PERIYASAMI IN RE Vs. STATE

JUDGEMENT

(1.) This petition coming on for hearing on 24-10-94 upon perusing the petition, and the judgment of the Lower courts and the record in the case, and upon hearing the arguments of Mr. K. N. Thambi, Advocate for the petitioner, and of Mr. S. Shanmughavelayutham, Additional Public Prosecutor, on behalf of the State, and the case having stood over for consideration till this day the court made the following order. This revision is against the conviction and sentence of the learned Sessions Judge, Kanyakumari at Nagercoil in C.A. No. 43 of 1987 confirming the conviction of the Assistant Sessions Judge, Nagercoil in S.C. No. 39 of 1986 for the offence under Ss. 341 and 376 Indian Penal Code to undergo rigorous imprisonment for 3 years.

(2.) The prosecution case is that on 17-2-1985 at about 04.00 p.m., this revision petitioner forcibly took away one Chellammal to a coconut thope in Kottaram, where she was raped. To prove the charges against the revision petitioner herein, prosecution examined 13 witnesses of whom P.Ws. 6 to 8 and 11 to 13 are the official witnesses namely doctors, court clerk and police officials, to speak about the injuries and age of the victim girl and about the registration of the case and investigation. P.W. 1 is the victim and P.W. 2 is the eye-witness to the occurrence. The Courts below, relying upon the evidence of P.Ws. 1 and 2 have accepted the charge of the prosecution to find the revision petitioner guilty of the offence. P.W. 1 is about 13 years old girl and according to the doctor P.W. 6 she has not even attained puberty. P.W. 1 has stated that on 18-2-1985, she was returning from fields collecting the spilled paddy in the harvested lands and when she was, walking along Muthar tank bund from east to west this revision petitioner, who was coming from the opposite direction suddenly gagged her mouth and lifted her to the nearby coconut thope of Gopalakrishnan and raped her. She has also stated that when she shouted for help, P.W. 2 and one Muthu Nadar came there and on seeing them, the revision petitioner ran away though Muthunadar chased him for some distance but could not catch him. P.W. 2 also has stated that he was going at about 04.00 p.m. on the date of the occurrence to take bath in Muthar tank and on hearing the alarm voice in the nearby coconut thope of Gopalakrishnan he and Muthunadar went there and saw the revision petitioner raping P.W. 1 and when they attempted to catch him, he ran away. Thereafter, P.W. 1 was brought by P.W. 2 to her house and as her father P.W. 3 and step-mother were away, she was waiting for them till 1-00 a.m. in the midnight and after their arrival from Nagercoil, she complained to them about the incident and thereafter P.W. 3 took her to Kanyakumari police station to launch the complaint Ex.P-1 to. 12, the woman Sub-Inspector of Police.

(3.) The whole case rests upon the evidence of P.Ws. 1 and 2, which is supported by the medical evidence of P.Ws. 5 and 6. After the complaint in the midnight in Kanyakumari Police Station at 02.00 a.m. on 18-2-1985, P.W. 1 was sent to the Nagercoil Headquarters hospital where P.W. 5 examined her and as P.W. 1 was looking pale on account of the excessive bleeding and her pulse rate was feeble, she was admitted in the hospital and treated by P.W. 6, P.W. 6 while examining P.W. 1, has found that in the vaginal part of P.W. 1, there were blood stains and swelling and laceration in the labium and also found the retured hymen. P.W. 6 in her certificate has expressed the opinion that on account of the rape, she should have sustained injuries in the private part. The doctor also has found abrasions in the right leg of P.W. 1.