Madras High Court
Madesh vs State By The Inspector Of Police on 9 January, 2023
Bench: P.N.Prakash, N.Anand Venkatesh
Crl.A.No.631 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgement Reserved on : 04..01..2023
Judgement Pronounced on : 09..01..2023
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mr. Justice N.ANAND VENKATESH
Criminal Appeal No.631 of 2022
and
Crl.M.P.No.8369 of 2022
Madesh
Son of Venkatraj ..... Appellant
-Versus-
State by The Inspector of Police,
All Women Police Station,
Denkanikottai, Krishnagiri District.
[Crime No.20 of 2015] .... Respondent
Appeal filed under Section 374(2) of the Code of Criminal Procedure,
1973 against the judgement and order dated 09.10.2020 passed by the learned
Sessions Judge. Fast Track Mahila Court, Krishnagiri, in S.c.No.143 of 2016
convicting the appellant for offences u/s 341, 354 and 376(1) of IPC and
sentencing to undergo 1 (One) month rigorous imprisonment for offence u/s
341 of IPC; to undergo rigorous imprisonment for three years and to pay a
fine of Rs.1,000/- for u/s 354 of IPC in default of payment of fine to suffer
rigorous imprisonment for a further period of 3 (Three) months; and to
undergo imprisonment for life and to pay a fine of Rs.1,000/- for offence u/s
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Crl.A.No.631 of 2022
376(1) of IPC in default of payment of fine to suffer rigorous imprisonment
for a further period of 6 (Six) months.
For Petitioner : Mr.E.Kannadasan
For Respondents : Mr.M.Babu Muthumeeran,
Additional Public Prosecutor
JUDGEMENT
N.ANAND VENKATESH.J., This Criminal Appeal has been filed against the judgement and order, dated 09.10.2020, passed by the Sessions Judge (Fast Track Mahila), Namakkal in S.C.No.143 of 2016 convicting and sentencing the appellant in the following manner:-
Sl. Convicted for offence Sentenced to undergo No. under 1 Section 341 of IPC Rigorous Imprisonment for 1 (One) month for offence u/s 341 of IPC;
2 Section 354 of IPC Rigorous Imprisonment for 3 (Three) years and to pay a fine of Rs.1,000/- for u/s 354 of IPC in default of payment of fine to suffer rigorous imprisonment for a further period of 3 (Three) months Section 376(1) of IPC Imprisonment for Life and to pay a fine of Rs.1,000/- for offence u/s Page 2 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 Sl. Convicted for offence Sentenced to undergo No. under 376(1) of IPC in default of payment of fine to suffer rigorous imprisonment for a further period of 6 (Six) months All the above sentences were ordered to run concurrently
2. The case of the prosecution in brief is as follows:-
(i) P.W.3, the prosecutrix, is the daughter of P.W.1 and P.W.2 and she is a differently-abled (dumb) girl. On 25.08.2015, P.W.3 was proceeding towards her house at about 04.00 p.m. but, she did not reach her house for a long time. Hence, P.W.1, who is the father of P.W.3, started searching for P.W.3 and he found the victim girl lying undressed near Kolappa's Garbage Dumping Yard. On seeing P.W.1, the appellant is said to have fled from the place of occurrence. Further case of the prosecution is that the victim girl was also threatened by the appellant with dire consequences.
P.W.1 enquired the victim girl and she explained that the appellant attempted to kiss her and the appellant was pushed down; hence, the appellant slapped her and thereafter disrobed her and committed penetrative sexual assault against her.
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(ii) On 26.08.2015, at about 11.00 a.m., P.W.1 lodged a complaint (Ex.P1) before All Women Police Station, Denkanikottai. An FIR (Ex.P9) came to be registered in Crime No.20 of 2015). The investigation was taken up by P.W.17. By then, P.W.12, who was the Sub-Inspector of Police, went to the scene of crime at about 12.00 noon and prepared an observation mahazar (Ex.P4) and a rough sketch (Ex.P10). P.W.12 also sent the victim girl for medical examination to Denkanikottai Government Hospital and P.W.3 was examined by P.W.13 and through her, accident register was marked as Ex.P11. On examination of the victim girl, P.W.13 referred her to P.W.16, who examined the victim girl and gave a final opinion (Ex.P15). For Proper appreciation, the answers given to the queries and the final opinion are extracted hereunder:-
tpdhf;fs; :
(1) ghjpf;fg;gl;l bgz; fw;gHpf;fg;gl;Ls;shuh?
The above mentioned victim has been examined . The required samplings have been taken and sent for forensic analysis at tertiary centre. Report awaited.
Page 4 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 (2) ghjpf;fg;gl;l bgz;zpw;F fz;zpj;jpiu fpHpe;Js;sjh? ,y;iyah?
The above mentioned victim has been examined, there is minimal congestion at 4 'O' – 5 'O' clock position of the hymen along with minimal tear at present.
(3) jla';fs; VnjDk; bjd;gLfpwjh?
The above mentioned victim has been examined, no external injuries in relation with rape can be detected at present.
(4) ghjpf;fg;gl;l bgz;zpw;F taJ mwptpay;hj P pahf tH';ft[k;/ (5) ghjpf;fg;gl;l bgz;zplk; ,Ue;J Smear, Swab, Hair ,itfis nrfuk;
bra;at[k;/ The above mentioned, victim has been examined, samples taken.
2 – Vaginal swabs 2 – Vaginal swab side 2 – Container containing vaginal wash Hair clippings (pubic hair) taken. Nail clippings taken.
Samples taken and sent for forensic analysis.
Opinion: I am of the opinion that the Page 5 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 forensic report analysis is negative for spermatozoa.
(SLM/BIOL/457/2015 and
ALM/BIOL/469/18 DATE 28.11.15 the
possibility of penetrative sexual assault cannot be ruled out.
After the examination of patient there is minimal congestion at 4 'o' – 5 'o' clock position of the hymen along with minimal tear at present.”
(iii) On taking up the investigation, P.W.17 produced the victim girl before the Judicial Magistrate-I, Hosur, for getting recorded the statement of the victim girl and the Magistrate, in turn, recorded the statement of the victim girl u/s 164 of Cr.P.C. and the said statement has been marked as Ex.P2. The material objects were collected and they were sent for scientific analysis. The appellant surrendered before the Judicial Magistrate, Denkanikottai, and he was taken on police custody by P.W.17. The appellant was also sent for medical examination and he was examined by P.W.14 and the report was marked through this witness as Ex.P14. It is clear from the report that the appellant was aged about 19 years at the time of commission Page 6 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 of the crime. Ex.P13 was also marked through P.W.14, wherein, it was found that there is nothing to suggest that the appellant is impotent.
(iv) P.W.17 recorded the statements of the witnesses u/s 161(3) of Cr.P.C. and also collected all the medical and scientific reports. The final report was prepared and was placed for the opinion of the Public Prosecutor. At that stage, since P.W.17 was transferred, P.W.18 followed up and filed the final report on 14.12.2015 before the Judicial Magistrate, Denkanikottai. The copies were served on the appellant u/s 207 of Cr.P.C. and the case was committed to the Court of Session and thereafter, it was made over to the court below for trial.
3. The court below framed charges for offence u/s 341, 354, 376(1) and 506 Part II IPC against the appellant. When the appellant was questioned on the charges, he denied the same as false. Thereafter, he was put on trial.
4. The prosecution examined P.W.1 to P.W.18, marked Ex.P.1 to P.22 and identified and marked M.O.1 to M.O.3. The incriminating evidence that Page 7 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 was collected in the course of trial was put to the appellant when he was questioned u/s 313(1)(b) of Cr.P.C. and he denied the same as false. However, no witness was examined nor any document marked from the side of the appellant.
5. The court below on considering the facts and circumstances of the case and on appreciating the oral and documentary evidence came to a conclusion that the prosecution has proved the case against the appellant for offence u/s 341, 354 and 376(1) of IPC beyond reasonable doubts and decided to convict and sentence the appellant as stated in the first paragraph of the judgement and acquitted the appellant from the charge u/s 506 Part II IPC for want of evidence.
6. Heard Mr.E.Kannadasan, learned counsel for the appellant and Mr.M.Babu Muthumeeran, learned Additional Public Prosecutor for the respondent.
7. The main focus of the argument of the learned counsel for the appellant was that there was a material contradiction between the evidence of Page 8 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 the Doctors viz., P.W.13 and P.W.16, who examined the victim girl and it is not clear from their evidence as to whether there was any penetrative sexual assault committed against the victim girl. It was also further pointed out that the evidence of the victim girl examined as P.W.3 with the assistance of a Special Educator also does not point to the fact that the appellant had committed penetrative sexual assault against the victim girl.
8. The learned counsel for the appellant concluded his argument by submitting that the appellant was aged about 19 years at the time of the incident, hence, the life sentence imposed by the court below is very harsh and he prayed for a reduction of the sentence.
9. In a case of rape the main evidence that has to be taken into consideration by a court is the evidence of the prosecutrix. It is not necessary to search for any corroboration, if the evidence of the prosecutrix does not lack any credibility. In view of the same, it is necessary for this court to first consider the evidence of the prosecutrix, who was examined as P.W.3. Since the prosecutrix was incapable of speaking (dumb), the assistance of the Page 9 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 Special Educator (P.W.4) was taken and the evidence was recorded. This court deems it fit to extract the entire evidence of P.W.3 hereunder:-
“(rhl;rpf;F tha; ngr Koatpy;iy/ iriffs;
K:yk; nfl;Fk; nfs;tpfSf;F g[hpe;J bfhz;L
gjpy; brhy;y Kofpd;wJ/ rhl;rpaplk;
bfyk';fyk; tl;lhu ts ikaj;jpy; rpwg;g[
gapw;Weuhf gzpg[hpa[k; gapw;Weh; fyhnjtp
mth;fs; cjtpnahL irif bkhHpapy; nfs;tp nfl;fg;gl;L rhl;rp brhd;d gjpy;fis gapw;Weh; fyhnjtp mth;fs; tpthpj;J brhd;dgo mth; cjtpa[ld; tphpthf;fk; bra;J fzpzpapy; rhl;rpaj;jpd; rhl;rpak; gjpt[ bra;ag;gl;lJ) Kjy; tprhuiz ,d;W ePjpkd;wj;jpy; M$uhfpapUf;Fk; m/rh/1 ,uhika;ah vd;Dila mg;gh/ m/rh/2 yl;Rkk;kh vd;Dila mk;kh/ ehd; vd; mk;kh.
mg;ghnthL FoapUf;fpd;nwd;/ M$u; vjphpia
vdf;F bjhpa[k;/ vjphp v';fs; tPlo
; w;F
gf;fj;jpy; ,Uf;fpd;whh;/ vdf;F Kjypy; vd;d ele;jJ vd;W brhy;y Koa[k;/ vjphp Foj;Jtpl;L te;J vd;id kiss gz;z nghdhh;/ ehd; vjphpia gpoj;J js;spndd;/ mg;nghJ vjphp vd;Dila fd;dj;jpy;
moj;Jtpl;lhh;/ vd;Dila Jzpfis vjphp
fHw;wpdhh;/ vjphp vd;Dila khh;ig gpoj;J
frf;fpdhh;/ vjphp vd;Dila Jzp KGtija[k; vLj;Jtpl;lhh;/ vjphp vd;id fPnH js;sptpl;lhh;/ gpd;g[ rhl;rp jdJ gpwg;g[Wg;ig fhz;gpj;J Page 10 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 vjphp mth; nkny gLj;J jg;ghf ele;J bfhz;lhh; vd;W brhd;dhh;. (rhl;rp gjpy; brhy;Yk; nghJ kpft[k; mGjhh;)/ vd; mg;gh m';nfapUe;J te;jhh;/ vd; mg;gh. Vd; mk;kh vd;id nghyP!; !;n;lrDf;F Tl;of;bfhz;L nghdhh;fs;/ gpd;g[ vd;id M!;gj;jphpf;F Tl;of;bfhz;L nghdhh;fs;/ gpd;g[ XR{hpy; ,e;j khjphpa[s;s nfhh;lo ; w;F Tl;of;bfhz;L nghdhh;fs;/ m';F c';fs; Kd;ghf (Or;riu fhz;gpj;J brhd;dhh;) ehd; ngrp brhd;d tptu';fspy; ifnuif itj;njd;/ ehd;
bfhLj;j thf;FK:yk; m/rh/M/2 ,e;j tHf;F rk;ke;jkhf Ma;thsh; vd;id tprhhpj;jhh;fs;/ vjphp jug;g[ FWf;F tprhuiz” vjphpia vdf;F ehd; Fhe;ijahf ,Ue;jjpypUe;nj bjhpa[k;/ vd; mg;gh ntiy ghh;j;j epyj;jpw;Fk; v';fs; tPlo ; w;Fk; ,ilna bfh";rk; mjpf Jhuk; cs;sJ/ rk;gt ele;jnghJ me;j ,lj;jpw;F vd; mg;gh te;jhh;/ rk;gtj;jpw;F gpd;g[ vd; mk;kh jhd; vdf;F cilfis nghl;Ltpl;lhh;/ ehd; Kjy;
tprhuizapy; rk;gtk; ele;jjhf brhd;d
tptuk; tHf;fpw;fhf bgha;ahf brhy;fpnwd;
vd;W brhd;dhy; rhpay;y/
kWtprhuiz : ,y;iy/”””
10. On a careful reading of the above evidence, we have no doubt in our mind that the victim girl has identified the appellant since he was residing near the residence of the victim girl and she has explained as to what actually Page 11 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 happened on the fateful day. The evidence of P.W.3 is credible and hence, this court is inclined to act upon the evidence of P.W.3.
11. The evidence of P.W.3 is corroborated by the evidence of the Doctor, who was examined as P.W.16. The opinion of the Doctor – P.W.16, extracted supra, makes it very clear that the victim girl has been subjected to sexual assault and minimal congestion was found in the hymen along with the minimal tear. This evidence further corroborates the evidence of the victim girl.
12. The court below has properly appreciated the evidence and has come to the correct conclusion that the prosecution has proved the case beyond reasonable doubts and this court does not find any ground to interfere with such finding of the court below.
13. The next issue to be considered is regarding the plea made by the learned counsel for the appellant for reduction of the sentence imposed by the court below for offence u/s 376(1) of IPC.Page 12 of 15
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14. The appellant was aged about 19 years at the time of incident. It seems that the appellant was under the influence of alcohol and the same has been spoken to by the victim girl (P.W.3). Considering the facts and circumstances of the case and the age of the appellant at the time of the incident, we deem it just and reasonable to reduce the sentence of substantive imprisonment alone insofar the offence u/s 376(1) of IPC is concerned to rigorous imprisonment for 10 (Ten) years.
In the result, The conviction of the appellant for offence u/s 341, 354 and 376(1) of IPC are sustained; the sentence imposed for the offence u/s 341 and 354 of IPC are also sustained; insofar as the offence u/s 376(1) of IPC is concerned, the substantive sentence is modified and the appellant is directed to undergo rigorous imprisonment for 10 (Ten) years for offence u/s 376 (1) of IPC and the fine and default sentence imposed thereof are sustained. All the above sentences shall run concurrently and the period of sentence already undergone by the appellant in this case shall be set off u/s 428 of Cr.P.C.
This Criminal Appeal is partly allowed accordingly to the extent Page 13 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 indicated herein above. Consequently, connected Crl.M.P. stands closed.
(P.N.P., J.) (N.A.V.,J.)
09..01..2023
Index: Yes/No
kmk
To
1.The Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District.
2.The Inspector of Police, All Women Police Station, Denkanikottai, Krishnagiri District.
3.The Public Prosecutor, High Court, Madras. Page 14 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2022 P.N.PRAKASH.J., AND N.ANAND VENKATESH.J., kmk Pre Delivery Judgement in Crl.A.No.631 of 2022 Judgement Pronounced on
09..01..2023 Page 15 of 15 https://www.mhc.tn.gov.in/judis