K.Kalidoss vs State Inspector Of Police
2021 Latest Caselaw 16205 Mad

                                                                            CRL A No.298 of 2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 10.08.2021
                                                     Coram:

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                           Criminal Appeal No.298 of 2021


                     K.Kalidoss
                                                              .. Petitioner/Appellant/Accused
                                                        Vs.

                     State Inspector of Police
                     All Women Police Station
                     Chengalpattu
                     Crime No.17 of 2015
                                                        Respondent/Respondent/Complainant

                     Prayer :     Criminal Appeal filed under Section 374(2) of Criminal
                     Procedure Code praying to call for the entire records in connection with
                     in Spl.S.C.No.23 of 2019 on the file of Spl. Sessions Court for Exclusive
                     Trial of Cases under POCSO Act, Chengalpattu (FAC) Chengalpattu
                     District and set aside the Judgment dated 17.12.2020.

                                     For Appellant         : Mr.S.Senthilvel
                                     For Respondent        : Mr.S.Sugendran
                                                             Government Advocate (Crl.Side)




                     1/20
https://www.mhc.tn.gov.in/judis
                                                                                CRL A No.298 of 2021


                                                     JUDGMENT

(The case has been heard through video conference)

This Criminal Appeal has been filed against the Judgment dated

17.12.2020 passed in Spl.S.C.No.23 of 2019 on the file of the Sessions

Judge, Special Court for Exclusive Trial of Case under POCSO Act,

Chengalpattu (FAC).

2. The respondent police registered the case in Crime No.17 of

2015 initially for the offence punishable under Section 376 IPC and

Sections 6, 8 of POCSO Act 2012 and after investigation, laid charge

sheet for the offences punishable under Sections 450, 354D, 506(ii) IPC

and under Section 6 of POCSO Act before the Mahila Court,

Chengalpattu in Spl.CC.No.11 of 2017 and since the offences are against

a child, the case was transferred to the learned Sessions Judge, Special

Court for Exclusive Trial of Cases under POCSO Act, Chengalpattu and

got renumbered as Spl.SC.No.23 of 2019 and after completing the

formalities, the learned Sessions Judge framed charges against the

appellant for the offence punishable under Sections 450, 354D, 506(ii)

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IPC and under Section 6 of POCSO Act, 2012.

3. After framing charges, in order to prove the case of the

prosecution, on the side of the prosecution during trial, as many as 13

witnesses were examined as P.W.1 to P.W.13 and 13 documents were

marked as Exs.P.1 to P.13.

4. After completing the examination of the evidence of the

prosecution witnesses, incriminating circumstances culled out from the

evidence of the prosecution witnesses were put before the accused by

questioning under Section 313 Cr.P.C. However, the same was denied

by the accused as false and he pleaded not guilty. On the side of the

defence, one witness was examined as D.W.1 and one document was

marked as Ex.D1.

5. On completion of trial, after hearing the arguments advanced on

either side and considering the materials available, the trial Court

acquitted the appellant for the charges under Sections 450, 354D, 506(ii)

IPC however, convicted him for the offence punishable under Section 4

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of POCSO Act, 2012 and sentenced him to undergo rigorous

imprisonment for 10 years and to pay fine of Rs.25,000/- in default, to

undergo a further period of six months simple imprisonment.

Challenging, the said Judgment of conviction and sentence, the accused

has filed the present appeal before this Court.

6. The learned Counsel for the appellant would submit that no

specific date, time and place of occurrence is given in the complaint and

it is only stated that the occurrence had happened three months prior to

the date of complaint which itself shows that the prosecution has not

proved the date and the place of offence. Further, there is a delay in filing

the complaint and the prosecution has not explained the delay in filing

the complaint. Therefore, the unexplained delay is fatal to the case of the

prosecution. Further there are material contradictions between the

complaint and the statement given by the victim under Section 164

Cr.P.C. and the evidence of the victim given before the Court. Except

P.W.1 and P.W.2, the other witnesses have turned hostile and they have

not supported the case of the prosecution. Even as per the evidence of

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P.W.2/the victim girl, only once the appellant had misbehaved with her

and that too while he was in a drunken state and she has not given any

specific date. The learned Counsel would further submit that P.W.1/the

mother of the victim and P.W.2/the victim were living with the appellant

in a same share hold house and P.W.2/the victim used to call the appellant

as “Appa” (father). Thereafter, due to some misunderstanding, they left

the appellant and were residing separately and the appellant has not

committed any offence as alleged by the prosecution. Even during cross

examination, the victim herself has admitted that the appellant had not

committed any offence and he had not misbehaved with her when they

were living together with the appellant in the same share hold house.

Even, the mother of the victim has also not specifically stated anything

that during such time, the appellant had misbehaved with the victim. He

would further submit that there are material contradictions and the

prosecution has failed to prove its case beyond reasonable doubt and

only due to motive, they have foisted the false case against the appellant.

Further, the prosecution has failed to investigate the matter properly and

filed the charge sheet wrongly against the appellant and the trial Court

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has also failed to appreciate the entire evidence. Though, the trial Court

accepted the case of the prosecution, however, found the appellant not

guilty for the charged offences under Sections 450, 354D and 506(ii) IPC

and thereby, acquitted him from the said charges and also found that

there was no aggravated penetrative sexual assault to attract Section 6 of

POCSO Act. However, the trial Court wrongly convicted the appellant

for the offence under Section 4 of POCSO Act which warrants

interference.

6.(1)The learned Counsel would further contend that the victim

had completed 18 years at the time of alleged occurrence and she was not

a child under the definition of POCSO Act and that the prosecution has

failed to prove the age of the victim. He would submit that it is the duty

of the prosecution to prove the age of the victim and the birth certificate

of the victim was not produced. Further, P.W.8/the doctor who conducted

the medical examination on the victim to prove her age, has stated that

the victim could be between the age group of the 15 to 16 years and if

more or less is taken, she might have completed 17 years and probably in

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the verge of 18 years. Further, the bonafide certificate issued by

P.W.10/the Headmistress of the School in which the victim studied, is not

based on the original records or the birth certificate of the victim and

therefore, the date of birth mentioned in the bonafide certificate/Ex.P.7 is

not a genuine one. Further, P.W.10/the Headmistress has deposed that the

line in green ink under the date of birth in the bonafide certificate is not

drafted by her. Therefore, the said certificate could not be a genuine one

and the prosecution has failed to establish that the victim was a child at

the time of occurrence and therefore, the offence under POCSO Act

would not attract. The learned trial Judge has failed to appreciate the

entire evidence and wrongly convicted the appellant for offence under

Section 4 of POCSO Act and imposed sentence of 10 years rigorous

imprisonment which warrants interference.

7. The learned Government Advocate (Crl. Side) would submit that

at the time of offence, the victim was a child and aged about 17 years and

the prosecution has proved the age of the victim through oral and

documentary evidence. Even the doctor/P.W.8 who conducted medical

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test on the victim has stated that the victim is aged between 15 to 16

years. Further, P.W.10 / the Headmistress in which the victim studied has

issued Ex.P.7/bonafide certificate, in which the date of birth of the victim

is mentioned as 11.03.1999 and the date of offence is during the year

2015 and therefore, the victim girl had not completed 18 years and she

was a child at the time of offence which is also corroborated with the

evidence of the doctor/P.W.8. Therefore, the prosecution has proved that

the victim was a child at the time of offence. He would further submit

that the evidence of the victim/P.W.2, the doctor/P.W.9, the statement

recorded under Section 164 Cr.P.C., and the medical certificate/Ex.P.6

clearly show that the victim was subjected to penetrative sexual assault.

The appellant is the relative and he is the foster father of the victim girl.

The victim and her mother were in the custody of the appellant and while

they were in his custody, he has committed sexual assault on the victim.

Therefore, the offence falls under Section 5(n) of POCSO Act and though

the prosecution had proved its case beyond all reasonable doubt for the

offence under Section 5 of POCSO Act which is punishable under

Section 6 of POCSO Act, the learned trial Judge found that there was

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penetrative sexual assault only once and therefore, convicted him for the

offence punishable under Section 4 of POCSO Act. Further, both

P.W.1/the mother of the victim and P.W.2/the victim in their evidence

have clearly stated that the appellant is the one who committed the

penetrative sexual assault on the victim and therefore, the prosecution

has proved its case beyond all reasonable doubt. There is no merit in the

appeal and the same is liable to be dismissed.

8. Heard the learned counsel for the appellant and the learned

Government Advocate (Crl. Side) appearing for the respondent.

9. In this case, since this Court is the Appellate Court as a final

Court of fact finding, it has to necessarily re-appreciate the evidence

independently and to give its findings independently. Accordingly, this

Court gone through the entire materials and Judgment of the trial Court

and re-appreciated the entire evidence independently and give its finding.

10. Perusal of records show that the trial Court framed charges

against the appellant for offence punishable under Sections 450, 354D,

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506(ii) IPC and also under Section 6 of POCSO Act. In order to

substantiate the charges framed against the appellant, on the side of the

prosecution, totally 13 witnesses were examined and 13 documents were

marked and out of the 13 witnesses, the victim girl was examined as

P.W.2. Though, the occurrence is stated to have been taken place prior to

3 months from the date of complaint, after receiving the complaint, the

respondent police registered the case initially for the offence under

Section 376 IPC and Section 6, 8 of POCSO Act, 2012. On completion of

investigation, they laid charge sheet for the offence punishable under

Sections 450, 354D, 506(ii) IPC and also under Section 6 of POCSO Act.

11. A reading of evidence of P.W.2, the victim girl has clearly

stated that at the time of occurrence she was aged 17 years and she does

not remember the date, month and year of occurrence. She has further

deposed that one afternoon, the appellant misbehaved with her in an

inebriated condition and also criminally intimidated her with knife and

had sexual intercourse with her.

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12. A reading of the statement of the victim girl recorded under

Section 164 (5) Cr.P.C., would disclose that the victim girl has clearly

narrated that her mother had left her husband and she was residing with

the appellant for some time along with her two daughters. While so,

when the victim was alone in the house of the appellant, the appellant

came home in the middle of his work and locked the door and compelled

her to have sex with him on the pretext of marrying her and would do the

needful. When she refused the same, the appellant had criminally

intimidated her by showing knife and committed penetrative sexual

assault on her. Subsequently, she informed the same to her mother

following which, the mother of the victim quarreled with the appellant

and subsequently, informed the same to the police and the police

registered the case.

13. Perusal of records show that after registering the case, the

victim girl was produced before the Medical Officer for medical

examination and the doctor/P.W.9 who examined the victim girl has

deposed that on 14.09.2015 while she was on duty in Chengalpattu

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Government Hospital, the victim girl was brought by the head constable

and she had examined the victim girl clinically. The medical

examination reveals that the victim girl lost her virginity and her hymen

was not intact and her private part admits one finger. Further, the doctor

has stated that the victim had informed her that a known person had

penetrative sexual assault on her. Further, the doctor/P.W.8 who

conducted medical test on the victim girl in order to prove the age of the

victim, has deposed that the age of the victim is between 15 to 16 years.

P.W.10/the Headmistress of the school in which the victim studied has

issued a bonafide certificate/Ex.P.7 in which, the date of birth of the

victim is mentioned as 11.03.1999.

14. The contention of the learned Counsel for the appellant that

the date of birth mentioned in the bonafide certificate / Ex.P.7 is not the

actual date of birth of the victim girl and it is not a genuine one for the

reason that P.W.10/ the Headmistress who had issued the said certificate

has deposed that the line in green ink under the date of birth in the

bonafide certificate is not drafted by her, is not countenanced and not

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acceptable for the simple reason that P.W.10/the Headmistress in her

evidence has clearly stated that based on the school records, she had

written the date of birth in the said certificate. Even otherwise, the

medical certificate/Ex.P.5 and the evidence of the doctor/P.W.8 clearly

shows that the victim is between the age group of 15 to 16 years. Further,

the victim in her evidence has stated that she is aged 17 years at the time

of offence. Therefore, the date of birth mentioned in Ex.P.7/bonafide

certificate issued by P.W.10/the Headmistress is a genuine one and it is

also corroborated with the medical evidence. Therefore, the prosecution

has proved the age of the victim and also proved that she was a minor at

the time of alleged occurrence. Once the prosecution proved the date of

birth of the victim, it is for the defence to contrary prove that the date of

birth given by the prosecution is not that of the victim girl and she had

completed 18 years and she was not a minor at the time of occurrence.

Even otherwise, there is a presumption under Section 94 of Juvenile

Justice Act (Care and Protection of Children), 2015. Therefore, in such

circumstances, this Court finds from the evidence of P.Ws.1, 2, 8, and 10

and Exs.P.5 and 7 the prosecution has proved that the victim girl was a

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child and she was below 17 years and that she had not completed 18

years at the time of alleged occurrence.

15. As far as penetrative sexual assault on the victim is concerned,

the victim was examined as P.W.2 and she was produced before the

medical officer / P.W.9 and she was also examined by the learned Judicial

Magistrate and her statement was recorded under Section 164 Cr.P.C. A

complete reading of the evidence of the victim / P.W.2, the doctor/P.W.9

and the statement recorded under Section 164 Cr.P.C./Ex.P.2, shows that

the prosecution has proved that the victim was subjected to penetrative

sexual assault. Per contra, there is no evidence on the side of the defence.

Therefore, this Court finds that the victim was subjected to penetrative

sexual assault. Once, it is found that the victim was a child and she was

subjected to penetrative sexual assault, then the next question which

arises for consideration is as to who had committed the penetrative

sexual assault on the victim for which, P.W.2 in her evidence has clearly

stated that the appellant is the one who committed the sexual assault on

her. The appellant is a known person to the victim girl. Admittedly, the

mother of the victim along with the victim had stayed with the appellant

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for some time and the appellant had taken care of the victim and the

mother of the victim and also the sister of the victim and they were

living under one roof in the same house. While so, one day afternoon, the

appellant has committed penetrative sexual assault on the victim and

subsequently the same was informed to the mother of the victim. Even

before the doctor, the victim has stated that a known person in her house

had sexually assaulted her. Therefore, the complete reading of evidence

of P.W.2/the victim and the statement recorded under Section 164 Cr.P.C.

and also the evidence of the doctor/P.W.9, the prosecution has proved

that the appellant is the one who committed penetrative sexual assault on

the victim girl. Though during cross examination the victim had stated

that while they were residing in the same house along with the appellant,

the appellant had not committed the offence whereas, in the statement

recorded under Section 164 Cr.P.C. the victim has clearly stated that

while they were residing together, her mother and the appellant used to

go for work. One day, when the victim was alone in the house, the

appellant came back from his work in the middle and he locked the house

and committed penetrative sexual assault on the victim girl and he has

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also insisted her to marry him. But the said fact was not challenged

during cross examination. Though, the statement recorded under Section

164 Cr.P.C. is not a substantial evidence, however, it is an admissible

evidence and the prosecution could use the said statement for

corroboration and the accused can use the same for contradictions.

However, the defence side has not challenged the statement recorded

under Section 164 Cr.P.C./Ex.P.2. Therefore, from the evidence of the

victim, it is clearly proved that the appellant is the one who committed

penetrative sexual assault on the victim girl.

16. Though, the appellant was initially charged for the offence

punishable under Section 6 of POCSO Act, the trial Judge has stated that

only once the appellant had sexually assaulted the victim girl and hence,

acquitted him from the charge punishable under Section 6 of POCSO and

instead, convicted him for the offence punishable under Section 4 of

POCSO Act.

17. A careful reading of the entire evidence and the statement of

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the victim girl recorded under Section 164 Cr.P.C., shows that the

appellant has committed sexual assault on the victim girl repeatedly for

several times. Even otherwise, both the victim and the mother of the

victim have clearly stated that they were residing with the appellant in a

same house for sometime and the victim used to call him as “Appa”

(father) since, the victim believed him as her foster father. Thereby, the

offence committed by the appellant falls under Section 5(n) of POCSO

Act whereas, the learned trial Judge failed to appreciate the evidence and

the statement recorded under Section 164 Cr.P.C. Further, the statement

recorded under Section 164 Cr.P.C. was not challenged by the defence.

Therefore, the trial Judge ought to have convicted the appellant for the

offence punishable under Section 6 of POCSO whereas, the trial Judge

failed to do so and simply found the appellant not guilty for offence

under Section 5(n) which is punishable under Section 6 of POCSO Act

and convicted him for the offence under Section 4 of POCSO Act.

Neither the State, nor the victim has filed any appeal against the same.

This Court independently finds that the victim was a child under the

definition of 2(1)(d) of POCSO Act at the time of alleged occurrence and

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she was subjected to penetrative sexual assault and that the appellant is

the one who committed the said offence. Therefore, there is no merit in

the appeal and the appeal is liable to be dismissed.

18. As earlier pointed out in the other Judgments, it is now high

time for the State Government and the Judicial Academy to impart

training to the stakeholders and sensitize the Act and the State

Government should give awareness programme in all the schools and

every child should be taught about the good touch and bad touch even

own relative, father, grandfather how to deal with the child. Even if

father or any close relatives do any kind of bad touch or any sexual

assault, the child should inform either to the teachers or to the parents or

to the person whom the victim trusts. This education is very important.

This Act has not been properly implemented for the purpose for which

the Act was enacted. Therefore the State Judicial Academy is directed to

give a wide awareness programme to the stakeholders as well as to all the

schools and colleges especially to the female students below 18 years,

who fall under the definition of 2(1)(d) of POCSO and the Social Welfare

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Officers and Para Legal Aid Volunteers also should be given wide

sensitized programme and awareness programme through District Legal

Service Authorities regarding this Act.

19. With the above observations, this Criminal Appeal is dismissed

confirming the Judgment dated 17.12.2020 in Spl.S.C.No.23 of 2019

passed by the learned Sessions Judge, Special Court for Exclusive Trial

of Case under POCSO Act, Chengalpattu (FAC). The trial Court is

directed to secure the appellant/accused to undergo remaining period of

sentence, if any.

10.08.2021

Internet: Yes/No Speaking Order/Non Speaking Order ksa-2

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P.VELMURUGAN, J

ksa-2 To

1. The Special Court for Exclusive Trial of Case under POCSO Act, Chengalpattu (FAC).

2. The Inspector of Police, All Women Police Station, Chengalpattu

3. All District Legal Services Authorities

4. All District Social Welfare Officers

5.The Public Prosecutor Officer, High Court, Madras.

6.The Section Officer, Criminal Section, High Court, Madras.

Criminal Appeal No.298 of 2021

10.08.2021

https://www.mhc.tn.gov.in/judis