Back
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
K. MURALI SHANKAR, J.
Suresh @ Sureshkumar – Appellant
Versus
State Rep. by the Inspector of Police, Ponmalai All Women Police Station – Respondent
Crl. Appeal (MD) No. 195 of 2016
Decided On : 03-09-2021
Indian Penal Code, 1860 - Section 366(A) - Protection of Children from Sexual offences, Act 2012 - Section 5, (1), 6 and 29 – Criminal Procedure Code, 1973 - Section 207, 164, 313(1) (b) - Indian Evidence Act, 1872 - Section 35, 79 and 68(1) - Juvenile Justice (Care and Protection of Children) Rules, 2007 - Rule 12 - Kidnapped - Rape - Sexual Assault – Appeal Against Conviction - Whether victim girl was a child as contemplated under POCSO Act on date of occurrence or was above 18 years - Whether PW-2 was aged 19 years at that time - Whether PW-2 was having original mark sheet at time of giving evidence before trial Court - Whether Investigating Officer or family members, on which date it was taken for attestation, why original was not produced before Court and many other circumstances like above are unexplained - Whether prosecution has proved offence under Section 5 of POCSO Act – Held, PW-14 Medical Officer, who had examined PW-2 has given her opinion that victim is not a virgin as her vagina admits two fingers easily - PW-15 Medical Officer who had examined accused has given his opinion that there is nothing to suggest that accused is impotent - As rightly contended by defence, since there is absolutely no evidence to show that there was a sexual assault on PW-2, above Medical evidence does not advance case of prosecution any further - Court has no hesitation to hold that prosecution has miserably failed to prove guilt of accused beyond reasonable doubt and consequently, judgment of conviction and sentence passed by trial Court is liable to be set aside - Appeal allowed.
JUDGMENT :
K. MURALI SHANKAR, J.
1. The Criminal Appeal is directed against the judgment of conviction passed in Spl. S.C. No. 18 of 2015, dated 06.04.2016 on the file of the learned Sessions Judge, Mahilar Court, Thiruchirappalli.
2. The Inspector of Police, All Women Police Station, Ponmalai, Trichy City, has laid the final report against the accused alleging that the victim and two other girls, who were the inmates of Annai Ashram, had left the Ashram on 06.05.2015 at 22.30 hours without informing anybody, that after visiting some places, they had reached the Villupuram Bus Stand on 10.05.2015 at 04.30 hours, that the accused after receiving phone call from the victim, came to Villupuram Bus Stand at 11.00 p.m. on 10.05.2015 and kidnapped her with intention to rape her, that the accused had taken the victim to Pasuvappatti Village of Chennimalai, Erode District and rented a house and stayed there till 29.05.2015, that the accused had sexual intercourse with the victim girl many times during the said period and that thereby, the accused is said to have committed the offences punishable under Section 366(A) IPC and under Section 5 (1) r/w 6 of Protection of Children from Sexual offences, Act 2012.
3. After receipt of the final report, the case was taken on file in Spl. S.C. No. 18 of 2015 on the file of the Mahila Court, Thiruchirappalli. After appearance of the accused, copies of records were furnished to him under Section 207 Cr.P.C. on free of cost. The learned Sessions Judge, on perusal of records and on hearing both the sides, being satisfied that there existed a prima facie case against the accused, framed charges under Section 366(A) IPC and under Section 5(1) r/w 6 of Protection of Children from Sexual Offences Act, 2012 and the same were read over and explained to him and on being questioned, the accused denied the charges and pleaded not guilty.
4. The prosecution, in order to prove its case, had examined 24 witnesses as PW-1 to PW-24 and exhibited 27 documents as Ex.P.1 to Ex.P.27 and eight material objects as M.O.1 to M.O.8.
5. The case of the prosecution emerging from the evidence adduced on their side, in brief is as follows:
(b) On 06.05.2015 at about 10.30 p.m. when PW-1 was taking rollcall, she found that PW-2, PW-8 and PW-9 were missing. After receiving the information, PW-6 came to the Ashram and she along with PW-1, PW-5 and PW-7 searched in the adjoining places and bus stand, but their efforts were of no avail. Thereafter, PW-1 has preferred a complaint before the Trichy Airport Police Station at about 07.00 a.m. on the next day morning under Ex.P.1.
(c) PW-22 Sub Inspector of Police who was on duty at Airport Police Station received the complaint from PW-1 and registered a case in Crime No. 151 of 2015 as 'Girl missing' and prepared the First Information Report under Ex.P.18.
(d) PW-2 and PW-3 and one boy Selvakumar were born to PW-10 through his first wife. He had married PW-4 as second wife. PW-2 and PW-3 were brought up in the Ashram. The accused was working in a Mosque situated behind the Ashram and he became accustomed with PW-2 and thereafter they loved each other. The accused directed the victim to come out from the Ashram and accordingly PW-1 had left the Ashram at about 10.00 p.m. on 06.05.2015 along with PW-8 and PW-9 who were also willing to come out of the Ashram. All the three visited the Kallanai, Mukkombu and thereafter, reached Villupuram Bus Stand. PW-2 informing her friends that she is going to her relative's house, left that place and thereafter, contacted the accused.
(e) The accused came to Villupuram Bus Stand and took her to Chennimalai of
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
