TMI Blog2021 (1) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... ir grievances because they would think about the future of the child. 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 beyond the control of the victim, for which defects on the part of the investigating officer, which purely arose due to the lethargic attitude of the investigating officer, for which, the victim would not be made to suffer. This Court cannot take any hypothetical view in this case since there is no serious infirmity in the prosecution case. Mere technicalities should not be allowed to stand in way of administration of Justice. A reading of the evidence of victim clearly shows that the offence under section 7 of POCSO Act is committed by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 31.10.2018. 2. The case of the prosecution is that P.W.1 is the victim girl, who was 15 years at the time of the occurrence and she was working in the private mill. On 26.10.2014, since it was a Sunday, the mill was not working and it is a holiday, she did not go to the mill. She went along with her father at 10 a.m for grazing the cattle and at about 4 p.m, her father asked victim to take the cattles to the house and he will gather the goats. So the victim was proceeding to her house. The accused intercepted and misbehaved with her. She raised 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it reached the Court only on 05.11.2014. In the case involving serious nature like this, the FIR should be reached within 24 hours. But prosecution has not explained the reason for delay in filing the complaint and delay in sending the FIR to the Court. Further statement recorded under Section 164 Cr.P.C of the victim also reached the Court belatedly. Even the statements of other witnesses have also not reached to the Court soon after recording from the witnesses. Therefore, the prosecution has not explained the inordinate delay and therefore it is fatal to the case of the prosecution. 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh his defence and disprove the case of the prosecution. But the learned Trial Judge failed to consider the materials and therefore the petition filed by the appellant under section 391(1) Cr.P.C., may be allowed and the judgment of the trial Court may be set aside, and after going through the additional evidence, the Court can either directly take the additional evidence or can remit the matter back to the Trial Judge to record the evidence afresh and passing of the judgment. 10. The learned Government Advocate(Criminal Side) would submit that P.W.1 is the victim. P.W.2 is the father 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 too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en and reputation of the family. Therefore in the present case also, parents of the victim went to the elders of the village and they have also not decided the matter immediately. In the cases like this, immediately the village elders would call the persons involved and they advice them. If any of the party not accepting their advise, then the aggrieved party use to approach the police. In the case on hand, P.W.2 approached P.W.4 Tirupathy. Admittedly he is worldlywise man, who used to go to police station frequently in order to help the innocent villagers. As stated by the learned counsel for the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthy. Her evidence was corroborated by her father who was examined as P.W.2. If the evidence of sole witness is cogent, incredible and trustworthy conviction is permissible. The evidence of interested witnesses, if found to have creditworthiness, conviction could be based on uncorroborated testimony. 15. Though the learned counsel for the appellant would submit that victim is not subjected to medical examination, the allegation is not that the appellant committed penetrative sexual assault, but only intercepted and closed the mouth and tried to touch her and since in the inception stage itself, the victim 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 establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and not on precedence. 19. As far as the documents are concerned, they are very much available even at the time of trial and at the time of examination of the witnesses, the documents were not suggested before the witnesses especially P.W.4 and P.W.2 and the appellant not filed the documents at the earliest point of time. Therefore, this court is of the view that the application is filed only afterthought and therefore, not inclined to entertain the petition u/s.391 Cr.P.C., and the citations are not applicable to the present case. Therefore, under these circumstances, this Court finds that in order to protract the appeal and 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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