Madras High Court
Dhanasekaran vs The State on 31 August, 2021
CRL A No.256 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.08.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.349 of 2021
Dhanasekaran ... Appellant/
Sole Accused.
Vs.
The State
rep. By Inspector of Police
Panamarathupatti Police Station
Salem District
Cr.No.36/2016 ... Respondent
PRAYER : Criminal Appeal filed under Section 374 of Cr.P.C., to call for the
records, set aside conviction and sentence made in the judgment in Old
Spl.S.C.No.3 of 2017 New Spl.S.C.No.34/2019 on the file of the Special Court
for POCSO Cases, Salem. dated 10.02.2021.
For Appellant : Mr.A.Padmanaban
For Respondent : Mr.S.Sugendran, Govt Advocate
1/17
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JUDGMENT
This criminal appeal is filed against the judgment passed in Old
Spl.S.C.No.3 of 2017 New Spl.S.C.No.34/2019 on the file of the Special Court
for POCSO Cases dated 10.02.2021.
2. The respondent police registered the case against the appellant in
Crime No.36/2016 for the offence under Section 3 of POCSO Act, which is
punishable under Section 4 of POCSO Act. After investigation, laid charge
sheet before the Special Court for exclusive trial of POCSO Act cases, Salem
for the offence under Section 3 of POCSO Act which is punishable under
Section 4 of POCSO Act and also for offence under Section 506(i) of IPC. The
learned Special Judge, after completing the formalities, taken the case on file in
S.C.No.3 of 2017 (Old.Spl.S.C.). Subsequently, the same was renumbered as
Special S.C.No.34 of 2019. After completing the formalities, the learned
Special Judge framed the charges against the appellant for the offence under
section 3 of POCSO Act punishable under Section 4 of POCSO Act and also
under section 506(i) of IPC.
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3. In order to substantiate the case of the prosecution, on the side of the
prosecution, during the trial as many as 15 witnesses have been examined as
P.W.1 to P.W.15 and 15 documents have been marked as Ex.P.1 to Ex.P.15 and
no material object was exhibited.
4. On completion of the examination of the prosecution evidence,
incriminating circumstances were culled out from the evidence of the
prosecution witnesses and were put before the accused, by questioning under
Section 313 of Cr.PC, and he denied the same as false. On the side of the
defence, one witness was examined as D.W.1 and no document was marked.
On completion of trial and hearing of arguments of both sides and after
perusing the records, the trial court found that the appellant is guilty for the
offence under Section 3 of POCSO Act which is punishable under Section 4 of
POCSO and Section 506(i) of IPC and the appellant was convicted and
sentenced to undergo 20 years R.I., and to pay a fine of Rs.25,000/-, in default,
to undergo Simple Imprisonment for 6 months for the offence under Section 3
of POCSO Act which is punishable under Section 4 of POCSO Act. The
appellant was also convicted and sentenced to undergo one year R.I. for of the
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CRL A No.256 of 2019
offence under Section 506(i) of IPC. Challenging the above said judgment of
conviction and sentence, the accused has preferred the present appeal before
this court.
5. The learned counsel for the appellant would submit that in this case,
the appellant is the neighbour and he has not committed any offence under
Section 3 of POCSO Act and there is no penetrative sexual assault. None of the
witnesses have spoken that there was a penetrative sexual assault. Even P.W.2
victim girl has not stated anything about penetrative sexual assault. P.W.1 is the
mother of the victim and she is not the eyewitness. According to her, P.W.3
informed her that in the appellant house, the appellant was lying on the victim
and after seeing him, he flew away from the house and thus, the accused was
seen coming out of his house and he committed sexual assault on the victim.
Based on that, the mother of the victim gave a complaint. Therefore, P.W.1 is
not the eyewitness. P.W.3 and 4 also not stated about penetrative sexual assault
and they only stated that they saw the victim at the relevant point of time, that
the accused was running from the house and the victim was inside the house.
The trial court has convicted the appellant based on assumption and
presumption and also based on sympathy grounds and there is no material to
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CRL A No.256 of 2019
show that the appellant committed penetrative sexual assault. Further he would
submit that the appellant was convicted based on Amendment Act 2019 and
sentenced to 20 years rigorous imprisonment, whereas the occurrence is said to
have taken place on 22.02.2016 before the amendment and the amendment
came into force only in the year 2019. Therefore, based on the Amendment Act,
a sentence cannot be imposed. There is no retrospective effect for the criminal
offence. Therefore, conviction recorded against the appellant and sentence
based on the Amendment Act is legally not sustainable. Further there is no
material to show that the appellant committed penetrative sexual assault.
Therefore, the conviction and sentence passed by the trial court is liable to be
set aside. Further, he has submitted that there is no material to show that the
appellant threatened the victim with dire consequences. Without any material,
the trial court convicted the appellant for the offence under Section 506(i) IPC
and also violated the basic principles of criminal law without any evidence and
appellant was convicted for the offence under Section 506(i) of IPC.
Therefore,the judgment of conviction and sentence passed by the trial court is
liable to be set aside.
6. The learned Government Advocate (Crl.Side) has submitted that at the
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CRL A No.256 of 2019
time of occurrence, the age of the victim girl was only 8 years and she was
studying 3rd Standard. The appellant is the neighbour and he used to go and
play with the victim and on the date of occurrence, the appellant called the
victim to his house and he promised to give a candy to her. Thereafter he took
the victim to his house and he laid down on her and committed penetrative
sexual assault. At that time, P.W.3 and two other persons saw the same.
Immediately, the appellant flew away from the place and the victim came out
by crying. Therefore, P.W.3 informed to P.W.1 and they asked the victim why
she was crying and the victim stated that the appellant committed penetrative
sexual assault. Thereafter, P.W.1 went to the police station and the victim was
produced before the doctor for medical examination and she was also produced
before Judicial Magistrate and recorded the statement of the victim under
Section 164 Cr.P.C.
7. The learned Government Advocate (Criminal Side) would further
submit that the evidence of the doctor before the Special Court, medical
certificate issued by the said doctor marked as Ex.P.4 and the statement
recorded by the Judicial Magistrate under Section 164 Cr.P.C., marked as
Ex.P.2 would go to show that the victim was subjected to penetrative sexual
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CRL A No.256 of 2019
assault. The evidence of the victim is cogent, consistent and also reliable.
Therefore, the trial court rightly appreciated the evidence and convicted the
appellant and there is no merits in the appeal and the same is liable to be
dismissed.
8. Heard both sides.
9. The case of the prosecution is that the appellant who is the neighbour
of the victim, on the date of occurrence called the victim to his house and
promised to give a candy, took the victim to his house and committed
penetrative sexual assault. The victim came out by crying and the mother
coming to know about the incident, gave complaint to the police. The police
registered the case against the appellant in Crime No.36/2016 for the offence
under Section 3 of POCSO Act, which is punishable under Section 4 of
POCSO Act and also for offence under Section 506(i) of IPC. After
investigation, respondent police laid charge sheet before the Special Court for
exclusive trial of POCSO Act cases, Salem. The learned Special Judge, after
taking the case on file, framed charges against the accused and on completion
of trial, found that the appellant is guilty for the offence under Section 3 of
POCSO Act which is punishable under Section 4 of POCSO and Section
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CRL A No.256 of 2019
506(i) of IPC and the appellant was convicted and sentenced as narrated above.
10. This Court, being an Appellate Court, is a final court of fact finding,
which has to necessarily re-appreciate the entire evidence and give an
independent finding.
11. The Special Court framed charges against the appellant for the
offence under Section 3 of POCSO Act, which is punishable under Section 4 of
POCSO Act and also for offence under Section 506(i) of IPC. In order to
substantiate the above said charges, on the side of the prosecution, totally 15
witnesses were examined and 15 documents were marked and no material
object was marked. On the side of the defence, one witness was examined.
12. In this case, out of 15 witnesses, the victim was examined as P.W.2.
A reading of the evidence of P.W.2 victim girl would go to show that she
narrated that the appellant provided candy and took her to his house and he put
his private part on her private part. At that time, P.W.3 noted the same,
immediately, the appellant coming to know that somebody noticed him,
immediately left the victim and flew away from his house and thereafter victim
came out by crying. P.W.3 and 4 asked the victim about the occurrence. The
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CRL A No.256 of 2019
victim thereafter, informed to her mother about the occurrence. Thereafter,
mother of the victim lodged the complaint. Victim was examined by the Judicial
Magistrate and she also narrated about the occurrence. The statement recorded
under Section 164 Cr.P.C was marked as Ex.P.2. The victim was also produced
before the doctor/P.W.8 who medically examined the victim, given opinion that
there was no external injury, however, found that hymen was not intact. P.W.10
doctor, after examining her and based on the report of X ray, opined that the
victim was aged between 7 and 9 years. The mother of the victim was
examined as P.W.1. Though she was not the eyewitness, she has spoken about
the complaint lodged before the Police. The complaint is marked as Ex.P.1.
P.W.2 victim narrated the occurrence. P.W.3 neighbour also deposed about the
presence of the accused in the place of occurrence. Though P.W.3 to P.W.6 are
eyewitnesses, they have stated that they have seen at the time of the
occurrence, the appellant was running from his house and at that time, the
victim girl was crying. They saw at that time the appellant was lying on the
victim. After seeing P.W.3 to P.W.6, the appellant immediately left the place.
The victim girl came from the house of the appellant. The doctor evidence was
also clear. Evidence of P.W.8 and P.W.10 would go to show that there was no
external injuries on the body of the victim, however, her hymen was not intact.
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Therefore, a combined reading of the evidence of the victim along with
evidence of P.W.8, P.W.10 and Ex.P.1-complaint, Ex.P.2 previous statement of
the victim recorded under Section 164 Cr.P.C., and Ex.P.4, the medical
certificate and Ex.P.5- report on the investigation of Sexual Offences form
would clearly go to show that the victim girl was subjected to penetrative
sexual assault.
13. Even though the learned counsel for the appellant would submit that
the victim girl has not stated that the appellant committed penetrative sexual
assault, a reading of the evidence of P.W.1 would go to show that she has
clearly stated that the appellant is the neighbour and he used to come to their
house and play with the child. On the date of occurrence, at night at 9
p.m., the victim girl played with the appellant and thereafter the victim went to
her aunt’s house. At that time, the appellant called the victim at the guise of
giving candy to her. Thereafter, the appellant took her to his house and
removed her innerwear and put his private part into her private part and since
she had pain, she cried. At that time, P.W.3, 4, 5 and 6 went there immediately.
They seen the appellant came out from his house and the victim was lying on
the floor. Subsequently, victim informed the occurrence. P.W.3 informed to
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victim’s mother/P.W.1 and P.W.1 gave complaint. The victim girl was examined
by the Magistrate and was also produced before the doctor. The history of the
medical record shows that known person committed sexual assault. Therefore,
the evidence of P.W.2 is cogent, consistent and reliable and also natural which
inspires the confidence of the court.
14. The evidence of P.W.1 corroborates the previous statement of the
victim recorded under Section 164 Cr.P.C. by the Magistrate and further the
doctor evidence together with medical records would clearly show that the
hymen of the victim was not intact. Therefore, the argument of the learned
counsel for the appellant that the victim girl has not stated that the appellant
committed penetrative sexual assault is not acceptable.
15. The age of the victim girl is only 8 years. She has narrated every
action of the appellant. She has stated that the appellant put his private part and
inserted it into her private part. Subsequently on medical examination, the
evidence of the doctor would go to show that victim’s vagina admits finger and
she was subjected to penetrative sexual assault. P.W.3, 4 and 5, in their
evidence, also stated that on the date of occurrence, they have seen the
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CRL A No.256 of 2019
appellant together with the victim and after hearing cry sound of the victim,
they rushed to the place, at that time, they seen the appellant running from the
house in order to escape. It is stated that after noticing the witnesses, the
appellant flew away from the house. They saw the victim with crying sound
and they enquired. P.W.3 also informed the mother of the victim. Victim stated
about the occurrence. Therefore, the evidence of victim and other material
evidence clearly show that the appellant committed penetrative sexual assault.
Since the victim is only 6 years, she is below 12 years and the offence is
aggravated penetrative sexual assault. However, the police failed to file charge
sheet for the offence under Section 5(m) of POCSO Act, which is punishable
under section 6 of the POCSO Act and the trial court also without considering
the materials, failed to frame the charge for aggravated penetrative sexual
assault under Section 5(m) which is punishable under section 6 of POCSO Act.
But the trial court convicted the appellant under the (Amendment) Act, 2019
and sentenced the appellant to undergo 20 years. A reading of Section 3 of the
Act make it clear that offence committed under Section 3 of the Act is
punishable under section 4 of POCSO Act and the minimum punishment is not
less than seven years and the same may extend upto life. Even Section 6 of
POCSO Act gives the punishment for the offence committed under Section
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5(m) of the Act and the minimum sentence is not less than 10 years which may
extend to imprisonment for life. Now as per Amendment Act 2019, for the
offence of Penetrative sexual assault, minimum sentence is not less than ten
years which may extend to life imprisonment. Even if the offence is aggravated
penetrative sexual assault falling under Section 5(m) of POCSO Act, since the
victim is below 12 years, the offence is punishable under Section 6 of POCSO
Act. As per the Amendment Act, the minimum sentence is not less than twenty
years which may extend to life imprisonment. But before amendment, the
minimum sentence is not less than ten years which may extend to life. But in
this case, the occurrence took place in the year 2016. As on the date of offence,
for penetrative sexual assault, the court may impose life imprisonment and for
the offence aggravated penetrative sexual assault, the sentence of imprisonment
may extend to life. In the case on hand, the trial Judge convicted the appellant
for offence under Section 3 which is punishable under Section 4, however,
imposed sentence for twenty years as per the Amendment Act 2019. In any
event, Section 4 of POCSO Act, even before amendment, gives punishment of
imprisonment which may extend for life. In such view of the matter, since the
offence committed herein attracts punishment upto life and the sentence
imposed by the trial Judge falls within the period of life sentence, no prejudice
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would be caused to the appellant. Therefore, though the trial Judge wrongly
invoked the Amendment Act, 2019 and passed sentence of 20 years
imprisonment under Section 4 of the Act, it is transpired that Section 4 of the
Act also prescribes imprisonment for life sentence. Hence, under these
circumstances, no prejudice would be caused to the appellant. Therefore, this
court does not find any perversity in the judgment passed by the trial court.
16. Considering the above factors and the age of the appellant on the one
hand and the doctor evidence which would show that hymen was not intact and
admitting two fingers, this court is of the view that there is no mitigating
circumstances arisen for reducing the sentence. As far as the offence under
section 506(1) IPC is concerned, there is no material to show that the appellant
threatened the victim or caused any hurt or used any weapons and threatened
her with dire consequences. Therefore, the conviction and sentence imposed
under Section 506(i) IPC is set aside. With the above modification, Criminal
Appeal is dismissed.
17. It is relevant to observe herein that in the case on hand, though the
age of the victim is not in dispute and clearly proved as per Ex.P.7-Age
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CRL A No.256 of 2019
Certificate of the victim, that the victim is only 8 years, as per the POCSO Act,
since the victim is below 12 years, the offence falls under aggravated
penetrative sexual assault and so the charge would have been framed for the
offence under Section 5(m) of POCSO Act, which is punishable under Section
6 of POCSO Act. But while framing the charge under Section 3 of POCSO Act,
the learned trial Judge framed charge under Section 4 r/w. Section 3 of POCSO
Act only and in the judgment, while convicting the appellant for offence under
Section 3 punishable under Section 4 of POCSO Act, the trial Judge invoked
Amendment Act and as per Amendment Act 2019, imposed sentence of 20
years. Therefore, in my considered view, both the stake holders viz., the State
and Judicial Academy have to combine together and impart training to the
Investigating Officer as well as the trial Judge, regarding investigation, filing of
charge sheet to the Investigating Officers and also regarding framing of charge,
marking of relevant documents, imposing sentence under the POCSO Act to the
trial courts.
Index:Yes/No 31.08.2021
nvsri
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CRL A No.256 of 2019
P.VELMURUGAN, J.
nvsri
To
1.The Inspector of Police,
Panamarathupatti Police Station
Salem District.
2.The Judge, the Special Court for POCSO Cases, Salem.
3.The Superintendent, Central Jail, Coimbatore.
4. The Director General of Police,
Dr.Radhakrishnan Salai Road, Mylapore,
Chennai, Tamil Nadu 600-004.
5. The Director of Prosecution,
Puddupettai Street,
Alandur, Chennai.
6.The Director,
Tamil Nadu Judicial Academy,
Greenways Road, R.A.Puram, Chennai.
7.The Section Officer, Criminal Section, High Court, Madras.
8.The Public Prosecutor, High Court, Madras.
Crl.A.No.349 of 2021
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CRL A No.256 of 2019
31.08.2021
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