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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. PONGIAPPAN, J.
S. Murugan - Appellant
Versus
The State Rep. by its Inspector of Police, Kayathar Police Station, Tuticorin - Respondent
Crl. A. (MD) No. 106 of 2016
Decided On : 24-08-2021
Indian Penal Code, 1860 – Sections 450 and 376 r/w 511 – Criminal Procedural Code, 1973 - Section 313 - Evidence Act, 1872 - Sections 113-A, 113-B, 114-A - Criminal Appeal – Punishment for Rape - House-trespass - Appellant is sole accused - He stood charged for offence punishable under Sections 450 and 376 r/w 511 of IPC - After full-fledged trial, learned Sessions Judge, came to conclusion that appellant is found guilty for offence under Sections 450 and 376 r/w 511 of IPC and accordingly, appellant was convicted - Challenging conviction and sentence, appellant is before this Court with present Criminal Appeal - Whether alleged occurrence had happened as alleged by prosecution or not – Held, it is well settled law that sole testimony of prosecutrix is sufficient to accept case of prosecution in respect to offence like rape - But in this case, as already stated that prosecutrix is no more - However, it is a case, in which after occurrence victim girl was admitted in hospital and thereafter, she was subjected to medical examination - In this regard, PW4 who is Doctor examined victim girl, has stated in her evidence that there was a injury in perineum area of victim girl - In otherwise, area between anus and vulva is called as perineum - Accordingly, said evidence coupled with evidence given by PW1, is in support of prosecution that there may a possibility to commit offence by accused at time of occurrence - However, being reason that in criminal cases prosecution is having duty to prove their case beyond reasonable doubt - Mere possibility found in favour of prosecution is not sufficient to hold that entire occurrence is a true one - Secondly, now on go through evidence given by PW1, it is made clear that at time of occurrence, accused committed an offence of rape - On other hand, learned trial Judge when at time of deciding case came to conclusion that there was a penetration on victim girl in full, but medical evidence would go to show that there was no penetration either in full or in part - Only after observing as above, trial Court has held that accused is liable to be convicted under Section 376 r/w 511 of IPC - In this aspect also, to identify real issue, evidence of victim girl is necessary - In said circumstances, with absence of evidence in respect to offence under Section 376 r/w 511 of IPC, question of convicting accused under Section 450 of IPC also goes away – Court is of opinion that prosecution has not proved case beyond reasonable doubt - But trial Court without appreciating said issue presumed that evidence given by Doctor is sufficient to accept case of prosecution as accused is liable to be convicted under Sections 450 and 376 r/w 511 of IPC - Criminal Appeal is allowed.
JUDGMENT :
This present criminal appeal is directed against the conviction and sentence dated 19.01.2016 passed in S.C.No.150 of 2014 on the file of the learned Sessions Judge, Mahalir Neethimandram (Fast Track Court), Tuticorin.
2. The appellant is the sole accused. He stood charged for the offence punishable under Sections 450 and 376 r/w 511 of IPC. After full-fledged trial, the learned Sessions Judge, Mahalir Neethimandram (Fast Track Court), Tuticorin, came to the conclusion that the appellant is found guilty for the offence under Sections 450 and 376 r/w 511 of IPC and accordingly, the appellant was convicted under Section 450 of I.P.C and sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one month rigorous imprisonment. Further he has been convicted under Section 376 r/w 511 of I.P.C and sentenced to undergo 5 years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo six months rigorous imprisonment. Challenging the conviction and sentence, the appellant is before this Court with the present Criminal Appeal.
3. The case of the prosecution in brief is as follows:-
(i) The victim Madathi is no more. Due to her death, she has not been examined as witness before the trial Court. Both PW1 and PW2 are close relatives to the victim girl. On 06.10.2013 around 7.00 p.m. while at the time the victim girl came out from her residence to attend the natural call, the appellant/accused pulled her hands, for which she had pushed of his hands and went to her house. Thereafter, by following the victim, the accused entered into the victim's house, pulled her hand, removed her dress, pressed her breast and after pouring the coconut oil on her vagina, he sexually assaulted the victim girl. After the said occurrence, on the next day morning around 06.00 am the same was reported to PW1 by the victim. Immediately, PW1 informed the said occurrence to the peoples, who are residing in the said village and ultimately, the victim along with PW1 went to the police station, wherein the police persons obtained a left hand thumb impression from the victim. In the said complaint, PW1 signed as a witness. The said complaint given by the deceased Madathi, was marked as Ex.P1.
(ii) PW7-Ponnarasu, the then Inspector of Police, Kayathar Police Station, on 07.10.2013 while at the time he was in police station, received the information from the Government Hospital, Kovilpatti, in respect to the alleged occurrence, rushed to the Hospital, examined the victim girl and recorded the statement. After recording the statement as above, around 23.00 hours, he returned to the police station and registered a case against the accused in Crime No.339 of 2013 under Sections 450 and 376 r/w 511 of I.P.C. The printed FIR is marked as Ex.P5. Immediately, after registration of the case, around 23.30 hours, he visited the scene of occurrence and prepared an observation mahazar and rough sketch under Ex.P6 and Ex.P7 respectively. He examined the witnesses and recorded their statements. In the presence of the same witnesses, he recovered 50 ml VVD coconut oil (M.O.1) under a cover of seizure mahazar, Ex.P8.
(iii) In continuation of investigation, on 08.10.2013 around 08.30 a.m in Rajaputhukudi bus stand in the presence of PW6-Mariappan and one Joseph, he arrested the accused and recorded the confession statement given by the accused. Thereafter, he made arrangements for sending the accused to the remand. He submitted an application before the Court for sending the accused to the Medical examination. In turn, PW5-Dr.Moses Paul attached with Government Hospital, Kovilpatti, examined the victim girl and issued Accident Register under Ex.P4 stating that there was no symptoms to say that the accused is impotent. Similarly in view of the requisition given by the Investigation Officer, PW4-Dr.Sudha examined the victim girl and found the following injuries:-
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