Dismissed

P.Muthuraj @ Pavadai v. the State Rep. by

Madras HC1 Apr 2022CRL A/710/2016

Case brief

AI extract

What is this about?

The High Court of Madras considered a criminal appeal against conviction for aggravated penetrative sexual assault under POCSO. The Court upheld the trial court's finding that the victim's testimony had a 'ring of truth' and was credible without external corroboration, confirming the conviction and sentence.

What did the court decide?

The criminal appeal is dismissed. The conviction and sentence of ten years rigorous imprisonment and a fine of Rs.1,000/- are confirmed.

P.Muthuraj @ Pavadai Vs the State Rep. by — Child Sexual Offences (POCSO) | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 14.03.2022 PRONOUNCED ON: 01.04.2022

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CORAM THE HONOURABLE MR. JUSTICE V.SIVAGNANAM

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Crl.A.No.710 of 2016 and Crl.M.P.No.10157 of 2016

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P.Muthuraj @ Pavadai ...Appellant/accused

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Vs.

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State rep. by The Inspector of Police, All Women Police Station, Pennagaram, Dharmapuri District. Crime No.01/2015 ...Respondent/Complainant

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Criminal Appeal filed under Section 374 (2) Cr.P.C. to set aside the judgment of convicting the appellant for the offence alleged under Section 5 (1) and 6 of the Protection of Children from Sexual Offences Act 2012. The accused is convicted and sentenced to undergo ten years Rigorous Imprisonment and to pay fine of Rs.1,000/- in dafault to undergo Simple Imprisonment for a further period of three months passed in Special S.C.No.7 of 2015 dated 16.08.2016 on the file of the learned Sessions Judge, (Fast Track Mahila Court), Dharmapuri and consequently thereby allow this Criminal Appeal.

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JUDGMENT

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The accused in Special S.C.No.7 of 2015 on the file of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri District, is the appellant in the criminal appeal.

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2.The Appellant/Accused has been prosecuted by the Inspector of Police, All Women Police Station, Pennagaram, Dharmapuri District for having caused aggravated penetrative sexual assault on the victim girl on 23.10.2014 and 17.01.2015 punishable offence under Sections 5 (1) r/w 6 of Protection of Children from Sexual Offences Act, 2012 and 506 (i) of IPC.

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3.In the trial Court the prosecution examined 16 witnesses (P.W.1 to P.W.16) and filed 18 documents (Ex.P.1 to Ex.P18) and two material objects (M.O.1 and M.O.2). On the side of the appellant/accused neither the evidence nor the document was marked.

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4.The trial Court on considering the prosecution evidence found that the appellant/accused was not guilty under Section 506 (i) of IPC and acquitted him. However, convicted and sentenced the appellant/accused under Section 5 (1) r/w 6 of Protection of Children from Sexual Offences Act, 2012, as follows:

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Name of the Provision under which Sentence accused convicted P.Muthuraj @ Under Section 5 (1) r/w Ten years Rigorous Pavadai 6 of Protection of imprisonment and Children from Sexual fine of Rs.1000/-, Offences Act, 2012, in default to undergo Three months Simple Imprisonment.

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Challenging the said conviction and sentences,the appellant/accused/ P.Muthuraj @ Pavadai has preferred this appeal.

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The case of the prosecution is that, the victim girl (Name not mentioned) (P.W.1) residing at Karakur village with their parents. She studied up to 9^th standard. Thereafter, stopped the school education. Their parents were daily wages, one younger brother was studying in School. The appellant/ Accused/ P.Muthuraj @ Pavadai was known to the victim girl. The date of birth of the victim girl is 15.12.2000. At the time of occurrence her age was about 15. In the year 2014, the next day was Deepawali while the victim girl was in her house, the appellant/accused called her as though her father asked him to bring the victim girl. Believing that the victim girl went along with the appellant/accused near the shop, but, she did not found her father. Hence, she questioned the appellant/accused, for that the appellant/accused informed that her father is at Coconut thope and to bring her at Coconut thope. At the coconut thope the appellant/accused taken her in a bush and raped her two times and also threatened that nobody will marry you and whenever he called she should come with him. The accused met her again on 17.01.2015 during the pongal festival while the victim girl was playing with her friends, the appellant/accused

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approached her and again taken her somewhere else and raped her, she did not return to home. On the next day 18.01.2016 she came to home, her father Raja (P.W.3), Mother Manjula (P.W.4) asked her about her absence she did not reply but she was seemed to be very tired. Therefore, they did not further proceed her, the next day the victim girl went to Sithan Shop (P.W.6) purchased rat poison and consumed it. In consequence she vomited immediately, she was admitted at hospital. On enquiry, her father came to knowledge about the rape committed by the appellant/accused. Hence, Raja (P.W.3) gave the complaint (Ex.P.2) at All Women Police Station, Pennagram.

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Pavayi (P.W.15) Inspector of police, Pennagram received the complaint (Ex.P.2) and registered a case in Crime No.1/15 under Section 4 of Protection of Children from Sexual Offences Act, 2012 and 376 and 506 (ii) IPC. The registered FIR is (Ex.P.13).

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The Inspector immediately went to place of occurrence and prepared Observation Mahazar and Rough Sketch (Ex.P.14) in the presence of witnesses Rajamanickam (P.W.7), Mani (P.W.8). Their signature were marked in the Observation Mahazar is (Ex.P.3 & Ex.P.4)

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Dr.Anitha Tamarai Selvi (P.W.12) examined the victim girl. Before the Doctor; the victim girl informed that she had sexual intercourse with the appellant/accused. On physical verification did not found any external injuries on her body and her vagina permitted two fingers, she was not conceived and also did not found any sperm on vaginal part. Her age was fixed between 16 to 18, Doctor gave the Medical Report (Ex.P.9) and Chemical Examination Report (Ex.P.10).

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Pavayi (P.W.15) Inspect of Police, Pennagram, the Investigation Officer arrested the appellant/accused at Seeriyampatty Bus stop at about 5.30 p.m on 19.1.2015 itself, on enquiry he gave a confessional statement. It was recorded by the Inspector of Police, in the presence of witnesses Mani (P.W.13) and Suresh (P.W.14) the signature of the Mani, marked as (Ex.P.11) and signature of Suresh, marked as (Ex.P.12), The Inspector recovered (M.O.1 & M.O.2) in the presence of witnesses. Further, the accused was sent for Medical Examination.

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Dr.Arun prabu (P.W.9) examined the appellant/accused and fixed his age from 25 to 40 and gave potential age certificate (Ex.P.7 and Ex.P.8).

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11.Thereafter, the Inspector of Police prepared alteration of FIR (Ex.P.15) and the offence was altered into 5(1) r/w 6 of POCSO Act and 506 (i) of IPC. The alteration FIR is (Ex.P.15). The Inspector made arrangement for recording the victim's statement under Section 164 Cr.P.C.

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K.R.Jothi Judicial Magistrate, Dharmapuri (P.W.16) recorded the statement of witnesses, the victim, her father (Raja) (P.W.3) and Manjula (P.W.4). The statement recorded under Section 164 Cr.P.C is marked as (Ex.P.18). The Investigation Officer obtained Chemical reports (Ex.P.16) and (Ex.P.17) and after completing the investigation filed the final report against the appellant/accused under Section 5(1) r/w 6 of Protection of Children Sexual offence Act and 506 (i) IPC.

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13.The learned counsel for the appellant submitted that the trial Court failed to appreciate the evidence properly. The trial Court failed to consider the fact that the occurrence was happened on 17.01.2015 and on 18.01.2015. The Medical test was taken on 19.01.2015 in the Medical Report (Ex.P.9) it was mentioned as that the occurrence took place on 15.01.2015. Under these circumstances, the Medical Report (Ex.P.9) was not supporting the prosecution story which was not considered by the trial Court. The evidence of victim (P.W.1) was not corroborated with other witnesses and doctor evidence (P.W.12). Under these circumstances, the evidence of the victim girl (P.W.1) is not trustworthy. The accused did not meet the victim girl during the pongal festival there was no evidence. The victim girl consumed poison because of the complaint given by the father (Ex.P.9), the victim girl informed to the doctor that she had frequent intercourse with the accused from 15.01.2015. The allegation that the appellant had intercourse on the next day of Deepawali festival in the year 2014 was also not supported by any evidence. He further reiterated other grounds raised in the grounds of appeal. Without sufficient proof the trial Court found guilty and convicted, it is unsustainable, and thus pleaded to set aside the conviction and sentence and to allow the appeal.

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14.The learned counsel for the State submitted that the victim girl (P.W.1) deposed before the trial Court clearly about the rape committed by the appellant/accused. There is no reason to reject her evidence, in a case of rape conviction may be recorded on the sole testimony of the victim evidence. The Doctor (P.W.12) also confirmed that the victim's vagina permitted two fingers and she had sexual intercourse, her age is below 18 years being a minor, the consent of the victim girl is

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immaterial. Therefore, the conviction can be sustainable on the testimony of the prosecutrix alone. There is no reason to interfere with the finding of the trial Court and there is no merit in the appeal and thus pleaded to dismiss the appeal.

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I have considered the rival submissions made by the learned counsel for the parties and the State and perused the materials available on record.

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The prosecution produced 16 witnesses. Padhmanaban (P.W.2) Head Master, Thirumalladi Government Higher Secondary School and he certified that the victim (P.W.1) studied 9^th standard in his School in the year 2013 to 2014 and the vicitm girl's date of birth is 10.06.2000, the certificate issued by him is (Ex.P.1).

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17.Raja (P.W.3) and Manjula (P.W.4) are the father and mother of the victim girl and they are not eye witnesses to the occurrence. On information given by the victim girl, her father Raja (P.W.3) gave the complaint (Ex.P.2).

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18.Maadhesh (P.W.5) is a native of that village, he was also not an eyewitness to the occurrence. He deposed that he had heard the offence committed by the appellant/accused.

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19.Sithan, (P.W.6) a grocery shop owner, he deposed that the victim girl purchased rat poison from his shop.

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20.Rajamanickam (P.W.7), Mani (P.W.8) were witnesses to the Observation Mahazar prepared by the Inspector (P.W.15) and their signature was (Ex.P.3 and Ex.P.4) respectively.

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21.Dr. Arun Prabhu (P.W.9) Civil Surgeon working at Dharmapuri Government Hospital. He examined the victim girl to fix the age and gave Certificate (Ex.P.5) and stated the victim's age between 16 to 18. He also examined the accused, and fixed the age between 25 to 40 marked as (Ex.P.7) and gave potential Certificate marked as (Ex.P.8.).

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22.Chellammal (P.W.10) Head Constable, All Women Police Station, Pennagram, she accompanied the victim girl during the medical examination.

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23.Narayanan (P.W.11) Head Constable, Marandahalli Police Station, he took the accused for medical examination to the hospital.

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24.Dr. Anitha Thamari Selvi (P.W.12), Chief surgeon at Dharmapuri Government Hospital examined the girl and found no external injuries. The victim girl narrated before her that she had sexual intercourse with the accused frequently for the past six months and also had sexual intercourse on 15.01.2015. On examination the doctor did not found no external injuries on her private parts and also found she was not conceived and gave Medical Report (Ex.P.9).

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25.Mani (P.W.13) and Suresh (P.W.14) both are witnesses to the recording of the confession of the accused by the Investigation Officer (PW.15) their signatures in the confession was marked as (Ex.P11 and Ex.P.12).

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Pavayi, (P.W.15) Inspector of Police, Pennagram, the Investigation Officer of this case.

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27.K.R.Jothi, (P.W.16) Judicial Magistrate, Fast Track Court, Dharmapuri recorded the 164 statement of victim (Ex.P.18) and her father Raja (P.W.3) and Mother Manjula (P.W.4).

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28.In this case, victim (P.W.1) was alone spoken about the occurrence. I have gone through the evidence of (P.W.1) victim. The victim clearly deposed that she knows the accused through phone. She had contact with the accused. One day the accused called the victim through phone and informed he will marry her. Thereafter, he raped her one day prior to Deepavali the accused called the victim as her father called her. Believing it, this victim went along with the accused but did not found her father. The accused taken her to the coconut thope and raped her and also informed nobody will marry her so, whenever he called her she should come with him. Again on 17.01.2015 during the pongal festival, while she was playing with her friends, the accused informed her as her father called she went along with him again he took her to coconut thope and raped her at about 7.p.m. He threatened and kept her, the next day the accused left her. Fearing the incident she purchased rat poison from the Sithan shop (P.W.16) and consumed it, while vomiting the poison, the parents came to know about the incident and immediately, she was admitted at Darmapuri Government Hospital. Thereafter, the father gave a complaint. For better appreciation, reproduced the evidence of the victim girl as follows:

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vjphp Kj;Juhi$ vdf;F bjhpa[k;/ Rkhh; xU tUlk; Kd;g[ Kj;Juh$; vdf;F nghd; bek;gh; bfhLj;jhh;/ vdf;F nghd; bra;a nghdpy; ngrp gHfp te;njhk;/ M$h; vjphp

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vd;id ghh;f;f miHj;jhh;/ ehDk; nghndd;/ vjphp vd;id jpUkzk; bra;J bfhs;tjhf brhd;dhh;/ nghd gpd;dpl;L vd;id bfLj;J tpl;lhh;/ jPghtspf;F mLj;j ehs; kjpak; ehd; tPl;oy; ,Ue;j rkaj;jpy; Kj;Juh$; vd;Dila tPl;ow;F te;J vd;Dila mg;gh vd;id miHg;gjhf brhy;yp th vd Tg;gpl;lhh;/ mij ehd; cz;ik vd epidj;J ehd; mtUld; nghndd;/ vd;Dila mg;gh fil mUnf ,y;iy/ vd;Dila mg;gh v';nf vd ehd; Kj;Juh$plk; nfl;nld;/ vd;Dila mg;gh bjd;de;njhg;gpy; ,Ug;gjhf brhy;yp miHj;J nghdhh;/ m';Fk; vdJ mg;gh ,y;iy/ ehd; tPl;ow;F nghtjhf brhy;yp jpUk;gpndd;/ mg;nghJ vjphp grPh; bjd;de;njhg;g[ K:';fpy; g[jUf;Fs; miHj;J nghdhh;/ brhy;tij nfl;lhy; jpUkzk; bra;J bfhs;tjhf brhd;dhh;/ ,y;iy vd;why; bfhiy bra;J tpLtjhf brhd;dhh;/ grPh; bjd;de;njhl;lj;jpy; gLf;f itj;J vdJ ghthilia Jhf;fp vd;id fl;lhag;gLj;jp vd;Dld; ,uz;L Kiw clYwt[ bfhz;lhh;/ ehd; rj;jk; nghltpy;iy/ cd;id ahUk; jpUkzk; bra;J bfhs;s khl;lhh;fs; vd;Wk; ehd; Tg;gpLk; nghbjy;yhk; tuntz;Lk; vd;W brhd;dhh;/ kPz;Lk; 17/1/15 Mk; njjpay; bgh';fy; gz;oif rkaj;jpy; ehd; gpuz;l;!;fSld; tpisahl nghd rkaj;jpYk; vdJ mg;gh Tg;gpLtjhf brhy;yp bjd;de;njhg;g[ K:';fpy; g[jUf;F miHj;J brd;W vd;id jpUkzk; bra;J bfhs;tjhf brhd;dhh;/ ,Ul;L Mdt[ld; tpl;L tpLtjhf brhd;dhh;/ ,ut[ 7/00 kzp Mdt[ld; vd;id fPnH gLf;f itj;J ,uz;L Kiw clYwt[ bfhz;lhh;/ ehd; mGjt[ld; vd;id kpul;odhh;/ kWehs; rha';fhyk; tiu m';nfna ,Ue;njd;/ ,Ul;oa gpwF vd;id tpl;lhh;/ ehd; gae;Jngha; rpj;jd; filapy; vyp kUe;J th';fp tprk; Foj;njd;/ ahhplKk; brhy;yhky; gLj;J ,Ue;njd;/ fhiyapy; the;jp vLj;jnghJ jhd; vdJ bgw;nwhh;fSf;F bjhpe;jJ/ cldoahf vd;id vdJ bgw;nwhh;fs; jUkg[hp muR kUj;Jtkidapy; nrh;j;jhh;fs;/ m';F te;J nghyPrhh; vd;id tprhhpj;jhh;fs;/ ele;j rk;gtj;jpw;F vdJ mg;gh g[fhh; bfhLj ; jhh;/ gpd;dpl;L vd;id ghpnrhjidf;fhf kUj;Jthplk; miHj;Jr; brd;whh;fs;/ ,J rk;ge;jkhf fhty; Ma;thsh; vd;id tprhhpj;jhh;/

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29.The Victim girl is a minor, It is evident by the evidence of Padmanaban, (P.W.2) Head Master. Date of Birth Certificate (Ex.P.1) is filed it is confirmed the victim is minor.

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30.The testimony of prosecutrix (PW.1) is having a ring of truth. Reading of her evidence indicates, she refused to accompany the appellant/accused. But, the appellant/accused taken her as her father called her so that she went along with him. He took her to the coconut thope and forcibly had sexual intercourse with her. The medical examination conducted by the doctor only on 19.01.2015. Therefore, absence of semen is possible

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On gentle examination doctor had disclosed that two fingers permitted in the vagina. The over all examination of the Medical Report indicates that the victim was subjected to sexual

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intercourse and the victim also narrated the incident before the doctor and disclosed that the accused had sexual intercourse with her. The mere fact that no injuries were found on the private part of her body cannot be a ground to hold that no rape was committed upon her.

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32.In a case of rape of minor girl, the consent of the victim is immaterial. Further, sole testimony of the prosecutrix is enough. It is a settled law that conviction may be recorded on the sole testimony of the victim prosecutrix if her evidence inspires confidence. In the case of State of Punjab Vs. Gurmit Singh and Others reported in [1996 2 SCC 384] the Hon'ble Apex Court held that the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with case involving sexual mole stations. The Court has further held that the evidence of the victim of sexual assault stands almost on par of with the evidence of injured witness and to an extent even more reliable. Such evidence is entitled to great weight, corroboration not required.

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Further, observation of the Hon'ble Apex Court in O.M.Baby (Dead) by LRs.v. State of Kerala [2012 Cri LJ 3974 (SC)]'' is also to be noted for better appreciation. It runs as follows:

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''19. In the context of Indian Culture, a woman victim of sexual aggression, would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.''

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The argument of the appellant counsel with regard to contradictions with evidence of victim and the doctor (P.W.12) is immaterial. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. In this case, the evidence of the victim girl (P.W.1) is credible and trustworthy. The case of such solitary witness was considered by the Hon'ble Apex Court in Vadivelu Thevar vs State of Madras reported in [AIR 1957 SC 614] and after referring to the earlier case it was held that as a general rule, the Court may act on the testimony of a single witness though uncorroborated. In view of the above Principle the argument of the learned counsel for the appellant that the evidence of the victim is un-corroborated by other witnesses is unsustainable. Hence rejected.

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35.An unmerited acquittal on benefit of doubt does no good to society. If prosecution has succeeded in making out a convincing case for recording a finding as to accused being guilty, the Court should not lean in favour of acquittal by giving weightage to insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none reasonably exists.

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36.The trial Court rightly relied upon the evidence of the victim girl and found guilty, the charges were proved against the accused. I find no reason to interfere with the judgment of the trial Court. Hence, I confirm the finding against the accused.

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37.In the result, the Criminal Appeal is dismissed. The conviction and sentence imposed on the appellant by the Trial Court in Special S.C.No.7 of 2015 dated 16.08.2016 is hereby confirmed. The Sessions Judge, Mahila Court (FTC), Dharmapuri is directed to secure the custody of the accused/appellant to undergo the remaining period of imprisonment, if the accused had obtained any bail during the pendency of the appeal. Consequently, connected miscellaneous petition is closed.

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s/dAssistant Registrar

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True Copy

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Sub-Assistant Registrar

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vsn To

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