Madras High Court
State vs Paramasivam on 10 February, 2021
Crl.A.No.211 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.02.2021
CORAM :
THE HONOURABLE MR. JUSTICE P. VELMURUGAN
Crl.A.No.211 of 2019
State
By Inspector of Police,
Thirubuvanai Police Station,
Puducherry.
Through the Public Prosecutor for
Puducherry at the High Court, Madras. ... Appellant
Vs.
Paramasivam ... Respondent
Criminal Appeal filed under Section 378 Cr.P.C., praying to set
aside the judgment of acquittal, dated 16.01.2018, passed by the Special
Judge under POCSO Act, 2012 – Principal Sessions Judge, Pondicherry in
Spl.S.C.No.16 of 2016 and to consequently convict the respondent/accused
for the offence punishable under Section 10 of the POCSO Act, 2012, and
to award maximum punishment.
For Appellant : Mr.D.Bharatha Chakravarthy
Public Prosecutor (Pondicherry)
For Respondent : Mr.K.S.Shanmugam
(Legal Aid Counsel)
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Crl.A.No.211 of 2019
JUDGMENT
This Criminal Appeal has been filed against the judgment of
acquittal, dated 16.01.2018, passed by the learned Special Judge (Principal
Sessions Judge), Puducherry, in Spl.S.C.No.16 of 2016 on the file of the
Special Court under POCSO Act, 2012, Puducherry.
2.The appellant Police have registered a case against the
respondent/accused in Crime No.27 of 2016 for the offences under
Sections 9(o) and 10 of the Protection of Children from Sexual Offences
Act, 2012 (“POCSO Act” for brevity). After completing the investigation,
they laid a charge-sheet before the Special Court under POCSO Act, 2012,
Puducherry. Since the offence is against a child, the learned Special Judge
has taken the charge-sheet on file in Spl.S.C.No.16 of 2016.
3.After completing the formalities, the trial Court framed a
charge punishable under Section 10 of the POCSO Act against the
respondent/accused.
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4.After trial, the learned Special Judge found that the prosecution
has not proved the guilt of the respondent/accused and acquitted the
respondent/accused. Now, the State has filed the present appeal before
this Court, challenging the judgment of acquittal.
5.Mr.D.Bharatha Chakravarthy, learned Public Prosecutor
(Pondicherry) appearing for the appellant, would submit that the learned
Special Judge acquitted the respondent/accused on the ground that there is
a doubt about the place of occurrence, and has acquitted the accused
largely on the sole factor of place of occurrence, whereas, in the FIR itself,
the victim girl has categorically stated that she was also in love with the
respondent and the respondent had called her at 08.30 a.m. in the morning
on 03.03.2016 and kissed her on the cheek, and thereafter, the respondent
called her to his room and committed other acts of sexual assault. The
victim girl (P.W.2) has substantiated the same during her evidence before
the trial Court by stating that the respondent/accused committed the acts of
sexual assault in the 8th Std. classroom, and therefore learned Public
Prosecutor would submit that, on a plain reading of the material evidence
on record, there is absolutely no material discrepancy about the place of
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occurrence, and hence, the finding of the trial Court that there is a
reasonable doubt about the place of occurrence is perverse.
6.The learned Public Prosecutor would further submit that the
prosecution is very clear that the victim girl (P.W.2) has got acquaintance
with the accused, who was working as a MTS Worker in the school, where
the victim girl was also studying, and initially after talking in person, they
started taking through Mobile Phones and the victim girl used her mother's
Mobile Phone to send messages to the respondent. The
respondent/accused had also sent a SMS/message about his love to the
victim girl, and therefore, in the natural course of things, the respondent
had called the victim girl and the occurrence has happened.
7.The learned Public Prosecutor would further submit that the
victim girl (P.W.2) has clearly deposed that the prayer in the School starts
only at 09.00 a.m., and therefore, the School will only be sparsely
populated at 08.30 a.m., and therefore, the respondent had chosen the said
time to commit the offence. The learned Public Prosecutor would submit
that, though the victim girl (P.W.2) has admitted in her evidence that the
students will come at 08.30 a.m., it is common knowledge that only one or
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two students will normally arrive early to the School, and that does not
mean that the entire classroom will be full, and in any event, the same has
not been established by the respondent/accused by way of cross-
examination. The learned Public Prosecutor would submit that there is no
discrepancy about the presence of Monisha, the friend of the victim girl, as
the victim girl (P.W.2) has clearly stated that nobody was present at the
time of occurrence. The victim girl (P.W.2) has deposed consistently
about the occurrence, viz., originally in the complaint, and thereafter, in the
video given before the Child Welfare Committee, and also in the statement
recorded under Section 164 Cr.P.C. before the learned Magistrate, and
therefore, there is absolutely no material discrepancy regarding the
occurrence.
8.The learned Public Prosecutor would further submit that the
prosecution has examined 22 witnesses, including the victim girl as
P.W.2, and also the parents and School authorities, and has also placed all
the materials by way of Exs.P1 to P25, including the love letters written by
the respondent to the victim girl, and all other materials before the trial
Court, however, the trial Court failed to consider these materials and
appreciate the evidence in the right perspective. The learned Public
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Prosecutor would submit that the prosecution has examined the victim girl
as P.W.2, aged about 16 years, who has spoken about the occurrence that
she was molested and sexually assaulted by the respondent, who was aged
about 42 years, and that itself would be sufficient to prove the case of the
prosecution, and therefore, the prosecution has proved its case beyond
reasonable doubt and the findings of the trial Court are highly illegal.
9.The learned Public Prosecutor would further submit that the
victim girl (P.W.2) has consistently stated that she was sexually assaulted
by the respondent and it is for the respondent to prove that the statement is
false, and it cannot be said that the respondent cannot prove his defence.
If the prosecution is to prove the case as required under any other law, then
there would be no difference between other provisions and the provisions
under special laws, like POCSO Act. The learned Public Prosecutor
would submit that the victim girl is a child at a tender age of 16 years at
the time of occurrence and the respondent was aged about 42 years, who
was an employee of the School, and the misbehaviour committed by the
respondent is very serious, however, the learned Special Judge failed to
consider the object of the POCSO Act and failed to appreciate the material
evidence in a right perspective and has acquitted the respondent on the
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basis of immaterial contradictions and discrepancies, whereas, the
contradictions pointed out by the learned Special Judge are not material
contradictions and discrepancies.
10.The learned Public Prosecutor concluded his arguments by
submitting that the prosecution has proved its case beyond reasonable
doubt and the learned Special Judge failed to appreciate the evidence of the
prosecution in a right perspective, and therefore, the judgment of acquittal
passed by the learned Special Judge is perverse and is liable to be set aside
and the respondent is to be convicted.
11.Mr.K.Shanmugam, learned Legal Aid Counsel, who appears
on behalf of the respondent/accused as per the orders of this Court, would
submit that, even though the occurrence is said to have taken place in the
School, there is no eye-witness in this case, and even as per the evidence of
the victim girl (P.W.2), there is a discrepancy in the place of occurrence,
and she has not consistently stated as to where exactly the occurrence has
taken place. Therefore, the evidence of the victim girl (P.W.2) is highly
doubtful. The learned counsel would further submit that the handwriting
in the love letter said to have been given by the respondent was not sent for
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Handwriting Expert's opinion, and Monisha, the friend of the victim girl,
has not been examined in this case. Further, the learned counsel would
submit that the room of the respondent is nearer to the Principal's room,
and therefore, it would not be possible for such an occurrence said to have
happened in the said place.
12.The learned counsel appearing for the respondent/accused
would further submit that the SMS/message said to have been sent by the
respondent to the victim girl's mother's Mobile Phone has not been proved
by collecting the call details of the Mobile Phones of the respondent as well
as the mother of the victim girl. Moreover, the victim girl was not
subjected to medical examination. Therefore, the prosecution has failed to
prove its case beyond reasonable doubt that the respondent is the one who
has committed the offence under Sections 9 and 10 of the POCSO Act, and
the learned Special Judge has rightly acquitted the respondent/accused, and
therefore, there is no perversity in the judgment of the trial Court.
13.The learned counsel appearing for the respondent would
submit that this appeal is against acquittal of the accused. Once the trial
Court has acquitted the accused, the accused has got double presumption,
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the presumption has to be rebutted by substantiating the perversity of the
judgment, and when two views are possible, the view in favour of the
accused has to be taken into consideration and the benefit of doubt has to
be extended to the accused, and therefore, the learned Special Judge has
appreciated the evidence on record, and has rightly found that the
prosecution failed to establish their case beyond reasonable doubt, and
therefore, there is no merit in the present appeal filed by the State and the
same is liable to be dismissed.
14.Heard the learned counsel on either side and also perused the
materials available on record.
15.The case of the prosecution is that, on 03.03.2016 at 08.30
a.m., the respondent, being a public servant, working as MTS Worker in
the Government School, “X” Village, Puducherry, called the victim girl
aged about 16 years, who was studying in 11 th Std. in the School, with
sexual intent, and suddenly kissed on her cheek, and further, after two
days, in the morning, again the respondent called the victim girl in a room
inside the School premises with sexual intent, and suddenly hugged her,
pressed her breasts by his hands and also rubbed her private part area by
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his private part over the dress, and thereby, the respondent had committed
aggravated sexual assault repeatedly on the victim girl as defined under
Sections 9(c)(i)(l) of the POCSO Act and punishable under Section 10 of
the POCSO Act, and accordingly, the Special Court under POCSO Act,
Puducherry, framed a charge under Section 10 of the POCSO Act, against
the respondent/accused.
16.In order to prove the case, the prosecution examined 22
witnesses as P.W.1 to P.W.22 and marked 25 documents as Exs.P1 to
P25, besides 10 Material Objects as M.O.1 to M.O.10.
17.After completing the evidence on the prosecution side, all the
incriminating circumstances culled out from the prosecution side evidence
were put before the respondent, but he denied as false. On the side of the
defence, no oral or documentary evidence was produced.
18.After considering the evidence on record and hearing either
side, the learned Special Judge, disbelieved the case of the prosecution and
found that the prosecution has not established its case beyond reasonable
doubt, and vide judgment dated 16.01.2018 in Spl.S.C.No.16 of 2016, the
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trial Court acquitted the respondent/accused.
19.Challenging the judgment of acquittal, the present appeal has
been preferred by the State.
20.Since the Appellate Court is a fact finding Court, in order to
give a finding independently, it has to re-appreciate the entire evidence.
21.The victim girl was aged about 16 years at the time of
occurrence and she was studying 11 th Std. The respondent was 42 years
old man and he was working as MTS Worker in the same School, where
the victim girl was studying. From the evidence of the victim girl (P.W.2),
it is seen that the victim girl, while studying in the School, started to talk
friendly with the respondent, and later on, the respondent informed her
that he was in love with her, and they also continued to talk to each other.
While so, on the date of occurrence, i.e. on 03.03.2016 at about 08.30
a.m., the respondent called the victim girl to one of the classrooms in the
School and kissed her and two days later, all of a sudden, he called her
with sexual intent, and hugged her, pressed her breasts by his hands and
rubbed her private part area by his private part over the dress. It is not in
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dispute that the respondent was working as MTS Worker in the said
School in which the victim girl was studying. Normally, the MTS Workers
will come to the School early in the morning before the School starts, as
they have to clean the School, there is every possibility of his access to
every classroom in the School premises in the guise of cleaning. However,
the students would normally come to the School in the morning one by one
and not all the students come at a time.
22.The evidence of the victim girl (P.W.2) clearly shows that,
initially, she talked with the respondent and called her as “Anna”
(Brother), but the respondent asked the victim girl not to call as “Anna”,
but to call as “Mama” (Uncle), and he expressed his love to the victim girl,
and due to age factors and may be due to infatuation, the victim girl fell in
love with the respondent. The respondent, being a MTS Worker, used to
come early in the morning, and when he saw the victim girl coming little
bit earlier than the other students, taking advantage of the loneliness, the
respondent committed the sexual assault on the victim girl. Though the
victim might have given consent or willingness, the respondent, with
sexual intent, has committed these type of acts, and it also falls under the
POCSO Act.
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23.The victim girl, during deposition before the trial Court and in
the complaint, has stated one place at one time and another place at
another time in respect of the place of occurrence, and therefore, the
learned Special Judge, on account of such discrepancy, has disbelieved the
case of the prosecution. However, it is to be noted the fact that the
respondent was working as a MTS Worker in the School in which the
victim girl was studying, is not in dispute, and it is also clear from the
evidence that the MTS Workers should come earlier in the morning to
sweep and clean the School, and therefore, there is possibility of reaching
every place in the School premises. Therefore, taking advantage of the
same, the respondent had chosen the victim girl and has committed the
sexual assault. The learned Special Judge has stated that, at 08.30 a.m. in
the morning, there would be so many children and all the children would
have assembled in the School. If the respondent/accused has decided to
commit the sexual assault on the victim girl, naturally he would be waiting
for a chance, and when the time was in his favour, he called the victim girl
at 08.30 a.m. before the other students reached, and committed the sexual
assault.
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24.Though the prosecution has not established the particular
place where the occurrence took place, as also stated by the learned Special
Judge, the fact remains that the occurrence has taken place inside the
premises of the School, especially in a classroom. Naturally, a girl, aged
about 16 years and doing these type of acts, would certainly not have a
steady mind and her mind will be oscillating, and she would not be in a
position to say where the exact occurrence has taken place. Therefore, the
victim girl has stated the place of occurrence as 8th Std. classroom at one
time and the room of the respondent at the other time. However, this
Court is of the view that this discrepancy is not a material discrepancy that
will go to the root of the case of the prosecution. Moreover, one cannot
expect an eye-witness for these type of offences, especially when two
persons have intended to involve in such acts, they will normally tend to
create a chance and also they will reach out to a place of aloofness, more
particularly to a hidden place, and involve in such acts only in the absence
of other persons. The respondent used to come early for his work as his
nature of job is like that, and as the victim girl was willing to meet the
respondent, she would have come little bit earlier before the other students
reach the School, and thereby, the occurrence has happened. In a case
like this, no independent witnesses could be expected. Therefore, the
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reasons stated by the learned Special Judge are not acceptable.
25.The relevant facts are, at the time of occurrence, the victim
girl was studying 11th Std., and on the date of occurrence, i.e. on
03.03.2016, she has attended the School and a copy of the Attendance
Register was also marked as Ex.P15, which shows that the victim girl
attended the School on the date of occurrence, and the respondent has also
attended the School for his work on the date of occurrence. Therefore, the
prosecution has established that at the time of occurrence both have
attended the School.
26.Even when the victim girl was produced before the Doctor for
medical examination, the victim girl told before the Doctor about the
occurrence and the history as narrated to the Doctor also reveals the same.
The respondent/accused was also produced before the Doctor for medical
examination and the history as narrated by him to the Doctor also reveals
the same. The Birth Certificate of the victim girl was marked as Ex.P21,
which shows that the Date of Birth of the victim girl was 15.06.2000, and
hence, on the date of occurrence, i.e. on 03.03.2016, the victim girl has not
even completed 16 years, therefore, she was a child under the POCSO Act.
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Even assuming that the victim girl has given her consent, it would
definitely amount to sexual assault as defined under the POCSO Act. A
man working in the Government School, that too a Girls School, is
expected to be a responsible person. The respondent/accused is aged
about 42 years and he made a sexual assault on a student who is studying
in the said School, who is about only 16 years, and it is a very serious
nature of offence. Even though the victim girl has not voluntarily given
any complaint to anyone, when her mother saw a message in the Mobile
Phone, she gave it to the uncle of the victim girl, and after seeing the
message, they enquired about the same, and thereafter, the victim girl
revealed about the occurrence. Therefore, it may not be a forceful sexual
assault, however, the victim girl was below 16 years and she may not
know the consequences, however, certainly the respondent, aged about 42
years and working in a School, would know the consequences of
committing such sexual assault.
27.Therefore, this Court finds that the prosecution has proved
that the victim girl was only 16 years at time of occurrence and she was
studying 11th Std. and the Birth Certificate has also been produced to prove
the same, and the respondent was 42 years old and he was working in the
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School in which the victim girl was studying, and on the date of
occurrence, both were present in the School. Though the learned Special
Judge has stated that the victim girl has not informed or made any
complaint to the Principal or to the School teachers about the occurrence,
due to age factor, the victim girl would have given her consent and allowed
the respondent to exceed his limit, and hence, naturally, she would not
have informed about the same to anyone. However, it is the respondent,
who should have advised the victim girl and avoided these type of
incidents. The evidence of the victim girl (P.W.2) clearly shows that,
initially she started talking with the respondent in a friendly manner by
calling him as “Anna” (Brother). Naturally, the children studying in
School, used to call the male members of middle age, working in the
School, as “Anna” or “Uncle”, and the female members as “Sister” or
“Aunt”. The victim girl (P.W.2) has clearly stated that the respondent
asked her to call him as “Mama”, i.e. “Uncle” and he has expressed that he
has fallen in love with her and he called her with sexual intent to come to
the classroom at 08.30 a.m., and she also went there, and subsequently,
the occurrence had taken place.
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28.The penal laws, especially the special laws like POCSO Act,
have to be interpreted in a strict manner and on a perusal of the entire
materials available on record, this Court finds that the discrepancies
pointed out by the learned Special Judge are not material discrepancies and
that will not go the root of the case of the prosecution to disbelieve the
evidence of the victim. On a reading of the evidence of the victim girl
(P.W.2), this Court does not find any reason to discard the evidence of the
victim girl (P.W.2) or doubt the trustworthiness of her evidence.
Therefore, a plain reading of her evidence itself proves that the
respondent/accused has committed the charged offence. Therefore,
unfortunately, the learned Special Judge has given much importance to the
unimportant, immaterial discrepancies.
29.In the light of the above discussion, this Court finds the
prosecution has proved its case beyond reasonable doubt, and the
respondent/accused has committed the offence under Section 9(c)(i)(l) of
the POCSO Act, punishable under Section 10 of the POCSO Act and
hence, the respondent/accused is convicted under Section 10 of the
POCSO Act.
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30.In the result, this Criminal Appeal is allowed and the
judgment of acquittal passed by the trial Court is set aside.
31.Since this appeal is against acquittal and the
respondent/accused is now convicted under Section 10 of the POCSO Act,
he has to be questioned regarding the sentence. Therefore, the
respondent/accused is directed to appear before this Court on 25.02.2021
for questioning regarding the sentence. The appellant Police is directed to
ensure that the respondent/accused appears on the said day, failing which,
the appellant Police shall secure the respondent/accused and produce
before this Court on 25.02.2021.
Post the matter on 25.02.2021 “for question of sentence”.
10.02.2021
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mkn
P. VELMURUGAN, J.
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mkn
Copy to :
1.The Special Judge under POCSO Act, 2012,
(Principal Sessions Judge),
Puducherry.
2.The Inspector of Police,
Thirubuvanai Police Station,
Puducherry.
3.The Public Prosecutor (Pondicherry),
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
Crl.A.No.211 of 2019
10.02.2021
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