BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.R.C.[MD]No.702 of 2009
Murugan : Petitioner
The State represented by
Inspector of Police,
Thogamalai Police Station,
Karur District. : Respondent
(Crime No.163 of 2005)
PRAYER: Criminal Revision Case is filed under Section 397 and Section401 of
Criminal Procedure Code, to set aside the conviction and sentence
imposed on the petitioner by the Hon’ble District and Sessions Judge,
Karur, in Crl.A.No.16 of 2008, dated 16.04.2009, confirming the
judgement dated 28.03.2008, passed in S.C.No.39 of 2007, on the file of
the Hon’ble Assistant Sessions Judge, Kulithalai, thereby, convicting the
petitioner to undergo the sentence of seven years Rigorous Imprisonment
and fine of Rs.500/- I/D three months for offence under Section 376 and to
undergo six months Rigorous Imprisonment each for offence under
Sections 323 and Section379 r/w Section 34 of I.P.C.
For Petitioner : Mr.S.Deenadhayalan
For Respondent : Mr.A.Robinson
Heard the learned counsel on either side.
2.The revision petitioner was one of the accused in Crime No.163
of 2005, registered on the file of the Inspector of Police, Thogamalai
Police Station, Karur District, for the offences under Sections 342, Section323,
Section376 and Section506(ii) I.P.C altered to Sections 366, Section376, Section326 and Section379 r/w
Section 34 of I.P.C. The investigation was undertaken and final report
was filed and the case was taken on file as S.C.No.39 of 2007, on the file
of the learned Assistant Sessions Judge, Kulithalai. Since the other
accused was a juvenile, the case against him was split up. The revision
petitioner alone faced trial for the charges under Sections 376, Section323 and
Section379 r/w 34 of SectionI.P.C. The revision petitioner denied the charges in toto and
claimed to be tried.
3.On the side of the prosecution, as many as twenty witnesses
were marked. Ex.P.1 to Ex.P.17 were marked. M.O.1 to M.O.6 were also
marked. On the side of the accused, no evidence was adduced.
4.The learned trial Judge by judgment dated 28.03.2008 found
the accused guilty of the offences under Sections 323, Section376 and Section379 r/w 34
of SectionI.P.C. He was sentenced to undergo seven years rigorous
imprisonment for the offence under Section 376 I.P.C. and also to pay a
fine of Rs.500/- in default to undergo three years simple imprisonment,
six months rigorous imprisonment for the offence under Section 323 I.P.C
and six months rigorous imprisonment for the offence under Section 379
r/w 34 of SectionI.P.C. In respect of other charges, he was acquitted.
Questioning the same, the revision petitioner filed Crl.A.No.16 of 2008,
before the learned District and Sessions Judge, Karur. The Criminal
Appeal was however dismissed by the judgment dated 16.04.2019.
Challenging the same, this Criminal Revision Petition has been filed.
5.The learned Government Advocate appearing for the
respondent submitted that the judgments passed by the Courts below
deserve to be sustained. He pointed out that the victim had been
examined as P.W.1. in support of the charges. Considering the facts and
circumstances of the case, her testimony does not require any
corroboration. His further contention is that the learned trial Judge has
carefully gone through the entire evidence on record and this is clear from
the fact that the revision petitioner was acquitted for the offences under
Sections 324 and Section366 of I.P.C. He further submitted that since this Court
is exercising only the revisional jurisdiction, no interference is required as
the judgments of the Courts below cannot be said to be tainted by any
irregularity or perversity.
6.The submissions of the learned Government Advocate
appearing for the prosecution can be accepted only in part.
7.As rightly pointed out by the learned counsel appearing for the
revision petitioner, the charge of the rape is not at all established. He
drew my attention to the evidence of P.W.18-Doctor, who examined
P.W.1. The said witness had deposed that when the victim was medically
examined on 12.06.2005 at about 05.30 P.M., she had only stated that
two persons attempted to rape her. No seminal discharge was found on
the private parts of the victim.
8.Even a reading of the testimony of P.W.1 would indicate that
she was at her house on the occurrence day. Admittedly, P.W.1 was at
her residence at 07.30 p.m. on 11.06.2005, when accused No.1 /
Thangaraj had asked P.W.1 to come out. During the relevant time, the
parents of P.W.1 were also present in the house. It is thus obvious that
P.W.1 had voluntarily accompanied the accused. That is why, the learned
Judicial Magistrate rightly came to the conclusion that the charge under
Section 366 I.P.C was not made out. It is true that in all cases, the Court
need not look for medical corroboration for the charge of rape. But then,
in the facts and circumstances of the case, medical evidence viz.,
testimony of P.W.18 clearly falsifies the charge of rape. Therefore, I come
to the conclusion that the charge of rape is not at all made out against the
revision petitioner herein.
9.The revision petitioner’s counsel further contended that the
revision petitioner’s name has not been mentioned in the First Information
Report. But then, P.W.1 had clearly mentioned that she was subjected to
violence at the hands of one Thangaraj and another unknown person.
There is not much weight in the contention that the test identification
parade was not conducted. If it is not conducted, its fault is only on the
part of the Police. Even if the test identification parade has been
conducted and the accused had been identified the same would not
constitute substantive evidence and only identification in the Court would
constitute substantive evidence. The victim had clearly identified the
revision petitioner in the Court as the person who had committed the
offence alleged. Therefore, I am of the view that there is no reason for the
victim to falsely implicate the revision petitioner.
10.Of course, the revision petitioner’s counsel would claim that the
victim was having intimacy with one person and in order to save him, the
petitioner has been roped in. I do not find the said explanation to be
credible. The victim did not have any motive against the revision
petitioner. Therefore, I am of the view that her identification of the revision
petitioner in the Court during the trial proceedings is more than sufficient.
The victim had categorically stated that she was subjected to acts of
physical violence after the accused had sexual relationship with her. This
is more than corroborated by medical evidence. P.W.9-Dr.Selvaraj, had
noted that as many as five injuries were present on the body of the victim
and he issued wound certificate-Ex.P.4. He had also mentioned that the
third injury on the victim is grievous injury. Therefore, even while, I set
aside the judgments of the Courts below insofar as the finding that the
revision petitioner is guilty of the offence under Section 376 I.P.C is
concerned, I sustain the judgments of the Courts below in respect of the
offence under Sections 323 and 379 of I.P.C.
11.The Courts below have sentenced the revision petitioner to six
months rigorous imprisonment under Sections 323 and Section379 r/w 34 of
SectionI.P.C. The revision petitioner had already undergone sentence for more
than 1 ½ years. Therefore, considering the facts and circumstances of
the case, the fine amount imposed on the revision petitioner is enhanced
from Rs.500/- to Rs.25,500/- (Rupees Twenty Five Thousand only). The
petitioner’s counsel on instructions states that the revision petitioner would
deposit the compensation amount to the credit of S.C.No.39 of 2007,
before the learned Assistant Sessions Judge, Kulithalai, within a period of
two months from the date of receipt of a copy of this order. Out of the fine
amount recovered from the revision petitioner, a sum of Rs.25,000/- shall
be paid to the victim as compensation, within a period of two months from
the date of receipt of a copy of this order. If the revision petitioner fails to
remit the fine amount of Rs.25,000/-, he will have to undergo simple
imprisonment for a further period of one year. The judgments impugned
in the Criminal Revision Petition are modified accordingly.
12.The Criminal Revision Petition stands partly allowed
Index : Yes/No
Internet : Yes/No
1.The Inspector of Police,
Thogamalai Police Station,
2.The District and Sessions Judge, Karur.
3.The Assistant Sessions Judge, Kulithalai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
Crl.R.C.[MD]No.702 of 2009