SILVESTER Vs. INSPECTOR OF POLICE KOLATHOOR CHENNAI

JUDGEMENT

(1.) THE appellant/sole accused in this case was convicted by the learned Sessions Judge, Magalir Neethimandram at Chennai, for the offence punishable under Section 376 read with Section 511 ipc and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 2 ,000 /-, in default, to undergo simple imprisonment for a period of three months. Aggrieved by the same, the present appeal has been field before this court.

(2.) THE case of the prosecution is that, on 17. 09. 2001 at 1 P. M. , PW-2/victim girl, aged about 8, was returning from school and at that time, the accused, by stating that she was called by her grandmother, took her to his house and after removing her undergarment, forcibly committed rape on her. Before trial court, the prosecution, in order to substantiate its case, examined PWs-1 to 8, marked Exs. P1 to P8 and produced MOs. 1 to 4.

(3.) LEARNED counsel for the appellant submits that the evidence of PW-1/mother of the victim to the effect that she noticed swelling on the private part and also blood oozing therefro m has not been corroborated by the Medical Officer PW-5. He points out that PW-5 did not notice any swelling on the private part or blood oozing therefro m ; and further, she has given a positive opinion that the victim was not subjected to forcible intercourse/rape. According to him, the conclusion of the trial court that the accused made an attempt to commit rape is farfetched. It is further submitted that even accepting the evidence of PWs-1 to 4, it only appears that the accused took PW-2 to his residence and made an attempt to outrage her modesty; that being so, in the absence of positive materials to come to a definite conclusion that there was an attempt to commit rape, at the most, the appellant could be convicted under section 354 IPC. Pointing out that the appellant was arrested pending investigation on 20. 07. 2001; enlarged on bail on 08. 11. 2001; after conviction by the trial court, was sent to judicial custody on 06. 02. 2003; and was in confinement until this Court enlarged him on bail on 28. 06. 2003; thus, all put together, he was in custody for 254 days, i e. , 8 " months, learned counsel pleads that the period of imprisonment already undergone by the appellant may be taken into consideration and leniency may be shown.