Madras High Court
Suresh vs The Inspector Of Police on 8 February, 2021
Crl.A.No.677 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.677 of 2019
Suresh
S/o.Anbalagan .. Appellant
.Vs.
The Inspector of Police
All Women Police Station
Hosur, Krishnaigiri District. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to set aside the conviction and sentence passed against the
appellant by the Judgment dated 20.08.2019 made in Spl.S.C.No.23 of
2018 on the file of the Sessions Judge (Fast Track Mahila Court),
Krishnagiri.
For Appellant : Mr.D.Selvaraju
For Respondent : Mr.R.Surya Prakash
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
20.08.2019 made in Spl.S.C.No.23 of 2018 on the file of the Sessions
Judge (Fast Track Mahila Court), Krishnagiri.
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2. Initially, the respondent police registered a case in Crime No.1 of
2018 against the appellant for offence punishable under Section 366(A)
of 'Indian Penal Code' [hereinafter 'IPC' for the sake of convenience] and
Section 3 r/w Section 4 of 'The Protection of Children from Sexual
Offences Act, 2012' [hereinafter 'POCSO Act' for the sake of
convenience] and thereafter, altered into Section 363, 366(A) IPC and
Section 5(l) r/w 6 of the POCSO Act and a charge sheet was laid before
the learned Sessions Judge, Magalir Neethimandram, Krishnaigiri, since
the offence is against a child defined under Section 2(1)(d) of POCSO
Act. The Sessions Judge, after completing the formalities, taken the case
on file in Spl.S.C.No.23 of 2018 and framed charges against the
appellant for the offence under Sections 363, 366(A) IPC and Section
5(l) r/w 6 of the POCSO Act.
3. On completion of trial, the appellant is found guilty for the
offence under Section 366 IPC and sentenced to undergo rigorous
imprisonment for five years and to pay a fine of Rs.1,000/-; in default to
undergo simple imprisonment for six months and for the offence under
Section 5(l) r/w 6 of the POCSO Act, the appellant was sentenced to
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undergo Rigorous imprisonment for ten years and to pay a fine of
Rs.5,000/-, in default to undergo simple imprisonment for one year. The
Trial Court directed the sentences to run concurrently.
4. Aggrieved by the said judgment of conviction and sentence, the
appellant/accused has filed the present appeal before this Court.
5. The learned counsel for appellant would submit that the
complaint was lodged on 16.01.2018 i.e., after 6 days of the victim girl
found missing, whereas the complaint on record before the Court reveals
that the girl was missing only from 13.01.2018 and the complaint was
lodged on the third day of alleged missing. He would submit that the
father of the victim girl was examined as P.W.1 and he has stated in his
evidence that he went to the police station only after the accused was
arrested along with the victim girl, whereas, the Investigating Officer has
stated that he arrested the accused at the Hosur Bus stop, after he was
identified by P.W.1-Perumal/father of the victim girl, which falsifies the
case of prosecution. He would further submit that the learned Sessions
Judge failed to appreciate the case of the prosecution that P.W.1 has
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stated that the accused and the victim girl were seen together at
Mamudimanapalli by P.W.5. and he informed P.W.1 about the same,
which is also a total falsehood for the reason that P.W.5 has stated that he
has not informed anything to P.W.1 and he did not see the accused and
P.W.2 at the above place and therefore, the learned Sessions Judge
wrongly convicted the appellant for the offence punishable under Section
6 of the POCSO Act by stating that the medical evidence proved the case
of the prosecution that the victim girl was subjected to forcible
penetrative sexual assault, while the evidence of Doctor, copy of medical
report and AR copy produced before the Court show that there is no iota
of medical evidence pointing out any forcible penetration or even
penetration with consent during the alleged dates i.e., 13.01.2018,
14.01.2018 and 15.01.2018. The learned Sessions Judge wrongly
convicted the appellant without considering the fact that the period
between 13.01.2018 and 15.01.2018 was the menstrual period of the
victim girl and only a minimal menstrual bleeding was found in the
examination, which proves that there was no probability to hold that she
was subjected to forcible penetrative sexual assault during that period.
He further submitted that the learned Sessions Judge wrongly convicted
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the appellant for the offence punishable under Section 366 IPC since
there was no evidence to substantiate the prosecution case that the
appellant had taken P.W.2-Victim girl from Chithanahalli to
Mamudimanapalli, because neither P.W.2 nor P.W.5 had supported the
case of the prosecution. There is material contradiction among P.W.1,
P.W.2 and P.W.4 wherein, in their cross examination, they have stated
that only due to money dispute, P.W.1 had lodged the above complaint
against the appellant. P.W.1, P.W.2 and P.W.4, have clearly stated in their
cross examination that the victim girl was not kidnapped by the
appellant. No witnesses were examined in the place of occurrence and
the prosecution has not proved that the appellant has got old house and
no witness was examined to prove that the victim girl was taken by the
appellant to his old house and forced the victim girl to have sexual
intercourse. P.W.1-father of the victim girl has not supported the case of
the prosecution, since he turned hostile. P.W.2-Victim girl has not
supported the case of the prosecution, since she also turned hostile.
P.W.4-mother of the victim girl also turned hostile. P.W.5-Head Mason
has not supported the case of the prosecution, since he has not stated that
the victim girl was kidnapped by the appellant. The learned Judge,
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without considering the evidence and material contradictions, wrongly
convicted the appellant, which warrants interference by this Court.
6. The learned Government Advocate (Crl. Side) would submit that
at the time of occurrence, the victim girl was minor and she studied upto
9th standard and discontinued her studies. He would submit that P.W.1
and P.W.4, father and mother of the victim girl respectively were doing
mason work under P.W.5-Head Mason and the appellant is also working
along with P.W.1 and P.W.4. The victim girl used to bring food to her
parents and at that time, the appellant, who was working there, used to
give trouble to her. On 13.01.2018, when the victim girl was in the
house, the appellant called her over phone, when she refused to come, he
threatened her and took her to his old house and stayed there for three
days i.e., from 13.01.2018 to 15.01.2018 and forcibly had sexual
intercourse with her. Subsequently, when they planned to go to
Bangalore, the respondent police arrested both the appellant and the
victim girl and informed to their parents. When the father of the victim
girl was examined as P.W.1 on 14.11.2018, he supported the case of
prosecution and on the same day, he was cross-examined, there was no
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contradiction elucidated from him. Subsequently, P.W.1 was recalled on
06.05.2019, on that day, he has deposed that he himself and the appellant
worked with P.W.5, due to money dispute between them, he preferred the
said complaint against the appellant and thereafter, P.W.5 made
compromise between them and also considering the future of the victim
girl, he turned hostile. The victim girl was produced before the learned
Judicial Magistrate and the statement was recorded under Section 164
Cr.P.C., which was marked as Ex.P3. On a perusal of Ex.P3-Statement
recorded under Section 164 Cr.P.C., it reveals that the victim girl studied
upto 9th standard and discontinued her studies, she was alone in her
house since her parents went for construction work and she used to go to
the work place for giving food. At that time, the appellant, who was also
working there, used to trouble her by asking to marry him. She refused
for the same by stating that he was already married and having two
children. However, during Pongal time, the appellant threatened the
victim girl to marry him and took her to his old house and forced her to
have sexual intercourse. Subsequently, when the victim girl examined
before the Court on 14.11.2018, she reiterates the same, however, after
six months, when she was recalled on 06.05.2019, she turned hostile.
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The trial Judge has rightly convicted the appellant for the above said
charges. There is no merits in this case and hence, the same is liable to
be dismissed.
7. The case of the prosecution is that the victim girl, who was aged
about 16 years at the time of occurrence, went to the work place of her
parents for giving food to her parents, the appellant used to convince her
to marry him and she refused for the same. On 13.01.2018, when the
victim girl was alone in the house, the appellant called the victim girl,
threatened her and took her to his old house and stayed for 3 days and
had penetrative sexual assault. Thereafter, the father of the victim girl
preferred the complaint and the respondent police arrested the appellant
and secured the victim girl at Hosur Bus Stop, while going to Bangalore.
8. In order to prove the case of the prosecution, on the side of
prosecution, as many as 13 witnesses were examined as Ex.P1 to Ex.P13
and 21 documents were marked as Ex.P1 to Ex.P21. No material objects
were marked.
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9. When the accused was questioned under Section 313 Cr.P.C., as
respect of the incriminating materials available in evidence against him,
he denied it as false and pleaded not guilty. No oral or documentary
evidence was produced on behalf of the appellant.
10. Since this Court is an appellate Court and also a final Court of
fact finding, has to re-appreciate the entire evidence and come to the
independent finding. In order to prove the case, the prosecution
examined the father of the victim girl as P.W.1, who spoken about the
complaint for the offence committed by the appellant and the victim girl
was examined as P.W.2, where she has clearly narrated the entire
incidents and the mother of the victim girl was examined as P.W.4, she
has also narrated the same. Head Mason with whom the parents of the
victim girl were working was examined as P.W.5. He has clearly stated
that the appellant and the parents of the victim girl were working under
him in the construction work and the victim girl used to come to the work
place to give food to her parents. Doctor-PW3, one who examined the
appellant also spoken about the capability of the appellant to have sexual
intercourse. The victim girl was produced before the learned Judicial
Magistrate for recording statement under Section 164 Cr.P.C, in which, it
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is stated that the appellant took the victim girl to the place of occurrence
and forcibly committed sexual assault. According to the victim girl, the
appellant insisted her to marry him, but she refused for the reason that he
already got married and have two children. The Doctor, who examined
the victim girl was examined as P.W.11 and in her evidence she has
deposed that on examination of the victim girl, she found that there was
no external injury and her hymen was not intact and also admitted two
fingers, however, she opined that possibility of sexual assault cannot be
ruled out. Even a slight penetration in the vulva is sufficient to constitute
the offence of rape and rupture of the hymen is not necessary. The
Doctor, who examined the accused was examined as PW3 and issued
Ex.P4 certificate stating that there is nothing to suggest that the appellant
is impotent and incapable of performing sexual assault. Though the
Doctor-PW11 deposed that possibility of penetrative sexual assault,
cannot be ruled out, there is no good reason to disbelieve the case of the
prosecution. During statement recording under Section 164 Cr.P.C., the
victim girl had clearly stated that on 13.01.2018, when the victim girl
was in the house, the appellant called her over phone, when she refused
to come, he threatened her and took her to his old house and stayed there
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for three days and forcibly had sexual intercourse with her.
11. At this juncture, it would be useful to refer the Sections 5(l) and
6 of POCSO Act, 2012:-
"5.Aggravated penetrative sexual assault.—
(l) whoever commits penetrative sexual assault on the
child more than once or repeatedly.
6.Punishment for aggravated penetrative sexual
assault.—Whoever, commits aggravated penetrative sexual
assault, shall be punished with rigorous imprisonment for a
term which shall not be less than ten years but which may
extend to imprisonment for life and shall also be liable to
fine."
12. A bare perusal of the statement recorded under Section 164(5)
of Cr.P.C., of the victim girl and the evidence of the Doctor-PW11, who
examined the victim girl and evidence of the Doctor-PW3, who
examined the accused, it is very clear that the appellant has committed
the offence punishable under Section 6 of POCSO Act.
13. Though the learned counsel for appellant would vehemently
contend that there is material contradiction from the evidence and some
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of the witnesses have turned hostile, the statement recorded under
Section 164 Cr.P.C. cannot be discarded. P.W.11-Doctor has also clearly
spoken about the date of occurrence. Ex.P6-Educational Certificate
shows that the victim girl is aged about 16 years at the time of
occurrence. When the victim girl was examined before the Court on
14.11.2018, she reiterated the incident, however, after six months, when
she was recalled on 06.05.2019, she turned hostile. The statement of the
victim girl recorded under Section 164 Cr.P.C. before the learned
Magistrate supported the case of the prosecution. It is settled proposition
of law that the evidence of hostile witnesses need not be discarded in
totally, but the portion of evidence in chief examination which supports
the prosecution, can be taken for consideration. Since the appellant
kidnapped the victim girl, who is aged about 16 years at the time of
occurrence, from the lawful guardian, this Court finds that the appellant
has committed offence under Section 366 of IPC. Further, from the
evidence and statement recorded under Section 164 Cr.P.C. of the victim
girl, it is very clear that the accused committed aggravated penetrative
sexual assault on the victim girl by forcibly having sexual intercourse
with her and thereby, this Court finds that the appellant committed the
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offence under Section 5(l) r/w Section 6 of the POCSO Act and the
prosecution has proved its case beyond all reasonable doubt. Therefore,
the trial Court has rightly convicted the appellant for the above charges.
Hence, there is no merit in the appeal and the same is liable to be
dismissed.
14. In fine, this Criminal Appeal deserves to be dismissed and
accordingly, the same is dismissed. The conviction and sentence passed
by Sessions Judge (Fast Track Mahila Court), Krishnagiri, made in
Spl.S.C.No.23 of 2018 dated 20.08.2019 is hereby confirmed. It is seen
from the records that the appellant/accused is at large and therefore, the
trial Court is directed to take appropriate steps to secure the presence of
the accused to serve the remaining period of sentence.
08.02.2021
mk
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Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
To
1. The Sessions Judge (Fast Track Mahila Court),
Krishnagiri.
2. The Inspector of Police
All Women Police Station
Hosur, Krishnaigiri District.
3.The Public Prosecutor,
High Court, Madras.
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P.VELMURUGAN,.J.
mk
CRL.A.No.677 of 2019
08.02.2021
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