Madras High Court
Vijayakumar vs The State Reptd. By on 23 February, 2021
Crl.A.No.687 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.687 of 2019 and
Crl.M.P.No.2128 of 2020
Vijayakumar .. Appellant
.Vs.
The State reptd. by
Inspector of Police,
W-27, All Women Police Station,
Vadapalani, Chennai-600 026.
[Cr.No.12 of 2017] .. Respondent
Criminal Appeal filed under Section 374 (2) of the Code of
Criminal Procedure to set aside the Judgment dated 22.08.2019 passed
in S.C.No.166 of 2018 by the learned Sessions Judge, Mahila
Court/Special Court for cases under the POCSO Act, Chennai-600 104
and thereby acquit the Appellant/Accused.
For Appellant : Mr.P.K.Mohan Vel
For Respondent : Mr.R.Suryaprakash
Government Advocate
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Crl.A.No.687 of 2019
JUDGMENT
This Criminal Appeal has been filed challenging the judgment
dated 22.08.2019 passed in S.C.No.166 of 2018 by the learned Sessions
Judge, Mahila Court/Special Court for cases under the POCSO Act,
Chennai-600 104 (in short "the trial Court") and thereby, acquit the
Appellant/Accused.
2. The respondent police registered a case against the appellant in
Crime No.12 of 2017 for the offences punishable under Sections 7 r/w 8
of the Protection of Children From Sexual Offences (in short 'POCSO')
Act. After investigation, charge sheet was laid and taken on file by the
trial Court in S.C.No.166 of 2018 for the offence punishable under
Section 10 of POCSO Act.
3.After completing the formalities, the learned Judge framed charge
against the accused for the offence punishable under Section 10 of the
POCSO ACT.
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Crl.A.No.687 of 2019
4. After completing the trial and hearing the arguments advanced on
either side and also considering the oral and documentary evidence, the
Special Court found guilty of the appellant for offence punishable under
Section 10 of the POCSO Act and convicted and sentenced him to
undergo 5 years Simple Imprisonment and imposed a fine of Rs.5,000/-
in default to undergo further period of 6 months Simple imprisonment.
Aggrieved against the same, the accused is before this Court by filing
this Appeal.
5. The learned counsel for the appellant would submit as follows:
(i) There is a delay in recording the evidence of the victim child,
which violates the provision under Section 35(1) of the POCSO Act, as
per which the evidence of the victim child shall be recorded within a
period of 30 days of the Special Court taking cognizance of the case.
(ii) There is no corroboration for the evidence of P.W.1- the victim
child.
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Crl.A.No.687 of 2019
(iii) So- called eye witness who is alleged to have seen the offence
committed by the appellant and who had informed the same to P.W.6-the
grandmother of the victim, was not examined by the prosecution.
(iv) The occurrence has not taken place as alleged by the
prosecution and no independent witnesses were examined.
(v) In order to register a false case against the appellant, the victim
girl was tutored to make such an allegation.
(vi) There are contradictions in the statement of the victim child, in
the complaint, as well as in the statement recorded under Section 164
Cr.P.C.
(vii) Though the occurrence took place in the apartment, which is
near to the petrol bunk, the investigating officer had not recovered the
C.C.T.V.footage fixed in the opposite side of the petrol bunk to trace the
correct accused.
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Crl.A.No.687 of 2019
(viii) The learned trial Judge failed to consider the legal as well as
factual position in proper perspective and erroneously convicted and
sentenced the accused and therefore, the order of the trial Court warrants
interference.
6. The learned Government Advocate (Crl.Side) would submit as
follows:
(i) The appellant is an auto driver and the age of the victim child at
the time of occurrence was only 6 years and on 25.12.2017, about 7.00
P.M., when the victim child had gone to purchase plantain leaves and
returned, the appellant dragged her to the auto, unzipped her dress,
pressed her breasts and kissed her and immediately, after coming to
know about the occurrence, the mother and grandmother of the victim
child went to the spot and thereafter, lodged a complaint against the
appellant.
(iii) Though there is no eye witness in this case, P.W.6-
grandmother of the victim child has clearly stated that one day, when she
was returning from work, someone told that her grand child was
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Crl.A.No.687 of 2019
sexually abused by someone by keeping her in his Autorickshaw and
thereafter she saw the autorickshaw was standing near the petrol bunk
and the appellant started to have escape, at that time, the people around
there rescued the victim child and caught hold of the appellant and
thereafter, he was handed over to the police and a complaint was lodged
against him.
(iv) The victim child was produced before the learned Magistrate
and the learned Magistrate also recorded her statement under Section 164
Cr.P.C., which corroborates her evidence let in before the Court.
(v) Though there is no eye witness to the occurrence, the victim
child has clearly narrated the incident.
(vi) Though the learned counsel for the appellant submitted that the
victim child had not mentioned the name of the appellant at the time of
deposition and in her cross-examination, she deposed that only her father
told the name of the appellant, it has to be seen that the victim child was
aged only about 6 years at the time of occurrence and even though she
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Crl.A.No.687 of 2019
has not mentioned his name, but she has rightly identified him.
(vii) There is no merit in this Appeal and the same is liable to be
dismissed.
7. Heard both sides. Perused the records.
8. The case of the prosecution is that the accused is an
Autorickshaw driver and on 25.12.2017, about 7.00 P.M, when the
victim child who was aged about 6 years was playing in Sivan Koil
Street, Magamayee Flats, Kodambakkam, the accused dragged her in his
autorickshaw and kissed on her mouth/lips and pressed her breasts and
thereby committed aggravated sexual assault on her. Subsequently on
coming to know of the occurrence, the mother of the victim child lodged
the complaint against the accused.
9. After completing the investigation, the respondent Police laid a
charge-sheet before the trial court, and the same was taken on file in
S.C.No.166 of 2018, and charge was framed against the appellant as
stated in the foregoing paragraphs of this Judgment.
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Crl.A.No.687 of 2019
10. In order to prove the case of the prosecution before the trial
Court, on the side of the prosecution as many as 7 witnesses were
examined as P.W.1 to P.W.7 and 9 documents were marked as Exs.P1 to
P9 and one Material Object was marked.
11.After completing the prosecution evidence, the incriminating
circumstances culled out from the evidence of prosecution witnesses
under Section 313 Cr.P.C., were put before the appellant and the
appellant denied them as false. However, on the side of the appellant, no
witness was examined and no documentary evidence was produced.
12.After considering the evidence on record, hearing arguments
advanced on either side, the trial Court vide judgment dated 22.08.2019
in S.C.No.166 of 2018, convicted and sentenced the appellant as stated
above.
13.Challenging the said judgment of conviction and sentence, the
present appeal has been preferred by the appellant.
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Crl.A.No.687 of 2019
14.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.
15. In order to substantiate the case of the prosecution, the victim
child was examined as P.W.1. A reading of the deposition of the victim
child shows that she was 7 years old at the time of evidence and one day,
she went to a nearby shop to buy plantain leaves and when she was
returning from the shop, she saw the appellant standing with his
autorickshaw, he pulled her inside autorickshaw and put on the screen;
thereafter, he unzipped her dress, pressed her breasts and bit her lips. She
also deposed that one uncle noticed the same and informed the matter to
her parents and her father rushed to the spot and beat the appallent and
her mother also shouted at him. Subsequently, her mother lodged a
complaint against the appellant before the police. Though P.W.2 and
P.W.3 are not direct eye witnesses to the occurrence, they have clearly
stated what they have seen to prove that the appellant had sexually
assaulted the victim child. Further, the grandmother of the victim child
was examined as P.W.6 and she has clearly narrated how she came to
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Crl.A.No.687 of 2019
know the occurrence and what she saw. Therefore, from the evidence of
P.W.'s1, 2, 3 and 6, it is clear that the victim child was sexually assaulted
by the appellant and be it noted, minor contradictions in the testimony of
witnesses here and there would not be fatal to the case of the prosecution.
Usually, the culprit would take advantage of the loneliness of the child to
commit the offence and therefore, in this case also, the appellant after
finding that the victim child was alone, had committed the offence and
therefore, direct eye witness cannot be expected for these type of cases.
16. Though the learned counsel for the appellant would submit
that there is contradiction in the statement of P.W.1, given before the
respondent police and in the statement recorded under Section 164
Cr.P.C, it has to be seen that though P.W.1 stated before the police that
when she was playing on the road, the said incident occurred whereas in
the statement recorded under 164 Cr.P.C., she has stated that when she
returned back from the shop after purchasing plantain leaves, the incident
occurred, but, in both the statements, P.W.1 has clearly narrated that it is
the appellant who dragged her to the autorickshaw, unzipped her dress,
pressed her breasts and kissed her. Thus the act committed by the
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Crl.A.No.687 of 2019
appellant was clearly stated by the victim child and therefore, the minor
contradictions, in the statements of the victim child cannot be taken as a
ground to disbelieve the version of P.W.1.
17. A conjoint reading of evidences and a careful perusal of the
materials available on record, makes it abundantly clear that the victim
child was subjected to sexual harassment. Though the learned counsel
for the appellant submitted that there is delay in recording the evidence
of the victim child, which violates the provision under Section 35(1) of
the POCSO Act, that cannot be a sole ground to acquit the appellant, for
the reason that the victim girl was 6 years old at the time of occurrence
and considering the nature of offence committed by the appellant, if this
Court is too hypertechnical in its approach, then, the very object of the
POCSO Act itself would be defeated.
18. As regards the contention of the learned counsel for the
appellant that the victim child was tutored in order to register a false case
against the appellant, on a careful reading of the entire materials on
record, this Court does find any reason to discard the evidence of the
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Crl.A.No.687 of 2019
victim child and there is no reason to doubt about the trustworthiness of
the victim child. There is no reason to hold that she was tutored by her
parents for some reason or other.
19. The trial Court, on appreciating both the oral and documentary
evidences has rightly convicted and sentenced the accused as stated
above. Accordingly, this Court does not find any perversity in the
judgment of the trial Court.
20. In the ultimate analysis, this Criminal Appeal is dismissed and
the judgment of conviction and sentence dated 22.08.2019 made in
S.C.No.166 of 2018 by the trial Court, is hereby confirmed.
Consequently, connected Miscellaneous Petition is closed.
23.02.2021
arr
Index: Yes/No
Internet: Yes/No
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Crl.A.No.687 of 2019
To
1. The Inspector of Police,
W-27, All Women Police Station,
Vadapalani, Chennai-600 026.
2.The Sessions Judge, Mahila Court/Special Court
for cases under POCSO Act, Chennai- 600 104.
3. The Public Prosecutor,
Madras High Court.
4. The Deputy Registrar (Crl.side)
Madras High Court.
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Crl.A.No.687 of 2019
P.VELMURUGAN,.J.
arr
CRL.A.No.687 of 2019
23.02.2021
https://www.mhc.tn.gov.in/judis/
