BAIL SLIP The Appellant/Accused viz., Ravi, S/o. Munuswamy, was directed to be released on bail as per the order of this court dated 19.1.2007 and made in CRL MP No.3561 of 2006 in Crl Appeal No.339 of 2006 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 11.1.2011 CORAM THE HON'BLE MR. JUSTICE A.ARUMUGHASWAMY CRIMINAL APPEAL NO. 339 OF 2006 Ravi ... Appellant/Accused -vs- The State rep. by Inspector of Police Berigai Police Station ... Respondent/Complainant (Crime No. 15 of 1999) Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Assistant Sessions Judge, Hosur in S.C.No.123 of 2000 dated 20.12.2002. For Appellant : Mr.K.Selvarangan For Respondent: Mr. N.Kumanan Govt. Advocate (Crl.Side) J U D G M E N T The appellant stands convicted for the offences under Section 341, 323 and 376 I.P.C and sentenced to undergo simple imprisonment for one month, simple imprisonment for one year and rigorous imprisonment for 10 years respectively and to pay a fine of Rs. 10,000 in default to undergo rigorous imprisonment for six months and the said sentences were ordered to run concurrently by the judgment of the learned Assistant Sessions Judge, Hosur, in S.C.No.123 of 2000 dated 20.12.2002. Challenging the said conviction and sentence, the appellant has come forward with the present appeal. 2. The case of the prosecution is that on 17.1.1999, P.W.1 the victim lady was returning from Bangalore to Hosur and reached Hosur at 10.30 hrs in the night. After getting down from the bus at https://hcservices.ecourts.gov.in/hcservices/ Hosur Bus Stand while she was proceeding towards Nasipuram, the accused intercepted P.W.1 and stated that since she was going alone he would accompany her till her residence and thus he voluntarily accompanied her on his own. While P.W.1 was walking towards her residence, near the Mango grove the accused dragged her to the mango grove and attempted to molest her. When she resisted and raised alarm, the accused attacked her on the hip and shoulder and raped the victim P.W.1. After the incident she got up at 3 a.m. and came to her house and narrated the incident to her husband as well as her uncle. Thereafter, they all went to P.W.4 and apprised the incident. Later, P.W.4 prepared the complaint. Thereafter, on the next day, P.W.1 went to the police station along with her husband and uncle and lodged the complaint in this regard. Thereafter, she was taken to P.W.10, the Doctor attached to Hosur Government Hospital, who examined her and found certain injuries. Thereafter P.W.1 was referred to the lady Doctor P.W.7, who examined her at 3 p.m. and found certain injuries on the person of the victim girl. P.Ws 5 and 6 were examined as Mahazar witnesses. P.W.8 is Grade I Constable. Thereafter the investigation was started by P.W.11 and he filed charge sheet against the accused. 3. Before the trial court on the side of the prosecution P.Ws.1 to 11 were examined, Exs.P1 to P13 were marked and M.Os. 1 To 4 were produced. On the side of the accused, no one was examined. 4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied his complicity. After due enquiry the trial court convicted the accused and awarded sentence as stated above against which the present appeal has been filed . 5. The contention of the learned counsel appearing for the appellant is that P.W.2 is not the husband of P.W.1 and further she is a lady of easy virtue character. He further contended that there is a delay in preferring the FIR and the injuries sustained by P.W.1 will not be sufficient to hold that the commission of offence under Section 376 has been made out Hence he prayed for granting benefit of doubt to the accused. 6. The learned counsel appearing for the Public Prosecutor contended that the offence against the accused has been established. Hence the appeal has to be dismissed. 7. As already narrated on 17.1.1999 at 10.30 hrs in the night P.W.1 was proceeding towards her residence after getting down from the bus and at that time the accused volunteered himself and stated as she was going alone he would accompany her till her residence. Thereafter, while they were nearing the mango grove, the accused https://hcservices.ecourts.gov.in/hcservices/ dragged P.W.1 to the mango grove and caused injuries to P.W.1 and committed the crime of rape. As per the evidence of P.W.1, it is clear that the accused after dragging her to the mango grove with an intention to rape, beat her by wooden logs on the shoulder and hip which caused injuries and by pressurising her neck with his right hand he committed rape on P.W.1. From the cross examination of P.W.1 it is clear that the defence side have made an attempt to show that she is a lady of easy virtue character. But from the evidence it is clear that she was living with P.W.2. as his wife. Though no customary marriage was celebrated, P.W. 2 has admitted in his evidence that he and P.W.1 were living as husband and wife during the relevant period. From the evidence of P.W.1 it is also clear that after the incident, P.W.2 is not living with her and she is living alone. Of course, this aspect has been contradicted by the evidence of other witnesses. All these evidence will not show that she is a lady of easy virtue character. Further from the evidence it is clear that even though she wanted to live with P.W.2 she could not continue with her matrimonial life only because of this incident. Therefore, from this aspect one cannot come to the conclusion that P.W.1 is a easy virtue character lady . 8. The learned counsel appearing for the appellant contended that there is a delay in lodging the complaint. Therefore he prayed for benefit of doubt in favour of the accused. From the evidence it is clear that the occurrence took place only after 10.30 p.m. and further because of the injuries caused by the accused, P.W.1 became unconscious and she got consciousness only after 3 a.m. Thereafter she went to her residence and informed her husband P.W.2 and her uncle about the incident. Later, they requested P.W.4 to prepare a complaint and on the next day they went to the police station and presented the complaint written by P.W. 4 to P.W.8. From these events, I am of the view that there is no such delay in preferring the complaint. 9. The next contention raised by the learned counsel appearing for the appellant is that the injuries sustained by the victim P.W.1 would not be sufficient to indicate that she was subjected to rape. To prove the said contention the prosecution has examined the Doctors as P.W.7 and P.W.10. who are working in ESI Hospital and Hosur Government Hospital respectively. In their evidence, they would state that they examined P.W.1 and issued Ex.P.11 wound certificate for the injuries sustained by her, which runs as follows:- 1. Contusion over the lateral aspect of left eye 2" x 2" 2. Clotted Blood seen on the right ear. 3. Contusion over the occipital region 3" x 3" 4. Contusion of the right thumb 2" x 2" 5. Contusion linear on the back lumbar region 6" x 3" 6. Contusion on the left scapula 2" X 2" 7. Contusion on the left breast, nail marks on the left breast. https://hcservices.ecourts.gov.in/hcservices/ 8. Contusion on the left leg anterior aspect with abdomen. From this, it is seen that the victim sustained the above said injuries in the place of occurrence. 10. P.W.7 is the lady Doctor, who examined P.W.1 at 3 p.m. From the evidence of P.W.7, it is seen that the Doctor has noticed so many abrasions and nail marks on the chest and thighs of the victim. From the evidence as discussed above, it is seen that the accused had used force to rape the victim and that is the reason she sustained some injuries on the back portion of the head also. I am of the view that the offence under Section 376 has been made out and the conclusion arrived at by the trial court is also correct. 11. The learned counsel appearing for the appellant contended that the accused is a poor man having a family and he is the only bread winner for his family and considering these aspects the sentence awarded by the trial court has to be reduced. 12. In similar circumstances, the Supreme Court in GUDDU ALIAS SANTHOSH Vs. STATE OF MADHYA PRADESH reported in (2009) 1 SCC (Cri) 911 modified the sentence from 10 years to 5 years. Considering the above said judgment of the Apex Court, and also considering the fact that the accused is poor man having a family and he is the only bread winner for his family, I am of the considered opinion that the lesser sentence would be sufficient and thus in order to meet the ends of justice, the accused can be awarded sentence of rigorous imprisonment for 5 years instead of 10 years for the offence under Section 376. 13. In the result, while confirming the conviction imposed on the appellant under Section 376 IPC, the sentence imposed by the trial court for the said offence is reduced to five years instead of 10 years. In other respects the conviction and sentence imposed by the trial court under Sections 341 and 323 are confirmed. The sentences imposed on the appellant/accused would run concurrently. The period already undergone by accused is set off under Section 428 Cr.P.C. The trial court is directed to take steps to secure the presence of the accused to undergo the remaining period of the sentence. 14. With the above modification, the appeal stands dismissed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar Krr/ https://hcservices.ecourts.gov.in/hcservices/ To 1. The Judicial Magistrate, Panruti 2. -Do- Through The Chief Judicial Magistrate, Cuddalore (For information) 3. The Judicial Magistrate No.1, Hosur, 4. The Assistant Sessions Judge, Hosur 5. The Principal Sessions Judge, Dharmapuri 6. The Inspector of Police, Berigai Police Station. 7. The Superintendent, Central Prison, Vellore 8. The Public Prosecutor, High Court, Madras 1 cc To Mr.K.Selvarajan, Advocate, SR.3019 Crl.A.No.339 of 2006 CK (CO) RH (9.4.11) https://hcservices.ecourts.gov.in/hcservices/