High Court · 2007

BAIL SLIP---------The appellant/Accused namely Annadurai, was directed to be releasedon bail as per order of this Court dated 30.4.2003 and made in Crl.M.P.No.3946/2003 in CA.No. 237/2003 on the file of the Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27-06-2007THE HON'BLE MR. JUSTICE R.REGUPATHICrl.A.No.237 of 2003Annadurai . . Appellant/AccusedVersusState Rep byThe Inspector of Police,Padalur Police Station. . . RespondentThis Criminal Appeal is filed to set aside the judgment dated09.01.2003 made in S.C.No.6 of 2000 on the file of the learned PrincipalSessions and District Judge, Perambalur District convicting the appellantfor offence under Section 376 (1) and 325 IPC and sentenced him to undergoseven years and three rigorous imprisonment respectively.For Appellant : Mr.G. RavikumarFor Respondent : Mr.Hasan Mohd. Jinnah Government Advocate (Crl.Side)JUDGMENTThe appellant is the sole accused in this case and he was convictedfor the offence under Sections 376 and 325 IPC and sentenced to undergorigorous imprisonment for seven years and three years respectively.Aggrieved against the conviction and sentence the present appeal has beenfiled before this Court.2.The case of the prosecution is that the victim, who is a woman,aged about 25 years is the neighbour in the agricultural land of theaccused and the irrigation for the said land was done from the commonwell. On 17.03.1997 at about 12.30 Noon, when the victim woman PW1 wasalone, the appellant, the sole accused in this case alleged to haveforcibly pushed her down and removed her cloth and committed rape. Aftersometime, PW1 informed this to her husband PW3 who came to the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence. It is further the case of the prosecution that a Panchayat wasconvened, in which the accused failed to appear resulting in theregistration of the case after 18 days i.e. on 05.04.1997. 3. The learned trial Judge examined the victim woman as PW1, whostates that the accused pushed her down in the agricultural land at 12.30Noon and raped her. When her husband came to the scene of occurrence, sheinformed to him and subsequently a Panchayat was conducted. PW3, who isthe husband of PW1, corroborated the evidence of PW1 to the extent thatthe occurrence was informed to him. PW4, who came to the scene ofoccurrence a little later was treated as hostile. PW5 is the panchayatdarwho speaks about the allegation as well as the refusal of the accused forconciliation. PW2 is the medical officer who examined PW1 and on07.04.1997 X-ray for the left middle finger was taken and it was found tobe fractured. She was admitted in the hospital and treatment was given.PW6 is another medical officer who examined PW1 and she has given theopinion that PW1 was produced before her 22 days later of the allegedoccurrence and the victim was found to be a married woman and She couldnot find any injuries over her private parts and she has further statedthat there is no injury on her to substantiate the commission of rape.PW8, Inspector of Police, who registered the First Information Reporttaken up the initial investigation has also prepared observation mahazarattested by PW7. PW9 on completion of the investigation filed a finalreport for the offence punishable under Sections 376 and 325 IPC. Onconclusion of the trial, when the accused was questioned, he pleadedinnocence and the learned trial Judge on hearing both the counselconvicted and sentenced the appellant for the offence aforementioned. 4.The learned counsel for the appellant submits that the report wasgiven to police after 18 days of occurrence. On perusal of the evidence ofPW1, no such elaborate testimony of rape was given by her. PW3 who is thehusband of PW1 also stated that PW1 initially informed that nothing hadhappened. Further subsequently, he stated that the accused has outragedhis wife's modesty. It is further submitted by the learned counsel for theappellant that evidence of PW1 is not corroborated by the medical evidenceof PW6. PW4 has been examined as occurrence witness and she has beentreated as hostile. It is further contended that the fracture on the leftmiddle finger of PW1 would have been sustained due to fall and since theaccused happened to be neighbour in the agricultural land of the victim,the case has been foisted on him.5.Per contra, the learned Government Advocate (Criminal Side) submitsthat the evidence of prosecutrix, in an offence of rape, must be givenprimary importance and based on her testimony alone the conviction couldbe given. In the instant case, though there are no other witnesses tospeak about the offence of rape, the victim's evidence can be taken intoconsideration to sustain the conviction granted by the trial Court. https://hcservices.ecourts.gov.in/hcservices/

6.I carefully perused the materials available on record and heard thesubmissions made. On perusal of the evidence of PW1 in a grave offencelike this, though it has been simply stated that the accused raped her, ithas not been elaborated. At the time when her husband PW3 questioned her,she replied initially that nothing had happened. PW3 seen the accusedgoing away from the scene of occurrence. PW4 in her chief examinationstated that PW1 was beaten severely by her husband PW3 and she onlyadvised PW3 not to assault her any more. However she has been treatedhostile. The occurrence had taken place on 17.03.1997 and the report wasgiven after a delay of 18 days. To corroborate the testimony of PW1, noother materials are available including the medical evidence. On perusalof the medical evidence, there is nothing to substantiate the commissionof rape. On perusal of the observation mahazar, it has been stated thatthere is no material to substantiate the commission of such offence inthat place. Under Such circumstances, I am of the considered view that theoffence of rape is not substantiated and therefore the appellant isacquitted for the offence under Section 376 IPC. On perusal of the othermaterials on record, it appears that the accused is known to PW1. Thepresence of the accused in the scene of occurrence cannot be disputed andthe accused is the neighbour in the agricultural land owned by PW1. Onperusal of the materials, it appears that the accused indulged in quarrelwith PW1 and made an attempt to outrage her modesty and at that time, PW1sustained injury at the left middle finger. To substantiate such case, theevidence of PW2, the medical officer can be safely relied on. Further tosubstantiate such fracture, though X-ray has been taken it has not beenmarked during the trial. In this regard, the learned counsel for theappellant submits that the occurrence had taken place during 1997 andafter the occurrence, PW3, the husband of PW1 separated from her and he isliving with some other woman. Equally, PW1 also married some other personafter the occurrence. The appellant has undergone the ordeal of trial andappeal for a period of 10 years, leniency may be shown on the appellant inso far as imposing sentence if the appellant is convicted, on the basis ofthe materials available on record. Therefore, I am of the considered viewthat the appellant can be convicted for the offence under Section 354 r/w323 IPC. At this stage, the learned counsel for the appellant submits thatthe appellant has already undergone imprisonment for three months and 21days. Therefore, the appellant/accused is sentenced for the period alreadyundergone. With this observation, the appeal is ordered accordingly.jikrSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal Sessions and District Judge,Perambalur.2. The Superintendent Central Prison, Trichy.3. The Public Prosecutor, High Court, Chennai4. The Inspector of Police,PADALUR Police Station, Perambalur District.+ One cc to Mr. G. Ravikumar, Advocate SR 39164MDR (co)sg 30/7/07C.A.No.237 of 200327.06.2007