Madras High Court
Ragu @ Ragupratab vs State By on 25 April, 2017
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.04.2017 C O R A M THE HONOURABLE MR.JUSTICE C.T.SELVAM Criminal Appeal No.262 of 2014 and Crl.M.P.No.3005 of 2016 Ragu @ Ragupratab S/o.Jeyaprakash ...Appellant/ Accused -vs- State by Inspector of Police, All Women Police Station, Gobichettipalayam, Erode District. Crime No.2 of 2013 ... Respondent/Complainant Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of learned Sessions Judge, Magalir Neethi Mandram (Fast Track), Erode, passed in S.C.No.113 of 2013 on 23.04.2014. For Appellant : Mr.P.Sesubalan Raja For Respondent : Mr.M.Mohamed Riyaz Government Advocate [Crl.side] ***** J U D G M E N T
This appeal arises against judgment of learned Sessions Judge, Magalir Neethi Mandram (Fast Track), Erode, passed in S.C.No.113 of 2013 on 23.04.2014 convicting appellant/accused for offences u/s.366-A IPC and 4 of Protection of Children from Sexual Offence Act, 2012 and sentencing him to 10 years R.I. and fine of Rs.5,000/- for each offence and directing him to pay compensation in a sum of Rs.1,00,000/- to the victim i/d 2 years R.I.
2. Prosecution case is that on 14.02.2013 at about 09.00 a.m., while the victim girl was on her way to School, petitioner/accused informed her that her grandmother had suffered a fracture of her leg and took her to his house under the pretext of giving her money and raped her. PW-1, victim, preferred EX.P1, complaint, to PW-7, Sub-Inspector of Police, who registered a case in Crime No.2 of 2013 on the file of respondent for offences u/s.366 and 376 IPC and 3 r/w 4 of Protection of Children from Sexual Offences Act. The First Information Report is Ex.P12. PW-11, Inspector of Police, took up investigation in the case. PW-11 visited the place of occurrence on 17.03.2013, prepared Ex.P2, observation mahazar and Ex.P20, rough sketch, in the presence of PW-2 and another. PW-11 arrested the accused at 11.00 a.m., and recorded his confession in the presence of PW-4 and another. PW-11 sent requisitions towards conduct of medical test for accused and victim girl. PW-11 examined PWs.2, 3 and 4 and others and recorded their statements. PW-11 examined PW-1, victim girl and recorded her statement. PW-11 examined witnesses and recorded their statements. On his transfer, PW-11 handed over the case papers to PW-12, Inspector of Police. PW-12 obtained Chemical Analysis Report and Serology Report. PW-12 examined Doctors and recorded their statements. PW-12 examined other witnesses and recorded their statements. On completion of investigation and filing of charge sheet informing commission of offences u/s.366 IPC and 4 of Protection of Children from Sexual Offences Act, 2012, the case was tried in S.C.No.113 of 2013 on the file of learned Sessions Judge, Magalir Neethi Mandram (Fast Track), Erode.
3. Before trial Court, prosecution examined twelve witnesses and marked twenty one exhibits. One witness was examined on behalf of defence and two exhibits and one material object was marked. When questioned u/s.313 Cr.P.C., accused denied charges. On appreciation of materials before it, trial Court, under judgment dated 23.04.2014, convicted accused for offences u/s.366-A IPC and 4 of Protection of Children from Sexual Offence Act, 2012 and sentenced him to 10 years R.I. and fine of Rs.5,000/- for each offences and directed him to pay compensation in a sum of Rs.1,00,000/- to the victim i/d 2 years R.I. Trial Court directed that sentences run concurrently. Against such finding, petitioner/accused has filed the present appeal.
4. Heard learned senior counsel for appellant and learned Government Advocate [Crl.side] as also perused materials on record.
5. Though prosecution establishes the age of the girl to be 13 through Ex.P21, Birth Certificate and also that she was not a virgin through evidence of Dr.P.W.5 and Ex.P.6 his opinion, this Court is unable approve the findings of conviction for offences u/s.366-A IPC and 4 of Protection of Children from Sexual Offence Act, 2012, given the following inherent contradictions in the prosecution case. The complaint alleging offence of 14.02.2013 has been preferred on 17.03.2013. According to the statement of PW-1 recorded under section 164 Cr.P.C. by PW-8, Judicial Magistrate, Gobichettipalayam, she had been misled by the accused and taken to his residence where the mother of the accused gave her a glass of juice and after drinking the same she lost her consciousness. On regaining consciousness she found herself naked. Section 164 Cr.P.C. statement further informs that she was threatened against disclosure by the accused and on returning home she informed her neighbour by name Madhavi, who in turn informed her grand mother. This statement further reveals that on the accused informing his neighbours of having raped her, the complaint had been preferred. The said Madhavi has not been examined as a witness. Though in sexual offences the delay in preferring complaints may be overlooked, considering social stigma attached thereto, the delay in preference of complaint in this case on 17.03.2013 in respect of the alleged offence of 14.02.2013 is unacceptable given the position of the world at large having been put on notice by the accused, as informed in the 164 Cr.P.C. statement. The prosecution has not arrayed the mother of the appellant as an accused. If there be any truth in the allegation made in Section 164 Cr.P.C. statement, prosecution necessarily would have arrayed the mother of the appellant as an accused. Section 164 Cr.P.C. statement though lengthy is very cogent and it is difficult to accept the same as one emanating from a 13 year old girl. The evidence of the alleged victim as PW-1, in chief, was that immediately after the occurrence she found her paternal uncles outside the door and on being questioned by them on why she had gone to the house of the accused and not to school, she had informed them that the appellant had behaved roughly with her. In such circumstances, it is difficult to accept that the occurrence took place in the manner as alleged by the prosecution and the finding of conviction arrived at by Court below is erroneous.
For the aforesaid reasons, this Criminal Appeal shall stand allowed. learned Sessions Judge, Magalir Neethi Mandram (Fast Track), Erode, passed in S.C.No.113 of 2013 on 23.04.2014, shall stand set aside. Appellant is acquitted of all charges. Fine amount, if any, paid shall be refunded to him. Bail bond(s), if any, executed by him shall stand cancelled. Appellant is directed to be released forthwith, if his detention is not required in any other case. Connected miscellaneous petition is closed.
25.04.2017 Index: Yes/No, Internet: Yes bri/sli To
1.The Sessions Judge, Magalir Neethi Mandram (Fast Track), Erode.
2.The Inspector of Police, All Women Police Station, Gobichettipalayam, Erode District.
3.The Public Prosecutor, High Court, Chennai.
C.T.SELVAM, J bri/sli Criminal Appeal No.262 of 2014 25.04.2017