Madras High Court
Alagusundaram vs State Represented By on 9 January, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Criminal Appeal No.716 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2025
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No. 716 of 2016
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Alagusundaram .. Appellant
Versus
State Represented by
The Inspector of Police,
Dharmapuri Police Station,
Dharmapuri Taluk & District.
(Crime No. 443 of 2010) .. Respondent
Criminal Appeal filed under Section 374 (2) of Criminal Procedure
Code seeking to set aside the judgment dated 09.09.2016 made in S.C. No. 69
of 2015 on the file of the learned Sessions Judge, Fast Track Court,
Dharmapuri.
For Appellant : Mr. R. Dhanasekar
for Mr. R. Thamarai Selvan
For Respondent : Mrs. G. V. Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal had been filed to set aside the judgment dated 09.09.2016 made in S.C. No. 69 of 2015 on the file of the learned Sessions Judge, Fast Track Court, Dharmapuri, convicting the Appellant herein (A-1) under Section 363 of the Indian https://www.mhc.tn.gov.in/judis Penal Code and sentenced to undergo rigorous ( Uploaded on: 28/03/2025 09:19:16 pm ) 1/18 Criminal Appeal No.716 of 2016 imprisonment for a period of two years with fine of Rs.5,000/-, in default, to undergo 3 months Rigorous Imprisonment.
2. The case of the Prosecution, as culled out from the complaint given by P.W-1 is as follows:-
2.1. The Complainant (P.W-1) in his complaint had stated that his daughter/victim (P.W-2) was studying +2 in Avvaiyar Government Higher Secondary School at Dharmapuri Town during the academic year 2009-2010.
The first Accused was transporting children from the neighbourhood to the Avaiyar Government Higher Secondary School at Dharmapuri Town and the Complainant also engaged the first Accused to drop his daughter in School. In the course of such transport and interaction, friendship developed between the victim and the first Accused and it was later developed as a relationship of love. The father of the victim, on coming to know about the fact, warned the first Accused and advised his daughter/victim not to have any relationship with the first Accused. From then onwards, the father of the victim (P.W-1) used to drop his daughter at the School in the morning and pick her from the School in the evening. While so, on 17.03.2010 the Complainant's daughter appeared for her Higher Secondary School examination and the Complainant/ father of the victim dropped her at the School in the morning by 8.45 a.m, and https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 2/18 Criminal Appeal No.716 of 2016 by afternoon at 12.45 p.m, he was waiting at the entrance of the School. But, till 1.45 p.m, his daughter did not come out. As the father of the victim could not find his daughter, he went inside the School and enquired with the Teachers and they told him that no students are available inside the School and all the student left. From the interaction with the Teachers, the Complainant (P.W-1) suspected that since the examination was very tough, fearing to face her father, she might have left the School through some other route and gone to her friends' house or relatives' house, he went in search of P.W-1. After unsuccessful attempts to know the whereabouts of P.W-1, he lodged the complaint under Ex.P-1 with the Dharmapuri Town Police Station.
2.2. On receipt of the complaint, the Sub Inspector of Police (P.W-8), Dharmapuri Town Police Station registered the case in Crime No. 443 of 2010 for the offence under Sections 366-A and 506(i) of IPC. He had sent the original complaint and the original FIR to the Court of the learned Judicial Magistrate, Dharmapuri and copies of the same to his higher officials. On receipt of the FIR under Ex.P-13, P.W-9-Thiru. Sampath Kumar, the Investigation Officer proceeded with the investigation and visited the place of occurrence viz., Avvaiyar Government Higher Secondary School at Dharmapuri Town and prepared a rough sketch under Ex.P-14 and observation mahazar under Ex.P-2 in the presence of P.W-3 Thiru.Sekar and P.W-4 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 3/18 Criminal Appeal No.716 of 2016 Thiru.Paramasivam. Also he enquired with the parents of the victim viz., P.W- 1 and PW-2. On proceeding with the investigation, he came to know that the Accused-1 had taken the victim (P.W-2) forcibly to the house of the second Accused/Subramani at Kadakathur village where he was residing. Therefore, the Investigation Officer went to that place and arrested the Accused and secured the victim. Also he arrested the house owner Subramani/Accused-2 and another Accused No.3/Jeganayagam who assisted and accommodated the first Accused and the victim girl. He had arrested them in the presence of P.W-7 Village Administrative Officer. In the presence of Village Administrate Officer (P.W-7) the Accused 1 to 3 are alleged to have given a statement based on which the autorikshaw used by the first Accused to kidnap the victim (P.W-
2) was seized by the Investigation Officer (P.W-9).
2.3. After the arrest of the Accused and recording of statement of Accused 1 to 3, he produced the Accused-1 and the victim (P.W-2) before the learned Judicial Magistrate, Dharmapuri with a request to send them to the duty Doctor at Government Medical College Hospital, Dharmapuri for medical examination on the victim (P.W-2) and the Accused No.1. Accordingly, the learned Judicial Magistrate addressed a letter under Ex.P-8 to the duty Doctor at Government Medical College Hospital, Dharmapuri to conduct medical examination regarding potency of the Accused. P.W-6 Dr. Nanthakumar https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 4/18 Criminal Appeal No.716 of 2016 examined the Accused No.1 and issued medical certificate under Ex.P-10 to the Accused stating that he is potent to perform sexual intercourse. The learned Judicial Magistrate had also addressed a letter under Ex.P-3 to the duty Doctor at Government Medical College Hospital, Dharmapuri to conduct medical examination on the victim and also to determine her age. Accordingly, Dr. Saritha (P.W-5) examined the victim and issued Ex.P-4 to Ex.P-6. Ex.P-4 is the copy of Accident Register regarding the victim. Ex.P-5 is the medical certificate of the victim. Ex.P-6 is the Radiological Report regarding the age of the victim issued by P.W-5. Ex.P-7 is the report based on the forensic examination of the vaginal swap collected by P.W-5. Ex.P-8 is the letter addressed by the learned Judicial Magistrate to the Dean, Government Medical College Hospital, Dharmapuri, for conduct of medical examination on the Accused regarding potency. Ex.P-9 is the requisition letter addressed by the learned Judicial Magistrate No.I, Dharmapuri to the Director of Forensic Science Laboratory. Ex.P-10 is the medical certificate of the Accused. Ex.P-11 is the signature of P.W-7 Village Administrate Officer found in the confession statement of first Accused. Ex.P-12 is the seizure mahazar. Ex.P-13 is the First Information Report. Ex.P-14 is the rough sketch and Ex.P-15 is the alteration report. P.W-9 Investigation Officer examined P.W-5 Dr.Saritha and P.W-6 Dr.Nanthakumar and recorded their statement. https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 5/18 Criminal Appeal No.716 of 2016 He had also recorded the statement of the mahazar witnesses (P.W-3 and P.W-
4), the Sub Inspector of Police (P.W-8) and the Village Administrate Officer (P.W-7). On completion of the investigation, he laid final report under Section 209 (a) of Criminal Procedure Code before the Court of the learned Judicial Magistrate No.I, Dharmapuri against the Accused for the offence under Section 363, 366 (A), 366 (A) r/w. 109 IPC, 376 and 376 r/w 109 IPC.
2.4. The learned Judicial Magistrate No.I, Dharmapuri taken cognizance of the final report and numbered it as P.R.C. No. 2 of 2015 and issued summons to the Accused. The Accused 1 to 3 appeared before the learned Judicial Magistrate-I, Dharmapuri. On their appearance, copies were served on them under Section 207 of Cr.P.C and the Accused were questioned regarding their financial resources to engage a Counsel. Since they answered that they have resources, the case was committed to the Court of the learned Principal District and Sessions Judge, Dharmapuri and the Accused were bound over to the Court of the learned Principal District and Sessions Judge, Dharmapuri.
2.5. On receipt of the records in P.R.C.No. 2 of 2015, the learned Principal District and Sessions Judge, Dharmapuri taken the case in P.R.C.No. 2 of 2015 on file and numbered it as S.C. No. 69 of 2015. Since the offence involving kidnap of a minor girl and rape of a minor girl are involved, the case https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 6/18 Criminal Appeal No.716 of 2016 was made over by the learned Principal District and Sessions Judge, Dharmapuri to the Court of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri.
2.6. On receipt of records in S.C. No. 69 of 2015 from the Court of the learned Principal District and Sessions Judge, Dharmapuri, the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, on appearance of the Accused and after hearing the learned Additional Public Prosecutor and the defence, had framed the charges under Sections 363, 366(A), 366(A) r/w. 109 IPC and 376 and 376 r/w 109 of IPC. As per the final report laid by the Investigation Officer, there are three Accused in this case and the other two Accused assisted the first Accused in kidnapping of the minor girl from the legal custody of the guardian. Therefore, the learned Sessions Judge had framed charges as follows:
Number of Charges Charges framed
Charge 1 363 IPC – Against A1 to A3
Charge 2 366(A) IPC – Against A1
Charge 3 366(A) r/w. 109 IPC Against A2 and A3
Charge 4 376 IPC Against A1
Charge 5 376 r/w 109 IPC – Against A2
2.7. Since the Accused-1 to Accused-3 denied the charges, the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, ordered Trial. During Trial, the Prosecution had examined witnesses P.W-1 to P.W-9 and marked https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 7/18 Criminal Appeal No.716 of 2016 documents Ex.P-1 to Ex.P-15. After closing of the Prosecution evidence, Accused-1 to Accused-3 were examined under Section 313 of the Cr.P.C, regarding the incriminating evidence against them. The Accused-1 to Accused-3 denied the incriminating evidence against them. After examination of the Accused-1 to Accused-3 under Section 313 of Cr.P.C. the arguments of the Prosecution and the defence were heard.
2.8. On appreciation of the evidence, the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, by judgment dated 09.09.2016 in S.C. No. 69 of 2015, acquitted the Accused-1 from the charges under Sections 366(A) and 376, acquitted the Accused-2 from the charges under Sections 363, 366(A) r/w 109 IPC and 376 r/w 109 of IPC and acquitted the Accused-3 from the charges under Sections 363, 366(A) r/w 109 of IPC. However, the first Accused alone was convicted for the offence under Section 363 of IPC and sentenceed to Rigorous Imprisonment of two years with fine of Rs.5,000/-, in default, to undergo three months Simple Imprisonment was imposed.
2.9. Aggrieved by the judgment of conviction passed by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, in S.C.No.69 of 2015 dated 09.09.2016, the first Accused has filed this appeal.
3. The learned Counsel for the Appellant submitted that the learned https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 8/18 Criminal Appeal No.716 of 2016 Sessions Judge, Fast Track Mahila Court, Dharmapuri, failed to consider the evidence available before the Trial Court. As per the complaint, the Complainant had stated that his daughter is a minor. In the Trial, the Prosecution failed to file documents to prove the age of the victim. He further submitted that on the date of the alleged occurrence, she was not a minor as she had already completed the age of 18 years and except the medical evidence, there is no document before the Trial Court to prove the age of the victim.
4. The learned Counsel for the Appellant invited the attention of this Court to the evidence of P.W-1 and P.W-2 and the evidence of Doctor (P.W-
6). From the evidence of victim (P.W-2), it can be seen that she had voluntarily accompanied the first Accused on the alleged date of occurrence. It was on the last day of the + 2 examination she accompanied the Appellant. The School had only one gate. The Complainant (P.W-1) was waiting in front of the School for his daughter. As per the evidence of the victim (P.W.2), she herself had accompanied the first Accused through the back side of the School, i.e., the space available on the back side of the School. They had gone to the place of Annchetty and after three days, they were secured. The Prosecution failed to prove the age of the victim, which goes to the root of the case https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 9/18 Criminal Appeal No.716 of 2016 projected against the Accused. Therefore, the conviction for the offence under Section 363 is to be set aside. In support of his contention, learned Counsel for the Appellant/Accused No.1 relied on the reported ruling of this Hon'ble High Court in the case of Suramani and others Vs. State reported in 2011 (3) MWN (Cr.) 27., wherein it is held as under:
“AGE - Proof of - Opinion given by Doctor/PW.10 on basis of physical appearance of victim girl and not on basis of medical examination not a conclusive proof of age - Opinion of Radiologist/PW12 on basis of radiological examination that victim girl was aged between 17 and 18 years - PW12, from X-rays taken,opined that there was no fusion of Iliac Crust and she was between 17 and 18 years - Nothing on record to disbelieve evidence of PW12 -Evidence of Radiologist/PW12.” “AGE - Date of Birth - Proof - School Certificate issued by Headmaster of School/PW7 on basis of School records - If, sufficient proof - PW7 during cross-examination admitted that at time of admission of child in School he did not work in School and knows nothing about entry made in School records - Headmaster,who made entry, not examined - Oral evidence of PW7, subsequent Headmaster, therefore, of no use in any manner to prove date of birth in School records as correct date of birth - Of course, under Section 35 entry in public/official records made by a public servant in discharge of official duty is relevant and admissible - However, no presumption provided that such entry represents correct facts
- Section 114(2) states that Court may presume that judicial/official acts have been regularly performed - This presumption can be raised to a limited extent to presume that entry made genuinely by officer in discharge of his official duty - It cannot be presumed that information furnished to officer was correct information - Simple because in School Certificate, PW7 stating date of birth as 15.3.1987, will not either give rise to presumption or conclusively prove that date of birth was 15.3.1987- Evidence Act, 1872, Sections 35 & https://www.mhc.tn.gov.in/judis 114(e).” ( Uploaded on: 28/03/2025 09:19:16 pm ) 10/18 Criminal Appeal No.716 of 2016
5. By placing reliance on the aforesaid decision, the learned Counsel for the Appellant/Accused No.1 seeks to set aside the judgment of conviction recorded against first Accused by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, in S.C.No. 69 of 2015, dated 09.09.2016.
6. On the other hand, the learned Additional Public Prosecutor submits that through the evidence of the Doctor (P.W-5) under Ex.P-4 to Ex.P- 6, the physical and radiological examination, the age of the victim was given as 16 to 18 years. Therefore, on the date of the alleged occurrence, the victim was not a major and she was a minor girl. Further, the learned Additional Public Prosecutor invited the attention of this Court to the discussion regarding the defence made by the Accused about the age of the victim. The learned Trial Judge, rejected the defence of the Accused and arrived at a proper conclusion based on the materials available before the Trial Court. The learned Additional Public Prosecutor relied on the judgment of the learned Trial Judge, particularly, the discussion regarding the defence of the Accused in para Nos.19 to 31 which reads as under :
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7. According to the learned Additional Public Prosecutor, such an observation made by the trial court is proper and based on the material evidence and therefore, she seeks to dismiss this Criminal Appeal as it has no merits and to confirm the judgment of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri.
8. Heard the learned Counsel for the Appellant Mr. R. Dhanasekar for Mr.R.Thamarai Selvan and the learned Additional Public Prosecutor appearing for the State Mrs. G. V. Kasthuri.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 13/18 Criminal Appeal No.716 of 2016
9. The point that arises for consideration in this Appeal is whether the judgment of conviction recorded by the the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, against the Appellant/1 st Accused in S.C.No. 69 of 2015, dated 09.09.2016, is to be set aside as perverse?
10. This Court perused the evidence of the Prosecution Witnesses P.W-1 to P.W-9, the documents under Ex.P-1 to Ex.P-15 and also the judgment of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, in S. C. No. 69 of 2015, dated 09.09.2016.
11. On perusal of the evidence of the victim (P.W-2) it is found that on the date of alleged occurrence she was aged 17 years and 9 months. The Birth Certificate of the victim was not marked to prove her age. The proof regarding the age of the minor is not produced through the Headmaster of the School. Ex.P-6 is the Radiological Report. As per the Radiological Report, the victim is aged between 16 and 18. In the absence of School Certificate regarding the proof of age, the Court has to draw adverse inference that there was suppression regarding the age of the victim by the Prosecution. As per the Prosecution case, on the last day of the Higher Secondary School examination, the victim was alleged to have been kidnapped by the first Accused with the https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 14/18 Criminal Appeal No.716 of 2016 help of his two friends – Accused-2 and Accused-3 who were later acquitted by the trial Court. The evidence of the victim (P.W-2) that she was taken by the Accused through the space available in the damaged portion of the compound wall in the back side of the School along with his friends, gives a presumption that the victim had accompanied them voluntarily. She was aware that her father was waiting in front of the School which is the only entrance and exit for the School but she had left through the damaged portion in the back side compound wall. That is the evidence available through the victim (P.W-2). Under those circumstances, the suggestion of the defence that she had accompanied the Accused on her own volition and she had given a false complaint on the influence of her father is noteworthy. Even though she had denied the suggestion that she had completed the age of 18 on the alleged date of disappearance/kidnap i.e., 17.03.2010 which is the last date of examination, she had already completed the age of 18. That is why, the School Certificate was not at all marked by the Prosecution. From the records available, it is found that the School Certificate was not marked as document to prove the age of the victim (P.W-2) and no explanation has been offered by the Prosecution. The Prosecution relied on Radiological Report under Ex.P-6, which cannot be a substitute to the School Certificate. It is not the case of the Prosecution that the victim is illiterate. The victim is studying in the School https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 15/18 Criminal Appeal No.716 of 2016 and after completing her last Higher Secondary Examination, she, on her own volition, accompanied the Accused 1 to 3. Therefore, there is a presumption that the age of the victim might be plus or minus two years than the one indicated in Ex.P-6 Radiology Report and if that is considered, the victim will be aged between 16 to 18 on the lower side and between 18 and 20 on the higher side.
12. It is seen from the records that the victim had admitted in her cross-examination that if the School Certificate had been marked, the real age would be known to the Court. That was the reason why, the original School Certificate or Birth Certificate was not marked by the Prosecution. Under those circumstances, the age of the victim on the date of alleged occurrence was 17 years and 9 months as per the examination of the victim (P.W-2) which cannot be accepted. Under those circumstances, an adverse inference had to be drawn by this Court against the case projected by the Prosecution. This Court holds that there was material suppression by the Prosecution regarding the proof of age of the victim (P.W-2). Under those circumstances, the evidence of the victim (P.W-2) indicates that she had wantonly and voluntarily accompanied the Accused-1 to Accused-3 on the alleged date of occurrence i.e., 17.03.2010. Therefore, the conviction of the Accused-1 for the offence https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) 16/18 Criminal Appeal No.716 of 2016 under Section 363 of IPC imposed by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri cannot be sustained.
13. In the light of the above discussion, the point for discussion is answered in favour of the Appellant/Accused and against the Prosecution. The judgment of conviction recorded by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, against the Appellant/1 st Accused in S.C.No. 69 of 2015, dated 09.09.2016, is found perverse and the same is to be set aside.
In the result, this Criminal Appeal is allowed. The judgment of conviction recorded in S.C. No. 69 of 2015, dated 09.09.2016 by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, is set aside. The Appellant/Accused is acquitted from all the charges framed against him. The bail bond executed by him, if any, shall stands cancelled and the fine amount paid, if any, shall be refunded to him.
09-01-2025
drl/srm
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
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Criminal Appeal No.716 of 2016
SATHI KUMAR SUKUMARA KURUP, J
DRL/SRM
To
1.The Sessions Judge,
Fast Track Mahila Court,
Dharmapuri.
2.The Additional Public Prosecutor,
Madras High Court,
Chennai-600104.
3.The Inspector of Police,
Dharmapuri Police Station,
Dharmapuri Taluk & District.
4.The Section Officer, Judgment made in
Criminal Section, Criminal Appeal No.716 of 2016
High Court Madras
09-01-2025
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