Madras High Court

Ilayaraja vs State Represented By Its on 26 February, 2021

                                                                                          Crl.A.No.519 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 26.02.2021

                                                              CORAM

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                      Crl.A.No.519 of 2019

                     Ilayaraja                                                     ... Appellant

                                                            Versus

                     State represented by its
                     The Inspector of Police,
                     All Women Police Station,
                     Ooty Rural.
                     Crime No.1 of 2017                                           ... Respondent

                     PRAYER: Criminal Appeal is filed under Section 374(2) Cr.P.C seeking
                     to set aside the Judgment in Special C.C.No.13 of 2017 on the file of the
                     Court          of   Sessions   Judge    of      Magalir   Neethimandram,      (FTMC),
                     Udhagamandalam, Nilgiris dated 25.07.2019.


                               For Appellant                : M/s.S.Doraisamy
                                                            : M/s.V.Perarasu
                                                              Legal Aid Counsel for petitioner
                                   For Respondent           : Mr.R.Suryaprakash
                                                              Government Advocate




                     1


https://www.mhc.tn.gov.in/judis/
                                                                                        Crl.A.No.519 of 2019

                                                        JUDGEMENT

This Criminal Appeal has been filed seeking to set aside the

Judgment in Special C.C.No.13 of 2017 on the file of the Court of Sessions

Judge of Magalir Neethimandram, (FTMC), Udhagamandalam, Nilgiris

dated 25.07.2019.

2. The respondent police registered the case against the appellant in

Crime No.1 of 2017 for the offence u/s.5(m) r/w.6 and also u/s.9(m) read

with 10 of of POCSO Act. After investigation, laid the charge sheet before

the Special Court. Since the offence against women particularly against

child, the Special Court taken the charge sheet on file in Special Calendar

Case No.13 of 2017 and after completing the formalities framed charge

against the appellant for the offence u/s.5(m) read with 6 and 9(m) read with

10 of POCSO Act. After framing charge, during the trial, in order to prove

the case of the prosecution, on the side of the prosecution as many as 21

witnesses were examined as P.W.1 to P.W.21 and marked 15 documents as

Ex.P.1 to Ex.P.15 and no material object was exhibited. After completing

the prosecution evidence, incriminating circumstances culled out from the

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evidence of the prosecution witnesses put before the appellant and he

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

was produced on the side of the defence. After completing trial, after

hearing the arguments advanced on either side, convicted the appellant for

the offence u/s.5(m) read with 6 of POCSO Act and sentenced to undergo

Rigorous Imprisonment for 10 years and to pay fine of R.3000, in default to

undergo 3 months simple imprisonment and also awarded compensation of

Rs.3 lakhs u/s.23(8) of POCSO Act. Challenging the said judgment of

conviction and sentence passed by the learned Special Judge, the appellant

has filed the present appeal before this court.

3. Mr.Doraisamy, the learned Senior counsel appearing for the

appellant argued the matter in length. This court also appointed a legal aid

Counsel and Mr.V.Perarasu who appeared before the court also argued the

matter. This court heard the arguments advanced by Senior counsel

appearing for the appellant and the Legal Aid Counsel appointed by this

court on behalf of the appellant.

4. Mr.Doraisamy, the learned Senior Counsel would submit that there

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is a delay in filing the complaint. The occurrence is said to have taken place

at about 11.30 a.m. on 24.08.2017, whereas the complaint was given only at

10.30 p.m., so there is inordinate delay in filing the complaint. The

prosecution has not explained the delay in filing the complaint since the

inordinate delay itself shows that the occurrence has not taken place as

projected by the prosecution. After deliberation, they have filed false

complaint. Actually there is illegal intimacy between the mother of the

victim girl and P.W.6. The appellant seen the intimacy. Therefore, there is

possibility of informing the same. Therefore, they have foisted a false case

against the appellant. Therefore, the mother of the victim girl has not

immediately intimated the occurrence to her husband/P.W.1 and not

registered the case immediately but after deliberation, lodged the complaint,

which creates suspicion. Since the prosecution has not properly explained

the delay in filing the complaint that will go to the root of the case of the

prosecution. Therefore, delay in filing the complaint is fatal to the case of

the prosecution. The learned Sessions Judge, failed to consider the said fact

and convicted the appellant. Further he would submit that the doctor one

who conducted medical examination of the victim has clearly stated that

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there was no external injury and there is no other injuries found on the

victim. Therefore, it is not possible for a man to have penentrative sexual

assault on a 2 ½ years old girl and there cannot be any forcible sexual

intercourse. Therefore, some injury met on the body of the private part of

the victim girl cannot be said to have been committed by the appellant.

Therefore, it clearly shows that P.W.12 has given wrong information to

P.W.1’s husband. He also without verifying filed a false case against the

appellant. The Investigating agency has not properly conducted the

investigation and filed charge sheet. There are material contradictions

between the so called eyewitnesses and further the eye witness who has seen

the occurrence has not been examined before the trial court, since she is no

more. Therefore there is no eye witness. The other witnesses P.W.3, 4 and 5

have stated that they have also seen the white fluid in the private part of the

victim girl, whereas they have stated that P.W.1’s mother soon after the

occurrence she immediately took and gave bath to the victim girlwith warm

water. Therefore, when the other witnesses seen the child, they would not

have seen the white fluid on the private part of the victim girl. Therefore,

their evidence cannot be taken into consideration. Those witnesses are not

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trustworthy witnesses and they could not have seen soon after the

occurrence at the place of occurrence and they are all interested witnesses

and fixed the appellant and foisted false case and all the witnesses set up

and the prosecution filed charge sheet without conducting proper

investigation and before the trial court, all the witnesses deposed the

prosecution case and the trial court convicted the appellant, which warrants

interference.

5. The learned Government Advocate (Criminal Side) would submit

that at the time of occurrence, the age of the victim girl was only 2 ½ years

old and the appellant is the neighbour of P.W.1. The mother of the victim

girl left the victim child in the custody of her mother in law. During the

trial, the mother-in-law is no more. Both father and mother of the victim girl

went for job. P.W.1 father of the victim girl not in the house at that time.

The grand mother of the victim girl has taken care of the victim child. At

that time, the appellant came there. The appellant by giving chocolate to the

victim child took the victim child from thecustody of the grandmother.After

some time, since the victim child did not turn up and the child crying sound

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came from the appellant’s house, she went to the house of the appellant and

saw the appellant and shouted and she saw white fluid on the private part of

the victim child. The appellant ran away and after hearing the alarm raised

by the grand mother of the victim girl, neighbours came there and seen the

appellant running. Since the parents of the victim were not in the house,

grand mother of the victim child gave bath to the victim child. When P.W.2

returned home from her work, grand mother of the victim child informed the

occurrence. P.W.2 in turn informed to her husband P.W.1. Therefore, there

was a delay. It is also clearly explained by P.W.1 that his mother ie.,

grandmother of the victim child is the eyewitness. But at the time of trial,

she was no more. Therefore, she could not be present and could not be

examined as prosecution witness. However, she was examined by the

Investigating Officer and the grand mother of the victim told about the

incident to the mother of the victim girl. Later she intimated to her husband

P.W.1 and P.W.1 gave complaint and the victim girl was produced before

the doctor and the doctor examined the victim girl. Doctor has clearly

stated that there was reddishness and that there was no external injury.

From the evidence of P.W.1, it is very clear that his mother seen the

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occurrence and thereafter, P.Ws.3, 4 and 5 who are all neighbours also seen

the appellant escaping from the scene of the occurrence with lungi. At the

relevant point of time, the child was 2 ½ years old and in order to prove the

age of the victim child, Birth Certificate was produced and marked as

Ex.P.2 wherein her date of birth was 24.07.2015. Therefore, the offence

committed by the appellant falls under POCSO Act. Since the prosecution

has proved the case that the appellant committed aggravated penetrative

sexual assault on the victim child, the trial court convicted the appellant

u/s.5(m) r/w.6 of POCSO Act. There is no merit in the appeal and the appeal

is liable to be dismissed.

6. Heard and perused the records.

7. The case of the prosecution is that on 24.08.2017, when P.W.1 left

his 2 ½ years old baby girl in the custody of his mother and he and his wife

went for their cooly work, at 11.30 a.m., the accused gave chocolate to the

victim child and carried her to his house and committed aggravated

penetrative sexual assault on the victim child. The grand mother hearing the

crying sound of victim girl went and seen the accused and shouted at him

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and immediately the appellant ran away from the scene of occurrence. The

grand mother of victim girl noticed white fluid on the private part of the

victim girl. The grand mother of the victim girl informed the same to the

mother of victim who in turn informed to father PW.1. P.W.1 narrated the

occurrence to PW.10 and P.W.10 advised P.W.1 to lodge a police

complaint. Ex.P.1 complaint was given by P.W.1. Mr.Doraisamy

8. The Appellate Court is a fact finding court. In order to give

independent finding, it has to reappreciate the entire evidence.

9. A reading of the evidence of P.W.1 father of the victim girl shows

that he has given the complaint to the jurisdictional Police Station. He has

stated that when he had gone for cooly work, he was informed about the

incident. Therefore, he came to the house immediately. P.W.2 went

immediately and his mother also informed to P.W.2 about the incident and

that his mother who narrated the incident is now no more. After intimating

the incident to P.W.10, he gave the complaint. The evidence of P.W.2

mother of the victim girl clearly stated that she went for work. After she

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returned from work, her mother in law informed about the incident. Later,

she informed to her husband P.W.1. Thereafter, they took the victim girl to

doctor for examination. The grand mother of the victim was examined by

the Investigating Officer and she has given statement but she has not been

examined before the trial court since she died and that fact has not been

denied. Though the statement recorded u/s.161 Cr.P.C., is not admissible in

evidence, as per Section 32 of the Indian Evidence Act, any previous

statement given and subsequently the witness died can be taken into

consideration which statement is of relevant fact. Though the statement of

the grand mother of the victim girl was not recorded by the Judicial

Magistrate u/s.164 Cr.P.C. However, P.W.2 has categorically stated that

grand mother of the victim girl is eye witness and she immediately after the

occurrence informed P.W.2 and P.W.2 came to the house and grand mother

of the victim girl narrated the incident. Since the victim girl was only 2 ½

years, she was neither examined before the trial court nor her statement

recorded u/s.164 Cr.P.C., considering the tender age of the victim girl.

However, she was produced before the doctor for medical examination. The

doctor who examined the child stated that there was no injury, but he has

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seen that there was reddishness in the private part of the victim girl and he

cannot say that there was no penetrative sexual intercourse on the victim

girl.

10. The occurrence has taken place on 24.08.2017 at 11.30 a.m., but

the victim child was examined by the doctor only on 25.08.2017 at 02.20

hours. Further the evidence of the prosecution is that soon after the

occurrence, the grand mother washed the victim girl with warm water and

the doctor examined the child only after 24 hours. Therefore, there is no

much symptoms since victim girl was given bath by the grand mother. Even

though after 24 hours the doctor examined the child, it is opined by the

doctor that he finds that “Erthematous changes is a redness of the skin or

mucous membrances, cased by hypermia (increased blood flow) in

superficial capillaries and it occurs with any skin injury, infection or

inflammation”. Therefore, under these circumstances, the prosecution has

established its case beyond reasonable doubt. Though in this case, the eye

witness died and the victim girl is only 2 1/2 years old, she was not

examined as a witness, it is not fatal to the case of the prosecution, since

prosecution has established its case from the evidence of doctor.

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11. Though it is the contention of the learned counsel for the

appellant that there is delay in filing FIR, already it is stated that child was

left to the custody of the grand mother and both parents went for job. Only

after they returned from their work, the grand mother of the victim informed

it and thereafter, the matter was discussed and thereafter, complaint was

given. In cases of this nature, parents of the victim would not take hasty

decision, they would not go to police station immediately. They would

report to the elders and after taking their views and also considering the

future of the minor girl and also considering the social stigma in the society,

they will certainly discuss and form opinion and then only give a complaint.

When the delay is not inordinate and the version of the victim’s father is

honest and straightforward, the delay will not be fatal. So only on the

compelling circumstances, the parents of the victim approached police and

hence delay occurred.

12. As far as other defence taken on the side of appellant is

concerned, there was illegal intimacy between P.W.2 and P.W.6 and the

appellant seen the illegal relationship between them, therefore, the

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complaint has been given. But during cross examination, no suggestion is

made before P.W.2 or before P.W.6 whether they have any grudge against

the appellant and the appellant has not proved and established the said

defence. Therefore, this court finds that the defence taken is only for the

purpose of this case in order to escape from the clutches of law and that was

not established by examining any of the witnesses. Further doctor opinion

is concerned, learned Senior counsel would point out that there was no

external injury. Therefore, it is not possible to have full penetration or

sexual intercourse. However, it depends upon a person. Here the victim girl

is admittedly aged 2 ½ years and the child not even knows the situation and

consequences but the appellant only knows about it. Even though doctor

states that no external injury, he has not ruled out penetrative sexual assault.

The doctor found reddishness in the private part of the victim. Further, it is

settled proposition of law that depth of the penetration is not the matter to

fall under Section 3 of POCSO Act.

13. It is relevant to extract the relevant provisions of POCSO Act :

Section 3. Penetrative Sexual Assault A person is said to commit "penetrative sexual

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assault" if-

3(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

Section 5. Aggravated penetrative sexual assault.

5 (m) whoever commits penetrative sexual assault on a child below twelve years; or

14. Therefore, on a reading of the evidence of the prosecution, this

court finds that the prosecution has established its case by cogent evidence.

There is no contra evidence to disbelieve the evidence of P.W.1 to P.W.6

and also the doctor evidence. There is no doubt about the trustworthiness of

the prosecution witnesses also. But the appellant failed to rebut the

presumption under Section 29 of the POCSO Act. Therefore, this court also

finds that the prosecution has established its case beyond reasonable doubt

and there is no reason to interfere with the judgment of the trial court. There

is no merit in the appeal and the appeal is liable to be dismissed.

Accordingly, this criminal appeal is dismissed. The judgment of conviction