JOHN Vs. STATE

JUDGEMENT

(1.) THIS appeal has been preferred by the accused in s. C. No. 57 of 2005 on the file of District and Sessions Judge, Mahila Court, chennai / (In charge ) Fast Track Court No. 2.

(2.) THE case of the prosecution in a nutshell is that on 15. 5. 2004 at about 1. 00p. m. , the accused had taken the minor victim girl aged 8 years by name Nishath to the back side of Eldams Road Bus Stop and attempted to commit the offence of rape.

(3.) P. W. 1 is the mother of the victim minor child. According to her, the age of the victim child Nishath was 8 years at the time of occurrence and that she was studying III standard at the relevant point of time and that one day in the month of May in the year 2004, at about 1. 00p. m. , while she was selling the flowers in the platform near her house, another child by name Salima who was playing with the victim child P. W. 2 rushed towards her and informed that the accused is lying on P. W. 2 and immediately she rushed to the place of occurrence and saw her child in a nude posture embraced by the accused, without any lungi on his person. On seeking her approaching, the accused took to his heels and that she preferred a complaint with the police under Ex P1 and that her daughter P. W. 2 was sent to children's hospital where she was taking treatment as an in patient for three days. 5a. P. W. 2 is the victim child. According to her, on the date of occurrence, at the place of occurrence, the accused was lying on her with jatty and on seeing her mother, the accused ranaway from the place of occurrence and that she was examined by a lady doctor. 5b. P. W. 3 is the another child witness who would depose that at the time of occurrence, the accused had removed his cloths except the inner garments and had done something with P. W. 2 and on seeing P. W. 1, the accused ranaway from the place of occurrence. 5c. P. W. 4 has also accompanied with P. W. 1 after hearing the occurrence through P. W3. She has also corroborated the evidence of P. W. 1 to the effect that at the time, when she saw the accused, he was lying over P. w. 2 only with an inner garment on his person. 5d. P. W. 11 is the then Sub Inspector of Police who had registered the case under Chintadripet police Station Crime No. 1418 of 2004 under Sections 376 r/w 511 of IPC. Ex P10 is the first information report. He had also seized the inner garment of the victim girl produced by her mother p. W. 1 at the time of preferring the complaint. The Investigating Officer had proceeded to the place of occurrence on 15. 5. 2004 at about 1. 30p. m. , and prepared Ex P3 observation mahazar in the presence of P. W. 4. The Investigating officer had also drawn a rough sketch Ex P12 for the place of occurrence in the presence of the same witness. He had arrested the accused on the same day at 2. 15p. m. , and has recorded his voluntary confession statement and has also seized M. O. 3 full hand shirt,m. O. 4 lungi from the accused. 5e. P. W. 5 the doctor, who had examined the accused and issued Ex P5 certificate certifying that the accused is potent. P. W. 6 is the doctor who had examined the victim child P. W. 2 and issued Ex P6 copy of the accident register. According to the doctor, the hymen of the child was in tact and there was no external injuries on the person of the child. Ex P7 is the chemical analyst's report received from the forensic science laboratory stating that there was no semen detected in the material object sent for chemical examination. 5f. P. W. 7 is the analyst in the forensic science laboratory, Chennai. According to him, as per the letter of requisition Ex P8, he had examined torn half drawer, torn polyster gown, blood stained full hand shirt, blood stained lungi. His report is Ex P7. 5g. P. W. 8 is also a friend of P. W. 1 who would depose that she came to know about the occurrence only through the victim child. P. W. 9 has also deposed that he heard the cry of P. W. 2 at the time of occurrence. But she has not seen the accused. 5h. P. W. 10 is the father of P. W. 2 who had handed over m. O. 1 and M. O. 2 to the police after the occurrence. Exp9 is the Mahazar witness for M. O. 1 and M. O. 2 in which he has signed as a witness. P. W. 11 has examined the witnesses and recorded their statements. P. W. 12 is the successor of P. W. 11 who had examined the chemical analyst of the forensic science laboratory and recorded his statement and after completing the formalities had filed the charge sheet against the accused on 14. 8. 2004.