Madras High Court
Radha vs State Represented By on 1 February, 2019
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 20.11.2018
PRONOUNCED ON : 01.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
CRL.R.C.(MD)No.588 of 2009
Radha ... Petitioner / Appellant / Accused
-Vs-
State Represented by
The Inspector of Police,
Thanjavur East Police Station,
Thanjavur, Thanjavur District.
(Crime No.556 of 2006) ... Respondent / Respondent /
Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401
Cr.P.C., praying to set aside the conviction and sentence imposed upon
her in S.C.No.479 of 2008 on the file of the learned Additional Sub
Judge, Thanjavur, by judgment dated 02.04.2009, wherein the
petitioner was convicted under Section 366(A) IPC to undergo three
years rigorous imprisonment and pay Rs.1,000/- as fine in default to
undergo three months rigorous imprisonment, under Section 368 IPC
to undergo three years rigorous imprisonment and to pay a fine of Rs.
1,000/- in default to undergo three months rigorous imprisonment and
under Section 344 IPC to undergo six months rigorous imprisonment
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and to pay a fine of Rs.500/- in default to undergo two months
rigorous imprisonment, which was modified in Crl.A.No.12 of 2009 on
the file of the learned I Additional Sessions Judge (Protection of Civil
Rights), Thanjavur, wherein the conviction under Section 366(A) IPC
was set aside and the petitioner was convicted under Section 363 IPC
and sentenced to undergo two years rigorous imprisonment and to
pay Rs.1000/- as fine in default to undergo three months rigorous
imprisonment and under Section 368 IPC to undergo two years
rigorous imprisonment and to pay a fine of Rs.1000/- in default to
undergo three months rigorous imprisonment and the conviction and
sentence was confirmed under Section 344 IPC by judgment dated
05.09.2009.
For Petitioner : Mr.A.Thiruvadi Kumar
For Respondent : Ms.M.Anantha Devi,
Government Advocate (Crl.Side)
ORDER
The convicted accused is the revision petitioner herein. She has filed this Criminal Revision Case to set aside the conviction and sentence imposed upon her in S.C.No.479 of 2008 on the file of the learned Additional Sub Judge, Thanjavur, by judgment dated 02.04.2009, wherein the petitioner was convicted under Section 366(A) IPC to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment, under Section 368 IPC to undergo three years rigorous http://www.judis.nic.in 3 imprisonment and to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment and under Section 344 IPC to undergo six months rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo two months rigorous imprisonment, which was modified in Crl.A.No.12 of 2009 on the file of the learned 1st Additional Sessions Judge (Protection of Civil Rights), Thanjavur, wherein the conviction under Section 366(A) IPC was set aside and the petitioner was convicted under Section 363 IPC and sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.1000/- in default to undergo three months rigorous imprisonment and under Section 368 IPC to undergo two years rigorous imprisonment and to pay a fine of Rs.1000/- in default to undergo three months rigorous imprisonment and the conviction and sentence was confirmed under Section 344 IPC, by judgment dated 05.09.2009.
2.The respondent police filed charge sheet against the accused herein for the offences under Sections 366(A), 344 and 368 IPC along with one Devarajan for alleged offence under Section 368 IPC, alleging that while the victim girl, namely, Dowlath Nisha, aged about 8 years, was standing before Keela Alangam Municipal School, the accused persons kidnapped the victim girl and kept as a http://www.judis.nic.in 4 housemaid in the house of the second accused at Ambatur, Chennai and the second accused is relative to the first accused. Thereafter, on 01.04.2007 at about 08.00 A.M., the first accused has wrongfully confined her in her house and accordingly, charged for the above sections.
3.The second accused was absconding. Therefore, trial was conducted only against the first accused / revision petitioner herein. During trial, the trial Court framed charges against the accused herein under Sections 366(A), 368, 344 IPC.
4.During the trial, the prosecution has examined P.W.1 to 11 and marked Exs.P.1 to P.5.
5.On consideration of both oral and documentary evidence, the trial Court convicted the accused as stated supra. As against the said conviction and sentence, the first accused has filed an appeal in Crl.A.No.12 of 2009 before the learned I Additional Sessions Judge, (Protection of Civil Rights), Thanjavur, and the Appellate Court, by its judgment dated 05.09.2009, converted the conviction under Section 366(A) IPC into Section 363 IPC and reduced the sentence and also http://www.judis.nic.in 5 reduced the sentence imposed under Section 368 IPC to two years instead of three years by partly allowing the appeal.
6.Challenging the above said conviction and sentence, the convicted first accused has preferred this revision case.
7.The learned counsel appearing for the revision petitioner contended that the Courts below had solely relied upon the testimony of P.W.6 Dowlath Nisha, the child witness, whose evidence bristles with material omissions and contradictions. The Courts below ought to have seen that the evidence of P.W.6 is not corroborated in material particulars with that of the other prosecution witnesses. It is submitted that the evidence of P.W.6 is full of improvements and would clearly establish that she has been tutored by the prosecution. The case of P.W.6 in the Court is totally contradictory to that of the prosecution version. Both the trial Judge and the Lower Appellate Judge ought not to have brushed aside the improvement and contradictions of P.W.6. It is submitted that the case of the defense is very much probablized by the admission of P.W.6 in the cross- examination and her conduct and the Lower Appellate Court ought to have seen that the independent witness P.W.8 Mani, had turned hostile http://www.judis.nic.in 6 and the Courts below ought to have shifted the burden upon the accused for not providing proper explanation about the confinement of the victim girl P.W.6, which is against the fundamental principle of criminal jurisprudence.
8.Ms.M.Anantha Devi, learned Government Advocate (Crl.Side) appearing for the respondent police contended that the victim girl has been examined as P.W.6 and her evidence is clear and cogent and she had clearly described the act of the accused in kidnapping her from the school with false protest that her mother was admitted in hospital and wrongly restrained by the accused 1 and 2 at the house of the second accused at Ambatur, Chennai and subsequently, she has been shifted to Thanjavur from where the police has rescued her and the evidence of the school teacher P.W.3, categorically stated that she has been removed from the school in the middle of the school working hours and therefore, all the offences contained therein has been proved.
9.Heard the learned counsel appearing for the revision petitioner, the learned Government Advocate (Crl.Side) appearing for the respondent and perused the materials available on record carefully.
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10.The points for determination in this revision case are whether the orders of conviction passed by the Courts below are sustainable in law or not? and whether the sentence passed by the Courts below is excessive or not?.
11.As stated supra, the prosecution has examined P.W.1 to P.W.11 and marked Exs.P.1 to P.5. The victim girl is examined as P.W.6, her mother was examined as P.W.5 and her father was examined as P.W.4. P.W.4 and P.W.5 are residing at Dindigul, while P.W.1 is the sister of P.W.4 and P.W.2 is the husband of P.W.1 and P.W.1 and P.W.2 are residing at Thanjavur. The parents of the victim girl viz., P.W.4 and P.W.5 left their child P.W.6 in the custody of P.W.1 and P.W.2. P.W.3 is the school teacher and class teacher of P.W.6. The above facts are not seriously disputed by both the parties.
12.From the evidence of P.W.6, it is seen that the accused kidnapped her, when she was standing outside the Muncipal School at about 10 a.m., on 21.11.2006. It is the evidence of P.W.3, school teacher that P.W.6 was found missing from the school on the morning of 21.11.2006 and message was passed to P.W.1 and P.W.2, who are http://www.judis.nic.in 8 the guardians of minor P.W.6. It is the evidence of P.W.1 and P.W.2 that P.W.6 did not return from the school on 21.11.2006 and could not be traced out inspite of hectic search. P.W.4 and P.W.5 father and mother of P.W.6 also corroborated P.W.1 and P.W.2. Unable to trace out the girl, P.W.1 preferred Ex.P.1 complaint before the police on 23.11.2006 at 10.00 a.m., as admitted by P.W.9 Saravanan, Sub Inspector of Police, Thanjavur Town East Police Station. Ex.P.1 was received in Court on 24.11.2006. It is not the case of the defence that the minor girl P.W.6 never gone missing. It is the defence version that the girl voluntarily left the house. There is sufficient evidence to demonstrate the fact that the girl P.W.6 went missing on 21.11.2006 itself as alleged by the prosecution.
13.It is the definite case of P.W.6 that this accused came nearby to school and kidnapped her by saying that the mother of P.W.6 was admitted in hospital. It is her further evidence that she was firstly taken up to the house of this accused and then to Chennai, where she was made to do household work. After 5 or 6 months, she was brought to Thanjavur and was made to stay at the house of the second accused. She managed to escape from the clutches of the accused and when the police enquired, she identified the accused also http://www.judis.nic.in 9 to them. The trial Court accepted the evidence of P.W.6, after testing her as to her competence and reliability to depose about the occurrence.
14.Thus, this Court finds from the evidence of P.W.6 that on the scheduled date at that time, the accused came to the school and picked her on the protest that her parents are not well and on the same date, the school teacher P.W.3 also noticed her absence, when the bags of P.W.6 are left behind in the class room and thereafter, the complaint has been preferred on 23.11.2006. The evidence of P.W.4 and P.W.5 are clear and cogent. Furthermore, it is the evidence of P.W. 6 that she stayed at Chennai and there is no worthwhile in the cross- examination in that score.
15.The fact remains that it was this accused, who took possession of P.W.6 and kept the child in her custody, till she was rescued or herself escaped. There is absolutely no explanation or evidence on the side of defence as to why P.W.6 should point out the accusing finger towards this accused. No enmity or motive either proved or suggested. No base was made by defence to set up a false implication of the accused in this case. Nothing has been suggested http://www.judis.nic.in 10 or elicited as to why the accused to be falsely implicated that too by a child like P.W.6, as she has no grudge to grind against this accused, which clearly supports the prosecution case.
16.Thus, the Lower Appellate Court has rightly convicted the accused under Section 363 IPC and in the absence of any suggestive case regarding the false implication of the accused due to any enmity, both the Courts below have given concurrent finding that the evidence of P.W.6 inspired the mind of the Court and the evidence of P.W.6 was not at all denied by the accused during his cross- examination. Such finding does not call for any interference. Consequently, the conviction under Section 363 IPC being well merited and well considered, does not suffer from any infirmity or illegality, warranting interference at this revisional stage.
17.Furthermore, both the Courts below taking note of the evidence of P.W.6 that she was taken to Chennai by this accused and was made to stay in the house of a relative of this accused for months together and was again brought to Thanjavur and was made to reside in the house of this accused, held that the evidence of P.W.6 itself appears to be sufficient to prove the offence under Section 368 IPC http://www.judis.nic.in 11 against the accused. Accordingly, the conviction laid under Section 368 IPC passed by both the Courts below does not call for any interference, in view of the competence evidence of P.W.6 victim girl.
18.After going through the evidence adduced before the trial Court, both the Courts below have taken a view that P.W.6 is the competent witness and her evidence also inspires the mind of the Court and it is also pertinent to note that the evidence of P.W.6 victim girl was not at all denied during the cross-examination of the accused and no suggestion was made denying the alleged kidnapping and wrongful confinement or wrongful concealment and no suggestion was put to P.W.1 as to the alleged confinement of 5 months together and thereafter she was brought to Thanjavur. Hence, in the absence of any material contradiction on vital factors being elicited from P.W.6 victim girl and also taking note of the fact that the victim girl has clearly spoken about the manner of kidnapping, subsequently, wrongful concealment at Chennai and thereafter, wrong confinement at Thanjavur, the conviction passed by both the Courts below for the offence under Sections 363, 368 and 344 IPC does not call for any interference. The Lower Appellate Court has reduced the sentence from three years to two years in respect of offence under Section 368 http://www.judis.nic.in 12 IPC and on the facts and circumstances of the case, the sentence of two years rigorous imprisonment awarded by the Lower Appellate Court is reduced into one year rigorous imprisonment for the offence under Section 368 and 363 IPC. However, the fine amount awarded thereafter is kept intake, and the conviction and sentence for the offence under Section 344 IPC is hereby confirmed.
19.In this view of the matter, the conviction passed by both the Courts below is hereby confirmed and the sentence awarded is modified to the limited extent as indicated above. This Criminal Revision Case is partly allowed to the limited extent as indicated above.
01.02.2019 Index: Yes / No Internet: Yes / No Myr http://www.judis.nic.in 13 To
1.The I Additional Sessions Judge, (Protection of Civil Rights), Thanjavur.
2.The Additional Sub Judge, Thanjavur.
3.The Inspector of Police, Thanjavur East Police Station, Thanjavur, Thanjavur District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 14 RMT. TEEKAA RAMAN, J.
Myr Pre-Delivery Order Made in CRL.R.C.(MD)No.588 of 2009 01.02.2019 http://www.judis.nic.in