Madras High Court
C.Vijay vs The State on 8 February, 2021
Crl.A.No.368 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.368 of 2019 &
Crl.M.P.No.8077 of 2019
C.Vijay ... Appellant
Vs.
The State,
Rep. by the Inspector of Police,
W-3, All Women Police Station
Chinthadhripet,
Chennai - 600 002. ... Respondent
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. against the
Judgment passed in S.C.No.33 of 2018, by the Special Court for cases under
POCSO Act, 2012 / Mahila Court, Chennnai, dated 06.05.2019.
For Appellant : Mr.M.Palanivel
For Respondent : Mr.R.Suryaprakash
Government Advocate
***
JUDGMENT
This Criminal Appeal has been filed against the Judgment of Conviction
and Sentence, dated 06.05.2019 made in S.C.No.33 of 2018, by the learned
Judge, Special Court for cases under POCSO Act, 2012 / Mahila Court, Chennai.
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Crl.A.No.368 of 2019
2. The respondent-Police has registered a case against the appellant for
the offence under Sections 6 and 12 of Protection of Children from Sexual
Offences Act, 2012 (for brevity "the POCSO Act"). After completing the
investigation, laid a charge sheet before the learned Judge, Special Court for
cases under POCSO Act, 2012 / Mahila Court, Chennai. 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 punishable under Sections 6 and 12 of
of POCSO Act, against the appellant. When questioned, the appellant pleaded
"not guilty".
3. In order to prove the case of the prosecution, 13 witnesses were
examined as P.W.1 to P.W.13 and 16 documents were marked as Exs.P1 to P16
and 5 materials objects were produced. On the side of the defense, the accused
was examined as D.W.1.
4. After considering the evidence on record and hearing on either side,
the learned Judge, by Judgment dated 26.07.2019, convicted the appellant and
sentenced him to undergo Simple Imprisonment of 5 years and imposed a fine of
Rs.5,000/- for each count, in default, to undergo further period of six months
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Crl.A.No.368 of 2019
Simple Imprisonment for the offense punishable under Section 10 of POCSO Act
(3 counts); and sentenced him to undergo Simple Imprisonment of 2 years and
imposed a fine of Rs.2,000/- for each count, in default, to undergo further
period of Simple Imprisonment of three months for the offence punishable under
Section 12 of POCSO Act (3 counts).
5. Challenging the above conviction and sentence, the appellant is before
this Court.
6. The learned counsel for the appellant would submit that Ex.P1
complaint was preferred by the P.W.1, father of one of the victim girls, viz.,
P.W.4 and he is not an eyewitness and only hearsay evidence. It is further
submitted that P.W.1 had built a house by encumbering 1 1/2 feet space left by
the accused for lane and due to that, quarrel arose between himself and P.W.1,
and in order to take vengeance, P.W.1 set up these children and foisted a false
case against the appellant.
7. It is further submitted that the Investigating Officer has not properly
investigated the matter, even the prosecution has not able to locate the place
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Crl.A.No.368 of 2019
of occurrence and there are material contradictions in the prosecution
witnesses regarding the place of occurrence. In the statements recorded under
Section 164 of Cr.P.C., P.W.4 and P.W.5 (Victim children) have stated that the
occurrence took place at terrace, but during their chief examination and cross-
examination, they have deposed that the place of occurrence is inside the house
of the accused. During 164 statement P.W.6, other victim girl has stated that
the place of occurrence is terrace, but during cross examination, she has stated
that the crime did not occur in terrace and it had occurred inside the house of
the accused. P.W.7 and P.W.8 are only hearsay evidence and they are no
eyewitness in this case and even in their evidence, there are material
contradictions with regard to place of occurrence. During chief examination,
P.W.7 deposed that the occurrence took place at the third floor of the house
and during first cross examination on 16.07.2018, P.W.7 has stated that the
occurrence took place at terrace, but during cross-examination on 28.11.2018,
P.W.7 admitted that there is no terrace in the place of occurrence. Likewise,
P.W.8 during chief examination and cross examination, recorded on 16.07.2018,
she has stated that the occurrence took place inside the house of the accused,
but during cross examination, on 28.11.2018, she has stated that there is no
terrace in the place of occurrence. Admittedly, there is no open terrace in
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Crl.A.No.368 of 2019
the alleged occurrence place. As such, it is contended by the learned counsel
that the learned Judge failed to note that there are a lot of contradictions
between the witness regarding the place of occurrence and there is clear
evidence to prove that the place of occurrence referred to as terrace in the
police report is false, and hence, the place of occurrence is fallacious and cuts
at the root of the prosecution.
8. The learned counsel would further contend that P.W.12, doctor, who
examined the victim girls had stated that there was no external injury in the
private part of the victim girls and therefore, medical evidence was also not
supported the case of the prosecution. As such, the prosecution has not proved
its case beyond reasonable doubt.
9. It is further contended by the learned counsel that P.W.1 during cross
examination has admitted that 1 1/2 feet space left by the accused for lane was
encumbered by P.W.1 and his family and due to that quarrel arose between the
accused and P.W.1, and in order to take vengeance, they had foisted a false
case against the appellant, and therefore, benefit of doubt should have been
extended to the appellant.
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Crl.A.No.368 of 2019
10. The learned counsel would further contend that though the charge
was framed against the accused punishable under Sections 6 and 12 of POCSO
Act, and the same was not established by the prosecution, however, the learned
Judge, convicted the accused under Sections 10 and 12 of the Act. Therefore,
the Judgment of the learned Judge, Special Court for cases under POCSO Act,
2012 / Mahila Court, Chennnai, is liable to be set-aside. In support of his
contentions, the learned counsel has relied upon the following judgments
reported in:-
(i) (2007) 12 SCC 122
(ii) 1982 Law Weekly (Crl) 92
(iii) 1966 CRI L.J. 627
(iv) AIR 1975 SC 1727
(v) AIR 1977 SC 2274
(vi) 2016 (4) MLJ (CRI) 611
11. The learned Government Advocate would submit that during 164
statement, the victim clearly stated that when they were playing, the accused
asked them to come to his house and play the game conveniently and when they
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Crl.A.No.368 of 2019
refused to go there, the accused forcibly took them to his house, and made
them to lie on the bed and removed their panties and pinched on their private
parts and he also removed his panties and asked them to see his private parts to
the children. Subsequently, during the examination of the witnesses and during
the trial, the prosecution has established the case. Though the charge was
framed against the accused punishable under Sections 6 and 12 of POCSO Act,
the learned Judge, had observed, that the penetration has not been proved,
however, from the evidence, it is stated that the appellant had removed the
panties of the children would prove that the accused had touched the victim
children inappropriately with sexual intention and, convicted the accused under
Sections 10 and 12 of the Act. The prosecution has established the case beyond
the reasonable doubt and there is no merit in the Appeal and therefore, the
Appeal is liable to be dismissed.
12. Heard the learned counsel on either side and perused the materials
available on record.
13. The case of the prosecution is that on 08.10.2016, at about 7 p.m,
when the victim girls (P.Ws' 4 to 6) were playing Doctor game, in a parked auto,
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Crl.A.No.368 of 2019
the accused took them to the terrace, switched off the light there and removed
their panties and kept his hand on their private parts and inserted his fingers
into their private parts and he also removed his panties and showed his private
parts to the children and thereby committed sexual assault on them. When all
the victim children were talking between themselves, P.W.3- the mother of the
yet another victim child (P.W.6), and told about the occurrence, and who in
turn, (P.W.3), conveyed the same to P.W.2, who is the mother of P.W.4. Then,
she (P.W.4) enquired her daughter about the occurrence and after knowing the
details, the parents of the three children, gave the complaint. Based on which,
the respondent-Police registered a case against the appellant for the offence
punishable under Sections 6 and 12 of POCSO Act. Subsequently, the
Investigating Officer, investigated the matter and laid a charge sheet before the
learned Judge, Special Court for cases under POCSO Act, 2012 / Mahila Court,
Chennnai and on completion of trial, the learned Judge, convicted the accused
for the offences punishable under Sections 10 and 12 of the Act.
14. According to the learned counsel for the appellant, charges levelled
against the appellant were not proved, however, the learned Judge, convicted
the accused. Though the victim children 1 to 3 have stated uniformly that the
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Crl.A.No.368 of 2019
accused had taken them upto his house, removed their panties and removed his
panties and asked them to see his private parts, they have not stated uniformly
that the accused had kept his hands on their private parts and did any act of
penetration as defined under Section 3 of POCSO Act. Since the charge framed
against the appellant for the offence punishable under Section 6 of the POCSO
Act was not proved by the prosecution, as there was no penetration, however,
the learned Judge, rightly convicted the accused for the offences punishable
under Sections 10 and 12 of the POCSO Act.
15. Though the learned counsel for the appellant would submit that
P.W.12.doctor, who examined the victim girls have stated that there was no
external injuries found on them and no spermatozoa found, a reading of the
evidence of the victim girls, it is proved that the accused had taken the victim
girls into his house, removed their panties and pinched their private parts and
removed his panties and asked them to see his private parts. Admittedly, in
the case on hand, from the evidence of the victim girls, it could be seen that no
penetration had taken place, however, in their evidence, the intention of the
accused for attempting to penetrate into the vagina of the minor victim girls are
proved. Depth of penetration is immaterial, mere touching of private part would
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Crl.A.No.368 of 2019
be sufficient so as to constitute the offence. As per Section 10 of POCSO Act,
whoever, commits aggravated sexual assault shall be punished with
imprisonment of either description for a term which shall not be less than five
years but which may extend to seven years, and shall also be liable to fine. In
the case on hand, a perusal of evidence of the victim girls, it could be seen that
when the victim girls refused to go with him, the appellant forcibly took them
into his house and when they shouted, he closed their mouth. Though the
penetration has not been proved, the victim girls have uniformly stated that the
accused had taken them into his house, removed their panties and removed his
panties and asked them to see him, and therefore, the learned Judge rightly
held that the act of the accused would not constitute the offence punishable
under Section 6 of POCSO Act, but his act of removing the panties of the victim
children of below 12 years old, as it was proved so by the prosecution would
confirm that the offence of aggravated sexual assault (3 counts) which is
punishable under Section 10 of POCSO Act, 2012 has been committed by the
accused.
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16. The other limb of argument of the learned counsel for the appellant is
that there are a lot of contractions between the witnesses regarding place of
occurrence. No doubt, there are lot of contradictions with regard to place of
occurrence as mentioned by the prosecution witnesses. Though the victim girls,
in the statements recorded under Section 164 of Cr.P.C., have stated that the
occurrence took place at terrace, during examination, they have clearly
deposed the place of occurrence in the inside house of the accused. Usually,
the children can refer the top of the floor as terrace [bkhl;il kho ]. In the
case on hand, at the time of occurrence, the age of the victims are 4 to 6 years
and considering the age of the victim girls, it cannot be expected to get clear
reference from them. However, the other evidence of victim girls, viz.,
switching off the light by the accused, removal the panties of three victim girls,
removal of his panties and asked them to see him, distribution of chocolates to
the victim girls, are cogent. Any how, the said contractions will not go to the
route of the case of the prosecution and the appellant cannot be given the
benefit of doubt, as admittedly, other evidences of the victim girls with regard
to sexual harassment is clearly proved.
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17. Yet another limb of argument of the learned counsel for the appellant
is that due to dispute between P.W.1 and the accused with regard to
encumbrance of 1 1/2 feet space by P.W.1 and his family members, which was
left by the accused for lane and in order to take vengeance, they foisted a false
case against the appellant. Admittedly, in the matter on hand, there are three
victim girls. P.W.1 is the father of P.W.4. P.W.5 and P.W.6 are other victim girls
and there was no dispute over them and they have also stated during statement
recorded under Section 164 of Cr.P.C. and also deposed during the evidence
given before the trial Court, regarding the sexual assault of the appellant.
Therefore, the argument of the learned counsel for the appellant that P.W.1 in
order to take vengeance, foisted a false case against the appellant is not
acceptable, because, other victim girls and their parents have also stated the
act of the appellant in their depositions. Further, it is pertinent to mention
here that parents of the victim girls need not say all these things and also the
parents will not spoil the life of the victim girls. Therefore, the above
contention of the learned counsel for the appellant is rejected. Further, there
was no reason to discard the evidence of victim girls. Normally, in criminal cases
corroboration of witness is necessary, whereas, offence under POCSO Act, the
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Crl.A.No.368 of 2019
evidence of the victim girls are sufficient and the Court need not 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.
Further, 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.
18. The learned counsel for the appellant has cited catena of decisions.
There is no quarrel over the principles laid down therein, but in the considered
view of this case, the discussions referred supra, the decisions relied on by the
learned counsel for the appellant, have no application to the facts of this case,
as they are distinguishable on facts, as admittedly, in the case on hand, there
are three victim girls and they have clearly deposed the act of the accused
regarding sexual assault. 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.
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Crl.A.No.368 of 2019
19. 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 conviction and sentence passed by
the learned Judge, Special Court for cases under POCSO Act, 2012 / Mahila
Court, Chennnai. Therefore, this Court does not find any merit in the Appeal
and the Appeal is liable to be dismissed, accordingly, it is dismissed.
Consequently, connected miscellaneous petition is closed.
08.02.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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Crl.A.No.368 of 2019
To
1. The Special Court for cases under POCSO Act, 2012
Mahila Court, Chennnai.
2.The Inspector of Police,
W-3, All Women Police Station
Chinthadhripet,
Chennai - 600 002.
3.The Public Prosecutor,
Madras High Court, Chennai.
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Crl.A.No.368 of 2019
P.VELMURUGAN, J.
rns
Crl.A.No.368 of 2019 &
Crl.M.P.No.8077 of 2019
08.02.2021
https://www.mhc.tn.gov.in/judis/
