T. EZHUMALAI Vs. STATE

JUDGEMENT

(1.) This Criminal Appeal is filed to set aside the Judgment dtd. 23/12/2016 made in Special Sessions Case No. 18 of 2015 by the learned Sessions Judge, Fast Track Mahila Court, Vellore. By the impugned judgment, the Appellant was convicted and sentenced as follows:-

(2.) The brief facts, which are necessary to decide this Criminal Appeal, are as follows:-

(3.) The learned Counsel for the Appellant submitted that P.W-1 is the mother of the victim, P.W-2 is the victim, P.W-3 is the sister of the victim, P.W-4 is the father of the victim and P.W-5 is the President of the Village Panchayat. According to the learned Counsel for the Appellant, there was previous enmity between the Accused and P.W-5, regarding mining operation in the village as the Accused questioned the same. Therefore, in order to wreck vengeance, P.W-5 had exaggerated the incident falsely to victimise the Appellant. P.W-6 Irudhayamary Woman Police Constable who had accompanied the Accused to the Hospital along with the requisition of the Investigation Officer to subject the Accused to medical examination in the Medical College Hospital at Vellore. P.W-7 Mr. Thanji is the paternal uncle of the victim. P.W-8 Mani had turned hostile. P.W-9 Murugan also turned hostile. P.W-8 and P.W-9 are mahazar witnesses. P.W-10 Mr. Ajithkumar also turned hostile. P.W-11 Tmt. Lakshmi, Woman Police Constable who had accompanied the victim as well as the mother of the victim to the Government Hospital at Adukkamparai to subject the victim to medical examination along with the requisition of the Investigation Officer. P.W-12 Mr. Ashok Kumar is the Assistant Director of Regional Forensic Laboratory, Vellore who had received the material objects viz., the petticoat of the victim (M.O-1) and the pant (M.O-2) and briefs (M.O-3) of the Accused along with Ex.P-4 requisition of the Investigation Officer through the Court for forensic examination regarding the presence of semen and blood. On examination, he issued the report under Ex.P-5. As per the report (Ex.P-5), the petticoat (M.O-1) contained stains of blood and did not contain semen. The pant and briefs of the Accused did not contain either blood or semen. P.W-13 Mr. Apli is the independent witness from the village who is alleged to have seen the Accused taking the minor child victim in his two wheeler on the date of occurrence but he turned hostile during trial. P.W-14 is Dr. Rathika, who was working as Medical Officer in the Vellore Government Medical College Hospital. P.W- 14 in her deposition stated that she had examined the minor girl aged 4 years and found that her hymen was in tact. The vaginal smear does not reveal any semen stains. On examination of the vagina of the victim, she experienced pain on touch of the vagina. Therefore, P.W-14 issued Ex.P-6 wherein it is stated that the child might have been subjected to sexual assault or might not have been sexually assaulted. P.W-15 Dr. Nagendrakumar is the Medical Officer of the Government Medical College Hospital, Vellore. He had subjected the Accused to medical examination and issued Ex.P-8 stating that the Accused is not impotent. P.W-16 Thiru. Velu is an independent witness who had turned hostile. P.W-17 Tmt. Amsa also turned hostile. P.W-18 Rani who is an Investigation Officer had deposed regarding the receipt of copy of FIR and the Investigation conducted by her. She had on receipt of copy of the FIR went to the scene of occurrence, prepared rough sketch and observation mahazar in the presence of the witnesses. She had arrested the Accused and subjected him to medical examination. After completion of the investigation she had laid the final report against the Accused for the offence under Ss. 363, 366 IPC and Sec. 6 r/w. 5(m) of the Protection of Children from Sexual Offences Act, 2012.