Unknown vs Balamurugan
2022 Latest Caselaw 1829 Mad

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                       DATED: 04.02.2022

                                                             CORAM

                            THE Hon'ble MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

                                                   CRL.A.(MD)No.298 of 2015


                     State represented by
                     The Inspector of Police,
                     Pudur Police Station,
                     Thoothukudi District.
                     (Crime No.179 of 2004)                    : Appellant

                                                               Vs.


                     Balamurugan                               : Respondent



                                                             ORDER

In continuation of the judgment of conviction dated 03.09.2021 by the

Appellate Court, Madurai Bench of Madras High Court, reversing the judgment

of acquittal by the learned Assistant Sessions Judge, Kovilpatti, dated

26.08.2009. The Respondent/Accused was secured by the police. The case is

posted today to hear the arguments of the learned Additional Public Prosecutor

https://www.mhc.tn.gov.in/judis regarding quantum of sentence to be awarded to the Respondent/Accused and

the learned Counsel for the Respondent/Accused regarding quantum of

sentence.

Heard Mr.T.Senthil Kumar, learned Additional Public Prosecutor

regarding the quantum of sentence that is to be awarded to the

Respondent/Accused and Mr.S.Jayasingh, learned Legal Aid Counsel for the

Respondent/Accused.

2. It is the submission of the learned Additional Public Prosecutor that

the Respondent herein was the Accused before the learned Assistant Sessions

Judge, Kovilpatti. The Accused was charged for the offences under Section

376 (l) of IPC and the same reads as under:

“376. Punishment for rape – (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years, and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both;

https://www.mhc.tn.gov.in/judis Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

The prosecution had examined the witnesses P.W-1 to P.W-12, marked

documents Ex.P-1 to Ex.P-5 and material objects M.O-1 and charges were

proved by the Prosecution. The then learned Assistant Sessions Judge,

Kovilpatti had misdirected himself and on wrong appreciation of evidence

based on the evidence in cross-examination of the witnesses P.W-1 to P.W-12,

particularly, the victim viz., P.W-4, had misdirected himself and acquitted the

Accused ignoring the guidelines of the Hon'ble Supreme Court regarding the

burden of proof, its repercussions and appreciation by the trial judges and

therefore, this appeal was filed by the Prosecution. The evidence of the

Prosecution was beyond reasonable doubt regarding the charge framed against

Accused and it was proved. The learned Assistant Sessions Judge had

considered only the answers given by the witnesses in cross-examination and

had not considered the evidence of the witnesses importance of Section 376

IPC and the provisions of Indian Evidence Act on the special reference to

https://www.mhc.tn.gov.in/judis offences against woman and

thereby committed an error of the guidelines issued by the Hon'ble Supreme

Court. Therefore, the appeal filed by the Prosecution.

3.In the appeal, after hearing both parties, the Appellant/Prosecution and

the Respondent/Accused the Hon'ble High Court had convicted the Accused

and reversed the judgment of acquittal pronounced by the learned Assistant

Sessions Judge, Kovilpatti, dated 26.08.2009. Therefore, the Accused had

been secured on execution of warrant. This case is posted for hearing the

arguments regarding the quantum of sentence. It is the submission of the

learned Additional Public Prosecutor that the Accused had been a relative of

the victim. His marriage with another woman was already fixed. On the date

of his betrothal, he had committed the offence attracting Section 376 (l) of IPC

on the victim girl who is deaf and dumb and who was aged 14 years only. Now

the victim of this crime is aged 31 years and still unmarried due to the stigma

caused by the criminal assault on her by this Respondent/Accused. Therefore,

he is to be imposed with heavy penalty and maximum sentence. No leniency

https://www.mhc.tn.gov.in/judis shall be shown to the Respondent/Accused. Further, the learned Additional

Public Prosecutor invited the attention of this Court to the provisions to Section

376(l) of IPC.

Therefore, the submission of the learned Additional Public Prosecutor

that the arguments regarding sentencing need not be heard as the minimum

sentence itself is 7 years.

4.Any way, the learned Additional Public Prosecutor relies on the report

of the Prosecution regarding the incriminating circumstances available against

the Accused warranting maximum sentence.

5.The learned counsel for the Respondent/Accused submitted that the

mitigating circumstances are in favour of the accused. As per the submission of

the learned Counsel for the Respondent/Accused, the Accused had married

after the Judgment of acquittal. Now he is the father of two children. He is

working as a daily wage labourer and he has to support his family consisting of

aged mother, wife and two children. Therefore, the Court may consider his

https://www.mhc.tn.gov.in/judis social status and his economic status and also the consequences of the Accused

being sent to Prison, the livelihood of the aged mother of the Accused, his wife

and minor children will be affected. Therefore, the learned counsel for the

Respondent/Accused seeks lesser punishment. Also the learned Counsel for the

Respondent/Accused submitted that invariably in cases of Appeal against

acquittal by Prosecution, there is remote possibility of the Judgment of acquittal

being reversed. Especially if the learned trial Judge had properly appreciated

evidence in the light of Indian Evidence Act. The alleged occurrence alleged to

have occurred in the year 2004. The Judgment of the learned trial Judge was in

the year 2009. Appeal filed by the Prosecution in the year 2009 itself but the

appeal was taken up by the Hon'ble High Court in the year 2021, roughly 12

years it was pending. The elder son of the Respondent/Accused is 12 years

now. If the Accused is imprisoned, the future of the minor children will be

affected. Therefore, the learned counsel for the Respondent/Accused sought

indulgence of this Court to consider lesser imprisonment less than 7 years for

no fault of the Accused for reversing the Judgment of acquittal in this length of

time. Therefore, he seeks the Court to apply special circumstances second

Clause of Section 376 of IPC “provided that the Court may for adequate and

https://www.mhc.tn.gov.in/judis special reasons to be mentioned in the Judgment, impose a Sentence of

Imprisonment for a term of less than seven years. Also he relied on Section

361 of Cr.P.C., and prayed the Court for lesser Imprisonment.

6. Considered the rival submissions and this Court had questioned the

Accused regarding the quantum of Sentence, for which, the

Respondent/Accused submitted that the Court may impose lesser punishment.

He also submitted that he has a family consisting of his aged mother, wife and

two children. He has to support them and if he is sent to Prison, the livelihood

of the aged mother, wife and children will be jeopardised. Therefore, he seeks

mercy of the Court.

7. The Accused was questioned regarding his capacity to pay

compensation, for which, he had replied that even he does not have the ability

to engage an individual Counsel. Therefore, the Court had appointed a Legal

Aid Counsel for him. Therefore he does not have sufficient resources to pay

compensation and he sought leniency.

https://www.mhc.tn.gov.in/judis

8. As per the submission of the learned Additional Public Prosecutor,

Victim Compensation Scheme was enacted by the Parliament in 2011 vide

notification No.F-3-87/2011/Home-2, dated 03.08.2011 and this Court is

empowered to award any amount as compensation, considering the plight of the

victim of crime. The learned Additional Public Prosecutor also relied on the

Government Order in G.O (Ms) No.33, Social Welfare and Nutritious Meal

Programme [SW.S(2)] Department, dated 03.10.2020 regarding payment of

compensation to the victim of similar offences attracting provisions of

Protection of Children from Sexual Offences Act. Even though it is covered

under Protection of Children from Sexual Offences Act, the said Government

Order can be utilized for awarding compensation to the victim herein. The State

is obliged to pay compensation to the victim. Apart from that as per Section

357(A), the Court is empowered to award any amount as compensation to the

victim.

9. In the light of the rival submissions and on questioning the

accused regarding sentence, the accused had replied that minimum sentence

may be imposed. As per Section 376 (l) IPC as amended in 2013, lesser

https://www.mhc.tn.gov.in/judis sentence itself is 10 years and fine. Considering the rival submissions of the

learned Counsel for the Prosecution and the Respondent/Accused, this Court

orders that the Accused is to be sentenced to undergo 5 years of rigorous

imprisonment. Since the victim of the sexual assault is to be compensated, this

Court is invoking the provisions of Victim Compensation Act which is applied

only to offences under Protection of Children from Sexual Offences Act. Still

this is an offence attracting the provisions of Protection of Children from

Sexual Offences Act, but before the Protection of Children from Sexual

Offences Act was enacted, this offence had occurred and therefore it attracts the

provisions of Section 376(l) IPC. The ingredients of the offences are same.

10. On perusal of the records, it is found that originally the charge was

framed on 07.02.2006 under Section 376 (l) of IPC prior to amendment.

Therefore, the trial was conducted based on the charge framed by the learned

Assistant Sessions Judge, Kovilpatti and the judgment pronounced on

26.08.2009.

11. Amendment to Section 376 was subsequent to the date of

https://www.mhc.tn.gov.in/judis occurrence. Therefore, the argument of the learned Additional Public

Prosecutor regarding invoking Section 376 (l) will result in miscarriage of

justice. The intention of framing charge is to warn the accused in advance that

the trial is to be conducted based the charge under Section 376 of IPC attracting

punishment not less than 7 years. But which may extend to imprisonment for

life and shall also be liable to pay fine. The subsequent amendment brought to

Section 376 of IPC, if invoked, amount to miscarriage of justice as the trial was

conducted and the defence of the Accused was effectively conducted by the

Counsel engaged by the Accused to defend him effectively with all defence

available under Section 376 of IPC.

12. These defences are not available to the accused under the

amendment to Section 376 of IPC which had been brought out later in point of

time. Similarly the offence alleged against the accused attracts provisions of

Protection of Children from Sexual Offences also, but Protection of Children

from Sexual Offences was enacted in the year 2012 and notified on 19th June,

2012. Considering the submissions of the learned Counsel for the

Respondent/Accused invoking the powers of the Court under Section 361

https://www.mhc.tn.gov.in/judis Cr.P.C., and considering the circumstances in this case, the accused was

acquitted by the trial Court in the year 2009, the appeal was taken up by the

High Court in the year 2021, in between 12 years have passed and therefore, the

arguments of the learned Additional Public Prosecutor that the offences alleged

against the accused attracts minimum sentence of 10 years and fine, cannot at

all be imposed against the accused, as the amendment to Section 376 of IPC

was amended in the year 2013 vide Criminal Law Amendment Act 2013

(13/2013) and the Protection of Children from Sexual Offences Act was

enacted in the year 2012. As per the Article 20 of the Constitution of India, no

person shall be convicted of any offence except for violation of a law in force at

the time of the commission of the act. Therefore, as on the date of commission

of offence i.e., 15.09.2004 the provisions amendment to Section 376 IPC as

amended in 2013 was not in force and Protection of Children from Sexual

Offences Act did not come into force. Therefore, the submission of the learned

Additional Public Prosecutor regarding maximum sentence to the accused not

less than 10 years cannot be imposed in this case and the said submission is

rejected.

https://www.mhc.tn.gov.in/judis

13. In the light of the above discussion, as the IPC offence under Section

376 of IPC stood as on the date of occurrence it was 7 years of imprisonment

minimum. The Accused was acquitted by the learned trial Judge in 2009.

Since the Prosecution has filed the appeal in 2009 itself and appeal was

pending in the High Court from 2009 till 2021 for which the accused cannot be

held responsible or liable. The system works in such a manner. Therefore,

imposing seven years imprisonment at this length of time will cause

miscarriage of justice not only to the accused but it amounts to punishing his

aged mother, wife and minor children. Therefore, the submission of the learned

Counsel for the Respondent/Accused regarding mitigating circumstances is

taken up and is considered by this Court. Therefore, considering the above,

lesser punishment is imposed. Accordingly, the accused is imposed with five

years of rigorous imprisonment. Since the Accused is a daily wage labourer, he

cannot be imposed with any fine or compensation. Therefore, the Victim

Compensation Act is applied and the State Government is directed to pay Rs.

2,00,000/- (Rupees Two Lakhs only) as compensation to the victim for the

trauma suffered by her, who is a deaf and dumb and was aged about 14 years at

the time of occurrence, now aged 31 years and still unmarried.

https://www.mhc.tn.gov.in/judis

14. In the result, the accused is convicted under Section 376 of IPC and

sentenced to undergo five years Rigorous Imprisonment. Considering the

offence having been committed in the year 2004 and the trial ended in acquittal

as per judgment dated 26.08.2009. Appeal filed in the year 2009 itself by the

Prosecution was taken up for disposal only in the year 2021 and for the length

of time, the delay caused and in reversing the judgment are considered as

extraneous consideration under Section 361 of Cr.P.C.

Also, the Accused who got married after the acquittal being a daily wage

labourer who had to support his aged mother, wife and minor children, are

considered as mitigating circumstances and no fine is imposed. The State is

directed to pay compensation of Rs.2,00,000/- (Rupees Two Lakhs only) to the

victim under the Victim Compensation Act. The period of detention already

undergone by the accused prior to filing of final report in the investigation is to

be set off under Section 428 of Cr.P.C.

Thiru.Jayasingh was appointed as the Learned Aid Counsel for the

https://www.mhc.tn.gov.in/judis Respondent/Accused by the Legal Services Authority attached to the Madurai

Bench of this Court. For the services rendered by Thiru.Jayasingh, he is to be

paid his legal fees as per the rules. The Legal Services Authority attached to

the Madurai Bench of this Court is directed to pay the fees to the services

rendered by Thiru.Jayasingh. Accordingly, his services are appreciated for

disposing of the case.

04.02.2022

Srm/dh Copy to:

1.The District and Sessions Judge, Thoothukudi.

2.The Assistant Sessions Judge, Thoothukudi.

3.The District Collector, Thoothukudi.

(For payment of compensation to Victim under Victim Compensation Act)

4.The Superintendent of Police, Thoothukudi. (For reference)

5.The Deputy Superintendent of Police, Thoothukudi.

6.The Inspector of Police, Pudur Police Station, Thoothukudi District.

7.The Superintendent, Central Prison, Palayamkottai.

([email protected])

SATHI KUMAR SUKUMARA KURUP.J.,

https://www.mhc.tn.gov.in/judis srm/dh

CRL.A.(MD)No.298 of 2015

04.02.2022

https://www.mhc.tn.gov.in/judis