Madras High Court
Ajithkumar vs State Rep.By on 26 August, 2021
CRL A No.389 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.08.2021
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Appeal No.389 of 2021
Ajithkumar ...Appellant / Sole Accused
Vs.
State Rep.by
The Inspector of Police
Pothanur Police Station
Coimbatore City
Coimbatore District
(Crime No.969 of 2018) ...Respondent / Complainant
Prayer : Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code praying to set aside the Judgment and sentence passed in
Spl.C.C.No.3 of 2020 dated 30.04.2021, on the file of Sessions Judge,
Special Court for Exclusive Trial of Cases under POCSO Act,
Coimbatore and acquit the Appellant in view of the above stated grounds.
For Appellant : Mr.Philip Ravindran Jesudoss
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
1/11
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CRL A No.389 of 2021
JUDGMENT
(The case has been heard through video conference)
The Criminal Appeal has been filed against the Judgment of
conviction and sentence passed in Spl.C.C.No.3 of 2020 dated
30.04.2021 by the learned Sessions Judge, Special Court for Exclusive
Trial of Cases under POCSO Act, Coimbatore
2. The respondent police registered a case against the appellant in
Crime No.969 of 2018 for the offence punishable under Sections 366(A)
IPC, Section 9 of Prohibition of Child Marriage Act 2006 and Section
5(l) of POCSO Act 2012 which is punishable under Section 6 of POCSO
Act 2012. After investigation, the respondent police laid charge sheet
before the Special Court, Coimbatore and the same was taken up on file
in Spl.C.C.No.3 of 2020. The learned Sessions Judge after completing
the formalities, framed charges against the appellant for the offence
punishable under Sections 366(A) IPC, Section 9 of Prohibition of Child
Marriage Act 2006 and Section 5(l) which is punishable under Section 6
of POCSO Act 2012.
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CRL A No.389 of 2021
3. After framing charges, in order to prove the case of the
prosecution during trial, on the side of the prosecution as many as 14
witnesses were examined as P.W.1 to P.W.14 and 18 documents were
marked as Exs.P.1 to P.18 besides one material object was exhibited as
M.O.1 and one Court Document was marked as C1.
4. After completing the examination of the prosecution witnesses,
incriminating circumstances culled out from the evidence of the
prosecution witnesses were put before the appellant by questioning under
Section 313 Cr.P.C. However, he denied the same as false and he
pleaded not guilty. On the side of the defence no oral or documentary
evidence was marked.
5. On completion of trial and conclusion of arguments advanced by
both the counsels and considering the materials available, the learned
trial Judge found guilty of the accused for the offence under Sections
366(A) IPC, Section 9 of Prohibition of Child Marriage Act 2006 and
Section 5(l) which is punishable under Section 6 of POCSO Act 2012
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CRL A No.389 of 2021
and convicted and sentenced him to undergo rigorous imprisonment for
10 years and to pay fine of Rs.1,000/- in default to undergo one year
rigorous imprisonment for the offence under Section 366(A). He was also
convicted and sentenced to undergo 2 years rigorous imprisonment and
to pay fine of Rs.1,000/- in default to undergo 6 months rigorous
imprisonment for the offence under Section 9 of Prohibition of Child
Marriage Act 2006. Further, he was convicted and sentenced to undergo
rigorous imprisonment for 20 years and to pay fine of Rs.5,000/- in
default to undergo one year rigorous imprisonment for the offence under
Section 5(l) which punishable under Section 6 of POCSO Act 2012 and
a sum of Rs.5 lakhs was awarded as compensation. Challenging the said
judgment of conviction, sentence and compensation, the appellant has
filed the present appeal before this Court.
6. Today the appeal is listed for admission. Since the offences are
against a child aged about 15 years, this Court carefully gone through the
entire materials including the grounds of appeal submitted by the
appellant and the Judgement of the trial Court.
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CRL A No.389 of 2021
7. It is the case of the prosecution that the daughter of the defacto
complainant who is aged about 15 years was found missing from
24.09.2018. Hence, the defacto complainant lodged a complaint before
the respondent police and the case was initially registered for “Girl
Missing” in Crime No.969 of 2020. During the course of investigation, it
was found that the appellant on the pretext of marrying the victim, took
her to Tiruppur and thereafter, stayed with her at several places till
08.11.2018 during which time, the appellant has tied her Thali and
married her and also had sexual intercourse with her on several times.
Therefore, the case was altered into Sections 366(A) IPC, Section 9 of
Prohibition of Child Marriage Act 2006 and Section 5(l) of POCSO Act
2012 which is punishable under Section 6 of POCSO Act 2012.
Subsequently, the victim was produced before the doctor for medical
examination and also before the Magistrate for recording her statement
under Section 164 Cr.P.C. and after completion of investigation, the
charge sheet was laid.
8. In this case, since this Court is the Appellate Court of fact
finding, it has to re-appreciate the evidence independently and to give its
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CRL A No.389 of 2021
findings. Accordingly, this Court gone through the entire materials and
Judgment of the trial Court and appreciated the entire evidence
independently and give its finding.
9. In order to substantiate the charges framed against the appellant,
on the side of the prosecution as many as 14 witnesses were examined.
Out of the 14 witnesses, the victim girl was examined as P.W.2.
10. In the evidence, P.W.2-victim has clearly narrated the entire
incident. She has stated that the appellant is the one who took her to
several places from 24.09.2018 to 08.11.2018 during which time, the
appellant had tied her Thali and married her and also had sexual
intercourse with her on several times. P.W.7-doctor who conducted
medical examination on the victim has clearly stated that the victim was
subjected to penetrative sexual assault and her hymen was not intact and
she was subjected to sexual assault on several times. Therefore, from the
evidence of P.W.2-victim and P.W.7-doctor, it is clear that P.W.2-victim
was subjected to penetrative sexual assault.
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CRL A No.389 of 2021
11. In order to prove the age of the victim girl, Ex.P.2- Copy of the
Aadhaar Card of the victim was marked. According to P.W.1-father of the
victim, P.W.2-victim and Ex.P.2-Copy of the Aadhaar Card of the victim,
the date of birth of the victim girl is 26.06.2003 and the date of
occurrence is on 24.09.2018. Therefore, on the date of occurrence, the
age of victim was 15 years and she had not completed 18 years and she
was a child under the definition of 2(1) (d) of POCSO. Per contra, the
defence had not disproved that the victim is not a child and she had
completed 18 years at the time of alleged occurrence. Therefore, the trial
Court came to conclusion that the victim was a minor and not completed
the age of 18 years at the time of alleged occurrence and she was a child
under the definition of 2(1)(d) of POCSO.
12. P.W.2-victim has clearly stated that the appellant took her on
24.09.2018 and they stayed at various places during which, he tied her
Thali and made her to believe that she was his wife and had sexual
intercourse with her. Therefore, the prosecution has proved that the
appellant has committed the offence under Section 9 of Prohibition of
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CRL A No.389 of 2021
Child Marriage Act 2006 since, the victim was below 18 years and she
was a child at the time of occurrence as stated above.
13. As far as penetrative sexual assault is concerned, from the
evidence of P.W.7-doctor and Exs.P.11 and 12/Medical Report and
Opinion of the doctor, the prosecution has proved that the victim was
subjected to penetrative sexual assault. Since the victim was a child and
the appellant committed penetrative sexual assault on the victim for more
than once, the offence committed by the appellant falls under Section 5(l)
i.e. aggravated penetrative sexual assault which is punishable under
Section 6 of POCSO Act.
14. The evidence of P.W.2-victim clearly shows that the appellant
is the one who took the victim and tied Thali and had sexual intercourse
with her. Since, the victim had not completed the age of 18 years and
without the consent of the lawful guardians, the appellant took the victim
girl to several places for the purpose of marriage and also had sexual
intercourse with her, the appellant has committed the offence under
Section 366(A) IPC.
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CRL A No.389 of 2021
15. Therefore, from the evidence of P.W.2-victim girl, P.W.7-doctor,
Ex.P.3-the statement recorded under Section 164 Cr.P.C., Ex.P.11-
Medical report, Ex.P.12-final opinion of the doctor/P.W.12 and Ex.P.17-
alteration report, the prosecution has proved its case beyond all
reasonable doubt.
16. A reading of the evidence of the prosecution witnesses and the
documentary evidence and also the Judgment of the trial Court, this
Court finds that there is no merit in the appeal and that the grounds raised
in the appeal has already been answered by the trial Court. This Court
does not find any perversity in the Judgment passed by the trial Court
and there is no necessity to admit the appeal and to call for the records
and hearing the matter in detail. This Court is not satisfied with the
grounds of appeal. Therefore, the Criminal Appeal is dismissed at the
admissions stage itself.
26.08.2021
Ksa-2
Internet: Yes/No
Speaking Order/Non Speaking Order
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CRL A No.389 of 2021
ksa-2
To
1. The Sessions Judge, Special Court for Exclusive Trial of Cases
under POCSO Act, Coimbatore
2.The Inspector of Police
Pothanur Police Station
Coimbatore City
Coimbatore District
3.The Public Prosecutor Officer, High Court, Madras.
4.The Section Officer, Criminal Section, High Court, Madras.
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CRL A No.389 of 2021
P.VELMURUGAN, J
ksa-2
Criminal Appeal No.389 of 2021
26.08.2021
https://www.mhc.tn.gov.in/judis
