IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE :01.10.2009 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal Nos.805 and 806 of 2006 Jayavelu ..Appellant in both cases Versus State rep. By Inspector of Police W.22, All Women Police Station Mylapore, Chennai. ..Respondent in both cases Criminal appeals filed against the conviction imposed on the appellant by the learned Sessions Judge (Mahalir Neethimandram), chennai, passed in S.C.Nos.221 and 222 of 2006 dated 18.08.2006. For Appellant : Mr.K.Kumar For Respondent : Mr.J.C.Durai Raj Government Advocate (Criminal side) JUDGMENT The appellant herein who is an accused in S.C.No.221 of 2006 and in S.C.No.222 of 2006 on the file of the Sessions Court, Mahalir Neethimandram, Chennai, stands convicted in S.C.No.221 of 2006 for offence under Section 376(1) and 506(2) IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.25,000/- in default to undergo two years rigorous imprisonment and he is also sentenced to undergo rigorous imprisonment for one year and out of the fine amount imposed, a sum of Rs.20,000/- is ordered to be deposited in fixed deposit as compensation for the child/Soundarya born to the Victim P.W.2; and he stands convicted in S.C.No.222 of 2006 for the offences under Section 366-A, 376(1) and 506(2) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.25,000/- in default to undergo two years rigorous imprisonment for the offence under Section 376(1) IPC and he is sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for one year and he is sentenced to undergo imprisonment for one year for the offence under Section 506(2) IPC and from the fine amount, a sum of Rs.30,000/- to be paid as compensation to the victim P.W.5 and the sentence of imprisonment in both the cases are to run concurrently https://hcservices.ecourts.gov.in/hcservices/ and also the sentence of imprisonment in S.C.No.221 of 2006 are to run concurrently with the sentence of imprisonment imposed in S.C.No.222 of 2006. Aggrieved by the said conviction and sentence, the appellant herein has preferred the two criminal appeals in C.A.Nos. 805 and 806 of 2006. 2. Though the trial Court has delivered a separate Judgments in both the cases, this Court is delivering a common Judgment, since both the cases arise out of one complaint given by P.W.1, mother of the victims/P.Ws.2 and 5. 3. P.Ws.1 to 5 in S.C.No.221 of 2006 and 222 of 2006 are one and the same. P.Ws.7 and 8 in S.C.No.221 of 2006 are P.Ws.6 and 7 in S.C.No.222 of 2006. P.W.6/Assistant Director of Forensic Science Department, Chennai, is only an additional witness in S.C.No.221 of 2006, who had conducted the DNA test and given report that the accused is the father of the child born to P.W.2. 4. The case of the prosecution in brief is as follows: P.W.1, Anjali being deserted by her husband residing with her daughters P.W.2, Uma Maheswari and P.W.5, Thenmozhi. They were residing at Jafferkhanpet, Chennai, in a house in the first floor and the accused was also residing in the down stairs of the same house. In the year 2002, P.W.1 shifted her residence from Saidapet to Mylapore and from Mylapore to Madhavaram. The accused used to visit the house of P.W.1 and also continued to visit her house even at Madhavaram. P.W.1 who was working as Nurse at Appollo Hospital, used to stay away from her home on several occasions and the accused used to visit her house and moving freely with her daughters P.Ws.2 and 5 who were only school going children. P.W.2 was studying in 7th standard and P.W.5 was studying 6th Standard. During 2004, P.W.2 attained Puberty. The accused tried to misbehave with P.W.2 when she was alone and he also assured that he is in love with her and he would marry her. The accused also had frequent intercourse with P.W.2 like a husband and wife. Subsequently when there was no menstruation, P.W.2 contacted over phone and informed the accused that she was on the family way and she was in a state of fear. The accused did not respond to the call and subsequently came and informed P.W.2, there was nothing wrong in it and even if there was conceivement that could be aborted. As P.W.2 refused, she was assaulted by the accused. As P.W.1 came to know about the absence of menstruation, she questioned P.W.2 and came to know about the affair between the accused and P.W.2. The accused also requested P.W.1 not to inform about it to anyone and he promised to marry P.W.2 after she giving birth to a child. As P.W.1 felt shame about it, she shifted her residence from Madhavaram to saidapet, S.V.Kovil Street. Both P.W.2 and P.W.5 were also transferred to Saidapet Corporation School. P.W.2 was studying in 8th standard and during the quarterly examination holidays as she got labour pain, she was taken by the https://hcservices.ecourts.gov.in/hcservices/ accused and P.W.1 and admitted in a hospital. She delivered a female child on 25.09.2005. Thereafter the accused fixed a rented house at Vanniar Street, Saidapet and took P.W.1, P.W.2 and P.W.5 and stayed along with them for about one week. As the child was not well, P.W.1 and P.W.2 took the child to the hospital and returned home. On their return, they found P.W.5 missing from the house. P.W.1 enquired all the places and found the accused also missing. According to P.W.5, while she was returning from her school at 5.00p.m., she was informed by the accused that the child has been taken to the hospital by P.Ws.1 and 2 and he asked her to accompany him. Then the accused took P.W.5 in an auto and while reaching Tambaram, P.W.5 questioned him about it, and the accused took P.W.5 in a bus to Nagapattinam and while going in the bus, he threatened that if she did not accompany him, he would kill P.W.1 and P.W.2. Both the accused and P.W.5 stayed in the house of the uncle of the accused at Nagercoil and she was raped by the accused in that house. After two days, she was again brought back to Chennai and she was handed over to P.W.1. 5. On 10.10.2005, P.W.1 went to Saidapet Police Station and gave a complaint. As no action was taken by the police, she gave complaint to the Commissioner of Police and she was advised to give complaint to the All Women Police Station, Mylapore. On 25.10.2005, she went to All Women Police Station, Mylapore and gave complaint Ex.P.1. 6. P.W.8, Investigation Officer in S.C.No.221 of 2006, who is P.W.7 in S.C.No.222 of 2006 received the complaint Ex.P.1 from P.W.1 and registered the case in Crime No.11 of 2005 for the offences under Sections 376, 417 and 506(2) IPC and prepared the First Information Report which is marked as Ex.P.11 in S.C.No.221 of 2006 and under Sections 306, 417 and 506(2) IPC which is marked as Ex.P.7 in S.C.No.222 of 2006. The Inspector of Police, All women Police Station examined P.W1, P.W.2 and P.W.5 and arrested the accused on the same day about 9.00p.m., and remanded him to custody. A requisition was given by the Investigation Officer to the XVIII Metropolitan Magistrate to conduct DNA test and on the basis of the requisition, P.W.3, Dr. Meena Umachandran in S.C.No.221 of 2006 gave requisition to examine P.W.5. On the basis of the requisition given by P.W.3, Doctor also examined P.W.5 Thenmozhi and found that the hymen was intact and there was no symptom to conclude that P.W.5 was subjected to intercourse. She also issued Ex.P.2 accident register. P.W.4, Dr.Selvakumar examined the accused and issued Ex.P.3 certificate and concluded that there was nothing to suggest that the accused was impotent. 7. P.W.6 Assistant Director of Forensic Science Department, drew blood sample from P.W.2, her child and from the accused and conducted DNA Test and concluded that the possibility for the accused being the father of the child worked out to 99.9999999%. Ex.P.8 in SC.No.221 of 2006 is the DNA Report. https://hcservices.ecourts.gov.in/hcservices/ 8. The Head Mistress of Corporation Middle School, Mettupalayam, is examined as P.W.7 in S.C.No.221 of 2006 and the School certificates are marked as Exs.P.5 and P.6 in S.C.No.222 of 2006. According to the School Certificate, the date of birth of P.W.2, Uma Maheswari is 19.07.1990 and the date of birth of P.W.5 Thenmozhi is 13.04.1993. After completing the investigation, the Investigating Officer who is examined as P.W.8 in S.C.No.221 of 2006 and P.W.7 in S.C.No.222 of 2006, laid two final reports separately on 24.01.2006 one for the offences under Sections 417, 376(1) and 507(ii) IPC and another for offences under Sections 417, 366, 376(1) and 506(ii) IPC against the accused. 9. In order to prove the case, in S.C.No.221 of 2006 the prosecution has examined P.W.1 to P.W.8 and marked Exs.P.1 to P.14 and in S.C.No.222 of 2006, examined P.Ws.1 to 7 and marked Exs.P.1 to P.10. After completion of the prosecution witnesses, the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances available against him and he denied his complicity. 10. While answering S.C.No.221 of 2006, the accused had stated that he fell in love with P.W.1 and admitted that he is the father of the child and he wanted to marry P.W.2, but only his mother did not accept. In S.C.No.22 of 2006, he stated that he did not kidnap P.W.5. 11. The Trial Court after considering the evidence convicted and sentenced the accused in both the cases as stated above. 12. Mr.K.Kumar, learned counsel appearing for the appellant/accused submitted that the age of P.W.2 was not established by the prosecution and her radiological report was suppressed by the prosecution and the school certificate is not proved conclusively and the school certificate is given by the school wherein she studied only for a few months. The learned counsel further added that at the time of giving complaint, the accused was aged only 20 years and P.W.2 also was a consenting party and even according to the prosecution, P.W.1 and the accused had lived as husband and wife and as such, the ingredients of the offence under Section 376 IPC were not made out. 13. The learned counsel for the appellant strenuously contended that the offence of rape against P.W.5 is not established by the prosecution and the medical evidence totally contradicts the version of P.W.5, who had been treated by the mother P.W.1 to depose falsely against the accused and P.W.5 during the earlier stage had refused even to go along with her mother, and therefore, as per the order of the Court, she was sent to Government home for custody. The learned counsel further added that the accused was only a family member of the house of P.Ws.1,2 and 5 and there was no objection at any point of time for taking P.W.2 and also P.W.5 and the ingredients of https://hcservices.ecourts.gov.in/hcservices/ offence under Section 366-A IPC are not made out. The learned counsel also pointed out that the first complaint said to have been given by P.W.1 to Saidapet Police has not been produced before the Court and the present complaint contained false allegation against the accused. The learned counsel also prayed for leniency of this Court with regard to the sentence of imprisonment on the accused, since the accused himself was below 21 years at the time of occurrence and the accused had not denied the paternity of the child and though the accused was prepared to marry P.W.2, there was no acceptance by P.Ws.1 and 2. 14. The learned Public Prosecutor submitted that though P.W.2 was a consenting party, as she was below 16 years, the offence of rape was made out against the accused and the age of P.Ws.2 and 5 have been proved by the prosecution by examining the Head Mistress of the School and the school records contained the age of the victims P.Ws.2 and 5 based on the transfer certificates issued by the school in which P.Ws.2 and 5 studied earlier. As there was no concoction in the school certificates, the age of the victim P.Ws.2 and 5 has been established by the prosecution. The learned Public Prosecutor further submitted that P.W.5 had specifically stated in her evidence that she was taken by the accused to Nagapattinam and for two days they stayed in the house of the uncle of the accused, wherein she was raped and though the medical evidence is not corroborating the evidence of P.W.5, the evidence of the Prosecutrix alone is sufficient to prove the case against the accused. 15. This Court considered the submissions made by both parties and also perused the records. It is an admitted fact that at the time of occurrence, both P.Ws.2 and 5 were the school students. Both of them were admitted in the Corporation School at Mettupalayam. On 06.07.2005, P.W.2 was admitted in 8th standard and P.W.5 was admitted in 7th standard, on production of transfer certificates. The date of birth mentioned in the school certificate is 18.07.1990 for P.W.2 and 13.04.1993 for P.W.5. No suspicion arises with regard to the school certificate and also the evidence of Head Mistress of Corporation School, Mettupalayam. On the date of complaint given by P.W.1, P.W.2 had completed only 15 years and 3 months and P.W.5 had completed only 12 years and 6 months. 16. As the age of P.W.2 had been established that she was below 16 years even on the date of complaint and she also delivered a child by that time and the accused also had accepted the paternity of the child, the fact of intercourse by the accused with P.W.2 is established. Even though according to the accused that he was in love with P.W.2 and P.W.2 was also a consenting party; as per Section 375 IPC, the consent of a victim under 16 years of age being immaterial and mere sexual intercourse being enough with a girl under 16 years to constitute the offence under Section 375 IPC, the accused/appellant herein had committed the offence of rape against https://hcservices.ecourts.gov.in/hcservices/ P.W.2 Uma Maheswari. His offer to marriage with P.W.2 or his acceptance of the paternity of the child or the fact that he had lived with P.W.2 as husband and wife before and after the delivery of the child and he had set up a family after the delivery of the child would not exclude him from the liability under Section 376 IPC. The Trial Court rightly acquitted him from the charge under Section 417 IPC. Of course all the above said factors, may be helpful for considering the sentence of imprisonment, adequate and special reasons to reduce the sentence of imprisonment against the accused for a term of less than seven years. As per the available evidence, it was only the accused who had taken P.W.2 to the hospital and admitted her for the delivery of the child on her getting labour pain. Even the accused was aged only 20 years at the time of occurrence. 17. As far as the evidence of P.W.5 is concerned, though she had stated that while she was staying with the accused at Nagapattinam in the house of the uncle of the accused and she was subjected to rape, the available medical evidence is totally contra to her evidence. According to the evidence of P.W.3, the hymen was intact and no damage was caused and absolutely there was no indication to show that she was subjected to sexual intercourse and it is the further evidence of P.W.3 Doctor in the cross examination that P.W.5 victim has not stated anything to the Doctor about she being subjected to sexual intercourse. Though the fact of P.W.5 being subjected to sexual intercourse by the accused remains unproved, the fact that P.W.5 had accompanied the accused to Nagapattinam and she was missing for few days from the house is established. Of course P.W.1 had not immediately preferred any complaint to the police about P.W.5 missing, since it was known to her that the accused also was missing and therefore, both the accused and P.W.5 had gone together. At that time, as the accused was living with P.W.2, P.W.1 had not chosen to give the complaint immediately. Though the delay may not affect the version of P.W.1, after the return of P.W.5, though the complaint is said to have been given to the police on 10.10.2005, the said complaint is not produced before the Court. According to P.W.1, only after the complaint being given P.W.5 was rescued, but according to P.W.2, after the return of P.W.5, the complaint was given to the Saidapet Police Station. It appears from the evidence of P.W.5, that she had not stated anything to the police against the accused. Even after the complaint being registered by the All Women Police Station, Mylapore, P.W.5 had refused to go with her mother and she was sent to Government home. It is the evidence of P.W.5 that she was threatened by the accused and compelled to say something wrong about her mother. But it is not convincing to this Court. It is the case of the defence that the conduct of P.W.1 was not good. P.W.5 also admitted in the cross examination that she said something wrong about her mother while police examined her. In the said circumstance, though the fact of P.W.5 being taken away from her mother, the fact that she was subjected to sexual intercourse by the accused is not https://hcservices.ecourts.gov.in/hcservices/ established beyond doubt. Though the evidence of Prosecution need not be corroborated by medical evidence, in the facts and circumstance of this case, P.W.5 being aged only 12 years at the time of occurrence and 14 years at the time of giving evidence, tutoring by her mother cannot be ruled out. This Court feels that it is unsafe to conclude that the accused committed the offence of rape against P.W.5. 18. The victim P.W.5 being aged only 12 years at the time of occurrence, even though she had accompanied the accused without any protest, the offence of kidnapping from the lawful guardianship is established. At the same time, kidnapping for the purpose of sexual intercourse is not established. Therefore, the offence under Section 363 IPC for kidnapping P.W.5 is made out against the accused and not under Section 366 IPC or 366-A IPC. 19. Though the Trial Court had convicted the accused in both the cases for the offence under Section 506(ii) IPC, the available materials do not convince this Court that the accused threatened either P.W.1, P.W.2 or P.W.5. Therefore, the prosecution has not made out the case against the accused in both the cases for the offence under Section 506(ii) IPC. 20. In the result, in S.C.No.221 of 2006, the conviction on the accused under Section 376 IPC is confirmed and the conviction and sentence imposed on the accused under Section 506(ii) IPC is set aside. With regard to the sentence for the offence under Section 376 IPC, for the adequate and special reasons already mentioned above, this Court feels that the sentence of imprisonment on the appellant could be reduced to four years rigorous imprisonment. The fine amount of Rs.25,000/- imposed by the Trial Court is enhanced to Rs.50,000/- and in default to pay he is to undergo two years rigorous imprisonment. The said fine amount is ordered to be given as compensation to the child born to P.W.2 and the said amount shall be deposited in fixed deposit in the name of the child Soundarya and it should be given to the child on her attaining the age of 18 years. The interest accrued once in three years may be obtained by P.W.2 which could be used for bringing up the child. 21. In S.C.No.222 of 2006, the conviction and sentence imposed on the accused for the offences under Section 366-A, 376-(1) and 506 (ii) IPC are set aside and the accused is convicted only for the offence under Sections 363 IPC and he is sentenced to undergo two years rigorous imprisonment and sentenced to pay a fine of Rs.10,000/- in default to undergo one year rigorous imprisonment. The fine amount of Rs.10,000/- collected from the accused should be paid as compensation to the victim P.W.5. 22. It appears that the accused had paid the total fine amount of Rs.60,000/- as imposed by the Trial Court in both the cases. If https://hcservices.ecourts.gov.in/hcservices/ the accused had already paid the fine amount, as per the present modification, in this Judgment, the excess fine amount of Rs.25,000/- paid in S.C.No.222 of 2006, could be adjusted towards the enhanced fine amount imposed in S.C.No.221 of 2006. The sentence of imprisonment in both cases are to run concurrently. 23. In the result, Crl.A.Nos.805 and 806 of 2006 are partly allowed. ksr Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Sessions Judge, Mahalir Neethimandram,Chennai 2. -do- Through the Principal Sessions Judge, Chennai. 3. The Superintendent, Central Prison, Vellore. 4. The Inspector, W.22, All Women Police Station, Mylapore, Chennai. 5. Inspector, W.22, All Women Police Station, Mylapore, Chennai. 6. The Director General of Police, Chennai. 7. The Public Prosecutor, High Court, Chennai. +2 cc to Mr. K. Kumar, Advocate, SR.Nos. 50583,50584. Pre-delivery Judgment in Criminal Appeal Nos.805 and 806 of 2006 RB (CO) AR/13.10.2009. https://hcservices.ecourts.gov.in/hcservices/