Madras High Court
Indiran vs State Represented By on 3 July, 2024
Author: M.S.Ramesh
Bench: M.S.Ramesh
Crl.A.No.372 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.07.2024
CORAM :
THE HON'BLE MR. JUSTICE M.S.RAMESH
AND
THE HON'BLE MR. JUSTICE SUNDER MOHAN
Crl.A.No.372 of 2020
Indiran ...Appellant/Single Accused
vs.
State represented by
Inspector of Police,
Thudiyulur Police Station,
Coimbatore District.
(Crime No.23 of 2017) ...Respondent
Criminal Appeal filed under Section 374(2) of Criminal Procedure Code,
1973, to set aside the judgment passed in Spl.C.C.No.47 of 2019 dated
14.08.2020, by the learned Sessions Judge, Special Court for Exclusive Trial
of Cases under the POCSO Act, 2012, Coimbatore.
For Appellant : Mr.W.Camyles Gandhi
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
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Crl.A.No.372 of 2020
JUDGMENT
(Order of the Court was made by SUNDER MOHAN,J.) This Criminal Appeal has been filed by the sole accused, challenging the conviction and sentence imposed upon him, vide judgment dated 14.08.2020 in Spl.C.C.No.47 of 2019, on the file of the learned Sessions Judge, Special Court for Exclusive Trial of Cases under the POCSO Act, 2012, Coimbatore.
2.(i) The case of the prosecution is that the appellant was the cousin brother of the victim; that the victim had gone to the house of her aunt (the appellant's mother) on 03.05.2017 for a temple festival; that on 04.05.2017, the appellant threatened the victim and had committed forceful penetrative sexual intercourse on the victim girl (the victim was aged about 13 years at the time of the occurrence) and committed penetrative sexual assault; and that the appellant committed the penetrative sexual assault once again on 05.05.2017 for the second time; and that he had threatened the victim of dire consequences, if she revealed his involvement to any one.
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(ii) It is further the case of the prosecution that the victim did not reveal about the penetrative sexual assault to any one; that on 14.09.2017, she was taken to the hospital for stomach pain; that the doctor had examined the victim and stated that the victim was pregnant; that the victim was admitted to the hospital and on 18.09.2017, the foetus was aborted; that thereafter, on 19.09.2017, the victim had given a complaint against the appellant, which was registered by P.W.10/Inspector of Police, for the offence under Section 5 (l), 5(j) (ii), 5(n) r/w 6 of POCSO Act, 2012 and 506 (i) of IPC in Crime No.23 of 2017, the complaint was marked as Ex.P9 and the FIR was marked as Ex.P10.
(iii) P.W.10 commenced the investigation, went to the house, and prepared the Observation Mahazar [Ex.P11] and Rough Sketch [Ex.P12].
P.W.11/Inspector of Police thereafter took up the investigation and took steps to record the statement under Section 164 of the Criminal Procedure Code of the victim. She took steps to send the foetus for examination to the Forensic Science Laboratory, Chennai, for a DNA test. P.W.12/Inspector of Police thereafter took up the investigation, examined other witnesses, and 3 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 filed the Final Report on 30.11.2018, against the appellant for the offences under Sections 5(l)(m)(n) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO Act, 2012'] and 506(i) of the IPC before the learned Sessions Judge, Magalir Neethimandram [Mahila Court], Coimbatore, which was taken on file as Special C.C.No.47 of 2019.
(iv) On the appearance of the appellant, the provisions of Section 207 Cr.P.C., were complied with, and the trial Court framed charges against the appellant, and when questioned, the appellant pleaded 'not guilty'.
(v) To prove the case, the prosecution examined 13 witnesses as P.W.1 to P.W.13 and marked 18 exhibits as Exs.P1 to P18. When the appellant was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The appellant did not examine any witnesses or mark any documents.
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(vi) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established its case beyond reasonable doubt and held the appellant guilty of the offence under Sections 5(l), 5(n), 5(j), and (ii) r/w 6 of the POCSO Act, 2012, and acquitted the appellant for the offence under Section 506(i) of the IPC. The appellant was sentenced as follows:
Offence under Sentence imposed 5(l), 5(n), 5(j) (ii) r/w To undergo imprisonment for life and to pay a fine of Rs.2,000/- 6 of the POCSO Act , in default to undergo RI for one year. Hence, the accused has preferred the appeal challenging the said conviction and sentence.
3. Heard, Mr.W.Camyles Gandhi, learned counsel appearing for the appellant, and Mr.E.Raj Thilak, learned Additional Public Prosecutor appearing for the respondent/State.
4. The learned counsel for the appellant submitted that though all the witnesses turned hostile, the trial Court had convicted the appellant on the basis of the DNA report, which is unsustainable and relied upon the judgment of this Court in Chandra Mohan v. The State, rep. by its 5 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 Inspector of Police, reported in MANU/TN/7260/2023. He therefore prayed for acquittal of the appellant.
5. The learned Additional Public Prosecutor per contra submitted that though the witnesses have turned hostile, there is no infirmity in relying upon the DNA report and submitted that the judgment of this Court in Chandra Mohan's case [cited supra] is distinguishable on facts. He further submitted that the trial Court, was right in convicting the appellant and there is no reason to set aside the finding of guilt rendered by the trial Court.
Hence, he prayed for dismissal of the appeal.
6. We have carefully considered the rival submissions and have perused all the relevant records.
7. P.W.1 is the mother of the victim who turned hostile. P.W.2 is the victim who turned hostile. P.W.3 is the doctor who examined the appellant and issued his potency certificate [Ex.P6]. P.W.4 is the brother of P.W.1 and turned hostile. P.W.5 is the sister of P.W.1 and has turned hostile.
6https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 P.W.6 is the grandfather of the victim and has turned hostile. P.W.7 is the head mistress, who issued the transfer certificate [Ex.P8] for the victim.
P.W.8 and P.W.9 are the constables who took the appellant for a potency test and DNA examination from the prison to the hospital. P.W.10 is the inspector who registered the FIR and commenced the investigation. P.W.11 and P.W.12 are the investigating officers, and P.W.12 has filed the final report. P.W.13 is a doctor who made entries in the accident register [Ex.P17] when the victim was admitted to the hospital.
8. We also find that the victim gave 164 statement of Cr.P.C.
The victim, however, disowned her allegations in the complaint and stated that the police did not inquire her. In light of her evidence, which does not implicate the appellant, and in view of the fact that all the witnesses except the official witnesses have turned hostile, we are of the view that it would not be possible to render a finding of guilt against the appellant though there is a DNA report against the appellant. We find that in the DNA report [Ex.P16]. It is stated as follows:
“ DNA was extracted from the above item and amplified for amelogenin i.e. sex locus and also for 15 STR loci using PCR 7 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 amplified STR technique after taking due care for the integrity of the sample.
The DNA profile of the above item, the comprehensive analysis of the test results of the above item with that of the alleged accused, Mr.Indiran and the biological mother Ms.Lakshmi Priya and the interpretations thereof are given in this office report cited in ref 2.
The unexpended portion of the above item has been labelled as, “DNA/294/2017” for identification.”
9. Now, the question is, in the absence of any other evidence, whether this Court can render a finding of guilt only on the basis of the DNA report.
In a similar case, the Division Bench of this Court in Chandra Mohan's case [cited supra] to which one of us was a party, had held as follows:
“8. Now the question is that in the absence of any other evidence can it be held that the appellant committed the offences alleged against the victim on the basis of the opinion evidence of the expert. The question as to the accuracy of the results by comparison of the DNA profile had come up for consideration in several cases before the Hon’ble Supreme Court. In a recent Judgment in Manoj Vs. State of Madhya Pradesh, reported in (2023) 2 SCC 353. The Hon’ble Supreme Court held as follows:
''151. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata [DNA Profiling in Justice Delivery System, Central Forensic 8 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 Science Laboratory, Directorate of Forensic Science, Kolkata (2007).] was relied upon. The relevant extracts of the article are reproduced below:
“Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with intercalated proteins. Twenty-three pairs of chromosomes present in each nucleated cells and an individual inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All information about internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases : Adenine (A), Guanine (G), Thymine (T) and Cytosine (C) along with sugar phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA) found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures.
Only 0.1 % of DNA (about 3 million bases) differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.
*** DNA Profiling Methodology DNA profile is generated from the body fluids, stains, 9 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA profiling is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed genetic markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA profile unique to an individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y-STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomized” male. Cases in which DNA had undergone environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.
DNA profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available in the laboratory. The analysis principles, however, remain similar, which include:
1. isolation, purification & quantitation of DNA
2. amplification of selected genetic markers
3. visualising the fragments and genotyping
4. statistical analysis & interpretation.
In mtDNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:
Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:
(1) Match : If the DNA profiles obtained from the two 10 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 samples are indistinguishable, they are said to have matched.
(2) Exclusion : If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.
(3) Inconclusive : The data does not support a conclusion of the three possible outcomes, only the “match” between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.
In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken into consideration while reporting a match. Paternity or Maternity indices and likelihood ratios are calculated further to support the match.
Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, it will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving. DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed and sent for DNA profiling.”(emphasis supplied).
152. In an earlier judgment, Rv.Dohoney & Adams the UK Court of Appeal laid down the following guidelines 11 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 concerning the procedure for introducing DNA evidence in trials : (1) the scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.
153. The Law Commission of India in its Report [185th Report, on Review of the Indian Evidence Act, 2003.], observed as follows:
“DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not “match”, then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA “profile” or “fingerprint” is found. It may be, for example, that the relevant profile is found in 1 person in every 1,00,000 : This is described as the “random occurrence ratio” (Phipson 1999, 15th Edn., Para 14.32).
Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law.” (emphasis in original)
154. In Dharam Deo Yadav v. State of U.P. [Dharam Deo Yadav v. State of U.P., (2014) 5 SCC 509 : (2014) 2 12 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 SCC (Cri) 626] this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows : (SCC pp. 528-29, para 36) “36. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made up of a double stranded structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. … DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory.”
155. The US Supreme Court in District Attorney's Office for the Third Judicial District v. Osborne [District Attorney's Office for the Third Judicial District v. Osborne, 2009 SCC OnLine US SC 73 : 557 US 52 (2009)] dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that : (SCC OnLine US SC) “Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in 13 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. … DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.”
156. Several decisions of this Court — Pantangi Balarama Venkata Ganesh v. State of A.P. [Pantangi Balarama Venkata Ganesh v. State of A.P., (2009) 14 SCC 607 : (2010) 2 SCC (Cri) 190], Santosh Kumar Singh v.State [Santosh Kumar Singh v.State, (2010) 9 SCC 747 :
(2010) 3 SCC (Cri) 1469], State of T.N. v. John David [State of T.N. v. John David, (2011) 5 SCC 509 : (2011) 2 SCC (Cri) 647], Krishan Kumar Malik v.State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61], Surendra Koli v. State of U.P. [Surendra Koli v. State of U.P., (2011) 4 SCC 80 : (2011) 2 SCC (Cri) 92] , Sandeep v. State of U.P.[Sandeep v.State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18] , Rajkumar v. State of M.P. [Rajkumar v. State of M.P., (2014) 5 SCC 353 : (2014) 2 SCC (Cri) 570] and Mukesh v.
State (NCT of Delhi) [Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] have dealt with the increasing importance of DNA evidence. This Court has also emphasised the need for assuring quality control, about the samples, as well as the technique for testing 14 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 in Anil v. State of Maharashtra [Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266] :
(Anil case [Anil v. State of Maharashtra, (2014) 4 SCC 69 :
(2014) 2 SCC (Cri) 266] , SCC p. 81, para 18) “18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms.
DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory.”
157. This Court, in one of its recent decisions, Pattu Rajan v. State of T.N. [Pattu Rajan v. State of T.N., (2019) 4 SCC 771 : (2019) 2 SCC (Cri) 354], considered the value and weight to be attached to a DNA report : (SCC p. 791, para 52) “52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.” 15 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020
158. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance, was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case.'' In the above judgment there is a reference to the article published by the Central Forensic Science Laboratory, Calcutta, which states that if DNA evidence is not properly documented, collected, packaged, and preserved, it would not meet the legal and scientific requirements for admissibility in a Court of law. The report also states that DNA evidence can be contaminated when DNA from another source gets mixed with the DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his or her mouth, nose, or other parts of the face and then touches an area that may contain the DNA to be tested. Therefore, it is evident that DNA testing can be a powerful technique in investigations and criminal trials. However, care has to be taken to ensure that the samples collected are properly documented, packaged, and preserved, which is not so in this case.
9.Therefore, it is seen that DNA testing can be a powerful technique in investigations and criminal trials. However, care has to be taken to ensure that the samples collected are properly documented, packaged, and preserved.”
10. From the above judgment, where this Court had extracted the 16 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 judgment of the Hon'ble Supreme Court, it would be clear that the DNA report can be relied upon for the purpose of 'corroboration'. Further, it has to be clearly established that the samples collected for comparison were properly documented, packed and preserved.
11. In the instant case, there is absolutely no evidence let in by the prosecution as to when the blood sample of the accused was taken and the blood sample of the victim's child was collected. Further, there is absolutely no evidence to establish as to how it was packed and preserved. Even assuming that blood samples were taken from the accused, the 'chain of custody' of the sample has not been established. In the absence of the same, the report based on the comparison of such a sample, would be of no value.
Further, we also find that the Forensic Science Experts have also not been examined and the DNA report was marked through P.W.12, the Investigating Officer.
12. In a similar case, where there was no evidence of blood sample being taken from the accused and in the absence of establishing the chain of custody, to ensure that the blood samples were collected from the person 17 https://www.mhc.tn.gov.in/judis Crl.A.No.372 of 2020 concerned, packed and preserved properly, the Hon'ble Supreme Court in Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra, in Crl.A.Nos.1636-1637 of 2023 dated 19.04.2023, held that the DNA report cannot be relied upon in such circumstances. The judgment laid stress on the importance of establishing the chain of custody of the sample. The relevant observations are as follows:
“62. The document also lays emphasis on the ‘chain of custody’ being maintained. Chain of custody implies that right from the time of taking of the sample, to the time its role in the investigation and processes subsequent, is complete, each person handling said piece of evidence must duly be acknowledged in the documentation, so as to ensure that the integrity is uncompromised. It is recommended that a document be duly maintained cataloguing the custody. A chain of custody document in other words is a document, “which should include name or initials of the individual collecting the evidence, each person or entity subsequently having custody of it, dated the items were collected or transferred, agency and case number, victim’s or suspect’s name and the brief description of the item.””
13. Therefore, in the absence of any other evidence, we cannot sustain the conviction on the basis of the DNA test reports alone, especially in view of the infirmities that we have pointed out as regards the collection, packing and preservation of the blood samples.
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14. For all the aforesaid reasons, we are of the view that the prosecution has not proved the case against the appellant beyond reasonable doubt, and therefore, the judgment of conviction and sentence passed in Spl.C.C.No.47 of 2019, dated 14.08.2020 on the file of the learned Sessions Judge, Special Court for Exclusive Trial of Cases under the POCSO Act, 2012, Coimbatore, is liable to be set aside.
15. As a result, this Criminal Appeal is allowed, and the appellant is acquitted of all the charges. The conviction and sentence passed in Spl.C.C.No.47 of 2019, dated 14.08.2020 on the file of the learned Sessions Judge, Special Court for Exclusive Trial of Cases under the POCSO Act, 2012, Coimbatore, are set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged.
(M.S.R.,J.) (S.M.,J.)
03.07.2024
Index : yes/no
Speaking /Non-speaking order
Neutral citation : yes/no
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dk
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Crl.A.No.372 of 2020
M.S.RAMESH,J.
AND
SUNDER MOHAN,J.
dk
To
1. The Sessions Judge,
(Under POCSO Act, 2012)
Coimbatore, Coimbatore District.
2.The Inspector of Police,
Thudiyulur Police Station,
Coimbatore District.
3. The Superintendent,
Central Prison, Coimbatore.
4. The Public Prosecutor,
High Court, Madras.
Crl.A.No.372 of 2020
03.07.2024
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