IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.2.2011
Coram
The Hon'ble Mr. Justice A.ARUMUGHASWAMY
Criminal Appeal No.386 of 2004
Allimuthu ... Appellant
Vs.
State through Inspector of Police
Sivakanji Police Station
Kanchipuram District ... Respondent
Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional Sessions Judge, (Fast Track Court ), Kanchipuram in S.C.No.87 of 2002 dated 10.12.2002.
For Appellant:-Mr.V.Murugesan
For Respondent:-Mr.N.Kumanan Govt.Advocate (Crl. Side)
JUDGMENT
The appellant/accused stands convicted for the offence under Sections 363 and 376 (1) IPC and sentenced to undergo rigorous imprisonment for seven years for each of the offences and the said sentence were ordered to run concurrently by the judgment of the learned Additional District and Sessions Judge, Kanchipuram in S.C.No.87 of 2002 dated 10.12.2002. Challenging the said conviction and sentence, the appellant has come forward with the present appeal. Before the trial court, there were two accused and they were tried together. As against the judgment of the trial court, A1 has preferred this appeal. A2 one Dharanidurai has preferred appeal in Crl.A.No.126 of 2004. Since A2 is reported to be dead, the appeal preferred by him was dismissed as abated.
2. The brief facts necessary for disposal of this appeal are as follows :-
A1 and A2 are friends. P.W.6 the victim girl and the accused are residents of the same village and they belong to different community. P.W.6 was working in the S.T.D.Booth. Both the accused used to come to the S.T.D booth. While so, on the date of occurrence also, the accused 1 and 2 came to the S.T.D.Booth and the first acused gave chocolate to her in view of his birthday. After tasting the chocolate P.W.6 felt giddiness. A1 enticed P.W.6 victim and both i.e. A1 and A2 took her from the STD Booth. They all travelled in the bus. Even during their journey, A2 put the knife on her and she was put under continuous threat of the accused who took P.W.6 to Old Seevaram Perumal
temple where A1 tied thali forcibly on P.W.6. Thereafter, A2 left the place. The accused and the victim were away from their home village for a month. One day, the accused took P.W.6 to the theatre. While they were watching the film the accused was arrested and taken to the police station. In this regard P.W.1 father gave complaint which has been received and registered by P.W.7. Thereafter, the accused was sent to P.W.2 Government Doctor for clinical examination . P.W.2 Doctor examined the accused. P.W.3 is the mother of the girl and wife of P.W.1. P.W. 4 is the friend of P.W.6. P.W.5 is the brother of P.W.6. P.W.8 is the Doctor who examined the girl and issued the certificate. P.W.9 the investigating officer has investigated the case and laid the charge sheet for the offence under Sections 366, 366 read with 34 and 376 (1) IPC.
3. Before the trial court on the side of the prosecution P.Ws.1 to 9 were examined, Exs.P1 to P8 were filed and M.Os. 1 and 2 were marked. On the side of the defence Exs.D1 and D2 were filed.
4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied his complicity. After due enquiry, the trial court convicted the accused and awarded sentence as stated above against which the present appeal has been filed .
5. The learned counsel appearing for the appellant ontended that there is an inordinate delay in preferring the complaint and further the victim girl who was working in the STD Booth went with the accused out of her own willingness. Hence he prayed that the appeal has to be allowed.
6. Per contra, the learned Government Advocate (Criminal Side) contended that even though she is going for work in the STD Booth, out of compulsion only she went along with the accused, who forcibly tied thali on her. Hence the offence under Sections 363 and 376 (1) have been made out against the accused. Hence he prayed that the appeal should be dismissed.
7. In his evidence, P.W.1 who is the father of the victim would state that when P.W.6 was working in the STD booth, she was found to be missing and he gave complaint to the police. Thereafter, he came to know that the accused only had kidnaped P.W.6 his daughter and again he gave another complaint against the accused. P.W.1 would further state that fifteen days after the receipt of the said complaint, the police arrested the accused and rescued the girl. Ex.P1 is the complaint. As per the complaint, even on 13.12.2000 the girl was reported to be missing and the girl was rescued on 18.1.2001. From the evidence of P.W.8 Doctor it is seen that the Doctor has determined the age of the victim as below 17 years. The fact that she is working in STD Booth is not in dispute. From the evidence of P.W.1 it is seen that she has completed 10 standard two years prior to the occurrence. Therefore, the age of the victim girl must be more than 16 years.
8. P.W.6 is the victim girl . She herself stated that she was under threat and she had been kidnapped by A1. On reading of the entire evidence, it is clear that she herself went along with the accused, which fact has been proved. Incidentally, in her cross examination, she would state that when they travelled in the bus, A2 was showing knife and she was under continuous threat of the accused. Subsequently, during cross examination she would state that after tieing thali in the Temple, A2 went to his house from the temple. Thereafter, both of them went to the house of A1’s relative. On the side of the accused, Ex.D2 letter has been marked. From the reading of Ex.D2, letter it is seen that even after her rescue she had some impression on the accused. P.W.6 in her evidence would state that she wrote the letter out of compulsion. It is nothing but an inland letter which carries the date of the posting of the letter. While reading the letter it is seen that they had been roaming for more than 40 days. Therefore I am of the view that it has been proved that P.W.6 went voluntarily along with the accused. There is no question of enticement or kidnapping of P.W.6 and the same has not been made out. The trial court has failed to consider the evidence of P.W.6 and P.W.1 on its entirety. For the foregoing reasons, I am of the view that the offence against the accused has not been made out and the judgment of the trial court is liable to be set aside.
9. In the result, the conviction and sentence imposed upon the appellant by the trial court is set aside and the appellant is acquitted. The fine amount, if any, has been paid the same is ordered to be returned to the appellant. The bail bonds shall stand cancelled. Thus, the appeal is allowed.
Krr/
To
1. Additional Sessions Judge,
(Fast Track Court III)
Kancheepuram.
2. The Public Prosecutor
High Court