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MADRAS HIGH COURT
N. Anand Venkatesh, J.
A. Muthupandi and Anr. – Appellants
versus
State Rep. by the Inspector of Police – Respondent
Criminal Appeal Nos.245 of 2016 and 154 of 2017
Decided on 3.4.2023
Counsel for the Parties:
For the Appellant: Mr. R. Harikrishnan, Legal Aid Counsel
For the Respondent:Mr. L. Baskaran, Government Advocate (Crl. Side)
IMPORTANT POINTS
(1) Competency of a child witness – A child will become incompetent only in cases where Court considers that child was unable to understand questions and answer them in a coherent and comprehensible manner.
(2) When a child has been sexually abused, Courts should never show leniency on accused and it has to be necessarily dealt with sternly and severely.
Headnote:
(A) Indian Evidence Act, 1872 – Section 118 – Competency of a child witness – It is left to Judge to test capacity of a child witness by adopting any method and there is no precise rule laid down to check degree of intelligence and knowledge, which will render a child a competent witness – A child will become incompetent only in cases where Court considers that child was unable to understand questions and answer them in a coherent and comprehensible manner – Trial Court Advocates must bear in mind that they are defending right of a person guaranteed under Article 21 of Constitution of India – It is their bounden duty to put appropriate questions during cross examination, failing which, their client will lose his or her liberty by suffering sentence. (Paras 19, 25 and 24)
(B) Indian Penal Code, 1860 – Section 376(2)(f) – Rape of minor girl – Conviction and sentence – Evidence of victims of sexual assault must be dealt with more sensitivity and it should not be appreciated in the manner, in which regular evidence is appreciated – There is no reason to disbelieve evidence of victim – Previous enmity between parties is not a matter of assumption or surmise and it has to be established by the accused person – Onus of proof is on accused person to establish that there was a previous enmity between parties, which resulted in false complaint lodged against him – Accused person completely failed even to establish foundational facts in this direction – When a child has been sexually abused, Courts should never show leniency on accused and it has to be necessarily dealt with sternly and severely – Conviction upheld and sentence enhanced. (Paras 25, 26, 27, 37, 40 and 41)
Result: Criminal Appeals Partly allowed.
JUDGMENT (COMMON)
Crl.A.No.245 of 2016 has been filed by the appellant/accused aggrieved by his (i) conviction under Section 376(2)(f) of the Indian Penal Code (hereinafter called the Code) and (ii) sentence to undergo three years rigorous imprisonment and to pay a fine of Rs.10,000/- and in default, to undergo one year rigorous imprisonment.
2. Crl.A.No.154 of 2017 has been filed by the State seeking for enhancement of the punishment imposed on the accused in the same judgment on the ground that the Trial Court failed to impose the minimum sentence that has been prescribed under Section 376(1) of the Code.
3. The case of the prosecution is as follows:—
(i) The victim girl - P.W.2 was aged about 5 years at the time of occurrence. On 27.1.2010 at about 5 PM, the accused, who was a neighbour, was said to have taken the victim girl into his house, removed the undergarments of the victim girl and committed penetrative sexual assault against the victim girl. The victim girl told her parents that she was experiencing pain in her vagina. When enquired by the mother, the victim girl explained about the incident.
(ii) A complaint - Ex.P.1 was given by P.W.1 - the father of the victim girl on 04.2.2010 at about 21 hours before P.W.9 - the Sub-Inspector of Police, All Women Police Station, Tiruppur. P.W.9, on receipt of the complaint, registered the first information report - Ex.P.9 in Cr.No.7 of 2010 for offences under Sections 376 and 506(ii) of the Code. P.W.9 thereafter forwarded the first information report to P.W.10 - the Inspector of Police, North Police Station, who was in charge of the All Women Police Station, Tiruppur at the relevant point of time.
(iii) P.W.10 took up the investigation and he went to the scene of crime at about 21.40 hours on 04.2.2010 and prepared the observation mahazar marked as Ex.P.2 and the rough sketch marked as Ex.P.10 in the presence of witnesses. He also recorded the statements of the victim girl, her parents and other neighbours. On 05.2.2010 at about 6 AM, the accused was arrested, produced before the Court concerned and remanded to judicial custody. Thereafter, a requisition was made to the Court concerned for conducting medical examination of the victim girl and the accused.
(iv) The victim girl was examined by P.W.6 - the doctor and through her, Ex.P.8 was marked. As per the report of P.W.6, no injuries were found over the medial aspect of both thighs and perineum. However, it was found that hymen was not intact (injured) and that this had given the evidence of intercourse.
(v) The accused was examined by P.W.5 - the doctor and through him, Ex.P.7 report was marked, which would show that there was no anatomical reason to conclude that the accused was impotent.
(vi) P.W.10 thereafter went on transfer and the investigation was taken up by P.W.11. The Investigation Officer recorded the evidence of the remaining witnesses, collected medical reports and ultimately laid the charge sheet on 13.12.2010 before the Judicial Magistrate No.1, Tiruppur. It was taken on file as P.R.C.No.41 of 2010.
(vii) The accused appeared before the Court concerned and was served with the copies under Section 207 of the Criminal Procedure Code (for brevity, the Cr.P.C.). The case was thereafter committed under Section 209 of the Cr.P.C., to the Principal District and Sessions Court, Coimbatore, which was, prima facie, convinced with the materials placed before it and hence, proceeded to frame charges against the accused for the offences under Section 376(2)(f) and 506(ii) of the Code. When the charges were put to the accused person, he denied the same and pleaded ‘not guilty’. The case was thereafter made over to the Trial Court.
(viii) The prosecution examined P.W.1 to P.W.11 and marked Ex.P.1 to Ex.P.10. The defence examined D.W.1 and marked Ex.D.1. The incriminating evidence that was gathered during the course of trial was put to the accused person, when he was questioned under Section 313(1)(b) of th
