Madras High Court
Sakthivel vs The State Rep. By on 25 February, 2021
Crl.A.No.675 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.02.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.675 of 2019 &
Crl.M.P.No.14361 of 2019
Sakthivel ... Appellant
Vs.
The State rep. by
The Inspector of Police,
All Women Police Station,
Krishnagiri District. ... Respondent
(Crime No.20 of 2016)
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside
the judgment of conviction and sentence passed by the learned Sessions Judge,
Fast Track Mahila Court, Krishnagiri in Special S.C.No.09 of 2017, dated
28.01.2019.
For Appellant : Mr.C.D.Johnson
For Respondent : Mr.R.Suryaprakash
Government Advocate
1/17
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Crl.A.No.675 of 2019
JUDGMENT
This Criminal Appeal has been filed against the Judgment of Conviction
and Sentence, dated 28.01.2019, made in S.C.No.09 of 2017, on the file of the
learned Sessions Judge, Fast Track Mahila Court, Krishnagiri.
2. The respondent-police has registered a case in Crime No.09 of 2017
against the appellant for the offences under Section 366 of IPC, and Section 5
r/w 6 of Protection of Children from Sexual Offences Act, 2012 (for brevity "the
POCSO Act"), and Section 9 of Prohibition of Child Marriage Act, 2006. After
completing the investigation, laid a charge sheet. Since the offence committed
against the minor, the learned Sessions Judge, Fast Track Mahila Court,
Krishnagiri, taken the case on file in Special S.C.No.09 of 2017. After completing
the formalities, framed the charges against the appellant for the offence under
Section 366 of IPC, and Section 5 r/w 6 of the POCSO Act, and Section 9 of
Prohibition of Child Marriage Act, 2006 and conducted the trial.
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3. After considering the evidence on record and hearing on either side,
the learned Sessions Judge, by judgment dated 28.01.2019, convicted the
appellant and sentenced him to undergo Rigorous Imprisonment of 7 years and
imposed a fine of Rs.1,000/-, in default, to undergo further period of six months
Rigorous Imprisonment for the offence under Section 366 of IPC; and sentenced
him to undergo Rigorous Imprisonment of 10 years and imposed a fine of
Rs.1,000/-, in default, to undergo further period of one year Rigorous
Imprisonment for the offence under Section 5 r/w 6 of POCSO Act; and
sentenced him to undergo Rigorous Imprisonment of one year and imposed a
fine of Rs.3,000/-, in default, to undergo further period of three months
Rigorous Imprisonment for the offence under Section 9 of Prohibition of Child
Marriage Act.
4. Aggrieved against the judgment of conviction dated 28.01.2019, the
appellant / accused had preferred the present Criminal Appeal before this
Court.
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Crl.A.No.675 of 2019
5. The learned counsel for the appellant would submit that there was no
kidnapping, and the appellant and the victim child are close relative and they
loved each other and eloped and therefore, the ingredients of Section 366 of
IPC has not been made out in this case. It is further submitted that on
03.12.2016, the appellant went to the house of P.W.1 and requested P.W.1,
father of the victim child to send P.W.13-victim child to his home, because, she
is his legally wedded wife and, however P.W.1 preferred a complaint as if the
appellant tried to kidnap P.W.13 from his house. The above fact would show
that P.W.13 has volunteered to come along with the appellant and there is no
question of alleged to have kidnapping P.W.13-victim child in this case. The
victim child and the mother of the victim child were interested in giving in
marriage of P.W.13 to the appellant, however, only because of P.W.1, father of
the victim child, the marriage was converted into kidnapping and sexual abuse.
The learned Judge, failed to consider this aspect and wrongly convicted the
appellant for the offence under Section 366 of IPC.
6. The alleged occurrence has taken place on 02.11.2016 and the
complaint was given only on 02.12.2016 with an inordinate delay of 30 days and
the above fact would show that the complaint was given after much discussion
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Crl.A.No.675 of 2019
and deliberation and the delay has not been properly explained and the
unexplained delay is fatal to the case of the prosecution.
7. It is further submitted that there is no eyewitness in this case and all
the others witnesses were interested witnesses. The victim child was 18 years
at the time of occurrence and the doctor, who conducted the Radiology Test,
has given a report stating that the victim child has completed the age of 18
years. Since the victim child voluntarily came along with the appellant and
married him, Section 9 of Prohibition of Child Marriage Act and also Section 5
r/w 6 of POCSO Act would not attract. If the appellant is charged under Section
9 of Prohibition of Child Marriage Act, he cannot be charged under Section 5 r/w
6 of POCSO Act. The learned Sessions Judge failed to appreciate the evidence of
the victim child and the mother of the victim child and wrongly convicted the
appellant, which warrants interference. In support of his contention, the
learned counsel for the appellant has cited a Judgment of this Court in
Crl.A.No.490 of 2018, dated 26.04.2019, wherein the learned Single Judge of
this Court, in similar case, has set-aside the judgment of the trial Court, and
acquitted the appellant therein. Therefore, the learned counsel for the
appellant prays for the conviction and sentence recorded by the learned Judge,
is to be set aside.
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Crl.A.No.675 of 2019
8. The learned Government Advocate would submit that at the time of
occurrence, the victim child was only 17 years and she was forcibly taken from
the custody of her lawful guardian, by the appellant and, without their consent
married her. Subsequently, the victim child came to her house and at that time,
the appellant came to the house of the victim child and scolded her family
members and also tried to take the victim child from the custody of the lawful
guardian and therefore, the appellant has committed the offence under Section
366 of IPC for kidnapping the minor child. Since the victim child was only about
17 years and not completed the age of 18 years, and the appellant himself has
stated that he married the victim child and as such, Section 9 of Prohibition of
Child Marriage Act, would attract. The doctor, has also opined that the victim
child lost her virginity and her hymen was not intact and her vagina admitted
two fingers and as such, the learned Sessions Judge rightly convicted the
appellant for the offence under Section 5 r/w 6 of the POCSO Act. Therefore,
the prosecution has proved its case beyond reasonable doubt and the learned
Sessions Judge, rightly convicted the appellant on the above said three charges
and hence prays for dismissal of the Appeal.
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Crl.A.No.675 of 2019
9. Heard the learned counsel on either side and perused the materials
placed on record.
10. The case of the prosecution is that on 02.11.2016, at around
8 a.m., when the victim child had gone to answer to the natural call,
she had not returned back to home and after that P.W.1, the father of the
victim child got information that the victim child was kidnapped and raped by
the appellant and thereafter, the appellant took her to Ponmalai Temple and
married her. Thereafter, the victim child returned to her home and when her
father enquired, she informed that she was raped by the appellant and he tied
thali at Ponmalai Temple, without her consent and however, her father found
that there was no thali in her neck and thereafter, the appellant came to the
residence of the victim child and shouted that he tied thali and he would take
her along with him, since she married the victim child, and thereafter, P.W.1,
the father of the victim child filed Ex.P1 complaint before the respondent-
Police against the appellant stating that at the time of occurrence, the age of
the victim child was only 17 years and she has not completed 18 years. Based on
which, the respondent-Police, registered a case against the appellant for the
offence under Section 366 of IPC, and Section 5 r/w 6 of the POCSO Act, and
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Crl.A.No.675 of 2019
Section 9 of Prohibition of Child Marriage Act, 2006. Subsequently, the
Investigating Officer, investigated the matter and laid a charge sheet before the
learned Sessions Judge, Fast Track Mahila Court, Krishnagiri.
11. In order to prove the case of the prosecution, 14 witnesses were
examined as P.W.1 to P.W.14 and 20 documents were marked as Exs.P1 to P20.
After completion of the examination of the prosecution witnesses, the
incriminating circumstances culled out from the prosecution witnesses were put
before the appellant, the same was denied as false and on the side of the
defence, neither witness was examined, nor document was produced. The
learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, after hearing the
arguments on either side and considering all the materials placed on record,
found that the accused/appellant is guilty and awarded punishment, as referred
above, which is challenged in this Criminal Appeal.
12. Since this Court is an appellate Court and also fact finding Court and
in order come to the independent conclusion, it has to re-appreciate the entire
evidence.
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Crl.A.No.675 of 2019
13. A careful reading of statement recorded under Section 164 of Cr.P.C.
of the victim child before the learned Magistrate, it could be seen that the
victim child has narrated the entire occurrence that took place on 02.11.2016,
which was marked as Ex.P15. In the statement, she has stated that when she
went to response to the natural call, the appellant forced her to marry him and
took her to Ponmalai temple and tied thali forcibly and thereafter, he took her
to Bangalore. While so, the appellant received a call stating that a case has
been registered against the appellant and subsequently, both appeared before
the respondent-Police and at that time, she has not disclosed anything about
the marriage and after returning home, she informed that marriage took place
at Ponmalai Temple forcibly and subsequently, on 02.12.2016, the appellant
came to her residence and shouted her father to send back the victim child to
his house. She further stated that two months prior, the appellant took her to
mango thope and had forcible sexual intercourse with her.
14. During evidence, P.W.13, victim child, deposed that now she married
a person and a child was born to them and at present they are living at
Karikuttanur. She further deposed that she was born on 25.07.1999 and on
02.11.2016, at about 6.30 a.m., the appellant took her to Ponmalai Temple and
tied thali forcibly.
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Crl.A.No.675 of 2019
15. P.W.1, who is none other than the father of the victim child had
deposed that when her daughter went to attend the natural call, she was
kidnapped by the appellant and had undergone forcible sexual intercourse with
her and subsequently, married her at Ponmalai Temple. After that, when she
returned home, she informed that the appellant took her to Ponmalai Temple
and forcibly tied thali. Subsequently, one day, the appellant came to his
residence and shouted him to send back the victim child to his house.
Thereafter, he made Ex.P1 complaint before the respondent-Police and
subsequently, the victim child was referred to Hospital for medical examination.
16. The doctor, who registered the Accident Register of the victim child
was examined as P.W.8 and she has stated that there is no external injury and
she referred the victim child to the gynecologist and subsequently, P.W.6-doctor
examined the victim child. P.W.6, doctor, who examined the victim child had
deposed that on examination of the victim child, she found that there was no
external injury and her hymen was not intact and also her vagina admitted two
fingers and there is possibility of sexual intercourse and issued Ex.P4 Certificate.
The doctor, who examined the accused was examined as P.W.7, and issued
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Crl.A.No.675 of 2019
Ex.P8-certificate stating that there is nothing to suggest that the appellant is
impotent and incapable of performing sexual intercourse. P.W.11-doctor,
deposed that he was received a letter from the Inspector of Police with regard
to determine the age of the victim child and on her request, he took ultra scan
and issued Ex.P13 certificate stating that the victim child is aged between 18
and 20 years.
17. A combined reading of the evidence of P.W.13-the victim child,
P.W.1-the father of the victim child, P.W.6-doctor, who examined the victim
child and the report-Ex.P4, and also the evidence of P.W.7-doctor, who
examined the accused and Ex.P15-statement of the victim child, which was
recorded under Section 164 of Cr.P.C, and Ex.P2-birth certificate of the victim
child, the prosecution has proved that the appellant has committed the
offence under Section 5 r/w 6 of the POCSO Act.
18. The occurrence is said to have occurred on 02.11.2016. At the time of
the occurrence, as per the evidence of P.W.1 and P.W.13, the date of birth of
the victim child is 25.07.1999, and the date of occurrence is 02.11.2016,
therefore, on the date of occurrence, her age is only 17 years. P.W.11-
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Crl.A.No.675 of 2019
Radiologist conducted the test only on 16.05.2017, i.e., after 7 months from the
date of occurrence. Therefore, the learned Sessions Judge did not take into
consideration the evidence of P.W.11 and his report Ex.P13 stating that the
victim child is between 18 and 20 years and it is not conclusive proof, one year
more or less can be taken into consideration, when particularly in this case
Ex.P3 age proof certificate is marked, and rightly held that at the time of
occurrence, the victim child was 17 years. Therefore, this Court is also of the
considered view that the age of the victim child is only 17 years and not
completed 18 years at the time of occurrence, and therefore, victim is a child
under Section 2 (1)(d) of POCSO Act, and the appellant forcibly taken the victim
child under compulsion and also took to Bangalore and other places. Since the
appellant removed the custody of the minor child from her lawful guardian,
without their consent, he has committed offence under Section 361 of IPC and
as such, the conviction and sentence modified from Section 366 of IPC to 361 of
IPC, which is punishable under Section 363 of IPC. However, the sentence of 7
years Rigorous Imprisonment is confirmed.
19. As far as offence relating to Section 9 of the Prohibition of Child
Marriage Act is concerned, there is no evidence to show that the appellant
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Crl.A.No.675 of 2019
married the victim child and except the evidence of the victim child and the
father of the victim child, no witness has been spoken and the prosecution has
not established that the appellant tied thali, even the respondent-Police has not
recovered the thali. Even, none of the witnesses have spoken about that they
married together. In the absence of the same, the benefit of doubt should have
extended to the appellant and therefore, under the circumstances, this Court
finds that the prosecution has not proved for the offence under Section 9 of the
Prohibition of Child Marriage Act, beyond reasonable doubt, and therefore, the
conviction and sentence under this offence is liable to be set aside, and
accordingly, it is set aside.
20. In this case delay was properly explained by the prosecution. In POCSO
Act cases, no parent would take a hasty decision and immediately rush to the
police station and file a complaint. It will affect the future of the female child.
Therefore, the parents would naturally think about the future of the child and
also about the reputation of the family. Normally, they used to take advise of
the elders in the village. The main contention of the learned counsel for the
appellant that the delay in filing the complaint is fatal to the case of the
prosecution and the same is not acceptable. Mere delay in filing these type of
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Crl.A.No.675 of 2019
cases may not be fatal to the case of the prosecution. Further, minor
contradictions will not affect the case of the prosecution.
21. On a reading of the entire evidence of the victim child and also the
statement of the victim child, which was recorded under Section 164 of Cr.P.C.,
the victim child has not stated anything that she fall in love with the appellant
and therefore, the citation referred to by the learned counsel for the appellant
is not applicable to the present case on hand.
22. Therefore, this Court finds that the learned Sessions Judge, Fast
Track Mahila Court, Krishnagiri, rightly appreciated the entire facts and
discussed in detail and convicted the appellant. However, since this Court finds
that the prosecution has not established the marriage between the appellant
and the victim child in the manner known to law that the appellant has
committed the offence under Section 9 of Prohibition of Child Marriage Act,
2006, the conviction and sentence imposed against the appellant under Section
9 of Prohibition of Child Marriage Act, 2006 is alone hereby set-aside. The
conviction and sentence imposed by the learned Sessions Judge for the offence
under Section 366 of IPC is modified into Section 361 of IPC, which is punishable
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Crl.A.No.675 of 2019
under Section 363 of IPC, however, the quantum of 7 years of Rigorous
Imprisonment is confirmed. The conviction and sentence imposed by the
learned Sessions Judge for the offence under Section 5 r/w 6 of POCSO Act, is
also confirmed.
23. With the above modification, the Criminal Appeal is partly allowed.
Consequently, connected miscellaneous petition is closed.
25.02.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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Crl.A.No.675 of 2019
To
1.The Sessions Judge,
Fast Track Mahila Court,
Krishnagiri.
2.The Inspector of Police,
All Women Police Station,
Krishnagiri District.
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Crl.A.No.675 of 2019
P.VELMURUGAN, J.
rns
Crl.A.No.675 of 2019 &
Crl.M.P.No.14361 of 2019
25.02.2021
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