IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.03.2008 THE HONOURABLE MR. JUSTICE D.MURUGESAN AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No. 834 of 2007 Anbu @ Anbarasu, S/o.Krishnan ... Appellant (Accused) Versus State represented by The Inspector of Police, J.J.Nagar Police Station, (Crime No. 3603 of 2005) ... Respondent (Complainant) Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 19.12.2006 made in S.C.No. 253 of 2006 on the file of the learned Additional Sessions Judge, Fast Track Court No.III, Poonamallee, Tiruvallur District. For Appellant : Mr.A.Abdul Lathif For Respondetn : Mr.P.Kumaresan, Addl. Public Prosecutor JUDGMENT (Judgment of the Court was delivered by V.PERIYA KARUPPIAH,J.) The appellant is the accused who was put on trial in S.C.No. 253 of 2006 on the file of the Additional Sessions Judge, Fast Track Court No.III, Poonamallee, Tiruvallur District. By the judgment dated 19.12.2006, he was found guilty of offence under Sections 366 (A), 392 r/w 397 and 376 (f) of IPC, convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for 2 years for the offence under Section 366(A) of IPC; to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment 2 years for the offence under Section 392 r/w 397 of IPC and to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for 2 years for the offence under Sec.376 (f) of IPC. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution as culled out from the evidence adduced on the side of the prosecution is as follows:- PW4 Selvi. Vigneswari D/o.Kesavan, aged about 11 years, is the victim. She was studying in 7th Standard in Villivakkam Panchayat Union Middle School. P.W.1 is the sister of the father of P.W.4. P.W.1 had taken P.W.4 in adoption P.W.5 is the another brother of P.W.1. On 27.11.20005 P.W.4 who went to buy milk from a nearby shop moved to another shop as to the non-availability of milk. By that time , the accused who waylaid P.W.1 threatened her brandishing with a knife with dire consequences and compelled her to accompany with him. P.W.1 fearing to the threat, accompanied the accused and the accused took her in a bus bound to Thiruverkadu. In the mean time , as P.W.4 who went for buying milk did not return home even after 10 minutes, P.W.1 went in search of P.W.4 with the help of her brother P.W.5 and despite intensive search operation in person as well over phone, they could not trace out P.W.4. When this was the scenario here at Mugappair, the accused who kidnapped P.W.4 in a bus bound to Thiruverkadu, alighted half a way through, and took her to a place, threatened her to part with her studs. She obliged so. Then, accused toook her to another place by walk, where at about 8.00 or 8.30 p.m. he provided tiffin viz., dosa for P.W.4. Thereafter, the accused took her in a bus bound to Ambattur and alighted at Ambattur Market bus stop where, the accused bought a new dhothi for him and thereafter boarded a train along with P.W.4. After a short travel in the train, the accused got down along with P.W.4 and took her to a place where construction activities were going on. At about 9.00 or 9.30 p.m. the accused removed all her dresses, and inserted his penis into the vaginal part of P.W.4 and bite her right side chest. On the next day also, in the wee hours he misbehaved with her as he did on the previous day. Thereafter, at about 6.00 or 6.30 a.m., the accused who passed through a lane through Thirumullaivoyal Temple reached a road, where he provided tea for her. While, here at Mugappair, P.W.1 with the help of his brother, P.W.5 rushed to the police station and lodged Ex.P.1 complaint to the Inspector of Police P.W.7 who in turn registered the same in Cr.No.3603 of 2005 for the offence of girl missing, prepared printed FIR, Ex.P.7. In the mean time, the P.W.5 and another who are paternal uncles of P.W.4 found her in the company of the accused, attempted to catch the accused, but the accused managed to escape. Thereafter, the victim was taken to J.J. Nagar Police Station. 2. P.W.7 in continuation of his investigation, recorded the statement of the victim, P.W.1 and on the basis of such statement altered the case for the offence under Sections 366 (A), 392 and 376 of I.P.C. and under Section 4 (1) of the Women Harassment (Prevention) Act, prepared report, Ex.P.8. Thereafter, P.W.7 subjected the victim for medical examination as to the sexual assault https://hcservices.ecourts.gov.in/hcservices/ if any. The victim was accompanied by a women police constable to the hospital. 3. P.W.3, the Doctor attached to Kilpauk Medical College Hospital on 28.11.2005 at about 2.30 p.m. examined the victim, P.W4 accompanied by a women police constable. On questioning, P.W.4 gave rational answers. Ex.P.2 is the Birth Certificate of the victim. On examination, the Doctor, P.W.2 found that the victim had not attained puberty; even though there was no external injuries on the abdominal region, on examining the breast region, she found a linear horizontal reddish bruises 3 x 2 c.m. Over the right nipple and areola left breast right. On further examination, the Doctor found that pubic hair not developed, reddish inflammation over labia, hymen not intact, vulva and vagina appear reddish inflammed and according to the Doctor, the victim did not co-operate for the further test. She issued Ex.P.3 Accident Register to the above effect. 4. On 1.12.2005 at about 3.30 p.m. when the accused was arrested at Ambattur Estate bus stand in connection with the case registered in Cr.No. 3615 of 2005 of J.J. Nagar P.S. for the offence under Sections 332, 324, 336, 307 and 506(ii) of IPC , the accused confessed to have committed the offence before P.W.7 who recorded the voluntary confessional statement in the presence of witnesses viz., P.W.6 and another and pursuant to the admissible portion of confession of the accused Ex.P.5, the accused led P.W.7 to Annanoor Jothy Nagar where at about 5.30 p.m. P.W.7 recovered a pair of stud, M.o.1 produced by the accused from the unfinished building and also a knife, M.O.2 under the cover of mahazar, Ex.P.6. Thereafter, P.W.7 subjected the accused to judicial remand after he was produced before the Judicial Magistrate. Thereafter, the accused was also subjected to medical examination. P.W.3 , the Doctor attached to the Government General Hospital at Chennai on 5.12.2005, at the request of P.W.7 examined the accused and found the following features:- " Well developed external genitalia. No ulcers, lymphadanopathy or injuries and around genitalia. Penis not circumcised both tester present and testicles sensation present on both sides. He is able to get erection. Smegma was absent. " The Doctor opined that there is nothing to suggest that the accused is impotent. He issued Certificate , Ex.P.4 to the above effect. 5. In continuation of his investigation, P.W.7 examined the formal witnesses, obtained chemical report, Ex.P.9 and upon completion of his investigation, he laid the final report on 22.03.2006 against the accused for offences under Sections 366, 376, 392 r/w 397 of IPC and under Section 4 (1) of the Women Harassment (Prevention) Act. https://hcservices.ecourts.gov.in/hcservices/ 6. In order to substantiate the charges leveled against the accused, before the trial court, the prosecution examined 7 witnesses, adduced 9 documents and produced 2 material objects. 7. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he totally denied them as false. On behalf of the defence, no document was marked and no witness was examined. 8. The trial Court had, after a full-fledged trial, found the accused guilty of offence under Sections 366(A), 392 r/w 397 and 376 (f) of I.P.C., convicted and sentenced him to imprisonment and to pay fine as aforesaid. 9. Mr.Abdul Lathif, learned counsel appearing for the appellant/accused would submit in his argument that the trial court had come to a wrong conclusion in convicting and sentencing the appellant/accused as there was no ample evidence to prove the offence of commission of rape against the victim girl and the place of occurrence where the crime was said to have taken place as put forth by the prosecution was different from that of the place as spoken to by the victim-P.W.4 . Therefore, trial court ought to have given the benefit of doubt to the accused. However, it has come to the wrong conclusion to convict the accused in all counts. 10. The learned counsel would further submit in his argument that the trial Court did not appreciate the medical evidence that there was no presence of spermatozoa in the smear taken from the vaginal and also in the jetty worn by the victim girl, P.W.4. There is no proof for the commission of rape and therefore, the accused should have been given the benefit of doubt in that aspect also. He would further submit that the victim girl had spoken to about the incident only after being tutored by the police and the accused was not properly identified by the victim girl. Therefore, the conviction and sentence passed against the accused is not sustainable and the same may be set aside by allowing this appeal and the accused may be set at liberty. 11. In the alternative, the learned counsel for the appellant/accused in his argument would submit that the sentence passed by the trial court for the commission of rape is unsustainable, as there was no actual rape committed on the victim and even it is admitted that it was only an attempt to commit rape and therefore, leniency may be shown to the accused and lesser sentence may be ordered. 12. We have heard the arguments advanced by Mr.P.Kumaresan, Additional Public Prosecutor. He would submit that the evidence of P.W.4 had been promptly supported by the circumstantial evidence viz., recovery of a pair of stud, M.O.1 pursuant to the confessional https://hcservices.ecourts.gov.in/hcservices/ statement of the accused in the presence of P.W.6 attesting witness and the same would prove his involvement in the commission of kidnapping, robbery and also rape. He would further submit that the evidence of the victim, P.W.4 would go a long way to show that the accused had taken her from Mogappair, when she had a walk near her house to buy milk pocket in the nearby shop and he had been to Thiruverkadu and later Ambattur along with the victim and committed and she was relieved of her golden studs by the accused at the knife point and later on ravished by the accused after she was being taken to a secluded place, where the construction activities were going on. He would further submit that the solitary evidence of the victim alone would be sufficient to base conviction. He would also draw the attention of the Court on the recent pronouncement of the Apex Court which would elaborately show that the evidence of the victim is sufficient even without any corroboration of medical evidence. The learned Additional Public Prosecutor would further submit that, in this case, the evidence of the Doctor, P.W.2 who examined the victim girl, P.W.4 had categorically stated that there was 3 x 2 c.m., linear horizontal injury above the right nipple and when her private part was examined, labia was found in reddish and the other private part were seen swollen and reddish and the victim girl did not co- operate for further examination. Therefore, the learned Additional Public Prosecutor would submit in his argument that this evidence of P.W.2 would certainly corroborate the evidence of the victim, P.W.4. Therefore, the commission of rape is proved by the prosecution. He would further rely upon the recovery and submit that the recovery of a pair of stud, M.O.1 on the basis of the confession statement would also further prove the culpability of the accused in the commission of robbery. Therefore, the trial court was absolutely right in finding the accused guilty of offence under Sections 366 (A), 376 and 392 of I.P.C. and accordingly punished the accused and the same required no interference. 13. We have given our anxious consideration on the submissions made on either side. The case of the prosecution is that at about 4.30 p.m., on 27.11.2005, when P.W.1, the victim girl had gone for buying milk pocket at Mogappair, the accused with the intention to commit rape, waylaid and threatened her at knife point and took away her in a bus to some unknown place, where he had threatened her and snatched away her golden studs and thereafter took her to some other unknown place, where some construction activities were going and after removing her dresses committed rape against her. On a careful perusal of the testimony of P.W.4, we could see that the victim girl was aged about 11 years. She had spoken to the fact that the accused had taken her brandishing with a knife to some unknown place, where he had taken away her studs. Further she has stated that the accused who took her to some other secluded place, where the unfinished building situate and committed rape against her. The evidence of the victim - P.W.4 would go a long way to show that the accused had not only committed robbery from P.W.4 at knife point https://hcservices.ecourts.gov.in/hcservices/ after having kidnapped her, but also rapped when still the victim had not attained puberty. Subsequently, the victim girl was rescued from the unlawful custody of the accused, when the accused had taken her to leave her at Mogappair at the house of P.W.5, a relative of the victim. The evidence of P.W.5 would go a long way to show that on 28.11.2005, when he was searching for the girl along with his brother, at about 9.30 – 10.00 a.m. , at Ambattur bus stand they saw the accused taking the victim girl and immediately they approached towards the accused and when his brother took the child into his custody and tried to catch the accused and when he was about to hold the hands of the accused, the accused pushed them and fled away from the said place. Thereafter, they have taken the victim girl to J.J. Nagar Police Station along with P.W.1 and lodged Ex.P.1 complaint. This evidence of P.W.5 is corroborated by the evidence of P.W.4 and the identification of the accused by P.W.5 would also certainly incriminate the accused with the said crime. 14. The evidence of the Doctor, P.W.5 who examined the victim girl - P.W.4, would go to show the victim had suffered injuries on her private parts and she was not able to cooperate with the doctor to continue the medical examination further and the labia was found swollen in reddish and other private parts also were found reddish and swollen. On a careful consideration of the evidence of the Doctor we could see, that the evidence of the victim girl P.W.4 that the accused had committed rape is perfectly corroborated by the medical evidence. Apart from that, the injury as spoken to by the victim, P.W.4 on her right nipple was also corroborated by the medical evidence coupled with Ex.P.2 Accident Register. 15. Further, the evidence of the prosecution would go a long way to show that the accused was arrested on 1.12.2005 at about 3.30 p.m. by P.W.7 in connection with the other case and during interrogation by P.W.7 the accused voluntarily gave a statement confessing himself to have committed rape. P.W.7 recorded the voluntary confession of the accused in the presence of P.W.6 and another attesting witness Pursuant to the admissible portion of the confessional statement of the accused, Ex.P.5, they rushed to the place led by the accused, where he had committed rape and also identified the stud, M.O.1 which was relived of from the victim and also a knife, M.O.2 used for threatening the victim girl. P.W.7 recovered the same under the cover of the mahazar, Ex.P.6 at the instance of the accused from an unfinished building, the place where the accused had concealed those articles. The evidence of the attesting witness, P.W.6 coupled with seizure mahazar would amply prove that the accused had nexus with the other crimes made in the same course of transaction following the offence of kidnapping of the minor girl. 16. On a careful perusal of the over all evidence, we could satisfy ourselves that the prosecution had proved the guilt of https://hcservices.ecourts.gov.in/hcservices/ accused of kidnapping, robbery and rape beyond any reasonable doubt and the conviction on the appellant/accused requires no interference. 17. This court considered the alternative submission made by the learned counsel appearing for the appellant/accused to show leniency to the accused and impose lesser sentence. 18. In this context, we will have to refer to certain observations of the Supreme Court in case of rape. In Bodhisatttwa Gautam V. Subhra Chakraborty AIR 1996 SC 922, the Supreme Court has held as under: " Rape is not only a crime against the person of a woman (Victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article, 21." 19. In State of Punjab Vs. Gurmit Singh AIR 1996 SCC 1393, the Supreme Court expressing its concern as to the increase in the offence of rape held as under: "Of late, crime against women in general and rape in particular is one the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – It is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very should of the helpless female. https://hcservices.ecourts.gov.in/hcservices/ 20. Having approached the evidence of rape as above, the Apex Court has also considered as to whether leniency and sympathy could be shown to the accused of the crime of rape. In State of Rajasthan V. Om Prakash, AIR 2002 SC 2235, the Apex Court held as under:- "In the case of child rape no leniency and sympathy in favour of accused should be shown by the Court. In the instant case, the child rape incident took place 13 years back. Accused is now aged 31 years. Accused having already undergone nearly 3 years of sentence, respondent does not deserve any leniency and sympathy. It is ordered that the accused shall undergo the remaining part of sentence of 7 years RI awarded by the trial Court." 21. In Karnataka V. Krishnappa (2000) 4 SCC 75 while considering the question of reduction of sentence in a rape case (SCC p.82, para 13) held as under:- "The approach of the High Court in this case, to say the least, was most casual and inappropriate. There are no good reasons given by the High Court to reduce the sentence, let alone 'special or adequate reasons'. The High Court exhibited lack of sensitivity towards the victim of rape and the society by reducing the substantive sentence in the established facts and circumstances of the case. The courts are expected to promptly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others." 22. The Apex Court had recently in Dinesh @ Buddha Vs. State of Rajasthan (2006) 3 Supreme Court Cases 771, observed as under:- "Sexual violence apart from being dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity -it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience . A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. Her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against https://hcservices.ecourts.gov.in/hcservices/ the entire society. It destroys, as noted by this court in Bodhisattwa Gautam V. Subhra Chakraborty, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished fundamental right, namely, the right to life contained in Article 21 of the Constitution. The courts are, therefore, expected to deal with cases need to be dealt with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos." 23. In view of the fact that we found the accused guilty of an offence of rape committed on 11 years old girl child and in the light of the pronouncements of the Apex Court referred to above, in our considered opinion, the appellant/accused does not deserve any leniency or sympathy. Therefore, in our considered view, the sentences imposed by the trial Court will only meet the ends of justice and the appeal is liable to be dismissed. 24. Accordingly, the criminal appeal is dismissed confirming the conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No.III, Poonamallee, Tiruvallur District in S.C. 253 of 2006 dated 19.12.2006. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kmk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional Sessions Judge, Fast Track Court No.III, Poonamallee, 2. -do- thro' The Principal Sessions Judge, Tiruvallur 3.The Superintendent of Police, Central Prison, Puzhal, Chennai. 4.The District Collector, Thiruvallur 5.The Director General of Police, Chennai. 6.The Inspector of Police, J.J.Nagar Police Station, Chennai 7.The Public Prosecutor, High Court, Madras +1 cc To Mr.Abdul Lathif, Advocate, SR.11951 Crl. Appeal No.834 of 2007 bv [co] gkg/26.3 https://hcservices.ecourts.gov.in/hcservices/