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2014 DIGILAW 2631 (MAD)

Jony v. State, Rep. by The Inspector of Police

2014-08-14

G.CHOCKALINGAM, V.DHANAPALAN

body2014
Judgment : G. Chockalingam, J. 1. The appellant, who is the sole accused, was tried by the learned Sessions Judge, Fast Track Court No.II, In-charge Mahila Court, Chennai, in S.C.No.194 of 2004 for offences under Sections 376(2)(f), 366 and 363 I.P.C. and by a judgment dated 23.06.2005, the trial Judge found the appellant guilty of all the charges and convicted and sentenced him to undergo life imprisonment for the offence under Section 376(2)(f) I.P.C. and also to pay a fine of Rs.5,000/-and in default to undergo six months rigorous imprisonment and convicted for the offence under Section 366 I.P.C. and sentenced him to undergo six years rigorous imprisonment and also to pay a fine of Rs.3,000/- and in default to undergo three months rigorous imprisonment and further convicted for the offence under Section 363 I.P.C. and sentenced him to undergo three years rigorous imprisonment and also to pay a fine of Rs.2,000/- and in default to undergo three months rigorous imprisonment. Challenging the said judgment, the appellant is before this Court in this appeal. 2. The case of the prosecution in brief is as follows: [i] P.W.1-Kalyani is residing at No.39, Ponnappan Street, Vyasarpadi, Chennai. Her husband was doing painting work. They have two sons and one daughter. The victim girl-P.W.6, who is the daughter of P.W.1, was studying 4th standard. P.Ws.2 and 3 are the brothers of the victim girl-P.W.6. On 14.12.2003, at about 4.30 p.m., when the victim girl-P.W.6 was playing with her brother-P.W.2, the accused has taken P.W.6 and P.W.2 in his T.V.S. 50 and subsequently he dropped P.W.2 and took the victim girl-P.W.6 alone to an old building in a garden near GNT Road, Madhavaram, and committed rape on her. The victim girl-P.W.6 was taken to a private hospital by P.W.1. Thereafter, the victim girl-P.W.6 was taken to R.S.R.M. Government Hospital by P.W.1. P.W.9-Premalatha, a Doctor attached to R.S.R.M. Government Hospital examined the victim girl-P.W.6 and gave a report under Ex.P.8. P.W.9 could see the bleeding in the private parts of the child. The Doctor informed the incident to police station and on the information given by the Doctor, the police went to R.S.R.M. Government Hospital. At that time, P.W.1 gave a complaint-Ex.P.1. [ii] P.W.15, the Sub-Inspector of Police, H-6, R.K.Nagar police station, on receiving information from the R.S.R.M. Government Hospital, went to Hospital and received the complaint-Ex.P.1 from P.W.1. The Doctor informed the incident to police station and on the information given by the Doctor, the police went to R.S.R.M. Government Hospital. At that time, P.W.1 gave a complaint-Ex.P.1. [ii] P.W.15, the Sub-Inspector of Police, H-6, R.K.Nagar police station, on receiving information from the R.S.R.M. Government Hospital, went to Hospital and received the complaint-Ex.P.1 from P.W.1. Then he came back to police station at 01.30 p.m. and registered a case in Crime No.901 of 2003 for the offences under Sections 363, 366(A) and 376 I.P.C. and prepared the First Information Report-Ex.P.22. P.W.15 handed over the case files to Inspector of Police. [iii] P.W.16-Inspector of Police took up further investigation and went to R.S.R.M. Government Hospital. At that time as the victim girl-P.W.6 was unconscious, P.W.16 enquired P.W.1 and recorded her statement. Then he went to the scene of occurrence and prepared an Observation Mahazar-Ex.P.23 and a Rough Sketch-Ex.P.24 and he enquired the witnesses and recorded their statements. [iv] On 15.12.2003 at 10.00 a.m., P.W.16 arrested the accused and remanded to judicial custody. On the same day, he gave a requisition to Court for sending the victim girl-P.W.6 for medical examination. Then he recovered the bloodstained dress of the victim girl from P.W.1. He enquired the Doctors Premalatha and Murugan – P.Ws.9 and 10 respectively and recorded their statements. After completing the investigation, he laid the final report against the accused. [v] The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined P.Ws.1 to 16, marked Exs.P.1 to P.36 and produced M.Os.1 to 5. [vi] When the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating materials appearing against him through the evidence adduced by the prosecution, he has come forward with the version of total denial and he has stated that he has been falsely implicated in this case. On behalf of the accused, two witnesses were examined as D.Ws.1 and 2 and no document was marked on his side. [vii] The Trial Court, on consideration and appreciation of the evidence adduced by the prosecution, found the appellant/accused guilty of the offences under Sections 376(2)(f), 366 and 363 I.P.C. and convicted and sentenced him as stated above. Hence the present appeal at the instance of the appellant/accused. 3. [vii] The Trial Court, on consideration and appreciation of the evidence adduced by the prosecution, found the appellant/accused guilty of the offences under Sections 376(2)(f), 366 and 363 I.P.C. and convicted and sentenced him as stated above. Hence the present appeal at the instance of the appellant/accused. 3. Ms.Jayasri Baskar, learned counsel for the appellant/accused would contend that the trial Court has failed to appreciate the evidence of P.W.1 and the victim girl-P.W.6 and no name was stated by P.W.1 in the complaint-Ex.P.1. Further, the trial Court has failed to consider the fact that there was a delay in lodging the F.I.R. and not lodging of F.I.R. first in Madhavaram police station where the victim girl-P.W.6 was brought at the first instance had not been explained by the prosecution. Further, the learned counsel for the appellant/accused contended that at the time of admitting the victim girl-P.W.6 in the hospital, she has stated that the injuries were caused only by unknown persons and she has not stated the name of the accused and hence, the trial Court has erred in finding the accused guilty. The trial Court ought to have believed the evidence of D.Ws.1 and 2. There are so many contradictions in the material evidence in this case and the trial Court has failed to appreciate the evidence on record and has wrongly came to the conclusion that the accused is guilty and sentenced him. Hence, in view of the above circumstances, the learned counsel for the appellant/accused prays for acquittal of the accused. 4. Per contra, Mr.M.Maharaja, learned Additional Public Prosecutor vehemently argued that the trial Court, after considering all the material evidence and material objects, came to the correct conclusion and found the accused guilty. Since it is a rape case and the victim girl is a minor, aged about 9 years, the trial Court has taken a correct view in awarding punishment to the accused. The learned Additional Public Prosecutor further argued that even though there are some minor discrepancies in the evidence of P.W.1 and P.W.6 etc., the same will not in any way affect the prosecution case and the trial Court, after appreciation and analysation of the evidence came to the correct conclusion. Hence, the judgment of the trial Court does not warrant any interference by this Court. Hence, the judgment of the trial Court does not warrant any interference by this Court. The learned Additional Public Prosecutor prayed that the judgment of the trial Court has to be confirmed and the appeal has to be dismissed. 5. It is an admitted case of both parties that P.W.1 is the mother of the victim girl-P.W.6 and P.Ws.2 and 3 are the brothers of the victim girl. In this case, the victim girl-P.W.6, during her deposition has specifically stated about the offence committed by the accused. Even though elaborate cross-examination was done, nothing was elicited on the side of the defence to disprove or doubt the evidence adduced by P.W.6 in chief. The accused has taken P.W.6 and P.W.2 in his T.V.S. 50 and subsequently he dropped P.W.2 and took the victim girl-P.W.6 alone to the place of occurrence. The evidence of P.W.6 was corroborated by P.W.2, P.W.3 and P.W.4. Hence, there is no doubt regarding the identity of the accused in this case and the prosecution has proved the above fact beyond any reasonable doubt. 6. Subsequently, when the victim was brought to police station by one Auto Driver, the police informed the availability of the girl to P.W.1 and her family. P.W.1 had taken the victim girl to her house and then taken her to the hospital. On seeing the injuries sustained by the victim girl-P.W.6, the authorities of R.S.R.M. Hospital informed about the incident to police and the police came to the hospital and received the complaint from P.W.1 which is marked as Ex.P.1. In Ex.P.1-complaint, P.W.1 had clearly stated that a known person has taken her daughter and son in his T.V.S. 50. Further, the identity of the accused is also clearly proved by the prosecution. Hence, the argument of the learned counsel for the appellant/accused that the prosecution has failed to prove the case is not at all acceptable. 7. In Ex.P.1-complaint, P.W.1 had clearly stated that a known person has taken her daughter and son in his T.V.S. 50. Further, the identity of the accused is also clearly proved by the prosecution. Hence, the argument of the learned counsel for the appellant/accused that the prosecution has failed to prove the case is not at all acceptable. 7. In this case, when the victim girl-P.W.6 was admitted in the R.S.R.M. Government hospital, on the information given by the hospital authorities, the police came to the hospital and recorded the statement of P.W.1 on 14.10.2013 night and after recording the statement, came to the police station and registered a case in Crime No.901 of 2003 at about 01.30 p.m. on 15.12.2003 and the original complaint- Ex.P.1 and F.I.R.-Ex.P.22 were sent to the Court and the same were received by the learned Magistrate on 15.12.2003 at 5.15 p.m. Since the victim girl was injured, the mother of the victim girl, who had been attending her in the hospital alone gave a complaint-Ex.P.1. Hence, the argument of the learned counsel for the appellant/accused that there was a delay in lodging F.I.R. which creates a doubt, is not at all acceptable. In our opinion, there is no delay in lodging of F.I.R. and even if some minor delay is there, the same is acceptable one and it cannot create any doubt in the case of the prosecution. 8. Ex.P.16 series are the medical reports of P.W.6. In his chief examination, P.W.11-Dr.Mohanavel has stated as follows:- "TAMIL" 9. On a perusal of the evidence of P.W.11 and the material documents, it is clear that the prosecution has proved its case and the ingredients of the offence under Section 376 IPC are also clearly proved beyond any reasonable doubt. So the argument of the learned counsel for the appellant/accused that the ingredients of the offence under Section 376 IPC were not clearly proved is not at all acceptable. 10. The learned counsel for the appellant/accused argued that there are so many contradictions in the evidence on the side of the prosecution but he is not able to specifically point out the evidence, which affects the case of the prosecution. Hence, prosecution case is clearly established by the evidence of P.W.6-victim girl and her own brother-P.W.2 and the third party witness P.W.4. Hence, prosecution case is clearly established by the evidence of P.W.6-victim girl and her own brother-P.W.2 and the third party witness P.W.4. Further, the offence committed on the victim girl by the accused was clearly proved and the evidence of P.W.6-victim girl is corroborated by the medical evidence. Hence, in this case, the prosecution has clearly proved its case beyond any reasonable doubt. The reasons given by the trial Court for convicting the accused are acceptable. Therefore, we are of the considered opinion that there is no reason to interfere with the judgment of conviction and sentence passed by the trial Court. 11. Finally, the learned counsel for the appellant/accused argued that since the accused is in custody for more than 9 years, some leniency may be shown in awarding punishment to the accused. 12. Per contra, the learned Additional Public prosecutor vehemently contended that the victim girl is aged about 10 years and the offence committed is heinous crime, which is against the society and therefore, it has to be viewed seriously and no leniency can be shown to the accused. In support of his contention, learned Additional Public Prosecutor relied on a decision of the Hon'ble Apex Court reported in (2013) 7 Supreme Court Cases 77 [Shyam Narain Vs. State (NCT of Delhi)], wherein, the Hon'ble Apex Court has observed as follows:- "The trial court and the High Court convicted the appellant-accused under Section 376(2)(f) IPC for brutally raping an 8 year old girl and sentenced him to RI for life. 12. Presently, we shall proceed to deal with the justification of the sentence. The learned counsel for the appellant would submit that though Section 376(2) provides that sentence can be rigorous imprisonment for life, yet as a minimum of sentence of ten years is stipulated, this Court should reduce the punishment to ten years of rigorous imprisonment. It is urged by him that the appellant is a father of four children and their lives would be ruined if the sentence of imprisonment for life is affirmed. 13. ...... 14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. 13. ...... 14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim. 15. In this context, we may refer with profit to the pronouncement in jameel v. State of U.P. [ (2010) 12 SCC 532 ], wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. 16. to 27. ....... 28. The mitigating factors put forth by the learned counsel for the appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court." 13. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court." 13. In view of the fact that the offence committed by the accused is heinous crime and the same is proved and also in view of the principles laid down by the Hon'ble Apex Court in the decision cited supra, we are of the considered view that no leniency can be shown to the accused. Hence, the argument of the learned counsel for the appellant/accused that leniency can be shown to the accused in awarding sentence is rejected. 14. In the result, this Criminal Appeal fails, and the same is dismissed, confirming the judgment of the trial Court.