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Gundu Murugesan v. State - CRL.A.205 of 2005  RD-TN 2282 (12 July 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRIMINAL APPEAL No.205 of 2005
Gundu @ Murugesan .. Appellant -vs- State by Inspector of Police
Hosur Police Station,
(crime No.1273/98) .. Respondent
This appeal is filed against the Judgment made in S.C.No.35/2003 dated 21.12.2004 on the file of the Additional
Sessions Judge, Hosur.
For appellant : Mr.N.Iyya Kannu
Additional Public Prosecutor.
This appeal has been preferred by the accused in S.C.No.35 of 2003 on the file of the Additional Sessions Judge, Hosur. The accused has been charged under Sections 450 of IPC and 376(2)(f) of IPC for having committed an offence of rape against the victim girl P.W.1.
2. The learned Judicial Magistrate No.2, has taken cognizance of the offence and issued summons to the accused, on his appearance furnished copies under Section207 of Cr.P.C. since the case is exclusively triable by the Court of Sessions, the learned Sessions Judge has committed the case to the Court of Sessions. The learned Additional Sessions Judge, Hosur , on the appearance of the accused framed charges under Sections 450 of IPC and 376(2)(f) of IPC and when questioned, the accused pleaded not guilty.
3. On the side of the Prosecution , P.Ws 1 to 10 were examined. Exs P1 to P17 were exhibited and M.Os 1 and2 were marked.
4. P.W.1 is the minor victim girl aged seven years at the time of occurrence. She would depose that she has lost her parents and that she is now living with her brother . She would depose that she does not know the accused. She would further depose that in the police station , she had stated that she had given a statement as tutored by her father. According to her, she was taken to the Government Hospital by her father where she was treated as an inpatient for one day. She was neither cross examined nor treated as a hostile witness.
4a. P.W.2 is a hostile witness. P.w.3 is the witness for the recovery of Pant of the accused under Ex P1 P.W.4 is the doctor who had examined the accused and issued Ex P4 certificate stating that he is potent. P.W.6 is the then Sub Inspector of Police, Hosur Police Station who on an intimation from the Government Hospital, Hosur proceeded to the Government Hospital and received the complaint from the father of the victim girl P.W.1 which was registered by him under Hosur Police Station Crime No.1273 of 1998 under Sections 450 and 376 of IPC and that copy of the First information report is Ex P12. Ex P11 is the complaint.
4b. P.W.9 is the then Inspector of Police, Hosur police Station who took up investigation in this case has visited the place of occurrence and prepared observation Mahazar Ex P16. He has examined P.W.1 and recorded her statement and had drawn Ex P17 rough sketch and has arrested the accused and recorded his confession statement. Ex P14 is the admissible portion of the confession statement of the accused. He has recovered the pant M.O.1 from the accused. P.W.7 is the then Inspector of Police, Hosur police station. He had sent the accused to the Government Hospital for medical examination and subsequently handed over the case records to his successor. 4c. P.W.8 is the doctor who had examined P.W.1 on 3.10.1998 at about 8.30 p.m., On examination, she could find swelling in the lower lip. According to the Doctor P.W.1's hymen was in tact. Ex P13 is the wound certificate issued by P.W.8. P.W.10 is the successor of P.W.9 who had obtained the wound certificate from the doctor and also examined the doctor P.W.8 and recorded her statement. After following the formalities, he had fileld the final report against the accused on 13.10.2001.
5. When incriminating circumstances under Section 313 Cr.P.C. were put to the accused, he would deny his complicity with the crime.
6. The learned trial Judge on the basis of Ex P11 complaint preferred by P.W1's father and also on the evidence of P.W.13 has convicted the accused under Section 450 of IPC and 376(2)(f) of IPC and sentenced to undergo five years rigorous imprisonment under Section 450 of IPC and also slapped a fine of Rs.1000/- with default sentence and also convicted the accused under Section 376(2(f) of IPC and sentenced to undergo ten years rigorous imprisonment and a fine of Rs.2000/- with default sentence. Aggrieved by the findings of the learned trial Judge, the accused has preferred this appeal.
7. Now the point for consideration in this appeal is whether the conviction and sentence of the learned trial Judge against the accused under Sections 450 and 376(2)(f) of IPC is sustainable in law for the reasons stated in the memorandum of appeal?
8.Heard Mr.N.Iyya Kannu, learned counsel appearing for the appellant and Mr.V.R. Balasubramaniam, learned Additional Public Prosecutor for the State and carefully considered their rival submissions.
9 The Point:
This is an unfortunate case in which the victim girl who is an orphan on the date of her examination before the Court , according to the prosecution , was raped by the accused. According to the prosecution, the occurrence had occurred on 3.10.1998 at about 3.00p.m., in the house of P.W.1. Immediately, she has been admitted in the Government Hospital, Hosur from where the intimation was sent to the Hosur Police Station on 3.10.1998 at about 21.30hours.
10. P.W.6 is the Sub Inspector of Police who had received the intimation from the Government Hospital, Hosur, immediately proceeded to the hospital and saw P.W.1 admitted in the hospital is not able to speak anything about the occurrence and hence the complaint was received from P.W1's father under Ex P11 by him.
11. In Ex P11, P.W.1's father has stated that on 3.10.1998 at about 3.00p.m., when he entered into his house, he saw the accused sitting half naked and his daughter P.W.1 also without her inskirt and from his daughter P.W.1, he would infer that an offence under Section 376 has been committed by the accused on his daughter and that immediately he took her daughter to the Government Hospital , Hosur and admitted her. The Doctor who had examined the victim girl on 3.10.1998 was not examined in this case .
12. Through P.W.8 Dr.K.Hemavathy ,Ex P13 wound certificate said to have been issued by Rajarajeswari, the Assistant Professor/Tutor in Physiologist Government Mohan Kumaramangalam Medical College. Even though it is stated in the wound certificate that the said Dr.Rajarajeswari had examined P.W.1 on 3.10.1998 and the wound certificate Ex P13 is dated 15.8.2001.P.W.8 would depose in her evidence that Dr. Rajarajeswari was serving in the Government Hospital, Hosur and that she knows her signature . But she has not stated that Dr. Rajarajeswari had gone abroad or her presence could not be secured. Under such circumstances, there is no explanation forthcoming from the prosecution why Dr.Rajarajeswari who had issued Ex P13 on 15.8.2001 was not examined in this case. But as per Ex P13, the hymen of the victim girl P.W.1 was found in tact and even as per report received from the Assistant Director and Assistant Chemical Examiner to Government , there was no spermatozoa found in the material objects seized and sent from P.W.1 for chemical examination after the occurrence. So there is no corroboration of any medical evidence for the allegation made in Ex P11 complaint preferred by P.W1's father to the effect that P.W.1 was subject to an offence of rape by the accused on 3.10.1998.
13. Apart from this evidence, the evidence of P.W.1 the victim girl cuts at the root of the prosecution case because she has completely given a go by to the prosecution case, she has not even identified the accused in the Court, she would depose that she had given statement before the police as tutored by her father. Under such circumstances, I am of the view that the findings of the learned trial Judge on the basis of Ex P11 alone cannot be sustainable. The point is answered accordingly.
14. In fine, the appeal is allowed and conviction and sentence under Sections 450 and 376(2)(f) of IPC awarded by the learned trial Judge in S.C.No.35 of 2003 on the file of Assistant Sessions Judge, Hosur is set aside and the accused/appellant is set at liberty forthwith, if he is not required in any other case. Bail bond executed by the appellant shall stand cancelled. The fine amount, if any paid, shall be refunded to the accused. 12-07-2007 index:yes
1. The Assistant Sessions Judge, Hosur
2. -d0-through the District and Sessions Judge, Hosur 3. The Judicial Magistrate No.2, Hosur
4. -do- through the Chief Judicial Magistrate,Dharmapuri District 5. The Public Prosecutor, Pondicherry
6. The Superintendent of Central Prison,Salem
7. The Inspector of Police, Hosur Polcie Station, Hosur Crl.A.No.205/2005 25.06.2007 Advance Order in Crl.A.Nos.109/2004, 234/2004 and 324/2004 R.BALASUBRAMANIAN,j & A.C.ARUMUGAPERUMAL ADITYAN,J These appeals in Crl.A.Nos.109, 234,and 324 of 2004 are allowed setting aside the Judgment in S.C.No.278 of 2002 on the file of Additional Sessions Judge(Fast Track Court No.III) Chennai. The accused are set at liberty forthwith. Fine amount, if any paid, shall be refunded to the accused. Bail bond executed by the appellants shall stand cancelled. (R.B.J.,)(A.C.A.A.J.,) 20.11.2006 sg Pre delivery Judgment made in Crl.A.No.469 of 2003 THE HONOURABLE
MR.JUSTICE M.KARPAGA VINAYAGAM
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