IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 01.04.2008 Coram:- The Hon'ble Mr. Justice P.D.DINKARAN and The Hon'ble Mr. Justice R.REGUPATHI Criminal Appeal No.985 of 2007 Chinna Raja ... Appellant/Accused vs. The State of Tamil Nadu Rep. By Inspector of Police Tiruchengodu Rural Police Station, (Crime No.162 of 2002) ... Respondent/Complainant Appeal against the Judgement, dated 27.12.2002, passed by the Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Namakkal, in S.C. No.136 of 2002. For Appellant : Mr.N.S.Sivakumar For Respondent : Mr.N.R.Elango, Addl. Public Prosecutor. J U D G M E N T (Delivered by R.REGUPATHI, J.) The appellant, who is aged about 26, a married man and father of a child, faced a charge of having committed rape on a tender child aged about 4 year. As per the charge, on 15.02.2002 at 11 P.M., the appellant has taken away the victim girl, who was sleeping in front of the house of PW-1 on a cot, to a nearby neighbour's house and at the low-lying area there, committed rape on her causing bleeding injuries on the private part and umbilicus; thereby, committed the offence punishable under Section 376(2)(f) IPC. When initially questioned, the accused denied his involvement in the offence and thereupon, trial against him was taken up by the learned Additional District and Sessions Judge cum Chief Judicial Magistrate, Namakkal, https://hcservices.ecourts.gov.in/hcservices/ in Sessions Case No.136 of 2002. In order to substantiate its case, the prosecution examined PWs-1 to 10, marked Exs.P1 to P17 and produced MOs. 1 to 5. On conclusion of the trial, the learned trial Judge found the accused guilty as charged and sentenced him to undergo imprisonment for life. Aggrieved over such order of conviction and sentence passed by the trial court, the present Criminal Appeal has been preferred. 2. The prosecution case, in a nut-shell, as projected by its witnesses, runs thus:- PW-1 is the maternal grand father of the victim girl and PW-2 is the son of PW-1. PW-1 went to the village of his daughter and brought his grand daughter, the victim girl, to his village for the festival celebrations at the temple. On the occurrence day, ie., on 15.02.2002, by 8 P.M., PW-1 and PW-2 had gone to the temple to attend the festival celebrations while the wife and younger daughter of PW-1 were at a neighbour's residence watching television and the victim girl was sleeping on a cot in front of the residence. At 11 p.m., when PW-1 and his son returned back, they found the victim missing. After conveying the same to his wife and daughter, who were watching Television programmes at the neighbour's residence, they went in search of the victim. On hearing the noise of the victim from the direction where the residence of one Pappammal is situated, they rushed towards that side by flashing torch light and found the deceased running away from that place towards east and the victim with bleeding injuries on navel and private parts. On enquiring her as to what happened, the victim stated that the accused bit on her umbilicus and thereafter did something near the private part. The accused was apprehended by the villagers and was kept in confinement. The victim was rushed to a Homeopathy Doctor/PW6 available in the village, who, after giving first aid, advised PW-1 to take her to the Government Hospital at Trichengode. Since it was late night by then, on the next day, the victim was taken to the Government Hospital, Trichengode. PW-7 is the Medical Officer, who examined the child on 16.02.2002. It was stated to him that the child was subjected to rape at 11 p.m. on the previous day. He issued the wound certificate Ex.P5, wherein, the following injuries have been noticed:- " Injuries : (1) Bite mark 3 cm below the umbilicus (2) Contusion injury 3 x 3 cm with bite mark in both Labia Majora https://hcservices.ecourts.gov.in/hcservices/ (3) Laceration of skin posterior aspect of labia (4) Perineal laceration of size 2 cm. both sides (5) Laceration and tear of Rectal muscle of 3 cm in length. Blood clots present in the vagina." From the Hospital, PW-1 returned to the village, took the accused, went to the police Station and lodged a complaint under Ex.P1. PW-10 is the Inspector of Police, Trichengode Police Station. On receipt of the complaint given by PW-1 on 16.02.2002 at 11 A.M., he registered a case in Crime No.162 of 2002 for an offence punishable under Section 376 IPC and Ex.P16 is the printed F.I.R. The Inspector recorded the statement of the accused and pursuant thereto, MOs-2 to 4 viz., bloodstained shirt, lungi and underwear of the accused, were recovered under Ex.P4/Form-95 attested by PW-5. As there were injuries on the accused, the Inspector sent him to the Government Hospital, Trichengode, along with police memo for medical examination and treatment. Thereafter, he proceeded to the scene of occurrence, prepared rough sketch Ex.P17, observation mahazar Ex.P2 attested by PW-4, recovered bloodstained earth MO-5 and the bloodstained gown/MO1 of the victim under Ex.P3 mahazar and examined the witnesses present there. After treatment, the accused was brought to the police station, whereupon, he was sent to judicial custody. A requisition under Ex.P7 was given to the court to send the accused to the Hospital for virility test. PW-8 is the Doctor, who, after examining the accused, has issued Ex.P6 certificate to the effect that the accused was a virile person. PW-2 is the maternal uncle of the victim, who corroborated the testimony of PW-1. Though PW-3, the victim girl, who was aged about 5 at the time of trial, was examined by the court, on ascertaining her capability to give evidence, the trial court found that she was not competent to tender evidence. The Investigating Officer despatched the Material Objects to the Court for receiving report from the Analyst. PW-9, the court clerk, on receipt of the Material Objects, forwarded the same to the Forensic Lab. Exs.P11 to 15 are chemical analysis and serologist's reports. On 13.02.2002, the Investigating Officer received the virility test report. On 22.02.2002, he recorded the statement of the victim and on 26.03.2002, he recorded the statement of the Doctor who examined the victim girl. In the medical opinion, it is stated https://hcservices.ecourts.gov.in/hcservices/ that the injuries sustained by the victim are grievous in nature and such injuries could have been caused during the course of committing rape. On conclusion of the investigation, the Investigating Officer filed final report on 02.04.2002. Learned trial Judge, on conclusion of the trial, questioned the accused under Section 313 Cr.P.C. with reference to the incriminating materials adduced by the prosecution against him, for which, he denied his complicity in the commission of offence and pleaded innocence. No oral or documentary evidence has been adduced on the side of the defence. On hearing the arguments advanced by both sides and considering the materials placed, the trial court convicted and sentenced the accused as aforementioned; hence, the present Appeal. 3. Learned counsel for the petitioner submits that the age of the victim was about 4 year at the time of occurrence and that though she has been examined as PW-3 during the course of trial, she could not speak as to what had happened at the time of occurrence; therefore, actually, there is no eye-witness to the occurrence. Though the offence had taken place at 11 P.M. on 15.02.2002, the complaint was given only on the next day at 12 P.M.; thus, there is considerable delay in lodging the complaint which would adversely affect the case of the prosecution. It is the admitted case of the prosecution that on hearing the cry of PW-3, PWs-1 and 2 and others went to the scene of occurrence and found the victim with bleeding injuries. Apart from the narration of the victim girl and the alleged extra judicial confession of the accused soon after he was apprehended, there is nothing to connect the appellant with the crime. Though the Medical Officer has given a description about the injuries noticed on the private part of the victim, the opinion given by her would only show that a grievous injury has been caused and thereby, the act of rape is not substantiated in clear terms. Though it is simply stated that those injuries would have been caused only during the course of rape, such an imprecise statement cannot be taken as an acceptable opinion in the eye of law. Merely because of the reason that the accused has stated that he committed rape, he cannot be convicted for such a grave offence of this nature unless the prosecution has substantiated its case by producing sufficient and acceptable materials. According to the counsel, at any rate, since the prosecution has not established its case beyond reasonable doubts, the appellant/accused may be acquitted by granting benefit of doubt in his favour. 4. Per contra, learned Additional Public Prosecutor submits that, on the date of occurrence, at 11 p.m., at the time when the family members of the victim were not in the house, the accused, using such opportunity, took away the child to a nearby place and committed the offence. Only on hearing the noise of the victim, the prosecution https://hcservices.ecourts.gov.in/hcservices/ witnesses reached the scene of occurrence and found the victim with bleeding injuries and the accused running away from the scene place. Immediately thereafter, the accused was chased and apprehended by the villagers and at the time of preferring complaint, he was handed over to the police. The witnesses could identify the victim as well as the accused with the help of a torch light. The evidence of PWs-1 and 2 has been corroborated by PWs-4 and 5, who are independent witnesses. Since it is a remote village, the victim could not be taken immediately to the Government Hospital in the nearby town and a complaint also could not be lodged at once for want of transport facilities. Looking at the nature of injuries sustained by the victim, as spoken to by PW-7, the Medical Officer, having regard to the extra judicial confession given by the accused to the villagers as soon as he was apprehended, the case of rape as put forth by the prosecution is well substantiated. According to him, in view of the heinous offence committed and the same having been proved by the prosecution as against the accused beyond any scope for doubt, this is a fit case to confirm the order of conviction and sentence passed by the court below. 5. We have perused the materials available on record and heard the submissions advanced on either side. No doubt, the appellant has committed a heinous and grave crime on a tender girl child, who was aged about 4 year at that time. The occurrence is alleged to have taken place at 11 P.M. on the fateful day. By 8 P.M., PWs-1 and 2 left the child sleeping on a cot in front of the residence while the daughter and wife of PW-1 had gone to a nearby house for watching T.V. Programme. Finding that the victim girl was left alone and sleeping outside the residence and using such opportunity, the accused took away the child to a nearby place and committed the offence. PWs-1 and 2 narrated the occurrence in a natural manner viz., at the time when they returned back, they found the child missing and they were searching for her with the help of a torch light and after hearing the cry of the child, reached the scene of occurrence and found her with bleeding injuries. At that time, they saw the accused running away from the scene of occurrence and when the victim was questioned initially, she has stated that the accused bit at her umbilicus and had done something near the private part. Soon after the apprehension of the accused by the villagers, he had confessed the act committed by him and further stated that he was fond of girls and therefore, he carried away the child to commit such act. Thus, it is clear that the occurrence took place at about mid-night time and the witnesses were hurrying from one place to another for medical treatment of the victim and immediately after admitting the child at the Government Hospital, PW-1 returned to the village and went to the police station to lodge a complaint. Therefore, the delay occurred in lodging the complaint cannot be said https://hcservices.ecourts.gov.in/hcservices/ to be a serious lapse so as to affect the prosecution case. Insofar as the commission of the offence and causation of injuries on the victim by the accused are concerned, we again point out that such aspect has been proved not only through the evidence of PWs-1 and 2 but also through Pws-4 and 5, who are independent witnesses in the village. They have also accompanied PWs-1 and 2 in searching the child and found the victim with injuries and the accused running away from the scene of occurrence. Since it is a small hamlet, they could not get proper medical assistance, however, PW-6, a homeopathy Doctor, after giving first aid, advised the victim to be taken to the nearby Government Hospital. On examination, PW-7 noticed injury Nos.1 to 5 and subsequently has given her opinion to the effect that the injuries could have been caused in the manner as put forth by the prosecution. On a close scrutiny and marshalling of evidence, we are of the firm opinion that such injuries have been caused on the victim only by the accused and the accused alone and therefore, we could not persuade ourselves to take a different view than the one taken by the trial court as far as the conviction of the appellant is concerned. In that regard, the prosecution version is both truthful and credible. We are clearly of the view that the appellant had taken away the victim with a view to outrage her modesty and further sexually and indecently assaulted her, resulting in grievous injuries. 6. Now, the moot question which squarely falls for our consideration relates to the correct and appropriate sections of the Penal Code under which the appellant is required to be convicted with reference to the offence he had committed. The trial court convicted the appellant under Section 376 (2) (f) IPC. for 'committing rape on a woman when she is under twelve years of age'. In order to arrive at the correct conclusion, we deem it appropriate to examine the basic ingredients of Section 375 IPC punishable under Section 376 IPC to demonstrate whether the conviction of the appellant under Sections 376 (2) (f) IPC is sustainable. “ 375. Rape.— 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 https://hcservices.ecourts.gov.in/hcservices/ because she believes that he is another man to whom she is or believes herself to be lawfully 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 stupefying 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." Thus, under Section 375 IPC, six categories indicated above are the basic ingredients of the offence. In this case, the victim was about 4 years of age, therefore, her consent was irrelevant. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 IPC. What Section 375 IPC requires is medical evidence of penetration, and this may occur also in a case where the hymen remains intact. The Supreme Court has held in a number of cases that penetration is the sine qua non for an offence of rape and in order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the vagina of the victim, no matter how little. 7. Keeping such primary requirements, we have analysed the medical evidence available before us. As could be seen from Ex.P5, the wound certificate issued in respect of the victim girl, injury Nos.1 and 2 are bite marks while injury Nos.3 and 4 are laceration https://hcservices.ecourts.gov.in/hcservices/ near the private part and injury No.5 is described as follows:- " Laceration and tear of Rectal muscle of 3 cm. in length. Blood clots present in the vagina." By looking at injury No.5, we were under the impression that the accused first made an attempt at anus and then for penetration, however, on perusal of the oral evidence of the Medical Officer, as regards the said injury, it is seen that the same is described as a laceration between vagina and rectum. Further, though such description has been given in the course of chief examination, neither the prosecution nor the defence endeavoured to get clarification from the Medical Officer (a) as to whether the blood clots found near vagina was as a result of attempt to penetration and (b) the circumstances under which such grievous injury could have been sustained. The report noted in Ex.P5 is to the effect, 'did not detect semen / spermatozoa on item No.1 and 2. But the injury is grievous in nature.' While giving evidence, it is bluntly stated that injury Nos.1 to 5 could have been caused only during the course of rape. Injury Nos.1 and 2 are 'bite injuries' and admittedly, injury Nos.3 and 4 are superficial lacerations. As could be seen, injury No.5 may also be due to bite and mishandling; thus, the medical opinion that it was caused by male organ is missing. That being so, an omnibus opinion would in no way help in a case involving such a serious nature of allegation where the punishment provided is imprisonment for life and the prosecution is expected to substantiate its case beyond reasonable doubt. Simply because of the opinion given by the Medical Officer on surmises and conjectures and on imaginary basis, we cannot come to a firm conclusion that an offence of rape has been substantiated against the accused in a case where the important ingredient of the offence under Section 375 punishable under Section 376 IPC viz., penetration or an attempt therefor, is altogether missing. Further, Ex.P6, the virility certificate issued in respect of the accused is silent with regard to the injuries, if any, noticed by the Doctor on the male organ of the accused inasmuch as such aspect is of much importance in the background of the injuries on the victim noted in Ex.P5 and the opinion of the Doctor as could be seen from her evidence. If injury No.5 was caused by the male organ of the accused, certainly, the Medical Officer, who examined the accused, could have noticed contusion, laceration or at least reddish bruises on the male organ of the accused. Though sufficient evidence is https://hcservices.ecourts.gov.in/hcservices/ available in abundance for causing injuries by biting, causation of injury No.5 by male organ has not been substantiated beyond reasonable doubt. No material, oral or documentary, has been produced in that regard. 8. In such circumstances, We are of the considered view that the conviction and sentence as imposed by the trial court under Section 376(2)(f) IPC. are not sustainable. However, while accepting the opinion given in Ex.P5 that injury Nos.1 and 2 sustained by the victim are grievous in nature and such injuries were caused by biting on the private part of the victim, by invoking Section 222 of the Cr.P.C. which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it, we hold that the accused is guilty of the offence punishable under Section 326 IPC. As pointed out earlier, since causation of injuries on the private part of the victim has been substantiated, by finding that he has outraged the modesty of a female child below 12 year of age, we convict him for the offence punishable under Section 354 IPC. Accordingly, we modify the order of conviction passed by the trial court from Section 376 IPC. to Sections 326 and 354 IPC. 9. Coming to the sentence to be imposed, considering the fact that the sexual offence has been committed against a hapless child by the accused, a married man and father of a child, and noticing the manner in which the offence has been committed viz., causation of grievous injuries at private parts and inflicting bite injury at umbilicus, we impose 10 (ten) year R.I. for the offence under Section 326 IPC and 2 (two) year R.I. under Section 354 IPC. and we order the sentences to run concurrently. 10. In the result, the appeal is allowed in part. The conviction and sentence imposed by the trial court against the accused under section 376 (2) (f) IPC. are modified and instead, he is convicted under Sections 326 and 354 IPC. and sentenced to undergo R.I. for 10 years and 2 years respectively and the sentences are ordered to run concurrently. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. JI. https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Namakkal. 2.The District and sessions Judge, Namakkal District. 3.The District Collector Namakkal District. 4.Director General of Police, Chennai. 5.The Public Prosecutor High Court, Madras. 6.The Superintendent of police Central Prizon Coimbatore. 7.The Inspector of Police Tiruchengodu Rural Police Station (Crime No.162 of 2002) + 1 CC to Mr. N.S.Sivakumar Advocate SR NO.18192 Crl.Appeal No.985/2007. ASM(CO) JJM(22/04/08) https://hcservices.ecourts.gov.in/hcservices/