K.Sivasankar v. State byInspector of PoliceAll Women Police Station(West)Coimbatore(Cr.No.18/2005)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31-07-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.221 of 2006K.Sivasankar..Appellant -vs-State byInspector of PoliceAll Women Police Station(West)Coimbatore(Cr.No.18/2005)... Respondent This appeal is filed against the Judgment made inS.C.No.234/2005 dated 21.12.2005 on the file of the Sessions Judge,Magaliar Neethimandram, Coimbatore.For appellant : Mr.E.J.AyyappanFor respondent : Mr.V.R.Balasubramaniam, Additional Public Prosecutor JUDGMENT This appeal has been preferred by the accused in S.C.No.234 of 2005on the file of the Sessions Judge, Magalir Neethimandaram, Coimbatore.The accused has been charged under Sections 366(A) and 376(2)(f) r/w 511of IPC.2. The case was taken on file by the learned Sessions Judge, MagalirNeethimandram, and on appearance of the accused, had furnished the copiesunder Section 207 of Cr.P.C., when the charges were framed under Sections366(A), 376(2)(f) r/w 511 of IPC and when questioned the accused pleadednot guilty.3. Before the trial Court P.Ws 1 to 10 were examined and Exs P1 toP8 were exhibited and M.O.1 to M.O.3 were marked.4. P.W.1 is the mother of the victim girl Anusuya, aged 5. Accordingto her, the victim girl used to play near her grand mother's house whichis situated nearby her house and that she also knows the accused. On29.3.2005 her daughter Anusuya did not return home, after she was insearch of her daughter at about 1.00p.m., in the street, the accused came https://hcservices.ecourts.gov.in/hcservices/ before her, followed by her daughter Anusuya, crying. When she enquiredher daughter, she informed that the accused had gave a chocolate and tookher to his house and made an attempt to rape her and afraid of herhusband, she did not reveal the incident to her husband . The next day,her daughter Anusuya had developed fever, only at that time, she informedher husband what Anusuya had narrated to her. Thereafter, she hadpreferred a complaint against the accused on 29.3.2005 under Ex P1.4a. P.W.2 is the victim girl Anusuya who would depose that on thedate of the occurrence, the accused had given a chocolate and then tookher to his house and made an attempt to commit rape.4b. P.W.3 is the father of the victim girl. According to him, on29.3.2005 at about 7.00p.m., he had returned from his office, by the timeAnusuya ,P.W.2 had slept. On the next day, Anusuya did not get up from thebed. When he enquired about this with his wife P.W.1, she informed thattheir daughter P.W2 is not feeling well and so he left for his workspot.When he returned in the night, he found that his daughter P.W.2 haddeveloped temperature. Only at that time, P.W.1 has informed him that theaccused had made an attempt to rape the child. Immediately, he took P.W.1and P.W.2 to the police station and P.W.1 had preferred ExP1 complaint.4c. P.W.4 Lakshmi, who is the neighbour, would depose that on thedate of the occurrence at about 1.00p.m., she saw P.W.1 quarrelling withthe accused in the street and that P.W.1 had informed her that theaccused had made an attempt to rape the child.4d. P.W.10 is the Investigating Officer, who had registered the caseunder All Women Police Station Crime No.18/2005 under Section 376 r/w 511of IPC. Ex P6 is the first information report. On 31.3.2005, at 8.00 a.m.,after registering the case, she proceeded to the place of occurrence andprepared ExP2 Observation Mahazar in the presence of P.W.5 and anotherwitness Murugesan. He had drawn a rough sketch Ex P7 in the presence ofthe same witnesses. He had arrested the accused at 14.00hours andproduced before the Judicial Magistrate, after recovering the wearingapparels of the accused viz., full hand shirt M.O.2, Jeans Pant M.O.3under Form 95 Ex P8. He has given a requisition to the Court to send boththe victim and the accused for medical examination.4e. P.w.6 is the grand mother of the victim girl . She has alsonarrated what P.W.2 had informed to her, after the occurrence. P.W.7 isthe doctor, who had examined the accused and issued Ex P3 potencycertificate. P.W.8 is the radiologist, who had examined the victim girland issued Ex P4 age certificate. M.O.1 series are the X-rays. P.W.9 isthe lady doctor, who had examined the victim girl and issued Ex P5 copy ofthe accident register. According to P.W.9, the hymen of the victim girlwas found in tact. But the doctor had found that a minor abrasion on thegenitilia of the victim girl. After completing the formalities, P.W.10 hasfiled the charge sheet against the accused. https://hcservices.ecourts.gov.in/hcservices/

5. When incriminating circumstances under Section 313 Cr.P.C. wereput to the accused, he would deny his complicity with the crime. He hasexamined himself as D.W.1 . According to the accused as D.W.1 , thevictim girl had removed video camera from his house and when he receivedthe said video camera after giving a chocolate to the child, he hadassaulted with hands on her head which made her to cry and that while hewas sleeping in the house of his uncle, the police had arrested him. 6. The learned trial Judge, after meticulously going through theevidence both oral and documentary has come to a conclusion that theoffence under Sections 366(A) and 376(2)(f) r/w 511 of IPC has been madeout against the accused and accordingly convicted under Section 366(A) ofIPC and sentenced the accused to undergo ten years rigorous imprisonmentand a fine of Rs.10,000/- with default sentence and convicted the accusedunder Section 376(2)(f) r/w 511 of IPC and sentenced the accused toundergo ten years rigorous imprisonment and a fine of Rs.15,000/- withdefault sentence, which necessitated the accused to prefer this appealbefore this Court.7. Now the point for consideration in this appeal is whether theconviction and sentence against the accused under Sections 366(A) and 376(2)(f) r/w 511 of IPC is sustainable for the reasons stated in thememorandum of appeal?8.Heard Mr.E.J.Ayyappan, learned counsel appearing for theappellant and Mr.V.R.Balasubramaniam, learned Additional Public Prosecutorfor the State and carefully considered their rival submissions.9. The Point:For warranting conviction under Section 366(A) of IPC, it is to be provedthat the minor girl was forced or seduced to go from one place to anotherplace for the purpose of committing illicit intercourse with anotherperson. There is no eye witness to the occurrence. According to P.W.1,while she was in search of her daughter at 1.00p.m., on the date of theoccurrence ie., on 29.3.2005, she saw her daughter crying behind theaccused and that her daughter on enquiry, had revealed that she has beensubjected to sexual assault, in the house of the accused. But there isabsolutely no evidence let in by the prosecution to show that the victimgirl was found inside the house of the accused. So the offence underSection 366(A) of IPC is not made out against the accused.10. The doctor, who had examined the victim girl P.W.2, was examinedon the side of the prosecution as P.W.9. P.W.9 on examination of thevictim girl has found lacerated injuries on the genitilia of the victimgirl. But according to the doctor, the hymen of the victim girl was foundin tact and there was no injury found on the person of the victim girl. ExP5 is the copy of the accident register. Under such circumstances, https://hcservices.ecourts.gov.in/hcservices/ considering the evidence of P.W.2 corroborated by the evidence of P.W.9,it cannot be said that the offence under Section 376(2)(f) r/w 511 of IPChas not been made out against the accused.11. The learned counsel appearing for the appellant would contendthat even there is a delay of two days in preferring the first informationreport, the delay has been properly explained by P.W.1 and P.W.3 in theirevidence. The learned counsel appearing for the accused would submit that the accused was 21 years of age at the time ofthe occurrence and that he is in jail for the past two years and fourmonths after conviction and on that score, he pleads some leniency may beshown on the sentence of the accused . Taking into consideration, the ageof the accused and also the superficial minor simple injury on the personof the victim girl, I am of the view that some leniency may be shown onthe sentence of the accused. 12. In fine, the appeal is partly allowed and the conviction andsentence under Section 366(A) of IPC by the learned trial Judge inS.C.No.234 of 2005 on the file of the Sessions Judge,MagalirNeethimandram, Coimbatore is set aside but the conviction of the learnedtrial Judge under Section 376(2)(f) r/w 511 of IPC is confirmed but thesentence alone is modified to that of the period already undergone and afine of Rs.25,000/- in default to undergo one year rigorous imprisonment.The fine paid by the accused under Section366(A) ie., Rs.10,000/- shallbe treated as the fine paid under Section 376(2)(f)r/w 511 of IPC apartfrom the fine of Rs.15000/- already paid by him under the above provisionof law. The entire fine amount of Rs.25,000/- is to b e paid to the victimgirl as compensation under Section357(1) of Cr.P.C. sgSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Sessions Judge, Magalir Neethimandram, Coimbatore.2. -do- Thro' The Prl.Sessions Judge, Coimbatore3. The Public Prosecutor, High Court, Madras4. The Superintendent of Central Prison, Coimbatore5. The Inspector of Police, All Women Police Station (West) Coimbatore.6. The Judicial Magistrate No.I, Coimbatore.7. -do- Thro' The Chief Judicial Magistrate, Coimbatore.SSV(CO)dcp/8.8Crl.A.No.221/2006