Madras High Court
Senthilkumar vs State Through The Inspector Of ... on 3 February, 2021
Crl.A.No.660 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.660 of 2019
Senthilkumar ... Appellant
Vs.
State Through the Inspector of Police,
All Women Police Station (North),
Tiruppur. ... Respondent
(Crime No.1 of 2019)
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside
the Judgment made in Spl.S.C.No.13 of 2019, on the file of Fast Track Mahila
Court, Tiruppur, convicting the appellant under Section 9(m) r/w 10 of
Protection of Children from Sexual Offences Act, 2012 to undergo rigorous
imprisonment for for a period of 7 years and to pay a fine of Rs.10,000/- and in
default to undergo rigorous imprisonment for a period of one year.
For Appellant : Mr.M.Arunkumar
For Respondent : Mr.R.Suryaprakash
Government Advocate
***
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Crl.A.No.660 of 2019
JUDGMENT
This Criminal Appeal has been filed against the Judgment of Conviction
and Sentence, dated 26.07.2019 made in Special S.C.No.13 of 2019, by the
learned Judge, Mahalir Needhi Mandram, Fast Track Court, Tiruppur.
2. The respondent-Police has registered a case against the appellant for
the offence under Section 5 (m) r/w 6 of Protection of Children from Sexual
Offences Act, 2012 (for brevity "the POCSO Act"). After investigation, laid a
charge sheet before the learned Judge, Mahalir Needhi Mandram, Fast Track
Court, Tiruppur. On appearance of the appellant, the provisions of Section 207
of Cr.P.C. were complied with and the trial Court framed charge for the offence
under Section 5 (m) r/w 6 of POCSO Act, against the appellant and completed
the trial.
3. After considering the evidence on record and hearing on either side,
the learned Judge, by Judgment dated 26.07.2019, convicted the appellant for
the offence under Section 9 (m) r/w 10 of POCSO Act and sentenced him to
undergo seven years Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in
default to undergo one year Rigorous Imprisonment.
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4. Challenging the above conviction and sentence, the appellant is before
this Court.
5. The learned counsel for the appellant would submit that there are
material contradictions from the evidence of the prosecution witnesses. It is
submitted that the appellant was residing in the house of the victim child on
lease and when he wanted to vacate the house and asked the parents of the
victim child to return the lease amount, they failed to pay the lease amount and
in order to avoid to repay the lease amount, they foisted a false case against
him and the P.W.1-victim child herself in evidence admitted during cross-
examination that there was a quarrel between her parents and the appellant
regarding the return of lease amount. It is further submitted that the mother of
the victim child, viz., P.W.2, used to go to the work in the morning 8.30 a.m.
and she will return back to home during night hours i.e., 8.30 to 9.00 p.m.
Therefore, she might not have seen the appellant in the house on the
occurrence day. However, during cross-examination, P.W.2 deposed that the
appellant did not go to his work on the occurrence date and he was in the house
only, when she herself used to go to duty 8.30 in the morning and will return at
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Crl.A.No.660 of 2019
8.30 to 9.00 p.m., how could she say that the appellant did not go to the work
on the occurrence day and that itself shows that a false case has been foisted
against the appellant.
6. It is further submitted by the learned counsel that though P.W.1 and
P.W.2 have stated the occurrence to the brother of father of the victim child,
viz., Manikandan, who came to Police Station, however, the said Manikandan
was not examined as a witness in this case, and only the friend of Manikandan
was examined. As such, no corroboration and further, the doctor who
examined the victim child had stated that there was no external injury either in
the private part or any other body of the victim child and also hymen was intact
and therefore, even the certificate given by the doctor and accident register
also reveals that no injury found in the body of the victim child. Therefore, the
medical evidence was also not supported the case of the prosecution.
Therefore, the prosecution has not proved its case beyond reasonable doubt.
7. Adding further, the learned counsel would submit that D.W.2, the
worker, in his evidence has clearly stated that on the occurrence date, the
accused was in the company and during Saturday's, he used to give salary to him
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Crl.A.No.660 of 2019
and other employees and therefore, on the occurrence date, the appellant was
in the Company only. However, the learned Sessions Judge failed to consider the
defense taken by the appellant. Further, the prosecution witnesses P.W.1 and
P.W.2 have also admitted that the appellant was residing in the house of the
victim child only on lease and there is a dispute regarding the vacation and
payment of lease amount and therefore, benefit of doubt should have been
extended to the appellant. Therefore, the judgment of the learned Judge,
Mahalir Needhi Mandram, Fast Track Court, Tiruppur, is liable to be set aside.
8. The learned Government Advocate (Criminal Side) would submit that
the victim child, aged about 10 years, when she was playing nearby the room of
the appellant, the appellant called her and when she refused to go there, the
appellant forcibly took the victim child into his house and lay down on bed and
pressed his private part into her private part and the appellant asked the victim
child to keep the private part of the accused in her mouth and she refused to
do so, subsequently, the accused had kept his mouth in the private part of the
victim child and when the appellant was no grip, she escaped from him and
informed the occurrence to her parents. After that, a complaint was filed
before the Police Station and the victim child was also produced before the
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Crl.A.No.660 of 2019
learned Magistrate for recording statement under Section 164 of Cr.P.C. During
statement under Section 164 of Cr.P.C., the victim child has clearly narrated
the facts before the learned Magistrate. Subsequently, by examining as witness,
during the trial, the prosecution has established the case beyond the reasonable
doubt, and therefore, the learned Judge has rightly convicted the appellant and
there is no merit in the appeal, and therefore, the appeal is liable to be
dismissed.
9. Heard the learned counsel on either side and perused the materials
available on record.
10. The case of the prosecution is that the victim child, aged about 9
years, on 23.02.2019, when she was playing near her house, the accused who
was residing as a lessee in the house of the victim child, called her, when she
refused to go, the appellant forcibly took the victim child and committed sexual
assault and thereafter, the victim child informed the occurrence to her parents
and immediately, her parents gave a complaint. Based on which,
the respondent-Police registered a case against the appellant for the offence
under Section 5 (m) r/w 6 of POCSO Act. Subsequently, the Investigating Officer,
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investigated the matter and laid a charge sheet before the learned Special
Judge.
11. On the side of the prosecution, 9 witnesses were examined as P.W.1
to P.W.9 and 15 documents were marked as Exs.P1 to P15 and 3 Material
Objects were exhibited as M.O.1 to M.O.3. After completion of the examination
of the prosecution witnesses, the incriminating circumstances culled out from
the evidence of the prosecution witnesses were put before the appellant, the
same was denied as false and on the side of the defence, two witnesses were
examined as D.W.1 and D.W.2. The learned Judge, Mahalir Needhi Mandram,
Fast Track Court, Tirupur, after hearing the arguments on either side and
considering all the materials placed on record, found that the appellant is guilty
and convicted and sentenced, as referred above, which is challenged in this
Criminal Appeal.
12. Since this Court is an Appellate Court and also final Court of fact
finding, has to re-appreciate the entire evidence and come to the conclusion
independently. A careful reading of statement recorded under Section 164 of
Cr.P.C. of the victim child before the learned Judicial Magistrate, it could be
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Crl.A.No.660 of 2019
seen that the victim child has narrated the entire occurrence that took place on
23.02.2019, which was marked as Ex.P15, and also during evidence, she
deposed the entire occurrence and therefore, the statement recorded under
Section 164 of Cr.P.C. was substantiated by examining the victim child as
witness.
13. It is to be noted that at the time of occurrence, the victim child was
aged about 10 years. In order to prove the age of the victim child, the
prosecution has marked Ex.P1-Birth certificate of the victim child. As per
Ex.P1, birth certificate, the date of birth of the victim child is 13.04.2010 and
the occurrence said to have taken place on 23.02.2019, therefore, the victim
child was aged only 10 years at that time, and not completed 12 years.
Therefore, she would fall under the definition of Section 2 1(d) of POCSO Act.
14. Though P.W.6 doctor had stated that there was no external injury, in
the present case, it is not the case of the prosecution that due to forcible sexual
assault committed by the appellant with the victim child, she sustained injury.
Though P.W.6 doctor had deposed that there was no injury, there is no good
reason to disbelieve the case of the prosecution. During statement recorded
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under 164 of Cr.P.C. as well as evidence, the victim child has clearly stated
that the appellant had kept his private part into her private part, and also kept
his mouth in her private part and asked her to keep her mouth in his private
part.
15. At this juncture, it would be useful to refer the Sections 3 (a), 3 (d)
and 5 (m) of the POCSO Act:-
"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
(d) he applies his mouth to the penis, vagina, anus, urethra
of the child or makes the child to do so to such person or any
other person."
...
5. Aggravated Penetrative Sexual Assault:-
(m) whoever commits penetrative sexual assault on a child
below twelve years;"
16. A bare perusal of evidence of P.W.1 and also statement recorded
under Section 164 of Cr.P.C., it could be seen that the appellant has committed
an offence Section under 5(m) r/w 6 of POCSO Act. A reading of the evidence
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of P.W.1 victim child and Section 3 (a) and (d) and also 5 (m) of the POCSO Act,
it is very clear that the appellant has committed the offence punishable under
Section 6 of POCSO Act.
17. The contention of the learned counsel for the appellant is that there
was a motive against the appellant, since he wanted to vacate the house and
asked the victim's parents for repayment of the lease amount, they foisted a
false case against the appellant. No doubt, P.W.1-victim child and the mother
of the victim child, viz., P.W.2 admitted that the appellant was residing in their
house as a lessee, however, the defense has not established that for that
reason, they foisted a false case against the appellant. Though the appellant
had taken the defense of motive behind the complaint, but however, it has not
been proved in the manner known to law. Further, the victim child was only 10
years, in her cross examination she admitted that the appellant was residing
nearby the portion in the house of the victim child. But, she has clearly
narrated the fact during chief examination that had occurred on 23.02.2019.
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Crl.A.No.660 of 2019
18. D.W.2, the employee of the accused had stated that he was working
under the accused and on the occurrence date, he was in the working place and
he gave payment to him and other co-workers, and however, during cross-
examination, he as admitted that they have not maintained any register and
also not produced any record to show that on the date of occurrence, the
accused made payment to D.W.2 and other employees.
19. Further, it is pertinent to mention here that P.W.1 victim child and
P.W.2 mother of the victim child need not say all these things and also the
parents will not spoil the future of the victim child, in order to repay the lease
amount. Therefore, the defense taken by the learned counsel for the appellant
is not acceptable. Further, there was no reason to discard the evidence of
P.W.1. Normally, corroboration of witness is necessary, whereas, offence under
POCSO Act, the evidence of the victim child is sufficient and the Court cannot
expect the eyewitness, since it is not the case of the prosecution that the
offense had taken place in the public place or in the presence of some other eye
witness.
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Crl.A.No.660 of 2019
20. It is also pertinent to mention here that during statement recorded
under Section 164 of Cr.P.C., as well as during evidence, the victim child had
referred the accused, by calling 'Annna' (Brother). In these type of cases,
especially, minor children particularly below 12 years, these types of culprits
can approach the child and especially, neighbours and they should have known
persons to the victim, and they can easily access with the victims in any hidden
place, by giving false promise.
21. In the the case on hand, when the victim child was refused to go with
the appellant, the appellant forcibly took her into his house. It is not the case of
the prosecution that somebody has seen the victim child when she was taken by
the accused to his house and the victim child has not stated that somebody
noticed that the victim child was taken by the accused. Therefore, in that
absence, this Court cannot except any corroboration or any other independent
witness. Only victim child is sole witness and she has narrated the entire
occurrence. Immediately, she informed the occurrence to her family members
and thereafter, the approached the Police Station by filing a complaint and
immediately, within a week, the victim child was produced before the learned
Magistrate and statement under Section 164 of Cr.P.C. was recorded and she
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Crl.A.No.660 of 2019
was also produced before the medical officer for clinical examination. Since the
victim child has not stated that there was injury in the private part and the
mere doctor has stated that there was no injury, that would not affect the case
of the prosecution. Mere penetrates his penis, to any extent, into the vagina of
a child is an offence. Depth is immaterial, likewise whether child gets injury or
not also immaterial. If the evidence of sole witness is cogent, credible and
trustworthy, conviction is permissible. In cases of this nature, presence of
eyewitnesses are mostly improbable.
22. Therefore, this Court finds that there is no reason to discard or
disbelieve the evidence of P.W.1 victim child, and there is no doubt about the
trustworthiness of the victim child and under the circumstances, the victim
child aged about 10 years, and she cannot be tutored by the prosecution for
these type of offences.
23. Though the trial Court found that the appellant had not committed
the offence under Section 5 (m) of POCSO Act and only committed the offence
under Section 9 (m) of the POCSO Act, considering the facts and discussions
above, this Court is of the view that the trial Court wrongly convicted the
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Crl.A.No.660 of 2019
appellant under Section 9 (m) r/w 10 of POCSO Act, instead of 5 (m) r/w 6 of
POCSO Act. However, neither the State nor the victim's parents filed any
appeal, challenging the conviction and sentence imposed by the trial Court and
hence, this Court does not warrant interference of the conviction and sentence
passed by the trial Court.
24. Therefore, under the circumstances, this Court also finds that the
prosecution has proved its case beyond the reasonable doubt and there is no
reason to interfere with the judgement of the learned Sessions Judge.
Therefore, this Court does not find any merit in the Appeal and the Appeal is
liable to be dismissed, accordingly, it is dismissed.
03.02.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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Crl.A.No.660 of 2019
To
1. The Fast Track Mahila Court,
Tiruppur.
2. The Inspector of Police,
All Women Police Station (North),
Tiruppur.
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Crl.A.No.660 of 2019
P.VELMURUGAN, J.
rns
Crl.A.No.660 of 2019
03.02.2021
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