Madras High Court
Janakiraman vs The Inspector Of Police on 10 July, 2017
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2017 C O R A M THE HONOURABLE MR.JUSTICE C.T.SELVAM Criminal Appeal No. 802 of 2008 Janakiraman S/o Kuppusamy ... Appellant/Accused Versus The Inspector of Police, Thookanampakkam Police Station, Reddichavadi Circle, Cuddalor District. Crime No: 61/2006 ...Respondent/Complainant Criminal Appeal filed under Section 374 (1) of the Code of Criminal Procedure against the judgment and sentence passed by learned Sessions Judge (Mahila Court) Cuddalore dated 30.10.2008. For Appellant : Mr.M.C.Swamy For Respondent : Mr.V.Arul, Additional Public Prosecutor ***** J U D G M E N T
This appeal arises against judgment of learned Sessions Judge (Mahila Court), Cuddalore, passed in S.C.No.268 of 2007 on 30.10.2008, convicting appellant/accused for offences u/s.366 & 376(1) I.P.C and sentencing him to 7 years R.I. and fine of Rs.2,000/- i/d 3 months R.I. for offence u/s.366 IPC and 7 years R.I. and fine of Rs.10,000/- i/d 3 months R.I. for offence u/s.376(1) IPC.
2. The case of the prosecution is that the victim girl had not completed 16 years of age and she was under the care and custody of her parents at Thookanampakkam. She studied upto 10th standard in Kasthuribai Gandhi Government Girls Higher Secondary School at Bahoor but failed the public exam. Appellant/accused developed friendship with her. On 19.06.2006, accused with intention to commit rape, kidnapped and took her to Panruti, Vriddhachalam, Cuddalore by bus. They reached Devanampattinam Beach on 20.06.2006 and on the same day, after 06.00 p.m., appellant/accused took her to the house of Sivakumar at Karumachipalayam at Kullanchavadi. Appellant/accused, knowing her to be a minor, compelled her into sexual intercourse on 20.06.2006 and 21.06.2006.
3. PW-5, father of the victim girl preferred Ex.P.1, complaint, on 22.06.2006 at 09:00 A.M. PW-13, Head Constable, registered a case in Crime No.61/2006 on the file of respondent for offence u/s.366 IPC. The First Information Report is Ex.P.12. PW-20, Inspector of Police, Reddychavadi Circle, took up investigation on 22.06.2006 and at 11:00 A.M, visited the place of occurrence and in the presence of PW-2 and PW-12, prepared Ex.P.18 - Observation Mahazar and Ex.P.9 Rough sketch. He examined PWs.1, 2, 5, 9, 12 and 16 and recorded their 161(3) Cr.P.C. statements. He went to Edapaalayam Kootu Paadhai Bus Stand at 12:30 p.m. and secured appellant/ accused and the victim girl. Appellant/accused tendered a confession in the presence of PWs.10 and 11. He handed over the clothes worn by him around the time of occurrence to P.W-20. Ex.P.20 is the admissible portion of the confession statement under which M.O.4 pant was recovered. Ex.P.21 is the Seizure Mahazar prepared in respect of M.O.4. The victim girl, Gomathi also gave a statement which was recorded by P.W.20 in the presence of prosecution witnesses. She produced M.O.1 to M.O.3. Ex.P.22 is the Seizure Mahazar. PW-20 brought both appellant/accused and the victim girl to the Police Station. He sent requisitions to Judicial Magistrate, Cudddalore, towards subjecting appellant/accused and the victim for medical examination. Exs.P23 and P24 are requisition letters given by Inspector of Police, Reddychavadi Circle to the Medical Officer, Government Hospital, Cuddalore. P.W.20 examined the victim girl further and PWs.10, 11 and 17 and recorded their statements. On 23.06.2006, he examined PW-14, Dr.A.S.Latha, PW-7, Dr.P.V.Srinivasan, PW-3, Head Constable, PW-4, Head Constable and two others and recorded their statements. After further examining appellant/accused and the victim, PW-20 included also the offence u/s.376 IPC. Ex.P.25 is the Alteration Report. On 25.06.2006, he examined P.W.8 and recorded her statement. PW-20 was transferred from Reddichavadi Circle. Upon his transfer, PW-19 took up further investigation. He examined two witnesses and recorded their statements. Upon completion of investigation, a charge sheet has been filed informing commission of offences u/s.363, 366 and 376 IPC. Upon committal, the case was tried in S.C.No.268 of 2007 on the file of learned Sessions Judge (Mahila Court), Cuddalore.
4. Before trial Court, prosecution examined PWs.1 to 21 and marked 27 exhibits and 4 material objects. One witness was examined on behalf of the defence and no exhibits were marked.
5. On appreciation of materials before it, trial Court, under judgment dated 30.10.2008, convicted appellant/accused for offences u/s.366 & 376(1) I.P.C and sentenced him to 7 years R.I. and fine of Rs.2,000/- i/d 3 months R.I. for offence u/s.366 IPC and 7 years R.I. and fine of Rs.10,000/- i/d 3 months R.I. for offence u/s.376(1) IPC. There against, the present appeal has been filed.
6. Heard learned counsel for appellant and learned Additional Public Prosecutor for respondent.
7. PW-1, friend of PW-6, alleged victim, has been examined towards speaking to being a co-student with PW-6 at the 10th standard and of their proceeding to obtain mark sheets on 19.06.2006 at 10.00 a.m., of PW-6 having been accosted by appellant/accused, of her informing PW-6 that the bus they were to take had arrived and of PW-6 asking her to proceed since she (PW-6) had some unfinished business, has turned hostile. PW-9 had spoken to his seeing both appellant/accused and PW-6 on a cycle, again at 10.00 a.m. on 19.06.2006. He has not so spoken to any force used against PW-6. PW-17, owner of the house where PW-6 allegedly was confined, has turned hostile. Though PW-6 has, in chief, deposed to having been raped by appellant/accused, she has also spoken to having spent three days with him at the residence of PW-17. In cross, she has admitted to a love affair between appellant/accused and her, of having proceeded along with him on a cycle and thereafter by bus and of accompanying him to several places. She has deposed to appellant/accused and herself alighting from a bus at her native place and of being accosted by police at such time. She has also spoken to appellant/accused not refusing to marry her and that her parents were opposed to the marriage. In the above scenario, this Court is unable to uphold the findings of conviction for offences u/s.366 and 376 IPC entered upon by trial Court. In all probability, the case is one of PW-6 accompanying appellant/accused on her own volition and indulging in consensual sex.
C.T.SELVAM, J mrr/gm Prosecution case is of PW-6 having been aged 16 at the time of occurrence. Occurrence was of the year 2006. Prior to amendment under the Criminal Law Amendment Act (13 of 2013) which came into effect on 03.02.2013, consensual sex would not amount to rape when the girl was not under 16 years of age.
For the aforesaid reasons, the Criminal Appeal shall stand allowed. The judgment of learned Sessions Judge (Mahila Court), Cuddalore, passed in S.C.No.268 of 2007 on 30.10.2008, shall stand set aside. Appellant is acquitted of all charges. Fine, if any, paid shall be refunded. Bail bonds, if any, executed shall stand cancelled.
10.07.2017 Index: Yes/No, Internet: Yes mrr/gm To
1.The Sessions Judge, Mahila Court, Cuddalore.
2.The Inspector of Police, Thookanampakkam Police Station, Reddichavadi Circle, Cuddalore District.
3.The Public Prosecutor, High Court, Chennai.
Criminal Appeal No.802 of 2008