Sivakumar v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Monday, the Twelfth day of October Two Thousand Twenty PRESENT The Hon`ble Mr.Justice K.KALYANASUNDARAM and The Hon`ble Mrs.Justice T.KRISHNAVALLI IN CRL A(MD) No.606 of 2019 SIVAKUMAR ... PETITIONER/ APPELLANT/ ACCUSED - 6 Vs THE INSPECTOR OF POLICE, ALL WOMEN POLICE STATION, KARUR. ... RESPONDENT/ RESPONDENT/ COMPLAINANT Petition praying that in the circumstances stated therein and in the petition filed therewith the High Court will be pleased to suspend the sentence imposed on the petitioner in Spl Sc No.17 of 2018 on the file of the Learned Additional sessions Judge/ Fast track Mahila Court, Karur judgment dated 19.11.2019 and enlarge the petitioner on bail pending disposal of the CRL A(MD) No.606 of 2019 and thus render justice.

PRAYER IN CRL A(MD) No.606 of 2019:

To present this Memorandum of Criminal Appeal to this Hon'ble Court and prays that the Hon'ble Court may be pleased to set aside the judgment dated 19.11.2019 made in Spl.S.C.No.17 of 2018 learned Additional Sessions Judge/ Fast Track Mahila Court, Karur. Order : This petition coming on for orders upon perusing the petition filed in support thereof and upon hearing the arguments of M/S.P.KUMARESAN, Advocate for the petitioner and of Mr.R.ANANDHARAJ, Additional Public Prosecutor on behalf of the Respondent, the court made the following order:- [Order of the Court was made by K.KALYANASUNDARAM, J.] Heard Mr.P.Kumaresan, learned counsel appearing for the Petitioner and Mr.R.Anandharaj, learned Additional Public Prosecutor appearing for the respondent and perused the materials available on record.

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2.This Criminal Appeal is preferred by the Petitioner/A6 in Special S.C.No.17 of 2018, on the file of the learned Additional Sessions Judge(Fast Track Mahila Court), Karur, wherein, he was tried along six other accused for the offence punishable under Sections 366(A), 120(B) IPC and Section 4(1) of Immoral Traffic (Prevention)Act r/w Section 14(2)(3) and Section 17 of Protection of Children from Sexual Offences Act.

3.The Trial Court, on appreciation of evidence, found the accused A1 to A3 and A6 and A7 guilty, while acquitting the accused No.4 and 5. Challenging the conviction and sentence, the present Criminal Appeal is filed.

4.The case of the prosecution is that P.W.1 and P.W.3 are Sri Lankan refugees and P.W.2 is their daughter. Both P.W.1 and P.W.2 are living at Kamaraj Nagar, Vengamedu along with their children. When P.W.2 was 13 years old, on 18.11.2017, at about 8.00 a.m., the first accused, who is the neighbour of P.Ws1 and 2 enticed the minor girl P.W.2 and abducted her along with accused No.2 and 3 to Thiruppur to a brothel house run by them and induced P.W.2 to involve in brothel. It is the further case of the prosecution that A5 and A6 are the customers of P.Ws. 1 to 4 and they sexually assaulted P.W.2.

5.The learned counsel for the Petitioner would submit that there are lot of contradictions in the evidence of prosecution witnesses which creates suspicision over the allegation made against the accused. It is submitted by the learned counsel for the Petitioner that according to the prosecution, P.W.2 was found missing from 18.11.2017 and she returned back to her house only on 30.11.2017 and Ex.P1-complaint was preferred by P.W.1 to P.W.20 on 6.12.2017, but, the evidence on record would reveal that P.W.1 preferred a complaint on 19.11.2017 to Vengamedu Police and within a period of three days, P.W.2 also returned to Vengamedu Police Station, wherefrom, they were referred to the respondent/Police. It is also argued that as per the prosecution, all the accused were arrested on 18.12.2017 but even before the registration of the case on 6.12.

2017, the accused were said to have been present in the Police Station. The learned counsel has also drawn the attention of this Court to the evidence of P.W.2 to show that P.W.2 could not identify the place where she was sexually assaulted by the accused. Further, P.W.2 implicated A5 in her statement given to the learned Judicial Magistrate under Section 164 of Cr.P.C, but, in the Witness Box, she has not spoken about P.W.5, however, implicated only A6 and only on that basis, the accused was convicted. 6.It is the contention of the learned counsel that the earliest statement of the Prosecution witnesses have been suppressed and the testimony of P.W.s 1 to 3 are untrustworthy and unbelievable.

ready to pay Rs.2 lakhs(Rupees two lakhs only) as compensation to the victim-P.W.2.

7.Per contra, the learned Additional Public Prosecutor would submit that even though P.W.1 had preferred a complaint on 19.11.2017 to the Station House Officer at Vengamedu Police Station, but, the present complaint was given on 6.12.2017 only after P.W.2 returned to her house on 30.11.2017. It is also contended that the witnesses are illiterates and they could not give the exact date of lodging the complaint. According to the learned Additional Public Prosecutor, the medical evidence also supported the evidence of P.W.2 and prays to dismiss this miscellaneous application.

8.In the matter on hand, the case of the prosecution is that on 18.11.2017, the accused 1 to 4 along with the assistance of A7, abducted P.W.2 to Thiruppur to involve her in brothel. A perusal of the evidence of P.W.1 to P.W.3 would show that a complaint was preferred on 19.11.2017 itself to Vengamedu Police Station, P.W.3 has admitted in his evidence that on the very next day, Vengamedu Police had informed him and they identified the acused and on the next day, P.W.2 was also present in Vengamedu Police Station and the Police obtained the statement from her. It is not in dispute that initially, P.W.2 implicated A5 also in this crime. But for the best reason known to her, no evidence was adduced to support the allegation against A5. Hence A4 and A5 were acquitted.

A perusal of the records would also indicate that all the accused were present in the Police Station even before registration of the complaint and they were seen by P.W.2, hence the identification parade conducted by the prosecution becomes meaningless. 9.Considering the above aspects, we are of the opinion that the accused/A6 is entitled for suspension of sentence during pendency of the appeal.

i.The petitioner is directed to be enlarged on bail on his executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties, of whom, one should be a blood-related surety, each for a like-sum to the satisfaction of the Judicial Magistrate No.I, Karur.

ii.The Petitioner/A6 shall pay a sum of Rs.2 lakhs (Rupees two lakhs only) to P.W.2/victim towards compensation, by way of Demand Draft drawn on any one of the natinalised Bank in favour of P.W.2/victim. iii.The sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Trial 3/4

Court may obtain a copy of their Aadhar card or Bank pass book to ensure their identity.

iv.The petitioner shall appear before the learned Judicial Magistrate No.I, Karur, at 10.30 a.m. on the first working day of every English Calendar month until further orders.

v.On any particular date, if the petitioner is not able to appear, leave is granted to the petitioner to file an application under Section 317 Cr.P.C. and appear before the Trial Court on any other day, as determined by the Trial Court, in lieu of the day on which they would absent. sd/- 12/10/2020 / TRUE COPY / / /2020 Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023.

Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

TO

1. THE ADDITIONAL SESSIONS JUDGE/ FAST TRACK MAHILA COURT, KARUR.

2. THE JUDICIAL MAGISTRATE NO.I, KARUR.

3. DO-THROUGH THE CHIEF JUDICIAL MAGISTRATE, KARUR DISTRICT.

4. THE SUPERINTENDENT,CENTRAL PRISON, TRICHY.

5. THE INSPECTOR OF POLICE, ALL WOMEN POLICE STATION, KARUR.

6. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1 CC to M/s.P.KUMARESAN, Advocate ( SR-6960[I] dated 13/10/2020 ) ORDER IN IN CRL A(MD) No.606 of 2019 Date :12/10/2020 MS/PN/SAR-4/14.10.2020/4P.8C 4/4