Sie sind auf Seite 1von 22

LatestLaws.

com

Criminal Appeal No.383 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Judgment Reserved on 28.09.2019


Judgment Pronounced on 19.10.2019

CORAM:
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN

CRIMINAL APPEAL No.383 OF 2017

Ganapathy ... Appellant/Accused

-vs-

State, represented by
Inspector of Police,
Nagoor Taluk, Nagoor. ... Respondent/Complainant
(Crime No.538 of 2011)

Criminal Appeal filed under Section 374(2) Cr.P.C. against the order of
conviction passed by the Magalir Fast Track Court, Nagapattinam, in
S.C.No.29 of 2013, dated 30.06.2014, convicting the Appellant for ten years
Rigorous Imprisonment with fine of Rs.2,000/- or in lieu to undergo One Year
Simple Imprisonment for the alleged offence punishable under Section 376(2)
of the Indian Penal Code, acquit the accused/appellant of the charges
levelled against him.

For Appellant : Mr.M.L.Ramesh

For Respondent : Mr.C.Raghavan


Government Advocate (Crl. Side)

JUDGMENT

The Appellant is the sole accused in S.C.No.29 of 2013 on the file of

the learned Magalir Fast Track Court, Nagapattinam. He stands convicted for

the offence under Section 376(2) of the Indian Penal Code and sentenced to

undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.2,000/-,

http://www.judis.nic.in
Page No.1 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

in default, to undergo Simple Imprisonment for one year. Challenging the

same, the Appellant is before this Court with this Appeal.

2. The case of the prosecution is that, on 26.09.2011, around 5

p.m., when P.W.3, a five year old girl studying in I Standard in

Rarathimangalam Primary School, was playing with her friends near a Church,

the Appellant lifted P.W.3, kept her on his lap and committed rape on her.

On the basis of the statement (Ex.P1) given by P.W.1 - mother of the victim,

P.W.11 - Sub-Inspector of Police, Nagoor Police Station, registered a case in

Crime No.538 of 2011 for the offence under Section 376(2) I.P.C.

3. During the trial, in order to establish the charges, the

prosecution examined 15 witnesses as P.Ws.1 to 15 and exhibited 8

documents as Exs.1 to 8. P.W.1 is the mother of the minor victim girl;

P.W.2 is the father of the minor victim girl; P.W.3 is the victim girl herself;

P.W.4 is an eye-witness according to the victim girl; P.W.5 is the relative of

P.Ws.1 and 2; P.Ws.6 and 7 are Panchayatdars; P.W.8 is the Co-ordinator of

Child Helpline; P.W.9 is the Doctor, who registered the incident at the first

instance and referred the victim girl to another Hospital; P.W.10 is the

Doctor at the other Hospital; P.W.11 is the Sub-Inspector of Police, who

registered the F.I.R. and conducted the first enquiry; P.W.12 is the Doctor,

http://www.judis.nic.in
Page No.2 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

who treated the minor victim girl; P.Ws.13 and 15 are Inspectors of Police,

who conducted the enquiry and filed charge sheet and P.W.14 is the Doctor,

who examined the Accused.

4. P.Ws.4, 5, 6 and 7 did not support the case of the prosecution

in any manner and therefore, they were treated as hostile and allowed to be

cross-examined by the Additional Public Prosecutor. Regarding the

incriminating evidence spoken to by P.W.3 together with the evidences of

Medical Officers P.Ws.9, 10 and 12 and the other official witnesses, the

Appellant was questioned under Section 313 of Cr.P.C. He denied the

correctness of such incriminating evidence and did not chose to examine any

witness on his side. Having considered all the above evidences, the Trial

Court convicted and sentenced the Appellant, as stated supra.

5. Learned counsel for the Appellant assailed the findings of the

Trial Court on the following grounds:

(a) The F.I.R. was registered with a delay

of three days from the date of the alleged

occurrence and no explanation for the delay was

given in the F.I.R.

http://www.judis.nic.in
Page No.3 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

(b) P.W.10 – Doctor, who examined P.W.3 –

victim girl, had spoken that there was no indication

of any injury to her;

(c) Dress worn by P.W.3 – victim girl as

also that of the Appellant, were not sent for

examination;

(d) The eye-witness to the alleged

occurrence viz. Vicky had not been investigated and

cited as a witness;

(e) P.W.4 – eye witness, P.W.5 - relative of

P.Ws.1 and 2 and P.Ws.6 and 7 - Panchayatdars,

turned hostile.

6. Learned counsel for the Appellant further submitted that the

medical evidence does not corroborate the evidence of P.W.3, and that, out

of some other motive, the present case has been foisted against the

Appellant/Accused. Thus, according to him, the Appellant/Accused is

entitled for acquittal.

7. Learned Government Advocate (Crl. Side) vehemently opposed

the contentions of the learned counsel for the Appellant. According to him,

http://www.judis.nic.in
Page No.4 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

the delay in lodging a complaint is only on account of the fact that the

parents of P.W.3 – minor victim girl had initially approached the

Panchayatdars in respect of the alleged incident. As regards the contention

that P.W.10 – Doctor, who examined P.W.3 – minor victim girl, had spoken

that there was no indication of any injury to her, learned Government

Advocate submitted that since the victim girl was taken to P.W.10 - Doctor

for examination after three days of the alleged incident, no external injury

was visible and in such view of the fact, one cannot expect corroboration

from the medical evidence. He pointed out that, P.W.4 - neighbour of the

minor victim girl, in her evidence has stated that she has not witnessed the

alleged incident. So also, P.W.5 - relative of P.Ws.1 and 2, and P.Ws.6 and

7–Panchayatdars are only hearsay witnesses and are not direct witnesses to

the alleged incident. Thus, according to the learned Government Advocate,

there is no merit in the Criminal Appeal and the same is liable to be

dismissed.

8. I have carefully considered the above submissions and also

perused the records.

9. As regards the first issue that there was delay in lodging the

complaint by P.W.1, it is seen that P.W.1 – mother of the victim girl had

http://www.judis.nic.in
Page No.5 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

lodged a complaint on 28.09.2011, i.e. two days after the alleged incident.

P.W.11 – Sub-Inspector of Police enquired P.W.3 – minor victim girl, and

obtained statement from P.W.1 – mother of the victim girl and registered a

case in Crime No.538 of 2011 under Section 376 I.P.C. For the incident

which took place on 26.09.2011, First Information Report (F.I.R.) was

registered on 28.09.2011 and the same was forwarded to the Court on

29.09.2011.

10. The delay of two days in lodging a complaint against the Accused

cannot be said to be fatal to this case, as one cannot expect the victim to

rush to the Police Station with a complaint, because, rape of a girl will have

adverse effect not only on the body of the victim, but also on her modesty.

In a village situation, when it is alleged that a girl of tender age is raped,

neither the girl nor her parents would be tempted to rush to the Police

Station, immediately. It is a natural human conduct of the parents of the

victim to have some reluctance to rush to the Police station and to make the

entire event public, as it will have worst consequences on the future of the

child. Thus, in the considered view of this Court, the delay has been duly

explained and the said delay does not create any doubt at all in the case of

the prosecution.

http://www.judis.nic.in
Page No.6 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

11. As regards the second defence of the learned counsel for the

Appellant that no injury was found on P.W.3 - minor victim girl, when the

Doctors examined her, it is seen that P.W.9, who was working as an Assistant

Doctor in Government Primary Health Centre in Thirukannapuram,

Nagapattinam Taluk, recorded statement from P.W.3 - minor victim girl on

28.09.2011 at 11.30 a.m., as regards the alleged incident, and has deposed

that, the minor victim girl had stated that she has pain in both thighs and

also that, she has pain while getting up. The deposition of P.W.9 – Doctor as

regards the pain suffered by the victim girl in both thighs, reads thus:

"/// FHe;ij typ ,Ug;gjhf brhd;d J/ ,uz;L

bjhilap Y k ; typ ,Ue;jjhft[k; brhd;d J/ cl;fhh; e; J

vGe;jn g h J typ ,Ug;gjhft[k;. ft&;lg;gl;L vGe;j J/

///"

12. P.W.9 – Doctor further deposed that the female Nurse, who

examined the minor victim girl, has stated that the minor girl is not

bleeding. As no female Doctors were available in the said Health Centre,

P.W.9 – Doctor referred the minor victim girl to Nagapattinam Government

Hospital, and the Out-Patient Chit is marked as Ex.P2. In his cross-

examination, P.W.9 has stated that the pain suffered by the victim while

getting up, cannot be imitated.

http://www.judis.nic.in
Page No.7 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

13. P.W.10 – Chief Residential Doctor working in Mayiladuthurai

Government Hospital, who examined P.W.3 – minor victim girl on 29.09.2011,

deposed that no external injuries were found on the minor girl. He further

deposed that no blood stains would be found on the private part of a rape

victim, after four days of rape being committed on her, however, there are

chances of swelling.

14. Also, P.W.12 – Doctor, who was then working at Nagapattinam

Government Hospital, has deposed that he admitted P.W.3 – minor victim

girl for treatment on 28.09.2011 and provided first aid to her and thereafter,

female Doctors examined the minor victim girl. The Medical Certificate

issued by P.W.12 – Doctor is marked as Ex.P5. However, in the cross-

examination, P.W.12 – Doctor has deposed that the minor victim girl has not

stated that she has pain while getting up.

15. The minor victim girl has categorically stated before P.W.9 –

Doctor that, she has pain in both thighs and that, she has difficulty while

getting up. This Court cannot simply brush aside the deposition of P.W.9 –

Doctor in his chief-examination that, the minor victim girl had difficulty

while getting up and his deposition in the cross-examination that the pain

http://www.judis.nic.in
Page No.8 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

suffered while getting up, cannot be imitated. The evidence of P.W.10 –

Doctor that no blood stains would be found on the private part of a rape

victim, after four days of rape being committed on her, draws attention and

the same has to be necessarily relied upon. Thus, the second defence of the

learned counsel for the Appellant is negatived.

16. Before dealing with the other defence taken by the learned

counsel for the Appellant, for better appreciation of the case, this Court

feels it appropriate to extract the entire deposition of P.W.3 – minor victim

girl, in chief and cross-examination, as below:

Kjy; tpruhiz

ehd; uhuh e ;jpk';fyj;jpy; Fo a p U e ; J

tUfpn w d;/ v';fs; tPl;oy; mg;g h. mk;kh.

mz;zd;. mf;fh. jhj;jh Mfpn a hh; ,Uf;fpwh h;f s ;/

M$h; vjphp bg a h; fzgjp/ mtiu bjhp a[k;/

mth; uhuh e;jpk';fyj;jpy; Fo a p Uf;fp w h h ;/

ehd; goj;j !;Ty; gf;fj;jpy; kpl;lh a; fil

itj;jpUf;fp w h h;/ filapy; mth;. mth;

bghz;lhl;o ,Ug;gh s ;/ 1k; tFg; g[ goj; J f;

bfhz;oU e ; njd;/ 2 tUlk; 1k; tFg;g[ goj;njd;/ 4

kzpf;F !;Ty; tpl;L tPl;o w; F te;njd;/ iel;o

nghl;Lf; bfhz;L vd;Dila gpu!;f S ld;

tpis a h o n d d ;/ vd;Dila gpud;!; 4 ngh;/ Rkpj;.

http://www.judis.nic.in
Page No.9 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

uhfpzp. Rdpy;. RUjp Mfpna h Uld;

tpis a h o n d d ;/ mkph;jh vd;w mf;fh nghd;

ngrpf; bfhz;oU e ;jhh;/ mkph;jh tPl;ow; F

bts p a p y ; nghd; ngrpf; bfhz;oU e ;jhh;/

mkph;jh tPL nfhtp Yf; F gf;fj;jpy; c s ; s J/

ePjpkd; wj;jpy; cs; s me;j ma; a h (vjphp)

nfhtpy; thrypy; ,Ue;jhh;/ ehd; nghfnt ,y;iy/

vd;id J}f;fp bfhz;lhh;/ mth; vd; xd;Df;F

ngh F k; ,lj;jpy; mth; F";ir itj;J mGj;jpdhh;/

mth; koap y; cl;fhu itj;jpUe;jhh;/ vd; xd;Df;F

,lj;jpy; ngh F k; mth; F";ir itj;J mGj;jpdhh;/ 2

epkplk; ele;j J/ xU mz;zd; te; J Tg;gpl;lhh;/

mth; tplnt ,y;iy/ mth; mrp';fk;

bra; J b f h z ; o U e ;jhh;/ me;j mz;zd; bg a h;

tpf;fp/ mkph;jh mf;fh vd;id ,Gj; J vd; tPl;oy;

bfhz;L brd;W tpl;lhh;f s ;/ $ Pu k; te;j J/

xd;Df;Fn g h u ,lj;jpy; typj;j J/ mkph;jh mf;fh

jhd; ghh;j;jhh;/ vd; mk;kh. mg; gh t[k;

M!;gj;jphpf; F ehif muR kUj; J t kidf; F

miHj; Jr;brd;w h h;f s ;/ jpUthU:h; kUj; J t kidf; F

brd;nwd;/ m';F nghyprhh; xU Mk;g[i s a [ k;.

bghk;g[i s a [ k ; te; J vd;id tprhhpj;jhh;f s ;/ vd;

mg; g hit a[ k;. mk;khit a[ k;. bts p a p y ;

mDg; gp tpl;L vd;id tprhhpj;jhh;f s ;/

gpr;irf;fz;Zt[k;. mthpd; kfDk; vd; mg; ghit

http://www.judis.nic.in
Page No.10 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

moj;jhh;f s ;/ vd; rk;ge;jkhfj;jhd; vd; mg;g hit

moj;jhh;f s ;/ M!;gj;jphp a p y; lhf;lh; mk;kh

OhPl;bkd;l; bfhLj;jhh;f s ;/ mt;t s t[jhd;

brhy;yntz;o a J/ rk;gt rkaj;jpy; ehd;

mzp e ;jp U e ;j iel;oia nghyprhhplk;

bfhLj;njhk;/ iel;o a p y; ,uj;jkhf ,Ue;j J/

vjphp jug;g[ FWf;F tprhuiz

mk;kh. mg; gh brhy;tij nfl;ngd;/

brhy;ypf; bfhL g; gij brhy;ntd;/ rh;r;rpy; ghjh;

brhy;ypf; bfhL g; gij a[k; brhy;ntd;/ nghy Prhh;

vd;id tprhhpj;jngh J ehd; Kjy; tprhuiz a p y;

brhd;d tpguj;ij brhy;yp a p Uf ;fpn w d ;/ vd;

mg;g h. mk;kh. rh;r;rpy; c s ; s ghjh; brhy;ypf;

bfhLj; J ehd; Kjy; tprhuiz a p y ; brhd;d midj; J

r';fjpfis rhl;rp ak; m s pj;njd; vd;why; rhl;rp ,e;j

tpgu';f s ; vy;yhk; bjhp a[k; vd;Wk;. mth;f s ;

brhy;yp bfhLj; J rhl;rpak; m s p f;fpn w d;

vd;why; rhl;rp ahiu a[k; mof;ff; Tlh J vd;W

jhd; brhy;thh;f s ; vd;W TWfpwh s ;/ ehd;

brhy;t J nghy; rk;gtk; vJt[k; elf;ftpy;iy

vd;Wk;. rh;r;rpy; ehd; tpis a h o a j h y; gpur;rid

Vw;gl;L mth;f s ; tpul;o ehd; Xote; J

http://www.judis.nic.in
Page No.11 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

tpG e ; J t pl;nld; vd;why; mg; g o vy;yhk;

elf;ftpy;iy/ xd;Df;F ngh F k; ,lj;jpy; typ V J k;

,y;iy vd;Wk; mg; gh. mk;kh brhy;ypf; bfhLj; J

brhy;fpn w d ; vd;why; mg;g h mk;kh brhy;ypf;

bfhLf;ftpy;iy/ vd; mk;khtplk; Kjy; Kjyhf

brhy;Yk;n g h J bg a h; brhy;yhky; xU jhj;jh

vd;dplk; jg;ghf ele;jjhf brhd;ndd; vd;why;

brhd;ndd;/ mg;g h. mk;kh. rh;r;rpy; cs; s

ghjh; Mfpn a hh; brhy;yp bfhLj; J Kjd; Kiw a h f

ePjpkd; wj;jpy; rhl;rpa k; m s p f;fp n w d ;

vd;why; mt;thW brhy;ytpy;iy ele;jij

brhd;ndd;/

17. Coming to the third defence of the learned counsel for the

Appellant that the dress worn by P.W.3 – victim girl as also, that of the

Appellant/Accused, were not sent for examination, it would be relevant to

look into the evidence of P.W.3 – victim girl, whereby, she has stated that

the Dress (Nighty) worn by her at the time of the alleged incident, was

handed over to the Police Officials and that there were blood stains in it.

The deposition of P.W.3 – minor victim girl, in chief, in this regard reads

thus:

"///“rk;gt rkaj;jpy; ehd; mzp e ;jp U e ;j

iel;oia nghyprhhplk; bfhLj;njhk;/ iel;o a p y;

http://www.judis.nic.in
Page No.12 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

,uj;jkhf ,Ue;j J/ ///"

18. In cases of rape victims, the Court has to believe what is

reported by the child. There are misconceptions that children lie or that

they are tutored by parents to make false complaints against others. Such

myths should not affect the manner in which the Court responds to cases of

child sexual abuse.

19. In this regard, the Apex Court in the case of State of Madhya

Pradesh vs. Ramesh, 2011 (3) CTC 308, has held as under:

“12. Part of the statement of a child


witness, even if tutored, can be relied upon, if the
tutored part can be separated from untutored part,
in case such remaining untutored part inspires
confidence. In such an eventuality, the untutored
part can be believed or at least taken into
consideration for the purpose of corroboration as in
the case of a hostile witness. (Vide: Gagan Kanojia
& Anr. v. State of Punjab, 2006 (13) SCC 516)

13. In view of the above, the law on the


issue can be summarized to the effect that the
deposition of a child witness may require
corroboration, but in case his deposition inspires the
confidence of the Court and there is no
embellishment or improvement therein, the Court
may rely upon his evidence. The evidence of a child
witness must be evaluated more carefully with
greater circumspection because he is susceptible to
tutoring. Only in case there is evidence on record to
show that a child has been tutored, the Court can
reject his statement partly or fully. However, an

http://www.judis.nic.in
Page No.13 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

inference as to whether child has been tutored or


not, can be drawn from the contents of his
deposition.”

20. In the case of Sekaran vs. State by Inspector of Police, Vellore

District, (2010) 2 MLJ (Crl.) 662, this Court has held as under:

“34. In view of the foregoing discussions,


since possibility of tutoring of this witness has not
been ruled out, since there is no corroboration from
any other source available; and since P.W.7 has
resiled from her chief examination, when she was
recalled and further cross-examined on 20.06.2005, in
my considered opinion, it is not safe to base
conviction on the sole testimony of this witness in
respect of the alleged sexual assault made on her.”

21. P.W.3, the victim, at the time of occurrence, was a child,

hardly aged 5 years. It is common knowledge that a child is prone to

tutoring. But, it does not mean that on account of the said apprehension, a

child should always be viewed with suspicion and her evidence should be

rejected. Hence, in view of the ratio laid down by the Apex Court and this

Court in the above decisions, and also in view of the foregoing discussion,

this Court has to believe the version of P.W.3 - minor victim girl that, her

blood stained dress was handed over to the Police. However, the same has

not been subjected to examination.

22. The fourth defence taken by the learned counsel for the

http://www.judis.nic.in
Page No.14 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

Appellant is that, the eye-witness to the alleged occurrence viz. Vicky had

not been investigated and cited as a witness. This Court is of the view that,

non-examination of Vicky is not a ground to disbelieve the offence of rape

committed on P.W.3 - minor victim girl, who withstood the cross-

examination after two years of the alleged incident.

23. As regards the defence taken by the learned counsel for the

Appellant that P.W.4 – eye witness, P.W.5 - relative of P.Ws.1 and 2, and

P.Ws.6 and 7 - Panchayatdars, turned hostile, this Court opines that merely

because the said witnesses turned hostile, it does not mean that the entire

incident which is alleged to have taken place is false, more particularly,

when the minor victim girl has withstood the cross-examination, by narrating

the events, after understanding the same.

24. It is appropriate to refer to the decision of the Supreme Court

in the case of Shamim vs. State (NCT of Delhi), (2018) 10 SCC 509,

wherein, it is held that, minor contradictions in statements of witnesses

cannot be treated as fatal, unless such contradictions shook the root of the

matter.

25. As per Section 134 of the Indian Evidence Act, no particular

http://www.judis.nic.in
Page No.15 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

number of witnesses was required to be examined in any case, for the proof

of any fact. The Apex Court in the case of State of Punjab vs. Gurmit

Singh, AIR 1996 SC 1393, has held that an order of conviction could be

passed, based on the sole testimony of the prosecutrix. Relevant portion of

the said decision is extracted hereunder:

"21. ... The courts should examine the


broader probabilities of a case and not get swayed
by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix,
which are not of a fatal nature, to throw out an
otherwise reliable prosecution case. If evidence of
the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her
statement in material particulars. If for some
reason the court finds it difficult to place implicit
reliance on her testimony, it may look for evidence
which may lend assurance to her testimony, short
of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must
be appreciated in the background of the entire
case and the trial court must be alive to its
responsibility and be sensitive while dealing with
cases involving sexual molestations."

26. Also, the contention of the learned counsel for the Appellant

that the evidence of P.W.1 - mother of P.W.3, is hit by the hearsay rule,

cannot be accepted. According to P.W.3 - minor victim girl, she was taken

to her home by P.W.4 - Amirtha Mary, her neighbour and when her mother,

P.W.1 returned home from work, she narrated the entire incident. The

evidence of P.W.1 is not hit by hearsay rule. Thus, the evidence of P.W.1

http://www.judis.nic.in
Page No.16 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

duly corroborates the evidence of P.W.3, in full.

27. It is to be noted that the alleged incident of rape committed by

the Appellant/Accused on P.W.3 - minor victim girl does not attract the

offence under Section 4 of the POCSO Act, as the said Act came into force

only with effect from 14.11.2012, whereas, the alleged occurrence in this

case was on 26.09.2011. However, the act of the Appellant/Accused in

inserting his penis into the vagina of P.W.3 makes out an offence of rape.

28. It is needles to point out that in order to make out an offence of

rape, it is not necessary that the Accused should have a complete

penetration. Even partial penetration would be sufficient to make out an

offence of rape. Undoubtedly, a rape on a child is graver than a rape on an

adult woman. Thus, the penetrative sexual assault by penetrating the penis

into the vagina, is nothing but a rape as defined under Section 375 I.P.C.

29. It is relevant to refer to Section 375 of the Indian Penal Code,

which reads thus:

"Rape: A man is said to commit “rape”, if


he

(a) penetrates his penis, to any extent,


into the vagina, mouth, urethra or anus of a

http://www.judis.nic.in
Page No.17 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

woman or makes her to do with him or any other


person; or

(b) inserts, to any extent, any object or


a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes
her to do so with him or any other person; or

(c) manipulates any part of the body of


a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such
woman or makes her to do so with him or any
other person;
....."

30. Therefore, the argument of the learned counsel for the

Appellant that the medical evidence does not corroborate the evidence of

P.W.3, deserves only to be rejected.

31. As regards the further contention of the learned counsel for the

Appellant that the proceedings were a result of enmity between the parties,

it is appropriate to cite an Apex Court decision in the case of Puranchand vs.

State of Himachal Pradesh, (2014) 5 SCC 689, wherein, it is held that the

version of the victim girl who was suffering the trauma of rape and was

provoked to take the extreme step of consuming poison, cannot be doubted

ignoring, even the fact that a girl would put herself to disrepute and go to

the extent of supporting her parents to lodge a false case merely due to

some enmity with the family of the accused, putting her honour at stake in a

http://www.judis.nic.in
Page No.18 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

precarious mental state.

32. Though, according to the learned counsel for the

Appellant/Accused, the victim was an incompetent witness, given her tender

age, a child witness could be a competent witness under Section 118 of the

Evidence Act, if the statement of a child witness, after due scrutiny, inspired

confidence of the Court.

33. For better appreciation, Sections 114 and 118 of the Indian

Evidence Act, 1872, are extracted below:

114. Court may presume existence of


certain facts: The Court may presume the
existence of any fact which it thinks likely to have
happened, regard being had to the common course
of natural events, human conduct and public and
private business, in their relation to the facts of the
particular case.

118. Who may testify: All persons shall be


competent to testify unless the Court considers that
they are prevented from understanding the
questions put to them, or from giving rational
answers to those questions, by tender years,
extreme old age, disease, whether of body or mind,
or any other cause of the same kind.

34. Also, the evidence of P.W.14 - Dr.Mohanraj, who examined the

Accused, cannot be brushed aside. He has made an entry in Ex.P.8, Accident

Register, dated 30.09.2011 and has opined that the Appellant/Accused was

not impotent. The entry made in Ex.P8 reads thus:

http://www.judis.nic.in
Page No.19 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

"ehd; jw;ngh J !;lhd;yp muR

kUj; J t kid a p y; kUj; J t fy;Y}hp a p y kaf;ftp a y ;

gphpt[ gapd;W tUfpn w d;/ 3 0/0 9/2 0 1 1 y ; ehif

muR kUj; J t kid a p y ; gdpg[hp e ;jn g h J

fzgjp a p d; Mz;ikj;jd;ik Fwpj; J ghpnrhjid

bra;njd;/ mtUf;F 2k; epiy ghy; jd;ik ey;y

epiy a p y; ,Ue;j J/ Mz; Fwp tpiwf;F k; jd;ika[ld;

fhzg;gl;l J/ mth; Mz;ik jd;ik cilath; vd

rhd;w s p j;njd;/ mJ m/rh/M/8/ nghy Pr hh;

tprhhpj;jhh;f s ;/"

35. There is no reason as to why a five year old girl is going to lie,

more particularly, when she has withstood the cross-examination on

11.06.2013, after two years from the date of the alleged incident on

26.09.2011. That apart, parents will not try to expose the child, unless the

incident is so harsh. In this case, on a careful scrutiny of the evidence of

P.W.3, we find that her evidence is so convincing and the same cannot be

rejected at all. In fine, finding no merit in this Appeal, this Court holds that

the prosecution has proved that the Appellant/Accused has committed rape

on P.W.3 - minor victim girl.

36. In the result, the Criminal Appeal fails and accordingly, the

same is dismissed. The conviction and sentence imposed by the trial Court

on the Appellant are confirmed. Consequently, connected Crl.M.P.No.8269

http://www.judis.nic.in
Page No.20 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

of 2017 is closed.

19.10.2019
Index : Yes
Speaking Order : Yes
(aeb)
To:

1. The Inspector of Police,


Nagoor Taluk, Nagoor.

2. The Magalir Fast Track Court,


Nagapattinam.

3. The Public Prosecutor


High Court, Chennai.

http://www.judis.nic.in
Page No.21 / 22
LatestLaws.com

Criminal Appeal No.383 of 2017

S.VAIDYANATHAN,J.

(aeb)

Pre-delivery Judgment in
Criminal Appeal No.383 of 2017

19.10.2019

http://www.judis.nic.in
Page No.22 / 22