GANESAN Vs. STATE

JUDGEMENT

(1.) THE appellant is the sole accused in S. C. No. 96 of 1997 on the file of the Additional Assistant Sessions Court, Erode, and the appeal is directed against the conviction and sentence imposed to the appellant to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 3 ,000 /-, in default to undergo three months rigorous imprisonment for the offence under Section 376 I. P. C.

(2.) THE brief facts that led to the filing of this appeal are as follows:- " (a ) P. W. 1 Vijaya is the victim girl aged about 13 years and studied upto sixth standard at the time of occurrence. P. W. 3 is the mother of P. W. 1 and P. W. 2 is brother of P. W. 3. P. W. 1 attained puberty. Parvathi is the elder sister of the accused and is residing as a tenant in the house of senior paternal uncle Chandran of P. W. 1. THE accused used to come to the house of his sister Parvathi frequently and give chocolates to P. W. 1 whenever she used to go to fetch water and to school. On 25. 11. 1996 around 7. 30 p. m. while P. W. 1 was playing before the house of her senior paternal uncle, the accused called P. W. 1 that he will give chocolates, and so, P. W. 1 went with the accused to Murthy Forest, one kilo metre away from the house of P. W. 1. THE accused pulled her down under a neem tree and lie over her and after lifting her skirt, removed her underwear and also his underwear then he put his private part into her urinal hole and pressed. P. W. 1 shouted unable to bear the pain. In search of victim girl, her mother P. W. 3 and her uncle P. W. 2 came to the scene of occurrence and found P. W. 1 making hue and cry. THEy came and beat the accused with torch light and pushed the accused and lifted P. W. 1. THE accused had run away. P. W. 1 informed her mother P. W. 3 as to what the accused had done to her. Since the father of P. W. 1 was away, they remained in the house during night and after changing her dress, P. W. 1 went with her mother P. W. 3 and uncle P. W. 2 to the police station. P. W. 1 gave complaint Ex. P-1 to P. W. 12, inspector of Police, Erode Taluk Police Station, Erode , who registered the same in Crime No. 580 of 1996 under section 376 I. P. C. THE printed FIR is Ex. P-16. (b) P. W. 12 went to the scene of occurrence, prepared observation mahazar Ex. P-2 in the presence of P. Ws. 5 and 6 and drawn rough sketch Ex. P-18 and recovered M. O. 1, blue colou r skirt of P. W. 1, M. O. 1 underwear ($ l; o )of P. W. 1 and M. O. 3 shirt of P. W. 1 under Form 95 (Ex. P-17 ). P. W. 12 sent P. W. 1 for medical examination and he recorded the statements of P. Ws. 4 to 6 and other witnesses. (c) As per the requisition Ex. P-9 made by P. W. 12, P. W. 10 Dr. Vijaya , attached to Erode Government Hospital Erode, examined the victim girl on 26. 11. 1996 at 2. 30 p. m. and the doctor issued accident register extract Ex. P-10. (d) As per the requisition of P. W. 12, P. W. 9, Radiologist attached to the Government Hospital, Erode after taking Radiology on 26. 11. 1996, issued radiological report Ex. P-7 suggesting the bone growth of the victim girl would be between 17 to 18 years at the time of occurrence and the radiology photos are M. O. 6 series. (e) On 26. 11. 1998, P. W. 12 arrested the accused near Sengodampallam bus stop and recorded his confession statement (admissible portion is Ex. P-4) and on the basis of which P. W. 12 recovered M. Os. 4, underwear ($l ;o )of the accused and M. O. 5 lungi of the accused. He sent the accused for remand after subjected to the medical examination. (f) As per the requisition Ex. P-15, P. W. 8, Dr. D. Ganesan , attached to the Government Hospital, erode, after examination of the accused on 28. 11. 1996 at 3. 30 p. m. issued accident register Ex. P-6 that the accused is potent. (g) On 1. 1. 1997, P. W. 12 recorded the statement of Sengotayampalayam Headmaster, Dr. Nirmala and Dr. Ganesan (P. W. 8) and after completing the investigation, he filed charge-sheet. "

(3.) THE learned counsel for the appellant/accused firstly submitted that the age of the prosecutrix P. W. 1 is between 18 to 20 years as per the radiological report Ex. P-7 and the radiologist P. W. 9 also confirmed the same and as such, the age of P. W. 1 is above 16 years and so there is no case for statutory rape and the xerox copy of school certificate Ex. P-5 relating to P. W. 1 is inadmissible in evidence since it is a xerox copy.