Madras High Court
Pasuvaraj @ Kallaiya vs State Rep.By on 22 February, 2021
Crl.A.No.456 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.456 of 2020
Pasuvaraj @ Kallaiya
S/o.Kubendiran ...Appellant/Accused
Vs.
State rep.by
The Inspector of Police,
All Women Police Station,
Hosur,
Krishnagiri District.
(Crime No.6/2018) ...Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 (2) Cr.P.C., to call for the
entire records in connection with the Spl.S.C.No.54/2018 on the file of the
learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri
District and set aside the judgment dated 16.03.2020.
For Appellant : Ms.Revathy G.Mohan
Legal Aid Counsel
Mr.E.Kannadasan
For Respondent : Mr.C.Raghavan
Government Advocate (Crl.Side)
*****
https://www.mhc.tn.gov.in/judis/
1/12
Crl.A.No.456 of 2020
JUDGMENT
The Criminal Appeal has been filed against the conviction and sentence
imposed by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri,
Krishnagiri District in Spl.S.C.NO.54/2018, dated 16.03.2020.
2. The respondent police registered a case against the appellant in
Crime.No.6 of 2018 for offence under Section 366, 342 IPC and under Section
5(1) r/w. 6 of the POCSO Act. After investigation, a charge sheet was filed
before the Special Judge, Mahila Court, Namakkal. The learned Special Judge
taken the charge sheet on file in Special S.C.No.54 of 2018 and after trial,
convicted the appellant for the offence under Section 366, 342 IPC and under
Section 5(1) r/w. 6 of the POCSO Act. Challenging the said conviction and
sentence, the appellant has filed the present appeal before this Court.
3. Learned counsel for the appellant would submit that there are
material contradictions between the evidence of the Doctor, P.W.2 and the
victim girl, P.W.1. regarding the place of occurrence and manner of occurrence
and sexual assault made by two unknown persons repeatedly. The Trial Court
convicted the appellant based on the evidence of P.W.1. The victim girl was
examined as P.W.1 and she deposed regarding the place of occurrence,
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
involvement of the persons who had committed forceful sexual assault on her.
Further he would submit that there was an inordinate delay in filing the
complaint. There was no explanation on the side of the prosecution. The
unexplained inordinate delay is fatal to the case of the prosecution. The
prosecution failed to seize the mobile phone of the appellant and victim girl and
sent the same for analysis to find out the communication and conversation
between the appellant and the victim girl, since both were strangers and they
contacted through their mobile phone and they never met each other.
4. The learned Special Judge failed to note that the contradiction
between the evidence of the victim girl and the prosecution witness P.W.15
regarding the shelter given by him and he has not supported the case of the
victim girl and denied the relationship since he is a stranger and no way
connected with her which was also confirmed by P.W.2, who is none other than
brother of P.W.1, victim girl. According to the victim girl, she was kidnapped
by two unknown persons, who beaten her and had sexual intercourse
repeatedly, whereas the prosecution projected new story that the appellant had
taken the victim from Dharmapuri Railway Station and had sexual intercourse
and the friend of the victim girl one poojasri has not supported the case of the
prosecution. There are more contradictions in the evidence of the Investigating
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
Officer and therefore, the prosecution failed to establish its case and
substantiate the charges framed against the appellant/accused and the trial
Court wrongly convicted the appellant. Even the ingredients of Sections 366
and 342 IPC are not made out, the Sub-Court convicted the appellant by
assumption, surmises and conjunctures and on sympathy ground and not on the
material substance. Therefore, the appeal is liable to be allowed and the
judgment of conviction is liable to be set aside.
5. Learned Government Advocate (Crl.Side) would submit that
initially the case was registered for offence under Sections 366, 346 and 5(1)
r/w. 6 of POCSO Act. After investigation, the charge sheet was filed before the
Special Court and the Special Court also taken the case on file and framed the
charges against the appellant. In order to prove their case, they examined totally
19 witnesses and marked 21 documents. Though P.W.5, P.W.6 and P.W.9
turned hostile and not supported the case of the prosecution, the victim girl was
examined as P.W.1, she has clearly narrated the occurrence. P.W.2 and P.W.3 –
brothers, have spoken about the missing of her sister and later upon receiving a
call from the victim girl, they met the victim girl and subsequently they made
the complaint. P.W.4 is the mother of the victim girl. The victim girl was
produced before the Doctor, who examined the victim girl and conducted the
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
medical examination and he has clearly stated that the victim girl was subjected
to sexual assault. P.W.5, who was said to have stayed along with the victim girl
in the hostel, informed that the victim girl was not in the hostel. The victim girl
was staying in the hostel and doing work and for certain period she was missing
from the hostel. The evidence of P.W.1 and P.W.3 corroborates each other that
during the relevant period of time, Mahalakshmi was not in the hostel. P.W.6
also spoken that during the relevant period Mahalakshmi neither stayed in the
hostel nor come for work. P.W.7 is the watchman who was working in the mill
where the victim girl was working and he has stated that the victim girl did not
come to the mill for work. The specific case is that due to the wrong call both
were introduced each other and subsequently, the appellant called the victim
girl to meet him, both met each other and that time the appellant beaten the
victim girl and forced to have sexual intercourse. P.W.1 to P.W.8 stated that
during the relevant period she was neither in the hostel nor in the working place
or went to her house.
6. The Doctor, one who examined the victim girl has stated that there
is no external injury and hymen was not intact and vagina admitted one finger.
She was in menses period and she was subjected to sexual assault. The Head
Master of the School in which the victim girl was studying was examined as
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
P.W.13 and had stated that he produced the birth certificate of the victim girl
and the date of birth of the victim girl is 15.06.2000. At the time of the
occurrence, the age of the victim girl was only about 17 years and she was not
completed 18 years and therefore, she is a child under Section 2 (1)(d) of
POCSO Act, since she was subjected to sexual intercourse. Therefore, the
prosecution has proved the case beyond reasonable doubt. Therefore, the appeal
is liable to be dismissed.
7. Heard and perused the materials on record.
8. The case of the prosecution is that P.W.1 was aged about 17 years
working in the Arunothayam Company, Ammapalayam, Paaladam, and P.W.5
Poojasri who is the relative of P.W.1, also working along with her and P.W.5
was possessed her cell phone for the purpose to contact with her family
members. While so, she received a wrong call from one mobile and P.W.1
attended the phone call, during their conversation the appellant expressed his
love affair. After sometimes, the appellant had given a false promise that he
would marry her and directed her to come to Dharmapuri Railway Station. On
receipt of intimation on 22.02.2018 she went to Dharmapuri Railway Station,
from there she was taken to Hosur and had sexual intercourse. On next day she
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
found that he was not there and try to contact his cell phone found switched off,
while she was on the way and approached P.W.15 and he took the victim and
there she stayed about 10 days and thereafter, she came to Dharmapuri and
informed her brother P.W.2 about her arrival, on receipt of intimation he came
and took her to their home and thereafter she lodged the complaint and thereby,
the appellant committed offence punishable under Sections 366, 342 IPC and
Section 5(1) r/w. 6 of the POCSO Act.
9. This Court, being an Appellate Court, is a fact finding Court,
which has to necessarily re-appreciate the entire evidence and give an
independent finding.
10. In order to prove the case of the prosecution, on the side of the
prosecution 19 witnesses were examined as P.W.1 to P.W.19 and 21 documents
were marked as Exs.P.1 to P.21. No material object was marked. After
completing the examination of prosecution witnesses and incriminating
circumstances culled out from the prosecution witnesses were put before the
appellant, he denied the same as false. On the side of the defence, no oral and
documentary evidence was produced.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
11. On appreciation of materials and evidence, the trial Court rendered
a finding of conviction and sentenced the appellant/accused for the offence
punishable under Section 366 IPC and sentenced to undergo Rigorous
Imprisonment for 5 years and to pay a fine of Rs.1,000/-, in default, to undergo
Rigorous Imprisonment for 6 months and convicted for the offence punishable
under Section 342 IPC and sentenced to undergo Rigorous Imprisonment for 10
months and to pay a fine of Rs.1,000/-, in default, to undergo Rigorous
Imprisonment for one month and convicting him for the offence under Section
5(1) r/w. 6 of the POCSO Act and sentenced to undergo Rigorous
Imprisonment for 10 years and to pay a fine of Rs.1,000/-, in default to undergo
Rigorous Imprisonment for one year and sentences are ordered run
concurrently.
12. In order to prove the case of the prosecution, the victim girl was
examined as P.W.1. A reading of the evidence of P.W.1 she has clearly narrated
the incident. Though the appellant is not a known person, but from the wrong
phone call both introduced themselves each other and subsequently, at one
point of time they met each other and the appellant took her to some where else
and beaten her and had penetrative sexual intercourse with her and the evidence
of P.W.1 to P.W.6 supported the case of the prosecution to the extent that
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
during the relevant period, the victim girl was neither in the hostel nor in the
working place or in her native. After registering the case, the victim girl was
produced before the Doctor, P.W.12, who examined the victim girl has stated
that she was subjected to penetrative sexual intercourse and hymen was not
intact. Though the learned counsel for the appellant would submit that the
victim girl has stated that unknown two persons kidnapped her and the case
was registered against one person and left out the other person, a reading of the
materials show that the victim girl has mentioned the name of the appellant as
the person, who kidnapped her and had sexual intercourse. The evidence of
PW-12, Doctor, also supported the case of victim girl that she was subjected to
penetrative sexual assault. Subsequently, she was also produced before the
Magistrate to record the statement under Section 164 Cr.P.C., and the
Magistrate also recorded the statement and it also clearly proves that the
appellant taken her to unknown place and had a penetrative sexual intercourse
with her. P.W.2's statement recorded under Section 164 Cr.P.C., which clearly
proves that the appellant took the victim girl to Hosur and their he raped her
and left her. Thereafter, she stayed with PW-15 and subsequently, informed to
her brother. PW-2, brother of the victim girl deposed that P.W.15 is an
unknown person. It is the evidence of PW-1, victim, that the appellant after
having sexual intercourse, left her and since she was not in a position to go to
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
her home in that situation, she stayed with PW-15 for sometime and informed
her brother. Along with Ex.P.2, the birth certificate the Aadhar also annexed in
that the date of birth of the victim girl mentioned as 15.06.2020. The date of
occurrence is on 22.02.2018, at the time of occurrence the age of the victim girl
is only 17 years and therefore, she is a child and hence, the offence committed
falls under the POCSO Act. The evidence of the Doctor, who examined the
victim girl, was also to the effect that she was subjected to penetrative sexual
intercourse. Though the statement recorded under Section 164 Cr.P.C., is not a
substantiative evidence and it has to be corroborated. The statement of the
victim recorded under Section 164 Cr.P.C., has been substantiated by the
evidence of PW-1. Other witnesses have also spoken about the missing of the
girl.
13. In cases of this nature, there can be no eye-witness. Taking
advantage of the age of the victim girl, the appellant took her to a lonely place
and had sexual intercourse. Normally, the family of the victim would not
disclose the same to others and they would very much worry about the
reputation. Hence, there would be delay in filing the complaint. The fact
remains that the victim girl not completed the age of 18 years, but there is no
evidence to prove that the appellant forcibly taken the victim girl from the
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
custody of the lawful guardian and wrongfully restrained her. The victim has
clearly stated that the appellant called her to meet, she only went there and he
took her to Hosur and in lonely place had sexual intercourse and he left her.
Therefore, the conviction and sentence imposed for the offence under Sections
366 and 342 IPC are set aside. However, the prosecution has established its
case for the offence under Section 5(1) r/w. 6 of the POCSO Act and hence, the
conviction made by the Trial Court for the said offence is confirmed.
14. Accordingly, the appeal is partly allowed. The conviction and
sentence for the offence punishable under Sections 366 and 342 IPC are set
aside. The conviction made by the Trial Court for offence under Section 5(1)
r/w. 6 of the POCSO Act is confirmed and modified the sentence from 10 years
to 7 years which will meet the ends of justice. The legal aid counsel is entitled
for fees as per the rules.
22.02.2021
bri
Index : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis/
Crl.A.No.456 of 2020
P.VELMURUGAN, J.
bri
To
1. The Inspector of Police,
All Women Police Station,
Hosur, Krishnagiri District.
2.The Sessions Judge,
Fast Track Mahila Court,
Krishnagiri, Krishnagiri District.
3.The Public Prosecutor,
High Court, Madras.
Crl.A.No.456 of 2020
22.02.2021
https://www.mhc.tn.gov.in/judis/
