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2015 DIGILAW 3166 (MAD)

Ramu v. State

2015-09-25

A.SELVAM

body2015
JUDGMENT : A. Selvam, J. 1. The conviction and sentence dated 19.3.2008, passed in Sessions Case No. 118 of 2007, by the Assistant Sessions Court, Cheyyar, Tiruvanamalai District, are being challenged in the present Criminal Appeal. The case of the prosecution is that on 10.3.2007 at about 5.30 p.m. the prosecutrix has gone to the house of the accused for seeing television and at that time, the accused has vulnerably raped the prosecutrix and after the occurrence, her father by name Perumal, as defacto-complainant has given a complaint and the same has been registered in Cr. No. 2 of 2007. The Complaint and the same has been registered in Cr. No. 2 of 2007. The complaint given by the defacto-complainer has been marked as Ex. p. 1. 2. On receipt of Ex. p. 1 the investigating officer, viz., P.W. 12 has conducted investigation, examined the connected witnesses and also made arrangements to conduct medical examination both to the prosecutrix and to the accused and after completing the investigation, he has laid final report on the file of judicial magistrate No. 1 Cheyyar and the same has been taken on file in P.R.C. No. 7 of 2007. 3. The Judicial Magistrate No. I, Cheyyar after considering the facts that the offence, alleged to have been committed by the accused, is triable by the Sessions Court, has committed the case to the court of sessions, Tiruvannamalai Division and the same has been taken on file in S. No. 118 of 2007 and subsequently, transferred to the file of the trial Court. 4. The trial Court, after hearing both sides and upon perusing the relevant records, has framed charges against the accused under Sec. 376(1) of Indian Penal Code and the same has been read over and explained to him. The accused denied the charges and claimed to be tried. 5. On the side of the prosecution, P.Ws. 1 to 12 have been examined and Exs. P. 1 to P. 8 have been marked. 6. When the accused have been questioned under Sec. 313 of Criminal Procedure Code 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crimes. No oral and documentary evidence have been adduced on the side of the accused. 7. P. 1 to P. 8 have been marked. 6. When the accused have been questioned under Sec. 313 of Criminal Procedure Code 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crimes. No oral and documentary evidence have been adduced on the side of the accused. 7. The trial Court, after hearing the arguments of both sides and after preponding the available evidence on record, has found the accused guilty under Sec. 376(2) of Indian Penal Code and sentenced him to undergo 10 years Rigorous imprisonment and also imposed a fine of Rs. 10,000/- with usual default clause. Against the order of conviction and sentence, passed by the sessions court, the present criminal appeal has been preferred at the instance of the accused as appellant. 8. The sum and substance of the case of the prosecution is that on 10.3.2007 at about 5.30 p.m. while the prosecutrix has been watching television in the house of the accused, he raped her. 9. The entire case of the prosecution hinges upon Ex. p. 1 the complaint coupled with the evidence given by the prosecutrix, who has been examined as P.W. 2. The trial Court after considering the evidence given by P.W. 2 and other medical evidence, has found the accused guilty under section mentioned supra. 10. The learned counsel, appearing for the appellant/accused has raised the following points so as to set aside the conviction and sentence, passed by the trial court. a. The specific case of the prosecution is that the occurrence has been taken place on 10.3.2007 whereas the complaint/ex. p. 1 has been given on 12.03.2007; b. The specific evidence given by the prosecutrix (p.w. 2) is that even on the date of occurrence, a complaint has been given to Thoosi Police Station and even on the same day, she has been subjected to medical examination by a Doctor in Mamandur, but the prosecution has failed to file the earlier complaint alleged to have been given and also failed to examine the Doctor, who examined the prosecutrix first; c. On the side of the prosecution M.Os. 1 to 3 have been marked, but the same have not been subjected to chemical examination. 11. 1 to 3 have been marked, but the same have not been subjected to chemical examination. 11. The learned Additional public Prosecutor has contended that is the instant case, the prosecutrix is aged about 10 years at the time of alleged occurrence and she has been examined and in fact, she has given credible evidence to the effect that in the place of occurrence, the accused has raped her and in fact the evidence of prosecutrix has been corroborated by medical evidence and the trial court, after considering the evidence available on record, has rightly invited the conviction and sentence against the appellant/accused under Sec. 376(2) of Indian Penal Code and the same do not warrant any interference. 12. The specific case of the prosecution is that the occurrence is taken place on 10.3.2007 at about 5.30 p.m. and that too, in the house of the accused. As rightly pointed out on the side of the appellant/accused, Ex. p. 1. complaint has come in to existence on 12.3.2007. 13. In a case like this, the delay in lodging the complaint, is not fatal to the case of the prosecution and under such circumstances, the first point, raised on the side of the appellant/accused does not hold good. 14. The second point, raised on the side of the complaint/accused is that the specific evidence of the prosecutrix in that even on the date of occurrence, a complaint has been given in Thoosi police station and on the same day, she has been medically examined by a Doctor at Mamandur. 15. On the side of the prosecution, the complaint alleged to have been given on the date of commission of offence in Thoosi Police Station, has not been marked. Further it is seen from the evidence given by P.W. 2 that even on the date of occurrence, she has been subjected to medical examination, but the concerned doctor has not been examined, whereas p.ws. Dr. Parasakthi has examined the prosecutrix on 15.3.2007. No explanation has been given on the side of the prosecution for such belated examination even though Ex. p. 1 has been registered on 12.3.2007. Dr. Parasakthi has examined the prosecutrix on 15.3.2007. No explanation has been given on the side of the prosecution for such belated examination even though Ex. p. 1 has been registered on 12.3.2007. Since the prosecution has failed to file the complaint alleged to have been given in Thoosi Police Station, even on the date of commission of offence and since the Doctor who examined the prosecutrix first, has not been examined, the second point, raised on the side of the appellant/accused is really having subsisting force. 16. The third point, put forth on the side of the appellant/accused is that even though M.Os. 1 to 3 have been seized from the prosecutrix, the same have not been subjected to chemical examination. 17. It is true that M.os. 1 to 3 have been seized from the prosecutrix but as rightly pointed out on the side of the appellant/accused, the same have not been subjected to chemical examination and that itself has militated the case of the prosecution. 18. Before parting with this Criminal Appeal this court would like to sum up the following infirmities found on the side of the prosecution. (i) The prosecution has not given any explanation with regard to non-filing of the complaint, alleged to have been given on the date of commission of offence in Thoosi police station; (ii) The prosecution has failed to examine the Doctor, who examined the Prosecutrix first in mamandur; (iii) The prosecution has failed to send all the M.Os. 1 to 3 to chemical examination. 19. By way of eschewing the vital infirmities pointed out earlier, it is highly improbable to come to a conclusion that the prosecution has established the alleged guilt of the accused, punishable under Sec. 376(2) of Indian Penal Code Further P.W. 8 Doctor Parasakthi has examined the prosecutrix only on 15.3.2007 whereas, the occurrence has taken place on 10.3.2007 and no acceptable explanation has been given on the side of the prosecution for such belated medical examination. Therefore viewing from any angle, the contentions put forth on the side of the appellant/accused are really having acceptable force. 20. Therefore viewing from any angle, the contentions put forth on the side of the appellant/accused are really having acceptable force. 20. The trial court without looking into the vital infirmities, found on the side of the prosecution has simply invited the conviction and sentence by way of relying upon the evidence given by P.W. 2 It is settled principle of law that since P.W. 2 is a child witness her testimonies have to be analysed very carefully and dispassionately. In the instant case as noted down in many places Vital infirmities are found place in the case of the prosecution and therefore, the conviction and sentence passed by the trial court are liable to be interfered with. In fine, this Criminal Appeal is allowed and the conviction and sentence, passed in S.C. No. 118 of 2007 by the Assistant Sessions Court, Cheyyar are set aside. The appellant/accused is acquitted Fine amount if any paid by the appellant/accused, is ordered to be refunded forthwith.