Madras High Court
Dharmaraj vs State Rep By on 10 October, 2022
Crl. A(MD)No.66 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated 10.10.2022
CORAM:
THE HONOURABLE Mrs.JUSTICE J.NISHA BANU
AND
THE HONOURABLE Mr. JUSTICE N.ANAND VENKATESH
Crl. A. (MD)No.66 of 2020
Dharmaraj .. Appellant
Vs.
State rep by
The Inspector of Police,
All Women Police Station,
Kulithalai
Karur District.
(Crime No. 02 of 2014) .. Respondent/Complainant
Appeals filed under Section 374 of Criminal Procedure Code, against
the judgment and order dated 31.03.2015 in S.C.No.7 of 2014 on the file of
the Mahila Court, Sessions Judge, Karur.
For Appellant : Mr.E.Somasundaram
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
1/15
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Crl. A(MD)No.66 of 2020
JUDGMENT
J.NISHA BANU
AND
N.ANAND VENKATESH
This criminal appeal has been preferred against the judgment and
order dated 31.03.2015 in S.C.No.7 of 2014 on the file of the Mahila Court,
Sessions Judge, Karur, whereby, the appellant was convicted and sentenced
as follows:
Provisions under Sentence Fine amount
which convicted
366 IPC To undergo rigorous Rs.1,000/-, in
imprisonment for ten default, to undergo
years simple imprisonment
for three months
506(i) IPC To undergo simple -
imprisonment for one
year
Section 5(m) read To undergo Rs.1,000/-, in
with 6 of the POCSO imprisonment for life. default, to undergo
Act simple imprisonment
for three months.
The sentences were ordered to run concurrently.
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Crl. A(MD)No.66 of 2020
2. The case of the prosecution is that on 12.04.2014 at about 11.00
a.m., when the victim girl [P.W.-2] aged about 10 years was staying alone in
her house, the appellant called her in the guise of handing over the
photographs and visiting card to the father of the victim and believing his
words, the victim girl went along with the appellant in his two wheeler
(M.O.6) and the appellant is said to have taken the minor girl to a shop and
purchased soft drinks packets and thereafter taken the victim girl to a
secluded place and removed the dress of the victim girl. In the course of the
said act, the appellant had committed aggravated sexual assault on the
victim girl.
3. A complaint (Ex.P1) was given by the mother (P.W.1) of the victim
girl and based on the same, an FIR (Ex.P22) came to be registered by
P.W.21. The statement of the victim girl and her mother was recorded under
Section 164 Cr.P.C. by the Judicial Magistrate, Kulithalai (P.W.16). On
completion of investigation, the final report came to be laid before the
Judicial Magistrate, No.I, Kulithalai and the case was forwarded to the
Special Court.
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Crl. A(MD)No.66 of 2020
4. The Court below framed charges against the appellant for offences
under Sections 366 and 506(i) IPC and under Section 5(m) read with
Section 6 of the Act. The prosecution examined P.W.1 to P.W.22 and
marked Ex.P1 to Ex.P25 and identified and marked M.O.1 to M.O.6 to
establish their case. The Court below questioned the appellant by putting
the incriminating materials that were gathered in the course of trial and the
appellant denied the same as false. Taking into consideration the facts and
circumstances of the case and on appreciation of evidence, the Court below
convicted and sentenced the appellant in the manner indicated above and
aggrieved by the same, the present appeal has been filed before this Court.
5. Heard the learned counsel for the appellant and the learned
Additional Public Prosecutor appearing for the State.
6. The learned counsel for the appellant made the following
submissions:
● There was a prior enmity between the parties and hence, a false case
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Crl. A(MD)No.66 of 2020
has been foisted against the appellant ;
● The prosecution on the one hand talks about the purchase of soft
drink (rasna) packets, whereas, the victim girl has stated that they
purchased ice cream ;
● There is a contradiction as to how the complaint was given as
between the evidence of P.W.1 and P.W.21 ;
● The incident had taken place on 12.04.2014, whereas there is a
substantial delay in recording Section 164 Cr.P.C. statement of the
victim girl and her mother on 09.06.2014 ; and
● The Court below had imposed the maximum sentence of life
imprisonment even without considering the explanation given by the
appellant and even if the conviction is upheld, the sentence has to be
reduced/modified.
7. Per contra, the learned Additional Public Prosecutor appearing on
behalf of the State, by placing reliance upon the judgment of the Apex Court
in State of Punjab v. Gurmit Singh reported in 1996 SCC Crl. 316,
submitted that the evidence of the victim girl inspires the confidence and
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Crl. A(MD)No.66 of 2020
hence, the appellant is liable to be convicted and sentenced on that ground
alone. The learned Additional Public Prosecutor further submitted that the
evidence of the Doctor, who was examined as P.W.13 corroborated the
evidence of the victim girl P.W.2. M.O.3 to M.O.5 are the clothes belonging
to the accused, which contain the bloodstains of the victim girl and it is
clear from Ex.P15 and Ex.P17 that the blood group of the victim girl
matched the bloodstains found in the clothes. The victim girl was aged
about 10 years and hence, this case clearly falls within the requirements of
Section 9 (m) of the Act and even if there was no penetration as contended
by the learned counsel for the appellant, the appellant had used his finger on
the vagina of the victim girl, which caused bleeding and the same will also
amount to penetrative sexual assault as per Section 3(b) of the Act. The
learned Additional Public Prosecutor concluded his arguments by
submitting that the appellant has not discharged the burden cast on him
under Sections 29 and 30 of the Act and hence, the Court below was
perfectly right in convicting and sentencing the appellant to undergo life
imprisonment.
8. This Court carefully considered the submissions made on either
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Crl. A(MD)No.66 of 2020
side and perused the materials available on record.
9. In the present case, the most important evidence that has to be
taken into consideration by this Court is the evidence of the victim girl, who
was examined as P.W.2. The victim girl has cogently explained the entire
incident and also in the statement given by her before the learned Magistrate
under Section 164 Cr.P.C. The evidence of P.W.2 has not been assailed
during cross-examination and the minor contradictions on her conscious
state after the incident and the complaint given by her mother does not in
any way discredit the evidence of PW.2. Section 164 Cr.P.C. statement
recorded from the victim girl by P.W.16, which was marked as Ex.P4,
further corroborates the evidence of the victim girl.
10. It will be apposite to take note of the judgment of the Apex Court
in State of Punjab v. Gurmit Singh reported in 1996 SCC Crl. 316 in this
regard. The Apex Court has cautioned that in cases involving sexual
molestation, it is the duty of the Court to deal it with utmost sensitivity,
hence minor contradictions or insignificant discrepancies in the statement of
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Crl. A(MD)No.66 of 2020
the prosecutrix should not be a ground for throwing out an otherwise
reliable prosecution cases. Insofar as the appreciation of evidence of the
prosecutrix is concerned, it was held as follows:
“8. ... The testimony of the victim in such cases is vital
and unless there are compelling reasons which necessitate
looking for corroboration of her statement, the courts should
find no difficulty to act on the testimony of a victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the same,
as a rule, in such cases amounts to adding insult to injury.
Why should the evidence of a girl or a woman who complains
of rape or sexual molestation, be viewed with doubt, disbelief
or suspicion? The court while appreciating the evidence of a
prosecutrix may look for some assurance of her statement to
satisfy its judicial conscience, since she is a witness who is
interested in the outcome of the charge levelled by her, but
there is no requirement of law to insist upon corroboration of
her statement to base conviction of an accused. The evidence
of a victim of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is even more
reliable. Just as a witness who has sustained some injury in
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Crl. A(MD)No.66 of 2020
the occurrence, which is not found to be self-inflicted, is
considered to be a good witness in the sense that he is least
likely to shield the real culprit, the evidence of a victim of a
sexual offence is entitled to great weight, absence of
corroboration notwithstanding. Corroborative evidence is not
an imperative component of judicial credence in every case of
rape. Corroboration as a condition for judicial reliance on the
testimony of the prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances. It must not
be overlooked that a woman or a girl subjected to sexual
assault is not an accomplice to the crime but is a victim of
another person's lust and it is improper and undesirable to test
her evidence with a certain amount of suspicion, treating her
as if she were an accomplice. Inferences have to be drawn
from a given set of facts and circumstances with realistic
diversity and not dead uniformity lest that type of rigidity in
the shape of rule of law is introduced through a new form of
testimonial tyranny making justice a casualty. Courts cannot
cling to a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex
crime strikes the judicial mind as probable.”
11. In the present case, apart from the evidence of the victim girl
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Crl. A(MD)No.66 of 2020
(P.W.2), which certainly inspires the confidence of this Court, the evidence
of the Doctor, who was examined as P.W.13, clearly corroborates the
version given by the victim girl. On examination of the victim girl, the
Doctor has recorded the following injuries in the Accident Register
(Ex.P12):
“1.On 12.04.2014, EVA – Duration 1 hr
Findings: (1) Both side posterior fornix 2 x 1 cm tear
present and the same sutured with 2.0 chromic catgut. (2)
lacerated wound of above 4 x 4 cm extending from the
fourchette up to the perineum and the same sutured with 2.0
chromic catgut. Rectum intact. Bladder cathetherised, clear
urine drained at end of surgery.
1.ghjpf;fg;gl;l rpWkpf;F clypy; fhaq;fs; cs;sd.
Bruise over both breast, both side posterior fornic tear 2 x 1
cm.
2.ghjpf;fg;gl;l rpWkp fw;gopf;fg;gl;Ls;shh;.
fd;dpj;jpiu fpope;Js;sJ.
3.Semen analysis gz;z Kbatpy;iy. Vndd;why;
gpwg;G cWg;gpy; cjpug;Nghf;F ,Ue;jJ.”
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Crl. A(MD)No.66 of 2020
12. Apart from the above, the evidence of P.W.3 to P.W.6 also
supports the case of the prosecution and it is in line with the version given
by the victim girl. The clothes that were recovered from the appellant at the
time of his arrest and marked as M.O.4 to M.O.6 under Ex.P8 Mahazar also
contained bloodstains and it is clear from Ex.P15 and Ex.P.17 that the same
matched with the blood group of the victim girl.
13. Insofar as the offence under Section 5 of the Act is concerned,
there is a legal presumption under Section 29 of the Act and the Court shall
presume that the person, who is prosecuted for committing the offence, has
committed the offence, unless the contrary is proved. That apart, there is
also a presumption of culpable mental state under Section 30 of the Act.
The appellant has not dislodged the statutory presumption and that apart the
prosecution has proved the case beyond reasonable doubts against the
appellant. In view of the same, this Court does not find any ground to
interfere with the conviction made by the Court below against the appellant
and the Court below has given cogent reasons after analyzing the evidence
on record.
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Crl. A(MD)No.66 of 2020
14. The learned counsel for the appellant urged this Court to consider
reducing the sentence on the ground that Section 6 of the Act, as it stood
prior to the amendment, which came into effect from 16.08.2019, the
punishment extended from 10 years, which can go up to life imprisonment.
The Court below, without considering the facts and circumstances of the
case and the plea made by the appellant, while being questioned on the
sentence, proceeded to impose the maximum sentence of life imprisonment
against the appellant.
15. In the present case, the victim girl was aged 10 years and the same
is clear from the evidence of P.W.20 through whom Ex.P19 to Ex.P21 were
marked. The penetrative sexual assault has been committed against the
child below 12 years and hence it attracts Section 5(m) of the Act. The
Court below on considering the age of the victim girl and the gravity of the
offence, which involved the depraved mind of the appellant, thought it fit to
impose the maximum sentence of life imprisonment. The appellant is said
to be married and he has two small kids. That apart the appellant had
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Crl. A(MD)No.66 of 2020
undergone sentence for nearly 8½ years. In view of the same, this Court is
inclined to modify the sentence insofar as the offence under Section 5(m)
read with Section 6 of the Act. There is no ground to interfere with the
sentence imposed for offence under Section 366 IPC.
16. In view of the above discussion, the conviction against the
appellant is sustained and the sentence is modified in the following manner:
a) The conviction and sentence imposed under Section 366 IPC is
hereby confirmed;
b) The conviction under Section 5(m) and Section 6 of the Act is hereby
sustained and the appellant is sentenced to undergo 12 years rigorous
imprisonment without remission;
c) The sentence of fine imposed by the trial Court stands confirmed.
d) The sentences are ordered to run concurrently; and
e) The period of sentence already undergone by the accused/appellant is
ordered to be set off under Section 428 Cr.P.C.
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Crl. A(MD)No.66 of 2020
17. In the result, the criminal appeal is allowed in part to the extent
indicated above.
[J.N.B., J.] & [N.A.V., J.]
10.10.2022
Index : Yes
Internet : Yes
RR
To
1.The Mahila Court, Sessions Judge, Karur.
2.The Inspector of Police,
All Women Police Station,
Kulithalai
Karur District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl. A(MD)No.66 of 2020
J.NISHA BANU, J
AND
N.ANAND VENKATESH, J
RR
Judgment made in
Crl. A. (MD)No.66 of 2020
10.10.2022
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