Madras High Court
Siva Singh ... Revision vs The Inspector Of Police on 9 March, 2023
Crl.R.C(MD)No.849 of 2016
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 09.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.849 of 2016
and
Crl.M.P(MD)Nos.12327 & 12328 of 2016
Siva Singh ... Revision Petitioner/
Appellant/Sole Accused
Vs.
The Inspector of Police,
Thiruvattar Police Station,
Kanyakumari District.
Crime No.218/1999. ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records relating to
the Judgment in Crl.A.No.246 of 2004, dated 22.07.2016 on the file
of the Fast Track Mahila Court, Nagercoil and confirming the
Judgment in S.C.No.246 of 2001 dated 15.10.2004 on the file of the
learned Assistant Sessions Judge, Padmanabhapuram and set aside
the same.
For Petitioner : Mr.M.Subash Babu
Senior Counsel
for Mr.C.Susi Kumar
For Respondent : Mr.K.Sanjai Gandhi
Government Advocate (Crl. Side)
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Crl.R.C(MD)No.849 of 2016
ORDER
The revision has been filed to set aside the
Judgment in Crl.A.No.246 of 2004, dated 22.07.2016 on the
file of the Fast Track Mahila Court, Nagercoil, confirming the
Judgment in S.C.No.246 of 2001 dated 15.10.2004 on the file
of the learned Assistant Sessions Judge, Padmanabhapuram,
thereby convicted the petitioner for the offence under Section
376 of I.P.C and sentenced him to undergo seven years
Rigorous Imprisonment.
2.The case of the prosecution is that on 15.03.1999
at about 08.00 p.m., while the victim was alone in her house,
the accused went to the victim's house and asked for some
water. When she was about to provide water to him, he pulled
her hands and misbehaved with her. Though the victim
shouted and rushed into the room, the accused went into the
room and committed rape on her. Immediately after her
husband reaches the house, she informed him and had taken
to a private Hospital, where she was provided first aid. Since it
is a case of rape, the Doctor who had given first aid referred
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Crl.R.C(MD)No.849 of 2016
her to the Government Hospital. Immediately, she got
admitted and had undergone for medical examination. On the
complaint, the respondent registered the F.I.R in Crime No.218
of 1999 for the offence under Section 376 of I.P.C. After
completion of the investigation, filed a final report and the
same has been taken cognizance in S.C.No.246 of 2001 on the
file of the learned Assistant Sessions Judge,
Padmanabhapuram.
3.On the side of the prosecution, they had
examined P.W.1 to P.W.13 and marked Exs.P.1 to P.13 and the
prosecution also marked M.O.1 and M.O.2 and on the side of
the petitioner, no one was examined, and no materials were
produced before the trial Court.
4.On perusal of the oral and documentary evidence,
the trial Court found the accused guilty for the offence under
Section 376 of I.P.C and sentenced him to undergo seven years
Rigorous Imprisonment. Aggrieved by the same, the petitioner
preferred an appeal in Crl.A.No.246 of 2001 on the file of the
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Crl.R.C(MD)No.849 of 2016
Fast Track Mahila Court, Nagercoil and the Appellate Court
dismissed the appeal thereby confirming the conviction
imposed by the trial Court. Hence, the present Revision.
5.Mr.M.Subash Babu, learned Senior Counsel
appearing for the petitioner, would submit that the Appellate
Court confirmed the Judgment passed by the trial Court,
without even hearing the arguments of the learned counsel
appearing for the appellant. Though the Appellate Court
passed the Judgment on merits, the appellant should be heard
in order to appreciate the evidence. The Doctor-P.W.10, who
had examined the victim, deposed that victim's hymen is not
intact and it is an old one. There is no injury on her uterus and
there is no injury on her private part finally, opined that there
was no physical relationship in short while. Therefore, there
was no rape committed by the petitioner and there was an
attempt. Therefore, the conviction under Section 376 of I.P.C
cannot be sustained and at worst, he can be convicted for the
offence punishable under Section 376 r/w 511 of I.P.C.
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Crl.R.C(MD)No.849 of 2016
6.The learned Senior Counsel appearing for the
petitioner further submitted that P.W.1-victim had admitted in
her cross-examination that she did not restrain the petitioner
who headed into her house. She allowed him to come inside
the house. Further, her evidence is not corroborated by any
other evidence. According to the prosecution, the victim was
taken to the hospital by Auto by her husband. However, the
prosecution failed to examine the driver of the Auto in order to
prove that immediately after the occurrence, the petitioner
went to the hospital. In fact, the Doctor-P.W.9, who examined
the victim, failed to record anything in the accident register
and no intimation was given to the concerned jurisdictional
police, since the petitioner alleged to have committed a very
serious offence against the victim. She also deposed that she
did not give any outpatient card or any certificate to
substantiate the allegations made by the victim. The
prosecution had examined P.W.1 to 13 in which the victim was
examined as P.W.1. In order to corroborate her evidence, her
husband was examined as P.W.3. In support of his contention,
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Crl.R.C(MD)No.849 of 2016
he relied upon the following Judgments:-
“1.State of Madhya Pradesh Vs.
Mahendra alias Golu (Criminal Appeal No.1827
of 2011).
2.R.Sathiyavani Vs. the Inspector of
Police and two others (Crl.A.No.570 of 2019,
dated 25.06.2021).”
7.The learned Government Advocate (Criminal Side)
appearing for the respondent would submit that it is a clear
case of rape and the trial Court had taken cognizance for the
offence under Section 376 of I.P.C. The Doctor, who had given
first aid to the petitioner, was examined as P.W.9. He
categorically deposed that the victim came to the hospital on
the allegation that she was raped by the petitioner herein. He
administered a drip to the victim and referred her to the
Government Hospital, since it is a case of rape there are
procedures to be followed. The victim categorically deposed
that the petitioner raped her and as such, no question of
attempted to commit rape. Therefore, he prayed for the
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Crl.R.C(MD)No.849 of 2016
dismissal of the revision.
8.Heard the learned counsel appearing on either
side and perused the materials available on record.
9.On 15.03.1999, at about 08.00 p.m., the victim
was alone in her house. The petitioner went to her house and
he asked for water and as such, the victim went into the
kitchen and brought water. After consuming water, the
petitioner pulled her hands and attempted to misbehave with
her. Immediately, she went inside the room and the petitioner
also followed the victim and closed the door. Thereafter, he
committed rape on her. On perusal of the deposition of P.W.1,
she deposed as follows:-
“rptrpq; tPl;oDs; te;J Fof;f fQ;rpjz;zp ntz;Lk;
vd;W nfl;lhd;. ehd; vLj;J te;J bfhLj;njd;. brk;gpy; ,Ue;j fQ;rp
bts;sj;ij thq;fp bfhQ;rk; Foj;Jtpl;L vd;dplk; mij jpUg;gp
je;Jtpl;L vd;Dila ifia gpoj;J bfhz;L vd;id gyte;jg;gLj;jpdhd;.
Kaw;rpj;jhd;. ehd; ma;nah vd;W rj;jk; nghl;Ltpl;L Ukpw;Fs;
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Crl.R.C(MD)No.849 of 2016
Xo vd;id ,Gj;J gyte;j Kaw;rpf;f fPnH js;spnghl;L thia gpd;
gf;fk; ,Ue;j xU Jzpia vLj;J bghj;jpdhd;. mtd; Kfj;ij vd;Dila
Kfj;Jld; nrh;j;jhd; ehd; Kfj;Jld; nrh;f;ftpy;iy. ehd; jpkph;ndd;.
mtd; iftpuy; vd; ,U khh;g[ gf;fj;ij gpoj;J ehd; cLj;jpUe;j
iel;oia ,Lg;gpd; nky; cah;j;jp mtd; Mz; cWg;ig vLj;J vd; bgz;
cWg;gpy; itj;J mirj;J Ml;odhd;. vdf;F
mUtUg;g[ mtkhdkhft[k; ,Ue;jJ. ehd; vt;tsnth jpzwpa[k; vd;id
tpl;LtpL vd;W bfQ;rp nfl;Lk; vjphp vd;id tpltpy;iy. vd; rj;jj;ij
nfl;L vjphp tplhky; vd;id bfLj;Jtpl;lhd;.”
10.Immediately, the petitioner shouted, on hearing
this, her mother rushed to her house. She also found the
petitioner while he was inside the house after committing rape
on the victim. She also sustained injuries on her face and on
her right hand. At about 09.00 p.m., her husband reached the
house and after hearing the occurrence, immediately the
victim was taken to Kesav Hospital, since she suffered pain in
her entire body.
11.In Kesav Hospital, P.W.9 was working as a duty
Doctor and the victim was treated by him. He deposed that he
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Crl.R.C(MD)No.849 of 2016
had given an injection for her body pain, headache and
tiredness. Since it is a case of rape, he referred the victim to
the Government Hospital. Thereafter, the victim went to the
Government Hospital and P.W.10, treated the victim. She
deposed that the victim sustained wound on her right-hand
elbow nail and wound on her right face. Her hymen was not
intact and it was an old one. Her uterus found no injuries. The
other tests were conducted and found that there was no
evidence to had physical sexual intercourse in recent times.
Admittedly, she was taken to the Hospital the next day of the
occurrence. That apart, she is a married lady and as such,
there might not have been any fresh injuries on her vagina.
She also gave birth to a child long ago. But the injuries
sustained by her were clearly corroborated by P.W.10. Her
mother was examined as P.W.2. She corroborated the evidence
of P.W.1, since she had seen the petitioner inside the house of
the victim. Her husband was examined as P.W.3. Immediately,
when he reached his house, the victim informed about the
occurrence, and he was taken care to Kesav Hospital and
corroborated the evidence of P.W.1 and P.W.2. When P.W.1
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Crl.R.C(MD)No.849 of 2016
herself categorically stated that she was raped by the
petitioner and other evidence also supported her version, there
is no question of attempted to commit rape.
12.The learned Senior Counsel appearing for the
petitioner vehemently contended that the Doctor-P.W.10, who
treated the victim deposed that there was no sign of sexual
intercourse in a short period, and the injuries sustained by the
victim proved that there was an attempt made by the
petitioner and there was no rape. In support of his contention,
he relied upon the Judgment of the Honourable Supreme Court
of India in State of Madhya Pradesh Vs. Mahendra alias Golu
(Criminal Appeal No.1827 of 2011), in which, the Honourable
Supreme Court of India held that “in every crime, there is first,
mens rea (intention to commit), secondly, preparation to
commit it and thirdly, attempt to commit it. If the third stage,
that is, 'attempt' is successful, then the crime is complete. If
the attempt fails, the crime is not complete, but the law still
punishes the person for attempting the said act. 'Attempt' is
punishable because even an unsuccessful commission of
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Crl.R.C(MD)No.849 of 2016
offence is preceded by mens rea, moral guilt, and its depraving
impact on societal values is no less than the actual
commission”. Further, the Honourable Supreme Court of India
held that “sexual intercourse with a woman below 16 years,
with or without her consent, amounted to 'rape' and mere
penetration was sufficient to prove the such offence. The
expression 'penetration' denotes the ingress of the male organ
into the female parts, however slight it may be. Penetration is
the sine qua non for an offence of rape. In order to constitute
penetration, there must be evidence clear and cogent to prove
that some part of the virile member of the accused was within
the labia of the pudendum of the woman, no matter how
little”.
In the above case, there were two victims and even according
to the victims, the accused was rubbing his genitals on the
victims. Therefore, the Honourable Supreme Court of India
held that those acts of the accused were deliberately done with
the manifest intention to commit the offence aimed and were
reasonably proximate to the consummation of the offence.
Since the acts of the accused exceeded the stage beyond
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Crl.R.C(MD)No.849 of 2016
preparation and preceded the actual penetration, convicted
him for attempting to commit rape as punishable within the
ambit and scope of Section 511 read with Section 375 of I.P.C.,
whereas, in the case on hand, as stated supra, the victim
categorically deposed that she was raped by the petitioner and
there is absolutely no question of attempted to commit rape.
13.When the victim herself is deposed, there is no
question of other possibilities of attempting to commit rape. In
fact, the petitioner had completely denied the charge and now,
he admitted that he went inside the house of the victim and
attempted to commit rape. Therefore, the Judgments cited by
the learned Senior Counsel appearing for the petitioner are not
applicable to the case on hand. Hence, the Courts below rightly
convicted the petitioner for the offence punishable under
Section 376 of I.P.C and this Court finds no infirmity or
illegality in the order passed by the Courts below.
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Crl.R.C(MD)No.849 of 2016
14.Accordingly, this Criminal Revision Case is
dismissed. Consequently, connected Miscellaneous Petitions are
closed.
09.03.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
To
1.The Fast Track Mahila Court,
Nagercoil.
2.The Assistant Sessions Judge,
Padmanabhapuram.
3.The Inspector of Police,
Thiruvattar Police Station,
Kanyakumari District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C(MD)No.849 of 2016
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.849 of 2016
09.03.2023
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