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Esu @ Essaiyya Vs. State Rep. by Inspector of Police, Patabiram Police Station Thiruvallur District - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberCrl.A.No. 120 of 2012
Judge
AppellantEsu @ Essaiyya
RespondentState Rep. by Inspector of Police, Patabiram Police Station Thiruvallur District
Excerpt:
.....of andhra pradesh. pw1 is the mother of the victim; pw2 is the father of the victim and pw3 is the victim girl. pws.1 to 3 and the accused were neighbours. pws.1 and 2 were going to their work in the morning leaving the victim girl in the house. the victim girl was aged about 12 years at the time of occurrence and studied upto iv standard. after that, she discontinued her studies. the victim girl used to go to the house of the accused to watch tv, who was her neighbour. 4. at this juncture considering her age of the victim girl and her helplessness, the accused without her consent, raped the victim girl due to which, the victim girl lost menstruation. hence, pw2/mother of the victim girl, took her to the hospital. thereafter, she came to know that her daughter was pregnant. then, pw1.....
Judgment:

(Prayer: Criminal Appeal filed to set aside the Judgment of the Additional District and Sessions Court, Fast Track Court No.III, Thiruvallur in S.C.No.59/2009, dated 28.12.2011.)

1. The Criminal Appeal has been filed to set aside the Judgment and order of the Additional District and Sessions Court, Fast Track Court No.III, Thiruvallur in S.C.No.59/2009, dated 28.12.2011.

2. The appellant herein is the accused in in S.C.No.59 of 2009 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.III, Thiruvallur. The Trial Court had framed the charges against the accused for the offences under Section 376 of IPC. By Judgment dated 28.12.2011, the Trial Court convicted him under the charges framed against him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.5000/-, in default, to undergo six months rigorous imprisonment for the offences u/s.376 of IPC. The period of sentence already undergone by the accused was set off u/s.428 of Cr.P.C. Challenging the said conviction and sentence, the appellant/accused is before this Court with the present Criminal Appeal.

3. The case of the prosecution in a nutshell is that:PWs.1, 3 and the accused were belonging to the same community and they are sanitary workers. They are originally belonging to the State of Andhra Pradesh. PW1 is the mother of the victim; PW2 is the father of the victim and PW3 is the victim girl. Pws.1 to 3 and the accused were neighbours. Pws.1 and 2 were going to their work in the morning leaving the victim girl in the house. The victim girl was aged about 12 years at the time of occurrence and studied upto IV standard. After that, she discontinued her studies. The victim girl used to go to the house of the accused to watch TV, who was her neighbour.

4. At this juncture considering her age of the victim girl and her helplessness, the accused without her consent, raped the victim girl due to which, the victim girl lost menstruation. Hence, PW2/mother of the victim girl, took her to the hospital. Thereafter, she came to know that her daughter was pregnant. Then, PW1 made an enquiry and lodged a complaint on 6.4.2000 against the accused before the Pattabiram Police Station, Tiruvallur District. The Inspector of Police, Pattabiram Police Station received the complaint from PW1/mother of the victim girl and registered the case in Cr.No.281/2000 for the offence under Section 376 of IPC and they sent the FIR and complaint to the court. Then, he proceeded to the place of occurrence on 06.04.2000 and he examined the witnesses - the victim girl/PW3 and her parents and recorded their statements. He made an analysis to send the victim girl for medical examination to the Chengalpet Government Hospital. He examined the Doctor/ Parasakthi(PW6) and recorded the statement and received report (Ex.P3) from her. Subsequently, on information, he arrested the accused and recorded his statement. Then he sent the accused for medical examination to the Government Hospital, Chengalpet. Then he was subsequently transferred to some other station, hence, he handed over the file to PW8 for further investigation. On receipt of the same, PW8 after completing investigation on 21.03.2001, has laid the charge sheet before the Judicial Magistrate II, Tiruvallur and the case was committed to the Sessions Court.

5. Based on the above materials, the trial court had framed charges against the accused for the offences u/s.376 of IPC. The accused denied the same. In order to prove the case of the prosecution, as many as 8 witnesses from PW1 to PW8 have been examined and 4 documents from Exs.P1 to P4 have been exhibited and no material objects have been marked on the side of the prosecution.

6. Out of the said witnesses, PW1, who is the mother of the victim, has spoken about the complaint given before the Pattabiram Police Station. PW2 is the father of the victim and he has corroborated the evidence of PW1. PW3 is the victim girl and she has spoken about the occurrence. PW5 is the doctor, who has spoken about the examination of the accused and given a medical report (Ex.P2). PW6 is the doctor and she has spoken about the examination of victim girl and given a certificate Ex.P3. The certificate reveals that the victim girl was pregnant at the time of her examination. PW7 is the Inspector of Police and he has spoken about registration of the FIR and arrest of the accused. The PW8 is the then Inspector of Police who has spoken about further investigation and filed charges before the Learned Magistrate.

7. The accused has been examined u/s.313 Cr.P.C.,With reference to the incriminating materials put forth before him, he has denied the allegation made against him. His defence is the one of total denial of the allegation made against him and hence, the trial court convicted and sentenced the accused as noticed herein above.

8. I have heard the learned counsel appearing for the appellant and learned Additional Public Prosecutor appearing for the respondent. I have also perused the available materials on record carefully.

9. The learned counsel for the appellant would submit that there are certain contradictions between the witnesses that would make their evidence untenable. He would further submit that the PWs.1 and 2 are not eye witnesses. Their evidence is only hear say evidence and the same is not admissible in the eye of law. He would further submit that the age of the victim girl has not been proved and no birth certificate was produced by prosecution. Even as mentioned above, PW6/doctor, who has examined the victim girl has stated that she could not fix the age of the victim. No injury was found in the private parts of the victim girl and also the accused. Therefore, under such circumstances, the prosecution has not proved the case beyond all reasonable doubt. The benefits of doubt goes in favour of the accused and he prays for the acquittal of the accused.

10. Learned Additional Public Prosecutor appearing for the respondent vehemently opposed the Appeal and he would submit that PW1 has categorically spoken about the entire occurrence, which is duly corroborated with the evidence of PW6/doctor, who has examined the victim girl and Ex.P3 medical certificate proved that the victim girl was pregnant at the time of complaint. Thus, according to the learned Additional Public Prosecutor, the conviction and sentence of the appellant does not require any interference at the hands of this court.

11. I have considered the above submissions made by both the learned counsel on either side and perused the materials available on record. PW6, the doctor who has examined the victim girl gave certificate of Examination for sexual offence/ Ex.P3. She has deposed that the victim girl was examined and she was pregnant whose foetus size was 30 to 32 weeks formed in the uterus and hymen was found not intact and her vagina admitted two fingers. Therefore, from the evidence of the doctor it is proved that the appellant has committed the offence of rape.

12.Evidence of PW3 and Ex.P3 proves that at the time of examination of the victim girl, the foetus was about 30-32 weeks and hymen was not intact; the victim girl was subject to the sexual intercourse. PW1 is the mother of the victim girl and she has spoken about the complaint and she has deposed before the court that since her daughter had not menstruated, herself and wife of the accused have taken the victim girl to the hospital. When the doctor after examining the victim girl had stated that the victim girl was pregnant. When she was enquired by PW1, she stated that the accused was the cause for pregnancy and then they made the complaint before the police staton.

13. PW2/ father of the victim girl has deposed that the accused is the neighbour to him. His daughter used to go to the house of the accused for watching television. Sometimes, she used to sleep there itself. The accused raped her minor daughter. She became pregnant. One day, she told that she is suffering from stomach pain and so, she was taken to the hospital by his wife and wife of the accused. Then she was declared pregnant.

14. PW3 deposed that the she used to go to the house of the accused for watching television. During the relevant period, one day, the accused taken her to the room, closed her mouth, removed her dress, made her to lean on the wall and committed rape. At that time, she has attained maturity. The same incident happened several times and she informed her mother that she was suffering from stomach pain. On check up, the doctor declared that she was pregnant. Then her parents gave a complaint with the Pattabiram Police Station.

15. PW4 is the neighbour and corroborated with the evidence of the PWs1 to 3. PW5 /Doctor Mururgesan, who has examined the accused and conducted the potentiality test and issued medical certificate for him that he has the potent (Ex.P7).

16. Now the question is as to what was the offence that the accused has committed in the said act. In this regard. it is relevant to refer the evidences of PWs.1, 6 and Ex.P3 which proves the fact that the accused only has committed the offence.

17. Considering the facts and circumstances of the case, this court finds that the accused has committed the offence u/s.376 of IPC and the trial court has correctly come to the conclusion that the accused only had committed the offence and convicted the accused and passed sentence to undergo 7 years rigorous imprisonment and to pay a fine of Rs.5,000, in default, to undergo six months imprisonment for the offence u/s.376 of IPC. There is no reason to set aside the conviction and sentence passed by the trial court against this accused .

18. Learned counsel for the appellant would submit that from the doctor's evidences, it is clearly proved that the accused and the victim had not sustained any injury on their private parts and in this case, the material objects have not been recovered and their evidences,( PW6 and Ex.P3) would show that the age of the accused was not fixed; no birth certificate has been produced and due to enmity with the accused family, they have foisted a false complaint against the accused. and no age proof is filed. The available evidences does not show that the victim girl is below 16 years. Therefore, the accused is entitled to get the benefit of doubt and he is entitled to acquittal under the score of benefit of doubt.

19. In this regard, this court is not believing the defence taken by the accused because on the date of preferring the complaint, the victim girl was produced before PW6/ Doctor before the Government Medical Hospital, Chengalpet. The doctor who examined her has given the certificate/Ex.P3 and she has also deposed before this court that the victim girl was pregnant and that the evidence of PWs.1 to 3 would show that even one day prior to the date of complaint when the victim girl made a complaint of stomach pain, she was brought to the government hospital for treatment and it was found that she was pregnant. This fact is known to the accused and his wife even prior to the date of complaint. After registering the case, she was produced before the Magistrate. After getting permission, the victim girl was produced before the Government Hospital. The Doctor /PW6, who has examined the victim girl stated that she was pregnant and the growth of foetus is about 30-32 weeks and hymen is not intact and two fingers were admitted. Therefore, it is not a disputed fact that the victim girl was not pregnant on the date of complaint and further the contention of the learned counsel for the defence regarding the age of the minor girl is concerned, though the prosecution has not produced the certificate for age proof, such as birth certificate or school certificate. But the evidence of PWs.1 to 3 would go to show that 8 months prior to the incidence only, she had attained puberty. Normally, girls attain puberty between the age of 12 to 14 years. PW6 has clearly deposed that because of the pregnancy of the victim girl, they did not conduct the radiology test to ascertain the age. If she was conducted the test, it will affect the victim girl as well as the foetus. It does not mean that the victim girl is above 16 years and also prosecution has failed to prove that the victim girl is under 16 years.

20. The evidences of the PWs.1 to 3 shows that at the time of occurrence she was aged about only 12-14 years and eight months prior to the date of occurrence, she had attained puberty. Therefore, non production of the birth certificate will not vitiate the case of the prosecution and once it is believed that age of the victim girl is below 16 years and it was found that she was pregnant on the date of complaint and further from the evidence of PWs.1 to 4, it is seen that the accused is the reason for her pregnancy. In this regard, it is relevant to refer the evidences of PW3. She has deposed that she used to go to the house of the accused to watch television. One day, the accused called her to a room, shut her mouth with his hands, made her lean on the wall, removed her dress and committed rape. He had done this act repeatedly. 21. From the evidence of PW3, it is proven fact that the accused had committed rape on the victim girl more than once repeatedly and also, she threatened the victim girl not to reveal the fact to anyone. Further, the learned counsel for the defence would submit that the complaint was given belatedly and FIR also lodged belatedly and during the evidence of DW1/ Wife of the accused has stated that due to enmity, they have foisted a false case. In this regard, this Court is not believing the statements made by the accused because the evidences of PWs.1 to 3 would go to show that even prior to the date of complaint, when the victim report stomach pain, the mother of the victim girl and wife of the accused only taken her to the hospital for treatment where she was declared as pregnant by doctor, who gave treatment to the victim girl. PW1/mother of the victim girl and DW1/ wife of the accused asked the victim girl who was the cause for her pregnancy. The victim girl told that the husband of DW1 is the cause for that. Therefore, under such circumstances, the defence taken by the accused is not acceptable one. The DW1 has not denied during her examination. Despite PWs.1 to 3 had deposed during their examination that DW1/wife of the accused had also accompanied the victim girl to the hospital, prior to the date of complaint, the fact was not denied by DW1 during her cross examination and further even the defence has not put to any suggestion before PWs.1 to 3 during their cross examination by suggesting that DW1 had not accompanied with PW1 and the victim girl prior to that of the complaint, when she was brought to the hospital for treatment. Therefore, the above said circumstances, submission made by the defence counsel is not acceptable from the evidences of PW3 and corroborated by the Pws.1, 2, 4 and coupled with the evidence of PW6/the doctor who had examined the victim girl and certificate given by her to PW3. The prosecution has clearly proved his case and the victim girl/minor was under 16 years. She has clearly spoken about the offence committed by the accused. Due to that, the victim girl was pregnant. Therefore, this court finds that the prosecution has proved its case beyond all reasonable doubt and the trial court has correctly convicted the accused u/s.376 of IPC. There is no reason to interfere with the judgment of the trial court. 22. The learned counsel for the appellant would further submit that the victim girl has got married and she is living with her husband and further the accused has got 3 children. He is the sole bread winner of the family. Therefore, the period of sentence may be reduced. Though the victim girl subsequently got married even after ten years of the incident, during the trial she has deposed as it is what had happened at the time of incident. It shows that the scar cannot be removed early. Considering the fact and circumstances of the case, this court is not inclined to show any leniency with regard to the quantum of sentence. 23. Considering the submissions made on either side and taking note of the fact that the offence committed by the accused/appellant is against the minor girl aged about 14 years which should not be taken lightly. Hence, this Court is not inclined to allow the appeal and consequently, the Criminal Appeal is dismissed and the judgment passed by the trial court is confirmed by the reasons assigned in this appeal.


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