IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on:12.10.2022 Pronounced on : 27.10.2022 Coram:

THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN Criminal Appeal No.648 of 2014 David Inbaraj .. Appellant /versus/

State, Rep. by Inspector of Police, S-11, Tambaram Police Station, Tambaram,Chennai 600 045.

Crime No.772/2013 .. Respondent Prayer:- Criminal Appeal has been filed under Section 374 of Cr.P.C., and order IV of the Madras High Court A.S Rules, to call for the records and to allow the appeal by setting aside the judgment of the Hon'ble Judge, Mahila Court, Chengalpattu in Spl.Case.No.10/2014 on 19.11.2014 and to set aside the conviction and sentence imposed on the accused.

For Appellant : Mr.T.R.Ravi For Respondent : Mr.R.Kishore Kumar, Government Advocate, (Crl.Side)

J U D G M E N T

The appellant herein is the sole accused. During the year 2013, while the accused was serving as a Pastor in the local church, P.W-2, a minor at that time used to attend the Church since her family members belong to the said church. Taking advantage of his position as Pastor, the accused allured and enticed P.W-2 with gifts and promise of luxury life and kidnapped her on 16/04/2013 from the lawful custody of her parents with an intention to exploit her sexually. He took her to various places like Siliguri, Nagaland and Hosur and under threat and force, had sexual intercourse with P.W-2 on several occasions for nearly 7 months. On the complaint of P.W-1, who is the father of the victim girl and by P.W-3, who is the wife of the accused, police traced the accused and P.W-2 at a lodge in Hosur and later, secured on 14/12/2013. He was tried for committing offences punishable under section 363 I.P.C and Section 4 of POCSO Act.

2. The Trial Court after appreciating the evidence, held the accused guilty and sentenced him to undergo 10 years R.I and to pay fine of Rs.10,000/- in default 1 year R.I for offence under Section 4 of POCSO Act. Sentenced him to undergo 5 years R.I and to pay fine of Rs.2000/- in default 6 months R.I for offence under Section 363 I.P.C. The term of imprisonment was ordered to run concurrently. The period of imprisonment undergone pending trial ordered to set off under Section 428 of Cr.P.C.

3. The appeal is directed against the above judgement of conviction and sentence on the ground that the trial Court erred in convicting the accused based on the erroneous premises that P.W-2 was a minor girl at the time of occurrence and she was forcible taken away from the custody of her parents. Also the trial Court erred in holding that P.W-2 was subjected to forcible intercourse under threat.

4. The Learned Counsel for the appellant raising doubt about the genuineness of Ex.P-2, the birth certificate which was not part of the documents filed along with the final report but introduced at the time of examination of witnesses without any explanation for not producing it along with the final report contended that, Ex.P-2 is a fabricated document. Without ascertaining the age of P.W-2, the prosecution proceeded with an erroneous assumption that P.W-2 is a minor. Later, after commencement of examination of witnesses, realising the fatal omission, Ex.P-2 the birth certificate was produced by the Public Prosecutor with a memo stating that the Investigating Officer, due to inadvertence omitted to file the birth certificate. In fact, how the birth certificate came into possession, itself not proved and none of the prosecution neither the defacto complainant P.W-1 through whom it was marked nor the Investigating Officers' P.W-9 and P.W-10 had deposed about how and when the birth certificate Ex.P-2 was obtained. The Trial Court has come to an erroneous conclusion that the age of P.W-2 was 17 years at the time of alleged occurrence based on Ex.P-2 which was issued on 16/06/2003 but not produced along with other documents relied by the prosecution. During the course of investigation, P0W-10 the Investigating Officer had made a request to the Learned Judicial