Madras High Court
Mottikhan @ Isack Devapairiyan vs State on 3 August, 2007
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03/08/2007 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRIMINAL APPEAL No.452 of 2005 Mottikhan @ Isack Devapairiyan ..Appellant Vs State rep. by Inspector of Police Pamadangi Police Station Latheri Circle Vellore District. (Crime No.4 of 2002) ..Respondent This appeal is filed against the Judgment made in S.C.No.16/2003 dated 01.03.2005 on the file of the Additional Dis-trict and Sessions Judge(Fast Track Court)Vellore. For appellant : Mr.S.Panneerselvam For respondent : Mr.V.R.Balasubramaniam, Additional Public Prosecutor JUDGMENT
The accused in S.C.No.16 of 2003 on the file of the Additional District and Sessions Judge(Fast Track Court) Vellore who has been charged under Sections 341,363,506(ii) and 376 of IPC and was convicted under the above provision of law is the appellant herein.
2. The learned Committal Magistrate, Judicial Magistrate V, Vellore, after taking the case on file as PRC NO.23/2002 had issued summons to the accused and on his appearance had furnished copies under Section 207 of Cr.P.C. and since the case is exclusively triable by the Court of Sessions, the learned Judicial Magistrate had committed the case to the court of Sessions under Section 209 of Cr.P.C.. On appearance before the learned Sessions Judge, the charges under Sections 341,363,506(ii) and 376 of IPC were framed against the accused and when the charges were explained to the accused and questioned, the accused pleaded not guilty.
3. On the side of the Prosecution , P.Ws 1 to 14 were examined. Exs P1 to P27 were exhibited and M.Os 1 to 7 were marked.
4.P.W.1 is the victim girl Sumithra, a minor aged 12 on the date of deposing before the Court and she was 9 years of age at the time of occurrence. According to her, on 4.1.2002 in the afternoon, when she after returning from her school ,met her father and received some money and thereafter while she was returning to the house, the accused came in a TVS 50, two wheeler and asked her to sit on the pillionwhen she refused to heed to his request , he threatened her to go along with him in the said two wheeler and she became scared sat in the said TVS50 in the pillion seat and the accused then drove the two wheeler TVS 50 to Chenchimottur Raja Thoppu and committed the offence of rape after gagging her month and she returned to the house crying, thereafter two days later, her aunt came to the house and enquired why she is always lying in the bed. She had shown the blood stained inskirt to her aunt who in turn took her to the police station where, she had preferred Ex P1 complaint.
4a. P.W.2 is the aunt of P.W.1, the victim girl. According to her, her sister Mythili, the mother of P.W.1 died at the time of occurrence and that she is looking after the children of her sister Mythili. According to her, on the date of occurrence, P.W1 attended her school and came to the house and that P.W.1 was doing all the household work for her and two days after the occurrence, her mother-in-law came to her house and enquired about P.W.1 to whom she has informed that she is suffering from illness. At that time, when she asked P.W.1, about her illness P.W.1 was crying and her inskirt was found stained. When she enquired about the stains in the inskirt,P.W.1 had narrated what had happened to her on the date of occurrence. Immediately, she took P.W.1 to Panamadangi Police Station and Ex P1 complaint was preferred by P.W.1. According to her, she had handed over the wearing apparels of P.W.1 to the police Station.
4b.P.W.3 Padmanabhan, is an independent witness who had seen the accused two or three times riding in his two wheeler in front of his house and informed by one Prakash that the accused had taken the victim girl P.W.1 in his two wheeler on4.1.2002 at about 1.30p.m., 4c. P.W.4 Jayaraman is the father of P.W.1. According to him, at the time of occurrence, he was not in station, had gone to Bharathrami to take treatmennt for dog's bite and he had stayed for one week and that the occurrence was informed to him by P.W.2.
4d. P.W.5 Vijayanthimala, sister of P.W.1 would corroborate the evidence of P.W.4 and P.W.2 and that the complaint was preferred by P.W.1.
4e. P.W.11 is the then Sub Inspector of Police, Panamadangi Police Station . According to him, P.W.2 along with P.W.1 came to the police station on 7.1.2002 and prepared the complaint Ex P1 at about 19.00 hours which was registered by him in Panamadangi Police Station Crime No.4 of 2002 under Sections 341,363,506(ii) ,376 and 307 of IPC. Ex P24 is the copy of the first information report.
4f. P.W.12 is the Investigating Officer in this case. He had visited the place of occurrence at about 8.30p.m., on 7.1.2002 . He had examined the witnesses and recorded their statements. He had recovered the wearing apparels of P.W.1 under Mahazar ExP2 in the presence of P.W.6 who would identify M.O.1 as blood stained inskirt of P.W.1. P.W.12 has prepared ExP3 observation Mahazar in the presence of P.W.6 at 12.00 noon on 8.1.2002. Ex P25 is the rough sketch drawn by P.W.12. He has arrested the accused on 9.1.2002 at about 4.00p.m and has recorded the voluntary confession statement of the accused and on the basis of the confession statement , he had recovered TVS 50 bearing Registration No. X 2797 and has also recovered blood stained brown colour pant from the accused in the presence of P.W.6 under ExP6 mahazar. P.W.12 has also collected sand from the place of occurrence M.O.3 and sample sand M.O.4 in the presence of P.W.6. M.O.6 and M.O.7 are the wearing apparels of the accused seized by P.W.12 in the presence of P.W.6. He has made a request to the medical officer to examine P.W.1 through JM5. The material objects seized by P.W.12 were sent to the Court under Form 95 which is Ex P27.
4g. P.W.14 is the successor of P.W.12. P.W.7 is the headmaster of Panchayat Union School at Chengi who had issued ExP7 age certificate to the victim Sumithra P.W.1. As per Ex P7, the date of birth of P.W.1 is 20.7.1993. P.W.8 is the doctor who had examined the victim girl on 7.1.2002 at 9.30p.m., Ex P8 is the copy of the accident register issued by P.W.8 The doctor had seen scratches upon the back and both sides of the neck measuring about 2 to 4 mm and 6 to 5 cm in length respectively. The doctor has seen a laceration over the genitilia of P.W.1. But according to P.W.8, the hymen of P.W.1 was found in tact. She had examined the victim girl as per ExP9 letter of requisition given by the Judicial Magistrate.
4h. P.W.9 is the doctor who had examined the accused and had issued Ex P12 certificate certifying the accused as potent. P.W.10 is the then head clerk of the Judicial Magistrate No.V, Vellore. According to him, as per Ex P17 letter of requisition by the Court along with Ex P16 letter of requisition by the Investigating Officer. The material objects connected with this case were sent for forensic science laboratory for chemical examination. Ex P18 is the bilogical report and Ex P19 is the serologist's report and Ex P20 is the chemical analyst's report and Ex P21 is also another serologist's report . ExP22 and Ex P23 were also received from the forensic Science laboratory after chemical examination.
4h. P.W.13 is the analyst who had analysed the sample sand , inskirt, pant, shirt , jatty connected with this case. He would admit that Ex P18 to P21 reports were sent by him to the Court after chemical examination of the material objects connected with this case.
4j. P.W.14 after completing the formalities had filed the charge sheet against the accused.
5. When incriminating circumstances under Section 313 Cr.P.C. were put to the accused, he would deny his complicity with the crime.
No evidence was let in on the side of the accused.
6. After going through the materials available on record before the trial Court by the prosecution including the oral and documentary evidence, the learned trial Judge has come to a conclusion that the accused is liable to be convicted under Sections 341, 363, 506(ii) and 376 of IPC and accordingly convicted and sentenced him to undergo one month simple imprisonment under Section 341 of IPC, seven years rigorous imprisonment under Section 363 of IPC and slapped a fine of Rs 500/- with default sentence and sentenced the accused under Section 506(ii) of IPC to undergo two years rigorous imprisonment and also convicted the accused and sentenced under Section 376 o IPC to undergo ten years rigorouos impriosnment and slapped a fine of Rs.500/- with default sentence which made the accused to prefer this appeal.
7. Now the point for consideration in this appeal is whether the conviction and sentence of the accused by the trial Court under Sections 341,363,506(ii) and 376 of IPC is liable to be set aside for the reasons stated in the memorandum of appeal?.
8. Heard Mr.S.Panneerselvam ,learned counsel appearing for the appellant and Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor for the State and considered their respective submissions.
9.The Point:
The learned counsel appearing for the appellant would focus the attention of this Court to the vital discrepancy made in ExP1 complaint and in the deposition of P.W.1, the victim girl. According to P.W.1 before the Court, she in clear terms has stated that she is not aware of the accused before the date of occurrence. But in the complaint Ex P1, the name of the accused figures. Pointing out this flaw, the learned counsel would contend that only after due deliberation ExP1 complaint has been prepared by the police with the help of P.W.1. P.W.1 in her evidence has stated what she has narrated in Ex P1 complaint except the name of the accused.
10. But the fact remains that P.W.1 is a minor girl of 9 years of age at the time of occurrence. She has identified the accused before the Court as the person who had taken her as a pillion rider to the place of occurrence on 4.1.2002 after noon and committed the offence of rape. P.W.1 was examined by the Doctor P.W.8 .Even before the doctor, P.W.1 has not revealed the name of the accused but she would say that one person had subjected her to sexual assault on 4.1.2002.
11. P.W.8 has found a laceration on the genitilia of the victim girl with contusion. She has also seen two scratches on the back and both sides of the neck of the victim girl. But the doctor has stated in Ex P8 that hymen was in tact for the victim girl. The evidence of P.W.1 has been strengthened by the evidence of P.W.3 to the effect that the accused was seen on the date of occurrence riding on his TVS 50 in front of his house two or three times and has also been informed that the accused has taken the victim girl in his TVS 50 and was proceeding towards the place of occurrence. In the cross examination P.W.3 has further stated that both he and Prakash have seen the accused sitting on the varandah of one Gopal Reddiar at about 1.25p.m., on the date of occurrence and has further admitted that when Prakash had informed him that the accused had taken the victim girl in his two wheeler. He has also noticed the same. Even though, he would depose in the chief examination that the accused is a known relative,in the cross examination, he would admit that he and the accused belong to different community.
12. P.W.2 is the aunt of P.W.1 who had noticed stains in the inskirt of P.W.1 only two days after the occurrence. That too when her mother-in-law enquired P.W.1 why she is not active?. That is the reason given by the prosecution for the delay in preferring the first information report. The evidence of P.W.1 coupled with the evidence of P.W.8 the doctor would clearly go to show that P.W.1 was subjected to sexual assault. There is no motive attributed against P.W.1 to falsely implicate the accused in the crime. The evidence of P.W.3, an independent witness will go to show that the victim girl was seen along with the accused on the date of occurrence riding on the TVS 50 two wheeler towards the place of occurrence. According to P.W.1, her modesty has been outraged only by the accused. Since there is no evidence on record to bring home the guilt of the accused under Section 376 of IPC, I am of the view that he is liable to be convicted under Section 354 of IPC and also under Sections 363, 341 of IPC and under Section 506 (II) of IPC.
13. At this juncture, the learned counsel appearing for the appellant would plea for mercy on the accused, regarding imposing the sentence. It is further represented by the learned counsel for the appellant that the accused is in jail for more than two years. Under such circumstances, I am of the view that the sentence can be awarded to that of the period already undergone for an offence under Sections 341,363,506(ii) IPC in respect of various sentence awarded to him under Sections 341, 363,506(ii) and 376 of IPC.
14. In fine, the appeal is partly allowed and the conviction of the learned trial Judge under Sections 341, 363 and 506(ii) of IPC is confirmed and the conviction under Section 376 of IPC is modified to that of an offence under Section 354 of IPC and the accused is sentenced under the said provision of law to that of the period already undergone. The accused is set at liberty forthwith.
15. It is represented that Mr.S.Panneerselvam , learned legal aid counsel has been appointed by State Legal Services Authority. The service rendered by the legal aid counsel is recorded with appreciation. The Member Secretary of Tamil Nadu Legal Services Authority is directed to pay a sum of Rs.3000/- towards his remuneration.
sg To
1. The Additional District and Sessions Judge (FTC) Vellore.
2. -do-through the District and Sessions Judge Vellore.
3. The Public Prosecutor High Court Madras.
4. The Superintendent of Police Panamadangi Police Station, Latheri Circle Vellore District.
5. The Superintendent of Central Prison Vellore.