Madras High Court
Mahendiran vs State Rep By on 25 August, 2021
Crl.A.No.(MD)No.126 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.(MD) No. 126 of 2016
Mahendiran : Appellant/Sole Accused
Vs.
State rep by
The Inspector of Police,
All Women Police Station,
Kulithalai,
Karur District.
(Crime No.6 of 2013). : Respondent/Complainant
PRAYER: The Criminal Appeal is filed under Section 374 of the Code of
Criminal Procedure, to set aside the order of conviction and sentence, dated
19.01.2015 made in Special S.C.No.01 of 2014, on the file of the learned
Session Judge, Mahalir Neethimandram (Fast Track Mahila Court), Karur
and allow this appeal and acquit the appellant/accused from the charge
levelled against him.
For Appellant : Mr.C.Christopher
for Mr.P.Krishnasamy
For Respondent : Mr.E.Antony Sakaya Prabahar
Government Advocate (Crl.side)
1/20
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Crl.A.No.(MD)No.126 of 2016
JUDGMENT
The present Criminal Appeal is directed against the conviction
and sentence, dated 19.01.2015, made in Special S.C.No.01 of 2014, on the
file of the Sessions Judge, Mahalir Neethimandram (Fast Track Mahila
Court), Karur.
2. The appellant is the sole accused. He stood charged for the
offences punishable under Sections 5(m) r/w 6 of Protection of Children
from Sexual Offences Act, 2012 (hereinafter referred as “POCSO Act”).
The accused denied the charges as false and opted for trial. Therefore, he
was put on trial on the charges.
3. After full-fledged trial, the learned Sessions Judge, Mahalir
Neethimandram (Fast Track Mahila Court), Karur, came to the conclusion
that the appellant was found guilty for the offence punishable under Section
5(m) r/w 6 of POCSO Act and accordingly, he was convicted and sentenced
to undergo Rigorous Imprisonment for 10 years and to pay a fine of
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Rs.5,000/-, in default, to undergo Simple Imprisonment for 6 months.
Challenging the said conviction and sentence, the appellant is before this
Court, by way of filing the present Criminal Appeal.
4. The relevant facts of the case, which gave rise to filing of this
appeal are necessary to be recapitulated for the disposal of this appeal:-
(i) P.W.-3-X- is the victim child. P.W.1-Thavamani and P.W.2-
Paulraj are her parents. On 23.10.2013 around 10.15 a.m., when P.W.1 was
in her house, the victim child came from the area, in which, the accused was
residing and when P.W.1-Thavamani questioned the victim child, she
wanted to go for attending the natural call. At the time, P.W.1 removed the
skirt which owned by victim child, she found that there was a white fluid in
the thigh of the victim child. Further, the while fluid was found in the skirt
also.
(ii) After attending the natural calls, when the victim child was
questioned by P.W.1, the victim child told to P.W.1 that the accused
Mahendiran after giving chocolate, brought her to his house and committed
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Crl.A.No.(MD)No.126 of 2016
a bad activities. Immediately, after hearing the same, P.W.1 and one P.W.4-
Tamilselvi @ Selvi went to the accused house and questioned about the
complaint made against him by the victim child. In this regard, the accused
after denying the allegation replied to P.W.1 as he brought the minor child
only for seeing the Cinema. Further, he has told to P.W.1 that since the
victim child is wanted to attend the natural call, after pinching her instructed
to send out from his house. Thereafter, P.W.1 brought the victim child to
one Visalakshi Hospital which is situated in Somarasampettai, wherein, due
to the reasons that the Doctor is not available, again returned to her house
along with victim child. Later, she brought the victim child to the
Government Hospital, Trichy for giving treatment.
(iii) In the Government Hospital, Trichy, P.W.10-Dr.Thiruselvi,
on the same day, in noon, examined the victim child and admitted her as
inpatient. On examination, she found that there was no external injuries. She
collected the vaginal smear and sent the same for chemical examination.
After completing the process of chemical examination, she received a report
that there was no semen found in the vaginal smear. The said report was
marked as Ex.P7.
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Crl.A.No.(MD)No.126 of 2016
(iv) In the mean time, on receipt of information from the
Government Hospital, Trichy, P.W.18-V.R.Selvi, the then Inspector of
Police, All Women Police Station, Kulithalai, rushed to the hospital and
recorded the statement from P.W.1 (Ex.P1). In turn, based on the statement
given by P.W.1, she registered a case against the accused in Crime
No. 6/2013 for the offences punishable under Section 8 of POCSO Act. The
printed FIR was marked as Ex.P16. After registration of the case, P.W.18
took the same for investigation. She examined the witnesses and recorded
their statements.
(v) In the presence of P.W.5-Jeyavel and one Vasudevan, she
recovered the dresses (M.O.1 & M.O.2) owned by the victim child at the
relevant point of time. Recovery Mahazar prepared for the recovery of
those M.O.1 and M.O.2 were marked as Ex.P.4. On the next day ie, on
24.10.2013 she has visited the occurrence place and in the presence of
P.W.9-Manikandan and Vellaichamy, she prepared an Observation Mahazar
under Ex.P5. She drawn the Rough Sketch and the same has been marked as
Ex.P17.
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Crl.A.No.(MD)No.126 of 2016
(vi) In continuous of investigation, on 24.10.2013 around 10.00
a.m., she arrested the accused and in the presence of P.W.9, she recorded the
disclosure statement from the accused. In the disclosure statement, the
accused admitted the commission of offence and willing to produce the
dresses which owned at the time of occurrence.
(vii) Pursuant to the confession statement, P.W.18 brought the
accused to his house, wherein, the accused produced the dresses (M.Os. 3 to
5). The said material objects were recovered in the presence of same
witnesses under the cover of mahazar Ex.P6. After recovering the material
objects as above, P.W.18 made arrangements for sending the accused to
remand. On 31.10.2013 she submitted an application before the Fast Track
Mahila Court for recording the statement under section 164 Cr.P.C., from
P.W.1 as well as from the victim child. In turn, in view of the orders passed
by the Fast Track Mahila Court, P.W.17-Mohana Ramya, on 31.10.2013
recorded the statement from P.W.1 and the victim child and the said
statements have been marked before the trial Court as Ex.P2 and Ex.P3
respectively. Further, the said statements have been recorded through M.O.
6-CD.
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Crl.A.No.(MD)No.126 of 2016
(viii) In continuous of investigation, P.W.18 vide Ex.P18
submitted a letter before the Judicial Magistrate, Kulithalai, praying for
medical examination of the accused. Thereafter, in view of the reference
issued by the Judicial Magistrate No.I, Kulithalai, P.W.13-Dr.Gowtham
examined the accused and issued a certificate as there was no resemblance
to show that the accused committed intercourse recently, further, he referred
the accused to the Radiologist for fixing the age scientifically.
(ix) In turn, P.W.14-Dr.Ravi, radiologically examined the accused
and issued the certificate stating that the age of the accused is around 30
years. The age certificate issued by P.W.14 was marked as Ex.P12. The
letter sent by the Court and the Accident Register copy issued by P.W.13
were marked as Ex.P8 and Ex.P.9 respectively. Further, the opinion given
by P.W.13 was marked as Ex.P.11.
(x) After the completion of above formalities, P.W.18 submitted a
one another letter before the Court with request to send the material objects,
which were collected during the time of investigation, for chemical
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Crl.A.No.(MD)No.126 of 2016
examination. In turn, in view of the reference issued by the Court, P.W.16-
C.Jeya, Scientific Assistant examined the following Material Objects:-
“Item 1 : A silken light brownish tops with black designs, ligh
brownish embroidery designs, black chumky designs and
yellow stones.
Item 2 : A torn silken pink skirt
Item 3 : A silken blue underwear
Item 4 : A silken maroon half sleeve shirt
Item 5 : A torn light yellowish cotton dhoti with yellowish fancy
border stripes, on which were dark brown stains.”
In the examination, she detected that there was a semen found in a torn
silken pink skirt (MO-2). In this regard, she issued a report under Ex.P.15.
(vii) After receipt of the said report, P.W.18 examined P.W.16 and
recorded her statement. Further, she examined the doctor, who examined
the accused and the victim child, and recorded their statement. Ultimately,
after concluding the investigation, she came to the positive conclusion that
the accused herein had committed penetrative sexual assault on a child, who
is below the age of 12 years. In this regard, he altered the section of law
from 8 of POCSO Act to 5(m) r/w 6 of POCSO Act. The alteration report
was marked as Ex.P.21. Further, he filed a final report against the accused,
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accordingly.
5. Based on the materials available, the trial Court framed the
charges for an offence punishable under Section 5(m) r/w 6 of POCSO Act.
The accused denied the charge and opted for trial. Therefore, the accused
was put on trial.
6. During the course of trial proceedings, in order to prove the
case of prosecution, as many as 19 witnesses i.e., P.W.1 to P.W.19 were
examined on the side of the prosecution and 22 documents were exhibited
as Ex.P1 to Ex.P22.
7. Out of the above said witnesses, P.W.1-Thavamani, who is the
mother of the victim child, speaks about the information given by the victim
child in respect of the sexual assault committed by the accused. She has also
claims that at the time, when the victim child was admitted in the hospital
for taking treatment, P.W.18 came there and obtained a complaint from her.
(ii) P.W.2-Paulraj, who is the father of the victim child, deposed
that during the relevant point of time, he was informed by P.W.1 and
thereafter, he made arrangements for giving treatment to the victim child.
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Crl.A.No.(MD)No.126 of 2016
(iii) P.W.3 is the victim child. She did not give any evidence in
support of the case of the prosecution. However, before the trial Court, she
identified accused without any hesitation.
(iv) P.W.4-Tamilselvi @ Selvi and P.W.7-Kalarani, they were
neighbours to P.W.1 gave similar evidence given by P.W.1 as while at the
time of seeing the child, there is a white semen in the thigh of the victim
child.
(v)P.W.5-Jayavel is the resident of Neithaloor. He claims that the
Investigating Officer in this case had prepared an Observation Mahazar in
his presence. He has further stated before the trial Court that M.Os.1 & 2
were recovered in his presence.
(vi) P.W.6-Mohamed Ali is the resident of Neithaloor. He claims
that during the relevant point of time around 10.00 a.m., there was a crowd,
wherein, somebody told that the accused herein committed an offence as
alleged by the prosecution.
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(vii) P.W.8-Gobalakrishnan @ Pandiyan is the resident of same
locality. He did not say anything about the occurrence in support of the
prosecution.
(viii) P.W.9-Manikandan gave evidence as P.W.18 prepared an
Observation Mahazar in his presence. He has further stated that after the
arrest of the accused in their presence, P.W.18 recorded the confession
statement from the accused and recovered the material objects M.Os.3 to 5.
(ix) P.W.10-Dr.Thiruselvi attached with Government Hospital,
Trichy, speaks about the details of treatment given to the victim child.
(x) P.Ws.11 & 12 are Grade-1 Constables speaks about the details
in respect to the production of accused for medical examination.
(xi) P.W.13-Dr.Gowthaman attached with the Government
Hospital, Karur, gave evidence as during the time of examining the accused,
he has not found any symptoms for recent sexual intercourse. However, he
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issued a certificate that the accused is a capable person to perform sexual
intercourse.
(xii)P.W.14-Dr.Ravi, who is another Doctor/Radiologist,
examined the accused and issued a age certificate stating that the age of the
accused is around 30 years.
(xiii) P.W.15-Thiyagu Grade-I Constable speaks about the details
about the production of victim child before the Magistrate for recording 164
Cr.P.C., statement.
(xiv) P.W.16-C.Jaya is a Scientific Assistant. She claims that on
31.03.2013 she received the Material Objects 1 to 5 for examination and on
examination she detected a semen in M.O.2.
(xv) P.W.17-S.Mohana Ramya, the then Magistrate, speaks about
the details in respect of recording 164 Cr.P.C., Statement from P.Ws.1 & 3.
(xvi) P.W.18-V.R.Selvi, the then Inspector of Police, gave
evidence in respect of the registration of the case, examination of the
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Crl.A.No.(MD)No.126 of 2016
witnesses, arrest of the accused and about filing of final report.
8. When the above incriminating materials were put to the
accused under Section 313 of Cr.P.C., he denied the same as false.
However, he did not chose to examine any witness or mark any document
on his side.
9. The learned Sessions Judge, Mahalir Neethimandram (Fast
Track Mahila Court), Karur, after perusing all the above materials and on
considering the arguments advanced by the learned counsels on either side,
convicted and sentenced the appellant as stated supra. Aggrieved by the
said conviction and sentence, the appellant is before this Court with this
appeal.
10. I have heard Mr.C.Christopher, learned counsel appearing for
the appellant/accused and Mr.E.Antony Sahaya Prabakar, learned
Government Advocate (Crl.side) appearing for the State. I have also
perused the records carefully.
11. The learned counsel appearing for the appellant would
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contend that before the trial Court, the victim child is the competent person
to say the occurrence, had not been given any evidence in support of the
prosecution. Even assuming that the evidence given by P.W.1 is in favour
of the prosecution. The evidence given by the doctor, who examined the
victim child as a first instant, is not in support of the evidence given by
P.Ws.1 & 7. According to him, absolutely, there is no evidence available
from the prosecution witness to convict the accused, the learned trial Judge
without appreciating the same in a perspective manner mainly relying on
Presumption Clause found in Section 29 of POCSO Act, came to the
conclusion that the appellant is found guilty under Section 5(m) r/w Section
6 of POCSO Act, and these fact, the conviction and sentence rendered by
the trial Court is liable to be set aside.
12. Per contra, the learned Government Advocate (Crl.side)
appearing for the respondent would contend that being the reason that the
victim child is aged about 3 years, she is not in a position to gave evidence
in support of the prosecution. Though, she has not given any evidence
verbally before the trial Court, but the identification made by the victim
child is sufficient to hold that the accused committed an offence as alleged
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by the prosecution. He would further contend that the semen found in the
skirt (M.O.2) is a substantial evidence to accept the story put forth by the
prosecution. According to him, the interference of this Court in the findings
given in the impugned judgment does not require.
13. I have considered the rival submissions made by the learned
counsel appearing on either side.
14. Initially, on going through the impugned judgment rendered
by the trial Court, it is true that the learned Sessions Judge, Fast Track
Mahila Court mainly relied on the evidence given by P.W.1 by applying the
presumption clause found in Section 29 of POCSO Act, came to the
conclusion that the accused is found guilty.
15. Now, on go through the definition Clause of 5(m) of POCSO
Act, it is necessary for the prosecution to raise a prima facie evidence as
during the time of occurrence, the accused committed penetrative sexual
assault on a child below 12 years. Applying the ingredients of the said
Section with the case in hand, absolutely, there is no evidence found on the
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Crl.A.No.(MD)No.126 of 2016
side of the prosecution that during the time of occurrence, the accused
commits penetrative sexual assault. The only evidence available in respect
of the allegation levelled against the accused is that, the evidence given by
P.W.1 and P.W.7, according to them, during the relevant point of time, they
saw a white fluid in the dresses of the victim child. Further, the evidence
given by P.W.1 is quite clear that on the same day, after removing the
dresses owned by the victim child, she washes the symptoms and then, she
brought the child to the hospital for giving treatment. In this regard, the
evidence given by the doctor, who examined the victim child as a first time,
is a very narrow one that there is no injury found in the body of the victim
child. Therefore, in the said circumstances, it cannot be conclude that
during the time of occurrence, the accused committed penetrative sexual
assault. Therefore, I am of the view that the conviction and sentence
awarded by the trial Court under Section 5 (m) r/w Section 6 POCSO Act is
liable to be set aside.
16. However, on go through the whole story projected by the
prosecution, it is not in dispute that P.W.18 Investigating Officer during the
time of investigation recovered the skirt owned by the child at the time of
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occurrence and sent the same for chemical examination. The evidence
given by P.W.16, who is the scientific officer, stated that during time of
chemical examination, she detected a semen in the skirt of the victim child.
In respect of the said evidence, there was no denial on the side of the
accused as no semen was detected. Further, in respect of the recovery of the
skirt, the evidence given by P.W.9, who attested in the seizure mahazar and
the evidence given by the investigating officer, were not disputed on the
side of the accused. Mere putting the suggestion, as the evidence given by
the investigating officer in respect of the recovery of the skirt, is false and it
is not sufficient to hold that the accused has shown a prima facie materials
for disbelieving the said evidence. Therefore, the detection of semen by the
Scientific Assistant is in support of the evidence given by P.Ws.1 & 7, who
are the persons to saw the victim child, immediately after the occurrence.
Therefore, in the said circumstances, though the evidence given by the
doctor, who examined the victim child is not in correspondence with the
evidence given by P.Ws.1 & 7, I am of the opinion that the detection of
semen is in support of the evidence given by P.Ws.1 & 7. When at the time
of giving evidence as P.W.1, the mother of the victim child has clearly
narrated the occurrence as the child was came from the area, in which, the
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Crl.A.No.(MD)No.126 of 2016
accused was residing. Further, in respect of the enquiry made by
P.Ws.1 & 7, the accused had admitted that he pinched the victim child.
Therefore, the reply given by the accused is quite clear that the child was
together with accused just before the occurrence. In the said circumstances,
it is necessary to presume that the semen detected is belongs to the accused.
Therefore, the said circumstances made clear that the accused with sexual
intend, touches the vagina of the victim child and involves physical contact
without penetration.
17. Accordingly, in the light of the above discussions stated supra,
the appellant/accused is convicted under Section 9(m) r/w 10 of POCSO
Act and sentenced to undergo Rigorous Imprisonment for 5 years and to pay
a fine of Rs.5,000/- in default to undergo Simple Imprisonment for 6
months.
18. In the result, this Criminal Appeal is partly allowed.
25.08.2021
Index : Yes/No
Internet : Yes/No
am
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Crl.A.No.(MD)No.126 of 2016
To:-
1.The Session Judge, Mahalir Neethimandram
(Fast Track Mahila Court), Karur.
2.The Inspector of Police,
All Women Police Station,
Kulithalai,
Karur District.
3.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.No.(MD)No.126 of 2016
R.PONGIAPPAN,J.
am
Crl.A(MD)No.126 of 2016
25.08.2021
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