Narasimhan v. The State

C.A.No.1328/02 The Accused/Appellant was directed to be released on bail by theorder of this Court dated 30.04.2003 made in Crl.Mp.No.3802/03.IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 29.06.2007Coram:-The Hon'ble Mr. Justice R.REGUPATHICriminal Appeal No.1328 of 2002Narasimhan... Appellant/Accused-1vs.The State,rep. by the Inspector of Police,D3, Ice House Police Station,Chennai-5.... RespondentCriminal Appeal against the order of conviction and sentence dated26.08.2002 made in S.C. No.555 of 1999 on the file of the Sessions Judge,Magalir Neethimandram, Chennai.For Appellant: Mr.Shanmughavelayutham, SeniorCounsel for M/s.Nithyanandam & S.P.Karthick.For Respondent: Mr.Hasan Mohamed Jinnah,Government Advocate (Crl. Side).J U D G M E N TThe appellant is A-1 among three accused. He was tried foroffences punishable under Sections-376 and 450 IPC. while A-2 and A-3under Sections 376 read with 109 IPC and Section 450 IPC. by the learnedSessions Judge, Magalir Neethimandram at Chennai, in Sessions Case No.555of 1999. A-2 died during the course of trial and, on conclusion of trial,A-3 was acquitted and the appellant herein-A-1 was found guilty underSections 376 (1) and 450 IPC. and sentenced to undergo rigorouosimprisonment for 7 years and 2 years respectively and fine of Rs.5,000/- https://hcservices.ecourts.gov.in/hcservices/ and Rs.2,000/- was imposed and, in default to pay the fine amount, toundergo imprisonment for six months and two months respectively. Fineamount, if paid, was ordered to be paid to PW-1/victim as compensation. 2. Aggrieved against the order of conviction and sentence passedby the trial court, the present appeal has been filed before this Court.3. The case of the prosecution is that PW-1, an unmarried girl,aged about 19, was sleeping on the terrace of her house during the nightof 12.09.1999, and at that time, the appellant along with two otheraccused reached the terrace and called her for sex and when she refusedand tried to run away, the appellant, along with two other accused, isalleged to have caught hold of her hands, stripped off her cloths and hadforcible sexual intercourse. The victim got fainted and on regainingconsciousness, at 1 A.M. she informed her sister and mother/PWs-2 and 3respectively about the occurrence, whereupon, a complaint was given to PW-7 Inspector of Police at 3 P.M. on 13.05.1999. A case in Crime No.325 of1999 was taken on file for offences punishable under Sections 354 and 376IPC as per Ex.P8. The Investigating Officer prepared observation mahazarand rough sketch Exs.P9 and P10 respectively. After examination of thewitnesses, the victim was sent for medical examination. PW-1 was examinedby PW-5, the Medical Officer, on 14.05.1999 at 3.15 P.M. The accused wasarrested and subjected to examination by the Medical Officer PW-6. Onconclusion of the investigation, the Investigating Officer filed finalreport on 09.10.1999 for offences under Sections 354 and 376 IPC.4. During the course of trial, the victim has been examined asPW-1 and she has narrated that during the night of 12.05.1999, while shewas sleeping on the terrace of her residence, the appellant along with twoother accused reached the place she was sleeping and called her to havesex with him and when she refused and attempted to run away, he pushed herdown with the assistance of two other accused, gagged her, stripped offthe garments and committed forcible rape on her. After committing theoffence, the appellant along with the other two accused ran away from thescene of occurrence. The victim became unconscious and when regainedconsciousness, she informed the incident to her sister and mother who tookher to the police station to give complaint.PW-2 is the sister of PW-1 who corroborates the testimony of PW-1. She has stated that the appellant is her neighbour. PW-3, the motherof PW-1, has stated that she reached the residence after completing herwork and when PW-1 informed her of the occurrence, she went to the policeStation accompanied by PWs-1 and 2. PW-4 has been examined as an attestingwitness for the mahazar prepared by the Investigating Officer, however, hehas been treated as hostile. PW5 is the Medical Officer, who examined the victim/PW-1 on14.05.1999. On examination of private parts, she noticed a tear in thehymen at 5 and 7 O' clock positions and bleeding from vagina. She alsonoticed the following injuries:- https://hcservices.ecourts.gov.in/hcservices/ " INJURIES:-1) Multiple teeth bite mark on the medial side ofright breast and lateral side of left breast;2) Round shaped abrasion on left nipple;3) Linear multiple scratches on the dorsum of righthand;4) Linear abrasion on the middle of left cheek.OPINION:I am of the opinion that the said victim girl EnnammaD/o.Erriah would have had sexual intercourse.I issued the Certificate. I was examined by thePolice. (Certificate Ex.P.3).I also examined the girl for fixing her Age, fromphysical and Radiological Examination. I am of the opinionthat the individual is aged about 18 years and below 20years. I issued the Age Certificate (Age CertificateEx.P.4.)"PW-6 is the Medical Officer, who examined the appellant on14.05.1999. He issued Ex.P-6 Certificate of examination for sexualoffences and Ex.P.7 Age Certificate, wherein, the age of the accused hasbeen opined to be between 23 and 25. PW-7 , the Investigating Officerspeaks about receipt of the complaint, the investigation conducted andfiling of the final report. On conclusion of the prosecution evidence, the appellant/A1 wasquestioned under Section 313 Cr.P.C. regarding the incriminating materialsavailable against him and he denied his complicity in the crime andpleaded innocence. To substantiate his plea, he examined two witnesses asDWs-1 and 2. DW-1, who is the employer of the appellant, has stated thatduring the night of 12.05.1999, the appellant was directed to work in aMarriage Hall and when he visited the Hall at 6 A.M. on the next day, hefound the appellant and other accused present there. An Advocate Clerk, who has been examined as DW-2, has statedthat PW-3 approached him on 13.04.1999 at 8 P.M., for writing complaint,stating that some unknown assailants have committed rape on PW-1, forwhich, it has been advised by DW-2 that unless the names of the assailantsare mentioned in the complaint, the same could not be lodged beforepolice. Subsequently, three names were given and thereafter, he wrote thecomplaint, whereupon, investigation has been conducted and final reportfiled as mentioned earlier. 5. Learned trial Judge, after hearing the accused as well asthe prosecution, passed an order of conviction and sentence as statedsupra. https://hcservices.ecourts.gov.in/hcservices/

6. The point that arises for consideration in this Appeal is asto whether the order of conviction and sentence passed by the trial courtis sustainable or not?7. Learned Senior Counsel for the appellant, by pointing outthat the occurrence took place during night time while PW-1 was sleepingon the terrace, would submit that some unknown assailants would havereached there and committed the offence, for which, the appellant has beenfalsely implicated in the case. He also pointed out that the appellantwas working under DW-1 and during the relevant time, he was engaged towork in a Marriage Hall at Egmore. Relying on the evidence of PW-2, hestates that the name of the appellant has been introduced as he happens tobe a neighbour of the victim. It is contended by him that the 3rd accusedis also said to have participated in the crime by facilitating theappellant to commit the offence; however, on flimsy grounds, the trialcourt has acquitted him, disbelieving the evidence of PW-1. That beingso, similar benefit must have been extended to the appellant also.Adverting to the evidence of PW-1 to the effect that the complaint hasbeen written by DW-2, it is submitted that the testimony of DW-2 should betaken into consideration with all seriousness. He pointed out that thewitness for the observation mahazar has turned hostile and submittedfurther that the appellant has pleaded 'alibi' and examined DW-1 tosubstantiate the same; therefore, such plea must be accepted.8. Per contra, learned Government Advocate (Crl. Side) submitsthat the testimony of PW-1 victim girl corroborated by medical evidence issufficient to substantiate the offence. The occurrence took place duringthe night of 12.05.1999 and complaint has been given without any delay.The victim has been examined on the very next day by the Medical Officerwhose opinion clinchingly substantiates the commission of crime. Thetestimony and opinion given by the Medical Officer, who examined theaccused, can also be taken as a corroborative piece of evidence to come toa conclusion that it is only the appellant, who has committed the offence.9. I have perused the materials and carefully considered thecontentions put forth on either side. 10. The evidence of PW-1 appears to be quite natural. The victimgirl, who was sleeping on the terrace of her house, was forcibly raped bythe appellant, a neighbour. There is no question of identity involvedinasmuch as the appellant is well known to PW-1. Because of the gruesomeact of rape committed after gagging the victim, she became unconscious andimmediately after regaining consciousness, she informed the incident toher sister and mother. The poor victim girl struggled hard to escape fromthe appellant and two of his friends, however, she was overpowered, pusheddown and, with the assistance of the other two accused, violentlysubjected to rape by the appellant. The external injuries sustained byPW-1 had been graphically described by the Medical Officer, which speak ofthe brutal attack and rape on the victim. The opinion given by PW-6 onexamination of the accused also corroborates the prosecution version. The https://hcservices.ecourts.gov.in/hcservices/ reasonings assigned by the trial court for convicting and sentencing theaccused under Sections 376(1) and 450 IPC. are well founded. Therefore, Ido not find any valid ground to disturb the conclusion arrived at by thetrial court.11. In the result, the appeal is dismissed. The conviction andsentence imposed by the trial court are confirmed.JI.Sd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Sessions Judge,Magalir Neethimandram at Chennai.2. The Inspector of Police,D3, Ice House Police Station,Chennai-53. The Superintendent,Central Prison,Chennai.4. The Public Prosecutor,Madras.5. The District Collector, Chennai. 6. The Director General of Police, Chennai. RL(CO)dcp/18.7.07C.A. No.1328/2002.