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2017 DIGILAW 4001 (MAD)

Nagaraj v. State Rep. by Inspector of Police

2017-11-24

P.VELMURUGAN

body2017
JUDGMENT : 1. This Criminal Appeal is directed against the Judgment, dated 26.03.2012 made in S.C.No.103 of 2009, passed by the learned Sessions Judge, Mahalir Needhimandram, Coimbatore, convicting and sentencing the appellant for the offence under Section 376 of IPC. 2. The case of the prosecution in nutshell are as follows :- The Victim-Kannagi, aged about 17 years and a native of Sivagangai District was staying at NSA Thari Godown at Mangalam Road, Charayakaran Thottam at Palladam, for the past 4 years prior to the occurrence. She was working at the said Thari godown with few other girls. Accused Nagaraj is a native of Muthur Nagar, Therkupalayam, which is situated near the above said godown. On 23.03.2008 at about 8.p.m., in the above said that godown, the accused in a drunken state, utilizing the loneliness of victim, dragged her from godown to a nearby bush, and on her resistance, pushed her down and stamped on her neck, causing abrasions on her forehead, face and on her right hip, made her panick stricken, and committed sexual assault by biting her lips and committed sexual intercourse without her consent and against her will and thereby the accused said to have committed the offence of rape punishable under Section 376 IPC. 3. P.W.1-Rajeswari, sister of the victim preferred a complaint/Ex.P1 before the Police Station. P.W.15-Head Constable, on receipt of the complaint, registered a case in Crime No.323 of 2008 for the offence under Section 376 IPC and forwarded the same to P.W.16-Investigation Officer. P.W.16 proceeded to the place of occurence and observed the place of occurence and prepared Rough Sketch and Observation Mahazar, marked as Exs.P9 and P3 respectively. On 22.04.2008 about 12 noon, P.W.16 arrested the accused near a TASMAC shop at Manikkapuram Road, Palladam and on completion of investigation, filed a final report. 4. The prosecution, in order to substantiate the charges levelled against the accused, examined P.W.1 to P.W.13 and marked Exs.P1 to P21 and Exs.M.O.1 to M.O.13 were marked as material objects. On the side of the respondent, no witness was examined and Exs.D1 and D2 were marked and Hospital O.P. Sheet was marked as Ex.C1. 5. 4. The prosecution, in order to substantiate the charges levelled against the accused, examined P.W.1 to P.W.13 and marked Exs.P1 to P21 and Exs.M.O.1 to M.O.13 were marked as material objects. On the side of the respondent, no witness was examined and Exs.D1 and D2 were marked and Hospital O.P. Sheet was marked as Ex.C1. 5. The Trial Court, on consideration and appreciation of oral and documentary evidence and other materials, found the accused guilty and convicted him under Section 376 IPC and sentenced to undergo ten years rigoruos imprisonment and also pay a fine of Rs.10,000/- in default to undergo three months simple imprisonment and also pay a sum of Rs.25,000/- as compensation to P.W.2 under Section 357 Cr.P.C. 6. Against the said conviction and sentence passed by the learned Sessions Judge, Magalir Needhimandram, Coimbatore, the appellant / accused has filed the present appeal. 7. Now the point for consideration before this Court is whether the prosecution has proved its case beyond reasonable doubt and the judgment and conviction passed by the trial Court is in order? 8. It is the case of the prosecution that the Victim-Kannagi, aged about 17 years and a native of Sivagangai District was staying at NSA Thari Godown at Mangalam Road, Charayakaran Thottam at Palladam. P.W.2 was working at the said Thari godown with few other girls. Accused Nagaraj is a native of Muthur Nagar, Therkupalayam, which is situated near the above said godown. On 23.03.2008 while P.W.2 was in duty, she had gone outside for attending nature's call and at that time, the accused took up some conversation with the victim-P.W.2 and she was strangulated and did not give any reply and at that time, suddenly dragged the victim from godown to a nearby bush, and on her resistance, pushed her down and stamped on her neck and she became unconscious and after that she gained consciousness only in the hospital. 9. P.W.1. is the sister of victim and she was also working in the same company in different unit, which is in the another room. 9. P.W.1. is the sister of victim and she was also working in the same company in different unit, which is in the another room. In her evidence she deposed that she used to go to her sister-P.W.2's place and on 23.03.2008, when she had gone to meet her sister she was not there and it was informed by her co-worker that she would have gone to attend nature's call, so, after half-an-hour, again she went to godown and at that time also she was not there and searched in and around there and she could not find her and she immediately informed to P.W.3 and at that time she was watching TV with others with her family members and those who are on rest. Immediately, P.W.3 and P.W.4 and other workers went and searched in and around the place and at last, they found the victim near a dark place around the western side of the godown and took her to hospital and the doctor, who has examined the victim, had spoken about the injury of the victim. PW16, after completion of investigation and after collection of material objects, sent them for Forensic analysis and after getting information from the doctors who was examined the witness and P.W.16, has laid charge sheet against the accused for the offence under Section 376. 10. The learned counsel for the appellant would submit that the accused name is not found in the F.I.R. P.W.1 has not stated the name of the accused and also P.W.1 has not an eyewitness and the victim girl also not mentioned the name of the accused. The prosecution has not proved that how the victim has identified the accused. It is only an anticipation of P.W.3 and P.W.4 and they have foisted a false case against him. The prosecution has not proved his case beyond reasonable doubt. Therefore, the learned Judge failed to consider that there is no eyewitness and even as per the evidence of P.W.2, when she had gone out for attending nature's call and at the time accused asked her name when she refused to tell her name and immediately slapped and pushed her down and stamped on her neck, causing abrasions on her forehead and after that she became unconscious and she was conscious only in the hospital. It is not stated that the accused has committed the rape. It is not stated that the accused has committed the rape. When there is no eyewitness and in the absence of the same, the benefit of doubt is to be given to the accused and the learned Judge without any proof, convicted the accused and therefore, the same is liable to be set-aside. 11. The learned Additional Public Prosecutor would submit that after P.W.2 become conscious in the hospital she informed to P.W.1 and P.W.3 about the identification of the accused and then P.W.3 told the name of the accused; and then the victim, after seeing only, identified the accused one who committed the offence. Therefore, from the evidence of P.W.1 to P.W.3 and also the evidence of the doctor, who has examined the accused, the learned trial Judge has correctly come to the conclusion that the accused has committed the offence and the prosecution has proved its case beyond reasonable doubt. Therefore, the judgment and conviction passed by the learned trial Judge is valid under law and the Criminal Appeal has to be dismissed. 12. I have carefully considered the rival submissions and oral and documentary evidence on record. 13. Since this Court being the first appellate Court and it is a fact finding Court in order to find out the truth, has to re-appreciate the evidence. 14. According to prosecution, the Victim-Kannagi, aged about 17 years and a native of Sivagangai District was staying at NSA Thari Godown at Mangalam Road, Charayakaran Thottam at Palladam, for the past 4 years prior to the occurrence. She was working at the said Thari godown with few other girls. Accused Nagaraj is a native of Muthur Nagar, Therkupalayam, which is situated near the above said godown. On 23.03.2008 at about 8.p.m., in the above said that godown, the accused in a drunken state, utilizing the loneliness of victim and dragged her from godown to a nearby bush, and on her resistance pushed her down and stamped on her neck, causing abrasions on her forehead, face and on her right hip, made her panick stricken, and committed sexual assault by biting her lips and committed sexual intercourse without her consent and against her will and thereby the accused said to have committed the offence of rape punishable under Section 376 IPC. 15. 15. According to P.W.2-victim-Kannagi, while she was in duty and when she had come out to attend the nature's call, the accused asked what is your name and where are you from. For that, P.W.2, told that I don't know and immediately, the accused dragged her to a nearby bush, and on her resistance pushed her down and stamped on her neck, causing abrasions on her forehead and after that she became unconscious. 16. According to P.W.1, sister of the victim, P.W.1 was working in the loom in the eastern godown, while P.W.2 was assigned to work on the western godown. When P.W.1 went to western godown to see her sister, she was not there and believed from one of the co-workers, viz., Deepa that her sister might have gone to use the rest room. After a while P.W.1, again went to the western godown and found that her sister had not returned. She was slightly alarmed and looked for her sister in and around, and when she could not trace her, she rushed and reported it at 10.00 p.m., to her boss, viz., P.W.3-Sarojini. 17. According to P.W.3, she and her family were watching television along with few other girls working in the looms. P.W.1 told that her sister P.W.2 was missing. Soon, the entire family and other girls begun their search for P.W.2. The men of the family (the husband of P.W.3 Arumugam and their son P.W.4) went to the main road, while the others looked for her within the Charayakkaran Thottam. In the course of their search, P.W.3 and others found P.W.2 lying unconscious near a dark place about the western godown and there was a bleeding all over the body from ear to her private parts significantly semi-conscious. P.W.3 and P.W.4 immediately took P.W.2 to Government Hospital, Palladam, where P.W.11 attended her. The time then was 11.45 p.m. P.W.2 continued to be unconscious as could be gathered from the testimony of P.W.1, Dr. Kavitha, who found P.W.2 critical and referred her to CMC Hospital. Accordingly, she was brought to CMC Hospital and was admitted there at 2.00 a.m. by P.W.9-Dr.Bhuvana. In Ex.P9-Accident Register, it is recorded that P.W.2 continued to be disoriented even at 2.00 a.m. P.W.10 is Dr. Geetha and at that relevant time, she was working in the Labour Ward of CMC Hospital. Accordingly, she was brought to CMC Hospital and was admitted there at 2.00 a.m. by P.W.9-Dr.Bhuvana. In Ex.P9-Accident Register, it is recorded that P.W.2 continued to be disoriented even at 2.00 a.m. P.W.10 is Dr. Geetha and at that relevant time, she was working in the Labour Ward of CMC Hospital. She was summoned to trauma ward where P.W.2 lays in a state of semi-consciousness, and perhaps oblivious to fact that she was a victim of male-predation. P.W.10 attended on her and issued Ex.P12 accident register copy. Among the various injuries that P.W.10 found on the body of P.W.2, a vaginal tear was critical and was seen bleeding and the same had to be sutured by P.W.10. After recovery, P.W.2-victim told the incident to P.W.1. 18. The contention of the learned counsel for the appellant is that the accused name was not found in the F.I.R. P.W.1 has not stated the name of the accused and also P.W.1 is not an eyewitness and the victim girl also not mentioned the name of the accused and therefore, the prosecution has not proved that how the victim has identified the accused. P.W.2, in her evidence, clearly deposed that when she had come to attend the nature's call, the accused asked her name and native when she said I don't know immediately she was slapped and she was strangulated and next she remembers that she became unconscious. For better understanding, it is relevant to extract relevant portion of the chief examination and the same is extracted hereunder :- “TAMIL” From the above evidence, it is clear that before the date of occurrence, P.W.3 alarmed P.W.2 and others about the character of the accused. Further, P.W.3 in her evidence would say that the accused had earlier worked under her and that he used to use the pathway in her unprotected, unfenced property. Further, during cross-examination P.W.2 deposed as follows :- “TAMIL” Further, P.W.2 clearly identified the accused and material objects in the Court, during the trial. 19. It is not the case that accused is unknown person. It is the case where name of the accused is not known at the time of filing a complaint and registering the FIR. Further, during cross-examination P.W.2 deposed as follows :- “TAMIL” Further, P.W.2 clearly identified the accused and material objects in the Court, during the trial. 19. It is not the case that accused is unknown person. It is the case where name of the accused is not known at the time of filing a complaint and registering the FIR. It is an admitted fact that though the accused is not a well known person to the victim, he is in the same locality used to passes through the godown where the victim was working and she had seen him prior to the occurrence. According to P.W.3, the accused is a well known person, and in fact, he had worked in the said thari godwon and further in her evidence she deposed that the accused used to use the pathway in her unprotected, unfenced property. Further, the character of the accused was alarmed by P.W.3, two to three days prior to the occurrence. P.W.2-victim in her evidence has deposed that she knows and has seen the accused and she has stated very clearly that the accused had asked her name and native and for that she said I don’t know and immediately, the accused stamped on her neck, causing abrasions and she was unconscious and it is clear from the evidence of P.W.2 that when she has seen the accused, she refused to say her name and the accused stamped on her neck and after that only she became unconscious. Further, the complaint was given by P.W.1, the sister of the victim. At the time of filing the complaint, she would have in a tensed situation, because her sister was admitted in the hospital and her mind would have about her sister only. PW8, PW10 and PW11 are the Doctors who treated the victim in the hospitals. Further, the doctor who had examined the accused about his potentiality was examined as P.W.13 and after examining the accused, came to conclusion that there was no symptoms to say that he was impotent. Therefore, on a combined reading of the evidence of PW1, PW2, PW3, PW10, PW11 and PW13, it is crystal clear that the accused only has committed the offence. Further, it is settled position that in the case of sexual assault the evidence of the victim alone is sufficient. 20. Therefore, on a combined reading of the evidence of PW1, PW2, PW3, PW10, PW11 and PW13, it is crystal clear that the accused only has committed the offence. Further, it is settled position that in the case of sexual assault the evidence of the victim alone is sufficient. 20. For the aforesaid reasons, this Court is of the considered view that the prosecution has proved the charges levelled as against the accused beyond all reasonable doubt and the trial Court has rightly convicted and sentenced the accused and the same does not warrant any interference by this Court and accordingly, the criminal appeal is liable to be dismissed. 21. In fine, this Criminal Appeal is dismissed, confirming the Judgment of conviction and sentence, dated 26.03.2012 imposed on the appellant/accused made in S.C.No.103 of 2009, on the file of learned Sessions Judge, Mahalir Needhimandram, Coimbatore. Since the accused is on bail, the learned Sessions Judge, Mahalir Needhimandram, Coimbatore is directed to secure the presence of the appellant/accused and commit him to prison to serve the remaining portion of sentence.