Crl.A.1364 of 2004 The Appellant/Accused viz., was directed to be released on bail as per the order of this court dated 8.12.2004 and made in Crl.M.P.No.11876/2004 in Crl.A.1364/2004. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.03.2011 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Criminal Appeal No.1364 of 2004 Selvakumar ... Appellant -Versus- The State, Rep. By the Inspector of Police, Erumaipatty Police Station, Namakkal District. ... Respondent Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgement of conviction and sentence dated 18.11.2004 made in S.C.No.51 of 2004 on the file of the learned Additional District and Sessions Judge, Fast Track Court , Namakkal. For Appellants : Mr.R.Karthikeyan For Respondent : Mr.R.Muniyapparaj, Government Advocate [Criminal Side] JUDGEMENT The appellant is the sole accused in S.C.No.51 of 2004 on the file of the learned Additional District and Sessions Judge , Fast Track Court, Namakkal. He stands convicted for offences under Sections 366-A and 376 (1) of IPC and sentenced to undergo R.I. for 3 years and to pay a fine of Rs.1,000/- in default to undergo R.I. for further 3 months for the offence under Section 366-A of IPC and to undergo R.I. for 7 years and to pay a fine of Rs.1,000/- in default to undergo R.I. for further 3 months for the offence under Section 376(1) of IPC by the judgement dated 18.11.2004. https://hcservices.ecourts.gov.in/hcservices/ Challenging the said conviction and sentence, the appellant is, now, before this Court with this criminal appeal. 2. The case of the prosecution in brief is as follows:- During the year 2000, P.W.2 [the victim] was less than 16 years of age. She was a resident of Bodynaickanpatty Village. During that time, she was staying with her aunt [P.W.3] at Pottireddypatty Village and was studying in a school at Pottireddypatty Village. P.W.1 is her mother. P.W.2 used to go in a bicycle to her school at Pottireddypatty village from the house of P.W.3. While she was proceeding to school, the appellant who is a resident of Erumaipatty Village used to follow her. On few occasions, he had told P.W.2 that he would marry and keep provide her good marrital life. P.W.2 declined. On 02.02.2000, she proceeded to her school in a bus and when the bus was stopped at Thirumanur Village, the appellant got her out of the bus and took her to a house. When P.W.2 resisted, the appellant threatened her of dire consequences. From there, he took her to another village known as "Vazhapadi Kurinchi" and kept her in a house, where the appellant had sexual intercourse with her against her resistance. According to P.W.2, thereafter, the appellant had sexual intercourse frequently with her. From that village, he took her to another village known as "Kallakurichi" where he kept her for two months. There also he continued to have sexual intercourse against her resistance. From there, he again took her to another village known as "Chithoore" where both of them were doing coolie work. There also they stayed together and the appellant used to have sexual intercourse with her. In the mean while, a Habeas Corpus Petition came to be filed before the High Court by P.W.1. The police searched for the girl. Finally, the victim and the appellant were found at Arakkonam Bus- stand together and they were brought before this Court. Before the Division Bench, P.W.2 told that she was willing to go with her mother and accordingly she was sent. In respect of the above occurrence, P.W.1 preferred a complaint to a Head Constable attached to Erumaipatty Village on 12.02.2000 at 10.00 a.m. under Ex.P.1. The Head Constable [not examined] registered a case in Cr.No.39 of 2000 for offence under Section 363 of IPC. He examined P.W.1, P.W.3 one Sivabakkiyam , Jayapal, and Rajendran and recorded their statements. The investigation was thereafter taken up by P.W.6. On 14.02.2000, he examined the very same witnesses. On 23.10.2000 , P.W.6 found the appellant and P.W.2 together at Arakkonam Bus-stand. He took them into custody. He altered the case into one under Sections 366-A and 376 of IPC and forwarded a report under Ex.P.8 to the Court. The appellant was thereafter forwarded for judicial remand. He also sent a request to the Doctor and forwarded the appellant for medical examination. He forwarded P.W.2 to Government Hospital for medical examination. Thereafter, he handed over the case diary to P.W.8 for further investigation. https://hcservices.ecourts.gov.in/hcservices/ 3. P.W.7 Doctor Vallinayagam examined the appellant on 27.10.2000 and issued a certificate relating to his age under Ex.P.10. According to P.W.7, the appellant was aged between 18 and 20 years at the time of occurrence. Under Ex.P.11 Certificate he has opined that the appellant was capable of performing sex with a woman. P.W.5 Doctor Uma Maheswari examined P.W.2 on the request of the police on 01.11.2000. According to her, the age of P.W.2 would have been around 15 years. She had further found that the hymen was not intact. She further found that her vaginal cavity easily allowed two fingers to enter. From this , she opined under Ex.P.5 Certificate that P.W.2 would have been subjected to frequent sexual intercourse for about 8 months. P.W.8, the investigating officer collected the medical certificates and after completing the investigation, he filed charge sheet against the appellant. 4. On considering the above materials, the trial court framed charges against the appellant for offences under Sections 366-A and 376 (1) of IPC. The appellant denied the charges. Therefore, he was put on trial. During trial, on the side of the prosecution, as many as 8 witnesses were examined, 11 documents were exhibited. No material object was marked. When the incriminating materials were put to the appellant under Section 313 of Cr.P.C. he denied the same. However, he did not examine any witness on his side nor did he produce any documentary evidence. Having considered all the above , the trial court found that the appellant is guilty under Sections 366-A and 376 (1) of IPC and convicted and sentenced him as stated earlier. Aggrieved over the same, the appellant is, now, before this court with this criminal appeal. 5. I have heard Mr.R.Karthikeyan, the learned counsel counsel for the appellant and Mr.R.Muniyapparaj, the learned Government Advocate [Criminal Side] for the State and also perused records carefully. 6. The learned counsel for the appellant would take me through the evidences of P.Ws.1 to 4 wherein P.W.1 has narrated that P.W.2 was found missing and she has also spoken to about the complaint given by her. P.W.2 has vividly narrated that she was taken by force by the appellant, kept at various places and against her will she was subjected to sexual intercourse frequently by the appellant. P.W.3 is the aunt of P.W.2 with whom she was staying and studying in a nearby school. She has also spoken to about the missing of P.W.2. P.W.4 is the husband of P.W.3. He has also spoken to about the missing of the victim girl [P.W.2]. Taking me through the evidence of these witnesses, the learned counsel would contend that it is a clear case of elopement on the part of P.W.2 along with the appellant out of love affair. Therefore, according to the learned counsel, neither an offence under Section 366-A of IPC nor an offence under Section 376 (1) of IPC could be made out. https://hcservices.ecourts.gov.in/hcservices/ 7. A close analysis of the evidence of P.W.2 would go to show that she was a consenting party for the sexual intercourse and it is too hard to believe that she was taken by force. The very fact that she was with the appellant for about 8 months and both of them were doing some coolie work at various places and they were living together would go to show that P.W.2 was a consenting party and, therefore, it cannot be said that she was taken by force. 8. The next question is as to whether the so-called consent which is inferable from the evidence of P.W.2 is consent in its stricto sensu as contemplated in Section 375 of IPC. The learned counsel for the appellant would submit that the prosecution has failed to prove the age of P.W.2. He would submit that according to P.W.5 Doctor as per the medical certificate under Ex.P.5, the age of P.W.2 at the time of occurrence was approximately 15 years. Therefore, the learned counsel would submit that the prosecution has failed to prove that P.W.2 was less than 16 years of age as on the date of occurrence and thus, the offence under Section 376 (1) of IPC would not be attracted. But, as pointed out by the learned Government Advocate [Criminal Side] even in chief examination, P.W.2 has stated that her date of birth is 07.05.1985. The said evidence of P.W.2 has not been challenged by the appellant. Almost the said evidence relating to the date of birth of P.W.2 remains to be an admitted fact. The date of occurrence is 02.02.2000. Therefore, as on the date of occurrence, P.W.2 was aged hardly 14 years and 9 months. As per Section 375 of IPC, consent given by a girl of less than 16 years is not a consent in the eye of law for the purposes of Section 376 of IPC. In the instant case, since as on 02.02.2000, P.W.2 was hardly 14 years and 9 months, the consent said to have been given by her for sexual intercourse with the appellant is not a consent in the eye of law and, therefore, offence under Section 376 of IPC is clearly made out. 9. But, the learned counsel for the appellant would submit that there is no documentary proof such as school certificate to prove the date of birth of P.W.2. For this proposition, the learned counsel would rely on a judgement of the Hon'ble Supreme Court in Alamelu v. State , (2011) 2 SCC 385. In my considered opinion, the facts in the said case are distinguishable. That was a case where the school certificate was produced in evidence and the same was very seriously challenged by the accused. In those circumstances, the Hon'ble Supreme Court had to hold that unless the person who gave the information to the school authorities to make entry regarding the date of birth, the date of birth entered in the school certificate alone cannot be said to be correct age of the victim. But, in the instant case, as I have already stated, there has been no dispute at all raised by the appellant in respect of the date of birth of P.W.2 as spoken to P.W.2. When there is no such dispute in respect of the date of birth of P.W.2 either during cross examination or elsewhere at least under Section 313 of Cr.P.C., the argument of the learned counsel that the date of birth https://hcservices.ecourts.gov.in/hcservices/ has not been proved by documentary evidence needs only to be rejected. It is needless to point out that a fact in issue or relevant fact can be proved either by means of direct eye witness account or by means of documentary evidence or by means of circumstances. In the instant case, the fact namely, the age of P.W.2 [the victim] has been proved by the prosecution by oral evidence of P.W.2. Since the same has not been disputed, it does not require any further adjudication. 10. The learned counsel for the appellant nextly contended that P.W.5 Doctor has opined that the victim girl [P.W.2] would have been aged 15 years approximately at the time of occurrence. Even on her own showing P.W.5 has stated that it is only approximate. It is too difficult for any Doctor and as a matter of fact, it is impossible to correctly assess the age of a person. It is after all always approximate. The Hon'ble Supreme Court on several occasions has held that two years margin on either side should be given to the age assessed by the Doctor based on medical opinion. In this case, if such two years margin is given to the evidence given by the Doctor, surely, it only goes to corroborate the evidence of P.W.2 who has stated that her date of birth is 07.05.1985. Thus, in my considered opinion, the prosecution has clearly established that the date of birth of P.W.2 was 07.05.1985 and as on 02.02.2000, the date of occurrence , she was hardly 14 years and 9 months. Thus, she was incapable of giving a valid consent as enshrined in Section 375 of IPC and, therefore, the argument of the learned counsel in this regard is liable to be rejected. 11. The learned counsel would further submit that the appellant and P.W.2 were living together for about 8 months and, therefore, it cannot be said that the appellant has committed the offences. This argument would have received acceptance provided P.W.2 had completed 18 years of age at the time of occurrence to come out of the clutches of Section 366-A of IPC or at least she would have completed 16 years of age to come out of the clutches of Section 376 (1) of IPC. Since P.W.2 was less than 16 years as on the date of occurrence, the contention of the learned counsel for the appellant in this regard is only to be rejected. Thus, I find that the trial court was perfectly right in convicting the appellant for offences under Sections 366-A and 376 (1) of IPC. 12. Now, coming to the quantum of sentence, the learned counsel for the appellant would submit that at the time of occurrence, the appellant was aged hardly between 18 and 20 years and he was an adolescent offender. The learned counsel would further submit that after the occurrence P.W.2 has been given in marriage to some one else and similarly, the appellant has also got married to another girl. He would further add that at this length of time, if the appellant is sentenced to imprisonment, it will materially affect the life of another woman namely, the wife of the https://hcservices.ecourts.gov.in/hcservices/ appellant. The learned counsel would also submit that the appellant is a poor man. Having regard to all the above, the learned counsel for the appellant would pray for leniency in the matter of sentence. 13. But, the learned Government Advocate [Criminal Side] would stoutly oppose the said plea. 14. In my considered opinion too, rigorous imprisonment for 7 [seven] years as imposed by the trial court cannot be sustained. Though under Section 376 of IPC a minimum sentence for a term of 10 years imprisonment has been prescribed, as per the proviso, for reasons to be recorded, lesser sentence may also be imposed. It is only by invoking the proviso clause, the trial court itself has imposed sentence of imprisonment for 7 years. In my considered opinion, having regard to the fact that the occurrence had taken place 11 years ago, during the interregnum period the victim girl has married some one else and has settled down in her life and also the fact that the appellant is also married and having regard to the fact that if at this length of time, the appellant is sentenced to 7 years of R.I. it may materially affect the marital life of his innocent wife also, as there will be no one to look after her; further, the age of the appellant at the time of occurrence was hardly between 18 and 20 years; and having regard to all these facts and circumstances, which I have already narrated, it will be in the interest of justice to reduce the substantive sentence of imprisonment for offence under Section 376 (1) of IPC to a period of 3 years of R.I. and in respect of the punishment for offence under Section 366-A of IPC, it will be reduced to rigorous imprisonment to one year of R.I. This, in my considered opinion would meet the ends of justice. 15. In the result, the criminal appeal is partly allowed in the following terms:- (i) the conviction of the appellant for offences under Sections 366-A and 376(1) of IPC is confirmed; (ii) the sentence of rigorous imprisonment for 3 years for the offence under Section 366-A of IPC imposed by the trial court is reduced to rigorous imprisonment for a period of 1 year. The fine of Rs.1,000/- and the default sentence imposed by the trial court are confirmed. (iii) For the offence under Section 376 (1) of IPC, the sentence of rigorous imprisonment for 7 years imposed by the trial court is reduced to rigorous imprisonment for a period of 3 years. The fine of Rs.1,000/- and the default sentence are confirmed. (iv) The above sentences are ordered to run concurrently. The period of detention already undergone by the appellant shall be set off. (v) In all other respects, the criminal appeal stands dismissed. (vi) The bail bond executed by the appellant and the sureties https://hcservices.ecourts.gov.in/hcservices/ shall stand discharged. (vii) The trial court shall secure the presence of the appellant and commit him to prison to undergo the remaining period of sentence. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kmk To 1.The Additional District and Sessions Judge, FTC, Namakkal. 2. Do thro the Principal Session Judge Namakkal 3. the Judicial Magistrate No.1, Namakkal 4. the Chief Judicial Magistrate, Salem 5. The Inspector of Police,Erumaipatty Police Station, Namakkal District. 6. The Superintendent Central Prison, Salem 7. the Public Prosecutor High Court, Madras 8. The Director General of Police Mylapore, Chennai-4 9. The District Collector Namakkal 1 cc to M/s. R. Karthikeyan, sr. 16817 Crl. Appeal No.1364 of 2004 VG (CO) kk 6/4 https://hcservices.ecourts.gov.in/hcservices/