Jayakumar Vs State Rep by

PRAYER: Criminal Appeal filed under Section 374 (2) Cr.P.C., to set aside the conviction and sentence imposed on the appellant by the judgment dated 09.03.2021 passed in Special SC.No.23/2018 on the file of the Mahalir Neethi Mandram (Fast Track Mahila Court), Namakkal.

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For Appellant(s): Mr.M.Karthik

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For Respondent(s): Mr.S.Rajakumar Additional Public Prosecutor

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JUDGMENT

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This appeal has been filed challenging the conviction and sentence

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imposed on the appellant vide judgment passed on 09.03.2021, in Spl.C.C.No.23 of 2018, on the file of the learned Sessions Judge, Sessions Court (Fast Track Mahila Court) Namakkal.

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2.The case of the prosecution is that on 25.05.2015 at about 4:00 p.m.,

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when the victim girl who was the neighbour of the appellant went to attend

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nature's call in a vacant land, the appellant hugged and kissed her with sexual intention; that one Chinrasu, who was then a Juvenile had photographed the said incident; that the appellant threatened that he will circulate the said photographs, if the victim discloses the said incident to any person and thus committed the offences under Sections 8 of the POCSO Act and Section11(v) r/w 12 of the POCSO Act.

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3.The FIR, Ex.P4 was registered on 03.06.2015, on the complaint, Ex.P1 given by PW1 father of the victim. PW11, the Inspector of Police took up the case for investigation after registering the FIR. He had seized the mobile phone from the Juvenile accused Chinrasu and, produced the Juvenile accused before the Juvenile Justice Board. The victim girl was sent for medical examination. Thereafter, PW11 handed over the investigation to PW12, who filed the final report against the appellant for the aforesaid offences before the learned Sessions Judge, Sessions Court (Fast Track Mahila Court) Namakkal, which was taken on file as Spl.C.C.No.23 of 2018.

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4.On the appearance of the accused, the provisions of Section 207 Cr.P.C.,

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were complied with and the trial Court framed charges against the accused, and when questioned, the accused pleaded 'not guilty'.

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5.To prove the case, the prosecution had examined 12 witnesses PW1 to

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PW12 and marked Exs.P1 to P6. When the accused was questioned, u/s.313(1) (b) Cr.P.C., on the incriminating circumstances appearing against him, he denied

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the same. The accused neither examined any witness nor marked any document on his side.

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6.On appreciation of the oral and documentary evidence, the trial Court convicted and sentenced the appellant to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to pay the fine, to undergo six months simple imprisonment, to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to pay the fine, to undergo six months simple imprisonment under Sections 11(v) r/w 12 of the POCSO Act. Challenging the said conviction and sentence, the accused has preferred the instant appeal.

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7.Heard Mr.M.Karthik, learned counsel for the appellant and Mr.S.Rajakumar, learned Additional Public Prosecutor for the respondent.

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8.The learned counsel for the appellant would submit that the victim's evidence cannot be believed; that though it is the prosecution case that the alleged incident was photographed, the respondent police had not produced the photos or the mobile phone, which were alleged to have been seized from the Juvenile accused Chinrasu; that therefore, the Court has to draw adverse

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inference against the prosecution for non production of those vital evidences; that the Juvenile accused was tried before the Juvenile Justice Board and was acquitted by judgment dated 11.11.2022, in J.C.No.20 of 2018, by the Juvenile Justice Board, Namakkal and that considering the above facts and the delay in lodging of the complaint, the impugned judgment cannot be sustained and prayed for acquittal.

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9.The learned Additional Public Prosecutor confirms the fact that the Juvenile accused was tried before the Juvenile Justice Board, Namakkal and was acquitted for the offence under sections 11(v) of the POCSO Act and that the prosecution has not given any explanation for not producing the photos and the mobile phone said to have been seized from the Juvenile accused.

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10.As stated earlier, the prosecution has examined 12 witnesses to prove the case. PW1 is the father, who had heard the incident from the victim and lodged the complaint on 03.06.2015. PW2 is the victim. PW3 is the mother of the victim, who corroborates the evidence of PW1. PW4 is a hearsay witness, who would depose that he heard about the incident from PW1 to PW3. PW5 and PW6 are also hearsay witnessess, who turned hostile. PW7 is the witness, who signed in the observation Mahazar, Ex.P2. PW8 is the Revenue Inspector, who had signed in the confession of the appellant. PW9 is the Special Sub Inspector, who registered the FIR. PW10 is the Head Master, who had deposed

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that the victim girl was born on 10.03.2001 and was aged 14 years at the time of occurrence. PW11 is the Inspector of Police, who had conducted the initial investigation. PW12 is the Inspector who filed the final report.

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11.From the above description, it would be clear that the prosecution case

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therefore rests on the evidence of PW2 and that of PW1, who had lodged the complaint. The question is whether PW1 and PW2 can be believed to convict the appellant for the aforesaid offences. The allegation as stated above is that the appellant had kissed the victim girl and a photo was taken by the Juvenile accused, who was tried separately. The Juvenile accused who was charged for the offence under section 11 (v) of the POCSO Act had been acquitted of the offence. The prosecution has not produced the mobile phone or the alleged photos said to have been taken by the Juvenile accused in this case. The investigation officer has no explanation to offer as to why the photo or the mobile phone said to have been seized during the course of investigation were not marked in the trial. Therefore, as rightly submitted by the learned counsel for the appellant, adverse inference has to be drawn against the prosecution.

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12.Be that as it may, the alleged occurrence is said to have taken place on 25.05.2015. The handwritten complaint Ex.P1 given by PW1 is dated 03.06.2015. The FIR was registered on 03.06.2015 at 13:30 hours. In the complaint, there is an interpolation as regards the date of occurrence which has

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been added subsequently. This is admitted by PW11 in his cross examination. The relevant portion of the cross examination reads as follows:

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rk;gtk; ele;J 8 ehl;fs; fhy jhkjkhf jhd; g[fhh; bfhLf;fg;gl;Ls;sJ vd;why; rhpjhd;/ g[fhh; kDtpy; rk;gtk; ele;j njjp jdpahf mk;g[ Fwpapl;L vGjg;gl;Ls;sJ vd;why; rhpjhd;/ mjd; mUnf RUf;bfhg;gk; vJt[k; ,y;iy vd;why; rhpjhd;/ g[fhh; 3/6/2015 md;W bfhLf;fgl;ljhf Kjy; jfty; mwpf;ifapy; Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;/ g[fhhpy; Kjy; gf;fj;jpy; tyJ nky; gf;fj;jpy; 2/6/2015 vd;W njjp cs;sJ vd;why; rhpjhd;/

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13.That apart, there is no explanation offered by the prosecution or by PW1 for the delay in lodging the complaint. In the deposition, PW1 does not refer to the date of occurrence. He would vaguely state that the occurrence took place three years ago. He would state that the victim informed him 2 or 3 days after the alleged incident and that he came to know about the occurrence through a WhatsApp message. Even that message has not been marked through PW1. It is in the light of the above circumstances, this Court has to examine the evidence of PW2, the victim. It is well settled that if the FIR is doubtful and has been lodged belatedly, the entire fabric of the prosecution case would collapse and the evidence of the witnesses would be of no avail to the prosecution. In Marudanal vs. State of Kerala , reported in (1980) 4 SCC 425 ,

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the Hon’ble Supreme Court has held as follows:

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“ The High Court seems to have overlooked

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the fact that the entire fabric of the prosecution case

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would collapse if the FIR is held to be fabricated or

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brought into existence long after the occurrence

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and any number of witness could be added without there being anything to check the authenticity of

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their evidence”.

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14.Further the occurrence is said to have been photographed by the Juvenile accused. Neither his mobile phone nor the pictures were produced before the trial Court. The Juvenile accused has also been acquitted.

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15.In the light of the above evidence, the fact that there is an unexplained

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delay in lodging of the complaint and the fact that the date of occurrence has been altered raises a substantial doubt in the prosecution case. It would be highly unsafe to convict the appellant on such evidence. This Court is of the view that the conviction cannot be sustained. Therefore, this Court is inclined to set aside the judgment of conviction and sentence passed on 09.03.2021, in Spl.C.C.No.23 of 2018, by the learned Sessions Judge, Sessions Court (Fast Track Mahila Court) Namakkal.

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16.In the result, this Criminal Appeal is allowed. The judgment of

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conviction and sentence passed on 09.03.2021, in Spl.C.C.No.23 of 2018, by the learned Sessions Judge, Sessions Court (Fast Track Mahila Court) Namakkal, are set aside and the appellant/accused is acquitted of all the charges.

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Fine amount, if any, paid shall be refunded. Bail Bonds, if any, executed shall stand cancelled.

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16-12-2025

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Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No sli

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To

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1.Mahalir Neethi Mandram (Fast Track Mahila Court), Namakkal.

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2.The Inspector of Police, Namagiripettai Police Station, Namakkal District Crime No.159 of 2015.