Madras High Court
Ebi @ Ebinesar vs The State Rep. By on 9 February, 2021
Crl.A.No.742 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.742 of 2019
Ebi @ Ebinesar ... Appellant
Vs.
The State Rep. by
Inspector of Police
Neravy Police Station,
Karaikal. ... Respondent
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside
the Judgment and Conviction passed by the learned Special Judge, District and
Sessions Court, Karaikal in Special Sessions Case No.2 of 2018, dated 23.08.2019.
For Appellant : S.Sounthar
For Respondent : Mr.D.Bharatha Chakravarthy
Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed against the Judgment of Conviction
and Sentence, dated 23.08.2019 made in Special S.C.No.2 of 2018, by the
learned Special Judge, District and Sessions Court, Karaikal.
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2. The respondent-police has registered a case against the appellant for
the offence under Section 4 of Protection of Children from Sexual Offences Act,
2012 (for brevity “the POCSO Act”). After investigation, laid a charge sheet
before the learned Special Judge, District and Sessions Court, Karaikal. The
learned Judge, framed charges against the appellant for the offence punishable
under Section 4 of POCSO Act and conducted the trial.
3. After considering the evidence on record and hearing on either side,
the learned Judge, by Judgment dated 23.08.2019, convicted the appellant for
the offence punishable under Section 4 of POCSO Act and sentenced him to
undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.5,000/- in
default to undergo six months Simple Imprisonment.
4. Aggrieved against the Judgment of conviction and sentence, dated
23.08.2019, the appellant / accused has preferred the present Criminal Appeal
before this Court.
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5. The learned counsel for the appellant would submit that there are
material contradictions in the evidence of P.W.1 and P.W.2. P.W.1 is the
mother of the victim girl, P.W.2 is the victim. P.W.1, in her evidence, deposed
that when she was admitted as an inpatient in Vinyama Mission Hospital, the
appellant came to hospital to meet her (P.W.1) and she had only sent her
daughter (P.W.2) along with the appellant to go to her residence and at that
time, the appellant had forcibly took her (P.W.2) to hidden place and
undergone penetrative sexual intercourse with her daughter and after one
month, when her daughter did not attain mensuration, she (P.W.2) revealed
entire the occurrence to her (P.W.1). It is further stated that she (P.W.1) has
brought her daughter (P.W.2) to the Hospital for medical examination, and
thereafter, abortion took place, whereas, P.W.2-victim girl during her evidence
had stated that she did not undergo any medical examination with regard to
pregnancy test, and her mensuration was normal. Therefore, there is no
trustworthy in their evidence, and the prosecution has not proved its case
beyond reasonable doubt. Even, P.W.8-doctor during her evidence deposed that
the victim girl was not subjected to sexual intercourse. It is further submitted
that there was earlier dispute between the family of P.W.2 and the appellant
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due to which, there was an enmity between them and therefore, there is a
motive for P.W.1 to foist a false case against the appellant. However, the
learned Judge, without considering the material contractions, convicted the
appellant, which warrants interference.
6. The learned Government Advocate would submit that P.W.2-victim
girl, in her evidence, has clearly stated that the appellant had committed a
penetrative sexual intercourse and she had informed the occurrence to her
mother-P.W.1, when she (P.W.1) returned to home from the Hospital. Though
P.W.2-victim girl has stated that her mensuration was normal, P.W.1-mother of
the victim girl has stated that the victim did not attain her mensuration and she
was pregnant due to sexual intercourse of the accused, however, P.W.2-victim
girl, in her evidence has clearly deposed that the appellant had forcibly taken
her (P.W.2) to a secluded place and undergone penetrative sexual intercourse
with her. However, it is contended by the learned Government Advocate that
the contractions pointed out by the learned counsel for the appellant are only
minor contractions and the same will not go to the route of the case of the
prosecution. P.W.8-Doctor had also on her physical examination found that the
hymen was not intact and she ha given Ex.P10 report to that effect. Further,
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P.W.9-Doctor, in her evidence deposed that she examined the accused and
there is nothing to suggest that the accused/appellant is not capable of
performing sexual act and she has issued Ex.P10-report to that effect. 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.
7. Heard the learned counsel on either side and perused the materials
available on record.
8. The case of the prosecution is that when P.W.2-the mother of the
victim girl was admitted for treatment in Vinayaka Mission Medical College
Hospital as an inpatient, the appellant/accused came to see P.W.1 and at that
time, P.W.1 sent her daughter-P.W.2 along with the accused and while, they
were on the way to home, the accused had taken the victim to a forest area
situated at Akkarivattam, and he removed her (P.W.2) pant and had sexual
intercourse and thereafter, he dropped P.W.2 at her house. After two months
P.W.1 was discharged from hospital and when she questioned P.W.2, as to why
she did not attain mensuration, P.W.2 reported about the occurrence.
Thereafter, P.W.2 has taken P.W.1 to hospital and child help line and on the
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advise of member in the child help line, she (P.W.2) filed Ex.P1-complaint
before the respondent-Police. Based on which, the respondent-Police,
registered a case against the appellant for the offense punishable under Section
4 of POCSO Act. Subsequently, the Investigation Officer, investigated the matter
and laid a charge sheet before the learned District and Sessions Judge, Karaikal.
9. In order to prove the case of the prosecution, 11 witnesses were
examined as P.W.1 to P.W.11 and 17 documents were marked as Exs.P1 to P17
and 5 Material Objects were exhibited as M.O.1 to M.O.5. After completion of
the examination of the prosecution witnesses, the incriminating circumstances
culled out from the prosecution witnesses were put before the appellant, the
same were denied false and on the side of the defence, neither witness, nor
evidence. The learned District and Sessions Judge, Karaikal, after hearing the
arguments on either side and considering all the materials placed on record,
found that the accused/appellant is guilty and awarded punishment, as referred
above, which is challenged in this Criminal Appeal.
10. Since this Court is an Appellate Court and also final Court of fact
finding, has to re-appreciate the entire evidence and come to the conclusion
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independently. A reading of the evidence of the victim girl-P.W.2, before the
trial Court, she has clearly deposed that when her mother was admitted in the
Vinayaka Mission Medical College Hospital as an inpatient, the accused came to
see her mother and her mother (P.W.1), asked the accused to drop her (P.W.2)
in her house and during that time, the accused had forcibly taken her (P.W.2) in
a secluded place in the forest area situated at Akkariavattam, and removed her
pant and had undergone sexual intercourse, and left her in the home. She
further deposed that she did not reveal the occurrence any one and when her
mother (P.W.2) returned to home, she (P.W.2) informed the occurrence to her
mother (P.W.1), and thereafter, she (P.W.1) made a complaint before the
respondent-Police. During the investigation, the victim girl was produced
before the learned Magistrate for recording statement under Section 164 of
Cr.P.C.. The statement recorded by the learned Magistrate under Section 164
of Cr.P.C., was marked as Ex.P4.
11. The mother of the victim girl was examined as P.W.1, in her
evidence, she had clearly deposed that when she was admitted in the hospital,
the accused came to meet her (P.W.1) and she (P.W.1) sent the victim girl
(P.W.2) along with the accused to go to home and at that time, the accused
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took her to hidden place in the forest area and had undergone penetrative
sexual intercourse. When she (P.W.1), returned to home, she has noticed P.W.1
did not attain mensuration, and when (P.W.1) questioned her daughter (P.W.2),
she (P.W.2), revealed the entire occurrence and thereafter, she (P.W.1) has
taken her daughter (P.W.2) to the hospital and child help line and on the
instructions of member in the Child Help Line, gave Ex.P1-complaint before the
respondent-Police. The doctor, who treated the victim girl was examined as
P.W.8 and in her evidence, she has clearly stated that the hymen was not intact
and she has given Ex.P10 report to that effect. A perusal of statement, which
was recorded under Section 164 of Cr.P.C., also, it could be seen that the victim
girl had narrated the entire occurrence.
12. In the case like this, the Court cannot expect independent eyewitness
or witnesses, because, culprits take the chance of loneliness of the victims, and
they would commit these type of offences. In the case on hand, after the
occurrence, when the victim girl informed to her mother and the mother, who
was examined as P.W.2 has corroborated the evidence of her daughter P.W.1,
during her evidence. The date of birth of the victim girl is 16.01.2002 and the
alleged occurrence is said to have occurred on 05.05.2017 and at the time of
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occurrence, the age of the victim girl is only 15 years. Ex.P15 is the birth
certificate of the victim girl. Section 4 of POCSO Act, prescribes punishment for
penetrative sexual assault, whoever commits penetrative sexual assault shall be
punished with imprisonment of either description for a term which shall not be
less than seven years but which may extend to imprisonment for life, and shall
also be liable to fine. In the case on hand, the victim was aged about 15 years,
at the time of occurrence. P.W.2-mother of the victim girl and P.W.1-victim
have clearly deposed the entire occurrence, which was also supported by the
evidence of P.W.8-doctor. Therefore, the learned Judge rightly held that the
offence committed by the accused would fall under Section 3 of POCSO Act,
which is punishable under Section 4 of the POCSO Act.
13. The other contention of the learned counsel for the appellant is that
the evidence of the doctor, who examined the victim girl has filed Ex.P10 report
stating that she did not find any recent sexual injuries and as such, the
evidence of P.W.8 doctor was also not supported the case of the prosecution.
P.W.2 in her evidence has clearly stated that the accused took her to forest
area and removed her panties and had undergone penetrative sexual
intercourse. A combined reading of the evidence of P.W.2, victim girl and also
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Ex.P10-report of P.W.8, doctor, wherein, she had clearly stated that on
examination of the victim girl, she found that the hymen was not intact, and
therefore, the learned Judge, had rightly come to the conclusion that the
appellant had committed an offence punishable under Section 4 of POCSO Act.
14. Yet another contention of the learned counsel for the appellant is
that there are material contractions in the deposition of the victim girl and
mother of the victim girl, regarding the pregnancy and termination. During
cross-examination, P.W.1, the mother of the victim girl, has stated that
abortion took place for her daughter (P.W.2), and however, P.W.2-during her
evidence, has stated that she did not undergo any medical examination with
regard to pregnancy test, and her mensuration was normal. 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 evidence
of the victim girl with regard to penetrative sexual intercourse is clearly proved.
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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15. The last contention of the learned counsel for the appellant is that
there was a motive to foist a false case against the appellant. In this case, there
is no reason to disbelieve or disregard the evidence of the victim girl. Further,
there was no necessity to foist such a false serious case against the appellant by
spoiling the future of the P.W.2-victim girl. It is pertinent to mention here that
parent of the victim girl need not say all these things and also the parent of the
victim girl will not spoil the future of the victim girl for any flimsy reason.
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, corroboration of witness is necessary, whereas, offence under POCSO
Act, the evidence of the victim girls are sufficient and the Court cannot expect
the eyewitness, since it is not the case of the prosecution that the offense had
taken in the presence of some other eye witnesses. Further, the defense has
not established that for which specific 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.
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16. A perusal of the statement recorded under Section 164 of Cr.P.C.,
and the evidence of P.W.2- victim girl, it could be seen that the accused had
taken the victim girl into secluded place and had undergone penetrative sexual
intercourse. Therefore, this Court finds that there is no reason to discard or
disbelieve the evidence of P.W.2 victim girl, and there is no doubt about the
trustworthiness of the victim girl and under the circumstances, the victim girl
aged about 15 years, and she cannot be tutored by the prosecution for these
type of offences.
17. Therefore, under the said 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 the learned District and Sessions
Judge, Karaikal. Therefore, this Court does not find any merit in the Appeal and
the Appeal is liable to be dismissed. Accordingly, the Criminal Appeal is
dismissed.
09.02.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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Crl.A.No.742 of 2019
To
1.The Special Judge [District and Sessions Court],
Karaikal.
2.The Inspector of Police
Neravy Police Station,
Karaikal.
3.The Public Prosecutor,
Madras High Court, Chennai.
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Crl.A.No.742 of 2019
P.VELMURUGAN, J.
rns
Crl.A.No.742 of 2019
09.02.2021
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