JUDGMENT :

This Criminal Appeal is filed against the judgment dated 23.01.2019 S.C.No.137 of 2013 passed by the Sessions Judge, (Mahila Court) Salem.

2. The respondent Police registered the case against the appellant/A-1 in Crime No.11 of 2012 for the offences under Sections 376 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998. After the investigation, the respondent Police laid a charge sheet before the learned Judicial Magistrate, [Additional Mahila Court], Salem. The learned Judicial Magistrate, Additional Mahila Court, Salem had taken the same on his file in P.R.C.No.10 of 2013. After completing the formalities, the case was committed to learned Principal Sessions Court, Salem. Since the offence is against women, the learned Principal Sessions Judge taken the case on file in S.C.No.137 of 2013 and made over to Sessions Judge Mahila Court, Salem. After completing the formalities, the Special Judge framed charges against the appellant-A-1 and other Accused-A2. Since the second accused absconded and not secured, the case has been split up and taken in S.C.No.126 of 2016 and the same is pending against the second accused. As far as appellant/A-1 is concerned, in order to prove the case of the prosecution, on the side of the prosecution, as many as 11 witnesses were examined as PW1 to P.W.11 and 21 exhibits were marked as Ex.P.1 to 21. No material objects were marked on the side of the prosecution. After completion of the prosecution side evidence, incriminating circumstances culled out from the evidence of prosecution witnesses, were put against the appellant/A-1 and he was questioned u/s.313 Cr.P.C., wherein, he denied all the incriminating circumstances as false and pleaded not guilty. On the side of defence, D.W.1 to D.W.3 were examined, but no documentary evidence was produced.

3. After completing the trial and hearing the arguments advanced on either side, the Sessions Court convicted the appellant for the offence under Sections 450 IPC and offence punishable under Section 376(1) of I.P.C. For offence under Section 450 IPC, he is convicted and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default to undergo 6 months imprisonment. For the offence punishable under Section 376(1) IPC, the appellant is sentenced to undergo 10 years rigorous imprisonment and fine of Rs.25,000/-, in default to undergo six months simple imprisonment. The fine amount of Rs.35,000/- is directed to be paid to the victim girl. Challenging the judgement of conviction and sentence, Appellant/A1 has filed the present appeal.

4. Today when the matter is taken up, both Legal Aid counsel and counsel on record appeared and argued the case. The learned counsel appearing for the appellant and the Legal Aid counsel would submit that the prosecution has not conducted fair investigation. The prosecution has not proved the case beyond all reasonable doubt. The case of the prosecution is that the victim while staying with her grand mother, the appellant trespassed into the house and committed rape. The father of the victim was not examined. Even though the second wife of father of P.W.1/victim girl stated that victim’s pregnancy was terminated, the said Selvi was not examined. The doctor who terminated the pregnancy was also not examined. Though PW6 has stated that statement has been recorded by the Police in the Home and even in the enquiry statement, the name of the appellant has not been mentioned by the victim girl and only the name of the second accused is mentioned in the pre-enquiry report. The Officer who conducted the said pre-enquiry was also not examined. Even though the occurrences is said to have taken place at the time when she was studying 5th standard at the age of 10, the complaint has been given only in the year 2012, at which time, the victim girl underwent sexual assault from the 2nd accused. Only after the complaint was registered, the earlier occurrence was reported. However