Crl.Appeal No.1345 of 2004:- The Appellant/ accused viz Rathinam @ Rajarathinam was directed to be released on bail as per the order of this court dated 20.3.2007 and made in Crl.M.P.No.20.3.2007 in Crl.Appeal No.1345/04. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14 .07.2011 CORAM THE HONOURABLE MS. JUSTICE R.MALA Criminal Appeal No.1345 of 2004 Rethinam @ Rajarethinam .. Appellant / Accused ..Vs.. State Inspector of Police, Vedaranyam Police Station, Nagapattinam District. Crime No.327 of 2002 .. Respondent / Complainant Prayer:- Criminal Appeal filed under Section 374 of Criminal Procedure Code, praying to call for the records in S.C.No.214 of 2003 from the file of the Assistant Sessions cum Chief Judicial Magistrate, Nagapattinam and to set aside the conviction and sentence imposed by the Judgment dated 09.09.2004 and acquit the appellant. For Appellant : Mr.Gandhi, Senior counsel for Mr.P.Ezhil nilavan For Respondent : Mr.C.Emalias Ms.M.F.Shabana Government Advocate (Crl. Side) For Defacto Complainant : MRs. Sudha Ramalingam https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T The Criminal Appeal has been preferred against the judgment of conviction and sentence, dated 09.09.2004, passed by the learned Assistant Sessions cum Chief Judicial Magistrate, Nagapattinam, in S.C.No.214 of 2003, whereby the accused was convicted for the offence under Sections 376 (i) and 576(ii) I.P.C. and in respect of Section 376(i) I.P.C., he was sentenced to undergo 10 years' rigourous imprisonment for each count, which was ordered to be run consecutively and to pay a fine of Rs.50,000/- for each count, in default in payment, to undergo six months' simple imprisonment. In respect of Section 506(ii) I.P.C., the accused was sentenced to undergo two years' rigourous imprisonment, which was ordered to be run concurrently and to pay a fine of Rs.10,000/-, in default in payment, to undergo three months' simple imprisonment. The total fine amount was Rs.1,10,000/-, out of which, Rs.1,00,000/- was ordered to be paid as compensation to the victim girl. 2.The case of the prosecution is as follows: (i)P.W.1-Vijila, P.W.3-Ambika, P.W.4-Gangadharan, P.W.5-Ramani and P.W.6-Kanaga were studying in Kuravapulam Seethalakshmi Middle School at the time of occurrence and the victim girl was studying in 7th Standard. The appellant/accused was working as a Teacher. On 26.12.2001, for making arrangement to conduct half-yearly examination, P.W.1/victim girl was cleaning the classroom along with other inmates (i.e.) P.W.3 to P.W.6 and others. When P.W.1/victim girl was brooming VIII B, the accused came inside and locked the door of the classroom. Then, the accused trampled her slipper and pulled her down, which resulted to fell down, at that time, the accused committed rape on her. He also made a criminal intimidation at knife point that if she intimated the matter to anybody, he would throw her into the well and he would set fire on her house, which would cause death of entire family. Thereafter, she attended examination. On 02.01.2002, at 8.30 a.m., again he committed rape on her in the same classroom. (ii)P.W.2-Tamilarasi, who is the mother of P.W.1, deposed that P.W.1 had missed her menstrual period for the past two months. When she questioned the same, P.W.1 revealed the fact that she was subjected to rape on 26.12.2001 and 02.01.2002 by the accused. Immediately, they went to the hospital on 26.03.2002, where P.W.9- Dr.Indira, treated her and accordingly, came to the conclusion that P.W.1 was pregnant. Then, at the request of P.W.2, P.W.9 was medically terminated the pregnancy of P.W.1 on 27.03.2002. Then only, they gone to Police station and gave a complaint-Ex.P1 on 16.04.2002. https://hcservices.ecourts.gov.in/hcservices/ (iii)P.W.13-Mr.Rajendran, Inspector of Police, registered a case in Crime No.327 of 2002 under Sections 376(2)(b) and 506(ii) IPC and prepared an First Information Report-Ex.P8. Then, he sent the victim girl to P.W.12-Dr.Thilagam, Government Hospital, Nagapattinam, to ascertain as to whether P.W.1 was subjected to sexual intercourse. P.W.12 examined the girl and gave an accident register Ex.P7. Then, P.W.13 went to the place of occurrence and prepared Ex.P3 Observation Mahazar and drew Ex.P9 rough sketch in the presence of the witness P.W.7-Mathizhalagan, VAO and one Nagarajan. Then, he examined the witnesses P.Ws.2 to 6 & 8 and recorded their statements. Thereafter, he also seized the dress of P.W.1 under Form-95 and sent the same to Forensic Department for examination. On 07.05.2002, he arrested the accused and recorded his confession and sent him to Judicial Custody. Thereafter, P.W.13 gave a requisition to P.W.11-Dr.Adhiyaman, to ascertain as to whether the accused is potent and the respective medical certificate was marked as Ex.P6. P.W.11 also sent the semen of the accused for chemical examination. Since P.W.1 underwent the medical termination of pregnancy, which was performed by P.W.9-Dr.Indra and obtained a certificate Ex.P4 from P.W.9, P.W.13 sent the girl to P.W.10- Dr.Elavarasan to ascertain the age of the victim girl and he gave Ex.P5 Age Certificate, stating that she is aged in between 14 to 15 years and also produced X-rays, which has been marked as M.O.1. Thereafter, P.W.13 examined the doctors and other witnesses and recorded their statements. After completing investigation, he filed a charge sheet against the accused for the offence under Sections 376 (2)(b) and 506 (ii) IPC. 3.After committing the case, the learned Assistant Sessions cum Chief Judicial Magistrate, Nagapattinam, framed necessary charges. Since the accused pleaded not guilty, the Sessions Court, after examining the witnesses P.W.1 to P.W.13, D.W.1 to D.W.3 and Exs.P1 to P9 & Exs.D1, D2 and M.O.1, convicted the accused for the offence under Sections 376(i) and 506(ii) IPC and sentenced him as stated above, against which, the present appeal has been preferred by the appellant/accused. 4.The learned counsel appearing for the appellant made his submissions on the following grounds: (i) There is a delay in preferring the complaint. (ii) There is a contradiction between the ocular and medical evidence. https://hcservices.ecourts.gov.in/hcservices/ (iii) On 26.12.2001, the main gate of the school was opened only at 9.30 a.m., so there is no possibility for the alleged occurrence at 8.30 a.m. in the classroom on working days. (iv) Even though semen of the appellant/accused has been sent for examination, no report has been received. So there is no evidence to prove that he is only responsible for the pregnancy of P.W.1-victim girl. (v) Since P.W.1's brother Ravikumar misbehaved with the wife of the accused, P.W.1's mother and brother have come out from the vengeance of the appellant/accused, foisted a false case against him. To substantiate his arguments, he relied upon the decisions of apex Court, various High Court and this Court. 5.Refuting the same, the learned Government Advocate (Crl.side) submitted that the delay in preferring the complaint has been properly explained. The Court must take judicial notice that during the time of examination, the school and classrooms are opened at earlier hours. He further submitted that there is no concrete evidence that who is having school gate key. So the place of occurrence has been clearly proved by the prosecution. The evidence of P.W.11-Dr.Adhiyaman, has clearly proved that the appellant/accused is potent and for the same, he gave Ex.P6-medical certificate of appellant. So it is immaterial as to whether the appellant is able to give birth to a child. So the offence under Section 376 I.P.C. is attempted to penetrate is not necessary. But, here, P.W.1 has conceived and the child has been aborted and that has been proved by the evidence of P.W.9-Dr.Indra. So there is no contradiction between the medical as well as ocular evidence. So the Assistant Sessions Court considered all the aspects in a proper and perspective manner and decided the matter on merits. So he prayed for dismissal of the appeal. 6.Considered the rival submissions made on both sides as well as the materials available on record. 7..Now, it is appropriate on the part of this Court to decide whether the offence has been made out under Section 376 I.P.C? The appellant/accused was working as a Teacher in Seethalakshmi Middle School, Kuravapulam, Shanmuga Kadu and P.W.1-victim girl was studying 7th standard therein. At the time of the incident, the victim girl was 14 years old. So she was minor. Hence, this Court has considered the evidence of child witness with proper care. https://hcservices.ecourts.gov.in/hcservices/ 8.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant reported in 2010-1-L.W. (crl.) 330 (Sekaran v. State by Inspector of Police, K.V.Kuppam Police Station, Vellore District), in that, it was decided that evidence of a child witness must be evaluated carefully, as the child witness may be swayed by what others tell him and is an easy prey to tutoring. So this Court ought to have devoted great care on the evidence of P.W.1 and to consider as to whether the evidence of P.W.1 is sufficient to convict the appellant for the offence under Section 376 I.P.C. and as to whether it is reliable. 9.Admittedly, the case is sexual offence in nature and there is no eye witness to be needed for commission of offence. In such circumstances, the corroboration of other witnesses may not be necessary to convict the appellant/accused for the offence under Section 376 I.P.C. It is also well settled dictum of the apex Court in this nature of offence under Section 376 I.P.C. that the prosecutrix evidence itself is sufficient to convict the accused and no corroboration is necessary. 10.At this juncture, the following decisions relied upon by both sides counsel are considered. (i) The learned Government Advocate (Crl.side) relied upon the decision of this Court reported in Crl.A.No.991 of 2006 (Rangesh v. State rep. by the Inspector of Police, Pallavaram Police Station, Chennai), in that, the apex Court Judgment in paragraphs-10 to 12 are held as follows: "10. The Hon'ble Apex Court in Sudhansu Sekhar Sahoo v. State of Orissa reported in AIR 2003 SC 2136, held that if testimony of the prosecutrix inspires the confidence in mind of the Court it can be made sole basis for convicting the accused. 11. The Hon'ble Apex Court in Bhupinder Sharma v. State of Himachal Pradesh reported in AIR 2003 SC 4684, has held as under: "To insist on corroboration except in the rarest of the rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insulted womanhood. It would be adding insult to injury......" https://hcservices.ecourts.gov.in/hcservices/ 12. In State of M.P. v. Dayal Sahu reported in 2005 CRI.L.J.4375, the Hon'ble Apex Court has held as under: "Once the statement of prosecutrix inspires confidence and accepted by the Courts as such, conviction can be passed only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Non- examination of doctor and non-production of doctor's report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence." " (ii)Further, the learned Government Advocate (Crl.side) relied upon the decision of apex Court reported in (2006) 3 SCC 771 (Dinesh alias Buddha v. State of Rajasthan), in that the apex Court judgment in AIR 1954 SC 54 was held that the accused cannot cling to a fossil formula and insist on corroborative evidence even if taken as a whole the case spoken to by the victim strikes a judicial mind as probable. Hence, as per the dictum of the apex Court that no corroboration is necessary, if a sole eye witness is sufficient to inspire confidence in the judicial mind. (iii)The learned counsel for the appellant relied upon the decision of apex Court reported in 2001 (3) Crimes 393 (SC) (Surjan and others v. State of M.P.), in that, it was held that the evidence of solitary witness should inspire confidence in the judicial mind, and be of such a nature that the Court must be able to certify that the testimony is wholly reliable. But, here, P.W.1 is aged about 14 years, who is hailing from rustic village and threatened by the accused/Teacher. Hence, she has not revealed the same to anybody. 11.Now this Court has to decide that as to whether the evidence of P.W.1 is reliable? Admittedly, P.W.1 was a student and the appellant/accused was working as a teacher. Here, the relationship of victim and accused (i.e.) student and teacher, played vital role for deciding the matter. While considering the evidence of P.W.1, even it is trustworthy, other evidence has also to be considered incidentally. Because, the learned counsel appearing for the appellant submitted that as per the prosecution case, the alleged occurrence has been taken place on 26.12.2001 and 02.01.2002. But P.W.1 gave Ex.P1 https://hcservices.ecourts.gov.in/hcservices/ complaint only on 16.04.2002. So, there was enormous delay in preferring the complaint. Furthermore, since Ravikumar, who is brother of P.W.1 and son of P.W.2, has misbehaved with the wife of the accused, a panchayat has been convened and the matter was settled. So taking vengeance against this accused, a false case has been foisted against him due to previous enmity. Furthermore, the learned counsel for the appellant stated that there was a contradiction between ocular and medical evidence. So this Court has to consider as to whether the delay has been played fatal to the case of prosecution. 12.It is pertinent to note that the alleged occurrence was alleged to be taken on 26.12.2001 and 02.01.2002. Admittedly, Ex.P1 complaint has been given on 16.04.2002, after three months from the date of alleged occurrence. The explanation offered by the prosecution is that the place, where the occurrence has taken place, at Kuravapulam is a rustic village, which was situated in Nagapattinam District. P.W.2-Tamilarasi, who is an illiterate lady hailing from the rustic village, is having two daughters and one son. Her daughter P.W.1 alone was going to school and was studying 7th standard. During the relevant period, her husband was doing cooly work at Malaysia. She along with her son and two daughters residing there. Since she is an illiterate lady, who was hailing from the rustic village, some leniency must be shown to her evidence. In her evidence, she stated that herself and her two daughters were having menstruation on the same day. The next month of alleged occurrence, her daughter P.W.1 has missed her menstruation period. On questioning the same, she has not taken care of her. Since P.W.1 has missed her menstruation after two months, P.W.2 questioned her. Then only, P.W.1 told her mother that she was raped by the appellant/accused twice (i.e.) on 26.12.2001 and 02.01.2002. Immediately, P.W.2 mother was taken her daughter P.W.1 to P.W.9-Dr.Indra on 26.03.2002, who found that the girl was pregnant. Then, at the request of P.W.2, P.W.9 medically terminated the pregnancy. P.W.9 also opined that the growth of the foetus was 12 to 14 weeks. After termination only, P.W.2 gave a complaint before the concerned police on 29.03.2002. 13.At this juncture, it is appropriate to consider the argument advanced by the learned counsel for the appellant that P.W.2 gave the first complaint before the police on 29.03.2002. But, the said complaint was dropped by police and another complaint was given on 03.04.2002 before All Women Police Station, Nagapattinam and that has also been dropped by police. Then, only the present complaint Ex.P1 was given by her on 16.04.2002 at Vedaranyam, with the help of Communist Party and the same was taken on file and the case has been registered and investigation has been done. Considering the same, the medical termination of pregnancy was conducted and the foetus https://hcservices.ecourts.gov.in/hcservices/ was discharged on 27.03.2002. P.W.1 was discharged from the hospital on 28.03.2002. On 29.03.2002, she gave the first complaint. Since there was no male help for P.W.1 and her husband was also working as Cooly at Malaysiya. She has no other support, except his son, who was also younger, even though he was completed 18 years. Since police has not taken any steps and the nature of offence is also grave in nature, (i.e.) the teacher raped the student, the matter was taken by the communist party. Then only, the case was registered and the investigation was done, according to defence. So the delay in preferring complaint has been properly explained by P.W.1 and P.W.2. 14.As per the evidence of P.W.1. when she was subjected to rape, she was threatened by the appellant/accused at knife point that if she reveals the matter to any body, she would be thrown by him into the well and he would set her house fire and kill her family members. Since she was afraid, because of her age and threat made by the teacher, she was not revealed the same even to her mother. After the matter provoked, when P.W.2 came to know her daughter has missed her menstruation period, she was taken her daughter to the hospital and thereafter, she gave complaint. In such circumstances, I am of the view that the delay has been properly explained by the prosecution. 15.Now it is appropriate to consider the decisions relied upon by both the counsel in respect of delay. (i) The learned counsel for the appellant relied upon the following decisions of apex Court reported in 1995 SCC (Cri) 826 (Jagannivasan vs. State of Kerala) in that it was held that "Prosecutrix keeping quite for six days and telling about the incident to her mother when she allegedly got pain in her private parts. Story of her getting pain in her private parts found to be unreliable in view of medical evidence. After the sexual act, the prosecutrix going to the dance performance rather than go to her parents and inform them of the crime. In the circumstances of the case, testimony of the prosecutrix not reliable." But the above citation is not applicable to the facts of the present case, because the commission of offence itself is doubtful as per the medical evidence. So story of getting pain in her private part is unreliable and hence, the above citation is not applicable. (ii) 2001 SCC (Cri) 1034 (Ronald Kiprono Ramkat v. State of Haryana), in that it was held that the explanation was not convincing the benefit of doubt to be given to the accused. While considering the case, there was an offence under Sections 376 read with 302 and 511 I.P.C. and there was a delay in registering F.I.R. https://hcservices.ecourts.gov.in/hcservices/ (iii)1998 SCC (Cri) 1460 (Kuldeep K.Mahato v. State of Bihar) in that it was held that despite sufficient opportunity, the prosecutrix neither running away nor taking the help of neighbours. He further submitted that the conduct of the party has played vital role. But the case in hand, P.W.1 was kept quiet all along and only on 16.04.2002, she gave complaint against the accused and she never intimated the same to anybody including her mother till 26.03.2002. So P.W.1 is loose character girl. Hence, appellant/accused is entitled to benefit of doubt. (iv)The learned Government Advocate (Crl.side) relied upon the decision of apex Court reported in (2006) 3 SCC 771 (Dinesh alias Buddha v. State of Rajasthan), in paragraphs-9 and 11, it was held as follows: "9. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery. 11. In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated...." Since the appellant has made a threat and criminal intimidation, the P.W.1 was put into fear by way of criminal intimidation by the teacher. So she has not revealed the matter even to her mother. P.W.2 came to know about the incident only at the time of missing menstruation period by P.W.1. Immediately, as a dutiful mother, she taken her daughter to hospital and verify the same. Then only she gone to the police station and lodged a complaint. So the explanation given by P.W.1 and P.W.2 is convincing. In such circumstances, the decisions relied upon by the learned counsel for the appellant are not applicable to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/ (v) Further, the learned counsel for the appellant relied upon the following decision of apex Court reported in 2002(3) Crimes 204 (SC) (State of Andhra Pradesh vs. Jalapatghi Subbarayudu & Others) in that it was held that an incident of rape had taken place on intervening night of 4th and 5th July, 1989 and report was lodged with police on 10th July 1989. Explanation for delay was that husband of prosecutrix was away from village. It is no doubt true that in these matters, the delay by itself cannot be fatal to the case of the prosecution, but that will depend upon other facts and circumstances of the case. Considering the decision along with the facts of the present case, the delay has been properly explained. (vi) 2003 SCC (Cri) 1484( Sudhansu Sekhar Sahoo vs. State of Orissa), in that it was held that delay in lodging FIR, on facts, also considered to be of some importance. Serious doubt about the genuineness of the prosecution case. Considering the broad probabilities of the case, held, the appellant was entitled to the benefit of doubt. Delay in lodging FIR in rape case, in view of the social conditions prevalent in India, there may be delay in giving the first information of such an offence to the police. Though the delay as such is not serious, but while considering the broad probabilities of the case, the delay in giving information to police in the instant case, considered to be of some importance. In the above case, the conduct of the parties played vital role. The victim was aged about 29 years and working as a lady supervisor in the Integrated Child Development Project. The appellant was a District Malaria Officer. During the relevant time, the victim was staying in a rental house owned by the local postmaster. On the date of occurrence, P.W.2, a female Anganwadi worker, accompanied with her female helper, came to the victim, since she was required by the District Social Welfare Officer. At about 7.00 p.m., all of them left in the jeep and when they reached the town, which was away from the residence of victim, the helper and P.W.2 alighted from the jeep and though the appellant wanted to alight, but she was prevented from doing so and the appellant got into the driver seat of the jeep and drove away the vehicle speedily. The jeep driven by the appellant along with the victim, the Malaria Inspector and the driver reached the house of the appellant at about 11.30 p.m. The house of the appellant was about 120 k.m. away from the place of residence of the victim. The conduct of the party has considered by the apex Court and not accepted the story put forth by the victim. But here, in the case on hand, the victim was a student, aged 14 years at the time of the incident. The appellant/accused is a teacher. In such circumstances, I am of the view that the above citation is not applicable to the facts of the present case. (vii)