SARATH KUMAR Vs. THE INSPECTOR OF POLICE

JUDGEMENT

(1.) This Criminal Appeal had filed under Sec. 374(2) of the Code of Criminal Procedure against the judgment dtd. 31/5/2017 passed in Special C. C. No.50 of 2015, on the file of the learned Sessions Judge, Fast Track Mahila Court, Namakkal.

(2.) The brief facts, which are necessary for the disposal of this Criminal Appeal, are as follows:-

(3.) It is the contention of the learned Counsel for the Appellant that the learned Sessions Judge, Fast Track Mahila Court, Namakkal, failed to consider the fact that the FIR was belated. If the alleged occurrence had taken place, the victim and her relatives would have approached the Police immediately on such occurrence. Here the FIR was belated. Therefore, it raises a suspicion. It is the defence of the Accused that there were monetary transactions between the Accused and the family of the victim. The parents of the Accused is alleged to have sought repayment of the loan availed by the elder brother of the victim, therefore, to wreak vengeance on the Accused, a case was foisted. Also, it is the contention of the learned Counsel for the Appellant that the person who had registered the FIR shall not proceed with the investigation as always the person who registered the FIR has an intention to lay final report against the Accused. Therefore, they collect evidence accordingly. Here the FIR under Ex.P-11 was registered by P.W-13 Inspector of Police, All Women Police Station, Rasipuram. Also, the Complainant P.W-1 had in the course of cross- examination, admitted that he had given a complaint before the Vennanthur Police Station. Therefore, the earlier complaint was suppressed and the latter complaint was produced before the Court. P.W-8 the Doctor, who had examined the Victim, had stated that the hymen happens to tear due to sports activities to the child of similar age. Therefore, merely the hymen was not intact, it cannot be treated as the victim was subjected to sexual intercourse. Also, the Investigation Officer had not examined the father of the victim who is also staying in a hut adjoining the hut where the elder brother of the victim was staying. He was not at all examined. Nearby hut dwellers who are all daily wage labourers working in the bricklin, were not examined. The victim/P.W-2 had given statement to the learned Judicial Magistrate, based on the tutoring of her elder brother/P.W-1. The learned Sessions Judge, Fast Track Mahila Court, failed to consider those aspects. The investigation itself was shoddy as is available in the cross-examination of P.W-13 Investigation Officer, All Women Police Station, Rasipuram.. Based on a shoddy investigation, a final report was laid before the Court. Based on the final report, the evidence adduced by the prosecution witness. Based on the deposition of the victim and her elder brother, and sister in law, the learned Sessions Judge, Fast Track Mahila Court, Namakkal, had convicted the Accused imposing sentence of 10 years of rigorous imprisonment. The victim was a student in a college on the date of alleged occurrence. There is no other witness to the alleged occurrence, except the elder brother and sister in law of the victim. The victim herself had stated in her deposition that she had requested her brother not to give a Police complaint. That gives an impression that it was a false case. Still, the learned Sessions Judge, Fast Track Mahila Court, Namakkal, convicted the Accused based on the presumption available under Sec. 29 of the Protection of Children from Sexual Offences Act, 2012, which had resulted in a grave injustice to the Accused, who is a college student aged about 23 years, was convicted and sentenced to undergo rigorous imprisonment for 10 years affecting his future prospects of getting job at the prime of his age. The learned Sessions Judge, Fast Track Mahila Court, Namakkal, failed to consider the circumstances available in the case of the prosecution and the loopholes in the case and convicted him only based on the surmises and conjunctures which had resulted in grave injustice to the young man aged 23 years. Therefore, the judgment of conviction imposed on the Accused/Appellant is to be set aside.