Madras High Court
Manikandan vs State Represented By on 9 February, 2021
Crl.A.No.56 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2021
CORAM :
THE HONOURABLE MR. JUSTICE P. VELMURUGAN
Crl.A.No.56 of 2019
Manikandan ... Appellant
Vs.
State Represented by
The Inspector of Police,
All Women Police Station,
Virudhachalam District. ... Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C., praying to
set aside the judgment of conviction and sentence, dated 23.05.2018,
passed by the Sessions Judge, Mahila Court, Cuddaore, in Spl.S.C.No.19
of 2017.
For Appellant : Mr.S.Saravanakumar
For Respondent : Mr.R.Suryaprakash
Government Advocate
JUDGMENT
This Criminal Appeal has been filed against the judgment of
conviction and sentence, dated 23.05.2018, passed by the learned Sessions
Judge, Mahila Court, Cuddalore, in Spl.S.C.No.19 of 2017.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
2.The respondent Police have registered a case in Crime No.23
of 2016 against the appellant for the offences punishable under Section 4
of the Protection of Children from Sexual Offences Act, 2012 (“POCSO
Act” for brevity), and Section 506(ii) IPC. After completing the
investigation, they laid a charge-sheet before the Mahila Court, Cuddalore.
Since the offence falls under POCSO Act, 2012, the learned Sessions
Judge has taken the charge-sheet on file in Spl.S.C.No.19 of 2017.
3.After completing the formalities, the learned Sessions Judge
framed charges against the appellant for the offences under Section 5(l)
r/w. 6 of the POCSO Act and Section 506(ii) IPC.
4.After trial, the learned Sessions Judge convicted the appellant
for the offences punishable under Section 6 of the POCSO Act and
sentenced him to undergo Rigorous Imprisonment for a period of 10 years
and to pay a fine of Rs.10,000/-, in default, to undergo Rigorous
Imprisonment for a further period of one year, and also convicted him for
the offence punishable under Section 506(ii) IPC and sentenced him to
undergo Rigorous Imprisonment for a period of one year and to pay a fine
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of
three months.
5.Challenging the said judgment of conviction and sentence, the
appellant/accused is before this Court.
6.Learned counsel for the appellant would submit that, originally
the case was registered only under Section 4 of the POCSO Act, however,
the learned Sessions Judge, erroneously convicted the appellant for the
offences under Section 6 of the POCSO Act and Section 506(ii) IPC. The
learned counsel would further submit that there is no material or medical
evidence to prove that the victim girl was subjected to rape, and therefore,
the conviction and sentence imposed against the appellant are not in
accordance with law. Even as per the prosecution, the alleged occurrence
of rape is said to have taken place within 10 feet from the house of the
victim girl, however, the victim girl has not disclosed about the occurrence
to her parents immediately, and therefore, the occurrence itself is very
doubtful.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
7.The learned counsel for the appellant would further submit
that the victim girl was examined as P.W.2 and she has stated that the
alleged occurrence is said to have taken place on two occasions, i.e. on
18.08.2016 and 03.09.2016, however, the victim girl informed about the
occurrence to her mother (P.W.1) only on 23.09.2016, and thereafter, the
mother (P.W.1) gave a complaint (Ex.P1) to the respondent Police on
23.09.2016 and an FIR was registered on the same day. The Inspector of
Police (P.W.8) is the one who received the complaint on 23.09.2016 at
12.00 p.m., and the accused was arrested by the Police and the place of
arrest is also in doubtful.
8.The learned counsel for the appellant would further submit
there is a dispute between the families of the appellant and the victim girl.
Due to such personal enmity and to take vengeance, the family of the
victim girl have foisted a false case against the appellant and the same was
also put as a suggestion during cross-examination of the prosecution
witnesses. The learned counsel would submit that the prosecution
witnesses are only interested witnesses and there are material
contradictions between the evidence of P.W.1 and P.W.2. Though the
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
mother of the victim girl (P.W.1) gave a complaint (Ex.P1) before the
Police stating that, on two occasions, i.e. on 18.08.2016 and 03.09.2016,
the appellant is said to have committed rape, the victim girl (P.W.2) has
not made any statement about the second incident, dated 03.09.2016,
before the Judicial Magistrate (P.W.5) while recording the statement under
Section 164 Cr.P.C. Moreover, though P.W.1, the mother of the victim
girl, admitted during cross-examination that on the same day of
occurrence, i.e. on 18.08.2016 itself, she came to know about the
occurrence and she also gave a complaint to the Police and the Police have
registered a case, the complaint given on 18.08.2016 has been completely
suppressed by the prosecution.
9.The learned counsel for the appellant would submit further
that the place of occurrence is very nearer to the house of the victim girl
and it is not possible to commit sexual assault in such an open place, that
too, where there is very frequent movement of public. The learned
counsel would further submit that the evidence of the Doctor (P.W.4), who
examined the victim girl, also does not corroborate with the evidence of
the victim girl (P.W.2), and there are material contradictions between the
evidence of the victim girl (P.W.2) and the mother of the victim girl
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
(P.W.1). The learned counsel would submit that the learned Sessions
Judge failed to consider the material contradictions and also the previous
motive between the two families and convicted the appellant only on
assumption and on sympathy, and therefore, the judgment of conviction
and sentence passed by the trial Court against the appellant, is liable to be
set aside.
10.Learned Government Advocate appearing on behalf of the
respondent would submit that, in the complaint (Ex.P1), the offence of
sexual assault on two occasions, i.e. on 18.08.2016 and 03.09.2016, has
been stated. The victim girl (P.W.2), during the deposition before the trial
Court, has clearly narrated about the two incidents and the Doctor (P.W.4)
who has examined the victim girl, has clearly stated that the victim girl
told her that on two occasions, she was subjected to sexual assault by the
appellant. The learned Government Advocate would further submit that,
though the victim girl (P.W.2) has not stated about the second incident in
the statement recorded under Section 164 Cr.P.C. by the learned
Magistrate, that may not be a sole ground to conclude that the evidence of
the victim girl is not trustworthy and the evidence of the victim girl
(P.W.2) can be thrown away. Moreover, the evidence of the Doctor
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
(P.W.4) completely corroborates with the evidence of the victim girl
(P.W.2) that the victim girl was subjected to penetrative sexual assault.
From the evidence of the victim girl (P.W.2), the Doctor (P.W.4) and the
evidence of the learned Magistrate (P.W.5), the prosecution has clearly
established their case beyond reasonable doubt and the victim girl, at the
time of occurrence, was only 15 years old, and the appellant has
committed penetrative sexual assault on the victim girl, and therefore, the
trial Court has rightly convicted the appellant, and the appeal is liable to
be dismissed.
11.Heard the learned counsel on either side and perused the
materials available on record.
12.The case of the prosecution is that the victim girl (P.W.2)
was aged about only 15 years at the time of occurrence, i.e. on 18.08.2016
and 03.09.2016. When the victim girl was returning from the school on
18.08.2016, the appellant threatened her and took her to a secluded place
and committed penetrative sexual assault on the victim girl, and also
threatened her not to reveal it to anyone. However, the victim girl
informed about the same to her mother (P.W.1), who in turn, gave a
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
complaint (Ex.P1) to the respondent Police and the respondent Police filed
a case in Crime No.23 of 2016 against the appellant.
13.After completing the investigation, the respondent Police laid
a charge-sheet before the Mahila Court, Cuddalore, and the same was
taken on file in Spl.S.C.No.19 of 2017, and charges were framed against
the appellant as stated in the foregoing paragraphs of this order.
14.In order to prove the case, on the side of prosecution, as
many as 8 witnesses were examined as P.W.1 to P.W.8, and 10 documents
were marked as Exs.P1 to P10, and no Material Object was exhibited.
15.After completing the prosecution evidence, the incriminating
circumstances culled out from the prosecution witnesses were put before
the appellant, the same was denied as false and pleaded not guilty,
however, on the side of the appellant, no oral or documentary evidence
was produced.
16.After considering the evidence on record and hearing the
arguments advanced on either side, the learned Sessions Judge, vide
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
judgment dated 23.05.2018 in Spl.S.C.No.19 of 2017, convicted and
sentenced the appellant as stated above.
17.This Court, being an Appellate Court, is a fact finding Court,
which has to necessarily re-appreciate the entire evidence and give an
independent finding.
18.The complaint (Ex.P1) has been lodged by P.W.1, who is
none other than the mother of the victim girl. Though she is not an eye-
witness to the occurrence, since the victim girl is a minor as well as a
female, the mother of the victim girl (P.W.1) has filed the complaint
(Ex.P1) before the respondent Police. A reading of the complaint (Ex.P1)
clearly indicates that the appellant committed penetrative sexual assault on
the victim girl on two occasions, i.e. on 18.08.2016 and 03.09.2016.
Further, after registration of the FIR, during the course of investigation,
the victim girl (P.W.2) was produced before the Doctor, who was
examined as P.W.4, and the Doctor (P.W.4) has also deposed in her
evidence that, when the victim girl was produced before her for clinical
examination, the victim girl told her that, on two occasions, she was
subjected to penetrative sexual assault by the appellant. The evidence of
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
the Doctor (P.W.4) and also the Medical Report of the victim girl (Ex.P4)
indicate that there are possibilities of sexual assault and the hymen of the
victim girl was also not intact. Therefore, the evidence of the Doctor
(P.W.4), coupled with the Medical Report (Ex.P4), confirms that the
victim girl was subjected to penetrative sexual assault.
19.The main defence taken by the learned counsel for the
appellant is that there is a previous enmity between the families of the
appellant and the victim girl and he has also put an effective suggestion to
that effect before the prosecution witnesses during trial. However, it has
not been established by the defence that, due to such enmity, the victim
girl has gone to the extent of making a false complaint before her mother
and the mother without verifying the same, has made a complaint (Ex.P1)
before the respondent Police. Further, merely because of some dispute
between the two families, the victim girl, aged about only 15 years, would
not have sacrificed her life to take vengeance on such enmity by giving a
false complaint against the appellant. Moreover, the evidence of the
Doctor (P.W.4) clearly indicates that the victim girl was subjected to
penetrative sexual assault. The appellant has also not examined any
witness on his side to establish that, due to enmity, a false case was
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
registered against him. Even though the appellant need not come to the
witness box and establish his defence, when the evidence of the
prosecution witnesses and the medical report proved that the appellant has
committed the offence, there is presumption under Section 29 of the
POCSO Act. It is the duty of the accused to rebut the presumption,
especially under the POCSO Act, and the presumption has to be rebutted
by the accused, however, in this case, the same has not been done by the
appellant in the manner known to law.
20.The other defence taken by the learned counsel for the
appellant is that the earlier complaint given by the mother of the victim
girl was suppressed by the Police and the mother of the victim girl
(P.W.1), in her evidence, has stated about only one occurrence, and that
there was a love affair between the appellant and the victim girl.
Admittedly, the victim girl was only 15 years at the time of occurrence.
Therefore, even assuming that due to infatuation, the victim girl has given
consent, then also, the offence falls under the POCSO Act. Such consent
is not valid under law. The victim girl (P.W.2) has clearly stated in her
evidence that the appellant had committed penetrative sexual assault on
her on 18.08.2016 under threat, and subsequently on 03.09.2016 also
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
under threat, and thereafter, she informed to her mother about the
occurrence. Though the victim girl has not stated about the second
incident before the Judicial Magistrate during recording of statement
under Section 164 Cr.P.C., that cannot be a sole ground to disbelieve the
evidence of the victim girl and doubt the trustworthiness of her evidence.
Though the victim girl has not stated about the second incident before the
Judicial Magistrate, she has stated about both the incidents before her
mother, who, in turn, stated about the same in her complaint (Ex.P1). The
evidence of the Doctor (P.W.4) also clearly states that the victim girl told
her that she was subjected to penetrative sexual assault on two occasions.
Even assuming that the occurrence has happened on only one occasion,
from the evidence of the victim girl (P.W.2), and the evidence of the
Doctor (P.W.4), coupled with the medical report (Ex.P4), it is clear that
the victim girl has been subjected to penetrative sexual assault. Therefore,
mere non-mentioning of the second incident by the victim girl while
recording statement under Section 164 Cr.P.C. cannot be a sole ground to
disbelieve the evidence of the victim girl. Therefore, the said contention
raised by the learned counsel for the appellant is not acceptable.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
21.Further, even though there are contradictions between the
evidence of the prosecution witnesses, P.W.1 and P.W.2, considering the
object of the POCSO Act, this Court is of the view that the contradictions
pointed out by the learned counsel for the appellant are not material
contradictions to disbelieve the case of the prosecution, but only minor
contradictions with regard to the place of occurrence, and that will not
vitiate the case of the prosecution. The allegation against the appellant is
that, when the victim girl, who was aged only 15 years, was returning from
school, the appellant threatened her and took her to a secluded place and
committed penetrative sexual assault on her, and thereafter, it was brought
to the knowledge of the mother of the victim girl, and she lodged a
complaint before the respondent Police and the respondent Police
registered a case, investigated the matter and laid a charge-sheet, and in
order to prove the case, the prosecution examined 8 witnesses and out of
the 8 witnesses, the victim girl was examined as P.W.2 and she has
narrated about the occurrence and she clearly stated that she was subjected
to penetrative sexual assault on two occasions and the appellant is the one
who has committed the offence.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
22.Further, the evidence of the Doctor (P.W.4) clearly shows
that the victim girl, who was a minor aged only 15 years, was subjected to
penetrative sexual assault and the learned Magistrate (P.W.5), who
recorded the statement of the victim girl under Section 164 Cr.P.C., has
stated in her evidence that the victim girl was produced before him and
she observed that she was giving the evidence without any fear and she
was giving the statement voluntarily. The evidence of the Judicial
Magistrate (P.W.5) reveals that the victim girl was subjected to penetrative
sexual assault and the victim girl named the appellant who committed the
penetrative sexual assault. Therefore, on a perusal and consideration of
the evidence of the victim girl (P.W.2), the Doctor (P.W.4), the Judicial
Magistrate (P.W.5), the complaint (Ex.P1), the statement of the victim girl
recorded under Section 164 Cr.P.C. (Ex.P2) and the Medical Report of the
victim girl (Ex.P4), the school certificate of the victim girl (Ex.P5) which
shows that at the time of the occurrence, the victim girl was only 15 years
old, and all other oral and documentary evidence on record, this Court
finds that the prosecution has proved its case beyond reasonable doubt that
the appellant has committed penetrative sexual assault on the victim girl,
who was a minor aged 15 years at the time of the occurrence, and
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
therefore, POCSO Act would attract against the appellant. Even assuming
that the victim girl stated before the Judicial Magistrate that the appellant
has committed the penetrative sexual assault on the victim girl on only one
occasion and date of occurrence is between 18.08.2016 and 03.09.2016, in
the complaint, it is stated that the appellant twice committed penetrative
sexual assault. The mother of the victim girl clearly stated that her
daughter told that the appellant committed the offence on two occasions.
P.W.4 – Doctor also stated that the appellant committed the offence on
two occasions. Complaint was given on 23.09.2016. Doctor examined
the victim child on 06.10.2016, whereas, the victim child was produced
before the Judicial Magistrate only on 18.11.2016 for the statement
recorded under Section 164 Cr.P.C. which is not substantive evidence.
However, the victim has deposed before the trial Court, while examining
as witness, that the appellant on two occasions has committed penetrative
sexual assault. The Doctor's evidence also corroborated the same.
Medical report also supports the same and the matter of fact that the victim
girl, aged only 15 years, was subjected to penetrative sexual assault under
threat and coercion by the appellant.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
23.Though the learned counsel for the appellant would submit
that the evidence of the Doctor (P.W.4) would clearly state that there are
no external injuries on the private parts of the victim girl at the time of
examination and he has also put a suggestion as to the possibility of the
breaking of hymen due to some other reasons, that itself does not establish
the defence, because, the Doctor (P.W.4) has examined the victim girl
only after more than 20 days from the date of occurrence, and therefore,
the appearance of external injuries or semen cannot be expected. It is also
not the case of the prosecution that the victim girl was produced before the
Doctor on the same day of occurrence, for examination. It is also very
clear from the evidence of the victim girl that, due to threat, she did not
reveal about the occurrence immediately. Therefore, under these
circumstances, where the offence under POCSO Act is very well
established, this Court has no hesitation to consider the evidence of the
victim girl alone, and it cannot expect any corroborative evidence or eye-
witness or any other independent witness. In cases of this nature, presence
of eye witnesses are mostly improbable. If the evidence of sole witness is
cogent, credible and trustworthy, conviction is permissible. Admittedly,
in this case, the victim girl has clearly narrated before the trial Court as
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
well as before the Doctor who examined her that she was subjected to
penetrative sexual assault twice and the appellant is the one who had
committed the penetrative sexual assault on her, and the said evidence is
also corroborated by the medical evidence of the Doctor (P.W.4).
24.It is relevant to extract relevant provisions of POCSO Act :
Section 3(a) of the POCSO Act reads as follows :
“3.A person is said to commit ''penetrative
sexual assault'' if -
(a) he penetrates his penis, to any extent, into
the vagina, mouth, urethra or anus of a child or makes
the child to do so with him or any other person;”
Section 5(l) of the POCSO Act reads as follows :
“5.Aggravated Penetrative Sexual Assault and
Punishment therefor :
(l) whoever commits penetrative sexual assault
on the child more than once or repeatedly;”
Section 6 of the POCSO Act reads as follows :
“6.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.”
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
25.Under these circumstances, this Court can safely come to the
conclusion that the appellant has committed aggravated penetrative sexual
assault on the victim girl and therefore, the prosecution has established its
case beyond reasonable doubt. In the light of the above discussion, this
Court does not find any merit in this appeal and the appeal is liable to be
dismissed.
26.Accordingly, this Criminal Appeal is dismissed and the
judgment of conviction and sentence passed by the trial Court is
confirmed.
27.The trial Court is directed to secure the accused and commit
him to prison to undergo the remaining sentence. Bail bond executed by
the appellant, if any, shall stand canceled.
09.02.2021
mkn
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
To
1.The Sessions Judge,
Mahila Court,
Cuddalore.
2.The Inspector of Police,
All Women Police Station,
Virudhachalam District.
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
https://www.mhc.tn.gov.in/judis/
Crl.A.No.56 of 2019
P. VELMURUGAN, J.
mkn
Crl.A.No.56 of 2019
09.02.2021
https://www.mhc.tn.gov.in/judis/
