THE HONOURABLE MR v. The State rep. byThe Station House Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 01.08.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.32 of 2006R.Veerasamy @ Senthil Kumar .. Appellant/accusedVs.The State rep. byThe Station House Officer,Thirunallar Police Station,Karaikkal, Pondicherry,(Cr.No.73 of 2002) .. Respondent/ComplainantPrayer:- This appeal has been preferred against the judgment dated26.10.2005 made in S.C.No.19 of 2004 on the file fo the AdditionalSessions Judge, Pondicherry at Karaikal.For Appellant:Mr.S.Panneerselvam For Respondent :Mr.M.R.Thangavelu, Public Prosecutor, PondicherryJUDGMENTThe accused, who was convicted by the learned Additional SessionsJudge, Pondicherry at Karaikkal, in S.C.No.19 of 2004 under Section 376r/w 511 IPC and under Section 354 IPC, is the appellant herein.2.The learned Judicial Magistrate No.II, Karaikall, who had taken thecase on file, after securing the accused by way of summons, had issuedcopies under Section 207 of Cr.P.C., and committed the case to the Courtof Sessions under Section 209 of Cr.P.C., since the case is exclusivelytriable by the Court of Sessions. The learned Additional Sessions Judge,on appearance of the accused before him, had framed charges under Section376 r/w 511 IPC and under Section 354 IPC and when questioned, the accusedpleaded not guilty. On the side of the prosecution P.W.1 to P.W.12 wereexamined, Ex.P.1 to Ex.P.10 were exhibited and M.O.1 to M.O.3 were marked. https://hcservices.ecourts.gov.in/hcservices/

3.P.W.1 is the father of the victim girl minor child Ramya aged 3years. P.W.1 is not an eye witness to the occurrence. In fact he wasaway from home on the date of occurrence. He returned to home only at 8.00pm in the night on 7.4.2002, the occurrence day. On seeing his wife andchild crying, he enquired them and his wife had informed him that at about6.30 pm on 7.4.2002 the accused had attempted to rape the child in hermother's house, which is situated nearby. At that time the child Ramyawas running temperature. He took her to government hospital at Karaikal on9.4.2002 and since no improvement was seen on her health condition, hetook her to a private clinic on 10.4.2002 and since the temperature hasnot subsided, again he took her to government hospital at Karaikal on12.4.2002. According to him, the doctor at Karaikal had noticed an injuryon the private part of the child and enquired about that, to whom, heinformed that there was an attempt of rape made by the accused on thechiled on 7.4.2002. Immediately the doctor at government hospitalinformed the police, who came and enquired him at his residence and hepreferred Ex.P.1-complaint and once again his child was taken togovernment hospital at Karaikal and admitted as an inpatient for nearlyone week therein. Police have seized the under garments of the child undermahazar in the presence of the witnesses and M.O.1 is the under garmentworn by the child.4.P.W.2 is the mother of Ramya. According to her, at the time ofoccurrence P.W.1 was not in the house and the child Ramya, aged 3 years,was playing in the house of her mother-in-law, which is situated adjacentto her house, on 7.4.2002 at 6.30 pm. She heard a distress call from herchild and immediately she rushed to the house of her mother-in-law and hismother-in-law was also rushing to the house from backyard and she saw theaccused going out of the house. She had seen her daughter Ramya keepingher hand on her private part and was crying. When she enquired the child,she showed her private part and told that Senthil Anna pressed her privatepart by embracing her. After 15 minutes the accused came there and tookapology for what had happened. She had not noticed any visible externalinjuries on the private part of her daughter, who had developed feverthereafter. After her husband, returned to the house at 8.30 pm, she hadnarrated the incident and purchased some medicines locally and gave to thechild. But the fever did not subside, then the child was taken to thegovernment hospital at Karaikal and was treated by Dr.Duraisamy P.W.6.Even after the treatment her (P.W.2) child was running high temperature.So she took the child to the government hosptial at Karaikal on the nextday ie., on 10.4.2002, where P.W.4-Dr.Chitra had treated her child.After examining the child Dr.Chitra had informed her that there is aswelling in the private part of her daughter and enquired as to what hadhappened. Only at that time she had divulged about the incident toDr.Chitra-P.W.4, who gave intimation to the Thirunallar police, who cameto her house at 8.30 pm and enquired. Before the police she had preferreda complaint. The police have seized the under garments of the child whileshe was taking treatment in the hospital. P.W.2 has identified M.O.1 as https://hcservices.ecourts.gov.in/hcservices/ the inner garments of the child. Due to shame she has not preferred thecomplaint immediately.5.P.W.3 would depose that on 12.4.2002 at about 9.00 pm, he saw P.W.1& P.W.2 waiting in the bus stand at Sathur with their daughter Matharasi @Ramya. On enquiry P.W.1 had informed him that his neighbour hadmisbehaved with his daughter and sexually assaulted her and they are goingto the government hospital for treatment. Immediately, he went to thehouse of P.W.1 and saw Thirunallar police, who have prepared a roughsketch Ex.P.2 in his presence. M.O.1, inner garment of Ramya was seizedby the police in his presence under Ex.P.3.6.P.W.10 is the then Inspector of Police at Karaikkal, who hadreceived the intimation from the hospital regarding the medico legal caseunder Ex.P.7. On receipt of Ex.P.7 he went to Pandaravadai, Sethur to thehouse of P.W.1 and enquired about the matter and recorded his statement.P.W.1 had preferred a written complaint, on the basis of which, he hadregistered the case in Thirunallar Police Station Cr.No.73/2002 underSection 376 IPC and took up the investigation. He had visited the placeof occurrence at 22.00 hours on the same day and recorded the statement ofP.W.1 under Ex.P.2. The child was referred to medical officer forexamination. Then he had proceeded to the government hospital at Karaikaland recovered M.O.1-inner garment of the child Ramya under Ex.P.3-mahazarin the presence of P.W.3 and another witness Pakkirisamy. He has examinedthe witnesses and recorded their statements. He had arrested the accusedat 10.00 am on the same day at Pandaravadai. He has also seized one lungifrom the house of the accused under Ex.P.6-mahazar. M.O.2 is the lungi.He has examined the doctor, who have examined the victim girl, andrecorded their statements. The accused was produced before the JudicialMagistrate for judicial remand. M.O.1 & M.O.2 were forwarded to the Courtthrough Form-95 on 15.4.2002. He had made a request to the Court forsending the material objects connected with this case for chemicalexamination. Ex.P.9 is the copy of the said forwarding note. Ex.P.10 isthe FIR. 7.P.W.11 is the successor of P.W.10. Ex.P.11 is the report receivedfrom Central Forensic Science Laboratory, Hydrabad. P.W.12 is thesuccessor of P.W.11.8.P.W.4 is the doctor, who had examined the victim girl Ramya on12.4.2002. After getting the consent of the mother of the child, she hadexamined the child at 1.45 pm on the same day. No external injuries wereseen by her. She has informed Dr.Durairsamy, specialist in pediatric,for examining the child. On his advice she has prescribed tablets for thechild, who had some tenderness over the upper abdomen. Based on medicalrecords, she had recorded her opinion that there was no evidence of sexualintercourse and the child was discharged from the hospital on 18.4.2002. https://hcservices.ecourts.gov.in/hcservices/

9.P.W.5 is the doctor, who had examined the accused and issuedEx.P.5-certificate stating that the accused is potent.10.P.W.6 – Dr.S.Duraisamy had treated the child Ramya for thecomplaint of vomiting, cough & fever. He has diagnosed that the child wassuffering from viral fever. He has noticed tenderness over the upperabdomen of the child. By referring the child to a surgeon, he had ruledout the surgical problem. The child was discharged after treatment on18.4.2002. He has opined that if a child of 3 years is subjected tosexual pressure, she will develop trauma. The sudden trauma subjected tothe victim child would not have created respiratory problem. According tothe doctor, the child was suffering from viral fever, for which he hasgiven treatment. 11.P.W.7 would depose that the lungi of the accused was seized in hispresence by the police under a mahazar. Be he was treated as a hostilewitness.12.P.W.8, Dr.Sivakumar, has treated the child Ramya on 10.4.2002 athis private clinic at Sethur, Thirunallar, Karaikkal. He has treated thechild only for fever. According to him, Ex.P.7-intimation to police wasprepared by one Dr.Raju, who is now no more, but he knows his signature. 13.P.W.9 has seen P.W.1 & P.W.2 along with their child Ramya on10.4.2002 at 7.00 pm in the bazzar at Sethur. P.W.1 & P.W.2 have informedhim that they are taking the child to Dr.Sivakumar for consultation, sincethe health of the child is deteriorating. According to him, P.W.1 & P.W.2have informed that the child was subjected to sexual assault by theirneighbour Veerasamy.14.P.W.12, after completing the formalities had laid the charge sheetagainst the accused under Section 376 r/w 511 IPC and under Section 354IPC on 31.12.2003. 15.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., the accused would deny his complicity with thecrime. After going through the evidence both oral and documentary thelearned trial judge has held that the accused is liable to be convictedunder Section 376 r/w 511 IPC and also under Section 354 IPC andaccordingly the learned trial Judge convicted the accused under Section376 r/w 511 IPC and sentenced to undergo 7 years RI and slapped a fine ofRs.25,000/- with default sentence and also convicted the accused underSection 354 IPC and sentenced to undergo 2 years RI, which necessitatedthe accused to prefer this appeal. https://hcservices.ecourts.gov.in/hcservices/

16.Now the point for determination in this appeal is whether theconviction and sentence passed by the learned trial judge against theaccused under Section 376 r/w 511 IPC and also under Section 354 IPC issustainable for the reasons stated in the memorandum of appeal?17.The Point:-P.W.2 is the mother of the victim girl, who is aged 3years at the time of occurrence. She had seen the accused, after hearingthe distress call from her child victim girl Ramya at 6.30 pm on 7.4.2002from the house of her mother-in-law, which is situated adjacent to herhouse while she was entering in to the house of her mother-in-law, theaccused was going out of the house and that the child was crying. It isthe definite case of P.W.2 that Ramya, the child aged 3 years, told thatthe accused had made sexual assault on her by embracing her. Butunfortunately in this case Ramya was not examined as a witness, when sheis capable of knowing about the occurrence to her mother, according to theprosecution. According to P.W.2, subsequently the accused came and tookapology from her and the child had developed fever and since her husbandreturned only at 8.00 pm on the date of occurrence, she could not preferthe complaint immediately. The child was examined by P.W.4 on 12.4.2002for the first time at government hospital at Karaikal. According toP.W.4, the child Ramya was accompanied to the hospital with her motherP.W.2. Ex.P.4 is the certificate issued by P.W.4. The doctor has onlynoticed tenderness over the upper abdomen of the child. But in Ex.P.4,the doctor has not mentioned any tenderness seen on the upper abdomen ofthe victim child. The doctor has opined that she has not seen anyexternal injury on the genitalia of the victim girl and that she isdefinite that the child was not subjected to any sexual violation. P.w.6is the doctor, who had examined the victim girl on 12.4.2002. he hadtreated the child for viral fever and gastritis. He had noticedtenderness over the upper abdomen of the child and to rule out anysurgical problem he had referred the child to a Surgeon and afterascertaining that there is no need for surgery, the child was dischargedon 18.4.2002. P.W.8 Dr.Sivakumar had treated the child on 10.4.2002 forfever. P.W.8 is the first doctor, who had examined the victim girl afterthe alleged occurrence, which took place on 7.4.2002. But he has notnoticed any external injuries on the private part of the child. Soabsolutely there is no evidence on record to show that the victim girl wassubjected to any sexual assault by the accused or to show that the modestyof the child was outraged by the accused to warrant conviction undersection 376 r/w 511 IPC or under Section 354 IPC. Under suchcircumstances, I am of the view that the prosecution has miserably failedto prove the guilt of the accused beyond any reasonable doubt to warrantconviction under Section 376 r/w 511 IPC and under Section 354 IPC. Pointis answered accordingly. https://hcservices.ecourts.gov.in/hcservices/

18.In fine the appeal is allowed and the conviction and sentence ofthe accused under Section 376 r/w 511 IPC and under Section 354 IPC passedby the trial judge in S.C.No.19 of 2004 on the file of the AdditionalSessions Judge, Pondicherry at Karaikkal is set aside and the accused isacquitted from all the charges levelled against him. Fine, if any paid, isto be refunded to the accused. The accused is set at liberty forthwith. ssvSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo,1.The Additional Sessions Judge, Pondicherry at Karaikkal.2.-do- Thro'The District & Sessions Judge, Pondicherry.3.The Public Prosecutor, Pondicherry.4. The Superintendent Central Prison, Pondicherry.5.The Station House officer, Thirunallur Police Station, Karaikkal,Pondicherry. 6.The Sub-Jail, Pondicherry at Karaikkal.+1 cc to Mr.S.Panneerselvam, Advocate Sr.No.48366.+1 cc to The Government Pleader Sr.No.48216.SSV(CO)dcp/9.8Crl.A.No.32 of 2006