UDAYAKUMAR Vs. STATE

JUDGEMENT

(1.) This Criminal Appeal is filed against the judgment of conviction and sentence, dtd. 3/9/2009 made in SC.No.525/2002 by the learned Assistant Sessions Judge, Ponneri. The appellant stood charged and tried for the commission of the offences under Sec. 342 and 376[2][f] IPC and the Trial Court, vide impugned judgment dtd. 3/9/2009, had found the appellant guilty for the commission of the offences under Sec. 376 [2][f] and 342 IPC and convicted him and sentenced him to undergo 9 months simple imprisonment and to pay a fine of Rs.900.00 with a default sentence of one month simple imprisonment for the commission of the offence u/s.342 IPC and to undergo rigorous imprisonment for 9 years and to pay a fine of Rs.9000.00, in default, to undergo one year rigorous imprisonment for the offence under Sec. 376(2)(f) of IPC. The sentences were ordered to run concurrently and set-off was also granted u/s.428 Cr.P.C.

(2.) The brief facts of the case as per the charges framed against the appellant/accused is that on 16/1/2002 at about 1.15 p.m. the appellant/accused with an intent to commit rape, took the victim /PW.2 aged about 5 years, inside the lavatory room and bolted the room from inside and committed forcible intercourse with her, thereby the appellant/accused was charged for offences punishable under Ss. 342 and 376 IPC.

(3.) The case was taken on file in PRC No.31/2002 on the file of the learned District Munsif cum Judicial Magistrate No.2, Tiruvotriyur and subsequently, the case was made over to the Trial Court, viz.,the learned Assistant Sessions Judge, Ponneri, in SC.No.525/2002 and necessary charges were framed. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the prosecution examined 12 witnesses as PW.1 and PW.12 and out of the witnesses, PW.1. is the mother of the victim/defacto complainant. PW.2. is the victim/minor girl, whose evidence was not recorded by the Trial Court on the ground of lack of rationality. PW.3. is the fatter of the victim. PW.4. is the passerby in the street and a witness to the occurrence and he has also stood as a witness to all the mahazars.PW.5. and PW.6. are the witnesses for the arrest and confession of the appellant/accused and both the witnesses have turned hostile. PW.7. is the Doctor who examined the appellant/accused for potency test. PW.8., PW.10 and PW.12 are, respectively the police officers who have registered the FIR; conducted initial investigation and laid the final report. PW.9 is the Doctor who had examined the victim girl/PW.2 in respect of sexual assault and PW.11 is the Forensic Expert.