Madras High Court

Kannan vs State Represented By on 19 February, 2021

                                       1

         IN THE HIGH COURT OF JUDICATURE AT MADRAS

                            Dated : 19.02.2021

                                CORAM:

            THE HON'BLE MR. JUSTICE P.VELMURUGAN

                         Crl.A.No.816 of 2019
                                  and
                Crl.M.P.No.5681 of 2020 & 17517 of 2019

Kannan                                                  .. Appellant


                                  Versus

State represented by
The Inspector of Police
AWPS, Avinasi,
Tiruppur District.                                      .. Respondent

PRAYER:


      Criminal Appeal is filed under Section 374 (2) of Code of Criminal
Procedure to set aside the judgment in S.S.C.No.24 of 2019 dated 25.10.2019
on the file of the Magalir Neethimandram (Fast Track Mahila Court),
Tiruppur.


                    For Appellant :        Mr.Deepan Uday
                    For Respondent :   Mr.R. Suryaprakash
                                       Government Advocate
                                   -----
                                      2

                             JUDGMENT

The respondent police registered a case against the appellant in Crime

No.4 of 2019 for the offence punishable under Section 10 of the Protection

of Children from Sexual Offences Act, 2012 (hereinafter referred to as the

'POCSO' Act). After completion of investigation, the respondent police laid

a charge sheet before the Special Court, Tiruppur. Since the offence falls

against the woman as well as child, the learned Special Judge after taking the

charge sheet on file and made it over to the file of Magalir Neethimandram,

(Fast Track, Mahila Court), Tiruppur, in Spl.S.C.No. 24 of 2019 where

charges were framed against the appellant for the offence punishable under

Section 10 of the 'POCSO' Act. After conducting trial, the appellant was

convicted for the offence under Section 9(m), (n), (i) and punishable under

Section 10 of the 'POCSO' Act, and sentenced to undergo rigorous

imprisonment for 7 years and fine of Rs.10,000/- in default to undergo one

year rigorous imprisonment. Challenging the said judgment of conviction

and sentence, the appellant had preferred an appeal before this Court.

2. The learned counsel for the appellant would submit that the

entire case of the prosecution depends only on the evidence of PW1 who was

the victim girl by herself and PW2-Meenambal, grand mother of the victim

girl. Apart from that there is no independent witnesses to support the case of

the prosecution. The evidence of these two witnesses have to be rejected on

the sole ground that both of them are interested witnesses besides their

testimony has not been corroborated by other witnesses or by the documents.

Apart from the testimony of PW1 and 2, there is no other document or oral

evidence to prove the case of the prosecution. Moreover, there are material

contradictions between the FIR, the evidence of PW1 and 2. The deposition

of PW1 and 2 prove that their deposition is by way of an after thought. He

would further submit that the allegation in the FIR is that the appellant kissed

in the cheeks of the victim girl whereas both PW1 and PW2 contradicted the

same during the cross examination before the Trial Court. The learned

counsel for the appellant placed reliance on the judgment in the case of

Karunakaran v. State of Tamil Nadu reported in [AIR 1976 383]. In that

case, the Hon'ble Supreme Court held that the material contradictions

between the FIR and the evidence will be fatal to the case of the prosecution.

There is no independent witnesses was examined, who had witnessed the

Commission of Offence by the prosecution. The complaint was given after

delay of three days and no proper reason was given for the same. Even

though the victim girl stated that she suffered leg injury the same was not

attested by the doctor. Therefore, the material contradictions between the

evidence of the victim girl and the doctor who examined the victim girl as

PW5, goes to the root of the matter. Thus, the prosecution has failed to

prove its case beyond reasonable doubt. The learned Special Judge failed to

appreciate the entire evidence, but based on the assumption and presumption

wrongly convicted the appellant which warrants interference of this Court.

3. The learned Government Advocate (Criminal Side) would

submit that at the time of occurrence the age of the victim girl was only 10

years. The appellant is the owner of the building in which the victim girl and

her grand mother were residing as tenant. On the date of occurrence the

victim girl was playing in the compound lane of her house at about 4.30 pm.,

The appellant who came there in an inebriated mood assaulted the victim girl

repeatedly over both her cheeks and stamped her leg with his leg. He has

also threatened the victim girl and asked her to come to his house and the

victim girl went inside the house of the appellant. The appellant shut her

mouth and kissed her over her lips. The appellant with the intent to sexually

assault the victim girl has repeatedly slapped her over both her cheeks,

stamped her leg with his leg, shut her mouth and kissed her. Therefore, he is

liable to be prosecuted for the offence under Sections 9(m), (n), (i) r/w

Section 10 of the 'POCSO' Act. In this case, the victim girl was only residing

with the grand mother and the grand mother was residing in the house of the

appellant's father as a tenant. The appellant is the son of the house owner.

The grand mother of the victim girl as a tenant was not in the house at the

time of occurrence and the victim girl was playing in front of the house. At

that time the appellant came with drunken mood and assaulted physically as

well as sexually. Thereafter, the grand mother came to the house and the

victim girl informed the same to her. Since the grand mother was not feeling

well she went to the Hospital for treatment and thereafter, she discussed the

matter with the neighbours and gave a complaint before the All Women

Police Station, Avinashi. The delay has been properly explained by the

prosecution. Further, the doctor who also examined the victim girl stated

that she was attacked by known person. Further, the victim girl was also

produced before the learned Judicial Magistrate, Avinashi, to record

statement under Section 164 (5) of Cr.P.C., and the learned Judicial

Magistrate has also recorded the statement from the victim girl and later, it

was sent to the Court. Therefore, in a case like this, no eye witness can be

expected. Further, the affected persons cannot be expected to immediately

report the matter to Police Station. Since the victim girl is a minor girl aged

about only 10 years and no one was in the house and the grand mother of the

victim girl is an old lady and further the offence was committed by the son of

the house owner, certainly, they would think over and discuss with the

neighbours for filing complaint. Hence, the reason for delay of three days is

not fatal to the case of the prosecution. Further, a reading of the evidence of

PW1 and PW2, PW5 - the doctor's evidence, deposition of PW6 and the

statement recorded under Section 164 (5) of Cr.P.C., will clearly prove that

the appellant has committed the above said offences. The Trial Court has

rightly appreciated the evidence adduced and there is no merit in the appeal.

4. Heard both sides and perused the materials available on record.

5. It is the case of the prosecution that the victim girl was aged

about 10 years and was residing with her grandmother. The grand mother is

residing in the appellant's father house as a tenant. On 22.05.2019 at about

4.00 p.m. the victim girl was playing in the compound lane of her house

situated at Door No.2/103, Mariamman Kovil Street, Kanakkampalayam,

Perumanallur. The appellant who came to his house in an inebriated mood

called the victim girl. When she was refused to go to the appellant's house,

the appellant called the victim girl with an intent to sexually assault the

victim girl. Accordingly, he has repeatedly slapped her over both her cheeks,

stamped her leg with his leg. When the victim screamed out of pain, the

appellant shut her mouth, hugged her and kissed her over her lips. As the

victim girl started crying, the appellant left her and went away. Therefore,

the appellant with the intent to sexually assault the victim girl has committed

an act for which he was prosecuted for the offence under Section 9 (m), (n)

(i) which are punishable under Section 10 of the 'POCSO' Act.

6. During trial, on the side of the prosecution as many as 9

witnesses were examined as PW1 to PW9 and 13 documents were marked as

Ex.P1 to Ex.P13. No material object was exhibited.

7. After completing the examination of the prosecution witnesses

when incriminating circumstances culled out from the evidence of the

prosecution witnesses were put before the appellant he denied it as false. On

the side of the defence, no oral and documentary evidence was produced. As

this Court in this appeal as appellate Court is a fact finding Court, it has to

re-appreciate the entire evidence and come to an independent conclusion. A

reading of the entire materials would indicate that the case was registered

against the appellant for the offence under Section 9(m) (n), (i) punishable

under Section 10 of the 'POCSO' Act. In order to prove the case of the

prosecution the victim girl was examined as PW1. A reading of the evidence

of the victim girl would indicate that she has narrated the entire events. The

victim girl stated that the appellant is a known person and he is the son of the

house owner in which the victim girl along with her grand mother resides.

She has also stated that the appellant came with drunken mood and called

her, when she refused to go, the appellant came nearby the victim girl,

slapped her repeatedly with an intention to sexually assault the victim girl.

He slapped her over both her cheeks, stamped her leg with his leg, shut her

mouth and kissed her which falls under Section 7 of the POCSO Act. Since

the victim girl is below 12 years the offence falls under Section 9(m), (n), (i)

punishable under Section 10 of the 'POCSO' Act. Since the victim girl is a

minor girl at the time of occurrence and the grand mother was not in her

house, the victim girl later informed to the grandmother about the

occurrence. The grand mother was also examined as PW2 before the Trial

Court. She has deposed that her son-in-law got remarried and her grand

daughter is under her care and custody. The mother of the victim girl also

eloped with another person. The appellant is the son of their house owner

where they were residing at the time of occurrence. At the time of

occurrence, the age of the victim girl is only 10 years and she was studying

in IV standard.

8. On 22.05.2019 as it was a holiday the grand children were at

home and as the grand mother was not doing well, she went to the hospital

and returned home only at about 7.00 p.m. On seeing her, the victim girl

reported that the appellant assaulted her over her cheeks, stamped her leg,

shut her mouth and kissed her over her lips. As it was late at night, on the

next day morning PW2 went to the house of the appellant in order to

question the appellant about the occurrence. Since he was not at home she

contacted the mother of the appellant's over phone and informed her about

the occurrence. But, the mother of the appellant stated that she can do

whatever she wants. Later, the grand mother of the victim girl along with her

colleague one Anitha went to the All Women Police Station, Avinashi and

lodged the complaint against the appellant.

9. Under these circumstances, delay in filing the complaint is not

fatal to the case of the prosecution. The victim is a child. At the time of

occurrence, the grand mother of the child was not in the house. The de-facto

complainant is the grand mother of the victim girl and in her old age she

approached the appellant and since the appellant was not in his house she

contacted the mother of the appellant. Since she could not get proper

response from them, with the help of the neighbours, she approached the

police and gave a complaint. Since the grandmother of the victim girl was

illiterate as well as the victim girl is a female aged about only 9 years and

school going girl, naturally the grand mother being an old lady, would think

about the future of the minor girl and naturally would discuss with the well-

wishers and neighbours and it will take some time to take a decision as to

whether they can go to the Police Station or not. The appellant is the son of

the house owner, therefore, delay in filing the complaint is not a fatal to the

case of the prosecution. Further, the victim girl has narrated the entire events

and she has not stated that some one has witnessed the same. Therefore, in

the absence of the same, it seems that no eye witness in this case could be

examined and therefore, non examination of any eye witness or independent

witnesses were also not fatal to the case of the prosecution. In a case like

this, we cannot expect any eye witness and the culprit will take a chance of

aloofness of the children and no prudent man in a case of this nature would

commit such offence in public place. Therefore, taking advantage of the

loneliness of the victim girl, the appellant has committed the offence.

Therefore, the deposition of PW1 and PW2 has not been corroborated by the

other witnesses. This Court also has no doubt about the trustworthiness of

the evidence of victim girl. Since the grandmother came only in the late at

night 7.00 p.m., on the date of the occurrence the victim girl has brought to

the hospital and narrated the incident to the Doctor. Even though the doctor

has mentioned about the assault made by the appellant he has not stated

anything about sexual harassment. The grand mother would have hesitated

to inform the doctor. Considering the future of the minor girl, non

mentioning of the entire things before the doctor is also not fatal to the case

of the prosecution. However, when the victim girl was produced before the

learned Judicial Magistrate, Avinashi, for recording statement under Section

164 (5) of the Cr.P.C, she stated before the learned Judicial Magistrate and

the same was marked as Ex.P12. In order to prove the age of the minor girl

the Transfer Certificate issued by the Directorate of School Education to the

victim girl was marked as Ex.P5 and the School Certificate issued by the

Uratchi Ondriya Thuvakkapalli, Kanakkamapalayam, is marked as Ex.P6.

10. A perusal of Ex.P5 and Ex.P6, it is clearly proved that at the

time of occurrence the age of the victim girl was only 9 years. In Ex.P6, her

date of birth is mentioned as 09.08.2009 and even as per Transfer Certificate

Ex.P5 her date of birth is 09.08.2009. This was not questioned or challenged

and the date of occurrence is 22.05.2019. Therefore, the victim girl is only 9

years at the time of occurrence and below 12 years. The appellant committed

a sexual assault and therefore, his acts falls under Section 9 (m) of the

'POCSO' Act.

11. It is relevant to extract relevant provision of the POCSO Act

here:-

Sec.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 breast of such person or any othr person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

Sec. 9, Aggravated sexual assault.-

(m) whoever commits sexual on a child below twelve years; or

(n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or

(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

A bear reading of above provisions and the evidence of the victim it is very

clear that the appellant has committed offence under Section 9 (m) (n) (i) of

the POCSO Act.

12. A complete reading of deposition of PW1 and PW2, the school

certificate, Ex.P5 and Ex.P6, it is evident that the victim girl was aged about

9 years. The statement recorded under Section 164 of Cr.P.C., clearly shows

that the appellant intentionally, sexually assaulted the victim girl which falls

under Section 9 (m), (n), (i) r/w Section 10 of the 'POCSO' Act. The victim

girl was examined as PW1 before the Trial Court and she has clearly narrated

the same. The doctor who examined the victim girl was examined as PW5

and he has stated that in the hospital the grandmother of the victim girl has

stated that the victim was assaulted by a known person and he has also kissed

her. Therefore, on the date of the occurrence the victim girl was sexually

assaulted by the appellant. In cases like this when the evidence of victim girl

is clear, it alone can be taken into consideration, which does not require any