Madras High Court
Saravanan vs The State on 22 February, 2021
Crl.A.No.557 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.557 of 2019
Saravanan
S/o.Podi ... Appellant/Accused
Vs.
The State, rep.by
The Inspector of Police,
Nallipalayam Police Station,
Namakkal District.
(Crime No.157/2015 of Erumapatty PS) ... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 (2) Cr.P.C., to set aside the
judgment dated 20.12.2018 in Spl.C.C.No.14 of 2016 on the file of the Sessions
Judge, Fast Track Mahila Court, Namakkal.
For Appellant : Mr.B.Vasudevan
For Respondent : Mr.R.Suryaprakash
Government Advocate [Crl.Side]
*****
JUDGMENT
The appellant has filed this appeal seeking to set aside the judgment
dated 20.12.2018 in Spl.C.C.No.14 of 2016 on the file of the Sessions Judge,
Fast Track Mahila Court, Namakkal.
Crl.A.No.557 of 2019
2. The respondent police registered a case against the appellant in Crime
No.157 of 2015 for the offence under Section 366 (A) IPC and Section 5(1) r/w.
6 of POCSO Act, 2012. After investigation, laid the charge sheet before the
Sessions Judge, Fast Track Mahila Court, Namakkal. Since the offence is
against women particularly a child, the learned Sessions Judge taken the case
on file. The learned Sessions Judge after taking the charge sheet on file in
Special C.C.No.14 of 2016, framed changes against the appellant for offence
under Section 366(A) and 5(1) r/w. Section 6 of POCSO Act and he was
convicted and sentenced to undergo 5 years Rigorous Imprisonment with fine
of Rs.1,000/-, in default, to undergo 3 months Rigorous Imprisonment for
offence under Section 366(A) and also convicted and sentenced to undergo 10
years Rigorous Imprisonment with fine of Rs.1,000/-, in default, to undergo 3
months Rigorous Imprisonment for offence under Section 5(1) r/w. 6 of
POCSO Act. Challenging the said judgment of conviction and sentence, the
accused has filed the present appeal.
3. The learned counsel for the appellant would submit that there is no
independent witness examined in this case and has also not examined the
neighbour and no witness has spoken that the appellant took the victim girl.
The medical evidence did not support the evidence of P.W.1. P.W.1 deposed that
Crl.A.No.557 of 2019
the appellant used her for 10 days, but medical evidence did not detect
spermatozoa or semen in the vagina and also did not detect the presence of
injuries on genitals and did not detect the presence of marks of violence on
other parts of the body. P.W.1, victim girl, did not complain the act of sexual
intercourse of the appellant with her before the Doctor, who examined the
victim girl. There is no supporting medical evidence of P.W.1, victim child.
The age of the victim child has not been proved and there is no corroboration
and there is no independent witness.
4. It is further submitted that the prosecution has not substantiated the
charges framed against the appellant and the offence under Section 366(A)
would not be attracted in this case. The case of the prosecution is that the
appellant kidnapped the girl and induced another man to have sexual
intercourse with the victim girl. Section 366(A) would not get attracted and the
medical evidence does not support the case of the prosecution to convict the
appellant under Section 5(1) r/w. 6 of POCSO Act. The learned Special Judge,
based on presumption and also on the ground of sympathy, convicted the
appellant for the offence punishable under Section 366(A) and 6 of the POCSO
Act, and awarded maximum punishment, which warrants interference.
Crl.A.No.557 of 2019
5. The learned Government Advocate (Crl.Side) would submit that the
victim girl was aged about 17 years at the time of the occurrence. The mother of
the victim girl went to Coimbatore for doing a construction coolie work along
with her daughter victim girl and son. The appellant was also working as a
coolie along with the victim at Coimbatore. During that period, the appellant
fell in love with the victim child and falsely promised to marry her. The
appellant was already married and having children. Prior to three months to the
occurrence, when the victim child was alone at her house in Poyar Street, the
appellant threatened the victim child and had sexual intercourse with her and
threatened not to disclose the same to her parents. Due to apprehension, the
victim did not disclose the act committed by the appellant to her parents and
thereafter, the victim went to Coimbatore whereas the appellant again
approached her and had sexual intercourse. Then the victim returned to
Navaladipatty to worship her local temple. At that time, on 22.10.2015 at about
12.00 noon, when the victim child was alone at her house, the appellant came
there in a bike bearing Registration No.TN-48-E-0414 and compelled the
victim child to come along with him to Erode to marry her and thereby the
appellant took her to Arasalur, Erode District in the said motorcycle. Thereafter,
the appellant arranged to stay along with him in his relative's house at Arasalur
and during their stay at the above house, the appellant had repeated sexual
Crl.A.No.557 of 2019
intercourse with her. Thereafter when the victim asked the appellant to leave
her in her parents house, the appellant dropped her at Navaladipatty bus stop on
02.11.2015 and thereby the appellant committed offences punishable under
Sections 366(A) IPC and 5(1) r/w. 6 of POCSO Act.
6. The victim girl was examined as P.W.1 and has narrated that she was
working as a coolie and the appellant was also working as a coolie in the same
construction. At that time, the appellant fell in love with her and in the absence
of her mother, when the victim child was alone in her house, the appellant had
sexual intercourse with her. The victim child went to her native palce in
Navaladipatty for festival. After the festival, the mother left for Coimbatore, the
victim girl was residing in grandmother, P.W.4's house. P.W.4, Grandmother and
P.W.3, her brother, were not in the house. At that time, the appellant came to the
house of grandmother and when the victim child was alone and he took the
victim girl to Arasalur, Erode District and stayed in his uncle's house. At that
time, the appellant had repeated sexual intercourse with her. Since the appellant
is already a married man and having children and taking advantage of the
teenage of the victim child, he made a false promise and also taking advantage
of the age factor, the appellant committed the offence.
Crl.A.No.557 of 2019
7. P.W.2, mother of the victim, P.W.3, brother of the Victim, P.W.4,
grandmother of the victim, have also spoken about the victim age of the girl
and the Doctor, P.W.7, who examined the victim girl determined the age of the
victim on 07.11.2015 at Government Hospital, Salem. On medical examination,
it was revealed that the victim was aged above 16 and below 18 years. A
certificate to that effect is also issued and the same is marked as Ex.P.6. The
Doctor, P.W.9, examined the appellant and he has spoken about the potency of
the appellant.
8. From the oral and documentary evidence, the prosecution proved that
at the time of occurrence, the victim girl was aged about 17 years and the age
certificate was marked as Ex.P.6 and also the victim was produced before the
Judicial Magistrate for recording the statement under Section 164 Cr.P.C. and
the said statement was also marked as Ex.P.7. The reading of the evidence of
P.W.1, victim girl, the Doctor, P.W.7, and the medical report Ex.P.5 and Ex.P.6
and also the statement recorded under Section 164 Cr.P.C., Ex.P.7. The
prosecution has proved its case beyond reasonable doubt. He removed the
victim girl from the custody of the lawful guardians without their consent and
had also proved the case beyond reasonable doubt and the trial Court rightly
appreciated the evidence. Therefore, there is no merit in the appeal.
Crl.A.No.557 of 2019
9. Heard and perused the materials on record.
10. The case of the prosecution is that the victim girl was aged about 17
years at the time of occurrence and doing construction coolie work at
Coimbatore and the accused is also a native of victim village. During the time
of work at Coimbatore, the appellant fell in love with the victim child and
falsely promised to marry her. The appellant was already married and having
children. Prior to three months from the date of occurrence, when the victim
child was alone at her house in Poyar Street, the appellant threatened the victim
child and had sexual intercourse with her and threatened not to disclose the
same to her parents. Due to apprehension, the victim did not disclose the act
committed by the appellant to her parents and thereafter, the victim went to
Coimbatore, whereas the appellant again approached her and had sexual
intercourse. Then the victim returned to Navaladipatty to worship at local
temple. At that time, on 22.10.2015 at about 12.00 noon, when the victim child
was alone at her house, the appellant came there in a bike bearing Registration
No.TN-48-E-0414 and compelled the victim child to come along with him to
Erode to marry her and thereby the appellant took her to Arasalur, Erode
District by the said motorcycle. Thereafter, the appellant arranged to stay along
Crl.A.No.557 of 2019
with him at his relative's house at Arasalur and during their stay at the above
house, the appellant had repeated sexual intercourse with her. Thereafter, when
the victim asked the appellant to leave her at her parents' house, the appellant
dropped her at Navaladipatty bus stop on 02.11.2015 and thereby, the appellant
committed offences punishable under Section 366(A) IPC and 5(1) r/w. 6 of
POCSO Act.
11. In order to prove the case on the side of the prosecution, 14
witnesses were examined as P.W.1 to P.W.14 and 14 documents were marked as
Ex.P.1 to Ex.P.14. One material object was marked as M.O.1 and after
completing the prosecution evidence, incriminating circumstances culled out
from the evidence of the prosecution witnesses were put before the appellant.
He denied it as false and pleaded not guilty. On the side of the defence, no oral
and documentary evidence was produced. After the trial, the Appellate Court
convicted the appellant on both the charges under Section 366(A) IPC and
Section 5 l r/w. 6 of the POCSO Act. The Appellate Court is a fact finding
Court and it has to re-appreciate the entire evidence and give an independent
finding.
12. The nutshell of the prosecution case is that the victim is a child aged
Crl.A.No.557 of 2019
about 16 years and she was working as a coolie along with her mother and
brother. The appellant was also working as coolie. During that time, the
appellant fell in love with the victim child and in the absence of the parent at
the house of the victim child at Coimbatore, the appellant had sexual
intercourse and thereafter, the victim girl went along with her mother to their
native village for festival at Arasalur. After festival, the mother of the victim
returned to Coimbatore. The victim girl and brother stayed with their
grandmother. At that time, on 22.10.2015 at about 12.00 noon the appellant
went to Arasalur in a bike M.O.1 and in the absence of the grandmother and
brother, the appellant took the victim girl to Erode where he stayed in his uncle
house and had repeated sexual intercourse with her and subsequently, the
appellant dropped the victim girl and thereafter, the victim girl informed her
parents and had given complaint to the police. The investigating officer, on
completion of investigation, laid the charge sheet. The trial Court framed the
charges and conducted the trial and convicted the accused. The victim girl was
examined as P.W.1 and she has narrated the incidents and also she was
produced before the Doctor, P.W.7, for medical examination. P.W.7 is the
Doctor working in the Government Hospital, Salem. On 07.11.2015, the victim
was produced before the Doctor who examined the victim girl and determined
the age of the victim girl as above 16 years and below 18 years. Subsequently,
Crl.A.No.557 of 2019
she was produced before the Judicial Magistrate to record her statement under
Section 164 Cr.P.C. After completing the formalities, her statement was
recorded. A reading of Ex.P.7 would reveal that the victim narrated the
incidents and that it was the appellant one who committed the sexual offence.
The mother of the victim girl, P.W.2, has stated that she and her daughter were
working in the same construction site as coolies. The appellant was also
working with the victim girl and he is a known person and there is possibility of
easy access. The brother of the victim girl was examined as P.W.3. He also
stated that he and her sister P.W.1 victim child stayed along with their mother in
Coimbatore and doing construction work and the appellant was also staying in
a nearby place. Along with their family, the victim girl went to Navaladipatty to
worship at local temple. The appellant also came there and he does not belong
to that village. During that time, when the victim girl was alone in her
grandmother's house and everyone went out, the appellant came there and took
her to his relative's house at Arasalur. The grandmother of the victim girl was
examined as P.W.4. She has also stated that her daughter and her grand
children came to their house for festival. After festival, her daughter left for
Coimbatore and at that time, the grand daughter victim child and grand son
were staying with her. One day P.W.4, left for her neighbour's house and the
grand son also left along with his friends. At that time, the victim girl alone was
Crl.A.No.557 of 2019
in the house and subsequently, the victim girl was missing and thereafter, they
came to know that the appellant took the victim girl. After 10 days the victim
girl informed her parents that the appellant took her to Erode and stayed in his
relative's house. P.W.5 is an eye-witness to the appellant taking the victim girl
from Navaladipatty. She has stated that when she along with the victim girl
were talking with each other near the temple, at that time, the appellant came
and forcibly took the victim girl with him and after 10 days they came back.
Soon after registering the case, the victim child was produced before P.W.6.
P.W.6 deposed that on 06.11.2015, the victim child was produced before her
through police and she examined the victim girl. At that time, there was no
external injury. However, hymen was not intact and her vagina admitted one
finger and she was of the opinion that there was a possibility of sexual
intercourse and since there was no scan facility, the victim girl was sent to the
Government Hospital, Salem and P.W.7, who examined the victim girl, gave
opinion that the victim girl was between 16years to 18years. P.W.8, is the
Judicial Magistrate who recorded the statement of the victim girl under Section
164 sub-clause (5) of Cr.P.C. and the statement is marked as Ex.P.7. Ex.P.7,
clearly shows that the victim girl along with her mother and brother was
working in the construction site. At that time, the appellant was also working in
the same construction site and therefore they developed friendship and the
Crl.A.No.557 of 2019
accused expressed that he is in love with her and also proposed to marry her. At
that time, the victim girl did not know that the appellant was a married man and
also he promised to marry her and he took her to Arasalur in Erode District and
stayed in his uncle's house. The victim girl further stated that the accused has
spoiled her life and by threat and coercion, he misused her for 10 days. From
the evidence of P.W.1 to P.W.8 and Ex.P.1 to Ex.P.9, the prosecution has proved
the case beyond reasonable doubt. Even though the statement recorded under
Section 164 Cr.P.C is not a substantive evidence, it can be used for
corroboration by prosecution or for contradiction by accused. So in this case,
the victim child was examined as P.W.1 and she deposed before trial Court that
the appellant suppressed the fact that he was a married man and promised to
marry her and had forcible sexual intercourse and he took away the victim girl
from the custody of the lawful guardian without their consent and during that
time, had sexual intercourse with her and P.W.2 and P.W.3, who are mother and
brother respectively of the victim girl have also stated that the appellant was
working with them in the construction work at Coimbatore stayed near by their
residence and subsequently, they went to their native Navaladipatty. During the
time, the appellant also came to the said village. P.W.4 grand mother also stated
that when her daughter and grand children came for the festival, at that time,
the appellant also came to their village. The Doctor's evidence also clearly
Crl.A.No.557 of 2019
proves that the age of the victim girl is below 18 years and medical evidence
supports the prosecution case that the hymen was not in tact and when the
victim girl was produced before the Magistrate, the Magistrate also recorded
the statement under Section 164 Cr.P.C., which also strengthen the evidence of
P.W.1, victim girl. Therefore, the prosecution has proved the case based on
cogent and convincing evidence and there is no discrepancy in the evidence of
the victim girl and there is no reason to doubt about the trustworthiness of the
victim girl and the medical evidence also supports the evidence of the victim
girl. Therefore, this Court also, while re-appreciating the entire evidence, finds
that the appellant made a false promise to the victim girl below 18 years and
since she was subjected to sexual intercourse which was committed by the
appellant, this Court, finding that the appellant committed an offence under
Section 5 (l) of POCSO Act and therefore, he is liable to be punished under
Section 6 of the POCSO Act. As far as Section 366(A) is concerned, no case is
made out and the said Section reads as follows:-
“366A. Procuration of minor girl —
Whoever, by any means whatsoever, induces any minor girl
under the age of eighteen years to go from any place or to do any
act with intent that such girl may be, or knowing that it is likely
Crl.A.No.557 of 2019
that she will be, forced or seduced to illicit intercourse with
another person shall be punishable with imprisonment which may
extend to ten years, and shall also be liable to fine.”
13. When it is not the case of the prosecution that the appellant
kidnapped and seduced the minor girl aged below 18 years to have illicit
intercourse with another person, Section 366(A) will not get attracted.
Conviction and sentence under Section 366(A) is set aside and conviction
under Section 5(1) r/w. 6 of the POCSO Act is confirmed.
14. Accordingly, the Criminal Appeal is partly allowed.
22.02.2021
bri
Index: Yes/No
Internet: Yes/No
Speaking order/Non-speaking order
Crl.A.No.557 of 2019
To
1.The Inspector of Police,
Nallipalayam Police Station,
Namakkal District.
2.The Sessions Judge,
Fast Track Mahila Court, Namakkal.
3.The Public Prosecutor,
High Court, Madras.
Crl.A.No.557 of 2019
P.VELMURUGAN, J.
bri
Crl.A.No.557 of 2019
22.02.2021
