Madras High Court
Kumar vs The State By on 22 February, 2021
Crl.A.No.13 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.13 of 2021 and
Crl.M.P.No.269 of 2021
Kumar ... Appellant
-Vs-
The State by
Inspector of Police,
All Women Police Station,
Sooramangalam,
Salem District.
Crime No.9 of 2016 ... Respondent
PRAYER: Criminal Appeal filed under Section 374 of Code of Criminal
Procedure, to set-aside the conviction and sentence imposed on the
appellant by the judgment dated 5.8.2020 passed in Special S.C.No.74 of
2016 (New Special S.C.No.30 of 2019) on the file of the Special Court
for Exclusive Trial under POCSO Act, Salem convicting the appellant
and sentenced to undergo seven years imprisonment and to pay a fine of
Rs.50,000/- in d/f one year S.I under Sec.9(m), 9(n) r/w Sec.10 and 18 of
The Protection of Children from Sexual Offences Act.
For Appellant : Mr.M.Karthik for
Mr.C.Vasudevan
For Respondent : Mr.R.Suryaprakash,
Government Advocate [Crl. Side]
*****
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Crl.A.No.13 of 2021
JUDGMENT
This Criminal Appeal has been filed against the conviction and
sentence imposed by the learned Sessions Judge, Special Court for
Exclusive trial of cases under the Protection of Children from Sexual
Offence Act, Salem in Special S.C.No.30 of 2019, dated 05.08.2020.
2.The respondent Police have registered a case in Crime No.9 of
2016, for offence under Section 5(m) r/w 6 of Protection of Children
from Sexual Offence Act, 2012 (hereinafter referred to as 'POCSO Act')
against the appellant on the complaint (Ex.P1) given by PW1. After
completing investigation, the respondent police laid a charge sheet
before the learned Sessions Judge, Special Court for Exclusive trial of
cases under the Protection of Children from Sexual Offence Act, Salem
and the same was taken on file in Special S.C.No.74 of 2016 and
subsequently, it was renumbered as Special S.C.No.30 of 2019.
3.After completing the formalities under Section 207 Cr.P.C.,
since there was a prima facie material to frame charges against the
appellant, the learned Sessions Judge farmed charges under Section 6 of
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POCSO Act.
4.After completing the trial and hearing the arguments advanced
on either side and also considering the oral and documentary evidence,
the Sessions Judge found that the appellant was guilty and convicted and
sentenced him to undergo 7 years Rigorous Imprisonment and to pay a
fine of Rs.50,000/-, in default, to undergo one year Simple Imprisonment
for offence under Section 9(m), 9(n) r/w 10 and 18 of POCSO Act.
5.Challenging the judgment of conviction and sentence, the
present appeal has been preferred by the appellant.
6.The learned counsel for the appellant would submit that the
family members of the appellant and the family of the victim girl (PW.2)
are relatives and the appellant is the paternal uncle (rpj;jg;gh) of the victim
girl (PW.2). The appellant belongs to 'Two Leaf' party and one Sathish
(PW.4) belongs to 'Rising of Sun' party. There was a prior enmity
between them before the occurrence. Due to which, a complaint was
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Crl.A.No.13 of 2021
lodged by the appellant against the said Sathish (PW4), which is
pending. The mother of the victim girl (PW1) has stated that the
complaint (Ex.P1) was written by Sathish (PW.4). The said Sathish
(PW.4) misguided the parents of the victim girl, foisted a false case
against the appellant. The mother of the victim girl (PW.1) has stated
that for one hour, her daughter (PW.2) was found missing, whereas the
house of the appellant is nearer to the house of the victim girl. The
learned counsel would further submit that the victim girl was sustained
injury in the leg, whereas the Doctor has stated that there was no injury at
the time of clinical examination. Further, the case of the prosecution is
that the appellant has committed the aggravated penetrative sexual
intercourse with the victim girl, whereas the Doctor (PW.7) has stated
that there was no symptoms of penetrative sexual assault and therefore,
there are material contradictions between the prosecution witnesses and
documents, especially in the ocular evidence and the medical evidence.
The learned trial Court failed to consider the same. Further, in this case
no independent witnesses were examined by the prosecution to prove the
guilt of the appellant and all the witnesses were turned hostile and not
supported the case of the prosecution.
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Crl.A.No.13 of 2021
7.The learned counsel for the appellant would further submit that
in order to help Sathish (PW4), the parents of the victim girl (PW.1 and
PW.3) have given a false evidence against the appellant, since the
appellant had given a complaint against Sathish (PW.4). Under these
circumstances, the judgment of the learned trial Court is liable to be set
aside. The learned counsel would further submit that the occurrence said
to have taken place on 18.06.2016 and the complaint (Ex.P1) was given
after due deliberation on 19.06.2016. Hence, there is a delay of one day
in lodging the complaint (Ex.P1) and the delay has not been properly
explained. The victim girl (PW.2) was not produced before the Doctor
immediately soon after the occurrence and she was produced only on
20.06.2016. Though the trial Court not found guilty for offence under
Section 5(m) r/w 6 of POCSO Act, however wrongly convicted him
under Sections 9(m), 9(n) r/w 10 and 18 of POCSO Act.
8.Thus, the trial Court failed to appreciate the oral and
documentary evidence and hence, the conviction and sentence recorded
by the learned Sessions Judge is unwarranted, which needs interference
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of this Court.
9.Mr.R.Suryaprakash, learned Government Advocate (Crl. Side)
appearing on behalf of the respondent Police would submit that there was
no previous enmity between the appellant and Sathish (PW4) as alleged
by the learned counsel for the appellant and no witnesses have stated that
the mother of the victim (PW.1) has given a false case against the
appellant and further, no case is pending against Sathish (PW4). He
would further submit that the victim girl (PW2) has clearly deposed that
the brother of the appellant asked her to buy tea powder and after
purchasing the tea powder, the victim girl (PW.2) handed over the same
to the brother of the appellant. While returning, the appellant took her
inside the house and made her to lay on the floor and committed the
aggravated penetrative sexual assault. While recording the statement of
the victim girl (PW.2) under Section 164 Cr.P.C., she narrated the same.
Even before the Doctor (PW.7) in the presence of the victim girl (PW.2),
her mother (PW.1) has stated that she was sexually assaulted by a known
person.
10.The learned Government Advocate would further submit that
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immediately after the occurrence, the mother of the victim girl (PW.1)
lodged the complaint (Ex.P1) to the respondent and the same was
registered in Crime No.9 of 2016 for offence under Section 5(m) r/w 6 of
POCSO Act. The delay in lodging the complaint has been properly
explained that due to the non availability of the father of the victim girl
(PW.3), she could not prefer the complaint immediately soon after the
occurrence. The mother of the victim girl, who was examined as PW.1
has stated that since on the date of occurrence was a holiday, the victim
girl was playing near the house of the appellant and subsequently, she
was found missing. Despite made search of the victim girl (PW2), she
could not be found. At that time, there was heavy radio sound from the
house of the appellant, therefore, the mother of the victim girl (PW.1)
asked her son to search the victim girl (PW.2) in the appellant's house.
The son also found her sister was in the house of the appellant.
Thereafter, the victim girl (PW.2) came out from the appellant's house
and crying and when she enquired about the same, she narrated the
incident. At that time, the father of the victim girl (PW.3) was not in the
native. After his arrival and consulting with the neighbours, they
decided to lodge a complaint (Ex.P1) and therefore, the delay of 2 days
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Crl.A.No.13 of 2021
in lodging the complaint has been properly explained. Though the
Doctor (PW.7) has stated that there is no symptoms with regard to
penetrative sexual assault, the victim girl (PW.2) while recording her
statement under Section 164 Cr.P.C., and while deposing before the trial
Court, has clearly stated that the appellant one who has committed the
offence. Thus, the learned Sessions Judge has rightly appreciated the
oral and documentary evidence produced by the prosecution and rightly
convicted the appellant, which does not warrant interference of this
Court.
11.Heard the learned counsel appearing for the appellant and the
learned Government Advocate (Crl. Side) appearing for the respondent
and also perused the materials available on record.
12.The case of the prosecution is that at the time of occurrence, the
the victim girl was aged about 12 years and she was studying 7th standard
and living with her parents. The date of occurrence is on 18.06.2016,
which is a holiday. When the victim girl was playing near the house of
the appellant, the brother of the appellant asked the victim girl (PW2) to
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buy tea powder. The victim girl (PW2) after purchasing the tea powder,
she handed over the same to the brother of the appellant. The house of
the appellant's brother and the house of the appellant are in the same
locality. When she crossing the appellant's house, the appellant pulled
her into the house and made her to lay on the floor and committed the
penetrative sexual assault. Since for one hour, the victim girl (PW2) was
found missing. The mother of the victim girl (PW1) started to search his
daughter and asked her son to search her in the appellant's house. PW1's
son found the victim girl was in the house of the appellant. Then, the
victim girl (PW.2) came out from the appellant's house and crying and
when she was enquired, she narrated the incident. After consulting with
the neighbours, the parents of the victim girl lodged a complaint (Ex.P1)
to the respondent Police.
13.Based on the complaint (Ex.P1) given by PW1, an First
Information Report [Ex.P10] in Crime No.9 of 2016 was registered for
offence sunder Section 5(m) r/w 6 of POCSO Act. After completing
investigation, the respondent police laid a charge sheet before the learned
Sessions Judge, Special Court for Exclusive trial of cases under the
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Protection of Children from Sexual Offence Act, Salem and same was
taken on file in Special S.C.No.74 of 2016 and thereafter, renumbered as
Special S.C.No.30 of 2019.
14.In order to prove the case of the prosecution, on the side of the
prosecution, as many as 10 witnesses were examined, 14 documents were
marked and 1 material object was exhibited. After completing the
examination of prosecution witnesses, when incriminating circumstances
were culled out from the prosecution witnesses put before the accused,
they had denied as false. On the side of the defence, no witnesses were
examined and documents were marked.
15.After completing trial and hearing of the arguments advanced
on either side, the learned Sessions Judge, by judgment dated 05.08.2020
in Special S.C.No.30 of 2019, convicted and sentenced the appellant as
stated above.
16.This Court, being an Appellate Court, is a fact finding Court,
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which has to necessarily re-appreciate the entire evidence and give an
independent finding.
17.On a perusal of the records, it is seen that out of 10 witnesses
examined on the side of the prosecution, the victim girl was examined as
PW2, her mother was examined as PW1 and her father was examined as
PW3. A reading of the evidence of the victim girl (PW2), she has clearly
stated that the appellant is her paternal uncle (rpj;jg;gh). On 18.06.2016,
when the victim girl was playing near the house of the appellant, the
brother of the appellant called the victim girl and asked her to buy tea
powder. The victim girl went to the shop and bought tea powder and
handed over the same to the appellant's brother. When she crossing the
appellant's house, the appellant pulled her into his house and made her to
lay on the floor and committed the penetrative sexual assault. While
recording the statement under Section 164 Cr.P.C., the victim girl has
clearly narrated the incident. The age of the victim girl is below 12
years, the age certificate of the victim girl was marked as Ex.P9 to prove
the age of the victim girl, in which, the date of birth is mentioned as
20.02.2005 and the date of occurrence is 18.06.2016. Therefore, at the
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time of occurrence, the victim girl (PW2) was only completed 11 years of
age. The victim girl (PW2) has clearly narrated the occurrence that the
appellant pulled her into the house and made her to lay on the floor and
he also laid on her and put his private part into her private part. Though
the trial Court found that there was no penetrative sexual intercourse,
based on the evidence of the victim girl and her statement recorded under
Section 164 Cr.P.C., the trial Court has come to the conclusion that the
appellant has committed the aggravated sexual assault which falls under
Section 9(m), 9(n) r/w 10 and 18 of POCSO Act. Since the age of the
victim child is below 12 years at the time occurrence and the appellant is
being the paternal uncle of the victim girl, the offence falls under Section
9(m) and 9(n) of POCSO Act, and he shall be punished under Section 10
of POCSO Act.
18.The learned counsel for the appellant has taken a defence that
there was a dispute between the appellant and Sathish (PW4), who
belong to different political parties. Due to the dispute, Sathish (PW4)
misguided the parents of the victim girl and foisted a false case against
the appellant. Normally, no mother would scurrilously make her
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daughter to give such false allegations to the extent that the appellant
pulled her daughter and made her to lay on the ground and committed the
penetrative sexual assault. Particularly, the relationship between the
victim and appellant are prohibited relationship i.e., paternal uncle. The
parents will not sacrifice the future of the victim child for flimsy reason.
Therefore, the defence taken by the appellant is not acceptable.
19.Further, there is a presumption under Section 29 of POCSO
Act. It is for the appellant to rebut the presumption by cogent and
reliable evidence. In this case, the appellant has not rebutted the
presumption that he never pulled the victim girl into the house and
committed sexual assault. Thus, when the victim girl was playing nearby
the house of the appellant, the brother of the appellant asked to buy tea
powder and after purchasing the tea powder and handing over the same
to the appellant's brother and while crossing the appellant's house, the
appellant pulled her into the house and had a sexual assault on her.
20.A reading of the cross examination of the victim girl (PW2), it
is seen that the victim girl denied the question put by the defense counsel
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that a false case has been foisted against the appellant due to the enmity
between Sathish (PW4) and the appellant. Therefore, under these
circumstances, this Court has come to the independent conclusion that
though the prosecution has not proved the case as per alleged charge, the
prosecution has proved its case from the evidence of the victim girl
(PW2) and the statement recorded under Section 164 Cr.P.C., that the
appellant has committed the offence under Sections 9(m), 9(n) r/w 10
and 18 of POCSO Act. Thus, the trial Court by appreciating the
evidence and materials in proper, rightly not convicted the appellant for
the offence punishable under Section 6 of POCSO Act.
21.This Court does not find any perversity or illegality in the
judgment dated 05.08.2020 in Special S.C.No.30 of 2019 passed by the
learned Sessions Judge, Special Court for dealing the cases under the
Protection of Children from Sexual Offence Act, Salem and the same is,
hereby, confirmed.
22.In the light of the above discussion, this Court does not find
any merit in this appeal and the appeal is liable to be dismissed.
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Considering the facts and circumstances of the case and the age of the
appellant, this Court modifies the sentence of seven years rigorous
imprisonment imposed by the trial Court for the offence under Section
9(m), 9(n) r/w 10 and 18 of POCSO Act to five years rigorous
imprisonment.
23.This Criminal Appeal is dismissed with modification. The
respondent Police is directed to secure the appellants for sufferance of
the remaining period of sentence. Consequently, the connected
Miscellaneous Petition is closed.
22.02.2021
Speaking Order/Non-Speaking Order
Internet : Yes/No
Index : Yes/No
vv2
To
1.The Sessions Judge,
Special Court for Exclusive trial of cases under the Protection of
Children from Sexual Offence Act, Salem.
P.VELMURUGAN, J.
vv2
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Crl.A.No.13 of 2021
2.The Inspector of Police,
All Women Police Station,
Sooramangalam,
Salem District.
3.The Public Prosecutor,
High Court, Madras.
Crl.A.No.13 of 2021
22.02.2021
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