High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19-07-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.Nos.683 and 863 of 20041.L.Murugan2.Madhesh..Petitioners inCrl.R.C.No.683/2004 /A1 and A2Jaganathan .. Petitioner in Crl.R.C.No.863/2004/A3-vs-State byThe Inspector of PoliceMagudanchavadi Police Station,Mugudanchavadi, Salem District(crime No.693/1994).. Respondent in both revisionsThese revisions are filed against the Judgment inC.A.No.100 of 2003 dated 9.2.2004 on the file of the learnedAdditional District and Sessions Judge( Fast Track Court NO.2)Salem confirming the Judgment in S.C.No.80 of 2003 dated 18.7.2003on the file of the learned Assistant Sessions Judge, Sankari.For Petitioners inCrl.R.C.No.683/2004 : Mr.K.V.SridharanFor petitioner inCrl.R.C.No.863/2004 : Mr.B.VasudevanFor respondent in both revisions : Mr.V.R.Balasubramaniam, Additional Public ProsecutorC O M M O N O R D E R Crl.R.C.No.683 of 2004 has been preferred by A1 and A2 andCrl.R.C.No.863 of 2004 has been preferred by A3 in S.C.No.80 of2003 on the file of the Assistant Sessions Judge, Sankari, Salem. https://hcservices.ecourts.gov.in/hcservices/

2. The short facts of the prosecution case sans irrelevantparticulars are that on 21.7.1994 at about 5.00p.m., when thevictim girl"A" aged 14, while retuning from Upparapattiyar , afterparking her cycle near a tea shop was proceeding to her house via.,Ayyathurai Kuttichikattu both A1 and A2 wrongfully restrained andcaught hold of her committed the offence of rape and A3 had gaggedthe victim in order to facilitate A1 and A2 to commit the crime. A1and A2 were charged under Sections 341 and 376 of IPC and A3 wascharged under Sections 341,323, and 376 r/w 511 of IPC. The chargesheet was filed before the learned Judicial Magistrate No.2,Sankagiri who had issued summons to the accused and on theirappearance furnished copies under Section 207 of Cr.P.C.and sincethe case is exclusively triable by the Court of Sessions, who hadcommitted under Section 209 of Cr.P.C.. On appearance of theaccused, the learned Sessions Judge framed charges as indicatedabove against the accused and when questioned, the accused pleadednot guilty.3. On the side of the Prosecution , P.Ws 1 to 10 wereexamined. Exs P1 to P17 were exhibited and M.Os 1 to 7 were marked.4. P.W.1 is the victim girl"A". According to her, theoccurrence took place while she was studying in IX Standard atElampillai Government Girls Higher Secondary School and that on21.7.1994, her father had left for Sankipuram to see her(P.W.1's)sister and in order to facilitate him to go to the village, she hadleft her bicycle at the tea shop at Upparapattiyar village nearChiththarkoil and was returning to her house at about 4.30p.m,while she was proceeding through Ayyanthuraikutchikattu, A1 and A2wrongfully restrained and caught hold of her A1 had torn herinskirt and outraged her modesty and committed the offence of rape.Thereafter, A2 also committed the same offence on her and A3 wasguarding both A1 and A2 at the time of occurrence and had alsoclosed her mouth and also beat her with hands on her back andcheek and that she raised the distress call which attracted hermother who was grazing the cattle nearby and on seeing her mother,all the three accused ranaway from the place of occurrence andwhen her mother enquired about the incident she explained to herabout the commission of the offence committed by the accused andher mother took her on her shoulder to her house. She would furtherdepose that at 7.00p.m on the same day, the accused came to herhouse and criminally intimidated her with dire consequences andthat her father did not turn up on the occurrence day but returnedonly on the following day at about 11.00p.m. and on the next day ofher father's arrival, a complaint was preferred by her under Ex P1`with the police and that she was referred to the GovernmentHospital, Salem. He has handed over M.O.1 torn inskirt, M.O.2 tornjacket and M.O.3 torn Gown she was wearing at the time ofoccurrence. https://hcservices.ecourts.gov.in/hcservices/ 4a. P.W.2 is the mother of P.W.1 According to her, while shewas grazing her cattle near the place of occurrence on 21.7.1994 atabout 5.00p.m., her daughter "A" who was returning after leavingthe bicycle near a tea shop , she heard the distress call from herdaughter"A' immediately she rushed to the place of occurrence andher daughter"A" had narrated what had happened to her andspecifically her daughter has stated that A1 and A2 have raped herand that A3 had closed her mouth and that she took P.W.1 to herhouse and that the accused came in the night and criminallyintimated them, if they prefer any complaint against them, theyhave to meet the dire consequences. Since her husband was out ofstation, she could not prefer any complaint on the same night andher husband returned to the house only on the following day at11.00p.m., and hence the complaint was preferred on the followingday after her husband's arrival.4b. P.W.3 is the father of P.W.1 According to him , he leftfor Sinkipuram on 21.7.1994 to see his elder daughter and that hereturned only on 22.7.1994 at about 11.00p.m and that both P.W1 andP.W.2 had narrated the incident and that a complaint was preferredon 23.7.1994 by her daughter P.W.1.4c. P.W.7 is the Sub Inspector of Police who had registeredthe case under Magudanchavadi Police Station Crime No.693 of 1993on the basis of Ex P1 complaint preferred by P.W.1. Ex P8 is copyof the First Information report. He had visited the place ofoccurrence and prepared Ex P2 observation mahazar in the presenceof P.W.4. He had also drawn a rough sketch Ex P9 in the presence ofwitnesses. He has examined the witnesses and recorded theirstatements and he had sent the material objects seized by him tothe Court under Ex P10 Form 95. He has arrested A1 and A2 on24.7.1994 at about 9.00a.m., and had seized their wearing apparelsM.O.4 to M.O.7 and sent to the Court under Ex P10 form 95.According to him, A3 had surrendered before him, was arrested byhim and that the accused were produced before the JudicialMagistratre , Sankari for remand and that he had sent Ex P11 letterof requisition requesting the Court to subject A1 and A2 formedical examination 4d. P.W.10 is the doctor who had examined A1` and A2 andissued Exs P16 and P17 certificates respectively stating that bothA1 and A2 are potent. The victim girl P.W.1 was examined by P.W.5the doctor Maharani on 25.7.1994 at about 10.00p.m., and thataccording to her, the victim girl P.W.1 had informed that she(P.W.1) was raped by two known persons on 21.7.1994 at about5.30p.m., and that she had not noticed any external injuries on thevictim girl but found her hymen was ruptured and that smear wastaken and sent for chemical examination. Ex P3 is the copy of theaccident register and Ex P4 is the final opinion. https://hcservices.ecourts.gov.in/hcservices/ 4e. P.W.6 is the doctor who had examined both A1 and A2 forthe injuries, they have sustained and issued Ex P5 and Ex P6 copyof the accident register respectively. He has also examined P.W.1on the same date at about 11.15a.m and that she had informed himthat she was way laid and raped by known persons and that hereferred her to be examined by a lady doctor. Ex P7 is the copy ofthe accident register relating to P.W.1. 4f.P.W.9 is the then head clerk of Judicial Magistrate'sCourt, Sankagiri. On the basis of Ex P12 letter of requisitionreceived from the Investigation Officer , he had sent the materialobjects connected with this case to the forensic science laboratoryfor chemical examination through Ex P13 letter of requisition. ExP14 is the analyst's report . Ex P15 is the serologist's report.4g.P.W.8 is the successor of P.W.7 who after completing theformalities had filed the charge sheet against A1 to A3.5. When incriminating circumstances under Section 313 Cr.P.C.were put to the accused, they would deny their complicity with thecrime. The accused have examined a teacher in Elampillai GovernmentHigher Secondary School through whom Ex D1 admission register andExD2 Attendance Register relating to P.W.1 were marked.6. After going through the materials available on recordbefore the trial Court by the prosecution including the oral anddocumentary evidence, the learned trial Judge has come to aconclusion that the offence under Sections 341 and 376 of IPC havebeen proved beyond any reasonable doubt against A1 and A2 andaccordingly convicted and sentenced them to undergo one monthrigorous imprisonment under Section 341 of IPC each and seven yearsrigorous imprisonment each under Section 376 of IPC and slapped afine of Rs.3000/- each with default sentence. The learned trialJudge has also convicted A3 under Section 323 of IPC to undergoone month rigorous imprisonment and convicted A3 under Section 376r/w 511 of IPC to undergo seven years rigorous imprisonment andlevied a fine of Rs.3000/- with default sentence. Aggrieved by thefindings of the learned trial Judge, the accused have preferred anappeal in C.A.No.100 of 2003 on the file of the Additional SessionsJudge(Fast Track Court No.2) Salem. The learned Sessions Judgealso concurred with the findings of the learned trial Judge afterscanning the evidence and after hearing both sides whichnecessitated A1 and A2 to prefer Crl.R.C.No.683 of 2004 and A3 toprefer CrlR.C. No.863 of 2004 before this Court.7. Now the point for determination in these revisions is thatthe findings of the learned Sessions Judge in C.A.No.100 of 2003 onthe file of the learned Additional District and Sessions Judge https://hcservices.ecourts.gov.in/hcservices/ ( Fast Track Court NO.2) Salem is liable to be set aside for thereasons stated in the memorandum of revisions in Crl.R.C.Nos.683and 863 of 2004 ?8. Heard Mr. K.V.Sridharan, learned counsel appearing for therevision petitioners in Crl.R.C.No.683 of 2004 and Mr.B.Vasudevan,learned counsel appearing for the revision petitioner inCrl.R.C.No.863 of 2004 and Mr.V.R.Balasubramaniam, the learnedAdditional Public Prosecutor for the State and considered theirrespective submissions.9. The Point:The learned counsel appearing for the revision petitioners inCrl.R.C.No.683 of 2004 would contend that both the Courts belowhave failed to note the inordinate delay in preferring thecomplaint Ex P1. According to the prosecution case, the occurrencehad happened on 21.7.1994 at 5.p.m., but the complaint waspreferred only on 23.7.1994 at 3.15p.m., and there was noacceptable reasons forthcoming from the side of the prosecution forthis in ordinate delay. But both P.W.1 and P.W.2 have deposed intheir evidence that P.W.2's husband who is out of station on thedate of occurrence had returned only on 22.7.1994 at about11.00p.m., and they have further deposed in their evidence thateven on the date of occurrence at 7.00p.m.,the accused came thereand criminally intimidated them with a dire consequences if theypreferred complaint against them. It is natural that under suchcircumstances, under fear, both P.W.1 and P.W.2 womenfolk couldnot prefer any complaint without any assistance of a male member.Only after the arrival of the husband of P.W.2, they have decidedto prefer a complaint on the next day ie., on 23.7.1994 throughP.W.1. Under such circumstances the delay in this case cannot betaken as an inordinate delay to vitiate the entire case of theprosecution as rightly held by the Courts below.10. The learned counsel appearing for the revision petitionersin Crl.R.C.No.683 of 2004 would focus the attention of this Courtto the evidence of P.W.5, the doctor who had examined the victimgirl"A" on 25.7.1994 had not noticed any external injuries on theperson of the victim girl P.W.1 According to the learned seniorcounsel, the case of the prosecution that there was sexual assaulton the victim by the accused cannot be sustainable on the evidenceof P.W.5, the doctor who had deposed that there was no externalinjury found on the person of the victim. The learned seniorcounsel would further contend that since there was no resistanceof the victim, it cannot be said that the accused have forcibly hadsexual intercourse with her. But the learned Additional PublicProsecutor would bring to the notice of this Court that at the timeof the occurrence, the age of the victim girl was only 14 and she https://hcservices.ecourts.gov.in/hcservices/ was a minor and as per Section 375 of IPC 'Sixthly' if the victimgirl is below the age of 16 years then to constitute an offenceher consent with or without is not necessary. P.W.5 the doctor hasstated that on her examination, she could find the hymen of thevictim girl ruptured. So the evidence of P.W.1 coupled with theevidence of P.W.5 the doctor would clearly go to show that A1 andA2 have committed the offence of rape on her(P.W.1).11. A vain attempt by way of defence was made before the trialCourt by the accused is that the offence was committed by oneRajalingam and that the occurrence has been published in thenewspaper also. But to substantiate this defence, the accused havenot produced any defence witness or produced the newspaper in whichthe said news was said to have been published. But the chargeagainst A1 and A2 has been proved by substantial evidence by theprosecution to warrant conviction under Sections 341 and 376 of IPCas rightly observed by the Courts below.12.The learned counsel appearing for A3/revision petitioner inCrl.R.C.No.863 of 2004 would contend that absolutely there is noevidence has been made out against A3 even according to P.W.1, A3had closed her mouth at the time of occurrence but before theDoctor P.W.5 the victim girl had informed that only two personshave committed the offence of rape on 21.7.1994. Further noconfession statement has been recorded by the police from A3. If A3would have closed the mouth of the victim girl at the time ofoccurrence with force, some injury would have been seen on themouth of the victim girl. But according to P.W.5 there is noexternal injury found on the body of P.W.1.Under such circumstancesI am of the view that the charge levelled against A3 has not madeout to warrant conviction against A3.13. Now coming to the question of sentence, the learnedcounsel appearing for the revision petitioners(Crl.R.C.No.683/2004)relying on a decision reported in Rajkumar alias Raju Yadhv AliasRajkumar Yadav-v-State of Bihar(2006(3) Supreme Court Cases(cri)112) contended that admittedly there is a delay in preferring thefirst information report in this case and also as per the evidenceof P.W.5, the Doctor the victim girl is subject herself to thesame nature of offence previously also. The exact observation inthe above said dictum runs as follows:"Keeping in view the fact that there was adelay of three days in lodging the FIR and thefact that the Doctor (P.W.6), who examined thevictim, in her testimony has deposed that shedid not find any confirmatory evidence of rapeon the victim, in the peculiar facts andcircumstances of the present case, we deem it https://hcservices.ecourts.gov.in/hcservices/ appropriate to reduce the sentence awarded tothe appellant to the period already undergone."Under such circumstances,I am of the view that the abovesaid dictumwill squarely apply to the present facts of the case also. Thelearned counsel would represent that A1 to A3 are in jail from18.7.2003 and that they have completed four years in jail as ondate. The learned Additional Public Prosecutor would admit that ifsufficient reasons are given in the Judgment, the minimum sentenceof seven years can be reduced. So for the reasons indicated above,I am of the view that in this case also, A1 and A2 can be awardedlessor sentence of period already undergone.14. In fine, Crl.R.C.No. 863 of 2004(preferred by A3) isallowed and conviction and sentence awarded by the learned SessionsJudge in C.A.No.100 of 2003 on the file of the Additional Districtand Sessions Judge (fast Track Court No.2) Salem is hereby setaside and A3 is set at liberty forthwith, if he is not required inany other case. The fine amount, if any paid by A3 shall berefunded to him. The bail bond of A3 shall stand cancelled.Crl.R.C.No.683 of 2004 is dismissed confirming the conviction ofthe learned Sessions Judge in C.A.No.100 of 2003 on the file of theAdditional District and Sessions Judge(Fast Track Court No.2) Salemagainst A1 and A2, but the sentence alone is modified to that ofthe period already undergone against A1 and A2. The fine amountpaid by A1 and A2 will sustain.sgSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Additional District and Sessions Judge/FTC NO.2,salem.2. The Principal District and Sessions Judge, Salem.3. The Assistant Sessions Judge, Sankari, Salem.4. The Principal Sessions Judge, Salem.5. The Public Prosecutor, High Court, Madras https://hcservices.ecourts.gov.in/hcservices/

6. The Superintendent of Central Prison, Coimbatore(A1 and A2)7. The Inspector of Police, Magudavanchavadi Police Station Magudanchavadi , Salem.8. The Superintendent of Central Prison, Salem(A3)+ 1 cc to Mr. K. V. Sridharan, Advocate, SR No.44679+ 1 cc to Mr. B. Vasudevan, Advocate, SR No.44227NSM(CO)SR/25.7.2007Crl.R.C.Nos.683 & 863/2004