IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :15.07.2009 CORAM: THE HONOURABLE MR.JUSTICE R.REGUPATHI CRL.A.No.1683 of 2003 Mohamed Ali ..Appellant Vs State by the Inspector of Police, Vellore Taluk Police Station, Vellore, Vellore District, in Cr.No.210/95 .. Respondents PRAYER:Appeal filed under Section 374 of Cr.P.C. against the Judgment and conviction passed by the learned Additional District and Sessions Judge (Fast Track Court) Vellore in S.C.No.268 of 2000 dated 29.10.2003 convicting the appellant under Section 376 (2)(f) read with 511 I.P.C. to undergo 3 years R.I. And to pay a fine of Rs.5,000/- in default to undergo R.I. for six months. For Appellant: Mrs.P.V.Rajeswari for Mr.K.Jeganathan For Respondents: Mr.J.C.Durairaj Government Advocate J U D G M E N T The appellant herein is the accused. The appellant/acused was convicted under Section 376(2)(f) r/w 511 I.P.C. and was sentenced to undergo three years R.I. and to pay a fine of Rs.5,000/- in default to undergo six months R.I. Out of the fine amount, Rs.3,000/- was ordered to be paid to the victim as compensation. Aggrieved against the conviction and sentence, the present appeal has been filed by the accused. 2. The learned counsel for the petitioner submits that on perusal of the evidence on record, the offence is not substantiated and an erroneous conclusion has been reached by the trial Court by convicting the appellant. The occurrence alleged to have been taken place on 11.03.1995 and the complaint was given on 15.03.1995. In the meantime, on 13.03.1995, P.W.1 the father of the victim and the accused indulged in quarrel which resulting in the complaint in the same police station and for which, the https://hcservices.ecourts.gov.in/hcservices/ accused was imposed with fine. At the time of giving complaint on 13.03.1995, no such allegation of attempt to rape was even given to the respondent police. The victim was aged about 4 to 5 at the time of alleged occurrence. P.Ws.1 and 2, the father and mother have given evidence on the information alleged to have been divulged and narrated by the victim girl. The victim girl was innocent and immature The learned trial Judge convicted the accused on the basis of the evidence of the parents, who were not eyewitnesses. The evidence of the victim girl is not corroborated with the medical evidence of P.W.8. It is further submitted that the findings given by the trial Judge is unreasonable and liable to be set aside. 3. Per contra, the learned Government Advocate (Criminal side) submits that the victim girl is aged about 4 to 5. The evidence of the victim girl was corroborated by the medical evidence. The other circumstances of the case has been spoken to by the parents of the victim. Since the accused has made an attempt to commit rape of the tender girl about 5, the conclusion reached by the learned trial Judge is reasonable. 4. The accused in his 313 Cr.P.C. statement denied the commission of the offence. The evidence of the victim girl was recorded after seven years. She claimed in her evidence that the accused has rubbed her private parts with his private parts and she informed the same to her parents. P.W.8 the Medical Officer stated that there was an aberration of 1 cm on both sides of private parts of the victim, further, opined that those injuries are minor in nature and could be caused due to scratch with fingers. The learned trial Judge has not taken into careful consideration of the evidence of the P.W.8 Medical Officer and Ex.P2 the Wound Certificate issued by P.W.8. It has been stated that there was abrasion on both sides of labia majona about 1 cm length. On perusal of the entire materials on record, I am of the considered opinion that the offence committed by the appellant cannot constitute an offence punishable under Section 376 (2)(f) r/w 511 I.P.C. and it may constitute only an offence under Section 354 I.P.C. viz., outraging the modesty. Hence, I am of the considered opinion that the act of the accused is an offence punishable under Section 354 I.P.C. 5. The learned counsel for the accused submitted that the occurrence took place during the year 1995 and the victim girl after attaining majority, married and settled in life. It was represented that the appellant was in custody for about 28 days and paid the fine amount of Rs.5,000/- and on overall assessment of the facts and circumstances of the case, I am of the considered opinion that the accused can be convicted under Section 354 I.P.C. and sentenced to the period already undergone along with fine amount of Rs.5,000/-. 6. Therefore, the conviction and sentence passed by the https://hcservices.ecourts.gov.in/hcservices/ trial Court is set aside and instead the accused is convicted under section 354 I.P.C. and sentenced to undergo the period of imprisonment already undergone with the fine Rs.5,000/-. With the above modification, the criminal appeal is partly allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri To 1.The Additional District and Sessions Judge (Fast Track Court), Vellore. 2.The Public Prosecutor, High Court,Madras. +1cc to Mr.K.Jeganathan, Advocate Sr 31523 MBS(CO) km/6.8. CRL.A.NO.1683 of 2003 https://hcservices.ecourts.gov.in/hcservices/