Madras High Court
Sabapathy vs The State on 16 February, 2021
Crl.A.No.365 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.365 of 2019
Sabapathy ... Appellant
Vs.
The State, Rep. by
The Inspector of Police,
All Women Police Station,
Panruti,
Cuddalore District ... Respondent
(Crime No.14 of 2018)
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside
the Judgment of conviction imposed in S.S.C.No.71 of 2018, on the file of the
Sessions Court, Mahila Court, Cuddalore, dated 07.12.2018.
For Appellant : Mr.Vijaya Raghavan
Mr.R,Ethirajulu
Legal Aid Counsel
For Respondent : Mr.R.Suryaprakash
Government Advocate
1/22
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JUDGMENT
This Criminal Appeal has been filed against the Judgment of Conviction
and Sentence, dated 07.12.2018 made in Special S.C.No.71 of 2018, by the
learned Judge, Mahila Court, Cuddalore.
2. The respondent-police has registered a case against the appellant for
the offence under Section 9(m) r/w 10 of Protection of Children from Sexual
Offences Act, 2012 (for brevity “the POCSO Act”). After investigation, laid a
charge sheet before the learned Judge, Mahila Court, Cuddalore. The learned
Judge, framed charges against the appellant for the offence punishable under
Section 10 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 07.12.2018, convicted the appellant for
the offence punishable under Section 10 of POCSO Act and sentenced him to
undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.2,000/- in
default to undergo one year Simple Imprisonment.
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4. Aggrieved against the Judgment of conviction and sentence, dated
07.12.2018, the appellant / accused had preferred the present Criminal Appeal
before this Court.
5. Since the learned counsel for the appellant was not present on
25.01.2021, this Court directed the Registry to appoint a Legal-Aid Counsel and
however, today, the learned counsel for the appellant as well as Legal-Aid
Counsel are appeared and argued the matter, by raising the following
contentions:-
6.1. There was a delay in registering the case and also sending the F.I.R
into the Court. The date of occurrence is on 15.08.2018 at about 09.30 a.m.,
and the FIR was registered on 15.08.2018 at 04.00 p.m., and however, it was
sent to the Court only on 16.08.2018 at 11.20 a.m., and the said delay has not
been properly explained, which is a fatal to the case of the prosecution.
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6.2. Before conducting medical examination, P.W.8-doctor has not
recorded the statement of the the victim girl, and only recorded the statement
of the mother of the victim girl, who is admittedly not an eyewitness and only
hearsay evidence. Further, the evidence of P.W.8-doctor also not supports the
case of the prosecution, and in her Ex.P5 report, she has clearly stated that she
did not find any external injuries on the genitalia of the victim girl.
Furthermore, the panty of the victim girl was not recovered.
6.3. The alleged occurrence took place on 15.08.2018, however, the
statement under Section 164 of Cr.P.C. was recorded by the learned
Magistrate, only on 20.08.2018, which is against the position of law.
Immediately, within 24 hours, the victim should have been produced before the
learned Magistrate, however, in this case, only after statutory period, the
victim girl was produced before the learned Magistrate for recording statement
under Section 164 of Cr.P.C., and that would also create a doubt about the
prosecution case. Therefore, the prosecution has not proved its case beyond all
reasonable doubt. Further the statement recorded under Section 164 of Cr.P.C.,
before the learned Magistrate, has not been marked in Special Sessions Case and
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no opportunity was given to the appellant to cross-examine the statement
recorded by the learned Magistrate, and therefore, which also a fatal to the
prosecution.
6.4. There are material contradictions in the prosecution witnesses,
except the evidence of P.W.2-victim girl, there was no corroboration in the
evidence, which itself shows doubt in the prosecution case.
6.5. There was a pathway dispute between the appellant and the family
of the victim girl and in order to take vengeance, they foisted a false case
against the appellant.
The learned Judge failed to consider the above aspects and however, simply
convicted the appellant on the ground of sympathy, which warrants
interference.
7. The learned Government Advocate (Criminal Side) appearing for the
respondent-Police would submit that the victim girl was aged about 7 years, at
the time of occurrence. The appellant is a neighbour, and he called P.W.2-
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victim girl and taken her to his house and committed the offence. In order to
prove the case of the prosecution, the victim girl was examined as P.W.2, and
she had clearly narrated the facts. Further, he would submit that the victim girl
informed the mother and mother of the victim girl was examined as P.W.1 and
she also supported the case of the prosecution. P.W.5 and P.W.6 are
independent witnesses and they have also corroborated the evidence of P.W.1
and P.W.2.
8. The learned Government Advocate would further submit that
P.W.8-doctor had recorded the statement of the mother of the victim girl
before medical examination of the victim girl is not a fatal to the prosecution,
considering the age of the victim girl, the doctor had recorded the statement of
the mother of the victim girl, before medical examination of the victim girl.
However, in this case, the doctor's evidence itself should not be given much
importance, because, it is not the case of the prosecution that aggravated
penetrative sexual assault, or the victim girl sustained injury in the private part
or any other part of the body. However, all other witnesses have clearly spoken,
and especially, the victim girl had clearly narrated the offence, in the case like
this, no corroboration is necessary, even though, the evidence of independent
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witnesses P.W.5 and P.W.6 were corroborated with the evidence of P.W.2, the
victim girl and P.W.1, the mother of the victim girl. It is further submitted that
though the statement was recorded under Section 164 of Cr.P.C., it was not
marked and mere non-marking of statement recorded under Section 164 of
Cr.P.C., would not vitiate the prosecution. P.W.2 has narrated the entire facts
during her evidence and also identified the appellant, and therefore, the
prosecution has proved its case beyond the reasonable doubt, and therefore,
prays for dismissal of Appeal.
9. Heard the learned counsel for the appellant and perused the materials
available on record.
10. The case of the prosecution is that on 15.08.2018, at about 09.15
a.m., the accused with a sexual intent enticed the victim girl saying that he
would lift her to plug guava in a nearby tree and he lifted and after the child
plugged guava, he did not let her down and thereafter, the accused took and
kept her behind the partially closed door, removed her pant and panties and
touched the vagina of the victim child with his penis. When the victim girl
started shouting and told that she would tell her mother, for which, the accused
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said if she revealed, he would not let her to go and when the child assured the
accused that she would not tell her mother, then only the accused released her
from his clutches. Thereafter, the victim girl informed the occurrence to her
mother and her mother gave a complaint. Based on which, the respondent-
Police registered a case against the appellant for the offence under Section 9
(m) r/w 10 of POCSO Act. Subsequently, the Investigating Officer, investigated
the mater and laid a charge sheet before the learned Judge, Mahila Court,
Cuddalore.
11. In order to prove the case of the prosecution, 10 witnesses were
examined as P.W.1 to P.W.10 and 9 documents were marked as Exs.P1 to P9 and
no Material Objects were exhibited. After completing the examination of the
prosecution witnesses, the incriminating circumstances culled out from the
prosecution witnesses were put before the accused, the same was denied as
false and on the side of the accused, the sister of the accused was examined as
D.W.1. The learned Judge, Mahila Court, Cuddalore 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.
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12. 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
independently. On appreciation of evidence, this Court has found that the
victim girl, was only 7 years old, at the time of occurrence. A reading of the
evidence of the victim girl, who was examined as P.W.2, has clearly narrated
the act committed by the accused and identified the accused. In cases of this
nature, presence of eyewitnesses are mostly improbable, 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 clearly
stated the occurrence during her evidence.
13. Though the learned counsel for the appellant would submit that
P.W.8-Doctor has not recorded the statement of the victim girl and recorded
the statement of the mother of the victim girl, however, admittedly, the girl
was produced before the Doctor and mother was also present at that time, since
the age of the victim girl was only 7 years at the time of occurrence, the doctor
thought it fit to record the statement of the mother of the victim girl, however,
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examined the victim girl and filed report Ex.P5. However, merely because, the
doctor has not recorded the statement of the victim girl, before conducting
medical examination is not fatal to the prosecution case, and therefore, the
contention of the learned counsel for the appellant is not acceptable.
14. Insofar as the next contention of the learned counsel for the
appellant with regard to delay in sending F.I.R., to the Court is concerned, the
mere sending F.I.R. belatedly to the Court may not be a sole ground to disallow
or discard the evidence of the prosecution witnesses. Mere wrong done by the
prosecution or defect in the investigation, also may not be a ground and the
appellant is entitled for acquittal on that ground.
15. The other contention of the learned counsel for the appellant is that
the evidence of the doctor, who examined the victim girl has filed report Ex.P5
stating that she did not find any external injuries on the genitalia of the victim
girl and as such, the evidence of P.W.8 doctor was also not supported the case
of the prosecution. P.W.1 in her evidence, has clearly stated that the accused
had removed her pant and panties and touched the vagina of the victim girl with
his penis. A combined reading of the evidence of P.W.2, victim girl and also the
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evidence of the mother of the victim girl, it could be seen that they were
corroborates with the evidence adduced by the independent witnesses viz.,
P.W.5 and P.W.6, and as such, the prosecution has proved that the appellant
had committed an offence punishable under Section 10 of POCSO Act. Depth of
penetration is immaterial, mere touching of private part would be sufficient so
as to constitute the offence.
16. Yet another contention of the learned counsel for the appellant is
that there was a motive to foist a false case against the appellant due to
pathway dispute. In this case, there is no reason to disbelieve her 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 life 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 life of the
victim girl. 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
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the offense had taken place in the presence of some other eye witness.
Further, the defense has not established that for that 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.
17. The last contention of the learned counsel for the appellant is that
the statement recorded under Section 164 of Cr.P.C. by the learned Magistrate
was not marked as exhibit by the prosecution and the appellant was not given
an opportunity to take his defense.
18. The statement recorded by the learned Magistrate under Section 164
of Cr.P.C. was very much available in the record of the Court, however, neither,
the Public Prosecutor has taken steps to mark the document nor the learned
Judge, who conducted the trial has taken steps to mark the said document.
Even, P.W.10. the Investigating Officer has also not taken any steps to mark the
statement recorded under Section 164 of Cr.P.C,. It is to be noted that at the
time of trial, the Investigating Officer, who was examined as P.W.10, could have
informed the same to the Public Prosecutor for marking of the document. Since
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it is a sensitive case, the Public Prosecutor should have taken much attention
while marking of documents. Further, the learned Judge, who conducted the
trial, if at all he was actively participated in the trial, definitely he could not
have failed to mark the said document, or otherwise, he should have guided the
Public Prosecutor for marking the said document through the Investigating
Officer.
19. But, in this case on hand, all the three stakeholders, viz., the
Investigating Officer, the Public prosecutor, who conducted the case or the
learned Judge, who conducted the trial, have not acted with due diligent and
since the cases like this, under POCSO Act, especially, the victim girl is of 7
years old, the stakeholders should have paid their attention, while performing
their duties, but, in this case, all the stakeholders have not taken any care for
marking of document, which was recorded under Section 164 of Cr.PC by the
learned Magistrate. While deciding the case, the statement of the victim girl,
which was recorded under Section 164 of Cr.P.C., is necessary, however, the
learned Judge, has not taken any care for marking of the said document.
However, no doubt, on appearance of the appellant, the provisions of Section
207 Cr.P.C. were complied with and at that time, all the documents were
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served to the appellant and therefore, no prejudice would be caused to the
appellant for non-marking of the said statement, which was recorded under
Section 164 of Cr.P.C. Further, the statement recorded under Section 164 of
Cr.P.C. is not substantive evidence and it has to be corroborated further in
accordance with law.
20. Since the statement recorded under Section 164 of Cr.P.C. was not
marked as a document, this Court has called for the immaterial papers relating
to the present case from the trial Court on 10.02.2021, and on perusal of the
same, the statement recorded under Section 164 of Cr.P.C. was very much
available in the record, but all the three stakeholders have not taken any steps
for marking of the said document. A careful reading of statement recorded
under Section 164 of Cr.P.C., this Court finds that the victim girl has clearly
narrated all the facts what she has narrated during her examination. Therefore,
mere non-marking of statement, which recorded under 164 of Cr.P.C., is also
not a fatal to the prosecution.
21. 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 with a
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sexual intent enticed the victim girl saying that he would lift her to plug guava
in a nearby tree and he lifted and after the child plugged guava, he did not let
her down and thereafter, the accused took and kept her behind the partially
closed door, removed her pant and panties and touched the vagina of the child
with his penis. When the victim child started shouting and she told that she
would tell her mother, for which, the accused said if she revealed, he would not
let her to go and when the child assured the accused that she would not tell her
mother, then only, the accused released her from his clutches.
22.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 7 years, and she cannot be tutored by the prosecution for these type
of offences. If the evidence of sole witness is cogent, credible and trustworthy,
conviction is permissible. In case of this nature presence of eyewitnesses are
mostly improbable.
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23. Therefore, under the 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 Sessions Judge, Mahila
Court, Cuddalore. Therefore, this Court does not find any merit in the Appeal
and the Appeal is liable to be dismissed.
24. This is not the first case, the statement recorded under Section 164 of
Cr.P.C. was not marked and this Court has come across several cases. The
Investigating Officers have not paid their due attention to the cases, relating to
POCSO Act. P.W.10- Investigating Officer, who investigated the case, has not
even recorded the statement from the victim girl immediately, and she has
recorded the statement of the victim girl under Section 161(3) of Cr.P.C. only on
21.08.2018, whereas the complaint was given on 15.08.2018 itself. Section 24 of
POCSO Act, prescribes recording of a statement of a child by the Investigating
Officer, Section 25 of POCSO Act, prescribes, recording of statement of a child
by Magistrate and Section 27 of of POCSO Act, prescribes, medical examination
of a child. However, in the case on hand, the child was examined by P.W.8
doctor on 15.08.2018 itself and the statement of the victim girl under Section
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161(3) of Cr.P.C. was recorded by P.W.10-Investigating Officer only on
21.08.2018. In the case on hand, the Investigating Officer has neither sent the
F.I.R. immediately to the Court, nor recorded the statement of the victim girl
on the date of occurrence, viz., 15.08.2018, however, the Investigating Officer
recorded the statement of the victim girl under Section 161 (3) of Cr.P.C. only
on 21.08.2018 and further the statement of the victim girl under Section 164 of
Cr.P.C. was recorded by the learned Judicial Magistrate only on 20.08.2018.
Further, the statement recorded by the learned Magistrate under Section 164 of
Cr.P.C. has not been marked as a document during the trial on the side of the
prosecution and the Investigating Officer has not properly guided the Public
Prosecutor. The victim girl was aged only 7 years at the time of occurrence,
and she was not properly treated by the Investigating Officer and the statutory
provisions have not been duly complied with by the Investigating Officer and as
such, P.W.10-Investigating Officer had failed to discharge her duty with due
diligent and this Court is of the opinion that she is not a deserving person to
continue as Investigating Officer in All Women Police Station, Panruti, Cuddalore
District, especially, cases relating to POCSO Act.
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25. Further, this Court is also of the opinion that the Public Prosecutor,
who conducted the trial is not a fit person to conduct POCSO Act and he should
not be entrusted to any other cases relating to POCSO Act. If necessary, the
Collector concerned, remove the name of the Public Prosecutor immediately
from the Office of said Court and the District Collector, can recommend a
proper Competent Officer as a Special Public Prosecutor to deal with the case
relating to POCSO Act.
26. The learned Judge, who dealt with the case, has not actively
participated in the trial. If he would have actively participated in the trial,
definitely, he should have raised a question for non marking of statement, which
was recorded under Section 164 of Cr.P.C. of the victim girl by the learned
Magistrate. No doubt, the learned Judge, while observing paragraph No.19, has
stated that the statement of the victim girl was recorded by the learned
Magistrate on 20.08.2010 upon requisition by P.W.10, however, he has not taken
any steps to mark the said document, which is very vital to the case on hand,
especially, offenses relating to POCSO Act.
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27. Therefore, this Court is of the considered view that all the three
stakeholders, viz., the Investigating Officer, the Pubic Prosecutor and the
learned Judge have not properly dealt with this case and they have not properly
understood the object of the POCSO Act and seriousness of the offence against
the children. Since this Court has not satisfied with the active participation of
all these three stakeholders, the Respective Departments concerned are
directed to take appropriate action against them.
28. The Registry is directed to communicate this Judgment to
(i) The Superintendent of Police, Kallakurichi; and also
(ii) The District Collector, Cuddalore for removal of the name of the
Public Prosecutor, who dealt with the case in Special Sessions Case No.71 of
2018, on the file of the learned Sessions Judge, Mahila Court, Cuddalore, and
to appoint a competent person to hold the said post.
29. The Registry is directed to call for explanation from the concerned
learned Sessions Judge, Cuddalore, who dealt with the case in
Special S.C.No.71 of 2018.
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30. In the result, the Criminal Appeal is dismissed.
16.02.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
Note: The Registry is further directed to return photo copies
of Immaterial Records to the concerned Court.
rns
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Crl.A.No.365 of 2019
To
1.The Sessions Court, Mahila Court,
Cuddalore.
2. The Inspector of Police,
All Women Police Station,
Panrui,
Cuddalore District.
3. The Superintendent of Police,
Kallakurichi.
5. The District Collector,
Cuddalore.
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P.VELMURUGAN, J.
rns
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16.02.2021
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