Madras High Court
Gunalan vs State By on 10 August, 2022
Crl.A.No.272 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :10.08.2022
CORAM:
THE HONOURABLE Dr.JUSTICE G.JAYACHANDRAN
Criminal Appeal No.272 of 2018
and
Crl.M.P.No.3061 of 2020
Gunalan .. Appellant
/versus/
State by
Inspector of Police,
Banavaram Police Station,
Vellore District.
Crime.No.80 of 2011 .. Respondent
Criminal Appeal has been filed under Section 374(2) of
Criminal Procedure Code praying to set aside the conviction and
sentence imposed on the appellant herein in S.C.No.61 of 2014 by
judgment dated 26.03.2018 passed by the learned Sessions Judge,
Magalir Neethi Mandram, Fast Track Mahila Court, Vellore, Vellore
District.
For Appellant : Mr.B.Harish
for K.M.Vijayan Associates
For Respondent : Mr.R.Kishore Kumar
Government Advocate (Crl.Side)
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Crl.A.No.272 of 2018
JUDGMENT
The appellant herein, who was found guilty of offences under
Sections 376 (1) and 417 of IPC is before this Court challenging the
Judgment of conviction and sentence imposed by the trial Court.
2. The grounds of Appeal are:-
The sole testimony of PW.1 is inadequate to convict the
appellant for the offences under Section 376 (1) and 417 of IPC, when it
is a consensual sex between the defacto complainant and the accused.
Furthermore, the accused and the defacto complainant are closely related
to each other. Only after the defacto complainant got admitted in the
hospital for testing pregnancy, the complaint has been filed, as if she was
forcibly raped by the accused. In the absence of any independent witness,
the concocted case of PW.1 ought not to have been accepted by the Court
below.
3. Per contra, the learned Government Advocate (Crl.Side) for
the State would submit that it is a open and shut case, wherein the DNA
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test conducted after the child birth indicated that the appellant is the
biological father of the child born to PW.1. The prosecution apart from
the evidence of PW.1, who is the victim girl who was minor at the time
of occurrence, also examined PW.3- Dr.K.Thara, who conducted the
DNA test. Ex.P.4 - the DNA report had proved that the minor girl was
subjected to sexual intercourse leading to pregnancy and it followed by
child birth. The victim girl had deposed that she was forcibly ravished
when she was alone at home and she was put under threat by the accused.
Therefore, she did not disclose the offence fearing threat at the hands of
the accused. Therefore, the learned Government Advocate (Crl.Side)
submitted that the conviction and sentence has to be confirmed.
4. Heard the learned counsel appearing for the appellant and
the learned Government Advocate (Crl.Side) for the State.
5. The Court below, based on the materials placed by the
prosecution, has framed charges under Sections 376(1), 417 and 506(i)
of IPC. PW.1 / the victim girl was minor at the time of the occurrence.
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Crl.A.No.272 of 2018
She has deposed that taking advantage of the close relationship, the
accused by force had intercourse with her and thereafter, under threat as
well as false promise that he will marry her, had sex with her on several
occasions. While so, on 01.04.2011, when she had giddiness and
vomiting, her mother and Aunt took her to the hospital for check up.
When they came to know that she is pregnant, then she told them about
the incident of rape. Her relatives requested the father of the accused to
arrange for their marriage to avoid ignominy, but the accused and his
mother refused. Hence she gave the complaint dated 04.04.2011.
6. At the time of examining the victim girl, 5 years after the
incident she was 21 years old and her child was 5 years old. Dr.K.Thara
was examined as PW.3, who had deposed that the DNA test conducted
from the sample collected from the accused, PW.1 and the child has
proved that the accused is the biological father of the child born to PW.1.
7. The learned counsel for the appellant submitted that the
prosecution has not proved that the victim girl was minor at the time of
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Crl.A.No.272 of 2018
occurrence and therefore, since the intercourse was consensual and the
complaint was filed only when the accused refused to marry PW.1, at the
most, the appellant can be convicted only for offence under Section 417
of IPC.
8. This Court is unable to countenance the said arguments of
the learned counsel for the appellant when PW.1 had specifically
deposed that she was ravished by the appellant against her wish and
thereafter, consoled her that he will marry her and by giving false
promise, he took advantage and repeated the crime and impregnated her.
Though the prosecution has not taken steps to examine the other
independent witnesses in this case, the evidence of PW.1 coupled with
the DNA report - Ex.P.4 is suffice to hold that the accused / appellant is
guilty of offence under Section 376. Therefore, the conviction under
Section 376 (1) and 417 of IPC is bound to be confirmed. So far as the
sentence is concerned the learned counsel for the appellant / accused
submits that the appellant has to take care of his old age mother,
therefore, some leniency may be shown.
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Crl.A.No.272 of 2018
9. The trial Court apart from imposing a fine of Rs.5,000/- for
the offence under Section 376 (1) of IPC and fine as compensation of
Rs.1,00,000/- for the offence under Section 417 of IPC also ordered. The
District Legal Services Authority to determine compensation under the
Victim Compensation Scheme and pay to PW.1. The record indicates that
the accused has not paid the fine amount. The District Legal Services
Authority ought to ascertain the compensation amount payable to the
victim as per the Victim Compensation Scheme.
10. Considering the facts, this Court finds that there is no
ground or reason to interfere with the conviction and sentence imposed
by the Court below. Hence the Appeal is dismissed. Consequently, the
connected Criminal Miscellaneous Petition is also dismissed.
(i) The conviction and sentence imposed by trial Court stands
confirmed.
(ii) The period of imprisonment already undergone by the
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Crl.A.No.272 of 2018
accused shall be set off.
(iii) The learned trial judge shall take steps to secure the
accused and commit him to prison to undergo the sentence.
10.08.2022
Index : yes/no
Internet:yes/no
Speaking order/ Non speaking order
rpl
To
1. The Sessions Judge, Magalir Neethi Mandram, Fast Track Mahila
Court, Vellore, Vellore District.
2.The Inspector of Police,
Banavaram Police Station,
Vellore District.
3.The Public Prosecutor,
High Court, Madras.
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Crl.A.No.272 of 2018
Dr.G.JAYACHANDRAN,J.
rpl
Crl.A.No.272 of 2018
10.08.2022
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Crl.A.No.272 of 2018
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