Madras High Court
Rajivgandhi vs The State Rep By on 21 April, 2022
CRL.A(MD)No.354 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.04.2022
(Reserved on 12.04.2022)
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Criminal Appeal(MD)No.354 of 2021
Rajivgandhi ... Appellant
vs.
The State rep by
The Inspector of Police,
Mathur Police Station,
Pudukkottai District.
(Crime No.366 of 2020) ... Respondent
Appeal filed under Section 374(2) of the Criminal Procedure Code,
against the conviction and sentence passed by the learned Sessions
Judge (Mahila Court), Pudukkottai, in Special S.C.No.2 of 2021, dated
05.05.2021.
For Appellant : Mr.S.Sivasubramanian
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
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JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
The accused who has been convicted for life sentence
which would be till the end of the life time for the offences under
Section 5(l) read with Section 6(1) of the Protection of Children from
Sexual Offences Act, 2012 (for brevity, ''POCSO Act'') with a fine of
Rs.1,00,000/-, in default to undergo simple imprisonment for 3
months and 7 years rigorous imprisonment for an offence under
Section 363 of IPC along with a fine of Rs.20,000/- in default to
undergo simple imprisonment for 3 months, has come up with this
appeal.
2. The case of the prosecution is as follows:-
The accused who was running a tailoring shop in Perambur
Village, Viralimalai Taluk, Pudukkottai District, had befriended the
victim girl aged about 16 years when she went for tailoring training
for about two months. The accused had enticed the girl and had
sexually abused her. When the accused attempted to talk to the
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victim girl over cell phone at odd hours, her mother deprecated the
practice and thereafter stopped the girl from attending the tailoring
classes. However, the accused on 05.12.2020 came near the house
of the victim girl and enticed her to meet him near Sengulam. The
victim girl had left the house under the pretext of getting some old
clothes stitched at about 04.00 p.m. Since she did not return for a
long time, the father of the victim girl/PW1 went in search of her and
was not successful. He, therefore, lodged a complaint with the
respondent/Police under Ex.P1 on 06.12.2020 at about 10.00 a.m.
Thereafter, on the same day, the Police called him and asked him to
come near the Mathur E.B office. When he went there, he found his
daughter with the Police. The victim girl was taken for medical
examination. Upon medical examination, it was found that the
accused had penetrative sexual intercourse with the victim girl.
PW10-Inspector of Police, on receipt of a complaint had enquired
PW1 and other witnesses on the same day and recorded their
statements. He had also arrested the accused who attempted to
escape when he was on a routine vehicle check on Trichy-Mavur
road. The confession made by the accused was recorded by him and
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on the basis of the confession, the two wheeler bearing registration
No.TN-42-R-4966 used by the accused to take the victim girl was
seized from the accused. He had also taken the minor girl for
medical examination and recorded the statements of the Doctor and
the Constable who took her for medial examination. upon request,
Section 164 statement of the victim girl was recorded on
21.12.2020. The accused was medically examined on 23.12.2020
and the report of the Doctor was also taken. The statement of the
Doctor who had examined the accused, was recorded on
04.01.2021. Upon completion of the investigation, he laid a charge
sheet charging the accused for the offences stated supra.
3. The accused denied having committed the crime. In
order to prove the guilt, the prosecution, before the trial Court,
examined as many as 10 witnesses and marked Exs.P1 to P12. The
motorcycle was marked as MO1 and the CD was marked as MO2.
The accused did not adduce either oral or documentary evidence.
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4. The learned Sessions Judge upon consideration of the
evidence on record, concluded that the prosecution has proved the
guilt of the accused. Taking note of the fact that the accused had
repeated sexual intercourse with the victim girl, the trial Court found
that the accused is guilty of the offence under Section 5(l) of the
POCSO Act. The Court also found that the accused is guilty of
kidnapping a minor girl and as such, he has committed an offence
punishable under Section 363 of IPC. Upon such conclusion, the
learned Sessions Judge convicted the accused for the offences and
sentenced him to undergo imprisonment as stated supra.
5. We have heard Mr.S.Sivasubramanian, learned counsel
appearing for the appellant and Mr.T.Senthil Kumar, learned
Additional Public Prosecutor appearing for the prosecution.
6. Mr.S.Sivasubramanian, learned counsel appearing for the
appellant/accused would contend that the very narration of the
incident by PWs 1 and 2 bristles with inconsistencies and therefore,
conviction cannot be based on such inconsistent testimonies. The
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learned counsel would point out that in the Section 164 statements
of the victim girl which has been marked as Ex.P3, there is not even
a whisper of penetrative sexual assault. Therefore, according to
him, we should not give any credence to the vocular evidence of the
victim girl which runs counter to the statement made under Section
164 Cr.P.C., before the learned Magistrate. Contending further, the
learned counsel would submit that the entire evidence if read in a
proper perspective, would show that the victim girl had gone with
the accused on her own and it was a consensual relationship and
therefore, the theory of kidnapping cannot be countenanced.
7. Arguing further, the learned counsel would submit that
while the accident register records that the hymen was not intact,
the Doctor namely, PW3 had deposed that the hymen was torn and
the vagina admitted two fingers. Therefore, according to the learned
counsel, the inconsistencies in the medical evidence would have a
bearing on the credibility of the case of the prosecution. The learned
counsel would also plead that the quantum of sentence is excessive
and is improportionate to the proved offence. The trial Court has
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failed to note that the minor girl who is aged about 16 years had
voluntarily accompanied the accused. The relationship being
consensual and on a promise of marriage, the same cannot be
treated as a forced sexual relationship. The learned counsel would
contend that the fact that there was a consent, though invalid, would
be a mitigating factor while considering the quantum of sentence.
8. Contending contra, Mr.T.Senthil Kumar, learned
Additional Public Prosecutor would submit that the vocular evidence
of the victim girl is clear and categoric. He would also point out that
there is no cross examination of the victim girl on the vital aspects of
her evidence. Decrying the attempt of the learned counsel for the
appellant to highlight the differences between the 164 statement and
the substantive evidence before the Court, the learned Additional
Public Prosecutor would point out that the statement has not been
put to the victim girl while she tendered evidence in Court.
According to the learned Additional Public Prosecutor, in the absence
of such cross examination pointing out the inconsistencies in the
statement made under Section 164 Cr.P.C., the 164 statement
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cannot be relied upon by the accused to whittle down the effect of
the vocular evidence of the victim girl. The learned Additional Public
Prosecutor would also point out that even assuming without
admitting that there was a consent, the same cannot be of any use
to the accused, since the victim girl is a minor and any consent
would be invalid. He would also point out the evidence of the victim
girl who has been examined as PW2, to contend that there was no
consent and the relationship was by use of force.
9. Replying to the contention of the learned counsel based
on the difference in the evidence of the Doctor and the accident
report, the learned Additional Public Prosecutor would submit that
use of imperfect language by medical professionals in their oral
evidence that too when they were forced to depose in Tamil, cannot
be a ground to discredit their testimony or to disbelieve the
prosecution theory. The difference between hymen not intact and
hymenal tear cannot be put in very refined Tamil and therefore,
according to the learned Additional Public Prosecutor, the said
contention has to be brushed aside. On the two finger test, the
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learned Additional Public Prosecutor would submit that the Hon'ble
Supreme Court has deprecated the said practice and it is high time
that the said practice must be stopped.
10. The learned counsel for the appellant also would submit
that the two finger test has been held to be unconstitutional and
several State Governments have banned it. He would also persuade
us to impose a ban on the two finger test by relying upon the
judgments of the Hon'ble Supreme Court in Lillu @ Rajesh and
another vs. State of Haryana (Criminal Appeal No.1226 of
2011, dated 09.04.2013), In Re : Assessment of the Criminal
Justice System in response to Sexual Offences (Suo Motu
Writ Petition(Crl)No.04 of 2019, and that of the Gujarat High
Court judgment in State of Gujarat vs. Rameshchandra
Ramabhai Panchal reported in 2020 SCC Online Gujarat 114.
The learned counsel would also draw our attention to the article in
the Hindu dated 10.04.2022 wherein, the author has pointed out
that the protocols of medical examination prescribed by the Supreme
Court are often not implemented in cases of sexual violence relating
to children.
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11. The learned counsel would also draw our attention to the
judgment of the Supreme Court in EERA vs. State (NCT of Delhi)
reported in (2017) 15 SCC 133, to contend that the two finger test
which mocks the dignity of the child, which has been laid immense
emphasis in the scheme of the POCSO Act, should be stopped.
Reliance is also placed by the learned counsel on a judgment of the
Supreme Court in S.Varadharajan vs. State of Madras reported in
AIR 1965 SC 942, to contend that the offence under Section 363
IPC had not been made out since the victim girl had admitted that
she went voluntarily along with the accused.
12. We have considered the rival submissions.
13. The accused has been charged under Section 363 of IPC
for having kidnapped the minor girl. Section 361 IPC defines
'kidnapping from lawful guardianship' as follows:-
''Whoever takes or entices any minor
under sixteen years of age if a male, or under
eighteen years of age if a female, or any
person of unsound mind, out of the keeping of
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the lawful guardian of such minor or person of
unsound mind, without the consent of such
guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation.--The words "lawful
guardian" in this section include any person
lawfully entrusted with the care or custody of
such minor or other person.''
14. Of course, a bare reading of the provision would show
that a person who takes or entices any minor under 16 years of age
if a male, or under 18 years of age if a female, or any person of
unsound mind, from the lawful guardianship of a guardian, is said to
have kidnapped the minor. The meaning of the word 'taking' was
considered by the Hon'ble Supreme Court in S.Varadharajan vs.
State of Madras reported in AIR 1965 SC 942. The Hon'ble
Supreme Court held as follows:-
''9. It must, however, be borne in mind
that there is a distinction between "taking" and
allowing a minor to accompany a person. The
two expressions are not synonymous though
we would like to guard ourselves from laying
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down that in no conceivable circumstance can
the two be regarded as meaning the same
thing for the purposes of s. 361 of the Indian
Penal Code. We would limit ourselves to a case
like the present where the minor alleged to
have been taken by the accused person left
her father's protection knowing and having
capacity to know the full import of what she
was doing voluntarily joins the accused person.
In such a case we do not think that the
accused can be said to have taken her away
from the keeping of her lawful guardian.
Something more has to be shown in a case of
this kind and that is some kind of inducement
held out by the accused person or an active
participation by him in the formation of the
intention of the minor to leave the house of
the guardian.''
15. After observing so, the Hon'ble Supreme Court found that
the minor girl who was aged about above 16 years, had on her own
free will walked out of the house and gone with the accused person.
The meaning of the word 'enticing' was also considered by the
Hon'ble Supreme Court in the said judgment and the Supreme Court
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held that in order to prove the offence of kidnapping, it must be
established that the accused had a role in her walking out and he
had taken her away from her house. In the case on hand, it is in
evidence that the victim girl had walked out of her house on her own
in the pretext of having some old clothes stitched. She had travelled
with the accused and was caught after nearly 24 hours. She never
made an attempt to escape from his custody. The above conduct of
the minor girl would show that she had gone on her own volition and
therefore, the essential ingredients of the offence under Section 363
IPC has not been made out. We, therefore, conclude that the
conviction for the offence under Section 363 IPC is not justified and
the accused should be acquitted of the offence under the said
section.
16. Adverting to the conviction for the offences under the
POCSO Act, though the contention of the learned counsel for the
appellant that there was a consent on the part of the victim girl
appears to be very attractive on the face of it, we do not think that
we could fault the trial Court for having convicted the accused under
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the provisions of the POCSO Act. The evidence of PW2, the victim
girl, is clear and categoric in respect of penetrative sexual assault for
more than once. Of course, Section 164 statement of the victim girl
does not speak about penetrative sexual assault. Unfortunately, for
the accused, the said statement had not been put to the victim girl
while she was tendering her substantial evidence before the Court in
order to elicit the contradiction. In the absence of such exercise, the
contradiction between Section 164 statement and the oral evidence
cannot be taken advantage of by the accused in order to dislodge
the presumption that is created under Section 29 of the POCSO Act.
17. Section 29 of the POCSO Act creates a presumption of
guilt. No doubt, Courts have held that the presumption under
Section 29 is not absolute and it is for the prosecution to prove the
foundational requirements of commission of an offence in order that
the presumption can be drawn. In the case on hand, if we scan the
evidence of the victim girl and the medical evidence available, we
will have to necessarily concede that the prosecution has proved the
foundational facts. To our dismay, we find that there has been no
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attempt by the accused either by way of cross examination of the
victim girl or by production of any other evidence to project a motive
and to dislodge the presumption under Section 29 of the POCSO Act.
Section 30 of the POCSO Act creates a presumption of culpable
mental state on the part of the accused. Though Section 30
provides that the accused can prove the fact that he had no such
mental state with respect to the act charged, such an attempt has
not been made. This leaves us without an option but to confirm the
findings of the trial Court based on the evidence of PW2, the victim
girl and the medical evidence that is available. We, therefore,
conclude that the trial Court was right in its finding that the accused
is guilty of the offences under Section 5(l) and Section 6(1) of the
POCSO Act.
18. Coming to the quantum of sentence, we find that the
sentence of life imprisonment is really harsh, particularly, on the
given set of facts. From the evidence of PW2, we are able to find
that there was some kind of relationship between the accused and
the victim girl. No doubt, the accused is a married person and he
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could be said to be guilty of deceiving the victim girl on a promise of
marriage, but the evidence of the victim girl would show that there
was actually a love affair between the two and the accused had
stated that he could not live without seeing her. Taking into account
this evidence, we are of the opinion that a minimum sentence of
imprisonment for a period of 20 years would suffice. After all,
reformation is the object of sentencing. We, therefore, modify the
sentence for life imposed by the trial Court and reduce it to 20 years
of rigorous imprisonment. The fine and the default period of
sentence are sustained. The period of incarceration already
undergone is directed to be set off under Section 428 Cr.P.C.
19. Before parting with this case, we feel that it is necessary
for us to put an end to the practice of the two finger test. We find
that the two finger test is being used in cases involving sexual
offences, particularly, on minor victims. As early as in 2013, the
Hon'ble Supreme Court had held that the two finger test and its
interpretation violates the right of rape survivors to privacy, physical
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and mental integrity and dignity. While doing so, the Hon'ble
Supreme Court in Lillu @ Rajesh and another vs. State of
Haryana (Criminal Appeal No.1226 of 2011, dated
09.04.2013) has observed as follows:-
''12. .... They are also entitled to medical
procedures conducted in a manner that
respects their right to consent. Medical
procedures should not be carried out in a
manner that constitutes cruel, inhuman, or
degrading treatment and health should be of
paramount consideration while dealing with
gender-based violence. The State is under an
obligation to make such services available to
survivors of sexual violence. Proper measures
should be taken to ensure their safety and
there should be no arbitrary or unlawful
interference with his privacy.
13. Thus, in view of the above,
undoubtedly, the two finger test and its
interpretation violates the right of rape
survivors to privacy, physical and mental
integrity and dignity. Thus, this test, even if
the report is affirmative, cannot ipso facto, be
given rise to presumption of consent.''
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20. Again, in Re : Assessment of the Criminal Justice
System in response to Sexual Offences (Suo Motu Writ
Petition(Crl)No.04 of 2019, the Hon'ble Supreme Court had called
for a status report and the 5th question that has been framed is as
follows:-
''(5) whether the medical experts have
done away with the Per-Vaginum examination
commonly referred to as 'Two-finger test' and
whether any directions have been issued by
the states in this regard?''
21. The Gujarat High Court in State of Gujarat vs.
Rameshchandra Ramabhai Panchal reported in 2020 SCC
Online Gujarat 114, had held that the two finger test is the most
unscientific method of examination used in the context of sexual
assault and has no forensic value. The Court observed as follows:-
''30.The two-finger test is
unconstitutional. It violates the right of the
victim to privacy, physical and mental integrity
and dignity. Thus, this test, even if the report
is affirmative, cannot ipso facto, give rise to
presumption of consent. In view of the
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International Covenant on Economic, Social,
and Cultural Rights 1966 and the United
Nations Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of
Power 1985, the victim of sexual assault are
entitled to legal recourse that does not
traumatize them or violate their physical or
mental integrity and dignity. They are also
entitled to medical procedures conducted in a
manner that respects their right to consent.
Medical procedures should not be carried out in
a manner that constitutes cruel, inhuman, or
degrading treatment and health should be of
paramount consideration while dealing with
gender-based violence. The State is under an
obligation to make such services available to
survivors of sexual violence. Proper measures
should be taken to ensure their safety and
there should be no arbitrary or unlawful
interference with their privacy. [See: Lilu @
Rajesh and Anr. Vs. State of Haryana, (2013)
14 SCC 643]
34. We take notice of the fact that the
Maharashtra Government has done away with
finger test on rape victims by issuing a
Government Resolution in 2013. The
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Resolution says that such test is non-scientific
most of the time, often resulting in hurdles in
the investigations and miscarriage of justice.
This GR was issued based on a report by eight
member panel appointed by the Maharashtra
Government. The GR explained that the
procedure of finger test is degrading and crude
and medically and scientifically irrelevant.
Information about the past sexual conduct has
been considered irrelevant and the doctor need
not verify if the victim habitually has sexual
intercourse.''
22. In EERA vs. State (NCT of Delhi) reported in (2017)
15 SCC 133, the Hon'ble Supreme Court while dealing with the
POCSO Act, had observed that the interest of the child both as a
victim as well as a witness needs to be protected. The Court added
as follows:-
''20..... The stress is on providing child-
friendly procedure. Dignity of the child has
been laid immense emphasis in the scheme of
legislation. Protection and interest occupy the
seminal place in the text of the POCSO Act.''
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23. In view of the above judicial pronouncements, we have no
doubt that the two finger test cannot be permitted to be continued.
Therefore, we issue a direction to the State Government to ban the
practice of two finger test on victims of sexual offences by the
medical professionals forthwith.
24. In fine, the Criminal Appeal is partly allowed. The
conviction and sentence for the offence under Section 363 IPC is set
aside in toto. The conviction for the offences under Section 5(l) and
6(1) of the POCSO Act is confirmed and the life sentence is,
however, reduced to 20 years of rigorous imprisonment. The fine of
Rs.1,00,000/- and the default sentence of simple imprisonment for 3
months, is confirmed.
(R.S.M., J.) (N.S.K., J.)
21.04.2022
Index : Yes / No
bala
To
1.The Inspector of Police,
Mathur Police Station,
Pudukkottai District.
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2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
bala
PRE-DELIVERY JUDGMENT MADE IN
CRL.A(MD)No.354 of 2021
DATED : 21.04.2022
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