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Pandiyan vs State By on 14 February, 2020

Crl.A.No.881 of 2012

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.02.2020

CORAM :

THE HONOURABLE MR. JUSTICE P.N. PRAKASH

Crl.A.No.881 of 2012
and
M.P.No.1 of 2013

Pandiyan … Appellant

Vs.

State by :
The Inspector of Police,
All Women Police Station,
Perambalur District. … Respondent

Criminal Appeal filed under Section 374(2) Cr.P.C., praying to set
aside the judgment of conviction and sentence, dated 25.08.2012, passed by
the Sessions Judge, Mahila Court, Perambalur, in S.C.No.174 of 2010.

For Appellant : Mr.T.Padmanabhan

For Respondent : Mrs. Kritika Kamal. P.
Government Advocate (Crl. Side)

JUDGMENT

This Criminal Appeal has been filed to set aside the judgment of

conviction and sentence, dated 25.08.2012, passed by the Sessions Judge,

Mahila Court, Perambalur, in S.C.No.174 of 2010.

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Crl.A.No.881 of 2012

2.1.The victim girl “X” is a dalit and she was 16 years old when she

was allegedly ravished by the appellant. “X” had lost her parents and she,

along with her two siblings Sukanya and Sudha, were brought up by their uncle

Velmurugan (P.W.1). They hail from Velluvadi Village in Perambalur District.

On account of poverty, “X” did not study and was working as a daily wager in a

local cottage industry that manufactured pappads.

2.2.On 04.08.2008, “X” went for work and returned home in the

evening after sunset. She went for taking bath in the thatched bathroom

behind her house. The appellant, who was also from the same village, was

watching her going for bath. While she was undressing, he entered the

bathroom and held her tight saying that he loves her. When she resisted, he

stuffed her mouth with a cloth, carried her to the house of one Suresh, which

was under construction, and raped her. Her protest and shouts for help were

heard by their neighbour Manivel (P.W.4), who rushed to the place and found

the appellant lying on “X”. On seeing Manivel (P.W.4), the appellant quickly

got up, pushed him, and fled. “X” was in tears.

2.3.Manivel (P.W.4) escorted “X” to her house and apprised

Velmurugan (P.W.1) of what had happened. Velmurugan (P.W.1) and other

villagers went to the house of the appellant and complained to his (appellant’s)

parents Lakshmanan (A2) and Deivanai (A3). The parents of the appellant

assured Velmurugan (P.W.1) that they will accept “X” as their daughter-in-law

and requested him not to make an issue of it. In view of the assurance given

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Crl.A.No.881 of 2012

by them, Velmurugan (P.W.1) waited for the day to dawn.

2.4.On the next day, Velmurugan (P.W.1) went with some villagers

to the house of the appellant, but no one was there. The appellant and his

parents became scarce. Three days later, they surfaced and took a belligerent

stand that they will not agree for the marriage.

2.5.Therefore, Velmurugan (P.W.1) lodged a written complaint

(Ex.P1), based on which, Vasuki (P.W.10), Sub-Inspector of Police, registered a

case in Crime No.23 of 2008 on 13.08.2008 at 13.00 hours for the offences

under Sections 376 and 506(i) IPC, against Pandiyan (appellant) and his

parents Lakshmanan (A2) and Deivanai (A3) and prepared the printed F.I.R.

(Ex.P4), which reached the jurisdictional Magistrate on the same day at 04.00

p.m.

3.Investigation of the case was taken over by Joseph Seril (P.W.11),

Inspector of Police, who went to the place of occurrence and prepared the

Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P5) in the presence of

witnesses Manivannan (P.W.3) and Shanthi (not-examined).

4.Dr.Priya Vasanthakumar (P.W.5) examined “X” on 15.08.2008 at

10.55 a.m. and issued the report of medical examination (Ex.P3). “X” was

subjected to age determination by Dr.S.Thulasiraman, B.D.S., and the medical

examination report (Ex.P3) reads as follows :

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Crl.A.No.881 of 2012

“8.Opinion :

1.I am of the opinion that the approximate age of the victim is
15 to 16 years.

2.She is not a virgin as her hymen is not intact but patulous,
admits 2 fingers easily and

3.She is not pregnant as her last menstrual period was only 3
days ago.”

5.The appellant surrendered before the Court on 27.07.2009 and

was taken into custody. He was medically examined by Dr.Aruna (P.W.13) on

28.07.2009 at 03.30 p.m. and the copy of Accident Register (Ex.P6) was

issued. Dr.S.Arulselvan (P.W.14) conducted potency test on the appellant on

28.07.2009 and issued the potency certificate (Ex.P7).

6.Investigation of the case was continued by Sivasubramanian

(P.W.12), Inspector of Police, who examined witnesses, collected various

reports, completed the investigation, and filed a final report in P.R.C.No.21 of

2009 before the Court of Judicial Magistrate, Perambalur, for the offences

under Sections 376 and 506(i) IPC against Pandiyan (appellant/A1),

Lakshmanan (A2) and Deivanai (A3).

7.On appearance of the accused, the provisions of Section 207

Cr.P.C. were complied with and the case was committed to the Court of Session

in S.C.No.174 of 2010 and was made over to the Mahila Court, Perambalur, for

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Crl.A.No.881 of 2012

trial.

8.The trial Court framed a charge for the offence under Section 376

IPC against the appellant (A1) and a charge for the offence under Section

506(i) IPC against Lakshmanan (A2) and Deivanai (A3), the parents of the

appellant. When questioned, the accused pleaded ‘not guilty’.

9.To prove the case, the prosecution examined 15 witnesses and

marked Exs.P1 to P7.

10.When the accused were questioned under Section 313 Cr.P.C. on

the incriminating circumstances appearing against them, they denied the same.

No witness was examined nor any document marked from the side of the

accused.

11.After considering the evidence on record and hearing either side,

the trial Court, by judgment and order dated 25.08.2012, in S.C.No.174 of

2010, acquitted Lakshmanan (A2) and Deivanai (A3) of the charge framed

against them, but convicted the appellant (A1) of the offence under Section

376 IPC and sentenced him to rigorous imprisonment for seven years and to

pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for two

years.

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Crl.A.No.881 of 2012

12.Challenging the conviction and sentence, the appellant (A1) is

before this Court.

13.When the matter was taken up for hearing, learned counsel for

the appellant submitted that the appellant had already undergone the sentence

and had been released from custody. Learned Government Advocate (Crl.

Side) confirmed the same by producing a report dated 13.02.2020 from the

Central Prison, Trichy, to the effect that the appellant had undergone the

sentence from 25.08.2012 to 21.03.2018 and was given 518 days remission.

In the opinion of this Court, this cannot be a valid reason to close the appeal.

14.The entire case of the prosecution rests on the evidence of “X”

and Manivel (P.W.4).

15.“X” (P.W.2), in her evidence, has stated as under :

“I am residing in Velluvadi Village and working as a

pappad maker; I know the accused; Velmurugan (P.W.1) is my

uncle; on 04.08.2008 around 07.00 p.m., I finished my work and

came home; I went behind my house for taking bath; after

having my bath, I changed my clothes; the appellant (A1) came

from behind and stuffed a cloth into my mouth and carried me to

the house of Suresh nearby and ravished me; I shouted for help;

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Crl.A.No.881 of 2012

hearing that, my uncle Manivel (P.W.4) came; the appellant (A1)

pushed Manivel (P.W.4) and ran away; I narrated everything to

Manivel (P.W.4) and wept; Manivel (P.W.4) took me to my uncle

Velmurugan (P.W.1); I told my uncle of what had happened; my

uncle took me to the house of the appellant; there, A2 and A3

assured that they will arrange for my marriage with the appellant

(A1); three days later, when a village panchayat was convened,

the accused started threatening us; therefore, we went to the

police and lodged a complaint.”

She was examined-in-chief on 07.06.2011 and was not cross-examined on the

same day. She was recalled and was cross-examined only on 27.07.2011. In

the cross-examination, she has stated that as under :

“I have not gone to school; I do not know my date of birth; I do

not know whether my date of birth was registered; at the time of

the incident, I was 16 years old; I am married since a year; the

complaint (Ex.P1) was written by my uncle Velmurugan (P.W.1)

based on what I told him; I was working as house maid in Kerala

two years ago; I have not spoken to the appellant (A1) earlier

and he has not come to my house before; the house of Suresh

was being constructed then; had the appellant not stuffed cloth

into my mouth, I would have shouted for help then itself; I did

not see the appellant (A1), because he was coming from behind.”

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Crl.A.No.881 of 2012

The cross-examination goes on and goes forth and the defence was not able to

make any serious dent in her testimony. Ultimately, it was suggested to “X”

(P.W.2) that she was a person of loose morals, which suggestion, she denied.

16.The evidence of Manivel (P.W.4) substantially corroborates the

evidence of “X” (P.W.2). Manivel (P.W.4) has stated that he had retired as a

Village Administrative Officer and he knows the appellant and the victim’s

family; around 07.00 p.m. on 04.08.2008, from the house next to the house of

“X” (P.W.2), he heard sounds and so, he went there and found the appellant

(A1) ravishing “X”; when he tried to catch the appellant (A1), he (A1) pushed

him (P.W.4) and ran away; “X” was weeping and he took her to her uncle

(P.W.1) and told him everything; they searched for the appellant (A1) and

could not find and so, they went to his (appellant’s) house and told his parents;

his parents stated that they agree for the marriage, but later, they became

scarce and so, the police complaint (Ex.P1) was given.

17.Velmurugan (P.W.1) has stated that, while he was at home on

04.08.2008, Manivel (P.W.4) brought his niece “X”, who was weeping, and

both of them told him as to how the appellant had ravished “X”.

18.Learned counsel for the appellant contended that there is an

enormous delay in the registration of F.I.R., inasmuch as the incident is said to

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Crl.A.No.881 of 2012

have taken place on 04.08.2008, but the complaint (Ex.P1) was given only on

13.08.2008. It is true that there is a delay in giving the complaint (Ex.P1) to

the police, but, that by itself, cannot be a reason to hold against the

prosecution in the facts and circumstances obtaining in this case. The victim

girl “X” was an orphan and she was a dalit. The family of the appellant was

very powerful in that area, as could be seen from the evidence of the

witnesses. Immediately after the incident, Velmurugan (P.W.1) and Manivel

(P.W.4) had gone to the house of the appellant and had complained to his

parents. At that time, the parents of the appellant (A2 and A3) cleverly

defused the situation by saying that they will arrange for the marriage and

thereafter, they all absconded and were not available in the village for the next

three days. After they were traced, a panchayat was held, in which, they went

against their assurance given and became belligerent. In such view of the

matter, the delay in lodging the complaint (Ex.P1) cannot lead to the inference

that the case has been foisted against the appellant.

19.The medical evidence clearly shows that “X” was 15-16 years old

at the time of the incident. Even if she had been more than 16 years, the fact

remains that she was forcibly ravished. It is not the case of the appellant that

he had consensual sex with “X”. On the contrary, the appellant had attempted

to malign the character of “X” by suggesting to her that she was having affairs

with various persons in the village, which suggestion, she has denied. It is the

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Crl.A.No.881 of 2012

further case of the appellant that “X” wanted to marry him, because, he was

the only son of his parents and that is why, she had tailored the story of rape.

Pertinent to state here that, “X” got married after the incident to one

Subramanaian and she came and gave evidence in the Court and subjected

herself to grilling cross-examination by the accused.

In fine, this Criminal Appeal is devoid of merits and hence, stands

dismissed. The judgment of the trial Court is confirmed. Consequently,

connected miscellaneous petition is closed.

14.02.2020
mkn

To

1.The Sessions Judge,
Mahila Court,
Perambalur.

2.The Inspector of Police,
All Women Police Station,
Perambalur District.

3.The Public Prosecutor,
High Court, Madras.

4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, forthwith, to the
High Court, Madras. | trial Court

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Crl.A.No.881 of 2012

P.N.PRAKASH, J.

mkn

Crl.A.No.881 of 2012

14.02.2020

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