Madras High Court

Karthick vs State on 10 February, 2021

                                                                                Crl.A.No.580 of
                                                          2019

                                IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 10.02.2021

                                                        CORAM

                                THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                             CRL.A.No.580 of 2019 and
                                             Crl.M.P.No.12777 of 2019

                      Karthick                                                  .. Appellant

                                                          .Vs.

                      State, Rep. by
                      Inspector of Police,
                      All Women Police Station,
                      Denkanikottai,
                      Krishnagiri District.
                      (Cr.No.6/2018)                                           .. Respondent



                             Criminal Appeal filed under Section 374 (2) of the Code of Criminal
                      Procedure to call for the orders passed in Spl.S.C.No.32 of 2018 dated
                      06.08.2019 by the learned Sessions Judge, Fast Track Mahila Court,
                      Krishnagiri and set aside the same and thereby allow the Criminal
                      Appeal.

                             For Appellant      :       Mr.T.Sundaravadanam
                             For Respondent     :       Mr.R.Suryaprakash
                                                        Government Advocate




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                                                                                         Crl.A.No.580 of
                                                               2019


                                                       JUDGMENT

This Criminal Appeal has been filed by the sole accused against the

Judgment passed by the learned Sessions Judge, Fast Track Mahila

Court, Krishnagiri, in Spl.S.C.No.32 of 2018, dated 06.08.2019.

2. Originally, the respondent police registered a case against the

appellant/accused in Crime No.6 of 2018 for the offences punishable

under Sections 7 r/w 8 of the Protection of Children from Sexual Offences

Act, 2012 (in short 'POCSO Act.) and investigation, laid charge sheet

before the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri

and the same was taken on file in Spl.S.C.No.32 of 2018. After trial, the

learned Sessions Judge, found the appellant/accused guilty of the offence

punishable under Section 7 r/w 8 of the Protection of Children from

sexual offence Act 2012 and convicted and sentenced his as under:

Conviction Sentence U/s. 7 r/w 8 of the Protection of Children from Sexual 3 years R.I and fine of Offence Act, 2012. Rs.1,000/- in default to undergo R.I. for 1 month.

Aggrieved against the same, the accused is before this Court by filing this http://www.judis.nic.in

Crl.A.No.580 of

Appeal.

3. The learned counsel for the appellant would submit that no

ingredients for the offence under Sections 7 r/w 8 of the Protection of

Children from Sexual Offences Act, 2012 were made out; that the alleged

occurrence is said to have taken place on 23.03.2018, whereas, the

complaint was given only on 15.04.2018, with a delay of 23 days and

there is no proper explanation given for the delay in filing the F.I.R. He

would further submit that the witnesses examined by the prosecution viz.,

P.W.2-elder brother of the victim, P.W.3-father of the victim and P.W.4-

mother of the victim are only blood relatives and they are interested

witnesses and no independent witnesses were examined in this case. The

learned counsel also submitted that in the statement recorded from the

victim under Section 161 of Cr.P.C., the victim has not spoken about the

alleged offence.

4. He would further submit that there is no corroborating evidence

and the place of occurrence has not been specifically given; that in

support of their case, the prosecution has not produced either the birth

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Crl.A.No.580 of

certificate or any other document for the age proof of the victim girl and

there is a contradiction between the evidence of P.W.1, P.W.3 and P.W.4

regarding the number of cattles and goats grazing. He would further

submit that the brother of the victim girl was not in the scene of

occurrence on the alleged date and he was working in the company at

Anekal and he used to visit the village once in 15 days, which was

deposed by P.W.2-brother of the victim himself. He would further

submit that the delay in lodging the complaint itself shows that no such

occurrence had taken place and only due to previous enmity, in order to

take vengeance, a false complaint has been given against the appellant. It

is further submitted that the father of the victim has not given any

complaint before the police and only after fifteen days, the complaint was

given before the District Collector which is against law. He would further

submit that the statement recorded under Section 164 Cr.P.C. does not

contain the fact that the appellant had touched the victim girl and now the

victim girl is married and settled in life and the learned trial judge failed

to appreciate the evidence and simply convicted the accused out of

sympathy towards the victim, which warrants interference.

5. The learned Government Advocate (Crl.side) would submit that

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on the date of occurrence, the victim girl along with her brother went for

grazing the cattles and when her brother went to fetch drinking water,

the victim was grazing cattles alone and by that time, the appellant came

to that place, pulled her hand by saying that he was in love with her for

three years and therefore, he cut his hand and when the brother of the

victim girl came, the accused immediately ran and escaped by saying that

if she informs about the said incident to her parents, he will kill her and

therefore, the victim informed about the incident to his brother. He would

further submit that on reaching their village, the victim and his brother

informed about the incident to their parents, who went to the village head

and complained about the behavior of the appellant and thereafter, when

the village head went to the house of the appellant and enquired about the

incident with his parents, they told that whatever they want to do, they

can do and therefore, left with no other option, the father of the victim girl

lodged the complaint before the respondent police. He would further

submit that the respondent police investigated the matter; laid charge

sheet and the same was taken on file by the learned Sessions Judge, Fast

Track Mahila Court, Krishnagiri, in Spl.S.C.No.32 of 2018. He would

further submit that the Court below, by considering the overall evidence,

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has come to the conclusion that the victim was aged about 16 years at

the time of occurrence and the prosecution has established its case

beyond reasonable doubt and thereafter, convicted the accused. He

would further submit that since the only allegation is that the accused

pulled the hands of the victim, no occasion arose for producing the victim

girl before the Doctor for medical examination. He would further submit

that the learned Sessions Judge rightly considered all the aspects and

convicted the accused which does not warrant any interference by this

Court.

6. Heard both sides. Perused the records.

7. The case of the prosecution is that on 23.03.2018 at about 2.30

P.M., the victim girl along with her brother went for grazing the cattles

and when her brother went to fetch drinking water, the victim was

grazing cattles alone and by that time, the appellant came to that place,

pulled her hand by saying that he was in love with her for three years and

therefore, he cut his hand and thereafter, when the brother of the victim

girl came to the scene, the accused immediately ran and escaped by

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saying that if she informs about the said incident to her parents, he will

kill her and therefore, the victim informed about the incident to his

brother. He would further submit that on reaching their village, the

victim and his brother informed this incident to their parents, who went to

the village head and complained about the appellant and his behaviour

and thereafter, when the village head went to the house of the appellant

and enquired about the incident with his parents, they told that whatever

they want to do, they can do and therefore, left with no other option, the

father of the victim girl lodged the complaint before the respondent

police. He would further submit that the respondent police investigated

the matter and laid charge sheet and the same was taken on file.

8. In order to prove the case of the prosecution before the trial

Court, on the side of the prosecution, as many as 7 witnesses were

examined as P.W.1 to P.W.7 and 10 documents were marked as Exs.P1

to P10 and no one witness was examined on the side of the appellant and

no document was marked.

9. In order to substantiate the case of the prosecution, the victim

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girl was examined as P.W.1 and a reading of the deposition of P.W.1

shows that the victim girl has clearly narrated the fact that on 23.03.2018

at about 2.30 P.M., she went along with her brother for grazing the

cattles and when her brother left the place for fetching the drinking water,

the appellant came there and pulled her hand by saying that for the past

three years, he was in love with her and therefore, he cut his hand and

asked her to come with him. Thereafter, the brother of the victim girl

came to that place and on seeing him, the accused ran away from the

scene of occurrence. The victim girl informed about the said incident to

her brother and after going to their village, both of them informed the said

fact to their parents and their parents immediately informed about the

same to their village head and when their village head enquired about the

incident to the appellant's parents, they told him that whatever he can do,

he can do it and therefore, left with no other option, the victim's father

gave a complaint before the police and in that process, there was a delay

in lodging the complaint and therefore, the contention of the learned

counsel for the appellant that the delay in giving the complaint has not

been properly explained, cannot be accepted. Further, it is to be noted

that the general practice of the people of villagers in our country is that

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any untowards incident happens in the village, will be informed to the

village head and the same has been done in this case. Normally, in our

country, the parents of the girl child is reluctant to inform the police

immediately and in this case also, the parents of the victim girl initially

approached the village head, who tried to pacify the matter, but because

of non co-operation from the accused, left with no other option, the father

of the victim girl had approached the police. Therefore, the delay in filing

the complaint is not the sole ground to disbelieve the case of the

prosecution and in this case, the victim girl was also produced before the

learned Magistrate for recording statement under Section 164 Cr.P.C and

the learned Magistrate also recorded the statement and the same was

marked as Ex.P2. Therefore, a conjoint reading of the evidence of Ex.P2

along with evidence of P.W.'s 1, 2 and 3, clearly shows that the appellant

had committed the offence under Sections 7 r/w 8 of the POCSO Act.

Further, the age of the victim girl, at the time of occurrence, is only 16

years and her Date of Birth is 02.03.2003 and she is below18 years.

Therefore, the offence committed by the appellant falls under the

provisions of POCSO Act.

10. Though the learned counsel for the appellant submitted that the

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brother of the victim girl was not in the said village at the time of

occurrence and he was working in some other village, the appellant has

not substantiated his defense by way of oral and documentary evidence.

If at all the brother of the victim girl was not in the place of occurrence on

the said date and he was working in Anekal, any one of the co-workers

ought to have been examined, but the same has not been done and

therefore, the Court below found that the prosecution has proved its case

beyond reasonable doubt.

11. On a reading of the evidence of P.W.1 and P.W.2, this Court

finds that the appellant has committed the offence punishable under

Sections 8 of the POCSO Act. Since, the allegation is that the appellant

has only pulled the hands of the victim, the victim was not produced

before the Doctor for medical evidence. In this context, it is necessary to

extract Section 7 of the POCSO Act:

"7. Sexual assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or

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Crl.A.No.580 of

or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

12. In this case, the victim has very clearly stated that the appellant

pulled her hand by saying that he was in love with her for three years and

asked her to come with him, the offence under Section 7 of the POCSO

Act would attract. Presumption under Section 29 of the POCSO Act

came into play, the appellant has not rebutted the presumption.

Therefore, the prosecution has established its case beyond reasonable

doubt. There is no merit in the Appeal and the same is liable to be

dismissed and accordingly, this Criminal Appeal is dismissed by

confirming the conviction imposed by the learned Sessions Judge, Fast

Track Mahila Court, Krishnagiri, Coimbatore on the appellant. However,

considering the age of the appellant and the act committed by him, in

order to meet the ends of justice, the sentence alone is modified from