IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.08.2009 CORAM: THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Appeal No.475 of 2009 Vinod @ Anthony Vinod ..Appellant vs. State by the Inspector of Police, All Women Police Station, Thudiyalur, Coimbatore Dist. (Crime No.19 of 2005) ..Respondent PRAYER: Criminal Appeal filed under Section 374(2) Cr.P.C. praying for the relief stated therein. For Appellant : Mr.K.Kalyanasundaram For Respondent : Mr.J.C.Durai Raj, G.A. O R D E R The criminal appeal is preferred against the judgment dated 22.7.2009 made in S.C.No.380 of 2006 by the learned Sessions Judge, Magalir Neethimandram, Coimbatore. 2. The appellant herein, who is an accused in S.C.No.380 of 2006 on the file of the Sessions Judge, Magalir Neethimandram, Coimbatore, stands convicted for an offence punishable under Sections 363 and 366 IPC and sentenced to undergo R.I. for a period of two years and to pay a fine of Rs.1,000/=, in default to undergo S.I. for six months for the offence punishable under Section 363 IPC and further sentenced to undergo R.I. for ten years and to pay a fine of Rs.2,000/-, in default to undergo S.I. for one year for the offence punishable under Section 366 IPC, which sentence to run concurrently. Aggrieved by the above said conviction and sentence, the appellant has preferred this appeal. 3. The charge against the appellant/accused is that on 13.6.2005, at about 19.00 hours, near the Main Gate of Carewell Matriculation School, Mettupalayam, while the victim Nancy Thomas was at the said school attending Special Class for the 10th Standard examination and was in the School uniform, the accused knowing that https://hcservices.ecourts.gov.in/hcservices/ the victim is a minor, induced and persuaded her to accompany him in the late evening time, saying that he was in deep love with her and wants to marry her. Upon such inducement and persuasion, the victim girl Nancy Thomas could not realize the significance of the Criminal Act of the accused, accompanied the accused in a Car, which was brought by the accused and proceeded to Ooty Main Road near 5th Hairpin bend and thereupon again to Mettupalayam and then to Bangalore via Coimbatore against the consent and knowledge of her parents. During the course of the same transaction, the accused after taking the minor girl Nancy Thomas from the said school proceeded to Ooty Main Road near 5th hairpin bend at about 21.00 hours, inside the Car and on its backside, the accused had sexual intercourse with the victim by obtaining her consent giving her false promise of marriage and giving rise to hope that nobody will separate them if so marry him and by saying he was in deep love with her and wants to marry her and thereby the accused appears to have committed an offence punishable under Sections 363, 366 and 376(1) IPC. 4. In order to establish the charge, the prosecution examined 11 witnesses as P.Ws.1 to 11, marked 7 exhibits as Exs.P.1 to P.7 and produced 5 material objects as M.Os.1 to 5. After the examination of the witnesses, the accused was questioned under Section 313 Cr.P.C. and the accused had denied his complicity. The appellant/accused has not examined any witness on his side. 5. The present evidence of P.W.1 is that he is the resident of Mettupalayam and his daughter's name is Nancy Thomas, whose date of birth is 26.10.1990. In the year 2005, his daughter was studying 10th Std. in Carewell Matriculation School, Mettupalayam. On 13.6.2005, his daughter, who went for tuition class, did not return home. At about 8.30 p.m. he informed the Police Station about his missing daughter and on the next day, he went to the All Women Police Station, Thudiyalur and gave Ex.P.1 complaint. 6. The evidence of P.W.2 Nancy Thomas is that on 13.6.2005, she returned from the School and that she was scolded by her father as she was not studying well. Then at about 6.00 p.m. she went to attend the tuition class and after the classes were over, she had gone to her grandmother's house. The next day she went to her parents house. In the meantime, the complaint had been given by her father as if she was missing. She had further deposed that she was subjected to medical examination and a Doctor had examined her in the Coimbatore Medical College. 7. P.W.3 is the Headmistress of Carewell Matriculation School, Mettupalayam, and she issued Ex.P.2 Certificate. P.W.4 is the Ward Councillor of Mettupalayam Municipality and he had deposed to the effect that he knows P.Ws.1 and 2 and during the year 2005, P.W.1 contacted him and informed that his daughter was missing from 6 or 7 a.m. onwards. On the next day, he came to know that P.W.2 was https://hcservices.ecourts.gov.in/hcservices/ rescued. P.W.5, who is also the Ward Councillor, had also given evidence in favour of P.W.4. P.W.6 is the neighbour of P.W.1 and he deposed to the effect that on the date of occurrence, P.W.1 informed him about his missing daughter and on the next day, he came to know that P.W.2 was rescued. P.W.8 is the Doctor, who examined P.W.2 on 16.6.2005 and issued Ex.P.3 medical certificate. According to her, she found no external injury on the victim girl including the genital area and breast area and also found that hymen was absent. P.W.9 is the Doctor and Radiologist, who conducted the ossification test to find out the age of P.W.2 and issued Ex.P.4 certificate and according to his opinion, P.W.2 was aged about 18 years and below 19 years. 8. P.W.11 is the Inspector of Police, All Women Police Station, Thudiyalur, who had deposed that she received a complaint from P.W.1 and registered the case in Crime No.19 of 2005 for an offence punishable under Section 366 IPC and prepared Ex.P.6 F.I.R. and on the next day at 4.30 a.m. she arrested the accused. She examined the witnesses and sent P.W.2 for medical examination. After completing her investigation, she laid the charge sheet against the accused for an offence punishable under Sections 366 and 363 IPC. 9. The trial court, after analysing the evidence, acquitted the accused from the charge under Section 376(1) IPC, but convicted him under Sections 363 and 366 IPC and sentenced him as already stated above. 10. Learned counsel for the appellant/accused submitted that P.Ws.1 and 2 have not supported the prosecution case and they have also been treated hostile by the prosecution. Though P.Ws.1 and 2 have not deposed anything against the accused, the learned Judge has convicted him on mere surmises and conjectures. The learned counsel for the appellant vehemently contended that there is no iota of evidence against the accused to substantiate the charge of kidnap, but the learned Judge has relied on the inadmissible evidence. 11. The learned Government Advocate on the criminal side fairly conceded that P.Ws.1 and 2 have not supported the prosecution case and they have been treated hostile by the prosecution and they have been cross-examined by the prosecution. Learned Government Advocate on the criminal side further submitted that only a piece of evidence is available to the prosecution, viz., the evidence of P.W.8, the Doctor, who examined the victim girl P.W.2, who has given a statement before P.W.8 that on 13.6.2005, at about 6.00 p.m., she went along with a known person and the friends of the said known person compelled her to stay and therefore, she stayed the whole night in the Car and on the next day, the Police had secured her. 12. This Court considered the submissions made on either side and perused the records. The date of birth of P.W.2 is 26.10.1990 and at the time of occurrence, she was aged about 15 years and she https://hcservices.ecourts.gov.in/hcservices/ was studying 10th Std. The charge against the accused is that on 13.6.2005, at about 7.00 p.m., the accused, in love with P.W.2, had kidnapped her for the purpose of marrying her. P.W.2 was taken to Mettupalayam and then to Bangalore. To support this charge, there is no evidence from the prosecution. P.W.2, the alleged victim girl, has not supported the prosecution case and she was treated hostile. According to the present evidence of P.W.2, she had gone to her grandmother's house. She had specifically denied that she was kidnapped by the accused and taken in a Car. P.W.1, the father of P.W.2, also had not supported the prosecution case and was treated hostile. There was no other substantive evidence to establish the charge against the accused. 13. From the reading of the judgment of the trial Court, it appears that the learned Sessions Judge had made a hunt to convict the accused and has overacted. Though there is no substantive evidence against the accused, the learned Judge has relied on unnecessary materials. The learned Judge has observed as follows:- "At the juncture the stand of P.Ws.1 and 2 becomes clear that they have been gained over by the accused for the reasons best known to them and that is why they given a go by to the complaint. But fortunate enough they made statements to the officials and to third parties." The learned Judge has also relied on the evidence of P.W.8 Doctor and the statement given by P.W.2 to the Doctor and also observed that the statement given to P.W.8 by P.W.2 as admissible under Section 164(A) Cr.P.C. This observation of the learned Judge is erroneous. Section 164(A) Cr.P.C. does not make a statement given by the victim to the Doctor as admissible, in the absence of any evidence from P.W.2. The admissibility of evidence is governed by the Indian Evidence Act. The earlier statement of a witness to any other person could be taken as corroborative evidence only when the maker of the statement admits it. Section 157 of the Indian Evidence Act reads as follows:- “157. Former statements of witness may be proved to corroborate later testimony as to same fact: - In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." 14. The learned Judge had utterly failed to understand the provision under Section 157 of the Indian Evidence Act. As P.W.2 has not supported the prosecution case and as she has not given any evidence about the statement given by her to the Doctor, the evidence of the Doctor P.W.8 cannot be used against the accused. https://hcservices.ecourts.gov.in/hcservices/ 15. This Court does not find any substantive evidence against the accused to prove the charges levelled against him and the reasons given by the learned Judge for convicting the accused are erroneous and unacceptable. 16. In the result, the Criminal Appeal is allowed, setting aside the conviction and sentence imposed upon the appellant/accused, by judgment dated 22.7.2009 in S.C.No.380 of 2006 by the learned Sessions Judge, Magalir Neethimandram, Coimbatore. The appellant is ordered to be released forthwith, unless he is required in connection with any other case. Fine amount, if any, paid by the appellant shall be ordered to be returned. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gs. To 1. The Sessions Judge, Magalir Neethimandram, Coimbatore. 2. The Judicial Magistrate, Mettupalayam. 3. -do- Through The Chief Judicial Magistrate, Coimbatore. 4. The District Collector, Coimbatore. 5. The Director General of Police, Mylapore, Chennai-4. 6. The Superintendent, Central Prison, Coimbatore. 7. The Inspector of Police, All Women Police Station, Thudiyalur, Coimbatore District. 8. The Public Prosecutor, High Court, Madras. + 1 c.c. to M/s. K. Kalyanasundaram, Advocate. S.R.No.42113. Criminal Appeal No.475 of 2009 AKR (CO) GSK 09.09.2009. https://hcservices.ecourts.gov.in/hcservices/