Madras High Court
M.Manikandan vs State Rep. By The Inspector Of ... on 9 February, 2021
CRL.A.No.230 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.09.2021
PRONOUNCED ON : 28.10.2021
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
CRL.A.No.230 of 2021
M.Manikandan, ... Appellant
S/o.Nagaiya
Vs.
State Rep. By the Inspector of Police,
All Women Police Station,
Hosur,
Krishnagiri District.
(Crime No.23/2017) ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure, to call for the entire records in connection with the
Spl.S.C.No.14/2018 on the file of the learned Sessions Judge (Fast Track
Magalir Neethimandram), Krishnagiri, Krishnagiri District and set aside
the judgment dated 09.02.2021.
Page No.1 of 18
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
For Appellant : Mr.V.Parthiban for M/s.E.Kannadasan
For Respondent : Mr.S.Sugendran
Government Advocate, (Criminal Side)
JUDGMENT
This Criminal Appeal has been filed to set aside the judgment in
Spl.S.C.No.14 of 2018, dated 09.02.2021 on the file of the learned
Session Judge (Fast Track Magalir Neethimandram), Krishnagiri,
Krishnagiri District.
2. The respondent police initially registered a case in Crime No.23
of 2017 against the appellant and yet another for the offence under
Sections 7 and 8 of The Protection of Children from Sexual Offences
Act, 2012 [hereafter referred to as 'POCSO Act' for the sake of
convenience], subsequently altered into Section 10 of POCSO Act, which
is punishable under Section 9(1) of POCSO Act. The appellant is shown
as A1. After investigation, the respondent police laid a charge sheet
before the Mazhila Court, Krishnagiri. The learned Special Judge taken
the charge sheet on file in S.C.NO.14 of 2018. After completing the
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
formalities, the learned trial Judge framed the charges against accused
Nos.1 and 2 for the offence under Section 9(l) of POCSO Act, which is
punishable under Section 10 of POCSO Act and against this appellant,
the learned trial Judge also framed the charges for the offence under
Section 11 of POCSO Act, which is punishable under Section 12 of
POCSO Act.
3.After framing charges, in order to prove the case of the
prosecution, during trial, on the side of the prosecution as many as 19
witnesses were examined as P.W.1 to P.W.19 and 48 documents were
marked as Exs.P.1 to P.48.
4. After completing the examination of the prosecution witnesses,
incriminating circumstances were culled out from the evidence of the
prosecution witnesses and put before the accused by questioning under
section 313 Cr.P.C., with reference to the incriminating circumstances
appears on the side of the prosecution witnesses and the same was denied
by the accused as false and pleaded not guilty. On the side of the
defence, one witness was examined as D.W.1 No document was
produced.
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
5. On completion of trial, hearing the arguments advanced on
either side, considering the materials, the trial court found that the second
accused is not guilty. However, the trial Court found that the appellant is
guilty for the offence under Section 7 of POCSO Act, which is
punishable under Section 8 of POCSO Act and convicted and sentenced
to undergo three years Rigorous Imprisonment with fine of Rs.2500/- in
default to undergo two months Rigorous Imprisonment. Challenging the
said judgment of conviction and sentence, the first accused has filed the
present appeal before this Court.
6. The learned counsel for the appellant would submit that no
students had given any complaint against the appellant and no witnesses
have supported the case of the prosecution. All the witnesses had turned
hostile and a false case has been foisted against the appellant. Though
the learned trial Judge found not guilty of the second accused from the
very same charges, he has wrongly convicted this appellant/A1 for the
alleged offence. The school, in which the victims studied have not given
any complaint and the Headmistress and other teachers have stated that
there is no allegation of this nature were received from any of the
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
students so far. The prosecution has failed to prove its case beyond all
reasonable doubt and there were a material contradiction between the
evidence of P.W.1 and P.W.19 regarding the date of complaint and
recording of statements. P.W.1 has categorically stated that she had given
a complaint along with statements of victim girls on 01.11.2017, whereas
the Investigating Officer, who was examined as P.W.19, has categorically
stated that she received a complaint from P.W.1 only on 22.11.2017 and
there was no reference about the receipt of statements of victims in her
evidence.
7. The learned counsel for the appellant would further submit that
the evidence of P.W.2 is an artificial one and she had made several
allegations against the appellant in her chief examination. To the
contrary, she denied all the allegations in her cross examination that
“while at that time of learning dance, there is no vulnerability from the
side of the appellant, but she was beaten by him” which shows that she
was compelled to give evidence against the appellant. Further she had
deposed that after attending TV programme, she did not go to dance class
after lapse of one month. P.W.3 has not supported the case of the
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
prosecution and she is only a hear say witness. She was not subjected to
sexual assault from the hands of the appellant and other accused A2. The
records reveal that P.W.19-Investigating Officer has started the
investigation even prior to receive the complaint. P.W.3 had categorically
stated that she was examined by P.W.1- defacto complainant and P.W.19-
Investigating Officer on 02.11.2017 in the school campus itself. P.W.4
also not supported the case of the prosecution and she is only a hear say
witness and she was also not subjected to sexual assault. The evidence
of P.W.6-Headmistress of the school would go to show that the case of
the prosecution is false. P.W.8-P.T. Assistant of the school also not
supported the case of the prosecution and she denied all the allegations
against the appellant. The evidence of P.W.11 is also hear say witness.
She had deposed her evidence based on hear say, her evidence is an
artificial one and cannot be believable.
8. The learned counsel for the appellant would further submit that
there are material contradiction between the evidence of victims and
other prosecution witnesses. Most of the victims turned hostile and not
supported the case of the prosecution. Even the other witnesses has also
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
not stated that they directly suffered for the action committed by the
appellant. The prosecution also failed to examine the building owner,
where the dance class was running by the appellant and no document was
produced by the prosecution. The non examination of the vital witness is
fatal to the case of the prosecution. D.W.1 disproved the case of the
prosecution, since D.W.1 has stated that she alone taken the dance class
and coaching given in her presence and there was no suggestion put forth
by the prosecution to disbelieve the evidence. The prosecution failed to
prove its case beyond all reasonable doubt. The trial Court failed to
appreciate the same and wrongly convicted the appellant for the offence
punishable under Section 7 of POCSO Act, which is punishable under
Section 8 of POCSO Act. Therefore, the Judgment of the trial court
warrants interference.
9. The learned Government Advocate (Crl. Side) would submit
that the appellant was running the dance class by name “Gurugulam”
and he approached the schools and canvassed the students to come to
dance class. Some of the victim girls also attended the dance class. At
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
that time, the appellant misbehaved with them and used to touch their hip
and breast. P.W.1 has received a complaint against the appellant about
the sexual assault committed by the appellant from the students, who are
attending the dance class. Therefore, as per the instructions of the
Superior Officer, P.W.1 gave a complaint to the respondent police and
they registered a case. Though in the investigation, some of the students
have given evidence, some of the students afraid about their future and
other circumstances, not supported the case of the prosecution. However,
from the evidence of P.W.1 to P.W.3, it is clear that the appellant has
committed the offence of sexual assault, which is punishable under
Section 10 of POCSO Act. None of the witnesses has spoken about the
involvement of A2 and hence, the trial Court acquitted him. However,
P.W.1 to P.W.4 have spoken about the involvement of the appellant and
therefore, the trial Court rightly convicted the appellant for the offence
punishable under Section 7 of POCSO Act, which is punishable under
Section 8 of POCSO Act. However, the learned trial Judge acquitted the
second accused. As against the said acquittal, neither the prosecution nor
the victim filed the appeal. Now the accused alone has challenged the
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
judgment of conviction and sentence. The trial court appreciated the
entire materials and convicted the appellant. There is no merit in the
appeal and the same is liable to be set aside.
10. Heard the learned counsel for the appellant and the learned
Government Advocate (Criminal Side) appearing for the official
respondent and perused the materials available on record.
11. It is the case of the prosecution that the appellant was running a
dance school by name “Gurugulam” and taking advantage of the same,
the appellant misbehaved with the students and used to touch their hip
and breast. P.W.1 has received a complaint against the appellant about
the sexual assault committed by the appellant from the students, who are
attending the dance class. Therefore, as per the instructions of the
Superior Officer, P.W.1 gave a complaint to the respondent police and
they registered a case.
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
12. Since this Court is the appellate court, it is a final court of fact
finding and in order to give reasons, it has to re-appreciate the evidence
and finding independently. Accordingly this Court also correctly perused
the entire materials.
13. The trial court framed the charges against the appellant and
other accused as stated above.
14. In order to substantiate the charges framed against the appellant,
on the side of the prosecution, totally 19 witnesses were examined and 48
documents were marked. Out of 19 witnesses, P.W.1 has spoken about
the complaint given to the respondent police and their office received the
complaint against the appellant. Though she has stated that their office
has received a complaint however, not specifically stated from whom
they received it. In the cases of this nature, normally neither the
informant may not disclose their identity nor appear before either the
Social Welfare Officer or the police for giving complaint. P.W.2 is one of
the student, who originally attended the school and she has clearly
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
deposed that since the appellant demanded money, she could not attend
the dance class, due to poverty and subsequently, she heard about the
attitude of the appellant. P.W.3 is one of the victim girl, she is clearly
narrated the incident. Though she has not stated that the appellant touch
her hip and also breast, however, she has stated that the appellant tried to
touch her hip and breast and subsequently, she also stopped from going
to dance class.
15. The modus operandi of the appellant is that he used to canvass
the students to come to dance class and also used to choose a poor girls
and tried to misbehave with them and when they resists or protests, he
threatened them and also used to give a complaint before their parents
that they are not performing well and also give a false promise that if
they learnt dance well, he will take their children to the TV Channels for
dancing and their dance would telecast through any of the prominent
channels. Taking advantage of the same, he exploited the innocent
children. Some of the witnesses turned hostile. Some of them have
ambition to go to TV channel for dancing and also considering their
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
future and life, they do not reveal the entire things. Even the school
teachers also stated that they did not receive any complaint. Exs.P12,
P14 and P16 are the Section 164 Cr.P.C. Statements of the victims viz.,
Karunya, Birunda and Shylaja Sri, in which they have stated that they
went to dance class and the appellant tried to misbehave with them.
Further, some of the students also informed the authorities about the ill-
treatment of the appellant. Even though none of the witnesses have stated
that they have been directly suffered by the appellant's misbehaviour, one
of the witnesses had clearly stated that the appellant tried to misbehave
or attempted to misbehave with her and when the students resist to the
action of the appellant, he threatened them and also made a false
allegation against them with their parents that they are not coming to
dance class and they are not trying to learn the dance properly. The
appellant has also made a false promise to their parents that if they learnt
dance well, he will take their children to the TV Channels for dancing
and their dance would telecast through any of the prominent T.V.
channels and in such a way, he canvassed the parents and the children.
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
16. The fact remains that the appellant conducted a dance class in
the name of “Gurugulam” and the girl children used to go to that school
for learning dance and at that time, taking advantage of the manner of
teaching, the appellant used to touch the hip of the children and also used
to touch their breast with the sexual intention. Some of the students do
not reveal the same to their parents, because they afraid that their parents
won't send them either to school or to dance class. Taking advantage of
the same, the appellant misbehaved with the children, those who are
coming to him for dance coaching. The trial Court acquitted the second
accused, since none of the witnesses have spoken about the offence
committed by the second accused. However, P.W.1 to P.W.4 have spoken
about the offence committed by the appellant. Based on the same, the
trial Court, has rightly found that the appellant committed the offence
under Section 7 of POCSO Act, which is punishable under Section 8 of
POCSO Act. In the cases of this nature, it can not be expected that any
affected girl child would openly disclose all those things either to their
parents or to the elders. However, some of the students informed to their
parents about the attitude of the appellant and when they enquired about
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
the same to the appellant, he did not give proper reply. Therefore, some
of the parents considering the future of the children stopped to send their
children for dance class. However, the Social Welfare Officer received a
complaint and P.W.1 also enquired the same and sent a complaint to the
respondent police and they investigated and found that the allegations
received against the appellants are true. However, none of the students
have come forward to reveal that they suffered by the action of the
appellant. Only two of the students have stated that the appellant tried to
misbehave with them. In the cases of this nature, it cannot be expected
from the school going children that they would reveal all those things
before the school teachers, before the parents and before the friends.
They would hesitate to say about their exact suffering.
17. Considering the facts and circumstances of the case, this Court
is of the view that naturally the dance teacher while giving instructions to
the students would touch their body. However, the victim can easily
understand what is the good touch and bad touch and what is the
intention of the person, who touches the body of the other persons.
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
Therefore, as a male teacher, the appellant should be very cautious, while
teaching the girl students and if the students feel that the touch of the
appellant is bad touch, then it is for the appellant to rebut the
presumption.
18. It is not in dispute that the appellant is running the dance
school by name “Gurugulam” and he admitted the students directly or
some times through the schools. Some of the students made complaint to
their parents about the attitude of the appellant and some of the students
informed to their friends and classmates. However, a complaint was
received by Social Welfare Officer and P.W.1 also enquired the same and
found that the appellant used to misbehave with some of the students.
Normally, in the cases of this nature, the culprit used to choose the poor
students, those who are hesitate to inform or disclose to any other
persons and committed this type of offence and also used to threat them
directly or indirectly about the future of the children. Therefore, under
these circumstances, even though there is no independent evidence
regarding the commission of offence, this Court believed the evidence of
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
P.Ws.1, 2 and 3 and found that the appellant has committed the offence
under Section 7 of POCSO Act, which is punishable under Section 8 of
POCSO Act. The trial Court rightly appreciated the evidence and
convicted the appellant. Hence, this Court does not find any reason to
interfere with the judgment of the trial court and this appeal is liable to
be dismissed.
19. In the result, the Criminal Appeal is dismissed by confirming
the Judgment of conviction and sentence dated 09.02.2021 made in
Spl.S.C.No.14 of 2018 on the file of the Sessions Judge (Fast Track
Magalir Neethimandram), Krishnagiri, Krishnagiri District.
Consequently, the connected miscellaneous petition is closed.
28.10.2021
Index: Yes/No
Internet: Yes/No
vsm
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
To
1.The Sessions Judge (Fast Track Magalir Neethimandram),
Krishnagiri, Krishnagiri District.
2.The Inspector of Police,
All Women Police Station,
Hosur,
Krishnagiri District.
3. The Public Prosecutor,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis/
CRL.A.No.230 of 2021
P.VELMURUGAN, J.
vsm
Pre-Delivery Judgment in
CRL.A.No.230 of 2021
28.10.2021
https://www.mhc.tn.gov.in/judis/
