Madras High Court
Subramani vs State Represented By on 4 February, 2021
Crl.A.No.415 of
2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.02.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.415 of 2019 &
Crl.M.P.No.9092 of 2019
Subramani .. Appellant
.Vs.
State represented by
Inspector of Police,
All Women Police Station,
Tirupur South,
Tirupur City
Crime No.11 of 2018 .. Respondent
Criminal Appeal filed under Section 374 of Cr.P.C. praying to set
aside the conviction and sentence imposed on the appellant by the learned
Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court)
Tiruppur in Special S.C.No.41 of 2018 by a Judgment dated 29.04.2019
by allowing this appeal.
For Appellant : Mr.K.Balasubramaniam
For Respondent : Mr.A.Madhan
Government Advocate
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Crl.A.No.415 of
2019
JUDGMENT
The respondent police registered a case against the appellant for
the offences punishable under Sections 9 (m) r/w 10 of Protection of
Children from Sexual Offences Act 2012 and Section 3(1) (w) (i), 3 (2)
(Va) of SC/ST (Prevention of Atrocities) Amendment Act, 2015 in Crime
No.11 of 2018 and after investigation charge sheet was laid in Special
S.C.No.41 of 2018 before the Magalir Neethimandram (Fast Track
Mahila Court), Tiruppur for the aforesaid offences. The learned Judge
after trial found the appellant guilty of the charges and thereby convicted
and sentenced him as follows:
(i) For the offence under Section 9(m) r/w 10 - Convicted and sentenced
of Protection of Children from Sexual to undergo rigorous
Offences Act 2012 imprisonment for 7
years and pay a fine
of Rs.5,000/- in default
to undergo further period
of one year Rigorous
Imprisonment.
(ii) For the offence under Section -Convicted and sentenced to
3(1) (w)(i) r/w 3(2) (va) of under go five years rigorous
SC/ST (Prevention of Atrocities) imprisonment and pay a
Amendment Act, 2015 fine of Rs.5,000/- indefault
to undergo further period
of one year rigorous
imprisonment.
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The above sentences were ordered to run concurrently. Challenging the
said conviction and sentence, the accused has filed the present appeal
before this Court.
2. The learned counsel for the appellant would submit that there is a
delay in filing the complaint. He would further submit that the locality in
which the appellant and the victim girl were residing consists of row
houses in which they were residing and all the house members have to
use the common toilet and if any resident wants to go to toilet they have
to cross the house of the victim girl and the accused and therefore if the
occurrence is said to be true, then the persons residing in those houses
would have noticed the occurrence. He would further submit that since
the occurrence is said to have taken place on Sunday all the members in
the row houses were also available and they might have noticed the said
occurrence but none of the members of other row houses were examined
to establish the case of the prosecution.
3. He would further submit that as per evidence of P.W.10, there is
no direct eye witness and the trial court has failed to consider the fact that
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Crl.A.No.415 of
there was dispute between the appellant and his landlord and the alleged
complaint is only to wreck vengeance against the appellant. He would
further submit that P.W.6- the Doctor who examined the victim girl has
stated that there was no injury in the private part of the victim girl and
there is no medical evidence to prove that the appellant has committed the
offence under Section 9(m) r/w 10 of Protection of Children from Sexual
Offences Act 2012. He would further submit that there is no evidence to
show that the victim girl belongs to Scheduled Caste and that the
appellant has committed the offence under Section 3 (1)(i) r/w 3 (2) (va)
of SC/ST (Prevention of Atrocities) Amendment Act, 2015. He would
further contend that the learned Judge failed to consider the materials and
only on the ground of sympathy accepted the contentions of the victim
girl and her mother and thereby convicted and sentenced the accused as
stated supra.
4. The learned Government Advocate (Crl.side) would submit that
the victim girl is only 7 years old at the time of alleged occurrence as per
Ex.P1-Birth certificate. He would further submit that the appellant is a
neighbor of the victim girl and on 08.07.2018, when the parents of the
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Crl.A.No.415 of
the victim girl had gone for work, the appellant called the victim girl to
his house, made her to sit on his lap and asked her to see the game in his
cell phone and showed her the pictures and he removed her panty and
placed his hand on her private part, thereby the appellant has committed
the sexual assault on the minor girl. He would further submit that the
victim girl was examined as P.W.1 and she has clearly deposed about the
said incident. He would further submit that P.W.2- mother of the victim
has clearly explained the reasons for the delay in filing the complaint and
therefore the complaint is not false. He would submit that the delay in
lodging the complaint is not fatal to the case of the prosecution and
therefore prays for the dismissal of the Appeal.
5. The learned Government Advocate (Crl.side) would further
submit that on the date of complaint i.e., on 11.07.2018, P.W.10-
Meenakumari, the Inspector of Police recorded the statement of the victim
girl and sent her for medical examination and after examining the
witnesses she arrested the accused. He would further submit that the
victim was produced before the learned Judicial Magistrate, Fast Track
Court, Tiruppur and the said Magistrate recorded the statement of the
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Crl.A.No.415 of
victim girl under Section 164 Cr.P.C. He would further submit that P.W.8
- Vadivel also narrated about the aforesaid occurrence. He would further
contend that though the P.W.6- the Doctor who examined the victim girl
has stated that there is no injury on the private part of the victim, it
cannot be said that the alleged occurrence is false. He would further
contend that it is not the case of prosecution that the victim girl has
sustained injury at the time of occurrence and therefore it cannot be
stated that the evidence of Doctor is contradictory to the case of the
prosecution. He would further submit that though there is no direct eye
witness to the occurrence, the statement of the victim girl can be taken
into consideration and the learned Judge has rightly convicted the accused
and there is no merit in this Appeal and the same is liable to be
dismissed.
6. Heard both sides. Perused the records.
7. The case of the prosecution is that on 08.07.2018 at about 11.30
A.M., when the victim was playing inside their compound, in front of the
house of the accused, the accused called the victim to see the picture
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Crl.A.No.415 of
recorded in his cell phone, made her to sit on his lap and placed his hand
over her private part and thereby caused the sexual assault over the minor
victim child and further the victim girl belongs to Scheduled caste
community and therefore a case was registered for the aforesaid offences.
8.After completing the investigation, the police laid the charge sheet
against the appellant for the aforesaid offences and the trial Court framed
charges against the appellant as stated supra.
9. In order to prove the case, the prosecution before the trial Court
examined as many as 10 witnesses as P.W.1 to P.W.10 and 14
documents were marked as Exs.P1 to P14.
10. After completing the examination of the prosecution witnesses,
all the incriminating circumstances culled out from the evidence of
prosecution witnesses, were put before the appellant, but he denied the
same as false. On the side of the appellant, D.W.1 was examined and no
documents were marked.
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11. The learned Judge, after considering the oral and documentary
evidence has convicted and sentenced the appellant as stated supra.
12. It is the case of the prosecution that the victim child and the
appellant are residing in the row house and even as per the observation
mahazar-Ex.P3, it is clear that both the victim and the accused are
residing in the row house. A reading of the evidence given by the
P.W.1-victim child clearly shows that the appellant has committed the
offence as alleged by the prosecution. Further, P.W.2- the mother of the
victim child in her evidence has clearly deposed that when her daughter
was playing in their compound, the accused called the victim girl, made
her to sit on his lap and showed her the picture in his cell phone at the
threshold of his house, lifted her skirt, removed her panty and placed his
hand over her private part, but the victim had not informed the said
incident to her mother immediately and only on the next day the victim
child refused to go to school and started crying and when asked for the
reason, she revealed the entire incident to her mother and out of fear
asked her not to reveal the same to her father. Immediately, she was
taken to the hospital and since P.W.6- the doctor who examined the
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Crl.A.No.415 of
victim child has deposed that there was no injuries seen on the private
part of the victim and there were no signs of sexual intercourse and she
issued Ex.P7- Medical certificate and the victim was produced before the
Judicial Magistrate on 27.07.2018 for recording statement under Section
164 Cr.P.C. and the learned Magistrate also recorded the statement on
the same day and the same has been marked as Ex.P13. A careful
reading of the statement under Section 164 Cr.P.C. shows that the
appellant has committed sexual assault on the victim child. Though the
learned counsel for the appellant submitted that the appellant and the
victim child are neighbors and they are residing in one of the row houses
and since the occurrence is said to have taken place on Sunday, the other
family members, who were available in the adjacent houses, would have
noticed the incident, but the prosecution failed to examine them, it has to
be seen that the accused has cleverly called the victim to see the picture in
his mobile and made her to sit on his lap and committed the sexual
assault and therefore there is no possibility of outsiders noticing the
offence committed by the appellant and therefore the contention of the
learned counsel for the appellant cannot be accepted. Further, the
evidence of P.W.1 and P.W.2 clearly shows that the appellant has
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Crl.A.No.415 of
committed the Sexual assault on the victim child and further from the
evidence of P.W.1, P.W.5 and P.W.6 clubbed with evidence of P.W.7, it
is evident that the accused who belongs to backward community had
committed sexual assault over the victim child who belongs to the
scheduled caste community and hence it is clear that the accused had
committed the offences as alleged by the prosecution. D.W.1 was
examined on the side of the accused and he deposed that the accused
came to his house and asked him to see house for him and he deposed
that the accused had informed him that there is a dispute between the
appellant and his landlord and his landlord was threatening to evict him
from the house, but the evidence of D.W.1 cannot be considered because
it is only hearsay evidence and further the appellant has not produced any
evidence to disprove the case of the prosecution and hence the learned
Judge on considering the oral and documentary evidence convicted and
sentenced the appellant as stated above.
13. On a careful perusal of Ex.P1- Birth certificate and Ex.P8-
community certificate of the victim girl and also Ex.P13- the statement
recorded under Section 164 Cr.P.C. clubbed with evidence of P.W.1 and
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Crl.A.No.415 of
P.W.2, it is seen that the victim child is only aged about 7 years since she
is child under the definition of POCSO Act, it is found that the accused
has committed the offence as alleged by the prosecution. Therefore, this
Court does not find any reason to interfere with the Judgment of the trial
Court. However, considering the facts and circumstances of the case, the
sentence imposed on the appellant is modified from seven years to five
years for the offence punishable under Section 9(m) r/w 10 of Protection
of Children from Sexual offences Act 2012.
14. In the result, the Appeal is partly allowed by modifying the
sentence from seven years to five years for the offence u/s 9 (m) 10 of
Protection of Children from Sexual offences Act 2012. Except this
modification, the rest of the Judgment of conviction and sentence imposed
on the appellant stands unaltered. Consequently, connected M.P. is
closed.
04.02.202
arr
Index: Yes/No
Internet: Yes/No
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Crl.A.No.415 of
Speaking Order/Non Speaking Order
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Crl.A.No.415 of
P.VELMURUGAN, J.
arr
To
1.The Sessions Judge,
Magalir Neethimandram
(Fast Track Mahila Court),
Tiruppur.
2.The Inspector of Police,
All Women Police Station,
Tirupur South, Tirupur City
3.The Public Prosecutor,
High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
CRL.A.No.415 of 2019
04.02.2021
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