Madras High Court
C.Gurunathan vs The State By on 6 August, 2021
Crl.A.No.132 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.08.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.132 of 2020
C.Gurunathan .. Appellant
.Vs.
The State by
Inspector of Police,
All Women Police Station,
Erode, Erode District,
Crime No.13 of 2016. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to call for the records relating to the judgment dated
07.02.2020 made in Spl.S.C.No.20 of 2018 on the file of the learned
Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court)
Erode and set aside the same by allowing this Criminal Appeal.
For Appellant : Mr.N.Manoharan
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
07.02.2020 made in Spl.S.C.No.20 of 2018 by the learned Sessions
Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Erode.
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2. The case of the prosecution as per the de facto complainant/
P.W.1 is that she is the second wife of the accused/appellant. They got
married on 10.2.2008 after demise of the appellant's first wife. The
accused had one daughter Mythili through his first wife. The accused and
P.W.1 have two daughters viz., P.W.2 and P.W.3/victim girls, who were
aged about 8 and 7 years, respectively. There was a misunderstanding
between P.W.1 and the accused and a complaint is pending before the
Perundurai Police Station against the accused. On 20.11.2016, when
P.W.1/mother of the victim girls, came back to her house, after
purchasing mutton, she saw her children were very tired and on enquiry
they revealed that her father/accused took them to Mallika's house and
has committed penetrative sexual assault on them, in the presence of four
other persons. Hence, a complaint/Ex.P1 has been registered against the
appellant.
3.The respondent-Police registered a case in Crime No.13 of 2016
against the appellant for the offence under Section 8 of The Protection of
Children from Sexual Offences Act, 2012 [hereafter referred to as
'POCSO Act' for the sake of convenience] and subsequently, altered into
Section 6 of POCSO Act (2 counts). On completion of the investigation,
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the respondent police filed a charge sheet before the learned Sessions
Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Erode and
the same was taken on file in Spl.S.C.No.20 of 2018. After completing
the formalities, the learned Sessions Judge framed charges against the
appellant for the offence under Section 6 of POCSO Act (2 counts).
4.In order to prove the case of the prosecution before the trial
Court, on the side of the prosecution as many as 16 witnesses were
examined as P.W.1 to P.W.16 and marked 28 documents as Exs.P1 to P28
and two material objects were marked as M.O.1 and M.O.2. After
examining the prosecution witnesses, the incriminating circumstances
culled out from the evidence of the prosecution witnesses were put
before the appellant/accused and questioned under Section 313 of
Cr.P.C., wherein he denied all the incriminating circumstances as false
and pleaded not guilty. On the side of the defence, no oral and no
documentary evidence was produced.
5.The Court below, after hearing the arguments advanced on either
side and also considering the materials available on record, found that the
appellant is found guilty for the offence punishable under Section 6 of
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POCSO Act (2 counts) and convicted and sentenced him to undergo
rigorous imprisonment for a period of twenty years, each count and to
pay a fine of Rs.5,000/-, each count, in default, to undergo simple
imprisonment for a period of three months, each count and ordering the
sentences of each count to run concurrently. Besides that the trial Court
recommended the Government of Tamil Nadu to compensate a sum of
Rs.2,00,000/- each to the victim girls as per the victim compensation.
Challenging the said conviction and sentences, the appellant is before
this Court.
6.1 The learned counsel for the appellant would submit that
genuineness of the First Information Report itself is doubtful. According
to the prosecution, the Investigating Officer/P.W.14 has deposed that
when the victim girls were admitted in Government Hospital, Perundurai,
on information, she went to the hospital and recorded the statement of
P.W.1/mother of the victim girls, since victim girls are minor and that
would be the first information report and Ex.P1/complaint is not the first
information report. However, the earlier statements of the victim girls
were suppressed by the prosecution for the reasons best known to them.
The Doctor/Ex.P9, who examined the victim girl has not stated about the
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injuries sustained by the victims on their private parts, but, he has
mentioned the history of the case as attempt to rape in the Accident
Register/Exs.P25 and P26. The allegations mentioned in Ex.P25 and
Ex.P26 are different from the allegations mentioned in Ex.P1/complaint
and Ex.P21/Medical Certificate. He would further submit that the version
of the victims under Section 164 Cr.P.C is very clear that the mother of
the victims has tutored them against their father/accused. Further, one of
the victim girls P.W.3 has not spoken about the occurrence, at the time of
her statement recorded under Section 164 Cr.P.C by the learned Judicial
Magistrate.
6.2 The learned counsel for the appellant would further submit that
in the complaint P.W.1/mother of the victim girls has stated that the
alleged occurrence had taken place in front of one Mallika and her
husband and their relatives, whereas, she has taken different stand in the
evidence before the trial Court that no other witnesses were present at the
time of alleged occurrence. Further, the place of occurrence is doubtful,
either the alleged occurrence said to have taken place in the house of
Mallika or the house of Perumayee is not clear. Hence, the version given
in Exs.P25 and P.26/Accident Register, Ex.P1/complaint and Exs.P2 and
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P3/statements recorded under Section 164 Cr.P.C is totally contradictory.
He would further submit that the evidence of P.W.1/mother of the victim
girls has clearly shows that there was a frequent quarrel between the
appellant and herself. Even prior to the date of occurrence, due to quarrel
she made a complaint against the appellant and he was arrested and
released on bail, thereafter, the appellant had not gone to her house and
the same was admitted by P.W.2 and P.W.3. He would further submit that
the elder daughter of the accused has given her statement before the
Investigating Officer stating that her step mother/P.W.1 was in the habit
of accusing the appellant for grabbing the properties of the appellant. In
order to avoid the appellant from transferring the property to his elder
daughter, P.W.1 filed a false complaint against the appellant. Though the
evidence of the victim girls during chief examination is contradictory
from their statements recorded under Section 164 Cr.P.C., there are
material contradictions and there was an improvement in every stage and
the same is fatal to the case of the prosecution. Therefore, the
prosecution has not proved its case beyond all reasonable doubt. Further,
the medical evidence also not supported the case of the prosecution.
6.3 The learned counsel for the appellant would further submit that
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the prosecution has not examined the eye witnesses, who were named by
P.W.1, which creates a doubt and the same is fatal to the case of the
prosecution. He would further submit that no father would act against his
own daughters, who were aged about 8 and 6 years, respectively. There is
a motive against the appellant, due to such motive and to take vengeance,
P.W.1/mother of the victim girls has foisted a false case against the
appellant. Further, the Investigating Agency has not conducted a fair
investigation, only based on the false statements given by P.Ws.1 to 3
they have filed a final report against the appellant. There are material
contradictions between the evidence of prosecution witnesses and
medical evidence and also evidence of Investigating Officer, which will
go to root of the case of the prosecution. Therefore, the prosecution has
failed to prove its case beyond all reasonable doubts. The trial Court has
failed to appreciate the entire evidence and wrongly convicted and
sentenced the appellant only on assumption and sympathy and hence, the
judgment of the trial Court against the appellant is liable to be set aside.
7.1 The learned Government Advocate (Crl.Side) for the
respondent would submit that the appellant is none other than the father
of the victim girls/P.Ws.2 and 3, who were aged about 8 and 6 years,
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respectively. Though P.W.1/ mother of the victim girls admitted that there
is a quarrel between herself and the appellant and it is also admitted that
P.W.1 was not co-operating for intimacy with the appellant, since their
house is very small and girl children were there and she left the
appellant's first wife daughter, who is aged about 18 years in her brother-
in-law's house. The accused had the habit of torturing her and children
continuously and therefore, she gave a complaint before the Perundurai
Police Station and he was arrested and remanded to judicial custody and
released on bail. On the date of occurrence i.e. on 20.11.2016, P.W.1
gone for her regular work, the appellant came to her house and sexually
assaulted the victim girls on their private parts using his fingers.
Subsequently, the mother of the victim girls came to the house and saw
that her children were tired and on enquiry the victim girls revealed the
said incident. Immediately, P.W.1 took them to hospital and gave
information to the police and registered the complaint/Ex.P1 against the
appellant.
7.2 The learned Government Advocate (Crl.Side) would further
submit that the Doctor/P.W.13, who examined the victim girls has clearly
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deposed that the hymen of the victim girls were not intact and
inflammation and contusion were found in mucous on both the victims
and she gave Medical Certificate/Ex.P21 and Final Opinion/Ex.P22 for
P.W.2 and P.W.3, which clearly shows that the victim girls were subjected
to sexual assault. The victim girls were produced before the learned
Judicial Magistrate for recording their statements under Section 164
Cr.P.C/Exs.P2 and P3, in which, P.W.2 has clearly stated that her father
took her to Perumayee's house and assaulted her and her sister/P.W.3 on
their private parts using his hands. Therefore, the evidence of the victim
girls/P.W.2 and P.W.3 were corroborated with the medical evidence
P.W.13, Ex.P21 and Ex.P22 and hence, the prosecution has proved its
case beyond all reasonable doubt. Since the victims were below the age
of 12 years, the trial Court has rightly appreciated the entire evidence and
convicted and sentenced the appellant, there is no merit in this appeal
and the same is liable to be dismissed.
8.Heard the learned counsel for the appellant and the learned
Government Advocate (Crl.Side) for the respondent and also perused the
materials available on record.
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9.This Court, being an Appellate Court, is a final Court of fact
finding, which has to necessarily re-appreciate the entire evidence and
give an independent finding.
10.Admittedly, on the date of occurrence i.e. 20.11.2016, the age of
the victim girls is 8 and 6 years, respectively. In order to prove the age of
the victim girls, the prosecution has produced the copy of the birth
certificates/Exs.P4 and P5, which clearly show that the date of birth of
P.W.2 and P.W.3 is 24.12.2008 and 02.04.2010, respectively, whereas, the
date of occurrence is 20.11.2016. Therefore, on the date of occurrence
the age of the victim girls are 8 and 6, respectively. Since the victim girls
are minors, it falls under definition of Section 2(1) (d) of POCSO Act.
11.In order to prove the charges against the appellant, the
prosecution totally examined 16 witnesses as P.W.1 to P.W.16, out of
which, victim girls were examined as P.W.2 and P.W.3, respectively and
they have clearly spoken about the penetrative sexual assault committed
on them by their father. The mother of the victim girls was examined as
P.W.1 and she has clearly spoken about the complaint filed against the
appellant. P.W.9/Doctor, who made entries in Accident Register and
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referred the victims for further treatment and examination.
P.W.13/Doctor, who conducted medical examination on the victim girls
gave her evidence, which clearly shows that hymen of the victim girls
were not intact and found reddishness in the private part of the victims.
Therefore, the evidence of the victims P.W.2 and P.W.3 are corroborated
with the evidence of the medical evidence i.e P.W.13, Ex.P21 and
Ex.P22. P.W.2/victim girl has clearly narrated the said incident before
the learned Judicial Magistrate for recording her statement under Section
164 Cr.P.C./Ex.P2.
12.The learned counsel for the appellant vehemently contended that
P.W.1/mother of the victim girls has stated that in the presence of other
witnesses the appellant alleged to have committed the said offence, but,
the prosecution has not examined the witnesses, who were named by
P.W.1. In the present case, the age of the victims are 8 and 6 years,
respectively and they have clearly spoken about the said incident before
the Doctor, but, Doctor/P.W.9 in his own language he mentioned in the
Accident Register as 'attempt to rape', for which, the victims cannot be
faulted. Further, P.W.13/Doctor has clearly stated that hymen of the
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victim girls were not intact and found reddishness in the private part of
the victims. Therefore, mere non-examination of other witnesses may not
be a sole ground to disbelieve or discard the evidence of the victims.
13. Further, there is no dispute regarding identification, the victim
girls/P.W.2 and P.W.3 have clearly stated that the appellant, who is none
other than their father sexually assaulted them. Further, mere lapse on
the part of the investigation may not be a reason for disbelieving the
evidence of the victim girls and the accused cannot be acquitted on the
said ground.
14.It is a well settled proposition that defects in the investigation
cannot be a sole ground to disbelieve the case of the prosecution. Lapse
on the part of the prosecution should not lead unmerited acquittal, which
is subjected to rider and in such a situation evidence on record should be
clinching, so that lapse of prosecution can be condoned. Therefore, the
appellant is not entitled to get acquittal on the ground of defective
prosecution.
15.Though the prosecution has not properly conducted the
investigation and not properly followed the legal procedures
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contemplated under POCSO Act, it is fate of the litigant public, for
which, the victims cannot be suffered and the culprits should not be
escaped from the clutches of law. Further, the contradictions pointed out
by the learned counsel for the appellant are not material contradictions
and it will not affect the case of the prosecution.
16. It is settled proposition that a conviction can be recorded based
on the evidence of victims/injured witnesses, unless there is a reason to
discard their evidence. In the present case, the evidence of the victims
are cogent, consistent, convincing and trustworthy and there is no reason
to disbelieve or discard their evidence.
17.Though the learned counsel for the appellant vehemently
contended that no father would go to the extent of misbehaving with her
children, P.W.1 tutored the victim girls against their father and made a
false complaint. In the very same view, no daughter would give a false
information against her own father. Further, the evidence of P.W.1 clearly
shows that when she doubted about the character of her
husband/appellant, she left the appellant's first wife daughter, who is
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aged about 18 years at her relatives house. Since P.W.1 not co-operated
for intimacy with the appellant, he gone to that extent and committed the
said offence. This Court cannot encourage this type of offences, it will
endanger to the society. Therefore, this Court is of the opinion that the
evidence of the victim girls are cogent and trustworthy and the same was
corroborated with the evidence of medical evidence and there is no
reason to discard the evidence of the victim girls. The evidence of the
victim girls inspires the confidence of this Court.
18.Further, the scope of POCSO Act is very clear. For better
appreciation, it is appropriate to extract Sections 2(1) (d), 3(a) and (b),
5 (m) and (n) and 6 of POCSO Act, which read as follows:
'' 2.Definitions – (1) In this Act, unless the context
otherwise requires, -
(d) ''child'' means any person below the age of
eighteen years;
3.Penetrative sexual assault.- A person is said to
commit ''penetrative sexual assault'' if -
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of
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the body, not being the penis, into the vagina, the
urethra or anus of the child or makes the child to do so
with him or any other person; or
5.Aggravated penetrative sexual assault -
(m) whoever commits penetrative sexual assault on
a child below twelve years; or
(n) whoever being a relative of the child through
blood or adoption or marriage or guardianship or in
foster care or having a domestic relationship with a
parent of the child or who is living in the same or shared
household with the child, commits penetrative sexual
assault on such child; or
6.Punishment for aggravated penetrative sexual
assault -
(1)Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous
imprisonment for a term which shall not be less than
twenty years, but, which may extend to imprisonment
for life, which shall mean imprisonment for the
remainder of natural life of that person, and shall also be
liable to fine,or with death.
(2) The fine imposed under sub-section (1) shall be
just and reasonable and paid to the victim to meet the
medical expenses and rehabilitation of such victim.''
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19.On a combined reading of Section 3(b) of POCSO Act, the
evidence of victim girls/P.W.2 and P.W.3, especially statement of P.W.2
recorded under Section 164 Cr.P.C/Ex.P2, Doctor/P.W.13 this Court
finds that the prosecution has proved its case beyond all reasonable doubt
that the appellant being a father has committed penetrative sexual assault
on her own daughters under Section 3(b) of POCSO Act. Since the
victims are below 12 years, it falls under Section 5(m) and (n) which are
punishable under Section 6 of POCSO Act.
20. In the light of the above facts and circumstances, this Court
being an Appellate Court, gone through the entire materials and applied
its own mind and found that the appellant committed the offence under
Section 3(b), since the victims are below 12 years the offence falls under
Section 5(m) of POCSO Act and the appellant is a relative of the victims
the offence falls under Section 5(n) of POCSO Act which are punishable
under Section 6 of POCSO Act. Hence, this Court does not find any
perversity in the judgment of the trial Court and the appeal is liable to be
dismissed. Considering the relationship between the victims and the
appellant, this Court does not find any mitigating circumstances to
modify or reduce the sentence of the appellant.
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21.In fine, this Criminal Appeal deserves to be dismissed and
accordingly, the same is dismissed. The conviction and sentence passed
in Spl.S,C.No.20 of 2018 by the learned Sessions Judge, Magalir Neethi
Mandram (Fast Track Mahila Court) Erode is confirmed.
06.08.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
ms
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P.VELMURUGAN, J.
ms
To
1.The Sessions Judge,
Magalir Neethi Mandram
(Fast Track Mahila Court)
Erode.
2.The Superintendent,
Central Prison,
Coimbatore.
3.The Inspector of Police,
All Women Police Station,
Erode, Erode District.
4.The Public Prosecutor,
High Court, Madras.
5.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
CRL.A.No.132 of 2020
06.08.2021
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