Madras High Court
Raju @ Rajan vs State Of Tamil Nadu Represented By The on 13 October, 2015
Author: C.T.Selvam
Bench: C.T.Selvam, S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.10.2015 C O R A M THE HONOURABLE MR.JUSTICE C.T.SELVAM AND THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN Criminal Appeal No.186 of 2013 Raju @ Rajan S/o.Rangasamy ... Appellant/A1 -vs- State of Tamil Nadu represented by the Inspector of Police, All Women Police Station, Gobichettipalayam, Erode District. Crime No.4 of 2010 ... Respondent/Complainant Criminal Appeal filed under Section 374 r/w 382 of the Code of Criminal Procedure against the judgment of learned III Additional District and Sessions Judge, Erode, Gobichettipalayam, passed in S.C.No.133 of 2012 on 08.10.2012. For Appellant : Mr.U.M.Ravichandran For Respondent : Mr.V.M.R.Rajentren Additional Public Prosecutor ***** J U D G M E N T
(Judgment of the Court was made by C.T.SELVAM, J.) This appeal arises against judgment of learned III Additional District and Sessions Judge, Erode, Gobichettipalayam, passed in S.C.No.133 of 2012 on 08.10.2012, convicting appellant/A1 for offences u/s.366 and 376(1) IPC and sentencing him to 10 years R.I. and fine of Rs.1,000/- i/d.3 months R.I. for offence u/s.366 IPC and life imprisonment and fine of Rs.1,000/- i/d. 3 months R.I. for offence u/s.376(1) IPC.
2. The case of the prosecution is that appellant/A1 and accused 2 to 7 abducted PW-2/victim girl aged about 16 years, on 30.06.2010 at about 12.30 p.m. and forced her to marry appellant/A1. Leaving appellant/A1 and PW-2 at the house of PW-5 at Kadambur, accused 2 to 7 departed. Appellant/A1 confined PW-2 at the said place upto 16.07.2010 and repeatedly raped her. PW-1/father of the victim, preferred Ex.P1, complaint, on 02.07.2010 at 11.30 p.m. PW-17, Sub Inspector of Police, Gobichettipalayam Police Station, registered a case in Crime No.4 of 2010 for offence u/s.366-A IPC. PW-17 forwarded Ex.P11, First Information Report, to Court and higher officials. PW-18, Inspector of Police, took up investigation on 03.07.2010, visited the place of occurrence, prepared observation mahazar and Ex.P12, rough sketch in the presence of PWs.8 and 9. He examined PWs.1, 2, 4, 8 and 9 and recorded their statements. On 17.07.2010 and 16.08.2010, he sent Exs.P2 & P7, requisitions, to Judicial Magistrate seeking permission to send PW-2, victim, and appellant/A1 for medical examination. He examined PW-3 and two others and recorded their statements. He examined PWs.10, 13, 14, 15, 17 and another and recorded their statements. He examined PWs-11, 16 and another/Doctors, recorded their statements and obtained medical certificate. Thereafter, PW-19, took up investigation in the case. He examined PWs.1, 5, 16, 17 and another and recorded their statements. Upon completion of investigation and filing of charge sheet informing commission of offences u/s.366 and 376(1) IPC, the case, upon committal, was tried in S.C.No.133 of 2012 on the file of learned III Additional District and Sessions Judge, Erode, Gobichettipalayam.
3. To substantiate its case, prosecution examined PWs.1 to 19 and marked Exs.P1 to P13. None were examined on behalf of the defence, however, two exhibits were marked. On questioning u/s.313 Cr.P.C., the accused denied the charges. Learned trial Judge, on appreciation of the evidence, under judgment dated 08.10.2012, while acquitting accused 2 to 7, convicted the appellant/A1 for offences u/s.366 and 376(1) IPC and sentenced him to 10 years R.I. and fine of Rs.1,000/- i/d.3 months R.I. for offence u/s.366 IPC and life imprisonment and fine of Rs.1,000/- i/d. 3 months R.I. for offence u/s.376(1) IPC.
4. Heard learned counsel for appellant and learned Additional Public Prosecutor as also perused the records.
5. Learned counsel for appellant/A1 submitted that PW-2, victim, having been in love with appellant/A1, called him over phone and informed that her father, PW-1, was forcing her to marry some other person and required him to take her away. Thus, he had done so. After their marriage, PW-2 had cohabited with him on her own volition. On coming to know about the complaint against appellant/A1, they decided to appear before the police. Accordingly, PW-2, victim, reported at the police station and appellant/A1 duly had obtained anticipatory bail towards avoiding arrest. PW-1, father of the victim girl, had preferred a false complaint on 02.07.2010 implicating appellant/A1 and his relatives.
6. Learned Additional Public Prosecutor submitted that PW-2, victim, had spoken to having been abducted by the accused and of appellant/A1 having raped her. He contended that the trial Court rightly had convicted and sentenced appellant/A1 and no interference is called for.
7. This Court has considered the rival submissions.
8. PW-1 has admitted to appellant/A1 and other accused being his relatives. Deposing in chief, PW-2 has informed of having been abducted on 30.06.2010 at about 12.30 p.m. while she was on the way to her father's house from the house of her grandmother. The defence has drawn her attention to the fact that in her 161(3) Cr.P.C. statement, she had informed the exact opposite. PW-6, driver of Omni Van allegedly used to abduct PW-2, was a person known to her. PW-2 has admitted to not having required PW-6 to inform the police of her abduction. PW-6 has admitted that PW-2, victim, has not protested her abduction with him. PW-6 has been treated hostile. Given the discrepant nature of evidence of PW-2 and that of PW-6, the prosecution theory of abduction fails. A2 to A7 have been acquitted of such charge by the trial Court. This leaves us with the charge u/s.376 IPC. In this regard, the person at whose residence, accused 2 to 7 are said to have dropped the appellant/A1 and PW-2 and where they stayed for a period of 15 days, has been examined as PW-5. He also has been treated hostile by the prosecution. He had deposed to appellant/A1 being an acquaintance and of having permitted A1 to stay at his house along with a girl for a day. Even in treating him hostile all that the prosecution has to offer is that on 30.07.2010 he arranged accomodation for appellant/A1 and a girl, both of whom intended to marry and that they left after two days. This only is supportive of the defence contention of PW-2, if she be the 'girl' spoken to by PW-5, being in the company of appellant/A1 on her own volition. PW-18, Investigating Officer, has not so much as cared to visit the house of PW-5 or make enquiries of the persons living there about towards ascertaining whether PW-2, victim, had been held against her will. The deposition of PW-2 is to the effect that she had been left in the company of appellant/A1 by accused 2 to 7. She has not deposed to having been confined to any particular place or prevented from interacting with anybody. It is her admission that it was the accused who had dropped her at the bus stand with instructions to surrender before the police station. In the circumstances, sexual interaction between her and appellant/A1 could also be an act of volition. So considered, the appellant safely cannot be convicted for offence u/s.376 IPC. The defence has introduced Exs.D1 and D2 which inform the age of PW-2 to be about 17 years at the time of occurrence. PW-15, Radiologist, has, under his report Ex.A8, informed that PW-2's age was above 18 and below 20. Criminal Law (Amendment) Act, 2013 (13 of 2013) under which sexual intercourse with a girl below aged 18 years with or without consent amounts to rape, came into force on 03.02.2013. Upto such date it was only sexual intercourse with a girl aged below 16 years, whether she had consented thereto or not, which was punishable as rape. The alleged occurrence was of the year 2010 and the pre-amendment provision applies. Thus, on our finding that sexual intercourse, if any, was of voluntary nature and the victim was in any event not below 17 years at the time of occurrence, offence u/s.376 IPC would not stand attracted.
For the aforesaid reasons, this Criminal Appeal shall stand allowed. The conviction and sentence passed by III Additional District and Sessions Judge, Erode, Gobichettipalayam, in S.C.No.133 of 2012 on 08.10.2012, are set aside and appellant is acquitted of all charges. Fine amount, if any, paid shall be refunded to him. Bail bond(s), if any, executed by him shall stand cancelled. Appellant is directed to be released forthwith, if his detention is not required in any other case.
[C.T.S.,J.] [S.V.N.,J.]
13.10.2015
Index: Yes / No
Internet: Yes
gm
To
1.The III Additional District and Sessions Judge,
Erode, Gobichettipalayam.
2.The Inspector of Police,
All Women Police Station,
Gobichettipalayam,
Erode District.
3.The Public Prosecutor,
High Court, Chennai.
C.T.SELVAM, J
and
S.VAIDYANATHAN, J
gm
Criminal Appeal No.186 of 2013
13.10.2015