The direct and indirect impact of the crime on rape victims’ body and mind cannot be ruled out – Madras High Court

Crl.R.C.No.7014IN THE HIGH COURT OF JUDICATURE AT MADRASOrder Reserved on : 14.12.2021Order Pronounced on : 23.12.2021CORAM : THE HON BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYCrl.R.C.No.7014Gopi @ Saravanan .. PetitionerVersus1.State rep. by The Inspector of Police Kalasapakkam Police Station Tiruvannamalai District. 2.Prabha .. Respondents(R2 suo motu impleaded as per the order in Crl.R.C.No.7014 dated 24.11.2021)Prayer : Criminal Revision Case is filed under Section 397 r w 401 of Cr.P.C. to set aside the judgment in C.A.No.605 dated 03.02.2014 on the file of the learned Sessions Judge Tiruvannamalai confirming the judgment as made in S.C.No.1602 dated 17.12.2005 on the file of the learned Chief Judicial Magistrate Tiruvannamalai and call for the records and acquit the petitioner from all charges.For Petitioners: Mr.S.VediappanFor R1: Mr.L.Baskaran Government Advocate1 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014 of I.P.C and upon questioning the petitioner accused denied the charge and stood trial.4 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.70144. The prosecution examined the prosecutrix victim as P.W.1 who deposed about the incident The brother of the prosecutrix who accidentally came to the spot and virtually rescued P.W.1 and tried to attack the accused was examined as P.W.2 who spoke to that effect one Venkatesan the Village Assistant who was the witness to the observation mahazar as P.W.3 one Dhanapal who was the witness to the seizure of MOs.1 and 2 upon the confession of the accused as P.W.4 one Settu who was also the witness in the seizure mahazar pursuant to the confession of the accused turned hostile and was cross examined by the prosecution as P.W.5 one Dr.Karpagam who examined P.W.1 victim and deposed that she issued Ex.P6 medical certificate and spoke about examining the victim that there was a tear injury of 1 c.m. in the private part of P.W.1 and that her Vagina admitted two fingers however with difficulty and that P.W.1 had felt pain upon touching her breast as P.W.6 one Dr.Sakunthala Dentist who examined P.W.1 and certified that her age would be between 18 to 19 years as P.W.7 one Chinnaraj Head Constable who took P.W.1 to Polur hospital for determining her age and thereafter to Vellore hospital as P.W.8 one Dr.M.J.Seenivasan as P.W.9 One Chelladurai the Radiologist who examined P.W.1 and determined her age as 17 to 18 years and issued 5 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014Ex.P8 as P.W.10 who carried M.O Tappals to the Forensic laboratory one Dr.S.Prabhakaran as P.W.11 who examined the accused and found him to be potent and fit to have physical intercourse one Nirmala Rajkumar the Forensic expert as P.W.12 who issued Ex.P13 report and Ex.P14 report and found that there were traces of sperm in M.O.2 one Ravindran who was the Sub Inspector of Police Kalapakkam at the relevant time and who registered the case in Crime No.02 by recording the statement of P.W.1 victim as P.W.13 one Raja Inspector of Police as P.W.14 who is the investigating officer.5. The prosecution marked the statement given by P.W.1 as Ex.P1 form 95 as Ex.P12 observation mahazar as Ex.P3 P.W.4 s signature in seizure mahazar as Ex.P4 P.W.5 s signature in seizure mahazar as Ex.P5 the accident register copy as Ex.P6 the age certificate issued by the Dentist as Ex.P7 the age certificate issued by the Radiologist as Ex.P8 the letter of forwarding the accused for medical evidence as Ex.P9 the medical report of examination of accused as Ex.P10 the Forensic reports as Exs.P11 and P12 the First Information Report as Ex.P13 the rough sketch as Ex.P14 observation mahazar as Ex.P15 the letter given for examination of accused as Ex.P16.6 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.70146. The prosecution marked the skirt worn by P.W.1 at the time of offence as M.O.1 her top as M.O.2 the lungi worn by the accused at the time of offence M.O.3 underwear worn by the accused as M.O.4.7. Upon being questioned about the evidence on record and the incriminating circumstances under Section 313 of Code of Criminal Procedure the accused denied the charges. No evidence was let in on behalf of the defense. Therefore the Trial Court proceeded to hear the learned Additional Public Prosecutor for the prosecution and learned Counsel for the accused. By a judgment dated 17.12.2015 found that the evidence of P.W.1 is clinching and unwavering and in a manner as to inspire the confidence of the Court. It further found that the evidence of P.W.2 as corroborating that of P.W.1. The Trial Court adverted to the defense on behalf of the accused that it was voluntary intercourse upon the consent of the accused and upon considering the chain of events and the place of occurrence concluded that that there is no probability that the offense had happened with the consent of the prosecutrix and therefore held that the charge against the accused is proved beyond reasonable doubt and imposed the mandatory minimum punishment of seven years Rigorous 7 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014Imprisonment and a fine of Rs.500 while observing that the period already undergone by the accused pending the trial can be set off under Section 428 of Code of Criminal Procedure.8. Aggrieved by the said judgment the petitioner accused preferred Crl.A.No.605 on the file of the learned Sessions Judge Tiruvannamalai. The learned Appellate Court after hearing the learned Counsel on either side independently appraised the evidence on record and found that P.Ws.1 and 2 have categorically narrated about the incident and there is nothing in their cross examination which would favour the accused. Thereafter considering the medical evidence and the Forensic evidence and considering the fact that the case was properly investigated rejected the defence that the act was consensual. The further argument of the defence based on the judgment of Hon ble Supreme Court of India in Tameezuddin @ Tammu Vs. State ofof Delhi1 that in the absence of vaginal swabs being taken the presence of same being confirmed there should not be conviction was also rejected considering the defense taken in the instant case that it is one of the consent and therefore the absence of procedure of vaginal swabs will not make any difference in this case and dismissed the 1(2010) 1 MLJ748 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014appeal and confirmed the sentence.9. Heard Mr.S.Vediappan learned Counsel appearing on behalf of the petitioner and Mr.L.Baskaran learned Government Advocateappearing on behalf of the prosecution would submit that prosecution in this case has proved the offence beyond doubt. Normally an offence under Section 376 of I.P.C will be made out even on the solitary evidence of the prosecutrix. In this case not only evidence of prosecutrix the corroboratory evidence of P.W.2 who accidentally went to the spot and witnessed the offence the medical evidence of the Doctor finding injury on 10 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014the private part of the victim forensic evidence finding spermatozoa in MO.4 are all present which would establish the charge. He would submit that the evidence of P.W.1 prosecutrix cannot be lightly disbelieved in the offence of this nature and therefore the Trial Court and the lower Appellate Court were right in punishing the accused.12. I have considered the material evidence on record and the rival submissions made on either side. It is true that at the first blush upon perusal of F.I.R it can be argued as though there was a voluntary act of sexual intercourse being thwarted by P.W.2. But however a careful perusal of the entire complaint and thereafter the evidence of P.W.1 it is clear that at about 10. A.M when the victim a 17 year old girl was grazing her milch cow the petitioner accused initially went near her made a conversation and suddenly pulled her by catching hold of her hand to the nearby teak farm and had intercourse with her. The very fact that the victim did not physically and violently resist the accused will not make the act as consensual. A proper reading of Section 375 of Indian Penal Code would clearly convey that if the act of the accused is against the will of the prosecutrix and against her consent it would amount to the offence of rape. One has to step into the shoes of the victim and see the entire episode from 11 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014her perspective. She was a 17 year old and was all alone. Yes she walked along when was dragged by her hand. But when the accused pushed her down and forced himself upon her. She wanted to and was trying to shout and resist but the accused and his acts prevailed. Upon reading of Section 90 of the Indian Penal Code it will be clear thatthere must be consent such consent should not be our of fear or misconception. As per Section 114 A of the Evidence Act there is a presumption of absence of consent in the offense of rape if the victim deposes that she did not consent. To rebut this presumption there must be positive evidence let in by the accused and mere absence of a valiant and violent effort on the part of the victim certainly does not amount to consent. As early as in the year 1957 a Learned Judge of the Punjab & Haryana High Court had in Rao Harnarain Singh and others Vs. State2 has most eloquently put it as follows :“A mere act of helpless resignation in the face of inevitable compulsion quiescence non resistance or passive giving in when volitional faculty is either clouded by fear or vitiated by duress cannot be deemed to be “consent” as understood in law. Consent on the part of a woman as a defence to an allegation of rape requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having freely exercised a choice between resistance and assent Submission 2 AIR 1958 P&H 12312 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act of a criminal character like rape must be an act of reason accompanied with deliberation after the mind has wished as in a balance the good and evil on each side with the existing capacity and power to withdraw the assent according to one s will or pleasure. A woman is said to consent only when she freely agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. “ that there is minimum sentence of seven years prescribed for the offence and therefore only the minimum sentence is imposed on the accused and therefore there is nothing to interfere in the sentence by this Court. Per contra the learned Counsel for the petitioner submitted that Section 376 of I.P.C as it stood on the the of offence even though there was a minimum punishment of seven years the proviso vested the discretion in the Court to impose a sentence lesser than the period of minimum sentence for special reasons to be recorded. 15. In this case he submitted that the offence occurred in the year 2002 i.e. 19 years ago when the accused was 29 years old. Now he is 48 years of age. Now the petitioner is married and is having two children. The prosecutrix is no more. The petitioner became alchoholic and he has 14 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014Alchohol withdrawal seizures Multiple Neurocysticercosis and is undergoing regular and constant treatment in the Government Medical College Hospital Tiruvannamalai. He submitted the original medical record issued by Tiruvannamalai Medical College Hospital and photo copy of the same is filed before this Court. 16. Therefore the question arises whether the condition of the accused and efflux of time can be considered as a special circumstance for imposing a sentence lesser than the minimum sentence. The Hon ble Supreme Court of India The Hon ble Supreme Court of India in Shimbhu and Ors. Vs. State of Haryana3 has categorically held that in respect of the offense of rape the efflux of time or socio economic condition of the accused cannot be special reason to impose a lesser punishment than the minimum sentence. Therefore I am unable to accept the submission of the Learned Counsel for the petitioner in this regard.17. 20 years down the lane after the commission of the crime the case presents the grim aftermath of the crime. The prosecutrix even though survived the offense and lived for many years thereafter did pass away at 3MANU SC 0871 201315 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014an young age pending disposal of this revision. The direct and indirect impact of the crime on her body and mind cannot be ruled out. The accused being sent to jail at an early age has since turned into an alcoholic and is very sick now at the age of 48. But the long arm of the law will reach him and land him into jail. In between he is also married and the poor wife and children have to face the social stigma for no fault of theirs. If only the accused did not commit the offense their life in the village would have been peaceful. The offence has everything to do with the corrupt mind of the accused not seeing the prosecutrix as another living being This crime and the punishment has only the time tested message to every individual of the society of the kural :“ . “And this is what exactly the Hon ble Supreme Court of India had put it Shimbhu and Ors. Vs. State of Haryana4 that is primary object of the sentencing policy in the offense of rape being the deterrent message to the society 18. In the result this Criminal Revision case is dismissed. The conviction and sentence imposed by the Trial Court and the Appellate Court 4Refer foot note No.316 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014stands confirmed. 23.12.2021Index: yesSpeaking ordergrsTo1.The Sessions Judge Tiruvannamalai.2.The Chief Judicial Magistrate Tiruvannamalai. 3.The Public Prosecutor High Court of Madras.4.The Inspector of Police Kalasapakkam Police Station Tiruvannamalai District.17 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014D.BHARATHA CHAKRAVARTHY J. grsPre Delivery order inCrl.R.C.No.701423.12.202118 18 

Summary: The offence has everything to do with the corrupt mind of the accused not seeing the prosecutrix as another living being, This crime and the punishment, has only the time tested message to every individual of the society. This was stated by the single bench heading Hon’ble Justice D. Bharatha Chakravarthy in the case Gopi @ Saravanan v. The State Crl.R.C.No.708 of 2014 The crux of the case is, the prosecutrix went to the Kalasapakkam Police Station and stated that when she went to graze her milch cow near her family’s land, the petitioner/accused approached her, made sweet talk, and then abruptly pulled her by her hand and dragged her to Govind Vathiyar’s teak farm, where he laid her down and committed rape by preventing her from making any noise and forcefully indulged in the act, and at that time, her brother came Her brother, in fact, picked up a stone and tossed it at him, but the same stone struck her in the left ear. Because the accused committed the crime of rape, the complaint was filed. A case was filed under Section 376 of the Indian Penal Code by a Sub-Inspector of Police. Following that, the Trial Court proceeded to construct accusations under Section 376(1) of the I.P.C., which the petitioner/accused rejected and stood trial for. The accused further rejected the charges when questioned about the evidence on file and the incriminating circumstances under Section 313 of the Code of Criminal Procedure. The Trial Court found that the charge against the accused was proven beyond a reasonable doubt and imposed a mandatory minimum sentence of seven years rigorous imprisonment and a fine of Rs.500/-, while noting that the accused’s time spent awaiting trial can be deducted under Section 428 of the Code of Criminal Procedure. In this case learned Advocate (Criminal Side) appearing on behalf of the prosecution would submit that prosecution in this case has proved the offence beyond doubt. And further stated that In this case a careful perusal of the entire complaint and thereafter the evidence of victim, the very fact that the victim did not physically and violently resist the accused will not make the act as consensual. He also relied on the case of Rao Harnarain Singh and others Vs. State AIR 1958 P&amp;H 123 and pointed out “Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.” Thus, ‘submission’ would not amount to ‘consent’. So here in the case Hon’ble Justice D. Bharatha Chakravarthy relied on the case of Shimbhu and Ors. Vs. State of Haryana MANU/SC/0871/2013 and stated 20 years down the lane after the commission of the crime, the case presents the grim aftermath of the crime. The prosecutrix, even though survived the offense, and lived for many years thereafter, did pass away at an young age, pending disposal of this revision. The direct and indirect impact of the crime on her body and mind cannot be ruled out. The accused being sent to jail at an early age, has since turned into an alcoholic and is very sick now at the age of 48. But the long arm of the law will reach him and land him into jail. In between he is also married and the poor wife and children have to face the social stigma, for no fault of theirs. If only, the accused did not commit the offense, their life in the village would have been peaceful. The offence has everything to do with the corrupt mind of the accused not seeing the prosecutrix as another living being, This crime and the punishment, has only the time tested message to every individual of the society. In the result, this Criminal Revision case is dismissed. The conviction and sentence imposed by the Trial Court and the Appellate Court stands confirmed.