The urgent need to curb diversionary tactics of the defence to circumvent the provisions of law and the presumption as to certain offences under Section 29 of POCSO Act.

JUDGMENT

(Prayer: Criminal Appeal filed under Section 374 (2) of Criminal Procedure Code, 1973 against the judgment dated 11.02.2019 passed by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, in Spl.S.C. No.60/2015.)

1. This criminal appeal is filed against the Judgment and order dated 11.02.2019 passed by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, in Spl.S.C. No.60/2015.

2. The appellant is the accused in Spl.S.C.No.60/2015 and he is convicted and sentenced as detailed hereunder:

3. The case of the prosecution

i. A 17 year old girl who was studying in Hosur Higher Secondary School in Class XII was missing from her paternal uncle''s house in Denkanikottai on 31.05.2015. She was the daughter of a couple, husband being a drawing master and the wife doing business.

ii. On 02.06.2015 a police complaint (Ex.P1) was lodged by Sivakumar P.W.1 (the paternal uncle). The victim was traced along with one Gowthaman (the accused) and brought to the All Women Police Station, Denkanikottai.

iii. The said Gowthaman (accused) had kidnapped the minor girl (P.W.5) in his vehicle bearing Regitration No.TN70A0080 on 31.05.2015 at about 8 a.m from the house of P.W.1, the victim girl''s paternal uncle in Denkanikottai.

iv. It is alleged that the accused was in love with the victim girl and though she was shifted to her paternal uncle''s house in Denkanikottai atleast 6 months before the incident, the accused kidnapped the victim under the guise of marrying her, taken her to his sister''s house, sexually harassed her and later the accused was apprehended by the police on 02.06.2015 and remanded to judicial custody for the offences punishable under Section 366 A IPC and also Section 4 of the Protection of Children from of Sexual Offences Act (herein after referred to as POCSO Act).

v. The victim girl was sent for medical examination on 03.06.2015 at about 12.30 p.m. to Denkanikottai Government Hospital where Dr.Hariharan (P.W.8) who though did not have a consent from the victim for physical examination of the victim due to the gender difference had reported rape by one known person on 31.05.2015 at 2.30 p.m. (as stated by her) in Hosur in a house near Bagalur Check post, which was recorded by him in the AR copy (Ex.P5). Dr.Hariharan had recommended her to be examined by Dr. Parvathy (P.W.15) who did the physical examination and found the ''hymen not intact'', ''no physical injuries'' and the vaginal smear, pubic hair and vaginal swab were sent for forensic analysis.

4. The Investigation by the Investigating Officer

i. Mr.Saravanan, the Investigating Officer (P.W.17), Inspector of Police All Women Police Station, Denkanikottai, who took up investigation in Cr.No.11/2015 in First Information Report (Ex.P14) dated 02.06.2015, visited the crime spot at 18.40 hours the same day, prepared the Observation Mahazar (Ex.P3) and rough sketch (Ex.P15) in the presence of witnesses Balaji (P.W.10) and Amutha (P.W.6) and also recorded the statements of the victim girl (P.W.5), Sivakumar (P.W.1), Jayanthi (P.W.2), Kavitha (P.W.4) and Balaji and Amutha.

ii. He arrested the accused near Bagalur Check Post at about 8 p.m. and his confession statement was recorded in the presence of Mohammed Rafiq (P.W.11) and Nagaraj (P.W.7). The victim girl was also found with him and her statement is (Ex.P2).

iii. After getting the facts right from the investigation, an alteration report (Ex.P17)