Madras High Court
Senthil Kumar vs State Rep. By on 11 March, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
CRL.A.No.780 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.03.2024
CORAM
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.A.No.780 of 2017
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Senthil Kumar : Appellant/Accused
Versus
State Rep. By
The Inspector of Police,
All Women Police Station (West)
Coimbatore City. : Respondent/Complainant
Criminal Appeal filed under Section 374 (2) of Criminal Procedure
Code, to call for the records and allow this Appeal by setting aside the
Judgment made in Spl.C.C.No.32 of 2015 dated 25.07.2017 by the learned
Sessions Judge, Fast Track Mahila Court, Coimbatore.
For Petitioner : Mr. M.Nallathambi
Legal Aid Counsel
For Respondent : Mr.G.V.Kasthuri
Additional Public Prosecutor
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JUDGMENT
This Criminal Appeal has been filed to set aside the Judgment passed by the learned Sessions Judge, Fast Track Mahila Court, Coimbatore in Spl.C.C.No.32 of 2015 dated 25.07.2017.
2. The brief facts, which are necessary for the disposal of this https://www.mhc.tn.gov.in/judis 1/27 CRL.A.No.780 of 2017 Criminal Appeal, are as follows:-
2.1. The Prosecution case is that on 17.02.2015, it was a Sivarathiri day, celebrating the lord Siva. Therefore, when the mother of the victim was preparing for Sivarathiri Celebrations, the victim had gone to the Temple. The next day, the victim did not return. Therefore, she had searched in the house of the neighbours. As per the Prosecution case, the neighbours informed her that they found the victim along with the Accused in a bus, talking to each other.
She had immediately contacted her daughter. Her daughter stated that she had accompanied the Accused to Palani Temple and they had married. Immediately, the mother of the victim directed her to return home. By the time, she returned home, the mother had lodged a Complaint. Therefore, they went to Police Station. In the Police Station, the Police Officials conducted enquiry, the victim was not willing to go with her mother. Therefore, at the insistence of her mother, the case was registered under the Protection of Children from Sexual Offences Act, 2012 as though, the Accused forcibly took her. She had not completed the age of majority (as per the Prosecution case). The Accused took the minor girl with the intention to get married and had married her at Palani. Under the pretext of having married, the Accused took the victim to the house of his sister where they stayed for the night and he forcibly had sexual intercourse with her.
https://www.mhc.tn.gov.in/judis 2/27 CRL.A.No.780 of 2017 2.2. On receipt of Complaint from the mother of the victim, the Inspector of Police, All Women Police Station, Coimbatore (West) registered a case in Crime No. 2 of 2015 for the offences under Section 366(A) of IPC and under Section 3 (a) r/w. Section 4 of the Protection of Children from Sexual Offences Act, 2012. The Inspector of Police conducted investigation and laid the final report before the learned Judicial Magistrate, Coimbatore.
2.3. The learned Judicial Magistrate, Coimbatore had taken cognisance of the offences under Section 366(A) of IPC and under Section 3 (a) r/w. Section 4 of the Protection of Children from Sexual Offences Act, 2012 and taken the final report of the investigation on file as PRC. Since the offences alleged in the final report are offences triable exclusively by Sessions Judge, the learned Judicial Magistrate, Coimbatore had issued summons to the Accused. On appearance of the Accused, the copies of the final report was furnished to the Accused under Section 207 of Cr.P.C., and the case was committed to Special Court for trial of cases registered under the Protection of Children from Sexual Offences Act, 2012/Sessions Judge, Fast Track Mahila Court, Coimbatore and bound over the Accused to learned Sessions Judge, Fast Track Mahila Court, Coimbatore.
2.4. On appearance of Accused and after hearing the Prosecution and the learned Counsel for the defence, the learned Sessions Judge framed charges https://www.mhc.tn.gov.in/judis 3/27 CRL.A.No.780 of 2017 under Section 366(A) of IPC and under Section 3 (a) r/w. 4 of the Protection of Children from Sexual Offences Act, 2012. Since the Accused denied the charges and claimed to be tried, the learned Sessions Judge, Fast Track Mahila Court ordered trial. During trial, the Prosecution had examined 17 witnesses as P.W-1 to P.W-17 and marked 15 documents under Ex.P-1 to Ex.P-15. On appreciation of evidence, the learned Sessions Judge, Fast Track Mahila Court, Coimbatore had convicted the Accused for the offence under Section 366(A) of IPC and under Section 3 (a) r/w. 4 of the Protection of Children from Sexual Offences Act, 2012 and sentenced the Accused to undergo five years Rigorous Imprisonment and to pay fine of Rs.3,000/-, in default, to undergo three months Simple Imprisonment for offence under Section 366(A) of IPC and sentenced the Accused to undergo 10 years Rigorous Imprisonment and to pay fine of Rs.3,000/-, in default, to undergo three months Simple Imprisonment for the offence under Section 3 (a) r/w. 4 of the Protection of Children from Sexual Offences Act, 2012.
2.5. Aggrieved by the judgment of conviction and order of sentence imposed on the Accused by the learned Sessions Judge, Fast Track Mahila Court, Coimbatore, in Spl. C. C. No.32 of 2015, dated 25.07.2017, dated 25.07.2017, this Criminal Appeal had been filed.
https://www.mhc.tn.gov.in/judis 4/27 CRL.A.No.780 of 2017
3. The learned Counsel nominated by the Tamil Nadu Legal Aid Committee, Mr.Nallathambi submitted that the case of the Prosecution is a cooked up case. The Accused and the victim were actually lovers. The father and mother of the victim are living separately. The parents of the Accused are supporting the father of the victim. The father of the victim is not in talking terms with the mother of the victim. Only to wreck vengeance on the family of the Accused, the Accused had been framed in this case. The victim herself had admitted that she fell in love with the Accused.
4. The learned Counsel for the Appellant submitted that as per the Complaint itself, the mother of the victim had claimed that her daughter had not completed the age of majority. The Prosecution had to prove the age of the victim, but the Prosecution had not proved the age of the victim to attract the Provisions of Protection Of Children from Sexual Offences Act, 2012. Only the Radiologist report had been pressed into service. The School Teacher of the victim in this case had admitted in his cross-examination, she failed and she did not go to School to continue her education. As on the date of the alleged occurrence i.e., on 17.02.2015, she was not a minor to attract the Provisions of Protection Of Children from Sexual Offences Act, 2012. The Accused and the victim were lovers and she had eloped with him. While so, the case had been https://www.mhc.tn.gov.in/judis 5/27 CRL.A.No.780 of 2017 framed up as though the Accused had committed the offence attracting the Provision of Protection Of Children from Sexual Offences Act, 2012 which is not true. As per the submission of the learned Counsel for the Appellant, there are materials available in the cross-examination of the witnesses that the Provisions of Protection Of Children from Sexual Offences Act, 2012 cannot at all be pressed into the service. While so, the learned Judge, Fast Track Mahila Court had convicted the Accused for the offence under the Protection Of Children from Sexual Offences Act, 2012.
5. The learned Counsel for the Appellant invited the attention of this Court to the Charges framed by the learned Sessions Judge, Fast Track Mahila Court. As per the Charges framed by the learned Sessions Judge, Fast Track Mahila Court, the first Charge relates to offence under Section 366 of IPC, by which the victim was aged about 15 years was taken out of the custody of the parents by the Accused. The second Charge relates to Section 9 of Protection of Child Marriage Act. Third Charge relates to offence attracting Section 3 (a) r/w. 4 of Protection Of Children from Sexual Offences Act, 2012. Since the Accused denied the Charges, the learned Sessions Judge, Fast Track Mahila Court, Coimbatore ordered trial. In trial, on the basis of appreciation of evidence, the learned Sessions Judge, Fast Track Mahila Court had convicted https://www.mhc.tn.gov.in/judis 6/27 CRL.A.No.780 of 2017 the Accused for the offence under Section 366(A) of IPC, to undergo five years of Rigorous Imprisonment and imposed a fine of Rs.3,000/- in default to undergo three months of Simple Imprisonment and convicted the Accused for the offence under Section 3 (a) r/w. 4 of Protection Of Children from Sexual Offences Act, 2012 to undergo ten years of Rigorous Imprisonment and imposed a fine of Rs.3,000/- in default to undergo three months of Simple Imprisonment.
6. The learned Counsel for the Appellant invited the attention of this Court to the evidence of P.W-1-mother of the victim, who is a Complainant, who filed the Complaint under Ex.P-1. P.W-2 is the victim and P.W-3 is the brother of P.W-2/victim.
7. The learned Counsel for the Appellant invited the attention of this Court to the evidence of the P.W-1-mother of the victim wherein she had stated that she was informed about her daughter in the company of the Accused talking near the Town Hall, she had not mentioned the name of the person. In her Complaint under Ex.P-1, she states that neighbour informed her but none of the neighbour had been cited by the Prosecution. In the evidence of P.W-1, when she was informed about the victim and the Accused were talking near https://www.mhc.tn.gov.in/judis 7/27 CRL.A.No.780 of 2017 Town Hall, she immediately went to the house of the Accused where the mother and sister of the Accused had stated that they do not have any information. On the same night, the victim informed her mother on mobile phone that she was summoned by the Accused to his house and later brought to Palani. In the cross-examination, P.W-1 states that she did not remember the mobile number. She had changed her mobile number. Also, she states that her daughter had mobile phone with her. P.W-1 was unable to mention the mobile phone number of her daughter.
8. The learned Counsel for the Appellant invited the attention of this Court to the evidence of the victim/P.W-2 wherein she states that she had been in love with the Accused. She went along with the Accused on 17.02.2015 to Palani and on 18.02.2015, the Accused had married her. From there, they went to the house of the sister of the Accused. On that night, she had informed her mother that she had married the Accused at Palani. Accordingly, both the Accused and the victim came to the Police Station. In the cross-examination of P.W-2, victim was confronted regarding mobile number of the victim, she had stated that the Accused summoned her through the mobile of her friend. She had not stated the name of the friend. She had also admitted that she had not spoken about the same to the Police. She had also stated that she had contacted https://www.mhc.tn.gov.in/judis 8/27 CRL.A.No.780 of 2017 her mother from the mobile phone belonging to the Accused. In the cross- examination, she had clearly admitted that she went to the Police Station along with the Accused. She refused to go with her mother. Also, she admits that the Complaint had been lodged at the instigation of her maternal aunt. P.W-4 is a auto driver, he had deposed regarding arrest and confession of the Accused. He remained hostile. Therefore, the Prosecution had cross-examined him. He had denied the suggestion of the Prosecution that he remained hostile to the Prosecution as the Accused had influenced him. P.W-5 is also Mahazar Witness. He had deposed regarding comparison of signature in Ex.P-4. P.W-6 is a witness to the observation Mahazar. P.W-7 is cousin of the Accused. He had deposed regarding the signature in the observation Mahazar under Ex.P-5. P.W-8 is the elder brother of victim/P.W-2. He had in his evidence stated that P.W-2/victim and the Accused were lovers and P.W-2 had eloped with the Accused and P.W-2/victim, informed the mother of the victim on mobile phone that she had married the Accused at Palani. The mother directed her to come back. Therefore, she reached their house, on the way, she came to know about the Complaint and she had appeared before the All Women Police Station, Coimbatore (West). P.W-9 is the aunt of victim and elder sister of the mother of the victim/P.W-1, who is only a hearsay witness. P.W-10-Gynecologist, who had examined the victim/P.W-2, issued Accident Register copy under Ex.P-6. https://www.mhc.tn.gov.in/judis 9/27 CRL.A.No.780 of 2017 P.W-11-Radiologist had examined the victim as per the Requisition Letter for Radiology Test under Ex.P-7 under which he had given the age of the victim as 16 to 18. Based on the Radiology Test Report under Ex.P-8, in his cross examination, he had admitted that the age mentioned by him, based on presumption and it had also differed from food habits and healthy nature of individuals. P.W-12 is the Headmaster of the School where the victim studied. He had issued Ex.P-9-Bonafide Certificate and Transfer Certificate of the victim wherein her date of birth was mentioned as 08.09.1999. He had stated that her date of birth was given in the Transfer Certificate of the School where she studied earlier from 7th Standard to 9th Standard only and she dropped out at 9th Standard. P.W-13 -Priya is the acquaintance of the family of the victim, who is also an younger sister of the Accused. As per her evidence, the victim stayed with her father's house in the night. She had taken the victim to the Police Station from the house of the father. Since the evidence of P.W-13 was not supporting the Prosecution case, she was treated as hostile. P.W-14- The learned Judicial Magistrate No.4, Coimbatore had recorded the statement of victim under Section 164 Cr.P.C., P.W-15-Dr.Pandeeswaran who had examined the Accused on 07.03.2015 as per the Requisition Letter under Ex.P-12 received from the Court of the learned Judicial Magistrate to conduct the potency test on the Accused and issued Potency Certificate under Ex.P-13. https://www.mhc.tn.gov.in/judis 10/27 CRL.A.No.780 of 2017 P.W-16-Sub Inspector of Police, E-1 Singanallur Police Station, had deposed that he had received the Complaint from the mother of the victim on 19.02.2015 and registered the case in Cr.No.2 of 2015 for the offence under Section 366 A of IPC and Section 3 (a) r/w. 4 of Protection Of Children from Sexual Offences Act, 2012. The FIR was marked as Ex.P-14. P.W-17- Manickam, who is the Investigation Officer of the case, had deposed regarding the preparation of Observation Mahazar under Ex.P-5 and Rough Sketch under Ex.P-15 and recording the statement of the victim and other relatives. On completion of investigation, she laid the final report for the offence under Section 366 (A) of IPC and Section 3 (a) r/w. 4 of Protection Of Children from Sexual Offences Act, 2012. In the cross-examination, P.W-17 admitted that she had not examined the husband of P.W-1. To the specific question, the Investigation Officer had secured the mobile phone of the victim as well as Accused or verified their mobile number. She clearly stated that she had not seized mobile phone. The suggestion of the defence that the victim was talked her mother about studying further. Therefore, left her place and stayed with her father in the night. The next day, she returned to her mother by the time Complaint was given was denied by the Investigation Officer, in her cross- examination.
https://www.mhc.tn.gov.in/judis 11/27 CRL.A.No.780 of 2017
9. The learned Counsel for the Appellant raised the following the grounds:
(i) If the statement of P.W-1-mother of P.W-2 is true, P.W-2 had carried the cell phone with her and why did not call where is she?
(ii) Why the name of the friend who helped her, was not revealed and also her mobile phone number?
(iii) Why the person who saw in the Town Hall and informed P.W-1, not identified by P.W-1?
(iv) There is no evidence to prove the marriage and the visit of the Accused and the victim to Palani, then where they did go on 17.02.2015?
(v) Why P.W-2 refused to go with her mother during investigation in the Police Station?
These materials are available in the cross-examination. Without answering these queries, the learned Sessions Judge convicted the Accused. When the Admission Register of the School had not been summoned and the earlier register at the stage of admission of the child, afresh in School, is not available, then the Court shall not rely upon the documents as photostat copy which had contained interpolation. Considering the materials available in the cross-examination of the victim/P.W-2, P.W-3, P.W-8 that the Accused and the https://www.mhc.tn.gov.in/judis 12/27 CRL.A.No.780 of 2017 victim were lovers and the contradictions with regard to the mobile phone number, when the daughter had mobile phone, the mother ought to have searched her through the mobile phone, she had wantonly suppressed the details of the mobile phone in the cross-examination of P.W-1. Therefore, there are ample chances that this is a framed up case. When the mobile intercepts have not been proved as document before the learned Sessions Judge by the Investigation Officer. The contradictions among the depositions viz., P.W-1-mother, P.W-2-victim and P.W-9-elder sister of P.W-1 regarding mobile conversation between the mother and daughter. When there are mobile phone with the daughter as well as mother, the mother can very well enquire her daughter where she is, why she did not return home after visiting the Temple? The Prosecution failed to explain those suggestions. Therefore, from the available materials, it is considered that it is a framed up case against the Accused by the mother of the victim. There is evidence through the sister of the Accused that the sister of the Accused went along with the mother of the victim for searching the victim and she was traced in the house of her father since the mother of the victim insisted her to drop out of her School. Therefore, she had left her mother and joined with her father. But the case had been framed against the Accused. As though, the Accused kidnapped her, the Accused and the victim are lovers, the framing of the case only for the offence https://www.mhc.tn.gov.in/judis 13/27 CRL.A.No.780 of 2017 under the Protection Of Children from Sexual Offences Act, 2012 to cause havoc on the Accused. The benefit of doubt to be given to the Accused in the light of radiologist report wherein it is stated that the victim is aged between 16 to 18 years. In this case, P.W-2 had to be added plus or minus 2, the victim will be even aged 18 years and above, as per the Judgment.
10. It is the submission of the learned Counsel for the Appellant that the Transfer Certificate is alleged to have been produced in this case full of interpolation regarding the date of birth of victim which cannot be relied upon by this Court, in the absence of the School Register maintained where the child is admitted. Under those circumstances, the Prosecution failed to prove the age of victim and what had been stated by P.W-12 and the marking of Ex.P-9 is found unacceptable in the light of the Judgment of Hon'ble Supreme Court in Criminal Appeal No.1898 of 2023 in the case of P.Yuvaprakash Vs. State Rep. By Inspector of Police. Therefore, it is the submission of the learned Counsel for the Appellant that the Judgment of conviction recorded by the learned Sessions Judge, Fast Track Mahila Court is to be set aside as perverse.
11. In support of his contention, the learned Counsel for the Appellant relied on the following rulings:-
https://www.mhc.tn.gov.in/judis 14/27 CRL.A.No.780 of 2017 11.1. In the case of S.Varadarajan Vs. State of Madras reported in AIR 1965 SC 942 the Hon'ble Supreme Court had held as under:
“The case dealt with the meaning of 'Take out of keeping of the lawful guardian' under Section 361 of the Indian Penal Code, 1860 - It was held that where a minor girl was allegedly taken away by the accused person from the protection of her father and where the girl had a capacity to know what she was doing and had voluntarily joined the accused, then in such case it could not be said that the accused had taken her away from the protection of her lawful guardian within the meaning of Section 361 of the Code.” 11.2. In the case of Shyam and another Vs. State of Maharashtra reported in AIR 1995 SC 2169 the Hon'ble Supreme Court had held as follows:-
“3. In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/ accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "
"taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, That he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such https://www.mhc.tn.gov.in/judis 15/27 CRL.A.No.780 of 2017 steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/ accused under Section 366, I.P.C. would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants.” 11.3. In the case of Saroti Devi and others Vs. State of Himachal Pradesh reported in MANU/HP/0096/1998 the Himachal Pradesh High Court has held as under:
“Criminal - Appeal against Conviction - Sections 34, 363, 366, 366A and 376 of Indian Penal Code, 1860 - Appellants were prosecuted for kidnapping a minor girl and then forced her for marriage and sexually assaulted - Session Judge convicted Appellants and sentenced them - Hence, this appeal - Whether Appellants were rightly sentenced by Session Judge - Held, oral evidence examined during the trial was not in a way specific to fix the age of victim at the time of the occurrence - Physical examination of victim revealed that various parts of her body were developed, meaning thereby that she had acquired the age of discretion - Certain circumstances reflected from the prosecution lead to the inference that whatever was done, it could be only with the consent of victim - Victim did not raise any alarm when she was taken to the temple for marriage purpose ,no resistance was given by her or try to run away - All the charges did not stand established beyond all reasonable doubt through a legally competent evidence - Conviction and sentences passed by Sessions Judge were set aside - Appeal allowed.” 11.4. In the case of Madanlal @ Sonu Vs. State of Himachal Pradesh reported in MANU/HP/0566/2013 the Himachal Pradesh High Court has held as under:
“Criminal - Conviction - Legality of - Sections 344, 376, 363, 366 and 120B of Indian Penal Code, 1860 (IPC) - Addl. Sessions Judge had https://www.mhc.tn.gov.in/judis 16/27 CRL.A.No.780 of 2017 passed order of conviction of Appellant for commission of offence punishable under provision of IPC - Hence, this Appeal - Whether prosecutrix was forcibly removed from lawful guardianship of her parents - Held, PW-1 initially stated that she and prosecutrix were returning from jungle carrying grass, at that time Accused threw bundle of grass, caught hold of prosecutrix from her arms and took her towards road - PW-1 admitted that two person met her on road but none of them were either examined by prosecution in Court - PW-1 also did not disclose occurrence of incident to any one of persons she met or were present on spot or nearby - Testimony of Dr. PW-3 deposed that at time when prosecutrix was examined, her ages seventeen years and two months and she was dressed as bride and voluntarily made statement that "she had run away with boy at her own will 10 days ago" - In considered view, prosecutrix nowhere resisted, put up any struggle or raised alarm, attracting attention of passersby - Thus findings returned by Court below to effect that prosecutrix was kidnapped by Accused persons and forcibly taken away in jeep would not be said to be based on any legal evidence - Hence judgment of conviction and sentence passed by trial Court was set aside and Accused were acquitted of charged offences - Appeal allowed. Criminal
- Burden of proof - Whether prosecutrix was confined by Accused in abandoned house at jungle, for more than ten days or not - Held, prosecutrix PW-2 admitted that for ten days, both she and Accused remained together in abandoned house and her hands and mouth were not tied - PW-2 admitted that she had changed her clothes in house and made statement to Doctor voluntarily - It was not case of PW-2 that at time when she was confined to this place, Accused had ever threatened or assaulted her and she was under no fear at all - From testimony of PW-2 cleared that she was in love with Accused and prosecutrix knew Accused from before and they were having some relationship for last one year, which was objected to by her parents and prosecutrix had voluntarily stayed with him - Further Doctor (PW-3) had observed that no marks of injury were found on body of prosecutrix and and possibility of recent sexual intercourse could not be ruled out - Thus findings returned by trial Court that prosecutrix was subjected to rape would not be said to be legally tenable - Hence judgment of conviction and sentence passed by trial Court was set aside and Accused were acquitted of charged offences Appeal allowed.” 11.5. In the case of Lawrence Kannan Das Vs. State of Maharashtra, reported in 1983 SCC Online Bom 313, the Bombay High Court has observed https://www.mhc.tn.gov.in/judis 17/27 CRL.A.No.780 of 2017 as follows:
“57. I must state here that Mrs. Desai, the learned Public Prosecutor, was fair enough to concede that the evidence on record did not justify an inference that the accused “took” the girl away from the custody of her guardians. But she insisted that there is evidence to show that the girl was “enticed” away by the accused. But, to my mind, the evidence even on this point of “enticing” is extremely meagre to the extent of its being almost non-existent. For enticing it is not enough that the accused accompanied the girl. It must be proved that the accused had been instrumental in her taking the decision to leave the parental home. Now in the instant case there is nothing on record to show that it was the accused who was instrumental to the decision making on the part of the girl to leave the parental home. She has no doubt stated that before she decided to leave the house with a view not to return back she had a discussion with the accused. But even the girl who has gone all the way to make allegations against the accused has not stated that it was he who advised her to leave her parental house. In order to hold that the accused “enticed” away the girl, it is necessary to have some evidence to the effect that accused had given her some temptation or promise or assurance or allurement which had the effect of an irresistible force upon the girl. No such things have been stated by the girl in her evidence. I do not mean that if she had stated so, the Court would have readily believed it. The evidence of the girl does not leave any scope for an argument that the girl received a promise or assurance or any tempting offer from the accused boy by virtue of which she was forced to leave her parental house.
58. There is, thus, no evidence to prove the “taking” of the girl by the accused; the evidence about his “enticing” her away is equally absent. If this is so, there is no kidnapping of the girl and hence the question of application of Section 363 of the Penal Code, 1860 does not arise.” 11.6. In the case of Sabari @ Sabarinathan @ Sabarivasan Vs. The Inspector of Police, Namakkal District & 4 others reported in 2019 SCC OnLine Mad 18850 this Court has held as follows:-
“Criminal Law — Penal Code, 1860 — Ss. 375 and 363 — Rape — Ingredients of rape — Evidence — Held, testimony of https://www.mhc.tn.gov.in/judis 18/27 CRL.A.No.780 of 2017 prosecutrix should be appreciated on basis of probabilities like testimony of any other witness and conviction can be based solely on such testimony — But if court finds it difficult to accept her testimony, it may seek assurance to her testimony, which may be short of corroboration, from other evidence — It was alleged that, appellant/accused was in relationship with a minor girl and had kidnapped her from the lawful custody of her grandparents and thereafter committed sexual assault on her on many occasions — Victim girl herself has become hostile completely and not supported case of prosecution and nothing could be elicited from her even remotely, in order to implicate appellant/accused with offences he was charged with — Trial Court, had erred in drawing presumption without any material whatsoever in support of such presumption — Conclusion by trial Court is totally flawed and findings of trial Court are unsustainable and cannot be countenanced both in law and on facts — Prosecution had failed to prove case beyond reasonable doubts — Appellant acquitted — Appeal allowed — Protection of Children from Sexual Offence Act, 2012 — Ss. 5(1) and 6.” 11.7. In the case of Vijayalakshmi & Another Vs. State Rep. By the Inspector of Police, AWPS, Erode, in Crl.O.P.No.232 of 2021 this Court has observed as follows:-
“16. In light of the above, it is only natural that there are cases of the above-mentioned nature that are on the rise at present and it does not help matters to avoid acknowledging that the society is changing and influencing people's identity and cognition, constantly. Therefore, painting a criminal colour to this aspect would only serve counter-productively to understanding biosocial dynamics and the need to regulate the same through the process of law.
17. This Court is not turning a blind eye to cases where the victim or survivor may, under the effect of trauma that they have undergone, studies on which show that they might tend to reconcile with the same by blaming themselves or convincing themselves that the element of consent was infact present. Nor is this Court scientifically justifying in toto, the genuineness or predicament of the accused in every case where it appears that the accused and victim child have been in a romantic relationship. That will depend on the facts and circumstances of each and every case.
https://www.mhc.tn.gov.in/judis 19/27 CRL.A.No.780 of 2017
18. In the present case, the 2nd Petitioner who was in a relationship with the 2nd Respondent who is also in his early twenties, has clearly stated that she was the one who insisted that the 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents. The 2nd Respondent, who was placed in a very precarious situation decided to concede to the demand of the 2nd Petitioner. Thereafter, they eloped from their respective homes, got married and consummated the marriage. Incidents of this nature keep occurring regularly even now in villages and towns and occasionally in cities. After the parents or family lodge a complaint, the police register FIRs for offences of kidnapping and various offences under the POCSO Act. Several criminal cases booked under the POCSO Act fall under this category. As a consequence of such a FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt. The provisions of the POCSO Act, as it stands today, will surely make the acts of the boy an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defense if the criminal case is taken to its logical end. Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult's point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act.”
12. The learned Additional Public Prosecutor Mrs.G.V.Kasthuri appearing for the State vehemently objected to the line of the argument of the learned Counsel for the Appellant stating that under the pretext of love, the Accused had taken out the minor girl from her house and under the pretext of https://www.mhc.tn.gov.in/judis 20/27 CRL.A.No.780 of 2017 marriage made her believe that she had been married and had sexual intercourse, the same had been pointed by the Investigation Officer to the Doctor who examined P.W-2 and issued certificate under Ex.P-9.
13. The learned Additional Public Prosecutor invited the attention of this Court to Ex.P-6-Accident Register Copy issued by Doctor/P.W-10 and the statement under Section 164 Cr.P.C., recorded from the victim by P.W-14- Judicial Magistrate. The evidence of P.W-1 and P.W-2 are corroborated by the Doctor examined in this case. The victim is minor, P.W-12-Ravi as Headmaster of School where the victim studied, had examined and deposed the evidence regarding the same. As per the evidence, the document marked by him as valid and if the age of the victim is calculated from the year 1999. By the time, she is minor and she cannot given consent. The Prosecution had proved through the evidence of P.W-1 to P.W-3 and P.W-8 and P.W-10 to P.W- 12-Doctors. Therefore, the Judgment of conviction recorded by the learned Sessions Judge, Fast Track Mahila Court, Coimbatore has to be confirmed and the Appeal is to be dismissed as having no merit.
Point for consideration:
Whether the Judgment recorded by the learned Sessions Judge, Fast Track Mahila Court, Coimbatore in Spl.C.C.No.32 of 2015, dated 25.07.2017 is to be set aside as https://www.mhc.tn.gov.in/judis 21/27 CRL.A.No.780 of 2017 perverse?
14. Heard the learned Counsel for the Appellant and the learned Additional Public Prosecutor for Respondent.
15. Perused the deposition of the Prosecution Witnesses P.W-1 to P.W- 17 and Ex.P-1 to Ex.P-15 and the Judgment of the learned Sessions Judge, Fast Track Mahila Court, Coimbatore in Spl.C.C.No.32 of 2015 dated 25.07.2017.
16. On consideration of the rival submissions and on perusal of the evidence of the Prosecution Witnesses, it is found that the evidence of the Prosecution Witnesses viz., P.W-1 to P.W-3, P.W-8, Doctors P.W-10, P.W-11 and P.W-15 had not supported the case of the Prosecution. Only the Official Witnesses viz., P.W-14, P.W-16 and P.W-17 had supported the case of the Prosecution. The Complaint under Ex.P-1 itself is found suspicious. P.W-1/ mother of P.W-2 claims that her daughter is below 18 years. Ex.P-9 marked through the Head Master/P.W-12 is full of interpolations which is not, “Transfer Certificate”, it is a “bonafide certificate”. Only in the School Admission Register, the first time, child is sent to School, what was stated in the Admission Register will be carried out in the School. Instead, the Headmaster of the School where the victim studied from 7th Standard to 9th https://www.mhc.tn.gov.in/judis 22/27 CRL.A.No.780 of 2017 Standard, only had been summoned by the Prosecution as Witnesses and he had let in evidence stating that her date of birth is 1999. Further, it is a photostat copy wherein it had interpolations. It was admitted by P.W-12 in the cross-examination. Therefore, as rightly pointed out by the learned Counsel for the Appellant, Ex.P-9-Bonafide Certificate marked through P.W-12, cannot be relied upon by the Court as though the victim is a child. If that is rejected, the evidence available through the Radiologist Report under Ex.P-8 wherein it is stated that the age is between 16 and 18. As per the Judgment of the Hon'ble Supreme Court regarding determination of the age of the victim, it is found that it has to be +/- 2. In this case, if 2 is added, she is aged about 20 years old on the higher side and 18 years on the lower side. Considering the age of her brothers who are elder to her, she will be 18 years only. There is evidence in the cross-examination that she had dropped out of School as she is not good in studies. There is evidence that she had failed in 8th Standard second year/time. If those facts are considered, she will not be minor on the date of the alleged occurrence. Also, she herself had admitted that she was in love with the Accused. The Accused is alleged to have induced her to come to the place and later took her to Palani and they had married. If they are married is to be accepted, then they were adults on the date of marriage. Regarding proof of marriage, no evidence had been produced before the Court. It is found that https://www.mhc.tn.gov.in/judis 23/27 CRL.A.No.780 of 2017 materials available had not been produced as it will weaken the Prosecution case. If the marriage was performed in the Temple, the victim ought to have produced the document to show that she had completed 18 years otherwise marriage could not have been performed in the Temple. As per the Prosecutrix/P.W-2, the Accused had married her in the Temple. Without proof of age, they will not register the marriage. As pointed out by the learned Counsel for the Appellant, there is evidence that P.W-2 had been with her father, she had mobile, the mother can easily find out where the daughter is. There is a discussion, the mobile phone by the mother has led her elder sister by the victim/P.W-2. But they claim that P.W-2 talked to her mother from the mobile of the Accused. It is found to evade the question that she did have mobile phone. Considering the evidence of Prosecutrix as P.W-2, it is a clear case of accompanying the Accused on her own volition. Therefore, the conviction under Section 366 A of IPC is found perverse.
17. In the light of the above discussion and in the light of the rulings of the Hon'ble Supreme Court and the High Courts relied by the learned Counsel for the Appellant reported in (i) AIR 1965 SC 942 in the case of S.Varadarajan Vs. State of Madras; (ii) AIR 1995 SC 2169 in the case of Shyam and another Vs. State of Maharashtra; (iii) MANU/HP/0096/1998 in the case of Saroti Devi and others Vs. State of Himachal Pradesh; (iv) https://www.mhc.tn.gov.in/judis 24/27 CRL.A.No.780 of 2017 MANU/HP/0566/2013 in the case of Madanlal @ Sonu Vs. State of Himachal Pradesh; (v) 1983 SCC Online Bom 313 in the case of Lawrence Kannan Das Vs. State of Maharashtra; (vi) 2019 SCC OnLine Mad 18850 in the case of Sabari @ Sabarinathan @ Sabarivasan Vs. The Inspector of Police, Namakkal District & 4 others and (vii) in the case of Vijayalakshmi & Another Vs. State Rep. By the Inspector of Police, AWPS, Erode in Crl.O.P.No.232 of 2021, the point for consideration is answered in favour of the Appellant and against the Prosecution. The Judgment passed by the learned Sessions Judge, Fast Track Mahila Court, Coimbatore in Spl.C.C.No.32 of 2015, dated 25.07.2017 is found perverse and the same is to be set aside.
In the result, this Criminal Appeal is allowed. The Judgment passed by the learned Sessions Judge, Fast Track Mahila Court, Coimbatore in Spl.C.C.No.32 of 2015 dated 25.07.2017 is set aside. The Appellant is acquitted from all the charges. The bail bond, if any, executed by the Appellant shall stand cancelled. The fine amount, if any, paid by the Appellant shall be refunded.
11.03.2024 Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order https://www.mhc.tn.gov.in/judis 25/27 CRL.A.No.780 of 2017 dh To
1.The Sessions Judge, Fast Track Mahila Court, Coimbatore.
2.The Inspector of Police, All Women Police Station (West) Coimbatore City.
3. The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis 26/27 CRL.A.No.780 of 2017 SATHI KUMAR SUKUMARA KURUP, J.
dh Judgment made in CRL.A.No.780 of 2017 11.03.2024 https://www.mhc.tn.gov.in/judis 27/27