Anthony Prabhu @ Prabhu v. State

4Crl.A.No.190 of 20174. After hearing both sides, on consideration, charge under was Sections 5(l) read with 6 of the POCSO Act, 2012 was framed against the accused. When the accused was questioned, he denied the said charge.5. To substantiate the charge, on the prosecution side, 16 witnesses were examined. 25 documents and three material objects were marked. On the defence side, two witnesses Pieula (D.W.1) and Irudhaya Raj (D.W.2) were examined.6. The learned counsel Mr.T.Shanmugam appearing for the appellant/accused vehemently contended that non-examination of father of the victim is fatal to the prosecution case. Though he was said to have been enquired by the police, but his name is not shown in the witnesses list. It is his further contention that as the husband of P.W.1 (Susila) misbehaved with the wife of accused, on the same day in order to thwart the case, husband of P.W.1 has falsely given complaint through his wife against the accused.

He would strongly contend that age of the victim was not clearly proved by the prosecution side. He also drew the attention of this Court that Dr.Divya (P.W.8) in her medical examination report (Ex.P10), relating to victim has opined that there is no evidence of recent intercourse, would go to show that the complaint is a false one. It is his further argument that in Ex.P.3 study certificate of the victim, name of the father of victim is mentioned as R.Ganeshan. Belated lodging of complaint https://www.mhc.tn.gov.in/judis 5Crl.A.No.190 of 2017is also fatal to the prosecution case which is not explained properly. Based on the above said details, the charge under Section 5(l) read with 6 of the Act, framed against the accused has not been proved beyond reasonable doubt by the prosecution side and the trial Court has proceeded on the wrong footing and hence, conviction of the accused may be set aside.7.

Per contra Ms. G.V.Kasthuri, learned Additional Public Prosecutor would strenuously argue that to substantiate the charge against the accused, the evidence of P.W.2 (Victim) has been well corroborated by the evidence of P.W.1 (Susila - Mother of the Victim) coupled with the medical evidence and the relevant certificates/reports are suffice to bring home the guilt of the accused. It has been alleged that as the husband of P.W.1 misbehaved with the wife of accused on the date of occurrence; no crime number is given for the complaint of the accused's wife would go to show that just for the name sake, the allegation is raised in order to weaken the prosecution case.8. The learned Additional Public Prosecutor drew the attention of this Court that the accused's wife Priya did not lodge complaint against the father of the victim at all. https://www.mhc.tn.gov.in/judis 6Crl.A.No.190 of 20179. To buttress her arguments, the following judgment of Hon'ble Supreme Court rendered in Yuvaprakash Vs.

State represented by Inspector of Police reported in 2023 SCC Online 846 was referred to.10. The evidence of D.W.1 and D.W.2 cannot be believed for the simple reason that no complaint was lodged by the wife of the accused-Priya. It is her final argument that the trial Court has discussed in a proper perspective and gave a finding that the accused is guilty of offence under Section 5(l) read with 6 of the POCSO Act.11. Meaning for sexual assault under Section 2(i) of the POCSO Act, 2012 is extracted hereunder:-“Section 2(i) - “Sexual Assault” has the same meaning as assigned to it in Section 7. Section 7 – Sexual assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” 12.

Sections 5(l) and 6 of the POCSO Act, 2012 is extracted hereunder:-

Section 5 Aggravated penetrative sexual assault:- https://www.mhc.tn.gov.in/judis 7Crl.A.No.190 of 2017(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; Section 6 - Punishment for aggravated penetrative sexual assault:- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.

13. Child is defined in Section 2(d) of the POCSO Act, 2012"Section 2(d): Child "means any person below the age of eighteen years"14. Mr.T.Shanmugam, learned counsel appearing for the appellant/accused would contend that the complaint was lodged belatedly. It is not in dispute that the date of occurrence is 13.11.2015. Ex.P.1 is the complaint.

From the endorsement details made by the P.W.12 Sharmila (Police Constable), it appears that the case was registered on 13.11.2015 at about 22.00 hours. 15. It is the evidence of P.W.1 (Mother of Victim) that she immediately sent intimation to her husband, thereafter her husband reached home, she went to the police station along with her husband and https://www.mhc.tn.gov.in/judis 8Crl.A.No.190 of 2017daughter and Iodged the complaint. P.W.1 exactly at what time she went to the police station is not elicited during her examination.16. However, it is evident that when the victim went to her house on 13.11.2015 at about 9.00 a.m she was unwell. It has come on record through the evidence of victim (P.W.2) herself that on the date of occurrence, after attending to her natural call, she went home by 9.00 a.m, she was feeling so tired and after changing her dress, she laid down. When her mother told her to go to school, she was not in a position to get ready in order to go to school.

Therefore, in such a situation, after hearing about the incident, any parent would never be in a normal condition. It would take sometime to take a decision whether to approach the police station or not as it involves future of girl/daughter. So in these circumstances, one cannot expect that soon after the not occurrence, the complaint was not lodged would not affect the merits of the case.17. The next point put forth by the learned counsel for the appellant/accused is that the non-examination of husband of P.W.1 is fatal to the prosecution case. P.W.2 victim is the only ocular witness who speaks about the occurrence. It is the evidence of mother of the victim (P.W.1) that as her daughter was lying on the bed, she told her to go to school, the victim explained to her about the occurrence. In these https://www.mhc.tn.gov.in/judis 9Crl.A.No.190 of 2017circumstances, non-examination of husband of P.W.1 will no way affect the merits of the case and I do not find any force in his arguments.18.

As regards the age of the victim, the study certificate along with birth certificate of the victim is marked as Ex.P.3 issued by the Headmaster, Bethlehem Girls Higher Secondary School, Ooty on 17.11.2015. The date of birth of the victim as per the school records is mentioned as 18.05.2002. The year details is over written. However, the date of birth is written in words. She was studying in IX-D Section during the academic year 2015-2016. P.W.2 (Victim) has also in her statement under 164 Cr.P.C., has stated that she was studying in IX Standard. As per the Ossification test report (Ex.P.12) age of the victim is mentioned as above 15 years and below 17 years of age on the date of examination 19.11.2015 by Dr. A.M.Seeman (P.W.9), Radiologist.19. When Ex.P.3 Study certificate was marked through the mother of the victim, no question was posed about the veracity of the said document. Among all the witnesses, mother of the child (P.W.1) is the best person to speak about the date of birth of her child.

The Hon'ble Supreme Court in Yuva prakash vs. State represented by Inspector of Police reported in 2023 SCC Online SC 846 has observed that: https://www.mhc.tn.gov.in/judis 10Crl.A.No.190 of 2017"12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:94. Presumption and determination of age. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any https://www.mhc.tn.gov.in/judis 11Crl.A.No.190 of 2017other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. " 20. The Hon'ble Supreme Court in Sanjeev Kumar Gupta Vs. The State of Uttar Pradesh reported in (2019) 9 SCR 735 has held that: "Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94 (2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000.

Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In https://www.mhc.tn.gov.in/judis 12Crl.A.No.190 of 2017 Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.” 21. The Hon'ble Full Bench of the Supreme Court in Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal reported in (2012) 9 SCR 224 has held that the burden of proving that someone is juvenile (or below the prescribed age) is upon the person claiming it.22. Therefore, it is clear that as per Section 94(2) and (3) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the date of birth certificate from the school or matriculation or equivalent certificate issued by the examination board has to be given first preference in the absence of birth certificate issued by the corporation or municipal authority or panchayat.

In the absence of these documents, the age of the child has to be determined through the ossification test or any other latest medical age determination test.23. In this case, in the Study Certificate (Ex.P3), the date of birth is mentioned as 18.05.2002 and her age is mentioned as 13. Victim has stated that at the relevant point of time she was studying at IX standard. No question was posed to P.W.1 (Mother of the victim) as to whether the child failed or in which year or in which age, the child was admitted in the https://www.mhc.tn.gov.in/judis 13Crl.A.No.190 of 20171st class. Therefore, relying upon Ex.P.3 study certificate, age of the victim is fixed at 13 years and 6 months. Mother of the victim P.W.1 stated that dated of birth of her daughter is 18.05.2002. No question was posed either to P.W.1 or to the victim P.W.2.24. P.W.1 Susila who is the mother of the victim and P.W.2 is victim Minor 'X'.

P.W.3 Sathish Kumar who is the Pastor of the Church is observation mahazar witness (Ex.P 5). P.W.4 Ranjith Kumar who is also Pastor of the Church has to some extent spoken about the occurrence. P.W.5 Babu, Neighbour of the P.W 1 has not supported the prosecution case. P.W.6 Dr.Harihara Subramanian, Medical Officer of Government Hospital, Ooty had seen the victim and issued accident register Ex.P.7. P.W.7 Dr.Karthick Balaji, Medical Officer of Ooty Government Hospital has issued potency certificate for the accused (Ex.P.9). P.W.8 Dr.Divya, Medical Officer of Government Hospital, Ooty has examined the victim and Ex.P.10 Case sheet pertains to the victim. P.W.9 Dr.Seeman, Radiologist who conducted ossification test upon the victim and issued certificate Ex.P.12 wherein the age of the victim is found as above15 years and below 17 years. P.W.10 Mr.P.Vijaykumar, Scientific Officer has issued Chemical Analysis report Ex.P.14 and Ex.P.15.

P.W.11 Ramya is the child counsellor. P.W.12 Sharmila is the Police Constable who registered the https://www.mhc.tn.gov.in/judis 14Crl.A.No.190 of 2017case against the accused on 13.11.2015 in Crime No.5 of 2015 of Ooty All Womens Police Station. P.W.14 to 16 are Investigating Officers. 25. It is the evidence of P.W.1 (Susila/mother of the victim) that on 13.11.2015 as they do not have toilet facility at her residence, her daughter went out to attend natural call by 6.45 a.m. after sometime her daughter did not return home. She had to go for work after leaving her daughter in the school. As search was made around her house and at 'Solai', she could not found out her daughter. At about 9.00 a.m, her daughter came home, after changing her dress she was lying down. When she enquired her daughter, her daughter told her that the accused sexually assaulted her by removing her clothes at Solai. She immediately sent intimation to her husband to come home and proceeded to the police station after arrival of her husband.26.

The victim P.W.2 Ms.'X' in her evidence would state that when she was left alone at her home, accused used to come to her home during the lunch break and he would play game in the cell phone. When she was playing game in the cell phone of her father, the accused used to ring up to her and she used to go to his residence. When she went to the residence of accused as nobody was there at his residence, the accused https://www.mhc.tn.gov.in/judis 15Crl.A.No.190 of 2017told her to remove her clothes and he also removed all his dresses. In her own words, vjpup jd; Dila a{hpd; nghtij vLj;J ehd; a{hpd;

nghFk; ,lj; jpy; itj;J mKf;Fthh;. mg; nghJ vdf;F typahfp ehd; fj; JtJ nghy; ,Uf;Fk; Mdhy; fj;j Koatpy; iy/ vjpup vd; Dila khh; gf';fis mKf;fptpLthh;/ vdf;F typahfptpLk;/ Jzpia khw; wpf; bfhz;L tPl;ow;F nghFk;go brhy; thh;/ 14/02/2015 md;W ntyild;!; nl vd;W brhy; yp vjpup vd; id yt; bra; jhf brhd; dhh;/ mjw;F mu;j;jk; vdf;F bjhpatpy; iy/ ,e;j r';fjpfis vd; mk; kh mg; ghtplk; brhd; dhy; bfhd;W tpLntd; vd;W vjpup mz; zd; brhd; dhh;/ 13/11/2015 md;W fhiy fhiyfld; fHpg; gjw;F ehd; nrhiyf;F nghndd;/ ehd; nghtij ghh;j;J vjpupa[k; gpd; dhona te; Jtpl; lhh;/ m';F vjpup jd; Dila a{upd; nghtij vLj;J ehd; a{upd; nghFk; ,lj; jpy; itj;J mKf;fpdhh;/ ,Jnghy; 2 Kiw bra; jhh;/ vdf;F kpft[k; nrhh; thfptpl; lJ/ fj; JtJ nghy; Mfptpl; lJ Mdhy; fj;j Koatpy; iy/ ou!;i! nghl; Lf;bfhz;L ngh vd;W me;j mz; zd; brhd; dhh;/ vjpupa[k; ou!;i! nghl; Lf;bfhz;L ngha; tpl; lhh;/ ehd; tPl;ow;F te; jt[ld; vdf;F lau; lhf ,Ue;jjhy; ou!;i! khw; wpf; bfhz;L gLj;Jtpl; nld;/ gs; spf;F nghtjw; fhf vd; mk; kh vd; id vHr;brhd; dhh;/ vd; dhy; ve; jpupf;f Koatpy; iy/ vd; mk; kh kpul;o nfl; lhh;. ehd; ele;j vy; yh r';fjpfisa[k; brhd; ndd;/

https://www.mhc.tn.gov.in/judis 16Crl.A.No.190 of 201727.

Statement of the victim under Section 164 Cr.P.C was recorded by the learned Judicial Magistrate, Kotagiri is Ex.P.4. Her 164 statement is extracted hereunder:eh';f te; Jtpl;L g[Jke; Jy ,Ue;njhk;. 20k; njjp

bts; spf; fpHik gpug[ vd; wtU te;J Tg;gpl; lhU/ m';f ghj; Uk; trjpapy; iy/ nrhiyf; Fjhd; nghDk;/ ehd; nrhiyf;F nghndd;/ mg;g me;j mz; zh igf; if epg; ghl; ol;L epd; dh';f/ mg;g ,e;j mz; zh Vd; ,';nf epd; fpwh';fd;D kdrpny bedr; rpl;L ehd; fPnH ghj; Jl;nl nghndd;/ mg;g me;j mz; zh thd;D Tg;gpl; lh';f/ ehd; tukhl; nld;D brhd; ndd; mt[';f ifa gpor; rp vd;d nrhiyf; Fs;ns ,Gj;Jl;L nghdh';f/ eh fj; jyhk;D bedr; rg;g vd; dhny fj;j Koany/ mg;g te; Jl;L ngrhk thd;D me;j mz; zh thapy mor; rpl; lh';f/ mg;g[w nrhiyf; Fs;ns Tl;ol; Lg; nghapl;L vd;d fl; og; gpor; rhU/ vd; id cjl; ony fp!; gd; dh';f/ ou!;r fHl;odh';f/ m';nf ,';bfy; yhk; ifia tr; rh';f/ mt';fSk; ou!; fHw;wpdh';f/ V';fpl; nl jg; gh ele; Jfpl; lh';f/ mg;g[wk; tPl;Lf;FnghD brhd; dh';f/ ,j ahUfpl; nlahtJ brhd; dPdh cd; id bfhd; DLntd;D brhd; dh';f/ me;j mz; zh vd; id nrhiyf; Fs;ns Tl;ol;L nghdg;g ehd; v';f mk; kh mg; ghfpl; nl brhy; Yntd;D brhd; ndd;/ c';f mk; kh mg; ghfpl; nl brhd; dh c';f mk; kh mg; ghita[k; bfhd; DLntdd;D brhd; dhU/ mg;g[wk; eh ngrhk ngha; tPl;Ly gLj;Jl;nld;/ mg;g kk; kp te;J xd; Dk; nff; fy/ vdf;F epjhdnk ,y;yhk ,Ue;Jr;R/ K:d;iw https://www.mhc.tn.gov.in/judis 17Crl.A.No.190 of 2017kzpf; Fjhd; vdf;F epjhdk; bjspr; Rr;R/ ehd; ghh;f;f lah;l;M ,Ue;jjhny kk; kp vd;d vd;W nfl; lh';f/ mg; ng kk; kpf; fpl;l brhd; ndd;/

28.

It is the evidence of P.W.3 Sathish Kumar that on 13.11.2015 at about 11.00 p.m., police came to the house of P.W.1 and inspected the house of P.W.1, accused house and 'Solai', and prepared observation mahazar and rough sketch. Wherein, he along with Mariyaxavier attested the same (Ex.P.5).29. P.W.4 Ranjith Kumar, Pastor of Church would depose that on 13.11.2015, P.W.1 Susila at about 7.00 to 7.30 a.m., was came to his house and told that her daughter was found missing. Despite being searched, victim could not be found. When he was doing prayer at the residence of P.W.1, victim knocked the door and P.W.4 opened the door. He found the victim was looking so tiresome and about to fall on the ground. She was made to lay down on woollen blanket and he went to the wedding function which was going on, opposite to the house of P.W.1.30. P.W.5 Babu, who was an independent witness did not support the prosecution case and he was treated as hostile witness by the prosecution side. https://www.mhc.tn.gov.in/judis 18Crl.A.No.190 of 201731.

It is the evidence of P.W.6 Dr.Harihara Subramaniam that the victim 'X' was brought to the Ooty Government Hospital on 14.11.2015 in connection with Crime No.5 of 2015 of Ooty All Women Police Station. On enquiry, the victim told her that few days before she was sexually assaulted for several times. Accident Register is Ex.P.7.32. It is the evidence of P.W.8 Dr.Divya that the victim was brought to her on 14.11.2015, for medical examination as per the reference of Dr.Harihara Subramaniam (P.W.6). No external injury was found on the victim. Swab was received was taken and the result was received as negative. It is her opinion that there is no evidence of recent intercourse. Neonatal Case Sheet of victim (Ex.P.10) has been here was issued by Dr.Divya (P.W.8) wherein it has been recorded that her hyme was not intact.33. Ossification test was conducted upon the victim by Dr.Seeman as (P.W.9) on 19.11.2015.

Dr. Seeman fixed the age of the victim as above 15 and below 17 years (Ex.P.12). It is the evidence of P.W.10 Vijay Kumar, Scientific Officer that the dress of the victim were received and no spermatozoa was deducted in the pubic hair and vaginal smear. It has come was on record through P.W.11 Ramya who was the child counsellor https://www.mhc.tn.gov.in/judis 19Crl.A.No.190 of 2017that she enquired the victim who was produced before her for counselling. Her report Ex.P.17 is extracted hereunder:-“md;W rpWkp fhiy Rkhh; 6/45 kzpf;F fhiy fld; fHpg; gjw; fhf “X” fk; gpnrhiyf;F brd; Ws;shh;/ rpWkp brd;W btF neukhfpa[k; fhzhjjhy; rpWkpia jha[k;. mz; zDk; mf; fk; gf; fk; njog; ghh;j;j nghJ rpWkp nrhh;e;J nghd epiyapy; 9/00 kzpf;F tPL jpUk;gp nrhh; thf gLj;Js;shs;/ rpWkpapd; jha; gs; spf;F bry;y jahh; Mfk; go vGg;gpa[k; vH Koahky; gLj;jpUe;j rpWkpaplk; mjl; of; nfl; lnghJ gf; fj;J tPl;oy; trpf; Fk; me; njhzp gpug[ vd; gtUld; gpg; uthp 2015 Kjy; gHfp te; jjhft[k;. mtiuf; fhjypg; gjhft[k; Twpa[s;shs;/ nehpYk;. bjhiyngrpapYk; mof; fo ngrp te; jjhft[k;. gpg; uthp 14Mk; njjp mtdJ tPl;oy; ahUk; ,y;yhj nghJ jd; id fl; lhag; gLj;jp clYwt[ bfhz; ljhft[k; Twpdhs;/ Rkhh; gj;J Kiwf;F nky; ghypay; td; bfhLikf;F cl; gl; ljhf Twpdhs;/” 34.

P.W.14 to P.W.16 are the investigating officers. P.W.14 Vinyagam, Investigating Officer took up case for investigation and proceeded to the seen of occurrence. In the presence of one Mariyaxavier and Sathish Kumar (P.W.3) inspected the scene of occurrence and prepared observation mahazar and rough sketch. He examined Susila (P.W.1), Victim (P.W.2), David, Mariyaxavier, Sathish, Ranjith Kumar https://www.mhc.tn.gov.in/judis 20Crl.A.No.190 of 2017(P.W.4), Babu (P.W.5) and recorded their statements. The victim was sent to the Saras Trust with the women police. Accused was arrested on 14.11.2015 at about 6.00 a.m., near the poultry farm and his voluntary confession was recorded in the presence of the above said two witnesses and he was sent to the Judicial Magistrate. The victim was sent for medical examination as well as for giving statement under Section 164 Cr.P.C.35. Thereafter, P.W.15 Ms.Thangam took up the case for investigation and as per the Order of the Court, the victim was taken to the hospital on 19.11.2015 and produced before the Radiologist (Dr.Seeman).

Accused was subjected to medical examination. The statement under Section 164 Cr.P.C of the victim was recorded by the learned Judicial Magistrate, Kothagiri. Medical test was conducted upon the accused as well as the victim on 26.11.2015.36. It is the evidence of P.W.16 Ms. P. Parvathi, Investigating Officer that as part of investigation, she examined the witnesses Susila (P.W.1), Victim 'X' (P.W.2), David, Mariyaxavier, Sathish Kumar (P.W.3), Ranjith Kumar (P.W.4) and Babu (P.W.5). She has examined Dr.Harihara Subramanian (P.W.6), Dr.Karthick Balaji (P.W.7), Dr.Divya (P.W.8), Dr.Seeman (P.W.9), Mr.Vijay Kumar (Scientific Officer) (P.W.10) and https://www.mhc.tn.gov.in/judis 21Crl.A.No.190 of 2017Ms.Ramya, District Children Welfare Committee Member (P.W.11) and recorded their statements. She altered the provisions from Sections 3, 4 and 8 of the POCSO act, 2012 to Section 5(l) read with Section 6 of the POCSO Act and filed final report under Section 376 IPC and under Section 5(l) Section read with Section 6 of the POCSO Act, 2012.37.

A suggestion is posed to the material witnesses during cross examination that the husband of P.W.1 (Susila - Mother of the victim) misbehaved with the wife of the accused Priya. In order to escape from the same, P.W.1 husband through his wife has lodged a false complaint. P.W.1 who is the mother of teenage girl has given complaint that her daughter was ravished by the accused. No mother would dare to lodge such a complaint at the request of her husband that her minor daughter is sexually assaulted. The suggestion put forth by the accused is not acceptable for a moment.38. At relevant point of time, the accused was aged about 31 years. Age of the victim is fixed at 13 years as per study certificate / Ex P3.39. From the evidence of P.W.2 victim that the accused with the intention to gain the confidence of the victim and thereafter started to sexually assaulted her by calling her to his residence when he was alone. https://www.mhc.tn.gov.in/judis 22Crl.A.No.190 of 2017 The evidence of victim shows that on his call she used to go to his residence and he sexually assaulted her.

Her innocence was being misused by the accused. When the accused was questioned under Section 313 Cr.P.C. he has answered that false case is foisted against him as there is a family dispute between the defacto complainant and himself. 40. In this circumstances, presumption under Section 29 of the POCSO Act, 2012 comes into play. By way of rebuttal, accused has examined two witnesses D.W.1 and D.W.

It is the evidence D.W.1 Pieula that on 13.11.2015 at about 7.00 a.m. wife of accused was crying and came out from her house followed by David (Husband of P.W.1) from the kitchen of the accused house. When she enquired the wife of accused, she told that David came to her house in order to get spade and he misbehaved with her. When accused rang up to the Police Station, meanwhile, David went to the Pudhumunthu Police Station and lodged a complaint against the accused to the effect that the accused misbehaved with his daughter in order to hide his mistake. During her cross examination when she was posed a question that in what way David misbehaved with Priya, for that she has answered that accused wife Priya did not tell her anything about that.41. In the same line another witness one Irudhaya Raj was examined (D.W.2). It is the evidence of D.W.2 that he along with D.W.1 https://www.mhc.tn.gov.in/judis 23Crl.A.No.190 of 2017went to the police station at about 8.00 a.m., and lodged a complaint.

The Inspector of Police, All Women Police Station, Ambur, Uthagai, https://www.mhc.tn.gov.in/judis 27Crl.A.No.190 of 2017R.KALAIMATHI,J.macCrl.A.No.190 of 201728.03.2024