BAIL SLIP The Appellant 2 and 3/Accused 2 and 3 was directed to released on bail as per order of this Court dated 19.10.2004 and made in Crl.M.P.No.10418/2004 in Crl.A.No.1220/2004 of this Hon'ble Court. The Appellant 1/Accused No.1 was directed to released on bail as per order of this court dated 19.11.2004 and made in Crl.M.P.No.11050/2004 in Crl.A.No.1220/2004 of this Hon'ble Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.03.2011 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.A.No.1220 of 2004 1. Sudarmani 2. Ayyasamy 3. Chellamal .. . Appellants/Accused 1 to 3 VS Inspector of police, Senthurai Police Station, Perambalur District ... Respondent PRAYER: Appeal filed under Section 374(2) Cr.P.C against the judgment dated 11.10.2004 made in S.C.No.181 of 2002 on file of the learned Additional Sessions Judge (Fast Track Court) Ariyalur. For Appellants : Mr.P.Nethaji for Mr.N.Senthilkumar For Respondent : Mr.V.Rajagopal, Public Prosecutor J U D G M E N T The appellants are the accused in S.C.No.181 of 2002 on the file of the learned Additional Sessions Court, (Fast Track Court), Ariyalur. The first appellant has been convicted under Section 376 I.P.C and sentenced to undergo R.I for seven years and to pay a fine of Rs.5,000/- in default to undergo S.I for six months and convicted under Section 417 I.P.C to undergo R.I for one year https://hcservices.ecourts.gov.in/hcservices/ and to pay a fine of Rs.1000/- in default to undergo S.I for one month and the appellants 2 and 3 have been convicted under Section 417 I.P.C read with 109 I.P.C and sentenced to undergo R.I for one year and to pay a fine of Rs.2,000/- in default to undergo S.I for one month. Challenging the said conviction and sentence, the appellants are before this Court with this appeal. 2. The case of the prosecution in brief is as follows: i. P,.W.4 is the victim. P.W.1 is her father and P.W.5 is her mother. P.Ws 2 and 3 are her relatives. They were all residing at Keezhamaligai village, Ariyalur District. The appellants belonging to Pottaveli village. P.W.2 is the uncle of P.W.4. He hails from Pottaveli village. P.W.4 was staying at the house of P.W.2 and studying in the school at Senthurai. During the relevant time, there was no television at the house of P.W.2, whereas the accused had a television at his house. P.W.4 used to go to the house of the accused for seeing television programmes. The first accused was then working as driver in Chennai. He used to speak to P.W.4 in a friendly manner initially. Later, he expressed his love for her and to marry her. On 13.04.2001, P.W.4 was at the house of P.W.2. Her friend by name Sathyakala came to her house and took her to her house. The house of Sathyakala is in the neighbouring street. Sathyakala is a common relative of P.W.4 as well as the first accused. On reaching the house of Sathyakala, after some time, Sathyakala wanted P.W.4 to go and take rice from a room in the said house. When P.W.4 entered into the said room, the first accused was already there. The first accused told her that he would marry her. So saying he pulled her 'thavani' and then he pushed her on the floor and prevented her from crying by putting a cloth into her mouth. Then after removing her petticoat, the accused laid on her and had sexual intercourse. According to her, during the relevant time, she was aged 18 years. After the first accused completed the act of sexual intercourse, when he removed the cloth from her mouth, she raised alarm. A neighbour by name Ayyappan came on hearing the same and he witnessed. (Iyyappan was not examined during trial) The first accused threatened her of dire consequences if she disclosed the same to the others. After some time, the accused declined to marry her and therefore, with a view to commit suicide she took poison. But she was rescued. Thereafter, she informed about the happenings to P.W.1. ii. P.w.1, the father of P.W.4 would say that at the time of occurrence, P.W.4 was 19 years old. According to him, three days after 13.04.2001, his wife told him that the first accused had committed rape on P.W.4 under the promise to marry her and thereafter, P.W.4 had consumed poison. P.W.1, who was at Chennai came and enquired P.W.4 who had returned from the hospital after treatment. p.W.4 told about the happenings to him. P.W.1 informed his relatives, who in turn told to convene a Panchayat. Accordingly, a Panchayat was about to be convened. In the meanwhile, the second https://hcservices.ecourts.gov.in/hcservices/ accused, the father of the first accused absconded. Thereafter, P.W.1 proceeded to the Police Station along with P.W.4 and preferred a complaint on 15.9.01 about the incident on 13.04.2001. iii) On the said complaint of P.W.1, P.W.12 registered a case in Crime No.219 of 2001 under Sections 376 and 417 I.P.C. He forwarded the First Information Report and the complaint to the Court. Taking up the case for investigation, he examined P.Ws 1 to 5 and recorded their statements. On the same day, he prepared an observation mahazar in the presence of P.W..6 and another witness and also a rough sketch. On 15.9.2011, he arrested the first accused at 7.00 p.m at Ariyalur Bus Stand in the presence of P.W.7 and another witness. The first accused gave a voluntary confession and the same was reduced into writing. Then he sent P.W.4 as well as the accused for medical examination. iv.P.W.10, Dr.Premavathi examined P.W.4 on 18.9.2001.However, she found absence of hymen in the vaginal cavity of P.W.4. The vaginal cavity allowed one finger to enter. Since the examination was four months after the occurrence, according to her, there was no seminal stains found on P.W.4. She opined that P.W.4 would have been subjected to sexual intercourse. Ex.P.8 is the Certificate issued by her. v. P.W.11, Dr.Karthikeyan examined P.W.4 on 18.09.2001 and took X-ray to ascertain her age. According to his opinion, the age of P.W.4 would have been between 14 and 15 years as on the date of examination. Ex.P.10 is the certificate issued by him. He also examined the first accused and he opined that the first accused was capable of performing sexual intercourse with a woman. vi. Continuing the investigation, P.W.12 collected the certificate from P.W.9, the Head Master of the School where P.W.4 was studying, showing the date of birth of P.W.4 as 12.06.1986. On completing the investigation, he laid charge sheet . vii. Based on the above materials, the trial Court framed charges under Sections 417 and 376 I.P.C against the first accused and under Section 417 I.P.C read with Section 109 I.P.C against the accused 2 and 3. Since the accused denied the charges, the trial Court proceeded with the trial. viii. During the trial, on the side of the prosecution, as many as 12 witnesses were examined and 20 documents were exhibited. P.Ws 1, 3, 4, and 5 have spoken to about the information passed on by P.W.4 to them about the sexual intercourse that the first accused had with her and that of the promise made by the first accused to marry P.W.4. P.W.4 is the victim who has spoken to about the sexual intercourse committed on her by keeping her under the promise to marry and the subsequent denial of this accused to marry her. https://hcservices.ecourts.gov.in/hcservices/ ix. When the above incriminating materials were put to the accused under Section 313 Cr.P.C, they denied the same as false. However, they have filed separate written statements, wherein they have denied the entire occurrence. On the side of the defence, three witnesses were examined and five documents were exhibited. x. D.W.1, is an Assistant working at the office of the Sub Registrar, Senthurai. He has spoken to the fact that P.W.4 was born at Senthurai Primary Health Centre on 06.11.1985 and on intimation from the said hospital, her birth was registered in the Birth Register. Ex.D4 is the birth certificate issued by the said office. D.W.2 is the Village Administrative Officer of Keezhamaligai village. He has spoken to the fact that the voters list of the said village was not available. D.W.3 is the Research Assistant working in the Department of Archives, Government of Tamil Nadu, Chennai. He has produced the voters list for Keezhamaligai village for the years 1983 and 1988. They are Exs.D.6 and D.7. Ex.D1 is the certified copy of the complaint said to have been given by P.W.4 to the Hon'ble Chief Justice of this court. This complaint was dated 11.07.2001. Ex.D2 is the copy of the Attendance Register maintained in the school to show that on 17.04.2001 P.W.4 attended her classes and wrote her examinations. xi. Having regard to the above materials, the trial Court found all the accused guilty of all the charges and accordingly, sentenced them as stated supra. That is how, the appellants are before this Court with this appeal. 3. I have heard the learned counsel for the appellants and the learned Government Advocate (Crl.side) and also perused the records carefully. 4. As I have already narrated, the act committed by A.1 on P.W.4 and what transpired between them at that time were not known to anybody except P.W.4 and the first accused. It was a one to one affair between them. There is no evidence to show that the accused Nos.2 and 3 had any knowledge about the affairs between P.W.4 and the first accused. It is not in evidence that the accused Nos. 2 and 3 had given any promise to P.W.4 to marry her to the first accused. Therefore, I have no hesitation to hold that absolutely there is no evidence as against the accused Nos.2 and 3 to sustain the conviction under Section 417 read with 109 I.P.C. Therefore, they are entitled for acquittal. 5. So far as the first appellant is concerned, P.W.4 has clearly stated that on the date of occurrence, when she entered into the room in the house of her friend Sathtyakala, as narrated above, the first accused promised to marry her and when she resisted, he forcibly had sexual intercourse with her. During cross examination of P.W.4, it has been elicited that after the first act of https://hcservices.ecourts.gov.in/hcservices/ intercourse, on three other occasions, the first accused came to her house and told her that he would marry her. P.W.4 has further stated that this was known to her mother also. She would further state that with the knowledge of her mother, the accused again had sexual intercourse with her on 2 or 3 occasions at her house. From this, it is clear that the first accused had sexual intercourse with the consent of P.W.4. Now, the question is whether the said consent will be a valid consent in terms of Section 375 I.P.C. Under the said provision, if consent has been obtained from the girl, who is less than 16 years of age, it is not a valid consent, so as to enable the accused to escape from the clutches of Section 376 I.P.C. Therefore, the age of P.W.4 plays a vital role. 6. In this case, though the prosecution has not let in any cogent evidence to prove the age of P.W.4, the defence has taken the task of producing the records on their side and to prove the age. Exs.D.4 and D.5 are the relevant records relating to the age of P.W.4, as admitted by the accused. The accused have relied on the same. Ex.D.4 is the birth certificate issued by the Sub Registrar, Senthurai and Ex.D.5 is the hospital record showing the birth of P.W.4. As per the said certificate Ex.D4, the date of birth of P.W.4 is 06.11.1985. The entry in the birth Register was made based on the report sent by the hospital authorities based on Ex.D.5. Thus, Exs.D.4 andD.5 would clinchingly prove that the date of birth of P.W.4 is 06.11.1985. 7. Though P.Ws.1 and 5 have not given any oral evidence relating to the date of birth of P.W.4, as I have already stated, the defence has been fair enough to produce the Government and Hospital records to prove the date of birth of P.W.4. The school certificate has been produced under Ex.P.5 by the prosecution. According to the same, the date of birth of P.W.4 as per the school records Ex.P.5, is 12.06.1986. Neither the person who gave the information to the school has been examined nor the person who entered the date of birth of P.W.4 in the school Register, has been examined,hence as held by the Hon'ble Supreme Court repeatedly, no weightage can be given to the School Certificate. When the defence itself has relied on Exs.D.4 and D.5 which are the Government records, Ex.P.5 needs only to be rejected. Apart from that, the evidence of P.W.11, doctor has also corroborated the same. Thus, I hold that P.W.4 was, on the date of occurrence, only 15 years and five months old. Therefore, the consent said to have been given by P.W.4 is not a valid consent in terms of Section 375 I.P.C. So the act of sexual intercourse committed by the first accused with P.W.4 clearly amounts to offence punishable under Section 376 I.P.C. 8. Though it is contended by the learned counsel for the appellants that there was no occasion for the first accused to have sexual intercourse with P.W.4, the learned counsel is not able to point out any material to substantiate the said contention. As I have https://hcservices.ecourts.gov.in/hcservices/ already stated, I find no reason to doubt the evidence of the prosecutrix, namely, P.W.4. Her evidence is duly corroborated by medical evidence and other evidences on record. Therefore, I hold that the first accused is guilt of the offence punishable under Section 376 I.P.C. 9. Now coming to the offence under Section 417 I.P.C, it is in evidence that under the promise to marry, the first accused had sexual intercourse with her and later on declined to marry her. Thus, the offence under Section 417 I.P.C also has been established by the prosecution without any doubt. 10. In view of the above, I hold that the first appellant has committed the offences punishable under Sections 376 and 417 I.P.C. and the trial Court was, therefore, right in accordingly convicting him. 11. Now,coming to the quantum of punishment, the learned counsel would submit that now, P.w.4 has got married and she has settled down in her life and the first accused also has married and he has also settled down in his life. He would further point out that subsequent acts of having sexual intercourse were committed with the consent of the mother of P.W.4. Therefore, having regard to the above, the sentence may be appropriately reduced. The learned Government Advocate (Crl.side) is not in a position to dispute the above factual aspects. 12. Having regard to the age of the accused at the time of occurrence, the consent given by the mother of P.W.4 as spoken to by P.W.4, the fact that P.W.4 has settled down in her life and the accused also has settled in his life and having regard to the fact that sexual intercourse was committed only on the hope of marrying her and all other attending circumstances, I am of the view that though there is a minimum punishment of 7 years prescribed under Section 376 I.P.C., for the above reasons, as per the proviso to Section 376 I.P.C, I am inclined to reduce the sentence to a period of three years R.I and by enhancing the fine amount to Rs.50,000/- for the offence under Section 376 I.P.C in default to under go R.I for six months. The sentence imposed under Section 417 I.P.C is liable to be confirmed. 13. In the result, the appeal is partly allowed in the following terms: i. The Conviction and sentence imposed on the Accused 2 and 3 are set aside and they are acquitted; ii. The Conviction of the first appellant under Section 376 I.P.C is confirmed but the sentence is reduced to R.I for three years and the fine amount is enhanced to Rs.50,000/- in default to undergo R.I for six months; https://hcservices.ecourts.gov.in/hcservices/ iii. The Conviction and sentence imposed under Section 417 I.P.C on the first appellant is hereby confirmed; iv. After realising the said fine amount of Rs.50,000/-, the same shall be paid to P.W.4 as compensation as provided under Section 357 Cr.P.C if she is willing to receive the said sum. If she is not willing to receive the said amount, or if she fails to receive the same within six months from the date of notice from the Court, the said amount shall go to the Government Exchequer. iv. In all other respects, the appeal stands dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar pal To 1.The learned Additional Sessions Judge, Fast Track Court, Ariyalur. 2.The Judicial Magistrate, Ariyalur. 3.The Chief Judicial magistrate, Perambalur. (for information) 4.The Principal Sessions Judge, Perambalur. 5.The Inspector of Police, Senthurai Police Station, Perambalur District. 6.The Public Prosecutor, High Court, Chennai. 7.The Superintendent Central Prison, Trichy 1 cc to Mr.P.Nethaji, Advocate, Sr.No.22087 Crl.A.No.1220 of 2004 VSN {CO} TP/9.4.2011. https://hcservices.ecourts.gov.in/hcservices/