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CORAM:
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
-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.
JUDGMENT
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/-,
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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,
Crime No.538 of 2011 for the offence under Section 376(2) I.P.C.
P.W.2 is the father of the minor victim girl; P.W.3 is the victim girl herself;
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
registered the F.I.R. and conducted the first enquiry; P.W.12 is the Doctor,
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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,
in any manner and therefore, they were treated as hostile and allowed to be
Medical Officers P.Ws.9, 10 and 12 and the other official witnesses, 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
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examination;
cited as a witness;
turned hostile.
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
the contentions of the learned counsel for the Appellant. According to him,
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the delay in lodging a complaint is only on account of the fact that the
that P.W.10 – Doctor, who examined P.W.3 – minor victim girl, had spoken
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
dismissed.
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
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lodged a complaint on 28.09.2011, i.e. two days after the alleged incident.
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
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.
neither the girl nor her parents would be tempted to rush to the Police
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.
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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
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:
///"
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
examination, P.W.9 has stated that the pain suffered by the victim while
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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.
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
examination, P.W.12 – Doctor has deposed that the minor victim girl has not
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
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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
16. Before dealing with the other defence taken by the learned
counsel for the Appellant, for better appreciation of the case, this Court
Kjy; tpruhiz
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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
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:
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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
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:
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District, (2010) 2 MLJ (Crl.) 662, this Court has held as under:
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
22. The fourth defence taken by the learned counsel for the
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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,
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
when the minor victim girl has withstood the cross-examination, by narrating
in the case of Shamim vs. State (NCT of Delhi), (2018) 10 SCC 509,
cannot be treated as fatal, unless such contradictions shook the root of the
matter.
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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
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
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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
inserting his penis into the vagina of P.W.3 makes out an offence of rape.
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.
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Appellant that the medical evidence does not corroborate the evidence of
31. As regards the further contention of the learned counsel for the
Appellant that the proceedings were a result of enmity between the parties,
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
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
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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
33. For better appreciation, Sections 114 and 118 of the Indian
Register, dated 30.09.2011 and has opined that the Appellant/Accused was
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tprhhpj;jhh;f s ;/"
35. There is no reason as to why a five year old girl is going to lie,
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
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
36. In the result, the Criminal Appeal fails and accordingly, the
same is dismissed. The conviction and sentence imposed by the trial Court
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of 2017 is closed.
19.10.2019
Index : Yes
Speaking Order : Yes
(aeb)
To:
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S.VAIDYANATHAN,J.
(aeb)
Pre-delivery Judgment in
Criminal Appeal No.383 of 2017
19.10.2019
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