Madras High Court
Jeevanandham @ Jeeva vs The State Represented By on 24 August, 2021
CRL.A.No.329 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.08.2021
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
CRL.A.No.329 of 2020
Jeevanandham @ Jeeva
S/o, Madheswaran ... Appellant
Versus
The State represented by
The Inspector of Police,
Sendamangalam Police Station,
Namakkal District. ... Respondent
PRAYER:
Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure, to set aside the conviction and sentence of the order passed by
the Sessions (Fast Track Mahila) Court, Namakkal, in Spl.C.C.No.6 of
2018 dated 19.02.2020 by allowing the appeal and set the accused free
under law.
Page No.1 of 18
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CRL.A.No.329 of 2020
For Appellant : Mr.P.Veeraraghavan
For Respondent : Mr.S.Sugendran
Government Advocate, (Criminal Side)
*****
JUDGMENT
This Criminal Appeal has been filed to set aside order dated
19.02.2020 passed in Spl.C.C.No.6 of 2018 on the file of the Sessions
(Fast Track Mahila) Court, Namakkal.
2. The respondent police registered a case against the petitioner for
the offence under Section 376 IPC and Sections 3 and 4 of POCSO Act
in Crime No.445 of 2016. After investigation, laid a charge sheet before
the Sessions (Fast Track Mahila) Court, Namakkal. The learned Sessions
Judge, after completing the formalities, framed the charge for the offence
under Section 363 I.P.C and also under Section 5(1) r/w 6 of POCSO Act.
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3. In order to substantiate the charges framed against the appellant,
on the side of the prosecution, totally 20 witnesses were examined and 14
documents were marked. No material object was produced. After
completing the examination of the prosecution witnesses, incriminating
circumstances were culled out from the prosecution witnesses, put before
the accused, by questioning under Section 313 Cr.P.C., and the same was
denied by the accused as false and pleaded not guilty. On the side of the
defence, no oral and documentary evidence was produced. On
conclusion of trial and hearing the arguments advanced on either side and
perused the materials on record, the trial judge found the appellant guilty
for the offence under Section 363 I.P.C and also under Section 5(l) of
POCSO Act, which is punishable under Section 6 of POCSO Act, and he
was convicted and sentenced to undergo seven years rigorous
imprisonment and to pay fine of Rs.1,000/- in default to under go one
year simple imprisonment for the offence under Section 363 I.P.C and ten
years rigorous imprisonment and to pay fine of Rs.1,000/- in default to
undergo one year simple imprisonment for the offence under Section 5(l)
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CRL.A.No.329 of 2020
r/w 6 of POCSO Act. Challenging the said judgment of conviction and
sentence, the accused has filed the present appeal before this Court.
4. The learned counsel for the appellant would submit that the age
of the victim is 18 years and she is not a child on the date of occurrence
and it is the duty of the prosecution to prove the age of
victim/prosecutrix. In this case, the prosecution has not proved the age
of the victim/prosecutrix that the victim is a minor and not completed 18
years. Though, in order to prove the age of the victim, Ex.P7 has been
marked which is not admissible in evidence but the same was marked
subjected to objection made by the appellant, though the Headmistress
of the School in which the victim girl studied was examined as P.W.13,
since she is not the author of Ex.P.7. Further, father and mother of the
victim girl were admitted that birth certificate of the victim girl is
available with them. The I.O also admitted that he collected the birth
certificate, where as the same has not been produced before the Court.
Hence, the age of the victim girl was not proved. Since the victim is not a
child, offence under POCSO Act would not attract. The trial court failed
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to appreciate the validity of Ex.P7 and the evidence P.W.13, she herself
stated that she had not issued Ex.P7. The prosecution miserably failed to
prove the age of the victim. Ex.P7 is not the proof of the age of the
victim. The trial Judge failed to appreciate that the prosecution
miserably failed to prove the age of the victim girl.
5. Further, the learned counsel for the appellant would submit that
there are material contradictions regarding the date of occurrence, that
the victim girl stated that the second occurrence took place on
22.12.2016 in one place and 23.12.2016 in another place. Therefore, the
date of occurrence itself doubtful. Other persons who are connected with
the offence are not examined as witnesses, which has also fatal to the
case of the prosecution. Complaint has not been filed soon after the
occurrence. The first occurrence took place on 19.12.2016, but she has
not given any complaint either before the police or informed the incident
to her parents. Therefore, the complaint itself very doubtful. Veeramani,
who is the person alleged to have taken the victim and left her in the
appellant's house and standing outside the bathroom, is also examined as
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CRL.A.No.329 of 2020
witness P.W.9. The other person who alleged to have taken the victim girl
along with Veeramani was neither examined as witness nor implicated as
accused. There are materials contradictions between the witnesses of
P.Ws.1,2, and 3. P.W.1 is the victim girl, she herself stated that the birth
certificate is available with them. There is also a contradiction between
the evidence given by the victim girl before the Court and also the
statement under 164 Cr.P.C before the learned Judge. There are materials
contradictions between the evidence of P.Ws.1 to 3, regarding the date of
occurrence and the place of occurrence. No material object like D.N.A
profile was collected. The prosecution has not proved its case beyond
reasonable doubt that the appellant one who committed the penetrative
sexual assault on the victim girl. Therefore, even in the statement
recorded under Section 164 Cr.P.C, there are some contradictions. The
medical evidence also not corroborated with the evidence of the victim.
No eye witness has been examined in this case. P.Ws.2 and 3 are the
mother and father of the victim girl. P.Ws.1 to 3 are the interested
witnesses and they are exaggerated the incident, due to previous motive,
they foisted a false case against the appellant. I.O has also not
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CRL.A.No.329 of 2020
investigated the matter properly and wrongly framed the charges against
the appellant. Even the complaint itself very doubtful. The complaint
has not filed immediately soon after the occurrence. The first occurrence
took place on 19.12.2016 and she has not given any complaint either
before the police or informed to her parents. Subsequently, the second
incident itself doubtful, it is took place either on 22.12.2016 or
23.12.2016. Therefore, the evidence of the victim girl is not trustworthy.
Therefore the trial court miserably failed to appreciate the evidence.
Therefore, under these circumstances, the order of conviction and
sentenced passed by the trial court is liable to be setaside.
6. The learned Government Advocate (Criminal Side) would
submit that at the time of occurrence, the age of the victim girl is only 17
years. She is a child under the definition of Section 2(1)(d) of POCSO
Act. Even at the time of giving the complaint itself she has stated her age
is only 17 years. In the entry in the Accident Register also, the age of the
victim girl is mentioned as 17 years. The doctor one who examined the
victim girl also mentioned the age of the victim girl as 17 years in her
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medical records. During evidence, the victim girl has stated that at the
time of occurrence she was only 17 years and at the time of giving
evidence, she was 19 years, since the occurrence took place two years
prior to the recording of evidence of the victim girl before the trial court.
Further, even before the Judicial Magistrate, recording the statement
under Section 164 Cr.P.C, she has mentioned the age as 17 years. In
order to substantiate the same, Ex.P7 was marked which was obtained
from the School in which the victim girl was studied. In order to
substantiate the same, the Headmistress of the School was examined as
P.W.13. Therefore, from the evidence of P.W.13 and Ex.P7 and the
evidence of P.Ws.1 to 3 and the statement recorded under Section 164
Cr.P.C, the prosecution proved the age of the victim girl is below 18
years and she is a child under the definition of POCSO Act.
7. As far as the occurrence is concerned, the victim is the
complainant one who gave the complaint before the respondent police,
while she was admitted in the hospital. Subsequently, the respondent
police registered a case against the appellant for the offence under
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Section 376 IPC and Sections 3 and 4 of POCSO Act in Crime No.445 of
2016. Subsequently, the victim girl was produced before the Judicial
Magistrate for recording the statement under Section 164 Cr.P.C and the
same was also recorded. The victim girl was examined as P.W.1 before
the Court and she has narrated the entire incident and the parents of the
victim girl were examined as P.Ws.2 and 3, they have also categorically
stated the age of the victim and also the incident which was informed by
the victim girl. Subsequently, she was admitted in the hospital. Further
the doctors who admitted the victim girl were examined as P.W.14 and
also P.W.15. The medical records Ex.P8 , Accident register copy, Ex.P9,
Medical report of the victim girl and Ex.P5 Accident Register clearly
proved the injury and the victim girl was subjected to penetrative sexual
assault and the doctor mentioned that one known person assaulted the
victim girl sexually. Therefore, from the evidence, it clearly shows that
the the appellant is the one who committed the offence under Section 363
I.P.C and Section 6 of POCSO Act. The evidence of the victim girl is
cogent, and also trustworthy and there is no reason to discard the
evidence of P.W.1, the victim girl. Therefore, the contradictions pointed
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out by the learned counsel for the appellant are not material
contradictions which would go into the root of the case of the
prosecution. From the oral and documentary evidence, the prosecution
proved its case beyond reasonable doubt that the victim girl is a child and
she was subjected to penetrative sexual assault, which was committed by
the appellant. The trial court rightly appreciated the entire evidence and
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
counsel for the learned Government Advocate (Criminal Side) appearing
for the respondent.
9. The appellate court is the fact finding court, it has to re-
appreciate and revisit the entire evidence and give independent finding.
10. Admittedly, charges framed against the appellant are offence
under section 363 I.P.C and offence Section 5(l) of POCSO Act,
which is punishable under Section 6 of POCSO Act. In order to
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substantiate the charges framed against the appellant, on the side of the
prosecution, totally, as many as 20 witnesses were examined as P.W.1 to
P.W.20 and 14 documents were marked as Ex.P1 to P14. No material
object was marked. Out of 20 witnesses, the victim girl was examined as
P.W.1. On a reading of the evidence of P.W.1, she has clearly narrated
the incident that, on 19.12.2016, the appellant has committed penetrative
sexual assault and again on 22.12.2016, she was subjected to penetrative
sexual assault by the appellant. Father and mother of the victim girl were
examined as P.Ws.2 and 3. Though, the learned counsel for the appellant
vehemently contended that the prosecution has not proved the age of the
victim girl, from the evidence of P.Ws.1 to 3 and P.W.13 and also from
Ex.P7, the prosecution proved the age of the victim girl is below 18 years
and she is a child. In order to prove the age of the victim girl, the
prosecution produced the document marked as Ex.P7 through P.W.13.
Therefore, on a perusal of Ex.P7, it is a school certificate issued by the
Headmistress of the School in which the victim girl was studied, the date
of birth of the victim girl marked as 07.06.2000.The date of occurrence is
19.12.2016. Therefore, the age of the victim is only 17 years and she is a
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CRL.A.No.329 of 2020
child at the time of occurrence. The learned counsel for the appellant
contended that Ex.P7 has not been proved in the manner known to law,
both the victim and the parents of the victim admitted that the birth
certificate is available with them, but the prosecution has not produced
the birth certificate collected from the family, which creates suspicion.
But, P.W.13 clearly stated that Ex.P7 is the certificate issued from the
School after verifying the School records.
11. Section 94 of Juvenile Justice ( Care and Protection of
Children Act 2015) which reads as follows:
94.Presumption and determination of
age:
(1) Where, it is obvious to the Committee
or the Board, based on the appearance of the
person brought before it under any of the
provisions of this Act (other than for the
purpose of giving evidence) that the said person
is a child, the Committee or the Board shall
record such observation stating the age of the
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CRL.A.No.329 of 2020
child as nearly as may be and proceed with the
inquiry under section 14 or section 36, as the
case may be, without waiting for further
confirmation of the age.
(2) In case, the Committee or the Board
has reasonable grounds for doubt regarding
whether the person brought before it is a child
or not, the Committee or the Board, as the case
may be, shall undertake the process of age
determination, by seeking evidence by
obtaining-
12. In this case, P.W.13 has clearly stated that Ex.P7 has been
given after verifying with the school records. Therefore, it is the
presumption under Section 94 of Juvenile Justice ( Care and Protection
of Children Act 2015), Ex.P7 is the genuine document which shows the
date of birth of the victim is 07.06.2000. This Courts finds that age of
the victim is below 18 years and she is a child under the definition of
Section 2(1)(d) of POCSO Act. As far as the penetrative sexual assault is
concerned, the victim was examined as P.W.1. On a reading of evidence
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of P.W.1, she has clearly narrated the incident that on 19.12.2016 at
about 7.00 p.m, the appellant has committed penetrative sexual assault on
her and further she stated that on 22.12.2016 also, the appellant
committed the same. She has given the complaint before the respondent
police, while she was admitted in the hospital. Ex.P5, copy of the
Accident Register Copy clearly shows that the victim was admitted in
hospital on 21.12.2016 and she was sexually assaulted by known person
and also mentioned the external injury in the medical record. The victim
girl examined as P.W.1 narrated the incident that the appellant committed
penetrative sexual assault on her and due to that she sustained injury
also. The evidence of P.W.8 and P.W9 also proved that the victim was
subjected to penetrative sexual assault. P.W.1 corroborated the medical
evidence. Further, the victim produced before the Judicial Magistrate for
recording statement under Section 164 Cr.P.C., and accordingly she was
produced before the Magistrate on 04.01.2017 and the statement also
recorded. Though there is a contradiction regarding second date of
offence as to whether it is on 21.12.2016 or 22.12.2016, it is to be noted
that date of offence is 19.12.2016, date of examination of victim as
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witness before the Court is on 11.10.2018. From the evidence of P.W.2,
P.W.3 and the Accident Register Ex.P5, the date of second occurrence is
only on 21.12.2016 and not on 22.12.2016. On a reading of the
statement recorded under 164 Cr.P.C., clearly shows that on 19.12.2016,
the victim was subjected to penetrative sexual assault. Since the victim
was subjected to penetrative sexual assault more than once, which is an
offence of aggravated penetrative sexual assault under Section 5(l) of
POCSO Act, which is punishable under section 6 of POCSO Act.
Therefore, from the evidence of P.W.1 and the complaint Ex.P1, the
statement under Section 164 Cr.P.C Ex.P2, and also the doctors
evidences Ex.P8 and Ex.P9, the prosecution proved that the appellant
one who committed the penetrative sexual assault on the victim girl.
Further, from the evidence of P.W.1, victim girl, P.Ws.2 and 3, parents of
the victim girl, the complaint Ex.P1 and the statement recorded under
Section 164 Cr.P.C, Ex.P2, and the evidences of the doctors P.W.14 and
P.W.15, Exs.P7, P8 and P9, the prosecution proved that the appellant is
the one who committed penetrative sexual assault on victim girl more
than once. The prosecution also proved that the victim is a child under
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the definition of Section 2(1)(d) of POCSO Act and she was subjected to
penetrative sexual assault by the appellant. There is a presumption under
section 29 of POCSO Act, it is for the appellant to rebut the presumption
in the manner known to law. Therefore, in this case, on reading of the
entire materials on record, this Court also finds that the victim is a child
and she was subjected to penetrative sexual assault by the appellant. The
trial court also rightly appreciated the evidence, convicted the appellant.
Since the appellant removed the custody of the victim child without the
consent of the lawful guardian and also committed sexual assault on the
victim girl, the appellant has committed the offence under section 361
I.P.C which is punishable under section 363 I.P.C. Therefore, this Court
finds that the appellant has committed the offence both punishable under
Section 363 I.P.C and also under Section 6 of POCSO Act. There is no
merit in the appeal and the same is liable to be dismissed. Accordingly,
the Criminal Appeal is dismissed.
24.08.2021
Index: Yes/No
Internet: Yes/No
mfa
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CRL.A.No.329 of 2020
To
1.The Sessions Judge,
Sessions (Fast Track Mahila) Court,
Namakkal.
2.The Inspector of Police,
Sendamangalam Police Station,
Namakkal District.
3. The Public Prosecutor,
High Court,
Madras.
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CRL.A.No.329 of 2020
P.VELMURUGAN, J.
mfa
CRL.A.No.329 of 2020
24.08.2021
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