Madras High Court

Nallakannu vs State Rep By on 27 August, 2021

                                                                          CRL.A.No.241 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED :27.08.2021

                                                         CORAM:

                                    THE HON'BLE MR.JUSTICE P.VELMURUGAN

                                                   CRL.A.No.241 of 2021


                     Nallakannu
                     S/o, Subbiah                                                        ...
                     Appellant


                                                         Versus

                     State rep by
                     The Inspector of Police,
                     All Women Police Station,
                     Perur,
                     Coimbatore District.                                          ...
                     Respondent



                     PRAYER:
                                       Criminal Appeal filed under Section 374(2) of the Code of
                     Criminal Procedure, to set aside the judgment made in Spl.C.C.No.86 of
                     2019 dated 18.02.2021 on the file of the learned Sessions Judge, Special
                     Court for Exclusive Trial of Cases under POCSO Act, Coimbatore.



                     Page No.1 of 14


https://www.mhc.tn.gov.in/judis
                                                                             CRL.A.No.241 of 2021


                                        For Appellant      : Mr.S.N.Arunkumar
                                                            for M/s.M.N.Balakrishnan

                                        For Respondent     : Mr.S.Sugendran
                                                             Government Advocate, (Criminal Side)

                                                           JUDGMENT

This Criminal Appeal has been filed to set aside the judgment

made in Spl.C.C.No.86 of 2019 dated 18.02.2021 on the file of 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 for

the offence under section 7 of POCSO Act which is punishable under

section 8 of POCSO Act. After investigation, the respondent police laid a

charge sheet before the Special Court for Exclusive Trial of Cases under

POCSO Act, Coimbatore and the Special Court after completing the

formalities, framed the charge against the petitioner for the offence under

section 7 of POCSO Act which is punishable under section 8 of POCSO

Act. After completing the formalities, in order to substantiate the charge,

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on the side of the prosecution, during trial, as many as 11 witnesses were

examined as P.Ws.1 to 11 and 10 documents were marked as Exs.P1 to

P10. No material object was produced.

3. After completing the examination of prosecution witnesses,

incriminating circumstances culled out from the evidence of the

prosecution witnesses, put before the appellant by questioning under

section 313 Cr.P.C., he denied the same as false and pleaded not guilty.

On the side of the defence, two witnesses were examined and one

document was also marked.

4. On completion of trial and after hearing the arguments advanced

on either side and perusing the materials, the trial court found the

appellant guilty for the offence under section 7 of POCSO Act which is

punishable under section 8 of POCSO Act and sentenced him to undergo

three years imprisonment and to pay a fine of Rs.5,000/- in default to

undergo six months imprisonment. Challenging the said judgment of

conviction and sentence, the appellant/accused has filed the present

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appeal before this Court.

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

Government Advocate (Criminal Side) appearing for the respondent and

perused the materials placed on records.

6. The learned counsel for the appellant would submit that in this

case, even the victim P.W.1 turned hostile and she has not supported the

case of the prosecution during the examination as witness. The mother of

the victim is the complainant, was examined as P.W.2 has also not

supported the case of the prosecution and she also turned hostile. Further

in this case, there is no medical evidence. Even P.Ws.1 and 2 have stated

that on the compulsion of village members only, they had given the

complaint. Even, the wife of the appellant gave a complaint against the

villagers and the respondent police registered the case against the

villagers in Crime No.371 of 2019 on the file of the Soolur Police Station

and the same is pending for investigation. Wife and son of the appellant

were examined as D.W.1 and D.W.2 respectively and they have also

narrated that no such occurrence has taken place as projected by the

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prosecution and a false case has been foisted against the appellant and

due to previous enmity, the villagers misguided P.W.2, mother of the

victim girl and made her to give a false complaint. Since the prime

witnesses P.Ws.1 and 2 turned hostile and no other witnesses spoken

about the alleged occurrence, the prosecution has failed to prove its case

beyond reasonable doubt. However, the learned Special Judge convicted

the appellant based on the presumption and assumption without any

substance. Therefore, the judgment of the trial court warrants

interference.

7. The learned Government Advocate (Criminal Side) appearing for

the respondent would submit that the appellant was running a grossery

shop. The appellant called the victim girl and touched her private part

with his finger. Immediately, the victim girl informed the said act of the

appellant to her mother, who in turn, informed the same to the police and

on the same day, a case was registered against the appellant on the file of

the respondent police. The victim girl was produced before the Magistrate

to record the statement under section 164 Cr.P.C. The learned

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Magistrate recorded the statement of the victim girl and the same was

marked as Ex.P.10. In this case, the only allegation against the appellant

is that he touched the private part of the victim girl. Therefore, there was

no necessity to produce the victim girl for medical examination.

Subsequently during the examination as witness as P.W.1, the victim girl

has narrated the incident. Therefore, from the complaint and statement

recorded under section 164 Cr.P.C. and the chief examination of the

victim girl, the prosecution proved its case that the appellant has

committed the offence under section 7 which is punishable under section

8 of POCSO Act. The victim girl was cross examined ten months after

the chief examination. During that period, she turned hostile. She did

not support the case of the prosecution. However, on a reading of the

evidence of the victim and also her previous statement recorded by the

Judicial Magistrate under section 164 Cr.P.C, amply proved that the

appellant has committed the charged offence. Therefore, the trial court

rightly appreciated the evidence and convicted him and awarded only

minimum sentence and there is no merit in the appeal and the same is

liable to be dismissed.

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

Government Advocate (Criminal Side) appearing for the respondent.

9. The case of the prosecution is that on the date of occurrence ie.,

on 26.04.2019 at 12.00 noon, when the victim girl went to call her

brother for lunch, at that time, the appellant waylaid the victim girl and

made her to sit on his lap and touched her private part of the body. Hence

the complaint.

10. Based on the charge sheet, the trial court framed the charge

against the appellant for the offence under section 7 of POCSO Act and

which is punishable under section 8 of POCSO Act. In order to

substantiate the case of the prosecution, on his side, totally eleven

witnesses were examined. Out of 11 witnesses, victim girl was examined

as P.W.1 and the mother of the victim girl was examined as P.W.2. Other

witnesses are hearsay witnesses and official witnesses. On the side of the

defence, two witnesses have been examined and they are wife and son of

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the appellant. On a reading of the evidence of P.W.1 in chief

examination, she has clearly narrated the incident and even reading of the

previous statement of P.W.1, victim girl which was recorded by the

Judicial Magistrate under section 164 Cr.P.C., Ex.P.10 also clearly

shows that the appellant touched the vagina of the victim girl with his

finger. P.W.2 is the mother of the victim girl though she turned hostile,

she gave a complaint to the respondent police. The only reason she has

stated that the villagers compelled her to give the complaint. However,

the case was registered on 29.04.2019. Both the victim and mother of the

victim appeared before the Judicial Magistrate together on 29.04.2019

itself and they have given the statement before the Judicial magistrate.

The Judicial Magistrate recorded the previous statement of the victim in

the presence of mother and the statement under section 164 Cr.P.C was

recorded on 03.05.2019. On that day, she has clearly stated that the

appellant had committed the offence, but before the Judicial Magistrate,

they have not stated that on compulsion of the villagers, they have given

the complaint. Only after the investigation, the charge sheet was laid and

during the chief examination on 09.12.2019, the victim girl narrated the

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entire event and she was not cross examined on the same day.

Subsequently, nearly 10 months later, the victim girl was called for cross

examination. At that time, she has not supported the case of the

prosecution.

11. On a combined reading of the complaint given by P.W.2, Ex.P8

and the statement recorded under Section 164 Cr.P.C by the Judicial

Magistrate Ex.P10, chief examination of the victim, it clearly shows that

the evidence of P.W.1 is cogent, consistent and trustworthy. Immediately

after the chief examination, the victim girl was not cross examined. After

completing the evidence of all other witnesses, in order to get over the

evidence of P.W.1 during the chief examination she was subsequently

recalled and during that time for the reason best known to them, P.W.1

has not supported the case of the prosecution. However, the evidence of

P.W.1, Ex.P10 previous statement recorded by Judicial Magistrate and

Ex.P8 complaint, the trial court found that the appellant has committed

the charged offence. The appellate court is the fact finding court, it has to

re-appreciate and revisit the entire evidence and give the independent

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finding for which on seeing Ex.P3, copy of the birth certificate of the

victim girl, the date of birth of the victim is 19.11.2008 and the date of

occurrence is 26.04.2019. Therefore, the age of the victim girl on the

date of occurrence is 11 years. Therefore, she is a child under the

definition of section 2(1)(d) of POCSO Act. Therefore, the offence

committed by the appellant falls under the POCSO Act.

12. As stated earlier, the victim was subjected to sexual assault.

From the evidence of victim, the appellant is the one who has committed

sexual assault. Therefore, the trial court rightly appreciated the evidence,

but, however the age of the victim girl is only 11 years and therefore, the

charge should have been framed under section 9 of POCSO Act which is

punishable under section 10 of POCSO Act. For that minimum sentence

to be imposed is 5 years, however the trial court framed the charge only

under the section 7 of POCSO Act which is punishable under section 8

of POCSO Act.

Section 7 of POCSO Act reads as

follows:Whoever, with sexual intent touches the vagina,

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penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

Section 9(m) of POCSO Act reads as follows:

9. Aggravated Sexual assault: (a) Whoever, ....

(m) whoever commits sexual assault on a child below twelve years;

13. Considering the facts and circumstances, this Court being the

appellate court, re-appreciates the entire evidence and found that the

victim is aged below 12 years and she was subjected to aggravated sexual

assault which was committed by the appellant and though the appellate

court failed to frame the charge under section 9 of POCSO Act, which is

punishable under section 10 of POCSO Act, however considering the

facts and circumstances of the case, this Court does not deem it necessary

to interfere with the said punishment as otherwise once again the victim

girl has to undergo the rigor of trial, for further consideration of the