Senthil v. State

Bail SlipThe Appellant/Accused viz., Senthil was directed to be released onbail as per order of this Court dated 29.10.2002 and made inCRP.MP.No.10949/2002 in Crl.A.1432/2002 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 02.07.2007Coram:-The Hon'ble Mr. Justice R.REGUPATHICriminal Appeal No.1432 of 2002Senthil... Appellant vs.State rep. by Inspector of Police,Virudhachalam Police Station,Cuddalore District(Crime No.136 of 2000)... RespondentAppeal against the order of conviction and sentence passed by theAdditional District Judge (FTC No.III), Vridhachalam, dated 26.08.2002, inS.C. No.284 of 2001.For Appellant: Mr.S.SaravanakumarFor Respondent: Mr.Hasan Mohamed Jinnah,Govt. Advocate (Crl. Side)J U D G M E N TThe appellant/sole accused, who was charged with offences underSections-376 read with 511 IPC. and 341 IPC. was tried by the learnedAdditional District Judge (Fast Track Court No.III), Vridhachalam, and, onconclusion of the trial, he was found guilty of the offences charged andsentenced to undergo two years R.I. for the offence under Sections 376read with 511 IPC. and also to pay a fine of Rs.3,000/-, in default, toundergo R.I. for three months; and sentenced to undergo one month simpleimprisonment for the offence under Section 341 IPC. Both the sentenceswere ordered to run concurrently. On payment of the fine amount imposed,a sum of Rs.1,500/- was directed to be paid to PW-2, the victim girl, ascompensation. Aggrieved against the said order of conviction and sentence https://hcservices.ecourts.gov.in/hcservices/ passed by the trial court, the above Appeal is preferred before this Court.2. The case of the prosecution is that on 26.02.2000, PW-2, thevictim girl, aged about 19, is said to have gone to the field in search ofa missing bullock and at that time, the deceased, who came there, pushedher down, gagged her and committed rape on her. PW-1 is the father of the victim girl PW-2. It is his evidencethat her daughter, who went by 6.00 p.m. on that day in search of amissing bullock, did not turn up even after 6.30 p.m.; therefore, he wentin search of her and on reaching the field, he found her lyingunconscious. When questioned as to what happened, she did not reply asshe was unconscious. He brought her home and at that time, PW-4, mother ofPW-2, also arrived there. PW-2, on regaining consciousness, informed thatit was the accused who pushed her down and committed rape on her. PWs.1and 4 took PW-2 to a private hospital, where she was given treatment asshe complained pain. PW-1 requested the appellant to marry PW-2 for whichhe refused; therefore, PW-1, accompanied by PWs-2 and 4, went to thepolice Station and lodged a complaint/Ex.P1 with PW-10 Inspector ofPolice, Veppur. PWs-1, 2 and 4 speak about the case of the prosecution. PW-3 isthe Village Administrative Officer, who, on intimation from theInvestigating Officer, visited the police station and he attested thecomplaint given by PW-1. Ex.P-2 is the signature of PW-3 in ExP1. PW-5, brother of the appellant, has been examined tosubstantiate that the appellant made extra judicial confession to him,however, he has been treated as hostile. PW-6 is the witness forobservation mahazar and PW-7 for statement of the accused and both thewitnesses turned hostile. PW-8 is the Medical Officer, who examined the appellant. Ex.P7is the Age and Potency Certificate issued by PW-8 to the effect that theaccused is capable of performing sex. PW-2 was produced before PW-9,Medical Officer, on 29.02.2000 at 11.05 A.M. and, on examination, shefound that PW-2 was not subjected to any harassment and further, there isno material at all to substantiate that the victim has been subjected torape. PW-10, the Inspector of Police, after collecting all relevantmaterials including medical and forensic opinions, filed final report. 3. When questioned under Section 313 Cr.P.C. by putting all theincriminating materials available against him, the accused denied hiscomplicity in the crime and pleaded innocence. Upon hearing both theparties and perusing the oral and documentary evidence, the learned trialJudge convicted and sentenced the appellant as aforementioned, resultingin filing of the present Appeal. https://hcservices.ecourts.gov.in/hcservices/

4. Now, the point before this Court for consideration is as towhether the order of the trial court warrants interference?5. Learned counsel for the appellant submits that the occurrence tookplace on 26.02.2000 at 6 P.M., however, the complaint was given on thenext day at 3 P.M. According to him, the evidence of the Medical OfficerPW-9, who examined PW-2, would substantiate the defence plea that no suchrape had taken place as alleged by the prosecution. Stating that theevidence of PW-2 appears to be imaginary, he further submits that, on theprevious day, a private doctor is said to have examined the victim girl towhom nothing has been stated about the occurrence and the said Doctor hasnot been examined before Court. 6. Per contra, learned Government Advocate, relying on the evidenceof PW-2, submits that, at the time when PW-2 went to the field in searchof a missing bullock, it was the appellant, who forcibly pushed her down,gagged her and committed some mischief. Though PW-2 has stated that shehas become unconscious and the Medical Officer's evidence does notcorroborate the evidence of PW-2, the fact remains that she has beensubjected to some sexual harassment. Therefore, if not convicted underSection 376 read with 511 IPC, relying on the evidence of PW-2,corroborated by the testimonies of PWs-1 and 4, he may be convicted foroffences under Sections 354 and 341 IPC. 7. I have perused the materials available on record and consideredthe contentions projected by the respective counsel.8. A perusal of the evidence of the Medical Officer PW-9 shows that,during the course of examination, she did not notice any injury on theprivate parts of the victim girl. Further, she has specifically statedthat there is no material to substantiate/suggest that the victim has beensubjected to sexual intercourse. Thus, though PW-2 has positively statedthat she has been subjected to rape, such version is not corroborated bythe evidence of the Medical Officer. More over, PW-2 herself has statedthat she became unconscious at that time. From this, it appears that evenat the first instance itself, when the appellant dragged her to a privateplace, she became unconscious and thereafter nothing happened. That beingso, this Court can safely come to a conclusion that the appellant did notgo to the extent of committing rape, however, he has committed the offenceof outraging the modesty of a woman. Therefore, while setting aside theconviction and sentence imposed for the offences under Sections 376 readwith 511 IPC., I am of the considered view that the appellant could beconvicted for the offences punishable under Sections 354 and 341 IPC. 9. Learned counsel for the appellant submits that, during the courseof trial and appeal, the appellant was in judicial custody for a period of70 days. On verification, learned Government Advocate submits that PW-2,the victim girl subsequently got married and settled in a neighbouringvillage. https://hcservices.ecourts.gov.in/hcservices/ In view of the facts and circumstances involved, the period ofsentence already undergone by the appellant is treated as the sentence foroffences under Sections 354 and 341 IPC. With this modification, theappeal stands disposed of. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarJI.To1. The Addl. District Judge, (FTC No.III), Vridhachalam.2. -do-Thro' The Principal Session Judge,Cuddalore District.3. The Public Prosecutor,High Court, Madras.4. The Inspector of Police, Virudhachalam Police Station,Cuddalore District, (Crime No.136 of 2000)1 cc To Mr.S.Saravana Kumar, Advocate, SR.39898.Crl.Appeal No.1432/2002.MDR(CO)RVL 19.07.2007