1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13.11.2017 CORAM THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN AND THE HONOURABLE MR. JUSTICE N.SESHASAYEE CRL.A.No.226/2017 Senthil @ Arumugam .. Appellant / Sole Accused Versus State rep by The Inspector of Police All Women Police Station Bhavani, Erode District. [Crime No.11/2015] .. Respondent / Complainant Appeal filed under section 376[2] Cr.P.C., against the Judgment passed in Special SC.No.7/2016 on the file of the Court of the District and Sessions Judge, Mahila Court [Magalir FTC], at Erode dated 30.09.2016. For Appellant : Mr.Philip Ravindran Jesudoss For Respondent : Mr.R.Ravichandran, GA [Crl.Side] http://www.judis.nic.in 2 JUDGMENT [Judgment of the Court was delivered by M.SATHYANARAYANAN, J.] The appellant is the sole accused in SPL.CC. No.7/2016 on the file of the Court Mahila Fast Track Court, Erode. The appellant / accused stood charged, tried and convicted for the commission of offences under Section 366 IPC ; Section 9 of Child Marriage Prohibition Act, 2006 and Section 4 of the Protection of Children from Sexual Offences Act, 2012. [POSCO Act]. 2 The Trial Court, vide impugned Judgment dated 30.09.2016, has convicted the appellant / accused as follows : - Conviction under section Sentence Awarded 366 IPC To undergo 10 years rigorous imprisonment and to pay a fine of Rs.5000/- and in default, to undergo 2 years simple imprisonment. 4 of the POSCO Act, 2012 To undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- and in default, to undergo 3 years simple imprisonment. The Trial Court has acquitted the appellant / accused for the commission of the offence u/s.9 of the Child Marriage Prohibition Act, http://www.judis.nic.in 3 2006. The Trial Court further ordered the sentences to run concurrently and also granted set-off u/s.428 Cr.P.C. The accused / appellant challenging the legality of the conviction and sentence awarded by the trial Court vide impugned judgment, has filed this Criminal Appeal. 3 The facts leading to the filing of this appeal, necessary for the disposal of this criminal appeal, are as follows:- 3.1 The victim girl, at the time of the commission of the offence, was aged about 15 years and 2 months and therefore, this Court would indicate the victim as “Miss.H”. 3.2 P.W.1-Tmt.Parvathy, is the mother of the victim – “Miss.H”. The victim “Miss.H” was staying with her parents and a resident of Oricherry Village and she was studying 11th standard in a Government Vinobha High School at Thalavaipettai. The appellant/accused was also a resident of the very same village. According to the mother of the victim / P.W.1, the victim “H”, at about 2.15 p.m. on 11.10.2015 [Sunday] told her that she is going to her http://www.judis.nic.in 4 friend's house, viz., Kalyani, which is about half a kilometre away from her residence and she did not return back for more than 1 hour and P.W.1 made a search and she also enquired with Kalyani and however, Kalyani told P.W.1 that victim did not come to her house. On 12.10.2015, at about 2.15 p.m., her daughter, viz., the victim girl, returned with a Mangalsutra tied on her neck and when P.W.1 enquired, she told her that the appellant/accused induced her to marry him and therefore, took her from Oricherry Village Bus Stop to Bhavani and from there, they proceeded to Salem and from Salem, they went to a Perumal Temple near Law College in a share auto and on the way, on the way, the appellant/accused tied her the Mangalsutra in an Amman Temple and thereafter, on the Verandah of the said temple, he had physical relationship with her and they stayed overnight in the said place and on the next day, they proceeded from Salem to Erode and from the Bus Stand, the appellant/accused sent her to Oricherry village by boarding her in Route No.51 bus and she returned. 3.3 P.W.1 proceeded to the All Women Police Station, Bhavani, and lodged a complaint under Ex.P.1. P.W.12, who was the Special Sub Inspector of Police attached to the said Police Station, on http://www.judis.nic.in 5 receipt of the complaint under Ex.P.1 from P.W.1, has registered a case in Cr.No.11/2015 for the offence u/s.366 IPC and u/s.6 of the Protection of Children from Sexual Offences Act, 2012, at about 19.45 hours on 12.10.2015. Printed FIR is marked as Ex.P.17. P.W.12 forwarded the original complaint [Ex.P.1] and the Printed FIR [Ex.P.17] to the jurisdictional Magistrate Court. 3.4 P.W.13-Tmt.Rubi, was the Special Inspector of Police attached to the said Police Station at the relevant point of time. On receipt of the complaint under Ex.P.1 and FIR under Ex.P.17, took up the investigation and proceeded to Oricherry Bus Stop and in the presence of one Mani and Chinnasamy [P.W.4], prepared the Observation Mahazar and the Rough Sketch, which are marked as Exs.P.3 and 18 respectively. P.W.13 examined P.W.1, the victim girl “H” - P.W.2, P.W.3 and recorded their statements u/s.161[3] Cr.P.C. P.W.13, on 12.10.2015, through the Head Constable Eswari, referred the victim girl “H” to the Government Headquarters Hospital at Erode for medical examination. http://www.judis.nic.in 6 3.5 P.W.15-Dr.Kokilavani, the Assistant Surgeon attached to the Government Headquarters Hospital, at Erode, had examined the victim girl / P.W.2 and noted the following features:- “O/E Patient conscious, oriented, PR-80/min. CVS-SIS2 present, RS-NVBS present. P/A-Soft, No external injuries over the body. Axillary hair, Breast development and pubic hair development normal for that age. L/E. External genitalia-Abrasion of 1/5x0.5cm present in the middle part of groove between labia majora and minora. Right side hymen ruptured. Vaginal introitus easily admits 1 finger. Vaginal smear and pubic hair taken and handed over to WGRI PC 475. Attained monarche at 14 years, irregular cycle once in 30-40 days. LMP-12.09.2015. Advice-UPT. USG abdomen and Pelvis.” The Preliminary opinion is marked as Ex.P.24 and P.W.15 gave the final opinion under Ex.P.25, wherein she has opined that “as per the final history, clinical examination and Laboratory Report, I am of the final opinion that Miss.H 16 yrs/F, D/o.Kathirvel have positive evidence for sexual intercourse prior to my examination.” http://www.judis.nic.in 7 3.6 P.W.13, the Investigating Officer continued to make search to nab the appellant/accused and on 13.10.2015, at about 09.30 a.m., made the arrest of the appellant/accused near the bus stop in front of the Government Hospital, Bhavani. The appellant/accused in the presence of P.W.5 and one Ramasamy, voluntarily came forward to give a confession statement and it was recorded and his signature was also obtained. The appellant/accused, through the Male Constables Senthilkumar and Sebastian, was referred for medical examination through a Memo to the Government Hospital, Erode. 3.7 P.W.8-Dr.Saravanakumar, was the Assistant Surgeon attached to the Government Headquarters Hospital, Erode, at the relevant point of time and he had examined the appellant/accused at about 2.40 p.m. on 13.10.2015 and noted the following features in the Accident Register, marked as Ex.P.9:- “NATURE OF INJURY AND TREATMENT: [STATE SIMPLE, GRIEVOUS OR OPINION RESERVED]:- 1/vjphp Mz:ik jd:ik cilatuh> Mz: Fwp kw;Wk; tpijg;igapy; tpijf;bfhl;ilfs; tsh;e;j MQqf;Fwpa mstpy; cs;sd/ Mz;ik jd;ik ,y;yhjth; vd;W Tw ,ayhJ/ http://www.judis.nic.in 8 2/clYwt[ bfhs;s vjphp jFjpahdtuh> clYwt[ bfhs;s jFjpapy;yhjth; vd;W Tw ,ayhJ/ 3/vjphpapd; Mz; cWg;gpy; fha';fs; VnjDk; cs;sjh> Mz;Fwp njhypd; Edpg; gFjpapy; rw;W fpHpe;j fhak; cs;sJ/ fhak; rpte;J Mwhj epiyapy; cs;sJ. 4/vjphp rkPgkhf clYwt[ bfhz;ljw;fhd jla';fs; VnjDk; cs;sjh> Mz;Fwp njhypd; Edpg; gFjpapy; rw;W fpHpe;j fhak; cs;sJ/ fhak; rpte;J Mwhj epiyapy; cs;sJ. 5.vjphpf;F 1/ Seminal fluid 2/gpwg;g[Wg;gpd; Ko nrfuk; bra;at[k; tpe;J kw;Wk; gpwg;g[Wg;gpd; Ko nrfuk; bra;ag;gl;Ls;sJ.” He gave the final opinion that “it cannot be said that the appellant/accused is not fit for intercourse “ and it was marked as Ex.P.10. 3.8 P.W.13 proceeded to the scene of crime / occurrence and on the Verandah of the Amman Temple, at 15.00 hours on 13.10.2015, in the presence of P.W.6 and another, prepared the Observation Mahazar and the Rough Sketch [Exs.P4 and 19] respectively. Thereafter, P.W.12 altered the sections to one of Section 366 IPC ; section 6 of the Protection of Children from Sexual Offences http://www.judis.nic.in 9 Act, 2012 and section 9 of the Child Marriage Prohibition Act, 2006 and the Alteration Report is marked as Ex.P.20 and forwarded the same to the jurisdictional Court. 3.9 P.W.13 on 14.10.2015, made a requisition to the Chief Judicial Magistrate, Erode, to record the statement of the victim girl “H” u/s.164 Cr.P.C., and it was marked as Ex.P.21. P.W.13, once again examined the victim girl / prosecutrix on 15.10.2015 and recorded her further statement and on 26.10.2015, sent the material objects pertain to the victim girl for biological examination and made a requisition under Ex.P.22. P.W.13, on 20.10.2015, had examined P.W.12 and other police officials and recorded their statements and also examined P.W.10-Dr.Priya, P.W.15-Dr.Kokilavani, P.W.8- Dr.Saravanakumar and P.W.9-Dr.Sivakumar and recorded their statements u/s.161[3] Cr.P.C. On 27.11.2015, P.W.13 examined Mr.Venkateshwaran, Scientific Officer attached to the Forensic Lab, Coimbatore. On 11.12.2015, P.W.13 went to the School in which the victim girl studied and made a requisition to the Headmaster to get her the Transfer Certificate and other particulars and also recorded his statement. On the next day, i.e., on 12.12.2015, a request to obtain http://www.judis.nic.in 10 the Birth Certificate of the victim girl from the Commissioner of Erode Municipality and also recorded his statement. On 19.12.2015, P.W.13 examined the junior Scientific Officer of Forensic Lab, Chennai and recorded his statement and on that basis, got the final opinion from P.W.8 with regard to the appellant/accused and on receipt of the final opinion from the Forensic Lab at Chennai, he got the final opinion from P.W.15. 3.10 P.W. 13, after completion of the investigation, has filed the charge sheet / final report before the Mahila Fast Track Court, Erode, who took it on file in Spl.CC No.7/2016 and issued summons to the accused and on his appearance, had framed charges u/s.366 IPC u/s.9 of the Child Marriage Prohibition Act, 2006 and u/s.6 of the Protection of Children from Sexual Offences Act, 2012 and questioned the appellant/accused and he pleaded not guilty of the charges levelled against him. 3.11 The prosecution, in order to sustain their case, examined P.Ws.1 to 15 and marked Exs.P.1 to 24 as well as M.O.1 series [X-Rays]. http://www.judis.nic.in 11 3.12 The appellant/accused was questioned under section 313[1][b] Cr.P.C., with regard to the incriminating circumstances made out against him in the evidences rendered by the prosecution and he denied it as false. The appellant/accused did not file any documents nor let in any oral evidence. 3.13 The Trial Court, on consideration and appreciation of the oral and documentary evidences and other materials, has convicted and sentenced the appellant/accused as stated above and hence, this appeal. 4 Mr.Philip Ravindran Jesudoss, learned counsel for the appellant/accused had made the following submissions:- [a] The testimonies of P.W.1 – mother of the victim girl as well as the victim girl, who was examined as P.W.2 would clearly disclose that the victim girl / P.W.2, voluntarily accompanied the appellant/accused and without any coercion or compulsion, she married the appellant/accused and http://www.judis.nic.in 12 accepting the Mangalsutra tied by the appellant/accused was also a voluntary one and so also the act of physical relationship subsequent to the said act. [b] It is also the admission on the part of P.Ws.1 and 2 that after the said acts, it was only the appellant/accused who made P.W.2 to board the bus to reach her native place and therefore, there was no mens rea on the part of the appellant/accused to commit any offence. [c] The medical report of the victim girl / P.W.2 as well as the final opinion given by P.W.15-Dr.Kokilavani, under Ex.P.25 would disclose that the act of physical relationship was a voluntary one and therefore, the ingredients of the offences have not at all been made out. [d] The testimony of P.W.7 coupled http://www.judis.nic.in 13 with Ex.P.7 would also sustain the defence of the appellant/accused that there was no evidence of forceful physical relationship and would contend that in any event, the Trial Court ought to have granted benefit of doubt and acquitted the appellant/accused. 5 Alternately, it is pleaded by the appellant/accused that in the light of the voluntary nature of the acts done by the appellant/accused as well as the victim girl, the sentence of imprisonment of life awarded to the appellant/accused may be modified and prays for appropriate orders. 6 Per contra, Mr.R.Ravichandran, learned Government Advocate [Crl.Side] would vehemently contend that admittedly, the appellant/accused was aged about 26 years at the time of the commission of the offence and he was also a married person and he knows pretty well the consequences of his grave act and enticing a minor girl aged about 15 years and odd with a false promise to marry, had a forceful physical relationship with her and as such, the http://www.judis.nic.in 14 ingredients of the offences for which he had been charged, was proved beyond any reasonable doubt by the prosecution. It is the further submission of the learned Government Advocate [Crl.Side], by drawing the attention of this Court to section 4 of POSCO Act, 2012 as well as to section 30 of the said Act, that there is a presumption drawn against the culpable mental state of mind on the part of the appellant/accused and the appellant has failed to discharge the said burden cast upon him u/s.30 of the POSCO Act. It is also contended by the learned Government Advocate that it is enough to convict the appellant/accused with the testimony of the victim for the offence under POSCO Act, and the said testimony had inspired the confidence and the Trial Court has taken note of the same and on a thorough consideration of the oral and documentary evidences, had rightly reached to convict the appellant/accused for the commission of the offences u/s.366 IPC and u/s.4 of the POSCO Act and imposed the maximum sentence of imprisonment for life and submitted that in the light of the facts and circumstances and this Court, in exercise of its Appellate jurisdiction, may not interfere with the same. 6.1 The learned Government Advocate [Crl.Side], in http://www.judis.nic.in 15 support of his contentions, has placed reliance upon the decisions reported in 2015 [7] SCC 359 [Satish Kumar Jayanti Lal Dabgar V. State of Gujarat] and 2017 [2] SCC 51 [State of Himachal Pradesh V. Sanjay Kumar @ Sunny]. 7 This Court paid its anxious consideration to the rival submissions made and also perused the oral and documentary evidences and other materials placed on record as well as the original records and the impugned Judgment. 8 The following questions arise for consideration:- [a] Whether the prosecution is able to prove the ingredients of the offences for which the appellant/accused has been charged? [b] Whether the judgment of the Trial Court in convicting and sentencing the appellant/accused for the commission of the offences u/s.366 IPC and 4 of the Protection of Children from Sexual Offences Act, 2012, is sustainable? http://www.judis.nic.in 16 Question NO.1:- 9 P.W.1 is the mother of the victim girl / P.W.2 and her examination in chief is in consonance with her complaint under Ex.P.1. P.W.1, in her cross-examination, would depose that she knew the accused for about six months and prior to the occurrence, she do not know him and only when her daughter – P.W.2 / victim girl “H” told about the occurrence, she knew the appellant/accused. P.W.1 would further depose that the appellant has already got married and residing along with his wife. P.W.1 would also depose that her daughter/victim girl had told her that she is going to her friend's house and sometime thereafter, she did not return and a search was made and till her return on the next day, they did not lodge the complaint and on 12.10.2015, P.W.1 had lodged the complaint and it was written by the former President of Oricherry village, viz., Mr.Thangamani, who has also accompanied her at the time of lodging the complaint and in the Police Station, they handed over the Mangalsutra and bkl;o [toe ring] and an acknowledgment was also obtained. P.W.1 has denied the suggestion that only with the consent of her husband, she had agreed with her http://www.judis.nic.in 17 daughter's marriage with the appellant/accused and on account of the difference of opinion with her husband, she has lodged the complaint against the appellant/accused. 10 P.W.2 is the victim girl “H” and the Trial Court, after ascertaining the mental capability of P.W.2 to give evidence, has recorded her statement by putting questions in the light of the Judgment of All the prosecution witnesses were examined as per the dictum laid down by this Court reported in 2015 [1] L.W. [Crl] 55 [S.Yuvaraj Vs. State of Tamil Nadu]. P.W.2 in her chief examination would depose that she was staying with her parents and on 11.10.20135 at about 1.30 p.m. [Sunday] after visiting her aunt's house, she was coming back to her house and in Oricherry Bus stop, the appellant was standing in front of the house of one Ishwarya and he told her that he wants to talk to her ; but she did not stop and immediately, the appellant/accused told her that he will commit suicide and thereafter, asked to her come with him to marry him. Then, P.W.2 told him that she does not want to leave her parents and once again, the appellant told her that he will commit suicide and she was perplexed and thereafter, the appellant/accused took her to Bhavani in http://www.judis.nic.in 18 a bus and from there, he took her to Salem in bus and from there, he took a share auto and alighted near the Law College and took her through Yercaud road and it was about 7.30 p.m. or 8.00 p.m. P.W.2 would further depose that the appellant took her to the Perumal Temple and on the way, he took her to Amman Temple and in that place, he removed the black thread from his hand and tied on her neck and thereafter, on the Verandah of the temple, had physical relationship and after staying back overnight, when they came down on the next day at 6.00 a.m. on 12.10.2015, a lady questioned them as to from where they are coming and also asked about the whereabouts of the appellant told her that he married the victim girl / P.W.2 and thereafter, she provided them food and on the way to the Bus stop, the appellant purchased the toe ring as well as the Mangalsutra and while proceeding from Salem to Erode, in the bus, he tied the Mangalsutra and after alighting at Erode, the appellant/accused boarded her in Route NO.51 to Oricherry village. The statement recorded from P.W.2 u/s.164 Cr.P.C. is marked as Ex.P.2. 11 A perusal of the cross-examination of P.W.2 / victim girl “H” would reveal that she went voluntarily with the http://www.judis.nic.in 19 appellant/accused and insofar as the physical relationship is concerned, she would depose that she resisted and when a specific question was put to her as to whether she made any attempt to escape and whether she asked for any help of somebody, she answered that it cannot be done. A specific question was also put to her as to whether she made any attempt to run away after the act of physical relationship, she answered that she made an attempt ; but the appellant/accused did not permit her to go. P.W.2 would further depose that on the next day at 6.00 a.m., both of them were coming down, she had never made any attempt to inform anybody as to the forceful physical relationship on the part of the appellant/accused with her, till she boarded the bus at Salem and insofar as tying of Mangalsutra in the bus is concerned, she stated that none of the passengers had seen it. The said witness would further depose that she boarded the bus from Erode to Oricherry in Route No.51 and though she knew the Conductor of the bus, she did not disclose the said fact. Thus, a careful analysis of the testimony of P.W.2 would clearly would reveal that she went with the appellant/accused voluntarily. 12 The appellant/accused, after arrest, was subjected to http://www.judis.nic.in 20 medical examination and P.W.8-the doctor who examined him, has recorded in the Accident Register – Ex.P.9 that it cannot be said that he is incapable of having sexual intercourse and he has also sustained injury on his private part and it is yet to be healed. But, he did not notice the presence of any foreign hair/pubic hair. Likewise, the victim girl / P.W.2 was also subjected to the Radiological Assessment and as per the report of the Radiologist under Ex.P.11, it was observed that “the bone age of the above mentioned person [victim girl] is likely to be aged about 15 years and below 17 years based on the findings observed in the bones were radiographed.” The victim girl was also referred to the Gynecologist for further evaluation and she was examined by P.W.15-Dr.Kokilavani and she, after recording that the right side hymen ruptured ; vaginal introitus easily admits 1 finger under Ex.P.24, has given her final opinion under Ex.P.25, wherein she has observed that “the victim girl has positive evidence for sexual intercourse prior to examination.” 13 In the decision reported in 2015 [7] SCC 359 [Satish Kumar Jayanti Lal Dabgar V. State of Gujarat], the scope of sections 375 and 376 IPC came up for consideration and the said http://www.judis.nic.in 21 case pertains to rape of a minor below 16 years. The Hon'ble Apex Court in paragraphs No.14 to 18, has observed as follows:- 14 First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows: "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:- 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." 15 The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance. http://www.judis.nic.in 22 16 Once we put the things in right perspective in the manner stated above, we have to treat it a case where the appellant has committed rape of a minor girl which is regarded as heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act. 17 The purpose and justification behind sentencing is not only retribution, incapacitation,