Shankar vs State Of Tamilnadu
2021 Latest Caselaw 2189 Mad

                                                                                 Crl.A.No.551 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 02.02.2021

                                                         CORAM

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                    Crl.A.No.551 of 2020
                                                and Crl.M.P.No.8974 of 2020

                     1.Shankar
                     2.Pratheepraj
                     3.Karuppaiah                                               ... Appellants

                                                      Versus

                     State of Tamilnadu,
                     represented by
                     The Inspector of Police,
                     Mangalamedu Police Station,
                     Perambalur District.
                     Crime No.379 of 2018                                      ... Respondent


                     PRAYER: Criminal Appeal is filed under Section 374(ii) Cr.P.C., seeking
                     to set aside the order dated 27.11.2020 passed in Spl.S.C.No.7 of 2019 on
                     the file of the Mahila Court, Perambalur, by allowing this Criminal Appeal.


                               For Appellants          : Mr.W.M.Abdul Azeez
                               For Respondent          : Mr.R.Suryaprakash




                     1/9


https://www.mhc.tn.gov.in/judis/
                                                                                        Crl.A.No.551 of 2020

                                                         JUDGMENT

This Criminal Appeal has been filed seeking to set aside the order

dated 27.11.2020 passed in Spl.S.C.No.7 of 2019 on the file of the Mahila

Court, Perambalur.

2. The respondent police registered a case against the appellants and

yet another accused who was juvenile. He was dealt with under the

provisions of the Juvenile Justice (Care and Protection of Children) Act as

per the section 34 of POCSO Act. After investigation, the respondent police

laid the charge sheet. Since the offence committed has been charged under

POCSO Act, the Special Judge taken the charge sheet on file in

Spl.S.C.No.7 of 2019. After trial, the trial court convicted the appellants for

the offence under section 11(1) r/w. 12 of the POCSO Act and sentenced to

undergo rigorous imprisonment for 3 years each and to pay a fine of

Rs.3,000/- each and in default to pay the fine to undergo a simple

imprisonment for 6 months. Against the judgment of conviction, the

appellants are before this Court.

https://www.mhc.tn.gov.in/judis/ Crl.A.No.551 of 2020

3. The learned counsel for the appellants would submit that the

charge levelled against the appellants are not attributed under section 11(1)

r/w.12 of POCSO Act. Though they have been charged for the offence

under section 294(b) and 506(i) IPC, the learned trial Judge found that they

are not found guilty for the offence under section 294(b) and 506(i) IPC,

however found that the appellants are guilty for offence under section 11(1)

r/w.12 of the POCSO Act. It is further submitted taht the evidence of

P.W.3/victim girl itself is very clear that it does not attribute offence under

section 11(1) r/w.12 of POCSO Act and to attract the offence under Section

11 of the POCSO Act, there should be an intention to assault sexually. In

this case, no intention has been attributed by any of the witnesses. Even

corroborative evidence of P.W.4 has not supported the case of the

prosecution. The only eye witness according to the victim was P.W.4. She

entered into P.W.4's house but evidence of P.W.4 has not supported the case

of the prosecution. Even P.W.3 victim girl has stated that she entered the

house of P.W.4 and appellants used filthy language in the presence of

P.W.4. Whereas P.W.4 has not supported the case of the proseucution.

Mahazar witness are also relevant witnesses and they also stated the same.

https://www.mhc.tn.gov.in/judis/ Crl.A.No.551 of 2020

All the appellants are only young boys and even one of the accused is

juvenile and therefore they are only by infactuation did the above act and

uttered such words before the victim. The victim has stated that she is not

aware of the appellants, whereas P.W.1 and P.W.2, parents of the victim girl

stated that the appellants are all known persons and further they would

submit that though they have been examined by the Investigating Officer on

the date of occurrence, the fact remains that they have not been examined by

Special Court even within the statutory period.

4. The learned Government Advocate appearing for the respondent

would submit that victim girl P.W.3 has clearly deposed about the word

uttered by the appellants and also the prosecution examined the witnesses

viz., P.W.3 victim girl and P.W.4, aunty of the friend of the victim girl.

Even a fair reading of the evidence of the victim girl would clearly shows

that the offence committed would attract offence under section 11(1) r/w.12

of the POCSO Act. Therefore the learned trial Judge has rightly convicted

the appellants.

https://www.mhc.tn.gov.in/judis/ Crl.A.No.551 of 2020

5. Heard both sides.

6. The case of the prosecution is that on 09.09.2018, the victim while

going by cycle, the appellants and a juvenile followed her. According to the

evidence of the victim girl, the appellants followed her and told that there is

very low air in her cycle and so she is going to cycle shop; but the victim

girl also stated that the appellants also told that her cycle is having more air

and so she will not be going to cycle shop for filling air, but she may go to

some other place and let us follow her. The victim girl also stated that at that

time, appellants and the junvenile accused used filthy language in a public

place, therefore, she entered the house of P.W.4 who is the aunty of the

friend of the victim girl. P.W.4 questioned the act of the appellants. The

victim girl also told the aunty of her friend about the occurrence. Therefore

P.W.4 informed about the occurrence to the parents of the victim girl. The

parents lodged a complaint before the respondent Police. The police, after

investigating the matter, filed a charge sheet.

https://www.mhc.tn.gov.in/judis/ Crl.A.No.551 of 2020

7. A careful reading of evidence of P.W.3, victim girl, show that the

appellants had no intention to sexually harass the victim girl. As stated by

the learned counsel for the appellants, the appellants are teenage boys and

they have also uttered words for fun and there is no intention to cause

sexual harassment.

8. It is not a case of the prosecution that the appellants tried to

misbehave with the girl or they intended to cause sexual harassment or

sexual abuse. Therefore as pointed out by the learned counsel for the

appellants, the prosecution has failed to prove the charges. Since P.W.4 has

not supported the case of the prosecution and P.W.4 has not corroborated

the evidence of P.W.3 victim girl, the trial court acquitted the appellant for

the offence under section 294(b), 341 and 506(1) IPC, however convicted

the appellants for the offence under section 11(1) r/w.12 of the POCSO Act.

9. It is to be noted that the words alleged to have uttered by the

appellants in this case was before P.W.4. However, P.W.4 the prime eye

witness has not supported the case of the prosecution. Further the victim

https://www.mhc.tn.gov.in/judis/ Crl.A.No.551 of 2020

girl also has not stated anything against the appellants or that she was

sexually harassed by the appellants. Therefore, under these circumstances,

though the scope of POCSO Act is very stringent, however considering the

age of the appellants and also the evidence of P.W.3/victim girl, this Court

does not find any material that attract the ingredients of Section 11 of the

POCSO Act. Therefore, this court is of the considered view that the learned

Special Judge failed to consider the evidence of P.W.3 and P.W.4 but

recorded the conviction without any substantive evidence which warrants

interference of this Court.

10. On a reading of the entire materials and the charge framed against

the appellants and the evidence of the prosecution witnesses, it is very clear

that at no stretch of imagination, Section 11 of the POCSO Act is proved in

this case. Therefore, in view of the above reasonings, the conviction and

sentence passed in S.C.No.7 of 2019 is liable to be set aside.

11. Therefore, under these circumstances, the criminal appeal is

allowed. The conviction and sentence passed by the trial court in Sessions

https://www.mhc.tn.gov.in/judis/ Crl.A.No.551 of 2020

Case No.7/2019 are set aside and the appellants are acquitted. Bail bond

executed by them shall stand cancelled. Fine amount, if any paid by them

are ordered to be refunded forthwith. Consequently connected

miscellaneous petition is closed.

02.02.2021 mpa

To

1.The Mahila Court, Perambalur.

2. The Inspector of Police, Mangalamedu Police Station, Perambalur District.

3.The Public Prosecutor Officer, High Court, Madras.

4.The Section Officer, Criminal Section, High Court, Madras.

https://www.mhc.tn.gov.in/judis/ Crl.A.No.551 of 2020

P.VELMURUGAN,J.

mpa

Crl.A.No.551 of 2020 and Crl.M.P.No.8974 of 2020

02.02.2021

https://www.mhc.tn.gov.in/judis/