IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 31.08.2019

Coram

THE HON'BLE MR. JUSTICE G.R.SWAMINATHAN

Crl.A.No. 467 of 2015

Rajesh

... Appellant

Versus

The State Rep by

Inspector of Police,

Muthupettai Police Station,

Thiruvallur District.

... Respondent

PRAYER:

This Criminal appeal is filed against the Judgment dated

17.09.2014 in Sessions Case No.26 of 2013, on the file of the

learned Sessions Judge, Mahila Court, Tiruvarur, convicting the

appellant for the offence under Section 376 of IPC and

sentencing the appellant to undergo 7 years Rigorous

Imprisonment.

For Appellant

:Mr.A. Aswin Kumar,

Legal Aid Counsel.

For Respondent

:Mr.T. Shanmuga Rajeswaran

Government Advocate(Crl side)

***

JUDGMENT

The appellant was convicted for the offence under Section

376 of I.P.C and sentenced to undergo 7 years Rigorous

Imprisonment and to pay a fine of Rs.1,000/- by the Judgment

dated 17.09.2014 on the file of learned Sessions Judge, Mahila

Court, Tiruvarur.

2. The case of the prosecution is that on 01.10.2007 at about

8.00 p.m the appellant committed rape on the victim girl who was

mentally retarded, and that the said incident was witnessed by

the mother of the victim. P.W.1 mother of the victim Girl lodged

Ex.P.1 complaint before Muthupettai police station, on the very

next day i.e on 02.10.2007. Based on the same Ex.P.6 F.I.R was

1

https://hcservices.ecourts.gov.in/hcservices/

registered for the offence under Section 376 of I.P.C and

investigation was undertaken.

3. The victim was sent for medical examination. After completion

of all the formalities, final report was filed before the

Judicial Magistrate, Thiruthuraipoondi against the appellant for

the offence under Section 376 and 506 of I.P.C. The case was

taken on file in P.R.C.No.10 of 2013 and after committal

numbered as S.C.No.26 of 2013. Charges were framed against the

appellant. The appellant denied the charges and claimed to be

tried. The prosecution examined P.W.1 to P.W.13 and marked Exs.1

to 9 and Mos.1 to 5.

4. On the side of the defence, no witnesses were examined and no

documents were marked. The learned trial Judge after considering

the evidence on record found the appellant guilty of the offence

under Section 376 of I.P.C and sentenced him to undergo 7 years

imprisonment and to pay a fine of Rs.1,000/-. Challenging the

same this appeal came to be filed.

5. When the matter was taken up on 27.07.2019, there was no

representation on the side of the accused. Therefore, this Court

directed the Registry to appoint a Legal Aid Advocate. Today,

when the matter was taken up for hearing, the appellant is

represented by Mr.A.Ashwin Kumar, Legal Aid advocate, who

reiterated all the contentions set out in memorandum of grounds

and submitted that the Court below erred in convicting the

appellant. He pointed out that apart from the interested

testimony of P.W.1, there is no other evidence to sustain the

charge levelled against the appellant. P.W.3 who was examined on

the side of the prosecution and who is said to have witnessed

the occurrence along with P.W.1 turned hostile. Likewise, P.W.4

also turned hostile. The learned counsel also pointed out that

in the complaint, P.W-1 had described the appellant as a

neighbour. The occurrence was alleged to have taken place in his

father-in-law's house. But in the cross examination, she stated

that the occurrence had taken place in the house of the accused.

However, it is only the house of the father-in-law of the

accused which is adjacent to the house of P.W.1. Thus, there is

a discrepancy regarding the place of occurrence.

6. The core contention of the appellant is that there is no

credible or convincing evidence to substantiate the mental

condition of the victim. Though he did not concede, he submitted

that admittedly the age of the victim girl was above 18 years

and if