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TMI Blog2021 (1) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... her voice. On hearing the voice, P.W.2 came there. Immediately, the accused fled away from the occurrence place. P.W.1 and P.W.2 approached the village elders, but they have not given any solution. Therefore they approached the respondent police with the help of P.W.4. 3. The respondent police registered the case against the appellant in Crime No.286 of 2014 for the offence u/s.354 IPC and Section 7 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as POCSO Act). After investigation, charge sheet was laid before the Fast Track Mahila Court, Dharmapuri. Since the offences against the children, the respondent police laid the charge sheet before the learned Sessions Judge, Fast Track Mahila Neethimandram, Dharmapuri, Dharmapuri District. The learned Special Judge taken the case on file in Spl. S.C.No.39 of 2017. After completing the formalities, the learned Sessions Judge framed the charges for offence under section 354 IPC and Section 7 of the POSCO Act and the accused has denied the charges and claimed to be tried. 4. After framing charges, in order to prove the case, on the side of the Prosecution, P.Ws.1 to 10 have been examined, Ex.P1 to P5 have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution. 9. The learned counsel would further submit that the place of occurrence is a open space and it is a public place and there is a public movement in the place of occurrence, but none of the persons have noted the same. Even the person who is residing nearer to the place of occurrence, have not been examined. Further, taking into account the place of occurrence is the open space, the alleged occurrence would not have happened and it is not possible for the accused to escape from the place of occurrence. P.W.2 father of the victim after hearing the voice of his daughter, rushed to the place which is very nearest. Therefore it is highly unbelievable and further P.W.2 is the interested witness. Further he would submit that due to enmity with the appellant, the complainant has foisted the false case. Therefore, they are not in a position to say the date of occurrence and date of the complaint. Even in the complaint itself, it is not mentioned the date of giving complaint to the respondent police. The Investigating officer has stated that after lodging the complaint by P.W.2, he was keeping the complaint for some time and registered only after five days. That itself shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her of the victim, P.W.3 is mother of the victim. They have categorically stated about the occurrence. The evidence of P.W.2 corroborated the evidence of P.W.1 father who has stated that since the matter was informed to the village elders immediately, they did not approach the police. But the elders of the villager have not properly responded. Therefore, father of the victim approached the police with the help of P.W.4 and thereafter complaint was registered. After the complaint, the investigating officer recorded the statement of witness who has clearly stated that on 01.11.2014, the occurrence took place. After investigation, the police laid charge sheet. Before the trial Judge, the prosecution examined victim as P.W.1 and who has clearly narrated the incident happened on the date of occurrence. Therefore, the document relied on by the learned counsel for the appellant sought to be received as additional evidence in the petition filed under Section 391(1) Cr.P.C is not relevant to the present case and the same is only relevant to some other case and no suggestion was either put before P.W.4 or P.W.2 regarding the documents sought to be received as additional evidence, which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant, he is doing some katta panchayat and it is very clear that the villagers wont directly go to the police station to report the incident like this. They search for some person who is wellversed and well-acquainted with police station and Government offices. With the help of such persons only, villagers would approach Police due to their illiteracy. Likewise in this case also, P.W.2 went to the police station along with P.W.4 to give complaint. Though the investigation done belatedly and the FIR was sent to the Court belatedly, for such defects, grievance of the victim should not be simply thrown away. It is settled proposition of law that lapse on the part of the prosecution should not lead unmerited acquittal, subjected to rider that in such a situation, evidence on record should be clinching so that lapses of prosecution can be condoned. In a case like this, the Court has to consider the suffering of the victim and testify the veracity of evidence of the prosecution witnesses. The aspect regarding whether the complainant has given the complaint immediately, registered the FIR immediately, and whether the Police sent the FIR to the Court immediately or not are all beyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctim girl raised voice, the father was also nearer to the calling distance, soon after hearing the voice, he rushed to the place of occurrence, the appellant left the occurrence place. Therefore, non sending of the victim to medical examination is not fatal to the case of the prosecution. In the facts and circumstances of the case, sending the appellant and the victim girl for medical examination does not arise. 16. A careful reading of the evidence of the victim girl and her father P.W.2, this Court does not find any reason to discard the same. The prosecution has established its case beyond all reasonable doubt. The trial Court has given the reasons for conviction and therefore, petition under Section 391(1)Cr.P.C., is concerned, those documents were very much available even at the time of trial and examination of the witnesses. None of the documents have been either suggested before P.W.4 or P.W.2 when they were examined as witness before trial Court, and the motive has not been established. If at all, the respondent police is said to have foisted false case against the appellant due to motive, at the time of trial, the appellant would have handed over the documents now sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd fill up lacunae, the appellant has invoked Section 391 Cr.P.C. and it cannot be invoked in any extraneous circumstances. If any material is available on the side of defence and not produced or suppose subsequently came to knowledge about the material, in the interest of justice the Court can exercise power under Section 391 Cr.P.C., and allow the additional evidence. But a careful perusal of the entire records, this Court finds that the appellant is not entitled to the relief sought for under Section 391 Cr.P.C., and filing petition under section 391 Cr.P.C., will not helpful to the defence case. Even if the said documents received as evidence and taken into consideration, the decision of the trial Court will not be changed. The evidence of the victim child is clear that the appellant has committed the charged offence. Therefore, under these circumstances, the petition under Section 391 Cr.P.C., filed by the appellant is liable to be dismissed. 20. The appellate Court is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give independent finding. Accordingly, this Court also finds that the appellant has committed offence under section 7 which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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