GANESAN Vs. STATE REP. BY DEPUTY SUPERINTENDENT OF POLICE, NAMAKKAL. (MOHANUR POLICE STATION, CR.NO.354 OF 2009)

JUDGEMENT

(1.) This appeal is filed against the judgment dated 25.09.2014 made in S.C.No.90 of 2011 on the file of the Principal Sessions Court, Namakkal. The appellant/accused is convicted and sentenced by the trial Court as tabulated hereunder: <FRM>JUDGEMENT_345_LAWS(MAD)8_2016.html</FRM> The trial Court ordered the sentences imposed on the appellant/accused to run concurrently.

(2.) The case of the prosecution leading to conviction of the appellant/accused is that P.W.1/victim/Jhansirani is a resident of Ranganathapuram, Kalladai Village, Kuzhithalai, Karur District. She is a minor girl, aged about 17 years, belonging to Arundathiar Community, which is notified as a Scheduled Caste. She is the elder daughter of P.Ws.2 and 3 (parents of P.W.1). The wife of the appellant/accused also belongs to the place of P.W.1. The accused Ganesan/appellant, son of Perumal belongs to Ambalakarar Community and he hails from Mohanur Village. The accused was working as Supervisor in a sugarcane field in Mohanur. He called P.Ws.2 and 3, the parents of P.W.1, to Mohanaur, to do work in the sugarcane field. Hence, P.Ws.1 to 3 went to Mohanur. P.W.1 was asked to look after the child of the appellant/accused. During night time, the victim used to sleep in the pial of the house belonging to the accused. The accused, taking advantage of the tender age of P.W.1/victim girl, by putting her under threat as well as by giving a false promise that he would marry her, had sexual intercourse with her on several occasions. Further, the appellant has also threatened P.W.1/de-facto complainant/victim girl that if she reveals the factum of sexual intercourse, he would kill her. After four months, P.W.1 returned to her village along with her parents. Thereafter, she went for work in a cotton mill, where, on 03.09.2009, she fainted and fell down. P.W.11 Doctor, from the mill came and tested P.W.1, and found that she was seven to eight months pregnant. P.W.1 came back to her house and informed the same to her parents that the appellant/accused, by giving false promise that he would marry her, had sexual intercourse with her. She also further stated that the appellant threatened her that he would kill her if she reveals the same to anybody. Immediately, the parents of P.W.1, namely P.Ws.2 and 3 took her to Police Station on 09.09.2009 and lodged Ex.P-1 complaint before P.W.18 Inspector of Police, who received the complaint and registered a case in Crime No.354 of 2009 for the offences under Sections 417, 376(1) Penal Code read with Sec. 3(2)(v) of the SC and ST Act. Ex.P-15 is the FIR. Thereafter, P.W.18 forwarded the copy of the FIR to the jurisdictional Magistrate and also to his higher officials for investigation through P.W.19 Head Constable. After two months from the date of complaint, P.W.1 developed labour pain and she was taken to Primary Health Centre of Kaavalkaaranpatty, where she was admitted and where she delivered a still-born male baby. Hence, P.W.12 Doctor of the said Primary Health Centre referred her for further treatment to Trichy Government Hospital along with dead child. In the meantime, the appellant/accused was arrested by P.W.21 Deputy Superintendent of Police, the investigating officer and the appellant/accused was sent to Namakkal Government Hospital on 11.09.2009 through P.W.17 Head Constable to conduct potency test on him. Meanwhile P.W.1 was admitted as in-patient and she was under treatment for five days in Trichy Government Hospital. On 27.10.2009, P.W.19 Head Constable went to Trichy Government Hospital. After getting the requisition from the jurisdictional Magistrate, he sent the leg portion of the deceased child for DNA test. P.W.20, the then Doctor/Professor of Trichy Government College Hospital, on requisition from Deputy Superintendent of Police, Namakkal Division, collected the hand-bones, leg-bones and lungs for DNA test to Regional Forensic Laboratory at Chennai. P.W.21 Deputy Superintendent of Police, Namakkal Division, continued the investigation. He went to the place of occurrence, prepared Ex.P-5 observation mahazar and drew Ex.P-18 rough sketch and examined the witnesses. After completion of investigation and after complying with all formalities, P.W.21 DSP filed charge sheet against the appellant/accused. The case was taken on file in S.C.No.90 of 2011. During the course of trial, P.Ws.1 to 21 were examined and Exs.P-1 to P-18 were marked. When the appellant/accused was questioned under Sec. 313 Crimial P.C. he denied his complicity in the crime and he neither examined any witness nor marked any document. Upon hearing the submissions of both sides and considering the oral and documentary evidence available on record, the appellant/accused was convicted and sentenced by the trial Court as tabulated above. Challenging the said conviction and sentence, the appellant/accused has filed this appeal.

(3.) Learned counsel appearing for appellant/accused submitted that though it is the case of the prosecution that the alleged occurrence was said to have taken place six months prior to 09.09.2009 being the date of Ex.P-1 complaint given by P.W.1/prosecutrix, the date of occurrence had not been specifically stated by her in the complaint. But, Ex.P-7 medical report, dated 19.09.2009 issued by P.W.10 Doctor shows that she was 37 weeks pregnant, i.e. P.W.1 was nine month pregnant. Even according to the prosecution case, P.W.1 came to the place of the appellant only six months prior to the date of complaint, whereas, as on 19.09.2009, she was nine month pregnant. When the prosecution case itself is that the appellant was having a sexual intercourse with P.W.1 prior to six months of the complaint, the fact that as on the date of complaint, P.W.1 was nine month pregnant, would clearly falsify the allegation of P.W.1 that the appellant was regularly having sexual intercourse by threatening her and was responsible for the pregnancy of P.W.1.