IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.03.2011 CORAM THE HONOURABLE MRS. JUSTICE P.R.SHIVAKUMAR Crl.A.No.320 of 2009 1.Ramesh 2.Masanam ... Appellants Vs. State by The Inspector of Police, M-3, Kovilpalayam Police Station Coimbatore (Crime No.190/2005) ... Respondent * * * Prayer : Appeal filed under Section 374(2) Cr.P.C. to call for the records and set aside judgment of conviction dated 16.03.2009 made in S.C.No.98/2006 on the file of the learned Sessions Judge, Magalir Neethimandram, Coimbatore and acquit the appellants. * * * For Appellants :: Mr.P.M.Duraiswamy For Respondent :: Mr.I.Paul Nobel Devakumar Govt. Advocate (Crl.Side) J U D G M E N T The Accused Nos.1 and 2 in S.C.No.98 of 2006, which was tried and disposed of by the learned Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore, are the appellants herein. The first appellant faced the charges of committing offences punishable under Sections 450, 376 and 506(ii) IPC, whereas the second appellant faced the trial for offences punishable under Sections 450, 376 r/w. 109 IPC and Sec. 506(ii) IPC. At the conclusion of trial, the trial judge held them guilty of the offences as per the charges, convicted them and imposed the following sentences: i) ten years rigorous imprisonment and a fine of Rs.1000/-, with a default sentence of one year simple imprisonment on each one of them for the offence under Section 450 IPC; ii) rigorous imprisonment for 10 years and a fine of Rs.1000/- with a default sentence of simple imprisonment for one year for the offence under Section 376 IPC on A1; iii) rigorous imprisonment for 10 years for the offence under Section 376 IPC and Section 376 r/w.109 IPC and iv) rigorous imprisonment for 3 years without fine, on both the appellants for the offence under Section 506(ii) IPC. The order of sentence also recites that the substantive sentences of imprisonment shall run concurrently, besides the period of sentence already undergone being set off in terms of Section 428 of the Code of Criminal Procedure. 2. Challenging the conviction as well as the sentence, the appellants have come forward with the present appeal on various grounds set out in the appeal petition. 3. The prosecution theory, in brief, is as follows: i) The alleged victim, aged about 10 years at the time of occurrence, is the daughter of PW3 - Marimuthu and PW4  Nagammal. They were coolie workers residing at site No.45, Pillayar Nagar, Varuthiyangarpalayam Road, Kurumbampalayam, within the jurisdiction of M-3 - Kovilpalayam Police Station. P.W.4 was employed as a sanitary worker in the hospital and her husband P.W.3 was employed as a Watchman in the said hospital. At the time of occurrence, the victim was studying 4th Standard in the Government Middle School, Kurumbampalayam. P.W.2 - minor Ayyappan, is the younger brother of P.W.1. He was aged about 6 years at the time of alleged occurrence and was studying 1st standard in the very same school. ii) On 22.09.2005, at about 4.30p.m, P.Ws.1 and 2 came back to their house after attending classes in the school. P.W.3 and P.W.4 had gone out for doing coolie work. At that point of time, the appellants/accused entered the house and sent out P.W.2 after offering him snacks like murukku and chips. After sending out P.W.2, the second appellant Masanam hugged and kissed P.W.1. Outraged by the said act of the second appellant, P.W.1 cried and raised alarm. On hearing the same, P.W.2 came in, whereupon the second appellant caused a threat to kill them, if they ventured to raise alarm. Therefore, P.W.1 stopped crying aloud. Then the first appellant (A1) took P.W.1 to another room in the said house and asked her to remove her clothes. When she refused to do so, the first appellant threatened to kill her if she would offer resistance and asked her to lie on the cot. Out of fear, P.W.1 gave in to the pressures and the first appellant (A1) Ramesh committed rape on P.W.1 by having forcible intercourse with her, against her Will and despite her resistance. Out of the unbearable pain caused by the said act of Ramesh - the first appellant, PW1 cried aloud but she was silenced by the first appellant by causing threat to kill her. During the course of the said act, the thighs of P.W.1 got stained with a white discharge that came from the genital organ of the first appellant. PW1 felt awkward and hence washed it using water and then put on her clothes and came out of the room followed by the first appellant Ramesh. When she came out, the second appellant Masanam again hugged her and kissed her. Since the first appellant Ramesh, during the course of his act of committing rape on P.W.1, squeezed her breast, the same turned red due to contusion. P.W.1 also sustained abrasions over her right elbow and right side cheek. iii) After the said occurrence, both the appellants caused a threat to P.W.1 and P.W.2 that they would be done to death, if they ventured to reveal to their parents what happened on the said day. Because of the threat caused by the appellants, P.W.1 did not inform her parents of what happened to her on the date of occurrence. However, the said occurrence was informed by P.W.2 to his mother, namely P.W.4. When her mother warned P.W.1 and asked her to tell the truth, she revealed the truth to P.W.4. Thinking that the fact, if comes to light, would be a shame to the family, P.W.4 was making arrangements to administer a poisonous drink made by dissolving the powder made of cow dung. At that point of time, P.W.3 came there, prevented them from taking the said poison and made enquiries with P.Ws.1, 2 and 4, whereupon he was informed of the particulars of the occurrence. After coming to know the details of the occurrence, P.W.3-Marimuthu had consultation with the elders and Trade Union office bearers, namely Marudhachalam (P.W.8) and Sadhasivam. On their advice, P.W.3 - Marimuthu decided to lodge a complaint. Pursuant to such a decision, P.W.3, along with P.W.1, P.W.2 and P.W.4, went to Kovilpalayam Police Station where P.W.3 and P.W.4 jointly gave a written complaint under Ex.P1. iv) P.W.12 - Thiru.Rajagopal, the then Inspector of Police, Kovilpalayam Police Station received Ex.P1 complaint at 13.00 hrs on 27.09.2005 and registered a case against the appellants for offences punishable under Sections 376, 511, 506(ii) and 323 IPC, in Crime No.190 of 2005, for which Ex.P12  FIR was prepared in the printed format. After sending the complaint and FIR to the jurisdictional Magistrate, P.W.12 himself took up the investigation of the case, examined P.W.1, P.W.2, P.W.3, P.W.8-Marudhachalam and one Sadasivam and recorded their statements on 27.09.2005 itself. On the same day at about 14.30 hours, the second appellant (Masanam) was arrested and sent for remand. P.W.12 visited the place of occurrence at 06.30 p.m on 27.09.2005 and prepared a rough sketch under Ex.P13 and Observation Mahazar under Ex.P2 in the presence of P.W.5 Rayappan and one Chandran. v) Based on the requisition sent by the Investigating Officer to the Court, the learned Judicial Magistrate No.II, Coimbatore directed production of the victim girl P.W.1 for medical examination and accordingly, she was produced before P.W.6  Dr.Geetha, Assistant Professor of Obstetrics and Gynaecology, Coimbatore Medical College Hospital. P.W.4, who accompanied her daughter when she was produced before the Medical Officer for examination, informed the Medical Officer (PW6) that her daughter P.W.1 was sexually assaulted by two persons by names Ramesh and Masanam on 24.09.2005 at about 04.00 p.m. P.W.6 examined P.W.1 and found an abrasion over the left elbow and tenderness on the right side of chest. She also found that P.W.1 was in pre-pubertal stage; that her vagina admitted only tip of a finger and that hymen was absent. It was also found that no injuries were found on the external genitalia. After the examination made by P.W.6, the victim P.W.1 was referred to a Paediatric Surgeon for opinion. She was admitted in the hospital for treatment on 27.09.2005 and discharged on 10.11.2005. The in-patient record has been produced on the side of the prosecution as Ex.P11. P.W.6 also issued Ex.P3 - Accident Register. Exs.P4, P5, P6, P7 are the statements of P.Ws.2, 3, 4 and 8 recorded 06.10.2005 under Section 164 Cr.P.C by P.W.7, the then Judicial Magistrate as per the orders of the Chief Judicial Magistrate, Coimbatore on. Ex.P8 was also recorded under Section 164 Cr.P.C by the said Magistrate as the statement of one Sadasivam. During the course of investigation, the first appellant Ramesh was arrested on 28.09.2005. Based on a requisition of the Investigating Officer, a Medical Board was constituted by the Dean of the Coimbatore Medical College Hospital and the appellants were examined by the Board and potency test was conducted for them on 10.11.2005. On such examination they were found to be potent. During the course of investigation, the Investigating Officer obtained Ex.P10 Birth Certificate signed by P.W.10, the Corporation Sanitary Inspector and spoken to by P.W.9, the Zonal Sanitary Officer. On completion of investigation, P.W.12 submitted a final report alleging commission of offences punishable under Sections 450, 376 and 506(ii) by the first appellant herein/first accused and offences punishable under Sections 450, 376 r/w.109 and 506(ii) IPC by the second appellant herein/A2. 4. After the case was committed for trial, necessary charges were framed as indicated supra by the learned Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore. Having the charges read over and explained, the appellants/A1 and A2 denied the charges and pleaded not guilty. In order to substantiate the prosecution case, P.Ws.1 to 12 were examined and Exs.P1 to P13 were marked on the side of the prosecution. No material object was produced. 5. After recording of evidence on the side of the prosecution was over, the learned trial Judge drew the attention of the appellants herein/accused to the incriminating materials found in the evidence adduced on the side of the prosecution and questioned them regarding the same under Section 313(1)(b) Cr.P.C. Besides denying the truth in the said evidence, the appellants herein/accused 1 and 2, also reiterated their stand that they were innocent and were falsely implicated. On the side of the appellants/accused, one witness was examined as D.W.1 and no document was marked. 6. The learned trial Judge, after hearing the arguments advanced on both sides, considered the evidence and on such consideration, came to the conclusion that the offences alleged as per the charges stood proved and accordingly convicted them and sentenced them as indicated supra. Challenging the conviction as well as the sentence the present appeal has been preferred by both the appellants (Accused Nos.1 and 2) on various grounds set out in the appeal petition. 7. The point that arises for consideration in the appeal is: " Whether the prosecution has not proved the charges against the appellants/accused 1 and 2 beyond reasonable doubt, as contended by the appellants in this appeal and whether the judgment of the court below is liable to be interfered with in respect of both the conviction and sentence or in respect of the sentence alone?" 8. The submissions made by Mr.P.M.Duraisamy, learned counsel appearing for the appellants and Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.side) representing the respondent were heard. The materials available on record in the form of typed-set of papers were also perused. 9. Advancing arguments on behalf of the appellants, Mr.P.M.Duraiswamy, learned counsel for the appellants, has submitted that the judgment of the court below convicting the appellants herein for the charge-sheeted offences, is contrary to law and weight of evidence; that the learned trial judge failed to properly consider the vital contradictions found in the evidence adduced on the side of the prosecution; that the court below failed to consider the fact that while the statements of the witnesses P.Ws.2 to 4 and P.W.8 were recorded under Section 164 Cr.P.C. by a Judicial Magistrate, no such statement of P.W.1, the alleged victim girl was recorded and that the court below failed to consider the possibility of P.W.1, having been tutored. The learned counsel for the appellants has also pointed out the fact that there was a long delay of five days after the alleged occurrence in lodging the complaint and contended that no acceptable explanation for the said delay was offered by the prosecution; that the absence of proper explanation, would vitiate the prosecution, especially in the light of the admission made by P.W.1 to the effect that the union office bearers were consulted and in accordance with their advice, the complaint was prepared and lodged; that the court below failed to note that the alleged victim (P.W.1) did not need any treatment for five days from the date of alleged occurrence till the date of complaint; that the injuries found noted in the Accident Register and spoken to by P.W.6 - Medical Officer were not of serious nature requiring treatment as an in-patient, that too for 14 days; that P.W.1 had been kept in the hospital as an in-patient in collusion with the doctors and police to falsely implicate the appellants for child rape; that even the Medical Officer (P.W.6) could notice only abrasions on the left elbow and left cheek, besides a reddish contusion on the right side of the chest and that the trial court would have rendered a decision against the prosecution and acquitted the appellants, had it properly considered the above said aspects. 10. The learned counsel for the appellants has contended further that P.W.12-Investigating Officer made an admission that there was no external injury found on P.W.1 when he saw her for the first time on the date of complaint; that the court below failed to consider the probability of such simple injuries having been caused subsequent to the registration of the case and before ever P.W.1 was taken to the hospital; that even P.W.6-Medical Officer has not given a conclusive opinion as to whether P.W.1 was subjected to rape since no external injury could be found on the genitalia of P.W.1; that the court below failed to consider the absence of corroboration of P.W.1s evidence by the testimony of P.W.6-Medical Officer; that the court below failed to note even the in-built contradiction found in the evidence of the Medical Officer (P.W.6) in stating that P.W.1s vagina, at the time of her examination, admitted only the tip of the finger but, at the same time the hymen was absent; that many contradictions and imponderables showing the improbabilities of the prosecution case escaped the notice of the court below; that the court below ought to have held that the prosecution failed to prove its case beyond reasonable doubt and acquitted the appellants herein/accused and that hence this court, in exercise of its appellate power, should hold the judgment of the trial court convicting the appellants for the charge-sheeted offences to be discrepant and infirm, set aside the same and set the appellants at liberty by acquitting them of all the charge-sheeted offences. 11. Per contra, it is the contention of Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) appearing for the respondent that the court below, on proper appreciation of evidence, arrived at a correct conclusion that the charges against the appellants herein/accused stood proved; that even though there was a delay of five days in lodging the complaint, such delay was properly explained; that clear and cogent evidence of P.W.1 alone shall be enough to hold the appellants herein/accused guilty of the offences for which charges were framed against them; that though a conviction in a rape case can be made solely based on the testimony of the victim, P.W.1s evidence stands corroborated by the evidence of P.Ws.2 to 4 and the evidence of P.W.6-Medical Officer in this case; that the submissions made by the learned counsel for the appellants/accused should be rejected as based on supposed contradictions, which are minor and trivial without having the force of discrediting the prosecution theory or at least creating a reasonable doubt regarding the prosecution theory so that the accused can claim the benefit of such doubt; that the prosecution has proved its case beyond reasonable doubt and that hence the judgment of the trial court convicting the appellants herein/accused for the charge-sheeted offences, cannot be interfered with either in respect of conviction or in respect of sentence. 12. This court paid its anxious consideration to the above said submissions made on both sides. This court, in the light of the above said submissions made on either side, also considered the evidence on record, both oral and documentary and the reasoning incorporated by the court below in its judgment, which is assailed in this appeal. 13. The case of the prosecution is that on 22.09.2005, at about 4.30 p.m, both the appellants herein/accused trespassed in to the house of P.Ws.3 and 4 in order to commit rape on their minor daughter (P.W.1), who was then aged about 8 years; that the first appellant herein (A1) committed rape on P.W.1; that the second appellant herein (A2) committed abetment of the said act of the first appellant; that both of them also committed criminal intimidation by causing threat to P.Ws.1 and 2 to kill them, if they would venture to tell their parents about what happened to P.W.1 and that they had thus made themselves liable to be prosecuted and punished for the charge-sheeted offences indicated supra. 14. The alleged victim girl has deposed as P.W.1. Though her age was given as 10 years in the charge-sheet, the Investigating Officer, during investigation, has collected Ex.P10-Birth Certificate, in which her date of birth is found noted as 10.07.1997 and the registration of birth was made on 11.07.1997 itself. As there is no contra evidence, the said document shall be the conclusive proof of P.W.1s date of birth. The occurrence is said to have taken place on 22.09.2005. The complaint was lodged on 27.09.2005. On the date of alleged occurrence and even as on the date of complaint, the alleged victim (P.W.1) had completed the age of 8 years and 2 months. The alleged victim has deposed as P.W.1 regarding the occurrence in which she was allegedly raped and she along with her brother was criminally intimidated by the appellants/accused. Of course she has given a vivid description of the alleged rape committed on her by the first appellant herein/first accused. Normally in case of sexual assault, we cannot expect corroboration from other witnesses and it shall be lawful for the court to base the conviction even on the uncorroborated testimony of the victim. But, the said witness (victim) being a child aged about 8 years as on the date of alleged occurrence, her evidence has to be cross-checked with that of the Medical Officer to find out the probability or possibility of P.W.1 having been subjected to such forcible sexual assault. In this case, as pointed out supra, P.W.1 had just completed the age of 8 years and 2 months as on the date of the alleged occurrence. Therefore, she could not have been subjected to sexual intercourse prior to the date of alleged occurrence and it is also not the case of the prosecution. Under such circumstances, if at all she was subjected to a sexual intercourse on the date of occurrence as alleged by the prosecution, the symptoms of the same could have been seen by the Medical Officer when she was examined on the date of complaint itself, namely on 27.09.2005. 15. According to the prosecution case, the complaint was lodged on 27.09.2005 at about 13.00 Hours. The complaint has been marked as Ex.P1 and the First Information Report has been marked as Ex.P12. The alleged victim girl (P.W.1) is said to have been taken to the hospital at about 6.30 p.m on the date of complaint, namely 27.09.2005. The Accident Register has been marked as Ex.P3. It was said to be prepared at 6.30 p.m on 27.09.2005. It is not the evidence of P.W.6-Medical Officer, who prepared the Accident Register, nor has it been noted in Ex.P3  Accident Register, that the alleged victim, namely P.W.1 was the person who informed the Medical Officer about the occurrence. The following injuries have been noted by P.W.6, the Medical Officer:- 1) Abrasion on the left elbow with no bleeding and 2) tenderness over the right side of the chest. Apart from those two injuries, no other injury was found on P.W.1 by P.W.6 - Medical Officer. On examination of the private part of the alleged victim (P.W.1), the Medical Officer (P.W.6) has made note of the following aspects:- "The external genitalia was of a female pre-pubertal type; Vagina admitted the tip of the finger; No discharge was found and no injury was found." However the Medical Officer has noted that hymen was absent. 16. Let us forget about the observation of the Medical Officer regarding the absence of the hymen for the time being. If the said observation is omitted from the purview of consideration, all other injuries noted by the Medical Officer (P.W.6), would not be enough to show that the alleged victim (P.W.1) would have been raped. No opinion regarding the possibility of P.W.1 having been raped, has been incorporated in Ex.P3. On the other hand, without expressing any opinion, P.W.1 was referred to paediatric surgery ward for opinion regarding the injuries. It is also the evidence of P.W.6 that she, after examining P.W.1, referred her to paediatric surgery ward and thereafter P.W.1 was treated as an in-patient in the paediatric surgery ward. But, curiously no Medical Officer who treated her in the paediatric surgery ward has been examined as a witness on the side of the prosecution. The prosecution was content with examining P.W.6, who simply referred P.W.1 to the paediatric surgery ward, after recording the Accident Register, without giving any opinion regarding the injuries found on P.W.1. A consideration of the evidence of P.W.1 and Ex.P3 will show that the injuries were simple in nature for which no treatment as an in-patient would have been required. However, the alleged victim girl (P.W.1) seems to have been kept in the hospital as an in-patient for about 14 days i.e. from 27.09.2005 to 10.10.2005, the date on which she was discharged as per Ex.P11, the file relating to the treatment of P.W.1. All the clinical and laboratory tests did not prove any infection or other symptoms of the child having been subjected to forcible sexual assault. Perhaps that is the reason why the prosecution has not chosen to examine the Medical Officer who treated P.W.1 in the paediatric surgery ward. 17. P.W.6 in her evidence has also stated that the victim (P.W.1) who was admitted as an in-patient on 27.09.2005, was discharged from the hospital on 10.11.2005. The said evidence in her chief examination, which had been typed was subsequently corrected to 10.10.2005. However, in the cross examination she has admitted that in Ex.P3, the date of discharge has been noted as 10.11.2005. But she would try to say that the said date mentioned therein as date of discharge was wrong and the said date was not noted by her. It is pertinent to note that the victim (P.W.1) was not produced before learned Judicial Magistrate No.II, Coimbatore for recording her statement under Section 164 of Cr.P.C, though other witnesses, namely P.Ws.2 to 4 and P.W.8 were produced before the said Magistrate and their statements under Section 164 of Cr.P.C were recorded on 06.10.2005. The said statements have been marked as Exs.P4 to P8. In this regard, the learned counsel for the appellants has contended that only in order to avoid the statement of P.W.1 being recorded under Section 164 of Cr.P.C with a view to avoid any possible contradiction, P.W.1 had been unnecessarily kept as an in-patient in the hospital and the same was the reason why her statement was not sought to be recorded under Section 164 Cr.P.C. even after her discharge from the hospital. It has been noted in Ex.P3-Accident