8 and Ex.P9 assume more importance. On coming to the evidence of PW 3, she would state that the appellant had put his male organ in her private part and withdrawn. She has also stated that he had been continuing the act viz., putting and withdrawing his male organ. Apart from this she would state that out of pain she was crying as "amma amma". While so, her mother had come there and shouted at the appellant and taken her from there. 16. On coming to the evidence of PW 1, she would state that when she had peeped through the partly opened door, she had noticed in dismay that both the appellant and her daughter were in compromising position. While her daughter was lying down in nude, the appellant was found lying over her in nude just like that of having sexual intercourse as husband and wife. But she did not state that her daughter was crying out of pain. In the complaint under Ex.P1, she would state that when she had peeped through the partly opened door, she had found that the appellant was indulging in unlawful sexual act with her daughter after removing and placing aside his lungi. But in the complaint also she never state that her daughter PW 3 was crying out of pain. 17. On coming to the evidence of PW 8, Dr.Pramila, she would state that no nail marks or any other injury was seen on the face, mouth, lips, chest and thigh of the victim girl PW 3. She has also stated that PW3's valva was normal, vagina admits tip of the little finger, hymen intact, perinea intact. It is pertinent to note here that if there was penetration definetly PW 8 would have found some congestion, bruise around the hymen or around the labia minora of PW 3. But in this case nothing was found. 18. In this connection the Mr.A.N.Thambidurai the learned Additional Public Prosecutor has submitted that as per the judicial pronouncement of several High Courts and the Apex Courts an intercourse could be had even without causing rupture or even without inflicting injuries in the private part of the victim both externally and internally. But here to constitute penetration, the evidence of PW 1 and PW 3 are not sufficient. The evidence of PW 8 and the documentary evidence under Ex.P9 are not supporting the act of penetration in this case. Therefore, it cannot be heard to say that penetration was established in this case. 19. In Prem Narayan v. State of M.P. reported in 1989 CrLJ 707 (MP) the accused when caught hold of the prosecutrix at the flour mill of her father and forcibly dragged her by the side of bushes and trees; he threw her down on the ground and removed her under garments making her naked; and he did attempt at penetration; the prosecutrix started bleeding from private parts, the offence of rape or at least attempt to commit rape is proved. https://hcservices.ecourts.gov.in/hcservices/ 20. In an another case in Sanju @ Sanjay Patangrao Jagtap vs. State of Maharashtra reported in 2004 CrLJ 1102(Bom) the accused had committed rape on girl of 5 years of age but she was not medically examined but accused had made extra-judicial confession that he had attempted to commit rape and finding of semen stain on victim's underwear in chemical examination lent support to the prosecution case. It was held that his conviction could be altered from Section 376 to one under Section 376/511. 21. The learned counsel for the appellant/first accused while advancing his arguments has submitted that as deposed by Dr.Pramila PW8, that penetration was not possible because no injuries either externally or internally were found on the victim girl PW 3. He has also argued that as deposed by PW12, Scientific Officer, FSL Chennai and PW 13 Assistant Director of FSL, Chennai and on the basis of Exs.P17 and P18 no seminal stain was found on the nighty MO1 which was worn by the victim girl at the time of occurrence, no blood stain was also found in MO1. Further he has also submitted that though seminal stain was found on MO2 dhoti it was not proved that it was belonged to the appellant. Though it is stated in Ex.P17 that the seminal stain was found to be of human origin, the result of grouping test was found inconclusive. Further on making reference to Ex.P18 Biological report she would state that no blood stain was found in MO2 dhoti and no seminal stain was found in MO1 nighty. 22. He has also argued that the non-detection of blood stain and non-proof of seminal stain on the dhoti belonging to the accused person, it could not be stated that the offence of rape was established by the prosecuting agency as against the appellant. 23. He has also maintained that when the incriminating circumstances were explained to the appellant as well as to his wife when they were examined during the proceedings under Section 313(1) (b) of Cr.P.C. the first appellant had clearly replied that there was a dispute between him and PW 4 with regard to a chit transaction and hence, on the instigation of PW 4 this case was foisted by the prosecuting agency by availing the assistance of PW 1, connecting her minor daughter with the appellant as if he had committed sexual assault on the innocent victim girl. He has also canvassed that there was an abnormal delay in lodging the complaint by PW 1 with regard to the alleged offence of rape. He has also argued that as revealed from the evidence of PW 1, the occurrence took place at 10.30am., in the morning of 13.06.2006. But Ex.P1 complaint was lodged before PW 9 only on 14.06.2006 at about 01.45pm., and therefore, there was a delay of 27 hours in lodging the complaint which has not been satisfactorily explained by the prosecuting agency. 24. Countering his argument, the learned Additional Public Prosecutor has submitted that on perusal of the testimonies of PW 1 https://hcservices.ecourts.gov.in/hcservices/ it is crystal clear that she had explained the delay satisfactorily as to why she had to lodge the complaint on the next day. In this connection he would submit that though the occurrence was taken place at 10.30.pm., PW1 was not able to act on her own olition and therefore, she was waiting for the arrival of her husband and after his coming back to home in the evening from the work spot she had narrated the incident and thereafter, they both went to the appellants house and shouted at him. During the course of verbal altercation, the appellant and his wife had joined together and assaulted PW 2 and hence, he happened to lodge the complaint on the next day i.e., at 01.45pm. He has also added that under this circumstances, the delay is not a criteria to discard the complaint under Ex.P9 and to drop the presumption that no occurrence was taken place as alleged by the prosecuting agency. 25. With regard to the explanation given by the first appellant as to why this case was foisted against him, the learned counsel for the appellant has laid emphasis on the decision in State of Punjab vs. Hari Singh and others reported in (2009) 4 SCC 200. In this case at para 16, the apex court has held as follows; "16. Contextually we cannot bypass the decision of a three- Judge Bench of this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three-Judge Bench made the following observations therein: (SCC p.806, para 16) "16. .... It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal