ALAGU Vs. STATE

JUDGEMENT

(1.) The appellant is the sole accused in S.C. No. 468 of 2005 on the file of the learned Additional Sessions cum Mahila Court, Madurai. He stood charged for the offences under Sections 363, 366-A and 376 of IPC. The trial Court convicted him under Sections 366 and 376 of IPC and sentenced him to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 366 IPC and to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 376 of IPC. The trial Court has also found him guilty under Section 363 IPC and accordingly convicted him. The trial Court did not impose separate sentence for the said offence. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. The case of the prosecution in brief is as follows;

(2.) In this appeal, the learned counsel for the appellant would submit that from the uncorroborated testimony of PW 3, it is clear that at the time of occurrence, she voluntarily went along with the accused. The learned counsel would further submit that she did not raise any alarm and she did not raise any protest, when she went along with the accused. He would further point out that it is in evidence of PW 3 that she was a consenting party for going with the accused as well as to have sexual intercourse with him. He would further submit that at the time of occurrence, according to Radiology report, PW 3 had completed 18 years of age and not completed 21 years of age. The learned counsel, therefore, submitted that at the time of occurrence, PW 3 was fully competent to give full consent for sexual intercourse and therefore, the offences said to have been committed by the accused are not made out.

(3.) The learned counsel appearing for the appellant would further submit that though it is admitted by PW 3 that there is a birth certificate for her, the same has not been produced. The learned counsel would further point out that the suppression of the said document would give adverse inference to the accused under Section 118 of the Indian Evidence Act. The learned counsel would further submit that according to PW 1, immediately after two days of the occurrence, the complaint was made, but the same has been suppressed. The present complaint is dated only 17.03.2004. The learned counsel would further submit that the suppression of the earliest information creates lot of doubts in the case of the prosecution. He would also point out that the woman in whose company PW 3 was kept at Peravoorani has not been examined. For these reasons, according to the learned counsel, the accused is entitled for acquittal as there are lot of doubts in the case of the prosecution.