Back
2015 Supreme(Mad) 3689
MADRAS HIGH COURT
A. Selvam, J.
Kaliyappan - Petitioner
Versus
The State, rep. by the Inspector of Police, Nagapattinam Town Police Station, Nagapattinam – Respondent
Criminal Appeal No. 825 of 2013 and M.P. No. 1 of 2015
Decided On : 06-11-2015
For the Appellant :V. Sathish for Geetha Senthilkumar, Advocates
For the Respondent: P. Govindarajan, Additional Public Prosecutor
Headnote:
Criminal Law - Indian Penal Code, 1860 - Section 376(1) - Code of Criminal Procedure, 1973 - Section 313 – Criminal Trial – Trespassed into house and Rape – Appeal against conviction - Prosecutrix is a mentally retarded daughter of defacto complainant at about 1.00 a.m. accused has trespassed into house of defacto complainant with an intention to deflower prosecutrix and in pursuance of his intention, he deflowered prosecutrix and after occurrence, defacto complainant has given a complaint and same has been registered - Held, Prosecutrix has been medically examined by P.W.15 and her specific evidence is that there is a swelling and also injury in hymen of prosecutrix - It is true that during course of cross-examination, she has admitted certain suggestions and same are nothing but her opinion and not evidence - Therefore, admissions given by P.W.15 would not help accused to escape from liability - Prosecutrix has given picturesque evidence to effect that at time of occurrence, accused gagged her mouth by using a cloth and subsequently deflowered her - Evidence given by prosecutrix has been clearly corroborated by medical evidence given by P.W.15. Therefore, it is needless to say that in place of occurrence, accused has raped prosecutrix by way of trespassing into house of defacto complainant - Appellant/accused is that there is a delay in giving Ex.P1, even though such occurrence has taken place - Prosecution and with regard to other points raised on side of accused, this Court has already given befitting reply - Criminal appeal dismissed.
A. Selvam, J.
Challenge in this criminal appeal is to the convictions and sentences dated 30.09.2013, passed in Sessions Case.No.31 of 2013, by the Assistant Sessions Court, Nagapattinam.
2. The case of the prosecution is that the prosecutrix is a mentally retarded daughter of the defacto complainant by name Karupayee. On 24.5.2009, at about 1.00 a.m./25.5.2009, in Nataraja Pillai Street, Nagapattinam, the accused has trespassed into the house of the defacto complainant with an intention to deflower the prosecutrix and in pursuance of his intention, he deflowered the prosecutrix and after occurrence, the defacto complainant has given a complaint and the same has been registered in Crime No. 281 of 2009, by P.W.14, the Sub Inspector of Police. The complaint given by the defacto complainant has been marked as Ex.P1.
3. On receipt of Ex.P1, the investigating officer, P.W.16, has taken up investigation and made arrangements to conduct medical examination to the prosecutrix as well as to the accused and accordingly Dr. Murali Mohan (P.W.13) has physically examined the accused. Likewise, Dr. Thenmozhi (P.W.15) has examined the prosecutrix. After completing investigation, P.W.15 has laid a final report on the file of the Judicial Magistrate No. I, Nagapattinam and the same has been taken on file in P.R.C. No. 4 of 2013.
4. The Judicial Magistrate No. I, Nagapattinam, after considering the facts that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Nagapattinam Division and the same has been taken on file in Sessions Case No. 31 of 2013 and subsequently transferred to the file of the trial Court.
5. The trial Court, after hearing arguments of both sides and upon perusing the relevant documents, has framed first charge against the accused under Section 450 of the Indian Penal Code; second charge against him under Section 376(1) of the Indian Penal Code and the same have been read over and explained to him. The accused has denied the charges framed against him and claimed to be tried.
6. On the side of the prosecution, P.Ws.1 to 16 have been examined and Exs.P1 to P6 have been marked.
7. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973, as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. No oral and documentary evidence has been adduced on the side of the accused.
8. The trial Court, after hearing arguments of both sides and upon perusing the relevant evidence available on record has found the accused guilty under section 450 of the Indian Penal Code and sentenced him to undergo three year rigorous imprisonment and also imposed a fine of Rs. 500/- with usual default clause. The accused has also been found guilty under Section 376(1) of the Indian Penal Code and sentenced to undergo ten years rigorous imprisonment and also imposed a fine of Rs. 2,000/- with usual default clause. Against the convictions and sentences passed by the trial Court, the present criminal appeal has been filed, at the instance of the accused, as appellant.
9. The consistent case put forth on the side of the prosecution is that the house of the defacto complainant is situated in Nataraja Pillai Street, Nagapattinam. On 24.05.2009 at about 1.00 a.m./25.5.2009, with an intention to deflower the daughter of the defacto complainant, the accused has trespassed into the house of the defacto complainant and ultimately deflowered the prosecutrix.
10. The prosecution has set the law in motion only on the basis of Ex.P1, the complaint, wherein it has been vividly stated to the effect that the accused has deflowered the prosecutrix. The defacto complainant has been examined as P.W.1 and her daughter-in-law has been examined as P.W.2 and the prosecutrix has been examined as P.W.3 and all of them have stated in their evidence about the factum of occurrence. Apart from their evidence
