Madras High Court
Vimalraj vs The State Rep By Its on 8 February, 2021
Crl.A.No.554 of
2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.554 of 2020 and
Crl.M.P.No.8004 of 2020
Vimalraj .. Appellant
.Vs.
The State rep by its
The Inspector of Police,
Rasipuram Police Station
Namakkal District.
(Crime No.269 of 2017) .. Respondent
Criminal Appeal filed under Section 374 (1) of the Code of Criminal
Procedure to set aside the Judgment passed by the Court of Sessions
(Fast Track Mahila) Judge, Namakkal, in Special C.C.No.27 of 2017
dated 23.11.2020 and allow the appeal.
For Appellant : Mr.E.C.Ramesh
For Respondent : Mr.R.Suryaprakash
Government Advocate
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Crl.A.No.554 of
2020
JUDGMENT
This Appeal has been filed against the Judgment passed by the
Court of Sessions (Fast Track Mahila) Judge, Namakkal in Special
C.C.No.27 of 2020 dated 23.11.2020 and allow the appeal.
2. The respondent police registered a case against the appellant in
Cr.No.269 of 2017 for the offences punishable under Section 11 (iv) r/w
12 of Protection of Children from Sexual Offences Act, 2012 (for short
'POCSO Act') and Section 363 of I.P.C. After investigation, the
respondent police laid charge sheet before the Sessions (Fast Track
Mahila) Court, Namakkal.
3. The learned Sessions Judge, after completing the formalities
framed charges for the offence punishable under Section 11 (iv) of
POCSO Act, 2012 and 363 I.P.C. and after trial, acquitted the appellant
of the charges under Section 11(iv) of POCSO Act, 2012, however,
convicted the appellant for the offence punishable under Section 363
I.P.C. and sentenced him to undergo three years rigorous imprisonment
and to pay a fine of Rs.1,000/- in default to undergo 6 months simple
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Crl.A.No.554 of
imprisonment. Challenging the said conviction and sentence, the accused
has filed the present Appeal before this Court.
4. The learned counsel for the appellant would submit that the age
of the victim girl is 18 years and she voluntarily went along with the
appellant and there is no question of kidnapping, which is evident from
the deposition of P.W.2- victim girl and, therefore, Section 363 of I.P.C.
is not attracted. He would further submit that victim has not stated either
before the learned Magistrate or before the police that she was subjected
to penetrated sexual intercourse with the appellant. The learned counsel
would further submit that though the learned Sessions Judge accepted
that the appellant has not committed the offence under Section 11 (iv) of
the POCSO Act, but failed to appreciate evidence that the victim girl
voluntarily went with the appellant.
5. It is the further contention of the appellant that even P.W.1,
P.W.3 and P.W.4 did not support the case of the prosecution and they
have not deposed against the appellant. He would further submit that
even the victim girl P.W.2 deposed during cross examination that there
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Crl.A.No.554 of
was no sexual relationship between the appellant and herself. She further
deposed that the appellant was in the relationship of a brother with her .
He would further submit that there is no independent witness examined
to prove the charge and, therefore, the Judgment of conviction and
sentence passed by the trial court is liable to be set aside.
6. The learned Government Advocate (Crl.side) would submit that
at the time of occurrence the victim girl was only 16 years and without
consent of the parents who are the natural as well as lawful guardians,
the appellant took away the minor girl and therefore, he has committed
offence punishable under Section 363 I.P.C. He would further submit by
taking note of the statement recorded under Section 164 Cr.P.C., the
Doctor's evidence and the medical report, the trial Court disallowed the
case of the prosecution for the offence under Section 11(iv) r/w Section
12 of POCSO Act, but however, from the evidence of victim girl and also
the evidence of parents as well as statement recorded from the victim girl
by the learned Judicial Magistrate, it is clearly seen that the appellant has
removed the victim girl from the custody of lawful guardianship of her
parents and, therefore, the appellant has committed an offence under
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Crl.A.No.554 of
Section 363 I.P.C. and the trial court has rightly convicted and sentenced
the appellant as stated above and therefore there is no merit in the appeal
and the same is liable to be dismissed.
7. Heard both sides. Perused the records.
8. The case of the prosecution is that on 12.04.2017 at about 8.00
A.M. at Mangalapuram Bus stand, when the victim was travelling in a
bus to go to Athur from Rasipuram, by inducement the accused got her
down from the bus and for the purpose of marriage kidnapped her from
the lawful guardianship of her parents and took her in motorcycle to
Singipuram in Salem District and also made her stay there for about 10
days and then shifted her to his house at Vanniyar Street, Singipuram and
kept her for a day and thereby the accused committed the offence
punishable under Section 363 I.P.C. Thereafter, a complaint has been
preferred against the accused before the respondent police.
9. After investigation, the respondent police laid charge sheet before
the Sessions (Fast Track Mahila) Judge, Namakkal and the learned
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Crl.A.No.554 of
Sessions (Fast Track Mahila) Judge, after completing the formalities the
trial court framed the charges against the appellant for the offence under
Section 11 (iv) r/w 12 of POCSO Act and 363 I.P.C.
10. In order to prove the case, during the trial, on the side of the
prosecution, as many as 18 witnesses were examined as P.W.1 to 18 and
14 documents were marked as Exs.P1 to P14 and no material objects
were exhibited.
11.After completing the examination of the prosecution witnesses,
all the incriminating circumstances culled out from the evidence of the
prosecution witnesses, were put before the appellant, but he denied the
same as false. On the side of the defence, D.W.1 and D.W.2 were
examined and Ex.D1 was marked.
12.After considering the evidence on record and hearing the
arguments on either side, the learned Sessions Judge, disbelieved the case
of the prosecution and found that the prosecution has not established its
case beyond reasonable doubt, and vide judgment dated 23.11.2020 in
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Crl.A.No.554 of
Special C.C.No.27 of 2017, acquitted the appellant of the charge under
Section 11(iv) of the POCSO Act but convicted the appellant for the
offence under Section 363 IPC and sentenced him as stated above.
13.Challenging the Judgment of conviction and sentence, the
present appeal has been preferred by the appellant/accused.
14.Since the Appellate Court is a fact finding Court, in order to
give a finding independently, it has to re-appreciate the entire evidence.
15.The main contention of the learned counsel for the appellant is
that the victim girl is not a minor and she completed 18 years and she
went voluntarily with the appellant and the appellant has also not
kidnapped her and further even the victim girl has clearly deposed that
she was not forcibly taken from the custody of her parents and therefore
the ingredients under Section 363 I.P.C. would not stand attracted in this
case. However, a perusal of the order passed by the Sessions Judge,
would go to show that the learned Sessions Judge discussed oral and
documentary evidence and rightly came to the conclusion that Section
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Crl.A.No.554 of
363 I.P.C would stand attracted in this case and convicted the accused.
Further, as per Ex.P7, the Date of Birth of the victim is 24.10.2000 and
the date of occurrence is 12.04.2017 and therefore at the time of
occurrence the victim girl is aged about 16 years and the evidence of the
victim girl is very clear that the appellant used to chat with the victim girl
and he also expressed his love and also proposed her and also insisted the
victim girl fall in love with him. He also asked the victim girl to come
along with him otherwise he will commit suicide and took the victim girl
to Singipuram and made her to stay in her grandmother's house for 11
days which clearly shows that the appellant removed the custody of the
minor girl from the natural guardian and even Ex.P3- Statement recorded
under Section 164 Cr.P.C. clearly shows that the appellant took the
victim girl by motor cycle to Singipuram and stayed there for more than
10 days in different places. However, in the statement recorded under
Section 164 Cr.P.C., the victim has clearly stated that she was not
subjected to penetrative sexual intercourse and the Doctor opined that
hymen was intact and there are no external injuries and, therefore,
considering the age of the victim girl, statement recorded under 164
Cr.P.C, the trial Court has rightly acquitted the accused for the offence
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Crl.A.No.554 of
under Section 11 (iv) r/w. Section 12 of the POCSO Act. Considering
the age of the victim girl and since he was taken by the appellant, even if
she consents also, the consent of parents is very much necessary, and the
minor girl has been removed from the custody of her parents by the
appellant, which falls under Section 363 I.P.C., the trial Court has rightly
convicted and sentenced the appellant and there is no merit in the Appeal
and the same is liable to be dismissed.
Accordingly this Criminal Appeal is dismissed confirming the
judgment dated 23.11.2020, passed in Spl.C.C.No.27 of 2017 by the
learned Sessions (Fast Track Mahila) Judge, Namakkal. Consequently,
connected Miscellaneous Petition is closed.
08.02.2021
arr
Index:Yes/No
Internet: Yes
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Crl.A.No.554 of
P.VELMURUGAN, J
arr
To
1. The Court of Sessions (Fast Track Mahila) Judge,
Namakkal.
2. The Public Prosecutor,
Madras High Court,
Madras.
3. The Inspector of Police,
Rasipuram Police Station
Namakkal District.
4. The Deputy Registrar
(Criminal Section),
High Court, Madras.
CRL.A.No.554 of 2020
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Crl.A.No.554 of
08.02.2021
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