Madras High Court
Venkatesan vs State Rep.By on 27 April, 2021
Crl.A.No.277 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.277 of 2019
Venkatesan .. Appellant
.Vs.
State Rep.by
The Inspector of Police,
W.25, All Women Police Station,
T.Nagar, Chennai – 17,
Crime No.9 of 2015. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to call for the records in S.C.No.212 of 2016 dated 05.03.2019
on the file of the Mahila Court/Special Court for Cases Under POCSO
Act/Children Court, Chennai – 600 104 and set aside the said conviction
of the lower Court.
For Appellant : Mr.A.Thiyagarajan
For Respondent : Mr.R.Surya Prakash
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
05.03.2019 in S.C.No.212 of 2016 on the file of the learned Mahila
Court/Special Court for Cases Under POCSO Act/Children Court,
Chennai – 600 104.
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2.The respondent police registered a case in Crime No.9 of 2015 for
the offence punishable under Section 10 of The Protection of Children
from Sexual Offences Act, 2012 [hereafter 'POCSO Act' for the sake of
convenience]. After investigation, the respondent police filed a charge
sheet before the learned Sessions Judge, Mahila Court/Special Court for
Cases Under POCSO Act/Children Court, Chennai – 600 104 and the
same was taken on file in S.C.No.212 of 2016, since the offence is
against a minor girl.
3.After trial, the appellant found guilty for the offence punishable
under Section 10 of POCSO Act and sentenced him to undergo simple
imprisonment for a period of five years and to pay a fine of Rs.5,000/-
and in default, to undergo simple imprisonment for a period of six
months. Challenging the said conviction and sentence, the appellant is
before this Court.
4.1 The learned counsel for the appellant would submit that the
victim girl was examined as P.W.2 and her evidence is contradictory to
the other evidences of the prosecution. However, the learned Judge failed
to appreciate the entire evidence and erroneously convicted the appellant.
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According to the prosecution, the defacto complainant (P.W.1) is the
father of the victim girl. The alleged occurrence is said to have taken
place on 11.11.2015. Though the appellant is very much available in the
opposite house, after deliberation, P.W.1 gave a complaint (Ex.P.1) on
12.11.2015 with an inordinate delay. The delay in preferring the
complaint has not been properly explained, however, the learned judge
failed to consider the unexplained delay and convicted the appellant,
which is fatal to the case of the prosecution. It creates a doubt about the
case of the prosecution. The learned counsel for the appellant would
further submit that the appellant is none other than the neighbour of the
victim girl's family, apart from that, he is residing nearby their house.
There was a previous enmity between the appellant and their
Association. Due to such enmity and to take vengeance, a false case has
been foisted against the appellant. There is no eye witness to the said
occurrence.
4.2 The learned counsel for the appellant would further submit that
according to the prosecution, P.W.1, father of the victim girl (P.W.2) had
stated that at the time of occurrence, the victim girl was alone in the
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house, since he himself, his wife and younger daughter went to Big
Bazaar. At that time, the victim girl (P.W.2) telephoned her mother
(P.W.3) and asked her to come home immediately, but, she has not stated
anything about the occurrence. After their arrival, his wife enquired the
victim girl and came to know about the said occurrence. After
deliberation, they improvised the version and preferred a false case
against the appellant. He would further submit that if at all anything
happened, the victim girl would have told her mother through phone, but,
she has not made any allegation against the appellant. There is a
contradiction in the evidence of the victim girl and other prosecution
witnesses and it will go to the root of the case of the prosecution. The
evidence of the Doctor (P.W.7) and the medical report did not support
the case of the prosecution. There is no corroborative evidence and
independent witness to support the case of the prosecution. However, the
learned Special Judge failed to appreciate the prosecution evidence in a
right manner and simply convicted the appellant on the ground of
sympathy, which warrants interference of this Court.
5.1 The learned Government Advocate (Crl.Side) would submit that
at the time of occurrence, the victim girl, who was examined as P.W.2
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was aged about 11 years and studying 7th standard. During the trial, the
victim girl has clearly deposed that on 11.11.2015, she was alone in her
house, since her parents and sister went to Big Bazaar. At 11.00 a.m.,
she heard the calling bell and peeped through the door slit. She saw that
the accused was standing nearer to the door. Then, she opened the lock
without removing the chain and saw him through the chain gap. The
accused saw her and asked her whether he could come inside the home
and play with the toy house. Thereafter, she opened the door. The
accused came inside the house and sexually assaulted her. When she
resisted the same, the appellant left from the house, thereafter, the victim
girl telephoned her mother (P.W.3) and asked her to come home soon.
Immediately, the parents of the victim girl rushed to their home and
learnt about the occurrence. Thereafter, they preferred a complaint on
12.11.2015 and First Information Report (Ex.P.10) was registered on
the same day. The learned Government Advocate (Crl.Side) would
further submit that a mere delay in preferring the complaint is not fatal to
the case of the prosecution.
5.2 The learned Government Advocate (Crl.Side) would further
submit that during the course of investigation, the victim girl (P.W.2)
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was produced before the Doctor (P.W.7) for medical examination,
thereafter, was produced before the learned Magistrate (P.W.6) for
recording her statement under Section 164 Cr.P.C. During that time the
victim girl has clearly deposed that the appellant, who entered into her
house knowing fully that her parents and younger sister left the house,
taking advantage of the situation, had committed the offence. From the
evidence of the victim girl (P.W.2), the Doctor (P.W.7) and the evidence
of the learned Magistrate (P.W.6), the prosecution has clearly established
their case beyond reasonable doubt. He would further submit that after
the occurrence, immediately the victim girl informed the same to her
mother, thereafter, they discussed the same with their family members
and other relatives later they preferred the complaint. Therefore, the
delay in filing the complaint is properly explained and the delay in filing
the complaint cannot be a sole ground to disbelieve the case of the
prosecution.
6.Heard both sides and perused the records.
7. The case of the prosecution is that the victim girl (P.W.2) was
aged about 11 years at the time of occurrence i.e on 11.11.2015. When
the victim girl was alone in her house, the appellant entered into her
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house and sexually assaulted her by twisting her breast. However, when
the victim girl resisted the same, the appellant left the house. Thereafter,
she informed about the same to her mother (P.W.3). The mother, in turn,
informed the same to her husband (P.W.1), who gave a complaint
(Ex.P.1) to the respondent police and a case in Crime No.9 of 2015 was
registered against the appellant/accused. After completion of the
investigation, the respondent/police laid a charge sheet before the
Sessions Judge, Mahila Court/Special Court for Cases Under POCSO
Act/Children Court, Chennai – 600 104 and the same was taken on file in
S.C.No.212 of 2016. The date of birth of the victim is 18.11.2004 and
date of the occurrence 11.11.2015. As such the age of the victim is 11
years. Since she is under the age of 18 years, she is child under Section
2(i) (d) of the POCSO Act. Therefore, the appellant has been charged for
the offence punishable under Section 10 of POCSO Act.
8.In order to prove the case, before the trial Court, on the side of the
prosecution as many as 9 witnesses were examined as P.W.1 to P.W.9
and also marked Exs.P1 to P11. On completion of the evidence on the
side of the prosecution, the accused was questioned under Section 313
Cr.P.C as to the incriminating circumstances found in the evidence of
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prosecution witnesses, but, the accused has come with the version of
total denial and stated that he has been falsely implicated in this case.
9.On the side of the defence, one witness was examined as D.W.1
and also marked Exs.D.W.1 to D.W.2,, besides D.M.O.1 to D.M.O.3,
material objects.
10.The Court below, after hearing the arguments advanced on either
side and also looking into the materials available on record, found that
the accused/appellant guilty and awarded punishments, as referred to
above, which is challenged in this Criminal Appeal.
11.This Court, being an Appellate Court, is a fact finding Court,
which has to necessarily re-appreciate the entire evidence and give an
independent finding.
12. It is the specific case of the prosecution that the appellant and
the victim girl are neighbours and they are residing in the same floor. On
11.11.2015, the parents of the victim girl along with her younger sister
went to Big Baazar, at that time, the victim girl was alone in the house.
The appellant, taking advantage of the said situation, entered into her
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house and sexually assaulted her and when she resisted the same, the
appellant left the house. Thereafter, she informed the same to her mother.
13. Though the learned counsel for the appellant would submit that
when the victim girl first informed her mother over phone, she had
simply stated that the appellant entered into the house, but, she has not
stated anything that the appellant sexually assaulted her. The mother
(P.W.3) of the victim girl has categorically stated that when they were in
Big Bazaar, at 11.00 a.m. she received a call from her daughter and she
told her that the opposite house uncle came into her house and that they
should come home early. After their arrival, the victim girl informed the
occurrence to her mother. He would further submit that if at all anything
happened, she would have informed the same to her mother over phone,
but, she has not stated anything about the occurrence. After deliberation,
a false case has been foisted against the appellant. However, the facts
remains that the appellant is none other than the neighbour of the victim
girl. At the time of occurrence, the victim girl telephoned her mother and
asked her to come home early. We cannot expect the victim girl, aged 11
years, to reveal all these information over phone, when she was in panic
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situation. After coming home, when her mother asked her, the victim girl
revealed about the occurrence. Thereafter, they preferred the complaint.
14.Further, the Doctor, who conducted medical examination of the
the victim girl was examined as P.W.7 and he has deposed that there is
no internal injury found on her private part. The evidence of the victim
girl (P.W.2) has clearly stated that the appellant entered into her house
and sexually assaulted her. She informed the said occurrence to her
mother. In a case like this, this Court cannot expect any eye witness or
independent witness. These type of accused will always wait for a chance
to take advantage of the loneliness of minor girls to commit this type of
offence. The evidence of the victim regarding sexual assault is enough
for conviction and it does not require any corroborative evidence unless
there are compelling reasons seeking for corroboration. The Court may
testify the evidence of the witness, as to whether she was tutored by her
parents or adult members for any reason. The Doctor (P.W.7), who
examined the victim girl had clearly stated that when she enquired the
victim girl, she has stated that on 11.11.2015, when she was alone at her
home, the appellant entered into their house and molested her and
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sexually assaulted her. Further, she was produced before the learned
Magistrate for recording her statement under Section 164 Cr.P.C, she
narrated the entire evidence before him.
15. Therefore, from the combined reading of the evidence of the
victim girl (P.W.2), the evidence of the Doctor (P.W.7) and the
statement recorded under Section 164 Cr.P.C, which was marked as
Ex.P.3, this Court finds that the appellant has committed offence
punishable under Section 10 of POCSO Act and the prosecution has
proved its case beyond reasonable doubt and the trial Court has rightly
appreciated the entire evidence and convicted the appellant and the
accused has not rebutted the presumption under Section 29 of POCSO
Act.
16. In fine, this Criminal Appeal deserves to be dismissed and
accordingly, the same is dismissed. The conviction and sentences passed
in S.C.No.212 of 2016 by the Mahila Court/Special Court for Cases
Under POCSO Act/Children Court, Chennai – 600 104 is confirmed.
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17. The trial Court is directed to take appropriate steps to secure
the appellant to undergo the remaining period of sentence.
27.04.2021
ms
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
To
1.The Sessions Judge,
Mahila Court/Special Court for Cases
Under POCSO Act/Children Court,
Chennai – 600 104.
2.The Inspector of Police,
W.25, All Women Police Station,
T.Nagar, Chennai – 17.
3.The Public Prosecutor,
High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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P.VELMURUGAN,.J.
ms
CRL.A.No.277 of 2019
27.04.2021
(1/2)
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Add this:-
Page 6
Para 6 Heard both sides and perused the records.
The date of birth of the victim is......and date of the occurrence ......is......
As such the age of the victim is ......Since she is under the age of 18
years, she is child under section 2(i) (d) of the POCSO Act. Therefore,
the appellant has been charged for the offence u/s...................
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