Munivel vs The State Represented By
2021 Latest Caselaw 4895 Mad

                                                      Crl.A.No.324 of 2019

        IN THE HIGH COURT OF JUDICATURE AT MADRAS

                           DATED : 25.02.2021

                                CORAM:

            THE HON'BLE MR.JUSTICE P.VELMURUGAN

                           Crl.A.No.324 of 2019

Munivel                                     ..Appellant/Accused

                                  -Vs-

The State represented by
The Inspector of Police,
Thoppur Police Station,
Dharmapuri District.
Crime No.351 of 2016                        ..Respondent/Complainant

Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, against the Judgment and conviction passed by the
learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila
Court) Dharmapuri dated 14.02.2019 in Spl.C.C.No.25 of 2017.


       (i) for the offence under sections 366(A) IPC sentenced to undergo
3 years rigorous imprisonment and pay fine of Rs.1000/- in default to
undergo 3 months simple imprisonment and for section 10 of Prohibition
of Child Marriage Act 2006 sentenced to undergo 2 years rigorous

1/15
                                                      Crl.A.No.324 of 2019

imprisonment and pay fine of Rs.1,000/- in default to undergo 3 months
simple imprisonment and 17 r/w.16 of the Protection of Children Sexual
Offences Act 2012 and 5(l) r/w. 6 of Protection of Children from Sexual
Offences Act 2012 (POCSO ACT-2012). The appellant was sentenced to
undergo 10 years of rigorous imprisonment and pay fine of Rs.1,000/- in
default to undergo 3 months simple imprisonment. The above sentences
are ordered to run concurrently by the accused/appellant. Further the
learned trial Court ordered compensation of Rs.1,00,000/- to the victim
child, the same shall be paid within one month, in default, the victim's
guardian can take steps under section 7 (2) of the Protection of Children
Sexual Offences Act 2012.

             For Appellants    : Mr.L.Baskaran

             For Respondent    : Mr.R.Surya Prakash
                                 Government Advocate (Crl.Side)


                              JUDGMENT

This Criminal Appeal is filed against the Judgment of conviction

and sentence passed by the learned Sessions Judge, Magalir Neethi

Mandram (Fast Track Mahila Court) Dharmapuri dated 14.02.2019 in

Spl.C.C.No.25 of 2017.

Crl.A.No.324 of 2019

2. The respondent police registered the case against the appellant

in Crime No.351/2016 for the offence under Section 366A of IPC and

Section 11 of Prohibition of Child Marriage Act. After investigation,

police laid the charge sheet before the Special Judge, Mahila Court,

Dharmapuri. Since the offence is against women, especially child, it falls

within the meaning of POCSO Act, the learned Special Judge taken the

charge sheet on file in Spl.S.C.No.25 of 2017 and after completing

formalities, framed the charge for the offence u/s.366A IPC, Section 10

of Prohibition of Child Marriage Act and Section 17 r/w.16 of POCSO

Act.

3. After framing charges, during the trial, in order to prove the case

of the prosecution, on the side of the prosecution, as many as 20

witnesses were examined as P.Ws.1 to 20, 19 documents were marked as

Ex.P.1 to Ex.P.19. But no material object was exhibited. After completing

the prosecution witnesses, incriminating circumstances culled out from

the evidence of the prosecution witnesses were put before the accused.

Crl.A.No.324 of 2019

He denied it as false and pleaded not guilty. No oral or documentary

evidence is produced by the defence.

4. After completing trial and hearing the arguments advanced on

either side, the learned Special Judge has come to the conclusion that the

appellant has committed the charged offences and convicted him for the

offence u/s.366A IPC and sentenced him to undergo Rigorous

Imprisonment for three years and pay a fine of Rs.1000/-, in default, to

undergo 3 months Simple Imprisonment and also convicted u/s.10 of

Prohibition of Child Marriage Act and sentenced him to undergo two

years R.I., and pay a fine of Rs.1000/-, in default 3 months Simple

Imprisonment and also convicted u/s.17 r/w.16 of POCSO Act and

sentenced him to undergo 10 years Rigorous imprisonment and to pay

fine of Rs.1000/-, in default to undergo three months simple

imprisonment. Challenging the said judgment of conviction and

sentence, the accused has filed the present appeal.

Crl.A.No.324 of 2019

5. The learned counsel for the appellant would submit that the

appellant is no way connected with the offence. Actually the victim girl

had fall on love with Tamilarasan a juvenile. The victim girl eloped with

the said Tamilarasan and this appellant is no way connected with the

offence. Actually, the parents of the victim girl proposed to give the elder

sister of the victim girl to the said juvenile. However, the juvenile fell in

love with the victim. No eye witnesses have been examined in this case

to show that the appellant kidnapped the victim girl and made

arrangement for marriage between Tamilarasan and the victim girl. There

is no documentary evidence to show that he arranged marriage between

Tamilarasan and the victim girl and there is no evidence to show that he

arranged a house to make them to stay separately. There is no evidence to

show that the victim girl was subjected to sexual intercourse. Since the

prosecution failed to prove its case and to link the role played by the

appellant, the trial court failed to consider that only Tamilarasan and the

victim girl are the close relatives from the childhood, both fell in love

with each other and the victim girl eloped with Tamilarasan.

Crl.A.No.324 of 2019

Subsequently, they got married and living together happily. However, the

appellant has not committed any offence either under Section 376 A IPC

or under 10 of Prohibition of Child Marriage Act or under Section 17

r/w.16 of POCSO Act. The trial court failed to appreciate the evidence

and simply convicted only based on the evidence of the victim.

Accordingly, there is no corroboration. Therefore, it is unsafe to convict

the appellant without any corroborative evidence. In this case, there is no

evidence to connect the appellant for the said offences. He has not

committed any offence.

6. The learned Government Advocate [Criminal Side] would

submit that victim is aged about 12 years and Tamilarasan is aged about

17 years and the appellant only induced the victim girl, took the victim

girl from the custody of the natural guardian without their consent, he

arranged marriage for two juveniles and also supported Tamilarasan to

have a sexual intercourse and thus the appellant abetted the crime u/s.17

r/w.16 of POCSO Act. Since the age of the victim and Tamilarasan are

Crl.A.No.324 of 2019

below 18 and 21 years respectively, the appellant who has taken away the

custody of the victim girl from her parents without their consent, has

committed the offence punishable u/s.10 of The Prohibition of Child

Marriage Act. The doctor examined the victim girl and opined that the

victim girl was subjected to sexual intercourse and her hymen was not

intact and the victim girl’s age was only 12 years. Therefore, the

prosecution has proved the case beyond reasonable doubt. The medical

examination of the victim girl as well as Tamilarasan proved that the

victim girl is only aged 12 years and Tamilarasaran is aged about 17

years and the appellant took both victim and Tamilarasan and arranged

for their marriage and made them to stay separately. Therefore, he has

committed the offences under Section 366A IPC and Sections 16 read

with 17 of POCSO Act and the prosecution has proved its case beyond

all reasonable doubt. There is no merit in the appeal and it has to be

dismissed.

7. Heard and perused the records.

Crl.A.No.324 of 2019

8. The case of the prosecution is that the appellant induced the

victim girl, took the victim girl from the custody of the natural as well as

lawful guardian and without their consent, arranged marriage for two

juveniles and also supported Tamalarasan who is a juvenile to have

sexual intercourse with the victim girl who was aged 12 years and thus

case has been registered against the appellant for the offence u/s.366 IPC

and u/s.10 of Prohibition of Child Marriage Act and u/s.17 read with 16

of POCSO Act. After investigation, police laid the charge sheet before

the Special Judge, Mahila Court, Dharmapuri. The learned Special Judge

taken the case on file in Spl.S.C.No.25 of 2017 and after framing charges

against the appellant/accused, after examining prosecution side

witnesses, incriminating circumstances culled from the evidence of the

prosecution witnesses were put before the appellant who denied it as

false and pleaded not guilty. On the side of defence, no oral and

documentary evidence was marked.

9. During the trial, in order to prove the case of the prosecution,

Crl.A.No.324 of 2019

the victim girl was examined as P.W.2. She has clearly narrated the

events. Even though she has stated that she knows Tamilarasan and he is

a close relative, only the appellant took her from the house of her parents

and arranged for marriage with Tamilarasan. Subsequently appellant

made arrangement for residence and thereafter Tamilarasan had sexual

intercourse with her. She was produced before the doctor. Doctor also

examined the victim girl. The doctor who was examined as P.W.10, in her

evidence has clearly stated that she examined the victim girl and her

hymen was not intact and subjected to penetrative sexual assault. The

parents of the victim girl was examined as P.W.1 and P.W.3. P.W.1 has

clearly deposed that the victim girl was a minor and after coming to

know the occurrence, she has given the complaint and after that police

secured the victim girl and Tamilarasan and victim girl informed to her

that the appellant only took the victim girl and thereafter she was married

to Tamilarasan. The father of the victim girl was also examined as P.W.3.

He has also stated that the victim girl was a minor and they made

complaint to the Police. The Police registered the case and the victim girl

Crl.A.No.324 of 2019

was produced before Home and her daughter was enquired. She has

narrated that the appellant took her and she was married to Tamilarasan.

10. From the evidence of the victim girl, it is very clear that the

victim girl was produced before the Judicial Magistrate for recording her

statement u/s.164 Cr.P.C. A reading of the statement recorded u/s.164

Cr.P.C., which was marked as Ex.P.2, would go to show that the victim

girl has clearly stated in her statement that the appellant took the victim

girl from the lawful guardian without their consent and made Tamilarasan

to marry her. Subsequently, the Police secured them and father of victim

girl gave complaint and she was produced before the doctor. The doctor

examined the victim girl.

11. Further in order to prove the case of the prosecution and that

the victim girl was minor at the time of occurrence, age certificate of the

victim girl and transfer certificate of the victim girl was marked as Ex.P.7

and Ex.P.8 which clearly show that the date of birth of the victim girl is

17.06.2003. The date of occurrence is 05.11.2016. Therefore, at the time

Crl.A.No.324 of 2019

of occurrence, the victim girl was aged 12 years and Tamilarasan was a

juvenile. Therefore, it is proved beyond reasonable doubt that the victim

girl is a child under definition of Section 2(1)(d) of POCSO Act. From

Ex.P.8 School Certificate of the victim girl , the prosecution has proved

that victim girl was a minor aged 12 years at the time of occurrence.

12. Therefore, a reading of the evidence of P.Ws.1 to 3 and P.W.10

doctor one who examined the victim girl and issued certificates which

were marked as Ex.P.6 and Ex.P.7 would clearly prove that the victim girl

was aged 12 years and from the evidence of the victim girl, it is proved

that the appellant took the victim girl from the lawful as well as natural

guardian without their consent and therefore, he has committed offence

u/s.366 IPC. After kidnapping the victim girl, he made arrangement to

get her married to Tamilarasan and the evidence of the victim girl is that

Tamilarasan had sexual intercourse with the victim and therefore the

appellant knowing fully well that he kidnapped the victim girl, also

induced the victim girl and also facilitated Tamilarasan to have sexual

Crl.A.No.324 of 2019

intercourse. Therefore, appellant committed offence u/s.366A IPC. As far

as marriage is concerned, though the victim girl has stated that both got

married, there is no proof for marriage and therefore, this court is of the

view that the prosecution has not proved the case in the manner known to

law that the victim girl got married to Tamilarasan. Therefore, the

offence said to have been committed by the appellant u/s.10 of the

Prohibition of Child Marriage Act is not proved.

13. As far as offence under Section 17 read with Section 16 of

POCSO Act is concerned, the evidence of the victim girl has clearly

proved that the appellant took away the victim girl from the lawful

guardian of the victim girl without their consent and forcibly took the

victim girl to Tamilarasan for penetrative sexual assault. Therefore, the

offence falls under section 17 read with 16 of POCSO Act. Therefore,

this court is of the view that the appellant has committed the offence

under Section 366 A IPC and u/s.17 read with 16 of POCSO Act.

However, this court has found that the prosecution has not proved its

Crl.A.No.324 of 2019

case for the offence u/s.10 of Prohibition of Child Marriage Act, beyond

all reasonable doubt.

14. Though the learned counsel for the appellant has stated that the

victim girl and Tamilarasan got married and Tamilarasan is living with

the victim girl now, no evidence is produced to show that the age of the

victim girl is 18 years and the age of the said Tamilarasan is 21 years at

the time of their marriage. Therefore, this court is of the view that the

prosecution has failed to establish the marriage. Therefore, the offence

punishable u/s.10 of Prohibition of Child Marriage Act for which the

appellant has been convicted and awarded sentence, is set aside.

15. The conviction and sentence passed under Sections 366 A IPC

and under Section 17 read with 16 of POCSO Act is confirmed. The trial

court is directed to take appropriate steps to secure the presence of the

appellant to undergo the remaining period of sentence.

Crl.A.No.324 of 2019

16. With the above modification, this Criminal Appeal is

dismissed.

25.02.2021 Index:Yes/No Speaking order/Non-speaking order nvsri

To

1.The Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Dharmapuri

2.The Inspector of Police, Thoppur Police Station, Dharmapuri District.

3.The Section Officer, High Court, Madras.

4.The Public Prosecutor, High Court, Madras.

Crl.A.No.324 of 2019

P.VELMURUGAN, J.

nvsri

Crl.A.No.324 of 2019

25.02.2021