Madras High Court

Pechimuthu vs State By on 9 February, 2021

                                                                                    Crl.A.No.777 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 09.02.2021

                                                          CORAM

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                             Criminal Appeal No.777 of 2019


                   Pechimuthu                                      ... Appellant/Single Accused


                                                            Vs.

                   State by
                   The Inspector of Police,
                   Madipakkam All Women Police Station,
                   Madipakkam,
                   Chennai – 600091.
                   (Crime No.15 of 2016)                           ... Respondent/Complainant

                              Criminal Appeal is filed under Section 374(2) of Cr.P.C., to allow the
                   appeal and set aside the conviction and sentence imposed upon the appellant
                   vide judgment dated 02.11.2019 in Spl.C.No.22 of 2017 on the file of the
                   Sessions Judge Mahila Court, Chengalpattu and acquit the appellant and
                   direct the trial Court to refund the fine amount in the interest of justice.

                                          For Appellant      : Mr.G.V.Sridharan

                                          For Respondent     : Mr.R.Suryaprakash
                                                               Government Advocate




https://www.mhc.tn.gov.in/judis/
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                                                                                   Crl.A.No.777 of 2019

                                                     JUDGEMENT

This Criminal Appeal has been filed against the Judgment of

conviction and sentence imposed by the learned Sessions Judge, Mahila

Court, Chengalpattu in Spl.C.No.22 of 2017 dated 02.11.2019.

2. The respondent-Police have registered a case against the appellant

in Crime No.15 of 2016 for the offence under Section 8 of the POCSO Act,

2012. After the investigation, the offence was altered from Section 8 to

Section 10 of the POCSO Act, 2012 and a charge sheet was filed before the

Sessions Judge Mahila Court, Chengalpattu. Since the offence against the

children falls under the POCSO Act, the learned Sessions Judge, after taking

a charge sheet on file in Spl.C.No.22 of 2017, completed the formality and

framed the charges. After the completion of trial, the Trial Court convicted

the appellant for the offence under Section 10 of the POCSO Act, 2012 and

sentenced him to undergo rigorous imprisonment for five years and also to

pay fine of Rs.5,000/- in default to undergo simple imprisonment for three

months. Challenging the said judgment of conviction and sentence passed

by the Sessions Judge, the accused has filed the present appeal before this

Court.

https://www.mhc.tn.gov.in/judis/

Crl.A.No.777 of 2019

3. The learned counsel for the appellant would submit that due to the

personal enmity of the mother of the victim girl with the appellant, a false

case was foisted against the appellant and even though the prosecution did

not prove their case beyond all reasonable doubts, the appellant was simply

convicted only on the ground of sympathy. He would further submit that no

opportunity was given to the appellant to cross-examine mother of the

victim girl (P.W.1) and the victim girl (P.W.2), which was very vital for the

appellant. He further stated that at 1.30 pm, the victim girl might have gone

to the school and it is not possible for her to go to the appellant's shop and

there is no eye witness other than (P.W.2). P.W.3 and P.W.4 are not the eye

witnesses, they have seen the mother and the victim girl only at 5.00 clock

when the mother of the victim girl went to the appellant's shop. Further, he

would submit that the victim girl was subjected to the medical examination

and there is no corroborated evidence. As the appellant was not given the

opportunity to cross examine, the judgment of the Trial Court has to be set

aside on the ground of denial of opportunity.

4. The learned Government Advocate appearing for the respondent

would submit that the victim girl was aged only about 10 years, studying in

5th Std and was examined as (P.W.2). She has clearly narrated the https://www.mhc.tn.gov.in/judis/

Crl.A.No.777 of 2019

occurrence that at the time of the incident, her mother was not in the house

as she went out to her job and when she returned to home, the victim girl

informed her about the occurrence. Thereafter, the mother of the victim girl

made a complaint before the respondent-Police and the Police filed a charge

sheet. On the side of the prosecution, 11 witnesses were examined as P.W.1

to P.W.11 and 7 documents were marked as Ex.P1 to Ex.P7 and the charge

against the appellant under Section 10 of the POCSO Act was proved

beyond all reasonable doubts. On the date of occurrence, there was an

annual holiday in the school of the victim girl, therefore, she did not go to

the school and when she went to the appellant's shop for buying snacks, the

appellant called her into his shop and misbehaved with her. Proper

opportunity was given to the appellant but he has not cross-examined the

victim girl and her mother. Subsequently, he filed the petition in March,

2019 and the same was dismissed by the Trial Court. Thereafter, he

challenged the said order before this Court and this Court has also

confirmed the order of the Trial Court. Since sufficient opportunity was

given to the appellant and he has not cross-examined P.W.1 & P.W.2, the

prosecution has proved their case beyond all reasonable doubts. As there

was no penetrative sexual intercourse, the victim girl was not subjected to a

medical examination. Therefore, non-producing the victim girl for the https://www.mhc.tn.gov.in/judis/

Crl.A.No.777 of 2019

medical examination before the medical practitioner is not fatal and the Trial

Court has rightly considered the same. Therefore, there is no merit in the

case and the same is liable to be dismissed.

5. Heard the learned counsel on either side and perused the materials

available on record.

6. The case of the prosecution is that the victim girl (P.W.2) was aged

only about 10 years and the appellant was running a grocery shop. On

01.06.2016, there was an annual holiday for the victim girl and her parents

were not in the house. When the victim girl went to the appellant's shop for

purchasing snacks, the appellant invited her into his shop and pressed her

chest. Immediately, the victim girl pulled down his hand and escaped from

there. At about 5.30 pm, when her mother returned to home, she informed

the same to her, who in turn, went to the appellant's shop along with the

victim girl and shouted at him. On hearing the noise, P.W.3 & P.W.4 have

also come. Thereafter, the mother filed a complaint (Ex.P1) against the

appellant before the respondent-Police and the Police registered a case in

Crime No.15 of 2016 against the appellant and investigated the matter.

After investigation, the Police have filed a charge sheet before the Trial https://www.mhc.tn.gov.in/judis/

Crl.A.No.777 of 2019

Court and the Trial Court has framed charges against the appellant for the

offence punishable under Section 10 of the POCSO Act, 2012. On the side

of the prosecution, as many as 11 witnesses were examined from P.W.1 to

P.W.11 and 7 documents were marked as Ex.P1 to Ex.P7. After completing

the prosecution evidence, the incriminating circumstances culled out from

the prosecution witnesses were put before the appellant, he denied the same

as false. However, on the side of the appellant, no oral or documentary

evidence was produced. After considering the evidence on record and

hearing on either side, the learned Sessions Judge, by judgment dated

02.11.2019 in Spl.C.No.22 of 2017, convicted and sentenced the appellant

as stated above. Challenging the judgment of conviction and sentence, the

present appeal has been preferred by the appellant.

7. 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.

8. On a careful perusal of the entire materials and records placed

before this Court, this Court finds that the complaint (Ex.P1) has been

lodged by P.W.1, who is none other than the mother of the victim girl. https://www.mhc.tn.gov.in/judis/

Crl.A.No.777 of 2019

Though she is not an eye-witness to the occurrence, since the victim is a

female child, the mother of the victim girl (P.W.1) has filed the complaint

(Ex.P1) before the respondent Police. The victim girl (P.W.1) has clearly

narrated the occurrence in her statement given to the Police under Section

161 Cr.P.C. as well as to the learned Judicial Magistrate, Tambaram under

Section 164(5) Cr.P.C (Ex.P2). At the time of incident, the victim girl was

aged about 10 years and was studying in 5th Std. After the complaint was

registered, the respondent-Police has taken steps to record the statement of

the victim girl and the litigant was also produced before the Judicial

Magistrate for the statement under Section 164 Cr.P.C. of the victim girl.

9. On reading the evidence of the victim girl (P.W.2) and the

statement recorded under Section 164 Cr.P.C, it is apparent that the

appellant has committed such an offence. In case of this nature, presence of

eye witnesses are mostly improbable. Moreover, culprits naturally waiting

for the chance of loneliness of the children and they will take advantage of

the situation and when nobody sees them, then they indulge in such type of

offence. This case is also one amongst it. If the evidence of sole witness is

cogent, credible and trustworthy, conviction is permissible.

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Crl.A.No.777 of 2019

10. On the date of occurrence i.e. on 01.06.2016, there was an annual

holiday to the victim girl and hence, she was in the house. It is the

submission of the learned counsel for the appellant that on the date of

occurrence at about 1.30 pm, the victim girl must be in the school and it is

not possible for her to come at that time in the shop, but the appellant has

not established that on that day, the school was running and the victim girl

went to the school. In view of this, the contention of the appellant is not

acceptable. As far as the submission regarding the personal enmity is

concerned, the records reveals that on the date of chief examination i.e. on

09.01.2018 of mother of the victim girl (P.W.1), the defence counsel has not

cross-examined both P.W.1 & P.W.2 and sought time but the Court has

rejected the same and subsequently, he has not cross-examined various other

witnesses namely P.W.9, P.W.10 and P.W.11. Thereafter, the application

filed by him under Section 311 of Cr.P.C., in Crl.M.P.No.152 of 2019

before the Trial Court was dismissed by its order dated 13.03.2019 and the

same was challenged by him before this Court in Crl.O.P.No.11601 of 2019.

This Court has also confirmed the order passed by the Trial Court and

dismissed the petition. Therefore, now it shows that even after giving

sufficient opportunity, the appellant has not cross-examined the witnesses.

Further, as the case comes under the POCSO Act, the witnesses should be https://www.mhc.tn.gov.in/judis/

Crl.A.No.777 of 2019

cross-examined on the same day itself in order to protect the victim girl.

Even the application for recall of witnesses was filed one year after closing

the trial and the same was dismissed. It is relevant to refer Section 35 of

POCSO Act, which reads as follows:-

“35.(1) The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any shall be recorded by the Special Court.