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Murugan vs The State Represented By on 6 June, 2019

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 06.06.2019

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl.R.C.[MD]No.702 of 2009
Murugan : Petitioner

Vs.
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
Government Advocate

http://www.judis.nic.in
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ORDER

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

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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

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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

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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

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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

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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

accordingly.

06.06.2019
Index : Yes/No
Internet : Yes/No
Tsg

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G.R.SWAMINATHAN, J.

Tsg

To

1.The Inspector of Police,
Thogamalai Police Station,
Karur District.

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

06.06.2019

http://www.judis.nic.in

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