Madras High Court
M.Karuppaiah vs The State Rep By Its on 4 February, 2021
Crl.A.No.810 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.810 of 2019
M.Karuppaiah ... Appellant
-Vs-
The State rep by its,
The Inspector of Police,
All Women Police Station,
Perambalur.
(Crime No.14 of 2018). ... Respondent
PRAYER: Criminal Appeal filed under Section 374 (2) of Code of
Criminal Procedure, to call for records pertaining to Special S.C.No.19
of 2019 on the file of the Sessions Judge (Mahila Court) Perambalur
dated 04.10.2010 and set-aside the conviction and sentence against
appellant.
For Appellant : Mr.E.C.Ramesh
For Respondent : Mr.R.Suryaprakash,
Government Advocate [Crl. Side]
*****
JUDGMENT
This Criminal Appeal has been filed against the conviction and
sentence imposed by the learned Sessions Judge, Mahila Court,
Perambalur in Special S.C.No.19 of 2019, dated 04.10.2019.
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2.The respondent Police have registered a case in Crime No.14 of
2018 for offence under Sections 294(b), 323, 506(i) of IPC and Sections
5(1) and 6 of Protection of Children from Sexual Offence Act, 2012
against the appellant on the complaint [Ex.P1] given by PW1. After
completing investigation, the respondent police laid a charge sheet
before the learned Sessions Judge, Mahila Court, Perambalur and the
same was taken on file as Special S.C.No.19 of 2019.
3.After completing the formalities under Section 207 Cr.P.C.,
since there was a prima facie material to frame charges against the
appellant, the learned Sessions Judge, farmed charges under Sections
294(b), 506(i), 450 of IPC and Section 3 r/w 4 of Protection of Children
from Sexual Offence Act, 2012.
4.After completing the trial and hearing the arguments advanced
on either side and also considering the oral and documentary evidence,
the trial Judge found guilty of the appellant for offence punishable under
Section 3 r/w 4 of the Protection of Children from Sexual Offence Act,
2012 and convicted and sentenced to undergo seven years Rigorous
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Imprisonment and to pay a fine of Rs.3,000/- and acquitted from the
charges for offences under Sections 294(b) and 506(ii) IPC. Since the
appellant was convicted under Section 3 r/w 4 of the Protection of
Children from Sexual Offence Act, 2012, Section 450 of IPC is deleted.
5.The learned counsel for the appellant would submit that the
offence alleged to have been taken place on 04.06.2018, whereas the
victim girl/PW8 was admitted in Vinayaga Private Hospital on the same
day evening. The evidence of DW1 is very clear that on the date of the
occurrence, the victim girl/PW8 was taken treatment for three days in
Vinayaga Private Hospital for consuming kerosene, since she was failed
in 10th std. The learned counsel for the appellant would further submit
that on 05.06.2018, the appellant had arrears exam and he went to the
college for writing examination. In order to prove the same, the
appellant was examined as DW2 and marked the copy of the hall ticket
as Ex.D3. DW3, the Doctor from Government Hospital, Perambalur
stated that on 05.06.2018, at about 08.30 p.m., the victim girl/PW8 was
admitted in the hospital and taken treatment for injuries. DW3 has not
intimated the same to the Police. The appellant being a graduate in the
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Crl.A.No.810 of 2019
village, PW1 approached him to marry her daughter/PW8. Since the
appellant refused the same, PW1 foisted a false case against him by using
her relative, who is an Advocate.
6.The learned counsel for the appellant would further submit that
PW1 is the mother of the victim girl/PW8 and PW6 is the mother-in-law
of PW1 and grand mother of the victim girl/PW8. There are
contradictions in the evidence of PW1 and PW6. Further, both PW1 and
PW6 are relatives and they are same village and same caste. No
independent witness was examined by the prosecution to prove the guilt
of the appellant and the time of the occurrence and the time of PW8
meeting the appellant in his house on the next day and the time of
admitting the victim girl/PW8 in the hospital. Further, the prosecution
has not proved the case by corroborating evidence and materials. The
Doctor/PW4, who examined the victim girl/PW8 stated that the victim
girl/PW8 has not made any complaint of pain. Therefore, the medical
evidence/PW4 also not supported the case of the prosecution. The
learned counsel would submit that the learned Sessions Judge failed to
consider the material contradictions and mechanically convicted the
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Crl.A.No.810 of 2019
appellant only on assumptions and on sympathy, and therefore, the
judgment of conviction and sentence passed by the trial Court against the
appellant, is liable to be set aside.
7.The learned Government Advocate [Crl. Side] appearing on
behalf of the respondent Police would submit that on the date of
occurrence, the victim girl/PW8 was a minor and aged about 17 years. In
order to prove same, the Transfer Certificate of the victim girl/PW8 was
marked as Ex.P4 through PW3, in which, the date of birth of the victim
girl/PW8 is mentioned as 08.01.2002. Since the occurrence had taken
place on 04.06.2018, the victim is a minor girl and she did not complete
18 years age on the date of occurrence and she is a 'Child', which comes
under the definition of Section 2(1)(d) of the Protection of Children from
Sexual Offence Act, 2012.
8.The learned Government Advocate would further submit that
when the victim girl/PW8 was alone in her house on 04.06.2018, the
appellant entered into the house, caught hold her, touched her breast,
kissed her and had penetrative sexual assault. When she resisted the
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Crl.A.No.810 of 2019
appellant, he forcibly committed the sexual assault and also threatened
her not to reveal the same to anyone, otherwise he would take away her
life. On the next day i.e., on 05.06.2018, PW1 and the victim girl/PW8
went to the house of the appellant to question about the happenings, at
that time, the appellant ill-treated and assaulted the victim girl/PW8 and
threatened them. Thereafter, they had gone to the Police Station and
lodged a complaint [Ex.P1] to the respondent Police on 06.06.2018. The
reason for delay in lodging the complaint [Ex.P1] has been properly
explained by PW1. Further, PW1, the mother of the victim is an illiterate
village lady and she did not know the exact time and date of incident,
meeting the appellant in his house and lodging the complaint [Ex.P1].
Therefore, mere discrepancy in the time and date may not fatal to the
case of the prosecution. The Doctor/PW4, who examined the victim
girl/PW8 clearly spoken about the injuries sustained in her breast and the
hymen was not intact. The evidence of the Doctor/PW2, who examined
the appellant is not important one.
9.The learned Government Advocate would further submit that the
victim girl/PW8 was produced before the learned Judicial Magistrate for
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Crl.A.No.810 of 2019
recording the statement under Section 164 Cr.P.C. During the trial, the
victim girl was examined as PW8 and her mother was examined PW1.
From the evidence of the victim girl/PW8 and her statement recorded
under Section 164 Cr.P.C., [Ex.P8] and the evidence of the Doctor/PW4
and her report [Ex.P6], the prosecution has clearly established the guilt
of the appellant and proved the case beyond reasonable doubt and the
victim girl/PW8, at the time of occurrence, was only 17 years old, and
the appellant has committed penetrative sexual assault on the victim girl,
and therefore, the trial Court has rightly convicted the appellant, and the
appeal is liable to be dismissed.
10.Heard the learned counsel appearing for the appellant and the
learned Government Advocate [Crl. Side] appearing for the respondent
and also perused the materials available on record.
11.The case of the prosecution is that on 04.06.2018, at about
01.00 p.m., when the victim girl/PW8 was alone in her house, the
appellant entered into the house and had penetrative sexual assault on
her. On the same day, when the mother of the victim/PW1 came to the
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Crl.A.No.810 of 2019
house at about 05.00 p.m., the victim girl/PW8 informed the same. PW1
and PW8 decided to go to the house of the appellant to question about
the incident. On 05.06.2018, at about 03.00 p.m., they had gone to the
house of the appellant and questioned the same, at that time, the
appellant ill-treated and assaulted the victim girl/PW8 and also
threatened them. Having no other option, PW1 and PW8 went to the
Police Station and gave a complaint [Ex.P1] on 06.06.2018. Thereafter,
they went to the Government Hospital, Perambalur and the victim/PW8
took treatment for injuries sustained.
12.Based on the complaint [Ex.P1] given by PW1, an FIR in Crime
No.14 of 2019 was registered for offence under Sections 294(b), 323,
506(i) and Sections 5(1) r/w 6 of Protection of Children from Sexual
Offence Act, 2012. After completing the investigation, the respondent
police laid a charge sheet before the learned Sessions Judge, Mahila
Court, Perambalur and the same was taken on file in Special S.C.No.19
of 2019.
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13.During the trial, on the side of the prosecution, as many as 11
witnesses were examined, 13 documents were marked and no material
object was exhibited. After completing the evidence of prosecution
witnesses, when incriminating circumstances were culled out from the
prosecution witnesses put before the accused, he had denied as false. On
the side of the defence, 3 witnesses were examined and 6 documents
were marked.
14.After considering the evidence on record and hearing on either
side, the learned Sessions Judge, vide judgment dated 04.10.2019 in
Special S.C.No.19 of 2019, convicted and sentenced the appellant as
stated above.
15.Challenging the judgment of conviction and sentence, the
present appeal has been preferred by the appellant.
16.This Court, being an Appellate Court, is a fact finding Court,
which has to necessarily re-appreciate the entire evidence and give an
independent finding.
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Crl.A.No.810 of 2019
17.A careful reading of the evidence and materials, it is seen that
the victim girl/PW8 in her evidence and in the statement recorded under
Section 164 Cr.P.C., [Ex.P8] has clearly stated about the occurrence.
PW8 clearly narrated the events that on 04.06.2018, at about 01.00 p.m.,
when she was alone in her house, the appellant entered into the house,
caught hold her hand and when she resisted, he embarrassed her and
when she tried to make a noise, he bite her lips and had penetrative
sexual assault and also threatened her not to reveal the same to any one,
otherwise he would take away her life. After her mother/PW1 coming to
the house, she informed about the happenings. PW1 and the victim
girl/PW8 discussed with the family members and decided to go to the
house of the appellant to question the same. Accordingly, on the next
day i.e., on 05.06.2018, they had gone to the appellant's house and
questioned the happenings, at that time, the appellant ill-treated and
assaulted the victim girl/PW8 and threatened them. Thereafter, PW1 has
lodged a complaint to the respondent Police and a case in Crime No.14
of 2018 came to be registered.
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18.The complaint [Ex.P1] has been lodged by PW1, who is none
other than the mother of the victim girl. PW1 in her evidence has spoken
about what her daughter/PW8 said to her about the incident and hence,
her evidence is in the nature of hearsay. The grand mother of the victim,
who was examined as PW6 has spoken about what her daughter-in-
law/PW1 and grand daughter/PW8 said to her and she is also a hearsay
witness. Though in this case there is no eye witness, it is the case of the
prosecution that when the victim girl/PW8 was alone in her house, the
appellant entered the house and had penetrative sexual assault with her.
It is seen that no one was there and therefore, the offences like this,
cannot expect any corroborative evidence or eye-witness or any other
independent witness. The only corroborative evidence is the medical
evidence. The victim girl/PW8 has stated that the appellant had
penetrative sexual assault with her. During the course of investigation,
the victim girl/PW8 was produced before the Doctor, who was examined
as PW4, and the Doctor/PW4 has deposed in her evidence that the hymen
was not intact. The defence has not established that the hymen was not
intact not because of the assault or otherwise during sports. When the
defence tried to establish by way of cross examination, the victim
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girl/PW8 denied that she is not a sports woman or an athlete. The
evidence of the Doctor/PW4 and also the Medical Report [Ex.P6] of the
victim girl indicate that there are possibilities of sexual assault and the
hymen of the victim girl was also not intact. Therefore, the evidence of
the Doctor/PW4, coupled with the Medical Report [Ex.P6], confirms that
the victim girl was subjected to penetrative sexual assault, and therefore,
the only question that has to be decided is, whether the appellant has
committed the penetrative sexual assault on the victim girl or not?
19.The victim girl/PW8 while recording her statement under
Section 164 Cr.P.C., [Ex.P8] and while deposing before the learned
Sessions Judge as PW8, she clearly narrated the incident happened on
04.06.2018. Therefore, the offences like this, only the evidence of the
victim girl/PW8 can be considered for proving the case of the
prosecution, unless trustworthiness of the victim girl/PW8 or any sound
reason for discarding the evidence of the victim girl/PW8. Under these
circumstances, this Court can safely come to the conclusion that the
appellant has committed penetrative sexual assault on the victim girl.
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20.Though there are contradictions between the evidence of the
prosecution witnesses, PW1 and PW6, they are only hearsay witnesses.
PW1 and PW8 clearly stated that on the subsequent day of the
occurrence i.e., on 05.06.2018, they went to the appellant's house,
whereas the appellant has established that on 05.06.2018, he went to
college for writing arrears examination and to prove the same, the
defence has examined DW2 and marked Hall Ticket [Ex.D3]. But no
doubt even assuming that the appellant went to the college for writing
arrears examination, neither the victim girl/PW8 nor PW1 stated that
they went to the appellant's house between 2.00 p.m., to 5.00 p.m.
During cross examination, PW1 stated that she and her daughter/PW8
went to the appellant's house on 05.06.2018 at about 03.00 p.m and when
put a suggestion before PW1, that the appellant had gone to write the
examination, she stated that she did not know on what time they went to
the appellant's house. Admittedly, PW1 is an illiterate village lady and
she did not know exact time, except pointing out the facts remains them.
21.The victim girl/PW8 along with her mother/PW1 went to the
appellant's house on the next day of occurrence on 05.06.2018 at about
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03.00 p.m. Even assuming that the appellant was not in his house at
about 03.00 p.m., but however it is admitted that the college is only a
reachable place. Even as argued by the learned counsel for the appellant,
within 1 ½ hours, the appellant can reach the college and there is a
possibility of return back to the home in the evening hours.
22.It is not the case of the defence that the plea of alibi, the
appellant was not at all in the station on 05.06.2018 and he was
somewhere else. The only defence taken is that on 05.06.2018, at about
03.00 p.m., the appellant was not present in his house. At about 02.00
p.m., to 05.00 p.m., he was in college to write the arrears exam. It is not
the specific defence taken by the appellant that on 05.06.2018, he never
been in his house.
23.PW1 is a illiterate lady and she may not know the exact time
and what time she went to the appellant's house to question about the
incident. Under these circumstances, though the learned counsel for the
appellant tried to make a plea of alibi is not on the date of the occurrence
but it is on the next day of the occurrence when they stated to have
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approached the appellant on the next day. On the very next day of the
occurrence, at about 02.00 p.m., to 05.00 p.m., the appellant was not in
the house and he went to the college. Since he already stated that it is
not the case of the defence, he never been in the house on 05.06.2018.
Therefore, the defence taken by the learned counsel for the appellant is
not acceptable and however, the appellant has not taken the defence that
on 04.06.2018, he was not in the native place and the place of
occurrence. As even as stated by him during that time, the arrears
examination was going on and on the next day of the occurrence, he had
gone to college to attend the examination. Therefore, on 04.06.2018, the
appellant was very much available in the native place. Under these
circumstances, there is no reason to doubt the trustworthiness of the
evidence of the victim girl/PW8.
24.Though there is a delay in lodging the complaint [Ex.P1], PW1
and PW8 clearly gave explanation that PW1 preferred the complaint on
the next day on 06.06.2018. The offence like this, no mother would
suddenly go to the police station and immediately lodge a complaint.
First of all, she would think about the reputation of the family and future
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Crl.A.No.810 of 2019
of the minor daughter and then only, will decide as to whether go to
police station or the accused's house. In this case, PW.1 first decided to
approach the appellant, when the appellant acted rudely, she decided to
go to the police station to lodge a complaint. Therefore, the delay is not
an inordinate delay in the nature of offence. Even though there are
contradictions between the evidence of the prosecution witnesses, P.W.1,
P.W.2 and PW.8, considering the object of the POCSO Act, this Court is
of the view that the contradictions pointed out by the learned counsel for
the appellant are not material contradictions to disbelieve the case of the
prosecution, but only minor contradictions with regard to the place of
occurrence, and that will not vitiate the case of the prosecution.
25.Therefore, on a perusal and consideration of the evidence of
the victim girl/PW8, the Doctor/PW4, the complaint [Ex.P1], the
statement of the victim girl recorded under Section 164 Cr.P.C. [Ex.P8]
and the Medical Report of the victim girl [Ex.P6], the Transfer
Certificate of the victim girl [Ex.P4] which shows that at the time of the
occurrence, the victim girl was only 17 years old, and all other oral and
documentary evidence on record, this Court finds that the prosecution
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has proved its case beyond reasonable doubt that the appellant has
committed penetrative sexual assault on the victim girl, who was a minor
aged 17 years at the time of the occurrence, and therefore, POCSO Act
would attract against the appellant. Though the trial Court held that the
prosecution has not established the case on the charges levelled against
the appellant under Indian Penal Code, rightly convicted the appellant
under Section 3 r/w 4 of the Protection of Children from Sexual Offence
Act, 2012.
26.Hence, this Court can safely come to the conclusion that the
appellant has committed penetrative sexual assault on the victim girl and
therefore, the prosecution has established its case beyond reasonable
doubt. In the light of the above discussion, this Court does not find any
merit in this appeal and the appeal is liable to be dismissed.
27.Accordingly, this Criminal Appeal is dismissed and the
judgment of conviction and sentence passed by the trial Court is
confirmed.
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28.The trial Court is directed to secure the accused and commit
him to prison to undergo the remaining sentence. The bail bonds
executed by the appellant, if any, shall stand canceled.
04.02.2021
Speaking Order/Non-Speaking Order
Internet : Yes/No
Index : Yes/No
vv2
To
1.The Sessions Judge, Mahila Court,
Perambalur.
2.The Inspector of Police,
All Women Police Station,
Perambalur.
3.The Public Prosecutor,
High Court, Madras.
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P.VELMURUGAN, J.
vv2
Crl.A.No.810 of 2019
04.02.2021
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