Madras High Court
Raja @ Periyasamy vs State By on 27 August, 2021
CRL.A.No.242 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.242 of 2021
Raja @ Periyasamy
S/o, Kunjappan @ Ramachandran ... Appellant
Versus
State by
The Inspector of Police,
Sooramangalam AWPS,
Salem. ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure, against the judgment passed by the learned Sessions
Judge, Special Court for Cases under POCSO Act, Salem dated
21.12.2020 convicted him U/s.5(m), 5(n) r/w 6 of the POCSO Act 2012
and he is sentenced to undergo ten years Rigorous Imprisonment and also
imposed a fine of Rs.25,000/- in default to undergo further period of six
months Simple Imprisonment and to set aside the conviction against him.
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CRL.A.No.242 of 2021
For Appellant : Mr.N.Sudharsan
For Respondent : Mr.S.Sugendran
Government Advocate, (Criminal Side)
*****
JUDGMENT
This Criminal Appeal has been filed against the judgment dated
21.12.2020 passed in old S.C.No. 6 of 2018 , new S.C.No.67 of 2019 on
the file of the Sessions Judge, Special Court for cases under POCSO Act,
Salem.
2. The respondent police registered a case against the appellant in
Crime No.11 of 2017 for the offence under sections 5(m) and 5(n) of
POCSO Act, which are punishable under section 6 of POCSO Act. After
investigation, laid a charge sheet before the Special Judge, Mahila Court,
Salem. The learned Special Judge taken the charge sheet on file in
Spl.S.C.No.6 of 2018 and after completing the formalities, framed the
charges against the appellant for the offence punishable under section 6
of POCSO Act.
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3. After framing of charges and completing the formalities during
trial, in order to prove the case of the prosecution, as many as 12
witnesses were examined as P.Ws.1 to 12 and 17 documents were
marked as Exs.P1 to P17. Besides that, one material object was also
marked.
4. After completing the examination of the prosecution witnesses,
incriminating circumstances were culled out from the evidence of the
prosecution witnesses, put before the accused by questioning under
section 313 Crpc., and the same was denied by the accused as false and
pleaded not guilty. On the side of the defence, two witnesses were
examined and one document was marked.
5. On completion of trial and hearing the arguments advanced on
either side, the trial judge found the appellant guilty for the offence under
sections 5(m) and 5(n) of POCSO Act which were punishable under
section 6 of POCSO Act, convicted and sentenced him to undergo ten
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CRL.A.No.242 of 2021
years rigorous imprisonment and to pay a fine of Rs.25,000/- in default to
undergo 6 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 the
prosecution has not proved its case beyond reasonable doubt. There are
contradictions among the prosecution witnesses and the contradictions
are material contradictions which will go into the root of the case of the
prosecution. The trial court failed to appreciate the evidence of the
prosecution witnesses and give effect to the materials contradictions and
convicted the appellant based on sympathy and also on assumption and
therefore, which warrants interference of this Court. Further, he would
submit that P.Ws.1 to 9 are the interested witnesses. Since the appellant
refused to give his daughter in marriage to P.W.7, they foisted a false
case against the appellant and gave false evidence against him in order to
take vengeance for the abovesaid refusal of the marriage proposal of his
daughter to P.W.7. Further, the evidence of P.W.11, doctor who has
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CRL.A.No.242 of 2021
conducted the medical examination of the victim girl has stated that the
victim girl was not subjected to penetrative sexual assault and the final
opinion Ex.P12 also proved the same. Even, P.W.2, victim girl in her
cross examination has clearly stated that she slept along with one Shalini
in the appellant's house and they woke about 8.30 pm and when they
came outside the house, P.W.1, P.W7 and the appellant stood outside the
house. The trial court failed to appreciate the evidence of P.W.4, the
father of the victim girl stated that at about 8.30 pm, the victim girl
crying and coming out of the house of the appellant and at the time, both
the appellant and his daughter sitting outside their house. The evidence
of P.W.5, the mother of the victim girl shows that she did not go inside
the house of the appellant and P.W.1,who went inside the house and
brought P.W.2 from the house of the appellant. Further, the trial court
failed to appreciate the cross-examination of P.W.7 that he has not seen
the appellant on the date of occurrence. The trial court failed to note that
the complaint Ex.P3 was signed inside the police station by P.W.8.
P.W.12 in her cross examination has stated that she has not received any
evidence and nothing available in the place of occurrence. The victim
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CRL.A.No.242 of 2021
girl P.W.2 was sent for medical examination only after two days of the
alleged occurrence and the same is vitiated the case of the prosecution.
The trial judge failed to appreciate the evidence of the prosecution
witnesses and also the defence witnesses and also the material
contradictions and especially the medical evidence not supported the case
of the prosecution and the judgment of conviction passed, based on
assumption and sympathy ground. Therefore, the judgment of the trial
court warrants interference.
7. The learned Government Advocate appearing for the respondent
police would submit that age of the victim girl is only 3 ½ years and
when she went to her relatives P.W.1 and P.W.3's house, for celebrating
festival and when she was in the appellant's house, the appellant
committed penetrative sexual assault on her. The victim girl informed
the abovesaid act of the appellant to P.W.1 and she along with neighbours
and relatives questioned the said act of the appellant, he denied the same
and behaved rudely. Therefore, they filed the complaint before the
respondent police, and the respondent police registered the case against
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CRL.A.No.242 of 2021
the appellant and after investigation, laid a charge sheet before the
Sessions Judge, Special Court for cases under POCSO Act, Salem. The
Special Judge, framed the charge against the appellant for the offence
punishable under section 6 of POCSO Act. In order to substantiate the
charge, on the side of the prosecution, totally 12 witnesses were
examined. Out of 12 witnesses, the victim girl was examined as P.W.2
and in her evidence, she has clearly stated that the appellant has
committed the penetrative sexual assault on her. P.W.1 is the aunt of the
victim girl was spoken about the complaint given to the police. P.W.3 is
the husband of P.W.1, corroborated the evidence of P.W.1. P.W.4 and
P.W.5 are the mother and father the victim girl respectively. They have
also corroborated the evidence of P.Ws.1 and 3 that they went to the
appellant's house, at that time, the victim girl crying and coming out of
the house of the appellant and they enquired about the same, the victim
girl stated that the appellant caused injury on her private part of the body.
Subsequently, P.Ws.1 and 3 questioned the abovesaid act of the
appellant, he has not properly responded, therefore they laid a complaint
before the respondent police. During the evidence, the victim girl and
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other witnesses have stated that the victim girl crying and coming out of
the house of the appellant and they enquired about the same, the victim
girl stated that the appellant caused injury on her private part of the body
and also she stated that she had pain on her private part of the body.
Subsequently, the victim girl was produced before the doctor. The doctor
examined the victim girl and found the injury on her private part of the
body. Thereafter, the victim was produced before the Magistrate for
recording statement under Section 164 Cr.P.C. The statement was marked
as Ex.P17. Therefore, from the combined reading of the evidence of
P.W.1 and P.W.11, doctor who conducted medical examination on the
victim girl and also the document Ex.P.8, the copy of the accident
register of the victim girl and Ex.P9, wound certificate, the medical test
report and also Ex.P17 statement recorded under 164 Cr.P.C, the
prosecution proved its case beyond all reasonable doubt. The trial judge
also rightly appreciated the evidence and convicted the appellant and
sentenced him to undergo ten years rigorous imprisonment and to pay a
fine of Rs.25,000/- in default to undergo 6 months simple imprisonment.
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. Admittedly in this case, age of the victim girl is only 3 ½ years.
Though the age of the victim is not in dispute and the defence has also
not disputed the age of the victim, the prosecution has not taken any
steps to mark the birth certificate of the victim girl and also proved the
same. Therefore, the victim is a child under the definition of section
2(1)(d) of POCSO Act. From the evidence of the victim girl P.W.2, she
has clearly stated that the appellant caused injury on her private part and
she informed the same to her mother. The evidence of P.W.1, the aunt of
the victim girl clearly said that there was a festival in her native place.
She invited the appellant's family and the victim girl's family for that
function. Therefore, the victim girl and their parents came to their native
place. On the date of occurrence, the victim girl played with her
neighbourhood daughter one Shalini and she went to the house of the
appellant and played with the daughter of the appellant also. When the
victim girl was sleeping at about 8.30 pm, P.W.1 heard the crying sound
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of the victim girl, immediately they rushed to the place, they found that
the appellant and the victim girl were in nude condition and the appellant
lie on the victim girl and also had penetrative sexual assault. The victim
was crying due to unbearable pain. When they questioned the said act of
the appellant, he did not respond properly and denied the same and after
that he left the place. Therefore, they gave a complaint. P.W.3 is the
husband of P.W.1, who also corroborated the evidence of P.W.1. P.W.4 is
the neighbour also corroborated the evidence of P.W.1. P.Ws.4 and 5 are
the father and mother of the victim girl respectively, they have not seen
the occurrence, but they have stated about what the victim girl informed
to them about the appellant's act on her.
10. Though the learned counsel for the appellant would
vehemently contended that there are material contradictions between the
evidence of P.W.1, P.W.3 and others and the victim girl has not clearly
stated anything about the sexual assault and only said that she had pain
on her private part. The trial court failed to appreciate the evidences.
The victim girl was also produced before the doctor for medical
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examination. The doctor one who conducted the medical examination is
P.W.11 and also Exs.P8, P9 and P10, clearly shows that the appellant has
committed the penetrative sexual assault on the victim girl and the victim
girl also produced before the Judicial Magistrate to record the statement
under section 164 Cr.P.C and the same was also marked as Ex.P17, in
which also, the victim girl has clearly stated that the appellant caused
injury on her private part of the body and she had pain on it. Though, on
a reading of evidence of P.W.2 and also Ex.P17, and the victim girl not
stated anything about the penetrative sexual assault, since the victim girl
was only 3 ½ years old, she has stated that the appellant caused injury on
her private part of the body and she had pain on it. The doctor one who
conducted the medical examination has clearly stated that there was an
injury on the private part. Therefore, from the evidence of P.Ws.1,2,3
and P.W.11 doctor and also the statement recorded under section 164
Cr.P.C, and the medical report clearly shows that the appellant had
penetrative sexual assault on the 3 ½ years old victim girl. The age of
the victim girl is only 3 ½ years and the appellant is also the relative of
the victim, has committed the offence punishable under section 5(m) and
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CRL.A.No.242 of 2021
5(n) of POCSO Act, which is an aggravated penetrative sexual assault
falls under section 5 of POCSO Act which is punishable under section 6
of POCSO Act. Since the victim girl is only 3 ½ years and she has not in
a position to narrate the entire occurrence, but however she has clearly
stated that the appellant caused injury in her private part of the body.
Section (3) of POCSO Act,2012 which reads as follows:
3.Penetrative Sexual Assault: A person is said to commit
“ penetrative sexual assault” if
(a) he penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a child or makes the child to do so
with him or any other person; or
(b) he inserts, to any extent, any object or a a part of the
body, not being the penis, into the vagina, the urethra or anus
of the child or makes the child to do so with him or any other
person; or
© he manipulates any part of the body of the child so as
to cause penetration into the vagina, urethra, anus or any part
of the body of the child or makes the child to do so with him or
any other person; or
(d) he applies his mouth to the penis, vagina, anus,
urethra of the child to makes the child to do so to such person
or any other person.
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Since the appellant has committed the penetrative sexual assault on the
victim girl and the victim girl is aged about 3 ½ years and also the
appellant caused injury on her private part which is an aggravated
penetrative sexual assault falls under section 5 of POCSO Act which is
punishable under section 6 of POCSO Act. Though the learned counsel
for the appellant has pointed out certain contradictions which are not
material contradictions which would go to the root of the case of the
prosecution. On a reading of the materials evidence of P.W.1, 2, 3 and
P.W.11 and Ex.P6,8,9 and 17, this Court finds that the prosecution has
proved its case beyond all reasonable doubt.
11. In cases of this nature, no eye witness can be expected to be
available and taking advantage of the loneliness of children, persons try
to exploit them sexually and in this case, the appellant, who is the
relative and neighbourhood of P.W.1 and when the victim girl went to the
appellant's house, the appellant, taking advantage of loneliness, tried to
misbehave with the victim girl. The victim girl cried and at that time,
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CRL.A.No.242 of 2021
P.W.1 entered into the house of the appellant and saw the occurrence.
The contradictions are not material contradictions. The victim girl has
clearly stated that the appellant has committed the penetrative sexual
assault on her. Even P.Ws.1 to 4 seen the appellant together with the
victim girl at the relevant point of time, therefore the court drawn the
presumption under Section 29 of POCSO Act that the appellant is the one
who has committed the penetrative sexual assault on the victim girl and
the trial court rightly appreciated the entire evidence and convicted him
and sentenced to undergo ten years rigorous imprisonment, which is a
minimum sentence 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.
27.08.2021
Index: Yes/No
Internet: Yes/No
mfa
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CRL.A.No.242 of 2021
To
1. The Sessions Judge,
Special Court for Cases under POCSO Act,
Salem.
2. The Inspector of Police,
Sooramangalam AWPS,
Salem.
3. The Public Prosecutor,
High Court,
Madras.
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CRL.A.No.242 of 2021
P.VELMURUGAN, J.
mfa
CRL.A.No.242 of 2021
27.08.2021
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