In Kaliaperumal vs. State rep. by Inspector of Police, Cuddalore District, a single bench of the Madras High Court sentenced the appellant with rigorous imprisonment and fine under Section 366A of the IPC and Section 4 of the POCSO Act, on account of evidence procured by witnesses and medical examination. The judge dismissed the appellant’s contention citing that Section 366A is attracted even if one of the ingredients (“forced” or “seduced”) is established.
Facts:
The case of the prosecution as deposed by the witnesses reveals that the appellant (“A1”) was a bus driver in which the complainant’s (“PW1”) minor daughter (“PW2”) and her classmate (“PW3”) used to travel daily. PW2 AND PW3 went missing and were only found on the next day. Upon being asked, they informed that A1 kidnapped both of them and raped PW3, while PW2 was raped by A2 and A3. PW5 is the witness to the confession statement of A1 which lead to the recovery of dress material marked of the victims. He also witnessed the confession of A2 and A3 leading to recovery of other material. The trial Court, after appreciating the medical and other types of evidence had convicted the appellant/A1 for the offences under Section 366A IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).
Appellant’s Contentions:
The Trial Court erred in not appreciating the evidence of PW3, who had categorically stated that there was no penetration. A1 did not commit the act of penetration. PW10-Doctor, who examined PW3 has admitted the possibility of lacerated injury found on the left thigh of PW3 might have caused accidentally and it is two to three days old injury. The vaginal smear test and the pubic hair test does not support the case of the prosecution. The minor girls went with A1 and their own and PW3 admits in the cross examination that she had her mobile phone with her. The prosecution failed to recover the two-wheeler in which the appellant alleged to have kidnapped the minor girls. Thus, the prosecution case spin on imaginary allegation is well established. The appellant cannot be held guilty of offence under Section 366A IPC or Section 4 of the POCSO Act. However, the trial Court, without proper appreciation of the evidence had convicted the appellant/A1.
Observations of the Court:
The act of the appellant as narrated by PW3 clearly falls within the definition of penetrative sexual assault. Further, the presence of semen in the dress worn by PW3 and in the dhoti of the appellant also substantiates the case of the prosecution as against this appellant. The case of the prosecution that PW2 and PW3 were minors at the relevant point of time is proved. The allegation that the victims were taken in the two-wheeler by this appellant is proved through the evidence of PW2 and PW3. The suggestion, that these witnesses went with the appellant because they were in love, is denied in cross-examination. The further evidence of these two victim girls also reveals that accused A2 and A3 had illicit intercourse with PW2. Thus, the act of the appellant taking PW2 to the grove and seduced to have intercourse with A2 and A3 make out the ingredient required for punishing under Section 366A IPC. As far as charge under Section 4 of the POCSO Act against this appellant, PW3 is the victim. She has deposed that the appellant tried to have penetrative sex with her repeatedly but she resisted and pushed him away. The dress materials of the appellant as well as the victim (PW-3) detected the presence of semen, as per the Lab Report. By a bare perusal of the relevant IPC and POCSO provisions, the appeal is liable to be dismissed.
Decision:
The Criminal Appeal was dismissed. The judgment of the trial Court was confirmed. The trial Court was directed to secure the appellant/A1 and commit him to the prison to undergo the balance period of sentence. Consequently, connected Miscellaneous Petition was closed.
Case: Kaliaperumal vs. State rep. by Inspector of Police, Cuddalore District
Decided on: 12.09.2022
Coram: Justice G. Jayachandran
Citation: Crl.A.No.616 of 2014 and M.P.No.1 of 2014
Read Judgment @Latestlaws.com
Picture Source :
