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
---
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
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Penal Code and sentenced to undergo rigorous
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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
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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
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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
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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.
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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
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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
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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
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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
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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 &
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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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Criminal Appeal No.716 of 2016
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Criminal Appeal No.716 of 2016
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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.
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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
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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
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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
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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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