Rajappan, Male Aged 42 Years v. State Rep.By

Judgment Reserved on

16.08.2023 Judgment Pronounced on

21.12.2023 Coram : THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP Criminal Appeal No. 32 of 2017 Rajappan

.. Appellant Versus State rep by The Inspector of Police, All Women Police Station, Krishnagiri, Krishnagiri District.

.. Respondent Criminal Appeal filed under Section 374 (2) Cr.P.C against the judgment and conviction dated 16.02.2016 in S.C. No.143 of 2014 passed by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri. For Appellant .. Mr. R. John Sathyan, Senior Counsel for Mr. T. Panchatcharam For Respondent .. Mrs. G.V. Kasthuri Additional Public Prosecutor JUDGMENT The Appellant, who is the sole Accused in S.C. No.143 of 2014 on the file of the learned Sessions Judge, Fast Track Court, Krishnagiri, has preferred the instant Criminal Appeal aggrieved by the judgment dated

16.02.2016 passed in the above Sessions Case. In and by the said judgment, the Appellant was convicted for the offence punishable under Section 5 (1) read with 6 of the Protection of Children from Sexual Offence Act, 2012 and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.50,000/-, in default, to undergo six months simple imprisonment.

¶2Heard Thiru. R. John Sathyan, learned Senior Counsel for Thiru. T. Panchatcharam, learned Counsel appearing for the Appellant/Accused and Mrs. G.V. Kasthuri, learned Additional Public Prosecutor appearing for the Respondent/State and perused the materials on record.

¶3The case of the Prosecution is that the Appellant/Accused is a resident of Bolupalli Village and the victim girl also belongs to the same Village. At the time of occurrence, the victim was studying in IX Standard at Gurubarapalli Higher Secondary School and she has not completed 18 years of age. The further case of the Prosecution is that during May 2013, when the victim girl went to her uncle Natarajan's house, the Appellant waylaid her, forcibly took her to his house without her willingness where he had sexual intercourse with her. Subsequently, during June 2013, when the victim was at her grandfather's house, the Appellant forcibly took her to the rice mill where he had sexual intercourse with her. Subsequently, P.W-1, stepmother of the victim noticed that the victim was not feeling well. She also noticed that the victim girl had missed her routine mensuration cycle. Therefore, P.W-1 took her to the clinic run by P.W-8 on 24.09.2013. PW-8, upon examining the victim opined that she is pregnant by 3 to 4 months. When P.W-1 enquired the victim, she revealed that she was subjected to sexual intercourse by the Appellant/Accused twice. The next day on

25.09.2013 at 7.00 am, the victim came back to the hospital of PW-8 where P.W-8 medically aborted the foetus. Thereafter, she was referred to P.W-6, Senior Doctor working at Government Hospital, Krishnagiri. On

25.09.2013, P.W-6 examined the victim and opined that the victim had underwent incomplete abortion and it was completed at Government Hospital, Krishnagiri on 25.09.2013, aborting the five months old foetus. The certificate issued by P.W-6 is Ex.P-3. Immediately thereafter, a complaint dated 25.09.2013 was given by P.W-1/mother of the victim, based on which, the case in Crime No. 5 of 2013 was registered by P.W-9 for the offences punishable under Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. Ex.P-6 is the First Information Report registered by P.W-9. Upon registration of the case, P.W-9 went to the occurrence places, examined the witnesses including P.W-1, P.W-2 (victim), P.W-3 (father of the victim), P.W-4, P.W-5 and recorded their statement. Later, on the same day at 17.00 hours, she arrested the Appellant and sent him to judicial custody. Later, a requisition letter was given by P.W-9 to the Court to examine the Appellant as to his potency to commit the sexual intercourse. Accordingly, the Appellant was examined by P.W-7 on 04.10.2023. He issued his opinion under Ex.P-4 and Ex.P-5 stating that the Appellant is potent to contract sexual intercourse. After completing all the formalities, P.W-9 filed the charge sheet against the Appellant for the offence under Section 4 read with Section 3 of Protection of Children from Sexual Offence Act, 2012.

¶4During the course of trial, on behalf of Prosecution P.W-1 to PW9 were examined and Exs.P-1 to Ex.P-8 were marked. The Appellant/ Accused has not examined any witness on his side or marked any documentary evidence. The trial court, upon considering the oral and documentary evidence, concluded that the Appellant is guilty of the offence and convicted and sentenced him, as has been narrated in the preceding paragraph.

¶5The learned Senior Counsel appearing for the Appellant/ Accused would mainly contend that the trial Judge failed to appreciate the materials available in the cross examination of the witnesses, particularly, P.W-1-Stepmother of the Victim, P.W-2-Victim, P.W-3-father of the Victim, and P.W-4-Maternal uncle of the Victim. The learned Senior Counsel appearing for the Appellant/Accused also stated that the family of the victim are leading an immoral way of life. The mother of the Victim was murdered by the father of the Victim and without informing the Police, they cremated her body and made it as if she committed suicide by hanging unable to bear the stomach pain she had endured. None of the family members of the deceased women had given complaint to the Police regarding the death of biological mother of the victim girl. Thereafter, the father of P.W-2 married the younger sister of his first wife, who is P.W-1. The mother of P.W-2 had given birth to two children after marriage with the father of P.W-2. Subsequently, P.W-1 developed illicit relationship with another man in the Village due to which a Panchayat was convened. After the Panchayat, P.W-1 and her husband P.W-3 lived separately. P.W-3 is now living with another woman. The elder brother of P.W-2 is P.W-4 and he is also of the same character and he had suppressed the crime committed by P.W-3 with his first wife. P.W-4 also developed illicit relationship with another woman and paid compensation in the Panchayat. P.W-2-the Victim is in relationship with one Kaviarasan and the people of the village know about Kaviarasan, who happened to be the cousin of P.W-2 and there was relationship between them. By this relationship, the Victim might have become pregnant. As per the evidence available before the trial Court, she had missed her periods and it came to be knowledge of the step mother only in the month of June. It is her admission in cross examination that she wanted to verify as to through whom P.W-2 (Victim) became pregnant. Therefore, she was waiting and when she confronted P.W-2 she mentioned the name of the Accused also and the Accused did not accept it and he denied it stoutly. Still P.W-1, P.W-3 and P.W-4 joined together and convened a Panchayat to threaten the Accused. The Accused still did not heed to their words, whereupon they went to the Police Station. When the Accused was arrested and when he was under duress in the Police Station, they preferred to compromise the matter on condition the Appellant pays Rs.1,10,000/- (Rupees One Lakh only) as a condition precedent to withdraw the complaint and it was also paid. However, the complaint was not withdrawn and a further demand of Rs.5,00,000/- (Rupees Five Lakh only) was made. Since the Accused was not amenable for such payment, they proceeded with the complaint. This was not properly considered by the trial court.

¶6According to the learned Senior Counsel, the most important circumstance in this case is that the Victim-P.W-2 was aborted and the foetus was not preserved or it was sent for forensic examination. P.W-1, in order to gain unlawfully, had hurriedly performed the abortion and only thereafter, the complaint was given. P.W-1 to P.W-4 were aware that if it was subjected to forensic examination, the person who had actually subjected P.W-1 to sexual intercourse will be made known and therefore, the complaint was given after aborting the foetus. Further, one Kaviarasan has committed the rape of P.W-1, but he was let scot free. Thus, the non-preservation of the foetus or sending it to forensic examination or subjecting the P.W-1 to DNA examination is fatal to the case projected by the Prosecution. According to the learned Senior Counsel, this was aptly reflected in the cross-examination of P.W-1, P.W-2, P.W-3 & P.W-4. Further, P.W-4 was instrumental for foisting a false case against the Accused to extract money. The learned Senior counsel invited the attention of this Court to the cross-examination of P.W-1 to P.W-4, the relevant portion is extracted here under: ''P.W.1 ehd; mtiu tprhhpj;jnghJ uh$g;gh vd;gth; jhd; mtiu bfLj;jjhf mth; Twpdhh;/ $%d; khjj;jpy; tptuk; bjhpe;Jbfhz;l gpd;dUk;. kpf fhyjhkjkhf 9tJ khjj;jpy; jhd; g[fhh; Crl.oAppealoNo.o32oofo2017 bfhLf;fgg; ll; J vd;why; rhp/ mjwF; fhuzk; vd; mf;fh kfs; jtwhf brhyy; f; Tl thag; g; z[ L; vd;W bghWjj; pUeJ; tptu'f; s; Muhae; j; gpwF jhd; gf[ hh; kD bfhLff; gg; ll; J/ vjphp tPlo; wF; k;. eluh$d; tPlo; wF; k; ,ilna xU 10 mo Jhuk; vd;W brhdd; hy;. gff; k; gff; khf tPLfs; css; J/ Mdhy;. 80 myy; J 100 mo bjhiytpw;Fs; jhd; ,UfF; k;/ vjphpapd; tPlo; wF; k;. eluh$d; tPlo; wF; k; ,ilna 20. 30 mo Jhuk; ,UfF; k;/ ,ilapy; tPLfs; fpilahJ/ fhyp ,lk; jhd; css; J/ eluh$d; tPlo; wF; k;. uh$gg; h tPlo; wF; k; ,ilna rhjhuzkhf ngrpdhy; fhJ nflF; k; Jhujj; py; jhd; mej; ,UtPLfSk; css; J vd;why; rhp/ eluh$d; tPL jtpu ntW rpy tPLfSk; m'F; css; J vd;why; rhp. gf[ hh; 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KUnfrd; Mfpnahh; ngrp vjphpapd; kPJ xU bghaa; hd gf[ hh ; bfhLff; gg; ll; J vd;W brhyt; J jtW/ P.W.3 tHfF; rkg; t fhyjj; pd;nghJ ehd; nghYgg; ss; p fpuhkjj; py; ,y;iy/ btspna ntiyf;F brd;Wtpln; ld/; rpe;Jkjpia muR kUjJ; tkidfF; miHjJ; r; brd;wnghJ jhd; vdf;F bjhiyngrp K:ykhf jfty; fpilj;J ehd ; CUfF; ten; jd/; ehd; vd; kidtpia tpl;L vg;nghJk; gphpej; J fpilahJ/ xw;Wikahfjj; hd; ,Uen; jhk/; vd;Dila kidtpfF; k; MWKfk; vdg; tUfF; k; bjhlhg; [ Vwg; l;L mJ rkg; ej; khf g"r; hajJ; Vwg; l;L eh'f; s; gphpej; pUen; jhk; vd;W brhy;tJ rhpay;y/ tHfF; rkg; tk; bjhlhg; hf nehpilahf vdf;F vJt[k; bjhpahJ vd;W brhdd; hy; mJ rhp/ Crl.oAppealoNo.o32oofo2017 vjphpf;Fk; rpe;Jkjpf;Fk; rkg; ej; k; fpilahJ/ vjphpaplk; gzk; gwpf;Fk; nehff; jj; py; bgha; rhl;rp brhy;fpnwd; vdg; J jtW/ P.W.4 v'f; s; tPlo; wF; mUfpy; ftpauR vd;w igad; ,Uf;fpwhd;/ mej; igadplk; gj[ j; fk; th'F; tjw;F mt;tgn; ghJ rpeJ; kjp xnu tFgg; py; gogg; jhy; nghtJzL; / rpeJ; kjp ftpauRld; xd;whf irf;fpspy; brd;whhf; s; vd;why; jtW/ ftpauR rpeJ; kjpia tpl bghpatd; vd;why; vdfF; bjhpahJ/ Mdhy; mtd; fhny$py; goff; pwhd;/ vjphp uh$gg; d ; tPlo; d; vjph ; gw[ k; kiy Fd;W css; J/ mej; ,lj;jpy; rpeJ; kjpa[k; ftpauRk; xd;whf rej; pgg; J czL; vdw; hy; jtW/ rpeJ; kjpa[k; ftpauRk; xd;whf rej; pjJ; bfhst; hhf; s ; vd;W Chpy; ngRtJz;L vd;why; jtW/ fhty; epiyajj; py; gf[ hh; bfhLjj; gpwF mej; fhg; jj; pd; fhuzk; ahh; vd;W ghpnrhjiz braj; pUej; hy; czi; k bjhpej; pUfF; k;/ Mdhy; ghpnrhjid braa; hjjw;F fhuzk; Chpy; css; g"r; hajj; hhf; s; jhd; fhuzk; vd;W gzk; igry; braa; tej; hhf; s;/ Mjyhy; mej; ghpnrhjid braa; tpy;iy/ ghpnrhjid braj; pUej; hy; vjphpfF; k ; mjwF; k; rkg; ej; k; ,y;iybad;w tptuk; bjhpeJ; tpLk; vdg; jhy ; vjphpaplk; gzk; gwpfF; k; vzz; jj; py; eh'f; s; mej; ghpnrhjid braa; tpy;iy vdg; J jtW/ rpeJ; kjpia jdpahh; kUjJ; tkidf;F miHjJ; r; brd;Wtpll; hhf; s;/ nghyprhh; ovdV; bl!l; ; vLff; ntzL; k; vd;W vdd; plk; brhyy; tpy;iy/ vjphp uh$gg; d; rpeJ; kjpia ,Gj;Jr; brd;W ghypay; gyhjf; huk; braj; pUej; hy; mff; k; gff; jj; py; ,Ugg; thf; SfF; tptuk; bjhpej; pUfF; k; vd;why; rhpayy; / tHf;F rkg; tjj; pd;nghJ vd; mff; ht[k; khkht[k; jdpahf gphpeJ; jhd; ,Uej; hhf; s;/ gf[ hh; bfhLjj; gpwF jhd; vdD; ila khkh ChpypUeJ; tej; hh;/ vdD; ila khkh gphpeJ; brd;W $pd;rpgss; papy; ,Uej; hh v; d;W brhdd; hy; jtW/ vdD; ila mf;fh btzz; pyh JhfF; gn; ghlL; ,weJ; tpll; hh;/ fhty; epiyajj; pw;F jfty; brhyy; hkny mtUila cliy vhpjJ; tpln; lhk; vd;W brhdd; hy; rhp/ vdD; ila mff; h btzz; pyhtpwF; ntW xU bjhlhg; [ ,Uej; jhy; vdJ khkh ren; jfgg; lL; mojj; nghJ mth; ,weJ; tpll; hh;/ RpeJ; kjp fUfiygg; [ Mtjw;F khjj; piu itj;jpUej; hhf; s;/ Mdhy; cldoahf fhty; epiyaj;jpwF; miHj;Jr; brd;W muR kUjJ; tkidapy; fUfiygg; [ elej; J vd;W Twpa[ss; hh;/ 24/09/2013 md;W ,ut 7[ kzpfF; ehd; CUfF; r; brd;W rpeJ; kjpia tprhhpjj; nghJ tptuj;ij cldoahf vdd; plk; Twptpll; hh;/ gf[ hh; kD https://www.mhc.tn.gov.in/judiseh'f; shf jhd; bfhLjn; jhk;/ ahUk; v'f; SfF; brhyy; p bfhLf;ftpy;iy/ vjphpaplk; gzk; gwpg;gjw;F ehd; vd; j';ifaplk; nrh;e;J vjphp kPJ g[fhh; bfhLj;njhk; vd;gJ jtW/ ftpauR trjpapy;yhjth; vd;W brhd;dhy; jtW."

¶7According to the learned Senior Counsel, the aforesaid deposition of P.W-1 to P.W-4 has been simply brushed aside by the trial Court while convicting the Appellant. The said fact can also be inferred from the cross examination of P.W-6-Dr. Rajalakshmi, Government Hospital, Krishnagiri, P.W-8-Dr. Valarmathi, who first diagnosed the Victim and P.W-9, Investigation Officer but their testimonies were not considered by the learned Sessions Judge and the Appellant was mechanically convicted by the trial court. Further, the learned Senior Counsel submitted that P.W-5 is Mahazar witness and he was examined on 11.11.2014. On the next day on

12.11.2014, he was cross examined and he resiled from his earlier deposition. Even this was not taken note of by the trial court to acquit the Appellant. Therefore, the learned Senior counsel for the Appellant submitted that the judgment of the learned Sessions Judge, Fast Track Court, Krishnagiri, in S.C.No.143 of 2022 deserves to be set aside by allowing this appeal.

¶8Per contra, the learned Additional Public Prosecutor appearing for the Respondent vehemently objected to the submissions of the learned Senior Counsel appearing for the Appellant/Accused. The learned Additional Public Prosecutor invited the attention of this Court to the chief examination of P.W-1 to P.W-4 and submitted that their testimony are natural, cogent and convincing. According to the learned Additional Public Prosecutor, from the deposition of P.W-1 to P.W-4, the Prosecution succeeded in proving the guilt of the Appellant beyond reasonable doubt. The learned Additional Public Prosecutor further submitted that there are sufficient materials on record through the evidence of the Prosecution Witnesses P.W-1 to P.W-4, P.W-6 & P.W-8 to convict the Appellant. When the Prosecution had proved the charges against the Appellant, it is for the Appellant to disprove the Prosecution case under Section 29 of the Protection of Children from Sexual Offence Act 2012, but it was not done. Further, the trial Court presumed that the version of the victim is strictly considered as true. Section 29 of the Protection of Children from Sexual Offence Act 2012 reads as follows: ''29. Presumption as to certain offences Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.''

¶9According to the learned Additional Public Prosecutor, the Appellant has raised several allegations and disowned his involvement in the commission of offence. If it is so, the burden is on the shoulders of the Appellant to examine Kaviyarasu or to subject the victim girl to DNA test, but he did not do it. The Accused had not let in any evidence as defence witness to prove his defence. The trial court also taken note of the cross-examination of P.W-1, who has stated that they did not go to the Government Hospital fearing that the matter will be published in newspapers and the reputation of the family will be damaged. However, this cannot be taken advantage of by the Appellant. If it is the plea of the Appellant that he has not involved or committed the offence, why he has to pay Rs.1,10,000/- to P.W-1, as has been alleged by the learned Senior Counsel for Appellant. In any event, the Appellant did not enter into the witness box to let in evidence to disprove the charge of the prosecution. In a case of this nature, the Court shall presume the person who had committed or abetted or attempted to commit the offences, unless the contrary is proved. The learned Additional Public Prosecutor also invited the attention of this Court to Sections 3, 5, 7 & 9 of the Protection of Children from Sexual Offence Act, 2012 to drive home the point that the trial court is wholly justified in drawing a presumption against the Appellant in the light of the clear testimonials of P.W-1 to P.W-4 and in the absence of the Appellant stepping into the witness box to clear the air of controversy surrounding his case. In this regard, it is useful to extract paragraphs 17 to 20 of the judgment of the learned trial Judge, which reads as follows: ''17. P.W.6-Dr.Rajalakshmi had clearly given evidence before the Court that the victim girl had told to her, '17 .bjhpe;j Mz; egh; uh$g;gd; vd;gth; jd;id kpul;o clYwt[ itj;Jf;bfhz;ljhfr; brhd;dhh;/ jw;nghJ mtUf;F tapw;W typ vd;Wk;. md;iwa bghGJ fhiy 7 kzpf;F xU jdpahh; kUj;Jtkidf;F fUf;fiyg;gpw;fhfr; brd;wjhft[k;. m';Fs;s kUj;Jth; fUf;fiyg;gpw;fhfr; brd;wjhft[k;. m';Fs;s kUj;Jth; fUf;fiyg;gpw;fhf khj;jpiu bfhLj;jjhft[k; Twpdhh;/ mtiu ghpnrhjid bra;jjpy; 5 khjk; fh;g;gkhft[k;. gpurt typa[lDk; ,Ue;jhh;/ rpwpJ neuj;jpy; gpurt typ mjpfkhf fU fiye;jJ/ md;W rhd;wpjH; tH';fpndd;/ ehd; tH';fpa tpgj;J gjpntL m/rh/M/3 Mfk; vd;W Twpa[s;shh;/

18.In Ex.P.3 document, ''sexually assaulted by one known male person Rajappan (neighbour) by Threatening her and his life. P.W.7 is another Doctor, he had given Ex.P.5 Accident Register of the Accused about his potentiality and P.W.8 is Lady Doctor, who had aborted the child. She had deposed that, 18/ fle;j 24/09/2013 md;W khiy rpe;Jkjp vd;w rpWkpia ,uz;L bgz;fs; khjtplha; 3. 4 khj';fshf Vw;gltpy;iy vd;W vd;dplk; ghpnrhjidf;F miHj;J te;jhh;fs;/ ehd; ghpnrhjid bra;J ghh;j;jjpy; 3 Kjy; 4 khjk; tiu mth; fh;g;gkhf ,Ue;jJ bjhpate;jJ/ ehd; mth;fSf;F mwpt[iu brhy;yp bgz; rpWkp vd;gjhy; FHe;ij gpwg;gjpy; gpur;rid Vw;gLk; vd;W brhy;yp muR kUj;Jtkidf;F mDg;gp itj;njd;/ kWehs; 25/09/2013 md;W fhiy 7 kzpastpy; vd;dplk; te;jhh;fs;/ vd;dplk; FLk;gj;jpy; gpur;rid Vw;gLk; vd;W nfl;Lf;bfhz;ljhy; kdpjhgpkhd mog;gilapy; ehd; fUf;fiyg;g[ bra;a gpwg;g[Wg;gpy; fUf;fiyg;g[ khj;jpiu itj;njd; vd;W Twpdhh;/

19.The Defence Counsel had recalled and examined P.W.1. P.W.1 had deposed during the cross, 19/ rk;gtj;jpw;F 2 tUlj;jpw;F Kd;g[ vd; mf;fh kfs; cly;epiy rhpapy;yhky; be ;R typ. tapw;W typ vd;W "

nrhh;e;J mof;fo gLj;Jf;bfhz;LtpLthh;/ mtiu kUj;Jthplk; brd;W fhz;gpj;njhk;/ kUj;Jth; mtUf;F rhpahd rj;J ,y;yhky; jhd; mt;thW ,Uf;fpwhh; vd;W Twpdhh;/ fhty; epiyaj;jpy; g[fhh; bfhLj;j njjp jw;nghJ ve;j tUlk; vd;W vdf;F hgfk; ,y;iy/$Pd; khjj;jpd;nghJ "

vd; mf;fh kfs; khjtplha; Mftpy;iy vd;W bjhpe;Jbfhz;nld;/ mg;nghJ 2 khjkhf Mftpy;iy vd;W vd;dplk; Twpdhh;/ ehd; ntiy tprhhpj;jnghJ uh$g;gh vd;gth; jhd; mtiu bfLj;jjhf mth; Twpdhh;/ $Pd; khjj;jpy; tptuk; bjhpe;Jbfhz;l gpd;dUk;. kpf fhyjhkjkhf 9tJ khjj;jpy; jhd; g[fhh; bfhLf;fg;gl;lJ vd;why; rhp/ mjw;F fhuzk; vd; mf;fh kfs; jtwhf brhy;yf; Tl tha;g;g[z;L vd;W bghWj;jpUe;J tptu';fs; Muha;e;j gpwF jhd; g[fhh; kD bfhLf;fg;gl;lJ vd;Wk;. Vjphp uh$g;gh vd; mf;fh kfsplk; ,uz;L Kiw jtwhf ele;J bfhz;ljhf Twpdhh;/ nk khjk;. $Pd; khjk; Mfpa njjpfspy; ,uz;L Kiw jtW bra;jjhf Twpdhh; vd;Wk; Twpa[s;shh;

¶20The Defence Counsel during the course of his argument had pinpointed small contradiction and discrepancies with regard to the fact of months whether in the month of May 2013 or in the month of June 2013.''

¶10Thus, the trial Court had properly assessed and analysed the evidence on record and rightly arrived at an irresistible conclusion that the Appellant herein alone had committed the offence. The learned Judge, had in the judgment, stated that even though DNA Test was not taken, it is not fatal to the case of the Prosecution, especially, when the testimonials of PW1, P.W-2 & P.W-4 are cogent. Therefore, when the learned trial Judge had arrived at a conclusion based on proper appreciation of the evidence and convicted the Accused, the appellate Court, on the very same materials, cannot take a different opinion or conclusion to acquit the Appellant. The offence committed by the Appellant is grave in nature and he had spoiled the life of an innocent child (Victim). That is why, the Court was given the power to presume the version of the child (Victim) as true. Even if there are contradictions in the evidence of the child (Victim), the same have to be ignored by the Court, in the absence of contrary evidence produced by the Accused. The trial Court, in Paragraph Nos.9 and 17 to 26, had discussed the evidence threadbare and arrived at an irresistible conclusion and it does not call for interference by this Court. Accordingly, the learned Additional Public Prosecutor submitted that the appeal has no merits and it has to be dismissed by confirming the judgement of conviction recorded by the learned trial Judge, Krishnagiri. Point for consideration: Whether the judgment of conviction recorded by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, in S.C.No.143 of 2014, dated 16.02.2016 is to be set aside and the Accused be acquitted of the charges under Section 5(1) r/w. Section 6 of Protection of Children from Sexual Offences Act, 2012?

11.This is a case where the Appellant is alleged to have committed sexual intercourse with the minor girl/P.W-2, who was 14 years old at the time of commission of the offence. In order to prove the charges against the Appellant, the Prosecution has examined P.W-1 to P.W-9 and produced eight documents under Ex.P-1 to P-8. P.W-1 is the maternal aunt and step mother of the victim girl/P.W-2. It is stated that the sister of P.W-1 was given in marriage to her husband Krishnan and out of such wedlock, three children have born, including the victim girl. The sister of P.W-1 died and therefore, P.W-1 married her sister's husband Krishnan as his second wife. At the time of occurrence, the victim girl was studying 9th standard. It is stated that P.W-1 had noticed that P.W-2 missed her routine mensuration cycle, therefore, P.W-1 took P.W-2 to a private Hospital on 25.09.2013. After examination, it was made known that P.W-2 is pregnant. In order to ensure that the pregnancy should not be made known to anyone and to protect the image of the family, P.W-1 consented for aborting the pregnancy and thereafter, she has given the complaint to Krishnagiri All Women Police Station under Ex.P-1. P.W-9-the Inspector of Police, All Women Police Station, on the basis of the complaint under Ex.P.1, registered a case in Crime No.5 of 213 on the file of the All Women Police Station, Krishnagiri, for the offences under Sections 3 and 4 of the Protection of Children from Sexual Offence Act, 2012 and forwarded the original complaint under Ex.P-1 and Ex.P-6, FIR to the learned Judicial Magistrate No.-II, Krishnagiri and to the higher officials of the Police Department with a copy of the FIR. Thereafter, the Inspector of Police visited the place of residence of P.W-1 and also the alleged place of occurrence and prepared the Rough Sketch under Ex.P-7 and Observation Mahazar under Ex.P-2 in the presence of the witness P.W-5. P.W-9 also arrested the Accused.

12.The learned Judicial Magistrate No-II, Krishnagiri, had taken cognizance of the offence under the Protection of Children from Sexual Offence Act 2012, and taken the final report on his file. On appearance of the Accused, the case was committed to the Court of Sessions, as it is triable only by the Court of Sessions and made over to the Court of Sessions, Fast Track Mahila Court, Krishnagiri.

13.The learned Sessions Judge had taken cognizance of the offence, and on appearance of the Accused and after hearing the arguments of the Prosecution and the defence, framed the charge under Section 5(1) r/w 6 of the Protection of Children from Sexual Offence Act, 2012. The Accused denied the charges and claimed to be tried. Therefore, the trial was ordered.

¶14During trial, as mentioned above, the Prosecution examined PW1 to P.W-9 as witnesses on their side and marked Ex.P-1 to Ex.P-8. On appreciation of evidence, the learned Judge had convicted the Accused under Section 235(ii) Cr.P.C for the offence under Section 5(1) r/w 6 of the Protection of Children from Sexual Offence Act, 2012. Aggrieved by the same, the Accused has filed this Appeal under Section 374 (2) of Cr.P.C.

¶15On examination of the deposition of P.W-1 to P.W-4, it is evident that they were examined during the year 2014 in relation to the occurrence that had taken place in the year 2013. In the deposition, P.W-1, P.W-2, P.W-3 and P.W-4 they have given a cogent narration of the facts. Their evidence is not unnatural, but natural. P.W-2 in particular, during cross-examination has stated that she could not resist the attempts made by the Appellant as she was weak and fragile. To the suggestion as to why a sum of Rs.1,10,000/- was received from the Appellant out of Rs.2 lakhs demanded, it was stated that the elders in the Village insisted to receive the amount as monetary compensation.

¶16The learned Senior Counsel for the Appellant vehemently contended that the family of P.W-1, P.W-2, P.W-3 and P.W-4 have led an immoral life and they had illicit relationship with several men or women as the case may be. If it is so, the burden is on the Appellant to prove the same by examining some witnesses or to show that for such acts, any action has been initiated against them under law. Admittedly, there was no case registered against any one. For argument sake, if either the mother or the stepmother happened to be leading an immoral life, that cannot give freedom or liberty to the persons like the Accused to have sexual intercourse ignoring the law in force to protect the minor children. Even for argument sake, if the mother happens to be a prostitute, that cannot give liberty to a man on the street to have his way of dealing things with minor children by treating her also as a prostitute. In fact, on a perusal of the evidence of P.W-1 to P.W-4, it is seen that they were confronted with the past instances in their family and the statements made therein have been relied on by the learned Senior Counsel for the Appellant. Even if the past conduct of the family of the victim is bad, the Appellant cannot take advantage of the same to commit the offence of rape on a minor child. In the absence of any defence witness examined by the Appellant, it can be safely concluded that such an instant of past family instance have been raised by the Appellant only to wriggle out of the accusation levelled against him by the Victim-P.W-2. If the Accused was sure about the involvement of Kaviarasan who was instrumental for the pregnancy of P.W-2, he ought to have entered into the witness box and let in evidence or chosen to examine the said Kaviarasan as a witness. As per Section 29 of the Protection of Children from Sexual Offence Act 2012, he had not done so. At the earliest opportunity, when he was arrested and sent to remand, he ought to have made a representation to the learned Judicial Magistrate concerned that the foetus is to be forwarded to Forensic Department for DNA Test, but he had not done so. In the light of those facts, the admission by P.W-1 to P.W-3 & P.W-4 in the cross examination that the foetus was not sent to DNA Test or the admission regarding Kaviarasan in their cross examination will not help the case of the Appellant in any manner. Further, the evidence of P.W-6 & P.W-8 Doctors in their cross examination indicate that even if the foetus is preserved or DNA Test is conducted, it will not be of any significance in this case because the victim girl is a minor. In a case of this nature, the burden is heavy for the Appellant to disprove the case projected against him. The offences under the Protection of Children from Sexual Offence Act, 2012 are on a different footing from the provisions of the Indian Penal Code. The defence normally raised in cases involving offences under Section 376 IPC cannot be invoked in this case where this Court, if satisfied with the testimony of the victim, can base a conviction. In this case, the testimony of P.W-2/victim girl is satisfactory, cogent, natural and there is nothing to discredit her evidence. Therefore, the said argument of the learned Senior Counsel for the Appellant that the family of P.W-2 is leading an immoral way of life and that a false case has been given against the Appellant to extract money from him has no basis and it has to be rejected.

¶17As stated by the learned Additional Public Prosecutor, if the Accused has not involved himself in this case, he need not part with any amount. The defence of the Accused is that he is economically well and therefore, his name was exploited by P.W-1 & P.W-4 who have connived among themselves to extract money from him by using the pregnancy of the child (Victim) by invoking the Protection of Children from Sexual Offence Act, 2012. In the light of the fact that the Accused had not volunteered himself to subject himself to any paternity test or examining any witness, he has to fail in his defence. If the Accused made a request before the trial court for subjecting the victim girl to DNA test or to subject himself to such test, the court would have permitted him to do so. In this case, no such step has been taken by the Appellant before the trial court.

¶18Before parting with, it must be noticed that the Investigation Officer ought to have taken steps to preserve the foetus or to send it for forensic examination, but it was not done in this case. The trial Court also ought to have drawn an inference from the conduct of the Investigation Officer, who had not properly conducted the investigation in preserving the aborted foetus for scientific examination or to take any such steps in that direction. P.W-6 - Dr.Rajalakshmi, in her evidence, stated that she had not preserved the foetus for DNA Test and it was also not requested by the Investigation Officer-P.W-9. In her cross examination, she had denied the suggestion of the defence that foetus was not preserved, as the Investigation Officer failed to make a request to do so. Therefore, it cannot be said that P.W-6-Doctor, Government Hospital, Krishnagiri failed to preserve it. Thus, there is negligence on the part of the Investigation Officer in this case. The Investigation Officer, taking note of the gravity of the offence, ought to have sought the scientific aid as part of the investigation, but she failed to do so.

¶19It is well settled that the Investigation Officer has enormous power under the Code to conduct the investigation in the manner as required under law. No Court has power to issue directions to the Investigation Officer to proceed in a particular fashion or not to proceed in a particular manner. The Court will normally decline to interfere with the investigation conducted by the officer to ensure that the process of investigation is not disturbed in any manner and a free hand is given to the officers to conduct a thorough investigation to unearth the truth. The Investigation Officer has all the powers to reach a logical conclusion in the investigation and to find out the Accused who had committed the crime. In this case, the foetus was available in the Government Hospital when P.W-6-Dr.Rajalakshmi conducted medical termination of pregnancy on the Victim P.W-2. Therefore, if the Investigation Officer was prudent, alert or diligent, she would have requested for preservation of the foetus. The lapses on the part of the Investigation Officer had given rise to the defence that the Victim was in a relationship with another man.

¶20From the circumstances available in this case, it gives rise to the presumption that the Accused attempted to derail the investigation which is found unacceptable. An important link had been missed and still, the Court can draw adverse inference against the conduct of the Accused in not disproving the Prosecution case by entering into the witness box or examining any witness in his favour to disprove the Prosecution case. Therefore, the presumption under Section 29 of the Protection of Children from Sexual Offence Act, 2012, is against the Accused. The learned trial Judge had referred to the evidence in paragraph Nos.17 to 26 of the judgment and arrived at a proper conclusion based on the Indian Evidence Act and also the provisions of the Protection of Children from Sexual Offence Act, 2012. Under those circumstances, this Court, on the very same set of facts and evidence, is not inclined to take a view other than the one arrived at by the trial court. This Court, as an Appellate Court, on perusal of the entire evidence, is of the view that the findings of the trial court need not be interfered with. The learned trial Judge, it is felt, had a chance to observe the demeanour of the witness, which is not available to the Appellate Court, while so, it is not fair on the part of the Appellate Court to disturb the findings recorded by the learned trial Judge, based on appreciation of evidence of the Prosecution Witnesses.

21.In the light of the above discussion, the point for consideration is answered against the Appellant and in favour of the Prosecution. The judgment of conviction recorded by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, in S.C.No.143 of 2014, dated 16.02.2016 is confirmed. In the result, this Criminal Appeal is dismissed. The judgment dated

16.02.2016 made in S.C. No. 143 of 2014 passed by the learned Sessions Judge, Fast Track Court, Krishnagiri is confirmed. The learned Additional Public Prosecutor on instructions stated that the Accused/Appellant is now stated to have been detained in prison and the same is recorded.

21.12.2023 vsn Internet:Yes/No Index:Yes/No Speaking/Non-speaking order To

1.The Sessions Judge, Fast Track Court, Krishnagiri.

2.The Inspector of Police, All Women Police Station, Krishangiri, Krishnagiri District. Crl.oAppealoNo.o32oofo2017 SATHIoKUMARoSUKUMARAoKURUP.oJ,o vsn Judgmentomadeoin ooooooo oooooooooCrl.oA.oNo.32oofo2017 ooooooooo21.12.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS