Madras High Court
P.Karuppan vs State Rep. By on 23 February, 2021
Crl.A.No.567 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.567 of 2019 and
Crl.M.P.No.12718 of 2019
P.Karuppan ... Appellant
-Vs-
State Rep. by
Inspector of Police,
All Women Police Station,
Kangeyam,
Tiruppur District.
(Cr.No.2/2018). ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of Code of
Criminal Procedure, to set aside the judgment passed in Spl.S.C.No.15 of
2018, dated 26.09.2018 on the file of the Fast Track Mahila Court for
POCSO Act, 2012 cases at Tiruppur.
For Appellant : Mr.P.A.Kadirvel
For Respondent : Mr.R.Suryaprakash,
Government Advocate [Crl. Side]
*****
JUDGMENT
This Criminal Appeal has been filed against the conviction and
sentence imposed by the learned Sessions Judge, Mahalir
Neethimandram, (Fast Track Mahila Court), Tiruppur in Special
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Crl.A.No.567 of 2019
S.C.No.15 of 2018, dated 26.09.2018.
2.The respondent Police have registered a case in Crime No.2 of
2018, for offence under Sections 9(m)(n) r/w 10 of Protection of
Children from Sexual Offence Act, 2012 against the appellant on the
complaint [Ex.P1] given by PW2. After completing investigation, the
respondent Police laid a charge sheet before the learned Sessions Judge,
Mahalir Neethimandram, (Fast Track Mahila Court), Tiruppur and same
was taken on file in Special S.C.No.15 of 2018.
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 Sections
9(m) r/w 10 and 9(n) r/w 10 of Protection of Children from Sexual
Offence Act, 2012.
4.After completing the trial and hearing the arguments advanced
on either side and also considering the oral and documentary evidence,
the learned Sessions Judge found guilty of the appellant for offence
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Crl.A.No.567 of 2019
punishable under Sections 9(m) r/w 10 and 9(n) r/w 10 of Protection of
Children from Sexual Offence Act, 2012 and convicted and sentenced to
undergo Rigorous Imprisonment for 7 years and to pay a fine of
Rs.10,000/-, for each of the offences, in default of payment of fine, the
appellant has to undergo one year Rigorous Imprisonment for each of the
offences.
5.Challenging the above said conviction and sentence, the
appellant has filed the present appeal before this Court.
6.The learned counsel for the appellant would submit that the date
of occurrence is 17.02.2018, whereas the complaint was lodged with a
delay of two days on 19.02.2018, for which, no explanation was given on
the side of the prosecution. The complainant (PW2)/father of the victim
girl stated that only after discussing with the family members, he has
given the complaint (Ex.P2) is not sufficient. The learned counsel would
further submit that already there was a dispute between the appellant and
the father of the victim girl (PW2), due to which, he made a false
complaint against the appellant in order to take vengeance. The
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Crl.A.No.567 of 2019
witnesses PW4 to PW6 who are stated to be neighbours, actually they are
not neighbours to the place of occurrence. The learned counsel for the
appellant would further submit that there are material contradictions in
the statement of the victim girl (PW1) recorded under Section 164
Cr.P.C., (Ex.P7) and the evidence given by her as PW1. The trial Court
failed to appreciate the contradictions between the prosecution witnesses.
Further, the evidence of the victim girl (PW1) and her statement recorded
under Section 164 Cr.P.C., has not corroborated by any other prosecution
witnesses to prove the guilt of the appellant and except PW1, no eye
witness in this case and no independent witness was examined by the
prosecution to establish its case beyond all reasonable doubt. The trial
Court failed to appreciate the evidence and wrongly convicted the
appellant on the ground of assumption, presumption and conjunction and
also on the ground of sympathy and therefore, the judgment of the trial
Court is liable to be set aside and the appellant has to be acquitted.
7.Mr.R.Suryaprakash, Government Advocate [Crl. Side] appearing
on behalf of the respondent would submit that out of 8 witnesses on the
side of the prosecution, the victim girl (PW1) was examined as PW1. At
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Crl.A.No.567 of 2019
the time of occurrence, she was a minor and aged about 12 years. On the
date of occurrence i.e., on 17.02.2018, at about 05.00 p.m., the victim girl
(PW1) was taking bath in the bathroom situated near her house and there
was no door for the bathroom. When she was applying soap over her
face, the appellant came there, hugged her from behind and pressed her
breast. Suddenly, the victim girl (PW1) raised alarm and her father
(PW2) and mother (PW3) rushed to the scene of occurrence. The mother
of the victim girl (PW3) secured her and subsequently, she dragged the
appellant from the bathroom. On hearing the sound, the neighbours also
gathered and with the help of the relatives and neighbours, the father of
the victim girl (PW2) preferred a complaint to the respondent Police
Station. The respondent Police registered the case and produced the
victim girl (PW1) before the learned Magistrate for recording her
statement under Section 164 Cr.P.C.
8.The learned Government Advocate would further submit that
during trial, the victim girl was examined as PW1, her father and mother
were examined as PW2 and PW3, who were seen the occurrence and
pulled the appellant from bathroom. PW4 to PW6, who are neighbours
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Crl.A.No.567 of 2019
to the place of occurrence after hearing the sound from the house of the
victim, rushed to the place and saw the appellant was dragged from the
bathroom by the parents (PW2 & PW3) of the victim girl. When the
victim girl (PW1) was enquired, she narrated the incident happened to
her and subsequently, a complaint was given to the respondent Police.
During investigation, the victim girl was produced before the learned
Magistrate for recording the statement under Section 164 Cr.P.C., and
the same was marked as Ex.P7. After completing the investigation, the
respondent Police laid a charge sheet before the trial Court. On
completion the trial, the appellant was convicted and sentenced as stated
above.
9.Therefore, the prosecution substantiated the charge framed
against the appellant and the trial Court rightly appreciated the entire oral
and documentary evidence adduced by the prosecution and convicted the
appellant for offence under Sections 9(m) r/w 10 and 9(n) r/w 10 of
POCSO Act. The judgment of the trial Court need not be interfered with.
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Crl.A.No.567 of 2019
10.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.
11.The case of the prosecution is that at the time of occurrence, the
victim girl (PW1) was a minor and she was aged below 12 years. On
17.02.2018, at about 05.00 p.m., the victim girl (PW1) was taking bath in
the bathroom situated near her house and there was no door for the
bathroom. When she was applying soap over her face, the appellant
came there, hugged her from behind and pressed her breast. Suddenly,
the victim girl (PW1) raised alarm and her father (PW2) and mother
(PW3) rushed to the scene of occurrence. The mother of the victim girl
(PW3) secured her and dragged the appellant from the bathroom. On
hearing the sound of the victim girl, the neighbours (PW4 to PW6)
rushed to the scene of occurrence and saw the appellant was dragged
from the bathroom by the parents (PW2 & PW3) of the victim girl
(PW1). Thereafter, the father of the victim girl (PW2) lodged a
complaint (Ex.P2) to the respondent Police.
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Crl.A.No.567 of 2019
12.Based on the complaint (Ex.P2) given by PW2, an First
Information Report [Ex.P8] in Crime No.2 of 2018 was registered for
offence under Section 9(m)(n) r/w 10 of POCSO Act. After completing
investigation, the respondent police laid a charge sheet before the learned
Special Judge, Magalir Neethimandram (Fast Track Mahila Court),
Tiruppur and the same was taken on file as Special S.C.No.15 of 2018.
13.During the trial, in order to prove the case of the prosecution,
on the side of the prosecution, as many as 8 witnesses were examined as
PW1 to PW8 and 7 documents were marked as Exs.P1 to P7 and no
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, he denied the
same as false. On the side of the defence, no oral and documentary
evidence was produced.
14.After completing trial and hearing the arguments advanced on
either side, the learned Sessions Judge, by judgment dated 26.09.2018 in
Special S.C.No.15 of 2018, convicted and sentenced the appellant as
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Crl.A.No.567 of 2019
stated above.
15.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.
16.On a perusal of the evidence and materials, it is seen that the
victim was examined as PW1 and her father and mother were examined
as PW2 and PW3. The victim girl (PW1) in her evidence has stated that
on 17.02.2018, at about 05.00 p.m., while taking bath in bathroom
situated near the house and there was no door. When she was applying
soap on her face, someone hugged behind her and also pressed her
breast. Suddenly, she raised alarm and her mother (PW3) came there and
rescued her and her father also subsequently came there. The mother
(PW3) gave a cloth and secured the victim girl (PW1) and dragged the
appellant from the bathroom. On hearing the noise of the victim girl, the
neighbours also came to the place of occurrence. After discussing with
the neighbours, the father of the victim girl (PW2) lodged a complaint to
the respondent Police.
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Crl.A.No.567 of 2019
17.The father of the victim girl was examined as PW2 and he
clearly narrated that when her daughter was taking bath in the bathroom,
he received sound and immediately, he and his wife rushed to the
bathroom. At that time, his wife (PW3) entered the bathroom and pulled
the appellant outside. The mother of the victim girl was examined as
PW3 and she has also narrated and corroborated the evidence of her
daughter (PW1) and her husband (PW2). The neighbours, who were
examined as PW4 to PW6 categorically stated that they heard sound from
the bathroom of the defacto complainant's house and rushed to there. At
that time, the parents (PW2 & PW3) of the victim girl pulled the
appellant from the bathroom and when they enquired, the victim girl
(PW1) and the mother of the victim girl (PW3) narrated the incident and
thereafter, on discussion, PW2/the father of the victim lodged a
complaint (Ex.P2) to the respondent Police.
18.Subsequent to the occurrence, the victim girl was produced
before the learned Magistrate for recording the statement under Section
164 Cr.P.C., and the same was recorded and marked as Ex.P7. A careful
reading of Ex.P7/the statement recorded under Section 164 Cr.P.C., the
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Crl.A.No.567 of 2019
victim girl clearly narrated the incident taken place in the bathroom while
taking bath. Even though the statement under Section 164 Cr.P.C., is not
a substantive evidence, but subsequently the same was substantiated by
examining victim child as PW.1 during trial before the trial Court.
19.The evidence of the parents of the victim girl (PW2 and PW3)
corroborated the statement of the victim girl under Section 164 Cr.P.C.,
(Ex.P7) and her evidence. The neighbours (PW4 to PW6) also
corroborated the evidence of PW1 to PW3 that they heard the noise from
the bathroom, at that time, the mother of the victim girl dragged the
appellant from the bathroom and when they enquired, the mother of the
victim girl narrated the incident.
20.Therefore, the prosecution has clearly proved its case beyond
all reasonable doubt. Once it is proved by the prosecution that the
appellant has committed the offence under the POCSO Act, as per
Section 29 and 30 of POCSO Act, it is for the appellant, who has to rebut
the presumption in the manner known to law. In this case, the appellant
has not rebutted the presumption by cogent evidence and materials in the
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Crl.A.No.567 of 2019
manner known to law.
21.Hence, this Court independently comes to the conclusion that
the appellant has committed the offence under Sections 9(m) r/w 10 and
9(n) r/w 10 of Protection of Children from Sexual Offence Act, 2012 and
therefore, the prosecution has established its case beyond all reasonable
doubt. 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.
22.Accordingly, this Criminal Appeal is dismissed and the
judgment of conviction and sentence passed by the trial Court is
confirmed.
23.03.2021
Speaking Order/Non-Speaking Order
Internet : Yes/No
Index : Yes/No
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Crl.A.No.567 of 2019
To
1.The Sessions Judge,
Magalir Neethimandram (Fast Track Mahila Court),
Tiruppur.
2.The Inspector of Police,
All Women Police Station,
Kangeyam,
Tiruppur District.
3.The Public Prosecutor,
High Court, Madras.
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Crl.A.No.567 of 2019
P.VELMURUGAN, J.
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Crl.A.No.567 of 2019
23.02.2021
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