Selvam v. The Inspector of Police

ORDER This Criminal Revision Case has been filed to set aside the order passed in C.A.No.3 of 2012 dated 27.07.2016 on the file of the learned Fast Track Mahila Court, Sivagangai, confirming the judgment in S.C.No.390 of 2009 on the file of the Asst. Sessions Judge / Chief Judicial Magistrate, Sivagangai.

2.The case of the prosecution is that on 14.09.2009 at about 02.00 pm., when the victim, who is mentally retard woman, was in her house, the petitioner entered into her house and raped her. On receipt of the complaint, the respondent police registered a case in Cr.No.7 of 2009 for the offence punishable under Sections 294(b), 323, 376 IPC. After completion of investigation, the respondent filed the final report and the same has been taken on file in S.C.No.390 of 2009 by the learned Assistant Sessions Judge/Chief Judicial Magistrate, Sivagangai. Before the trial Court, the prosecution had examined P.W.1 to P.W.13 and marked Ex.P.1 to Ex.P.9. On the side of the accused, D.W.1 was examined and Ex.D1 to Ex.D3 were marked. On perusal of oral and documentary evidence, the trial Court found the petitioner guilty for the offence punishable under Section 376 IPC and sentenced him to undergo 7 years rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo 6 months simple imprisonment. Aggrieved by the same, the petitioner preferred an appeal and the same was also dismissed by confirming the conviction and sentence imposed by the trial Court. Hence, the present revision.

3.The learned counsel appearing for the petitioner would submit that there was no eye witness to the alleged occurrence and a false case has been foisted as against the petitioner due to the previous enmity. Already P.W.5 lodged complaint as against the petitioner and he admitted his guilt and paid fine. Even according to the case of the prosecution, there was no evidence to prove the offence punishable under Section 376 IPC. The Doctor, who examined the victim, was examined as P.W.6 and she was categorically deposed that there was no injury on victim's private part and there is no sign of sperm. Therefore, the prosecution failed to prove the offence punishable under Section 376 IPC. The petitioner can be convicted only for the offence punishable under Section 376 r/w 511 IPC, since there was an attempt to commit rape on the victim. He would further submit that only due to previous enmity, the present complaint foisted as against the petitioner.

4.The learned Government Advocate(Crl.side) appearing for the respondent police would submit that the father and mother of the victim was examined as P.W.1 and P.W.3 and when the heard the shout of P.W. 2, who is the neighbor and had seen the occurrence, immediately went to the house, where the occurrence had taken place. When P.W.2 entering her house, the petitioner laid on the victim and committed rape. She also stated that there was bite mark on the victim's breasts. It is also corroborated by the evidence of Doctor, who is examined as P.W.6. The occurrence had taken place on 14.09.2009 and the victim was subjected to medical examination on 16.09.2009. Therefore, there was no indication of availability of any sperm. Hence, both the Courts below rightly convicted the petitioner for the offence punishable under Section 376 IPC and it does not warrant any interference by this Court.

5.Heard both sides and perused the materials available in the record.

6.According to the prosecution, on 14.09.2009 at about 02.00 pm., when P.W.2 entered into her house, she had seen that the petitioner was lying on the victim, who is mentally retard women aged about 32 years. Immediately after seeing P.W.2, the accused came out from the house and quarreled with her. It was informed to the parents of the victim, who are examined as P.W.1 and P.W.3. The petitioner is close relative of the victim. The father and mother of the victim were examined as P.W.1 and P.W.3. The son of the P.W.1 was examined as P.W.5. P.W.13 is the sister-in-law of the victim woman. Already there was previous enmity between both family members, in which, P.W.5 lodged complaint as against the petitioner herein. He admitted his guilty and paid fine, which were marked as Ex.D.1 to Ex.D3 by the petitioner. He also made statement under Section 313 Cr.P.C. It is necessary to extract the evidence of P.W.2, which read as follows: m.rh.1d; kfs; Kj;Jbyl;Rkp K:is tsh;r;rp ,y;yhj "

bgz; mtiua[k; bjhpa[k;. 14.09.2009k; njjp jpq;fs; fpHik kjpak; 2 kzp ,Uf;Fk; vdJ 3 taJ Fhe;ijia tPl;oy; tpl;Ltpl;L gf;fj;jpy; Ks; xoj;Jf;bfhz;oUe;njd;. vd; fzth; filf;F ngha;tpl;lh;. vd; kfs; tPl;ow;Fs; ,Ue;jjhy; vdJ tPL jpwe;nj ,Ue;jJ. bfhQ;r neuk; fHpj;J mGJbfhz;nl Xote;jJ. ehd; clnd vd; tPl;ow;F te;J cs;ns nghndd;. mq;F bry;tKk; Kj;Jbyl;Rkpa[k; ,Ue;jdh;. Kj;Jbyl;Rkp fPnH gLj;jgona ,Ue;jhh;. mtUf;F ghthil fHd;wpUe;jJ. bry;tKk; Kj;Jbyl;Rkpa[k; neuoahf gLj;JUe;jJ khjphp ,Ue;jJ. vd;d fz;lJk; bry;tk; vGe;Jtpl;lhh;.

Kj;Jbyl;Rkp

vJt[k;

bjhpahky; gLj;Jf;fple;jhh;. vdf;F jpf; vd;whfptpl;lJ. ehd; K:is tsh;r;rp ,y;yhj gps;isis vd;d bra;tJ vd;W Xote;Jtpl;nld;." In her cross-examination she also deposed that when she was entered into the house, the victim girl coming out from the house. In her chief examination, she has stated that when she was entered into the house, the petitioner was committed the offence of rape on the victim. In order to corroborate this allegation, the prosecution examined the Doctor as P.W. 6, who deposed as follows:- ghpnrhjidf;F cl;gLj;j bgz;Zld; te;j ,d;bdhU "

bgz; gf;fj;JtPl;Lf;fhu bgz; mtiu gf;fj;J tPl;L egh; kjpak; 2 kzpf;F td;g[zh;r;rp bfhz;ljhf vd;dplk; brhd;dhh;. ehd; ghpnrhjpj;j nghJ ehd; ghh;j;jnghJ Fl;ilahf rj;J fk;kpahf rpe;jpf;Fk; jpwd; Fiwthf ghh;itf;F bjd;gl;lhh;. cly; typik ,He;Jk; fhzg;gl;lhh;. ehd; ghpnrhjpj;J ghh;j;j nghJ 2 khh;gfq;fspYk; gw;fshy; fof;fg;gl;l fhaq;fs; bjd;gl;ld. epg;gpy; vd;w gFjpia Rw;wp fhaq;fs; fhzg;gl;ld. (Kis fhk;g[) mt;thW fof;fg;gl;l fhaq;fs; kdpj gw;fshy; fof;fg;bgw;wJ vd;W fhzg;gl;lJ. me;j bgz;iz fPnH gLf;fitj;J ghpnrhjpj;j nghJ tapw;W gFjpia ghpnrhjpj;j nghJ gpur;rpid xd;Wk; bjhpatpy;iy. bgz;DWg;ig ghpnrhjpj;nghJ bgz; cWg;g[ ,ay;ghd epiyapy; ,Ue;jJ. fz;zpj;jpiu ,y;yhky; ,Ue;jJ. bgz; cWg;ig ghpnrhjpf;fapy; 2 tpuy;fs; EiHaf;Toa epiy ,Ue;jJ. kw;w bgz; cWg;g[fs; a{l;lu]; rhjhuz epiyapy; mst[k; rhjhuz epiyapy; ,Ue;jJ. fw;gg;igapy; ,Ue;J (bt$pndy;) ];kpah; vLf;fg;gl;lJ. tpe;J vJt[k; fhzg;gltpy;iy. g$;b$y; vgpj;jpypay; bry;fs; fhzg;gl;l clypy; kw;w gFjpfspy; ve;j fhaq;fnsh jSk;ngh ,y;iy ."

7.Therefore, there was no injury on the victim's private part and there was no evidence for availability of any sperm. However, there was bite mark on her breasts. Now, reading of evidence of P.W.2 and P.W.6 cumulatively clear that there was an attempt by the petitioner to commit rape on the victim. When P.W.2, entered into the house, immediately the accused got up and ran away from the house. At this juncture, P.W.1 and P.W.3 also seen him. That apart, already there was previous enmity between both family members. Further, medical evidence did not support the charge for the offence under Section 376 IPC. However, there was an attempt and as such, the petitioner can be convicted for the offence punishable under Section 376 r/w 511 IPC. It is relevant to extract Section 511 IPC, which read as follows:-

¶511Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment — Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

8.The Honourable Supreme Court of India held in a case of State of Madhya Pradesh Vs. Mahendra alias Golu (Criminal Appeal No. 1827 of 2011), 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 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".

9.In the case on hand, the prosecution failed to prove the penetration. However, the prosecution proved that the petitioner had attempted to commit rape on the victim. Before amendment of offence punishable under Section 375 IPC, the conviction cannot be sustained for the offence punishable under Section 376 IPC and punishable for the offence under Section 375 IPC for attempt to commit rape. Therefore, both the Courts below erred in holding that the petitioner had committed rape on the victim and sentenced him to undergo 7 years rigorous imprisonment and it is liable to be modified for the offence punishable under Section 376 r/w 511 IPC.

10.In the result, this criminal revision case is partly-allowed and the conviction and sentence imposed by both the Courts below for the offence punishable under Section 376 IPC is set aside. The petitioner is convicted for the offence punishable under Section 376 r/w 511 IPC. The petitioner is sentenced to undergo three years rigorous imprisonment for the offence punishable under Section 376 r/w 511 IPC. The respondent is directed to secure the petitioner for the remaining period of sentence.

21.03.2023 NCC : Index : Internet : gns To

1.The Fast Track Mahila Court, Sivagangai.

2.The Asst. Sessions Judge / Chief Judicial Magistrate, Sivagangai.

3.The Inspector of Police, Sivagangai All Women Police Station, Sivagangai District.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. G.K.ILANTHIRAIYAN

,J.

gns

21.03.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.03.2023 CORAM THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN Selvam ... Petitioner Vs. State: The Inspector of Police Sivagangai All Women Police Station, Sivagangai District. (Crime no. 7/ 2009) ... Respondent PRAYER : Criminal Revision filed under Section 397 and 401 of the Criminal Procedure Code, to call for the records to set aside the order passed in C.A.No.3 of 2012 dated 27.07.2016 on the file of the learned Fast Track Mahila Court, Sivagangai in S.C.No.390 of 2009 on the file of the Asst. Sessions Judge / Chief Judicial Magistrate, Sivagangai. For Petitioner : Mr.C.Senthil Murugan For Respondent : Mr.K.Sanjai Gandhi Government Advocate (Crl. Side)