Arjunan vs State

R. Mala, J.—This Revision is directed against the Judgment passed by the learned Principal Sessions Judge, Virudhunagar District at Srivilliputtur, in C.A. No. 18 of 2007 dated 20.06.2012, confirming the conviction and sentence imposed on the Revision Petitioner by the learned Chief Judicial Magistrate, Virudhunagar District at Srivilliputtur in S.C. No. 80 of 2006, dated 19.1.2007.

The case of the prosecution, in a nutshell, is as follows:

(i) PW1-Govindaraj is the brother of PW3-Kaliammal PW4-Kaliammal and PW5-Perumal are the parents of PW3. On 4.11.2004, PW1, PW4 & PW5 returned to home at 06.00 p.m., after completing their work. At that time, PW3 was crying When they questioned her. she replied that yesterday when she went to grazing sheep, the Accused misbehaved with her and also threatened her not to convey the same to others. On 4.11 2004 at 12 noon, the Accused committed tape on her. On coming to know about the same, PW1 along with PW3 & PW4 went to the Police Station and lodged a Complaint Ex P1 PW 12-Mahindra Pandian, Sub-Inspector of Police, on receipt of Complaint Ex P1, registered an FIR.-Ex. P8 in Crime No. 815 of 2004 for the offence under Section 376. IPC Then. PW16-Maran, the Inspector of Police took up the case for further investigation and a tier completing the legal formalities, viz., preparation of Mahazar. Rough Sketch, examination of Witnesses, more particularly, the Doctors, who examined the victim PW3, etc, he laid the Final Report against the Accused for the o(fences punishable under Sections 354, 506(ii) & 376(2)(f), I.P.C.

(ii) Before the Trial Court, on behalf of the prosecution, PWs.1 to 16 were examined and Exs P1 to P22 were marked along with MOs.1 & 2. On completion of the examination of the Witnesses on the side of the prosecution, the Accused was questioned under Section 313, Cr.P.C, as in the incriminating circumstances found in the evidence of the Prosecution Witnesses and he denied the same as false. On behalf of the defence, no Witness was examined and no document was marked.

(iii) On consideration of evidence available on record, the learned Chief Judicial Magistrate, Virudhunagar District at Srivilliputtur found the Accused guilty under Sections 354, 506(ii) & 376(2)(f), IPC and sentenced him to undergo 2 years'' RI for the offence under Section 354, I.P.C., sentenced him to undergo one year's RI for the offence under Section 506(ii), I.P.C. and sentenced him to undergo 7 years'' RI, to impose a fine of Rs. 500/-, in default, to undergo 3 months'' RI for the offence under Section 376(2)(f), I.P.C. and the sentences are ordered to run concurrently Aggrieved by the Judgment of the Trial Court, an Appeal has been preferred by the accused in Crl.A. No 18 of 2007, before the learned Principal Sessions Judge, Virudhunagar District at Srivilliputtur and the same was dismissed, confirming the Judgment of the Trial Court.

Questioning the conviction and sentence, the Petitioner is before this Court with the present Revision.

Assailing the Judgment impugned herein, relying upon Section 29(1), Cr P.C., the learned Counsel for the Petitioner would submit that the Court, which passed the conviction and sentence, has no jurisdiction to pass a sentence of imprisonment for 10 years, because the minimum conviction for the offence under Section 376(2)(f), I.P.C., is not less than 10 years. However, the learned Chief Judicial Magistrate, Virudhunagar District at Srivilliputtur, who is having the power only to impose 7 years'' sentence, has imposed the sentence of imprisonment for 7 years. As per Section 29(1), Cr.P.C., this case ought to have been tried by either the Sessions Judge or the Assistant Sessions Judge and not by the Chief Judicial Magistrate. On that ground, the learned Counsel prayed for setting aside the conviction and sentence imposed on the Petitioner and wanted de novo trial.

Resisting the same, the learned Government Advocate (Criminal side) would submit that at the time of occurrence, the age of the victim girl is 11 years. PW14-Dr. Vijayakumar, who assessed the age of the victim, in his evidence, has stated that she is aged above 10 and below 12. To prove the same, the Certificate regarding the age of the victim was marked as Ex P12 and X-rays were marked as Ex P13. Therefore, on the date of occurrence, site is below 12. Stating so, she leaves the matter for discretion of the Court.

Before going into the merits of the case, it is appropriate to incorporate Section 376(2)(f), I.P.C., which reads thus:

"Whoever commits rape on a woman when she is under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine."

It is also useful to refer to Section 29(1), Cr.P.C., which reads thus:

"29. Sentences which Magistrates may pass- (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a Sentence of Death or of imprisonment for life or of imprisonment for a term exceeding seven years "

A bare reading of the above said provisions would make the position very clear that the Trial Court and the First Appellate Court committed an error in trying the matter. Therefore, on that sole ground, I am of the view that the trial by the learned Chief Judicial Magistrate is illegal and irregular and it cannot be rectified under Section 461, Cr.P.C., and therefore, it is a fit case for ordering denovo trial before the learned Assistant Sessions Judge.

In the result, the Revision is allowed setting aside the conviction and sentence imposed by the Trial Court and confirmed by the First Appellate Court and the matter is remitted to the learned District and Sessions Judge. Virudhunagar District at Sriivilliputtur to make over S.C No.80 of 2006 to the Court, which is having the jurisdiction to try the case and to dispose of the same within a short span of tune. Consequently, the connected Miscellaneous Petitions are closed.