Madras High Court
Manimuthu vs State Represented By on 24 February, 2021
Crl.A.No. 658 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No. 658 of 2019
Manimuthu .. Appellant
.Vs.
State Represented by
The Inspector of Police,
W.26, All Women Police Station,
Ashok Nagar, Chennai-83. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to set aside the conviction and sentence imposed on the
appellant/accused by a judgment dated 06.09.2019 on the file of the
Sessions Judge, Mahila Court, Chennai.
For Appellant : Mr.G.Ashok Kumar
For Respondent : Mr.R.Surya Prakash
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
06.09.2019 in S.C.No.249 of 2018 on the file of the Mahila
Court/Special Court for Cases Under POCSO Act/Children's Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
Page No.1/14
Crl.A.No. 658 of 2019
2.The respondent police registered a case in Crime No.2 of 2017
against the appellant for the offence punishable under Section 12 of The
Protection of Children from Sexual Offences Act, 2012 [hereafter
'POCSO Act' for the sake of convenience]. After investigation, the
respondent police filed a charge sheet before the learned Sessions Judge,
Mahila Court/Special Court for Cases Under POCSO Act/Children's
Court, Chennai and the same was taken on file in S.C.No.249 of 2018.
3.After completing formalities, the trial Court framed the charges
against the appellant for the offences punishable under Section 363 IPC
and Section 12 of POCSO Act. The appellant/accused found guilty and
convicted for the offence under Section 12 of POCSO Act and sentenced
to undergo simple imprisonment for a period of two years and to pay a
fine of Rs.5,000/- and in default, to undergo simple imprisonment for a
period of six months. The appellant/accused was acquitted from the
charge under Section 363 IPC.
4.Being aggrieved by the said judgment of conviction and sentence,
the appellant is before this Court.
https://www.mhc.tn.gov.in/judis/
Page No.2/14
Crl.A.No. 658 of 2019
5.1 The learned counsel for the appellant would submit that though
the offence is alleged to have committed on 23.06.2017, but there is a
delay in lodging the complaint, which came to be filed on 28.06.2017.
The trial Court failed to appreciate that the complaint was preferred after
five days and the delay was not properly explained. Such unexplained
inordinate delay is fatal to the case of the prosecution. Further, the
alleged occurrence said to have taken place in the open place and not in
a hidden place. At the time of occurrence, the appellant was aged about
65 years and he was having his grand daughter in his hands and the same
was admitted by the victim girl (P.W.1) and the eye witness (P.W.3).
Since the accused was having a child in his hands at the time of
occurrence, it was not possible for him to commit such a sexual
harassment to the victim by lifting his lungi. Therefore, the appellant
could not have any intention to commit sexual assault on the victim girl
and he might have adjusted his lungi. The victim girl (P.W.1) and the eye
witness (P.W.3) misunderstood the action of the appellant and preferred a
complaint. Therefore, he has no guilty intention and he has not
committed any offence as alleged by the prosecution. He would further
submit that the victim girl, while deposing her evidence before the Court
https://www.mhc.tn.gov.in/judis/
Page No.3/14
Crl.A.No. 658 of 2019
has stated the appellant lifted his lungi and showed his private part.
Whereas, statement under Section 164 Cr.P.C., the victim girl has stated
that appellant lifted her dress and kept his hands on her private part. The
trial Court failed appreciate the contradictory statement of the victim girl.
5.2 The learned counsel for the appellant would further submit that
after due deliberation, P.W.3 defacto complainant preferred the complaint
against the appellant. The respondent police registered the case belatedly,
knowing fully well that it is a false case and conducted the investigation
and laid a charge sheet before the Court below. He would further submit
that no independent witnesses have been examined. However, the learned
trial Judge failed to consider the materials and erroneously convicted the
appellant only on assumption and sympathy, and therefore, the judgment
of conviction and sentence passed by the trial Court against the
appellant, is liable to be set aside.
6.1 The learned Government Advocate (Crl.Side) would submit that
at the time of occurrence, the victim girl (P.W.1) is aged about six years
and was studying 3rd standard. The appellant is the neighbour of the
victim girl. On 23.06.2017 at about 4.45 p.m., when the victim girl was
https://www.mhc.tn.gov.in/judis/
Page No.4/14
Crl.A.No. 658 of 2019
playing down stairs of her house along with her younger sister, the
accused/appellant took her to the nearby common water tank and lifted
his lungi and showed his private part to the victim girl. P.W.3, who is the
neighbour of the victim girl noticed the said incident through the window
of her house and shouted the appellant. Thereafter, she informed the
same to the mother of the victim girl (P.W.2). After discussion, P.W.3, the
neighbour of the victim girl preferred a complaint against the appellant
and the respondent police registered the case. Therefore, from the
evidence of the eye witness (P.W.3) and the victim girl (P.W.1), the
prosecution has proved its case beyond reasonable doubt.
6.2 The learned Government Advocate (Crl.Side) would further
submit that prosecution has examined as many as 4 witnesses on its side.
During the examination of the witnesses, the victim girl (P.W.1) and the
eye witness (P.W.3) have clearly deposed that at the time of occurrence,
the appellant with sexual intention called the victim girl and lifted his
lungi and showed his private part, which falls under Section 11 of
POCSO Act, which is punishable under Section 12 of POCSO Act. He
would further submit that the presumption under Section 29 of the
POCSO Act can very much be attracted against the accused. Since, in
https://www.mhc.tn.gov.in/judis/
Page No.5/14
Crl.A.No. 658 of 2019
this case, the said presumption has not been rebutted by the accused in
the manner known to law. Therefore, the trial Court has rightly convicted
the appellant and hence, the appeal is liable to be dismissed.
7.Heard the learned counsel for the appellant and the learned
Government Advocate (Crl.Side) for the respondent and also perused the
materials available on record.
8. The case of the prosecution is that the victim girl (P.W.1) was
aged about 6 years at the time of occurrence i.e. on 23.06.2017. When the
victim girl was playing at down stairs of her house, the accused took her
to the nearby common water tank and lifted his lungi and showed his
private part to the victim girl. P.W.3, who is the neighbour of the victim
girl saw the said incident and informed the same to the mother of the
victim girl (P.W.2). After discussion, they preferred a complaint (Ex.P3)
to the respondent police and they have registered the case in Crime No.2
of 2017 against the appellant. After completing the investigation, the
respondent Police laid a charge sheet before the learned Sessions Judge,
Mahila Court/Special Court for Cases Under POCSO Act/Children's
Court, Chennai and the same was taken on file in S.C.No.249 of 2018
https://www.mhc.tn.gov.in/judis/
Page No.6/14
Crl.A.No. 658 of 2019
and charges were framed against the appellant for the offences as referred
to above.
9.In order to prove the case of the prosecution before the trial
Court, on the side of the prosecution as many as 4 witnesses were
examined as P.W.1 to P.W.4 and also marked four documents as Exs.P1 to
P4 and no material object was marked. After completion of the
prosecution side evidence, the incriminating circumstances were put to
the appellant/accused by examining the appellant/accused under Section
313 of Cr.P.C and he denied all the incriminating circumstances as false
and pleaded not guilty. On the side of the defence, no oral and
documentary evidence was marked.
10.The Court below, after hearing the arguments advanced on either
side and also considering the materials available on record, found that the
accused/appellant is guilty for the offence and convicted him and
imposed sentence as referred to above, which is challenged in this
Criminal Appeal.
11.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.
https://www.mhc.tn.gov.in/judis/
Page No.7/14
Crl.A.No. 658 of 2019
12.It is the specific case of the prosecution that on 23.6.2017 at
about 4.45 p.m., when the victim girl, who was aged about 6 years was
playing at her residence, the appellant took her to nearby common water
tank and showed his private part. P.W.3, who is the neighbour of the
victim girl (P.W.1) noticed the said incident and informed the same to
P.W.2/mother of the victim girl. Subsequently, they preferred the
complaint against the appellant.
13. At this juncture, the learned counsel for the appellant would
submit that no such occurrence has taken place. P.W.1/victim girl and
P.W.3/eye witness during their cross examination admitted that the
appellant was having his grand daughter in his hands and it was not
possible for him to commit such sexual harassment to the victim.
14.On a careful reading of the entire records, it would reveal that
soon after the occurrence, the victim girl (P.W.1) was produced before
the learned Judicial Magistrate for recording statement under Section 164
Cr.P.C. (Ex.P1) and she has stated that the appellant is her neighbour. On
23.6.2017 when she was playing with her younger sister in the upstairs,
at that time, the accused, who was standing downstairs of the house
asked them to come down and they went down. At that time the accused
https://www.mhc.tn.gov.in/judis/
Page No.8/14
Crl.A.No. 658 of 2019
touched her private part and subsequently, he lifted his lungi and showed
his private part. Though the statement recorded under Section 164(5)
Cr.P.C is not a substantive evidence. Subsequently, the victim girl was
examined as P.W.1 and during her examination she has clearly narrated
the said incident. There is a minor contradiction and insignificant
discrepancies in the statement of a prosecutrix. Therefore, the statement
under Section 164 Cr.P.C was substantiated by examining the victim girl
as P.W.1.
15. P.W.3, who is the neighbour of the victim girl and also eye
witness of the said occurrence has clearly deposed that when she was
standing near the window of her house, in order to see whether her son
was returning from the school; at that time, she saw the said occurrence
and shouted the appellant. On hearing, the neighbours and mother of the
victim girl (P.W.2) gathered there and P.W.3 informed the same to P.W.2.
Thereafter, P.W.3 preferred a complaint to the respondent police.
16.Though the occurrence had taken place on 23.06.2017, the
complaint was said to have been registered on 28.06.2017 with a delay of
5 days. Mere delay in registering FIR for sexual offence may not be a
sole ground to disallow the prosecution evidence. It is a settled law that
https://www.mhc.tn.gov.in/judis/
Page No.9/14
Crl.A.No. 658 of 2019
the conviction can be based on the sole testimony of prosecutrix, if the
same is clear, cogent and trustworthy and appears to the Court to be true.
When the delay is inordinate and version of the complainant is honest
and straight forward, the delay will not be fatal.
17. The main contention of the learned counsel for the appellant is
that at that time of occurrence, the appellant was having his grand
daughter with his hands and it was not possible for him to commit
sexual harassment as alleged in this case, at that time he only adjusted his
lungi, the victim girl and the eye witness misunderstood the same and
preferred the complaint. However, on combined reading of the evidence
of the victim girl (P.W.1) and eye witness (P.W.3), it would reveal that
the appellant with sexual intention purposefully misbehaved with the
victim girl.
18.This Court held that in cases involving sexual harassment,
molestation, etc. the court is duty-bound to deal with such cases with
utmost sensitivity. Minor contradictions or insignificant discrepancies in
the statement of a prosecutrix should not be a ground for throwing out an
otherwise reliable prosecution case. Evidence of the victim on sexual
assault is enough for conviction and it does not require any corroboration
https://www.mhc.tn.gov.in/judis/
Page No.10/14
Crl.A.No. 658 of 2019
unless there are compelling reasons for seeking corroboration. The court
may look for some assurances of her statement to satisfy judicial
conscience. The statement of the prosecutrix is more reliable than that of
an injured witness as she is not an accomplice. The Court further held
that the delay in filing complaint for sexual offence may not be even
properly explained, but if found natural, the accused cannot be given any
benefit thereof. In this case the presumption under Section 29 of the
POCSO Act can very much be drawn against the accused, since the said
presumption has not been rebutted by the accused in the manner known
to law.
19. Therefore, this Court finds that the appellant has committed the
charged offence. There is no reason to discard the evidence of the victim
girl. The prosecution has proved its case beyond reasonable doubt. The
trial Court, as a fact finding Court has rightly appreciated the entire
evidence and convicted the accused/appellant for the offence under
Section 12 of POCSO Act and hence, the conviction cannot be interfered
with.
20.Considering the age of the appellant and the offence involved in
this case and also considering the mitigating circumstances, this Court is
https://www.mhc.tn.gov.in/judis/
Page No.11/14
Crl.A.No. 658 of 2019
of the opinion that the sentence of two years simple imprisonment
imposed on the appellant by the trial Court is to be modified to one year
simple imprisonment, which will meet the ends of justice.
21.In the result, this Criminal Appeal is dismissed with the above
modification with regard to quantum of sentence i.e. the appellant is
sentenced to undergo one year simple imprisonment instead of two years
simple imprisonment. In all other aspects, the judgement in S.C.No.249
of 2018 by the Sessions Judge, Mahila Court/Special Court for Cases
Under POCSO Act/Children's Court, Chennai stands unaltered. If the
appellant/accused is not in duress, the trial Court is directed to take
appropriate steps to secure the presence of the appellant to serve the
remaining period of sentence.
24.02.2021
ms
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
https://www.mhc.tn.gov.in/judis/
Page No.12/14
Crl.A.No. 658 of 2019
To
1.The Sessions Judge,
Mahila Court/Special Court for Cases
Under POCSO Act/Children's Court,
Chennai.
2.The Inspector of Police,
W.26, All Women Police Station,
Ashok Nagar, Chennai.
3.The Public Prosecutor,
High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
https://www.mhc.tn.gov.in/judis/
Page No.13/14
Crl.A.No. 658 of 2019
P.VELMURUGAN, J.
ms
CRL.A.No. 658 of 2019
24.02.2021
https://www.mhc.tn.gov.in/judis/
Page No.14/14
