Bail Slip Murugesan was directed to be released on bail as per the order of this court dated 23.10.2009 in MP.No.1/2008 in Crl.A.730/2008 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.02.2011 CORAM THE HONOURABLE MR. JUSTICE A. ARUMUGHASWAMY Criminal Appeal No.730 of 2008 Murugesan ... Appellant/A1 -- vs -- State by Inspector of Police, All Women Police Station, Ariyalur, Ariyalur District. (Cr.No.5/2003) ... Respondent Criminal Appeal filed under Section 374 (2) of the code of Criminal Procedure, praying to set aside the judgment passed in S.C.No.66 of 2004, dated 14.2.2005 on the file of the Additional District and Sessions Court, (Fast Track Court ) Ariyalur. For Appellant : Mr.T.Muruganantham For Respondent : Mr. Kumanan,G.A.(crl.side) J U D G M E N T The accused is the appellant. The present appeal has been filed by the accused against the conviction and sentence passed in S.C.No.66 of 2004 on the file of the Additional District and Sessions Judge, (Fast Track Court) Ariyalur. In the said judgement, A1 is found guilty of the offence under Section 376 IPC and sentenced him to undergo 10 years Rigourous Imprisonment and convicted with a fine of Rs.10,000/- in default to undergo one month Simple Imprisonment. As against the conviction and sentence, the present appeal has been filed by the first accused. 2. The case of the prosecution is that PW.1 is the victim girl and she is a student of Lalgudi Co-operative Polytechnic College. She has completed her studies and she was residing in the A2 and A3's https://hcservices.ecourts.gov.in/hcservices/ house. PW.4 along with PW.1 were staying in the house of A2 and A3 as tenants. The accused No.1 was also residing in the nearby house. PW.4 lodged a complaint against A2 and A3 for not evicting them from her house. After that, they vacated the house. On 23.3.2003, PW.1 gave birth to one male baby. At this juncture, she went to the hospital, thereafter she gave a complaint before the Magistrate. The complaint was preferred on 29.3.2003. She gave birth to a child on 23.3.2003. From the evidence of PW1 the victim she would say that her date of birth is 6.4.1987 and she studied upto 10th standard and she joined in polytechnic college itself and she gave birth to a male child. To that effect, PW.3 has spoken. After giving a complaint, panchayat was conducted by PW.5 and PW.6/Panchayatdars. PW.2 is the Primary Health Centre Doctor. When PW.1 was at 8 months pregnancy, she consulted the PW.2 and thereafter she came to know that she was pregnant. Subsequently, she informed to her parents and later she gave a complaint. PW.5 is the Principal of Polytechnic College. PW.4 is the mother who spoke about the pregnancy. Pw.4 and PW. 6 are Panchayatdars. PW.7 is the Doctor who reveals the age of the victim. PW.8 is the Inspector who first enquired the accused. PW.9 is the Sub Inspector of Police, who received the complaint. 3. PW.8 Inspector spoke that on 6.3.2003, he was informed that the accused was assailing at the house of the Advocate and on the telephone information of the Advocate, he rescued him but there was no complaint on that. PW.9 received the complaint. Thereafter, the investigation was started and completed. A charge sheet was laid for the offences under Sections 361, 506(2) IPC. During the trial, since she included the accused A2 to A5, the Trial judge has ordered for reinvestigation and included the name of the other accused. Therefore, they have been included and after trial, the case has been separated. The case has been split up as A4 and A5 have been absconded. A1 alone has been convicted for the charge. Against which, the present appeal has been filed. A4 and A5 are sons of A2 and A3. The case against A4 and A5 has been split up. 4. The case of the prosecution is that she was a student and she was residing in the area where the accused were also residing. There was a wordy quarrel in between the landlord and PW.4, namely PW.1's mother. Therefore, civil proceedings are pending in the Court and further she would say that she used to leave the house at 5.30 a.m., to go to college by travelling in the train. In her evidence, she would say that A5 raped her and thereafter it was repeated by A1. The other three accused had seen the occurrence. Further in her evidence she said that before that, PW.3 gave drinks and she drank it and after consuming the drinks only she became unconscious. At the time A5 has raped her and thereafter it was followed by A1. 5. After analysing the oral and documentary evidence, the Trial Court convicted the accused and sentenced him to undergo 10 years Rigourous Imprisonment and convicted with a fine of Rs.10,000/- in default to undergo one month Simple Imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 6. The vehement contention of the accused is that there is inordinate delay in preferring the complaint and further PW.1 and PW.4 herself would say that the name of the father of the baby cannot be mentioned and therefore, considering these aspects, the appeal has to be allowed. 7. The learned Gvoernment Advocate (Crl.side) submitted that the offence against the accused has been proved. Hence, he prayed that the appeal should be dismissed. 8. The victim girl was examined as PW.1. In her evidence she would say that she has not mentioned the name of the person. Further the date of occurrence has not been mentioned and only the date of birth of the child on 23.3.2003 alone has been mentioned. On 28.3.2003, the complaint has been presented and forwarded to the police concerned. Therefore, the complaint was given only after she gave birth to the child. Even in the investigation, at the first instance, the implication of the first accused alone has been made. During the course of evidence, she included the name of Velusamy, A5. Thereafter, she included the other accused, A2 and A3 were landlords and their sons are A4 and A5. 9. PW1 during her cross examination, she would say that A1 and PW.4 had money transactions when she resided in the same street. Further she has stated in her evidence that she has received the birth certificate of her child without mentioning the father's name. Further, PW.4 in chief examination would say that she cannot assure, who is the father of the baby. 10. A1 who is aged about 62 years at the time of the occurrence. A4 and A5 are sons of A2 and A3. She was residing in their house. Further from the evidence, it is not clear when the occurrence had taken place. She herself is not very clear that who is the father of the baby and she herself voluntarily included other names also in this case. I am of the view that the first accused alone can be implicated for the offence under Section 376 IPC. Anyhow, the accused has been in jail for more than five years and further from the evidence of PW1, it is clear that she had categorically stated that A1 has committed rape. Accepting the evidence of PW.1, I am of the view that the offence against the first accused has been proved. Hence, the conviction made by the Trial Court is just and reasonable. Even though A1 is convicted for the offence under section 376 IPC, considering the circumstances, A5 is also involved in this case but he has been left out. From the evidence of PW.1 itself it is very clear that the offence is committed only by A5 and thereafter followed by A1. Therefore, I am of the view that the punishment against the first accused by the trial court is excessive, considering the age of the accused and the fact that he has already aware of PW.4, his money transaction with PW.4 also has been established in this case. Considering this aspect, I am of the view that the conviction imposed on the appellant https://hcservices.ecourts.gov.in/hcservices/ is confirmed and the sentence made against the first accused for the offence under section 376 IPC is modified as five years instead of ten years and the fine amount ordered by the trial court is confirmed. 11. With this observation, the Criminal Appeal is modified and the punishment imposed on the appellant/accused in S.C.No.66 of 2004 on the file of the Additional District and Sessions Judge, (Fast Track Court), Ariyalur is modified as five years. It is represented by the learned counsel appearing for the appellant that the accused has already been in jail for 4 ½ years. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. aes To 1. Additional District and Sessions Judge, (Fast Track Court),Ariyalur. 2.-do- Through Principal Sessions Judge, Ariyalur. 3. The District Collector, Ariyalur. 4. The Director General of Police, Chennai 5. The Superintendent Central Prison, Trichy. 6. The Inspector of Police All Women Police Station, Ariyalur, Ariyalur District. 7. The Public Prosecutor, High Court Madras. + 1 cc to Mr.T. Muruganantham, Advocate SR.11557 Crl. A. No. 730 of 2008 KU(CO) Eu/RVL 22.3.11 https://hcservices.ecourts.gov.in/hcservices/