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2015 Supreme(Mad) 896
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SATHYANARAYANAN, J.
Ponsekar – Appellant
Vs.
State represented by The Deputy Superintendent of Police, Nanguneri, Tirunelveli District – Respondent
Crl. A. (MD) No. 284 of 2007 & M.P. (MD) No. 1 of 2015
Decided On : 17-02-2015
For the Appellant:S.R.A. Ramachandran, Advocate.
For the Respondent:S. Prabha, Government Advocate (Crl.Side).
Headnote:
Indian Penal code - Sections 376 and 506, 3 - Code of Criminal Procedure - Section 428 - Rape - Trial Court - Undergo rigorous imprisonment- Aggrieved by the conviction - Oral and documentary evidences - mother of the victim-P.W.2 and she lodged a complaint on file of Police Station, stating that she is a resident of South Colony and eking out her livelihood as agricultural coolie and she is having four daughters and one son and the fifth daughter- studying standard in School - She would further state that at her daughter P.W.2 returned from school and asked her to go to shop and buy rice husk and she went to purchase same, but did not return for quite sometime. Therefore, and her son-in-law were proceeding and when they went near land owned by they heard an alarm raised by her daughter when they went inside, they found that the appellant/accused was lying over who raised an alarm to save her - Occurrence was also witnessed by and when they raised an alarm, the appellant/accused fled away from scene of occurrence and while doing so, he threatened the witnesses with dire consequences. Since night hours had fallen, fear for their life did not lodge a complaint - On the next day, she proceeded to Police Station and lodged a complaint, which was marked – Held, sine qua non of offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape - Definition of “rape” as contained in Section 375 IPC refers to “sexual intercourse” and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view - In the light of the said decision, coupled with the factual aspects, this Court is of the considered view that the appellant/accused made an attempt to commit rape on P.W.2 -victim girl. No doubt, P.W.11 did not make any attempt to ascertain the actual age of the victim girl and not even choose to collect the document from the School as to the age of the victim girl. But the suggestion made to by would disclose that she was studying in the School and she was aged well below 16 years. The trial Court, on a proper appreciation of oral and documentary evidences, had convicted the appellant/accused for the offence under Sections 376 r/w 511 I.P.C - At this juncture learned Counsel for appellant/accused would submit that the trial Court imposed the sentence of 7 years rigorous imprisonment and to pay a fine in default, to undergo simple imprisonment and taking into consideration the fact that the appellant/accused has been married and begotten three children, the period of sentence of imprisonment may be reduced and on the said submission, this Court heard the learned Government Advocate also - In the light of the said submission made by the leaned Counsel for the appellant/accused with regard to imposition of sentence, this Court is of the view that the sentence of imprisonment of 7 years rigorous imprisonment is to be reduced and the sentence of fine and default sentence awarded by the trial Court is to be maintained - Appeal dismissed
1. The appellant is the sole accused in S.C.No.63 of 2004, on the file of the Court of II Additional Sessions Judge, Tirunelveli and he was charged for the commission of the offences under Sections 376 and 506(i) I.P.C. and under Section 3(2)(V) of the SC/ST(Prevention of Atrocities) Act. The trial Court, after full- fledged trial, found him not guilty for the commission of the offence under Section 506(i) IPC and 376 IPC and 3(2)(V) of the SC/ST(Prevention of Atrocities) Act, however, found him guilty for the commission of offences under Sections 376 r/w 511 I.P.C., and vide impugned judgment dated 07.05.2007, it has sentenced him to undergo rigorous imprisonment for a period of 7 years and also to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of 1-1/2 years. The trial Court has also set off the period of detention already undergone by the appellant/accused during the trial or inquiry under Section 428 of the Code of Criminal Procedure. The appellant/accused, aggrieved by the conviction and sentence, passed in the judgment dated 07.05.2007, made in S.C.No. 63 of 2004, by the Court of II Additional Sessions Judge, Tirunelveli, has filed this Criminal Appeal.
2. The facts of the case leading to the filing of this Criminal Appeal are stated as follows:
2.1. P.W.1 is the mother of the victim-P.W.2 and she lodged a complaint on the file of Kalakkad Police Station, stating that she is a resident of South Puliyangulam Colony and eking out her livelihood as agricultural coolie and she is having four daughters and one son and the fifth daughter-P.W.2 is studying 5th standard in Kalakad Muthiah School. She would further state that on 22.02.2004 at about 05.00p.m., her daughter P.W.2 returned from school and P.W.1 asked her to go to shop and buy rice husk and she went to purchase the same, but did not return for quite sometime. Therefore, P.W.1 and her son-in-law Murugan (not examined) were proceeding and when they went near the land owned by Rajadurai Nadar (P.W.4), they heard an alarm raised by her daughter-P.W.2 and when they went inside, they found that the appellant/accused was lying over P.W.2, who raised an alarm to save her. The occurrence was also witnessed by P.W.3 and P.W.4 and when they raised an alarm, the appellant/accused fled away from the scene of occurrence and while doing so, he threatened the witnesses with dire consequences. Since night hours had fallen, fear for their life, P.W.1 did not lodge a complaint. On the next day, she proceeded to Kalakad Police Station and lodged a complaint, which was marked as Ex.P.1.
2.2. P.W.10 was the Sub-Inspector of Police, attached to Kalakkad Police Station and pursuant to the complaint given by P.W.1-the mother of the victim, he has registered an F.I.R. in Cr.No.207 of 2004 for the commission of the offence under Section 376 I.P.C. r/w Section 3(2)(V) of the SC/ST (Prevention of Atrocities) Act at 09.30 hours on 23.04.2004. The printed F.I.R. was marked as Ex.P.9.
2.3. P.W.11 was the Deputy Superintendent of Police of Nanguneri and on receipt of the F.I.R., commenced the investigation and went to the scene of occurrence at about 11.00a.m. on 23.04.2004 and in the presence of P.W.5, he prepared Observation Mahazar and rough Sketch, which were marked as Ex.P.2 and Ex.P.10 respectively. P.W.11 examined P.W.1, P.W.2-victim girl, son-in- law of P.W.1-Murugan, P.W.3 and P.W.10 - Sub Inspector of Police, who registered the F.I.R. by recording the statement under Section 161 of the Code of Criminal Procedure.
2.4. On 23.04.2004 at about 02.00p.m., P.W-11 effected the arrest of the appellant/accused and after conducting a body search, send him for judicial custody. P.W.11, on the same day, made a request to find out the physical condition of the appellant/accused by sending a request to the jurisdictional Magistrate Court.
2.5. P.W.6, after examining the appellant/accused, has issued a certificate under Ex.P.3, stating that “there is nothing to
