R.Perumal vs State Rep By
2021 Latest Caselaw 1005 Mad

                                                                Crl.A.No.53 of 2019

          IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                DATED : 19.01.2021

                                      CORAM:

               THE HON'BLE Mr. JUSTICE P.VELMURUGAN

                         Criminal Appeal No.53 of 2019

R.Perumal                                                ... Appellant

                                       Vs.
State rep by :
Inspector of Police,
All Women Police Station,
Krishnagiri,
Krishnagiri District.                                    ... Respondent

      Criminal Appeal is filed under Section 374(2) Cr.P.C. to set aside the
conviction and sentence imposed against the appellant in Spl.S.C.No.54/2016
by the learned Sessions Judge Fast Track Mahila Court, Krishnagiri by an
order dated 20.11.2018 and acquit the appellant.

               For Appellant      :     Mrs.P.Veeranarayana
                                        for M/s.P.Saravanan

               For Respondent     :     Mr.K.Madhan
                                        Government Advocate (Crl.Side)

                               ORDER

This Criminal Appeal has been filed against the Judgment passed in

Spl.S.C.No.54/2016 by the learned Sessions Judge Fast Track Mahila Court,

Krishnagiri dated 20.11.2018.

2. The respondent-Police registered a case against the appellant in Crime

Page No.1/12 Crl.A.No.53 of 2019

No.17 of 2016 for the offences under Sections 450 IPC, 5(l) and 6 of POCSO

Act, 2012. After the investigation, a charge sheet was filed and the same was

taken on file in Spl.S.C.No.54 of 2016, on the file of the Fast Track Mahila

Court, Krishnagiri.

3. In order to prove the case of the prosecution, during the course of

investigation, 13 witnesses were examined as PW1 to PW13 and 19 documents

were marked as Exs.P1 to P19. After completing the examination of the

prosecution witnesses, when the accused was questioned under Section 313 of

the Code of Criminal Procedure, 1973 with regard to incriminating materials

available in the evidence against him, he denied his complicity in the crime and

on the side of the defence, neither witness was examined nor any document

was produced.

4. The learned Sessions Judge, Krishnagiri, after completion of the trial,

convicted the appellant and sentenced him to undergo 5 years rigorous

imprisonment for the offence under Section 450 IPC and a fine of Rs.12,000/-

in default to undergo 6 months rigorous imprisonment and also convicted and

sentenced him to undergo 15 years rigorous imprisonment for the offence

under Section 5(l) r/w Section 6 of POCSO Act, 2012 and a fine of Rs.15,000/-

in default to undergo 1 year rigorous imprisonment.

5. As aggrieved against the order of conviction and sentence, the

Page No.2/12 Crl.A.No.53 of 2019

accused has preferred the present Criminal Appeal before this Court.

6. The learned counsel for the appellant would submit that both the

appellant and victim are the relatives and at the time of alleged offence, the

appellant was staying in the house of the victim and therefore, the ingredients

of Section 450 IPC will not meet out and there is no evidence to show that the

appellant proceeded into the house of victim and committed the offence under

Section 5(l) r/w 6 of the POCSO Act. The learned counsel would further

submit that there was a delay in filing the complaint and the delay has not been

properly explained, which is a fatal to the case of the prosecution. Further, the

learned counsel for the appellant would submit that PW1/Valli is the mother of

the PW2/victim girl and PW3 is the father of PW2/victim girl. During the

examination before the trial court, the parents of the the victim girl have not

supported the case of the prosecution and the victim girl herself has stated that

no offence has been committed by the appellant. Further, he would submit that

PW7/Doctor has also given the evidence by stating that there were no external

injuries found in the body of the victim, however, the Lower Court failed to

consider all those aspects and erroneously convicted the appellant. The

headmaster, one who was examined as PW-9, has clearly admitted that there is

no proper evidence for date of birth of the victim girl in the school records and

as such, the prosecution has not proved its case beyond the reasonable doubt.

Page No.3/12 Crl.A.No.53 of 2019

Even, the statement recorded by the Investigating Officer has not been

substantiated during trial and there is no corroborative evidence by the parents

of the victim girl and they have not stated before the Trial Court that the

appellant has committed the offence under Section 450 IPC, 5(l) r/w 6 of

POCSO Act, 2012 and the Trial Court failed to consider the above aspects and

however, convicted the appellant and awarded maximum punishment, which

warrants interference.

7. The learned Government Advocate appearing on behalf of the

respondent would submit that at the time of occurrence, the age of the victim

girl was only 15 years and to substantiate the same, the birth certificate of the

victim girl (Ex.P19) was produced. The date of occurrence is between

20.07.2016 and 15.08.2016. Therefore, at the relevant point of time, the age of

the victim girl was only 16 years and therefore, she would fall under the

definition of Section 2(1)(d) of POCSO Act. Further, he would submit that

though PW1 to PW3 have not supported the case of the prosecution, at the time

of cross examination, while examining as witnesses before the Trial Court,

however, at the earlier point of time when statement was recorded under

Section 164 Cr.P.C. by the Judicial Magistrate, the victim girl clearly narrated

the entire events. Therefore, it is clear from the statement of the victim girl

under Section 164 Cr.P.C., and deposition of chief examination of the victim

Page No.4/12 Crl.A.No.53 of 2019

that the victim girl was subjected to penetrative sexual assault. After chief

examination, she and her family members were threatened by the appellant and

that is the reason, the entire family members have not revealed the entire facts

while examining as witnesses.

8. It is further submitted that during the statement recorded by the

learned Judicial Magistrate under Section 164(5) Cr.P.C., the victim girl has

revealed all the facts. Further, the Headmaster of the school, in which, the

victim girl has studied, was examined as P.W.9, and he stated that the date of

birth of the victim girl was recorded without any birth certificate. The Doctor

evidence clearly shows that though there is no external injuries in the private

part of the victim girl and her hymen was not intact and there is possibility of

having sexual intercourse, and made entry in Ex.P.6 accident register. The date

of occurrence and date of clinical examination of the doctor is not on the same

day or not immediately soon after the occurrence and therefore, it cannot be

expected any of fresh injury, however, the doctor has confirmed the possibility

of having sexual intercourse. Therefore, the prosecution has proved its case

beyond all reasonable doubts and the Trial Court on proper appreciation of

evidence has rightly convicted the appellant and hence prays for dismissal of

the Appeal.

9. Heard both sides.

Page No.5/12 Crl.A.No.53 of 2019

10. The case of the prosecution is that in the year 2016, when the victim

girl was aged 15 years, the appellant came to the house of the victim for doing

the tiles work and in the absence of her parents, he gave some food to the

victim and after having, she becoming unconscious and the appellant had

intercourse with her and also took some photos and thereafter, he used to

threaten her and had sexual intercourse for several times. The appellant also

threatened her that if she reveals the fact and not cooperated, he will release the

photos in the public platform, therefore, as and when required, the appellant

used to exploit the victim girl and had sexual intercourse with her.

11. Thereafter, the victim girl informed to the parents and they have

lodged a complaint before the Jurisdictional Police Station and the Police

investigated the matter and thereafter, filed a charge sheet. The learned

Sessions Judge taken the charge sheet on file in Spl.S.C.No.54 of 2016 and

after framing charge and completing trial convicted the accused for the

offences under Section 450 of IPC and 5(l) r/w Section 6 of POCSO Act, 2012.

A reading of the evidence shows that the parents of the victim girl during the

cross-examination, have not supported the case of the prosecution. However,

the demeanor of the witnesses was clearly observed by the Trial Court and they

have stated that the victim girl, while giving the evidence, was weeping and a

careful reading of the statement given by the victim under Section 164 Cr.P.C.,

Page No.6/12 Crl.A.No.53 of 2019

before the Judicial Magistrate would clearly reveal that the victim girl has

narrated the entire events, which shows that the appellant had sexual

intercourse with her and the appellant with the help of someone tattooed his

name on her. During chief examination, the victim child has narrated the

events. The doctor, who was examined as PW7 stated that there was a tattoo

mark on the left side of the breast of the victim girl and she also deposed that

hymen of the victim girl was not intact and there was a possibility of having

sexual intercourse. The birth certificate of the victim girl clearly shows that

the victim girl was under 16 years and she would fall under the definition of

Section 2(1)(d) of the POCSO Act.

12. It is the contention of the learned counsel for the appellant that there

are no materials to convict the appellant for the offence under Section 354 and

the prosecution has also not stated that the appellant has trespassed into the

house of the victim girl and forcefully had intercourse with the victim girl, the

prosecution also stated that since the appellant is a relative of the victim's

family, he came and stayed in their house and one day in the absence of her

parents, he made her to become unconscious and had sexual intercourse with

her and had also recorded videos, photos and by threatening her with the

photos taken, had sexual intercourse on several times.

13. As stated by the learned counsel for the appellant, there is no specific

Page No.7/12 Crl.A.No.53 of 2019

evidence that the appellant had trespassed into the victim's house and had

sexual intercourse therefore, the conviction under Section 351 Cr.P.C does not

hold good. This Court finds that there is no material to show that the appellant

trespassed into the house and committed an offence under Section 351 Cr.P.C

therefore, the conviction for the offence punishable under Section 354 of

Cr.P.C., is liable to be set aside.

14. It is to be noted that, the victim girl is aged about 15 to 16 years at

the time of occurrence and the appellant is a married person and aged about 24

years and without the knowledge of the victim girl, he gave some food to the

victim girl and after having the same, she became unconscious and thereafter,

he had sexual intercourse with her and had taken photos. The doctor evidence

also corroborated the statement given by the victim girl under Section 164

Cr.P.C. Though during the cross examination, victim has turned hostile, but

during chief examination, she has narrated everything. The evidence of hostile

witness would not be totally rejected. If spoken in favour of the prosecution or

the accused are required to be subjected to close scrutiny and the portion of the

evidence is consistent with the case of the prosecution or defense can be relied

upon.

15. A combined reading of the statement of the victim girl recorded

under Section 164 Cr.P.C., chief examination of the victim child and the

Page No.8/12 Crl.A.No.53 of 2019

evidence of P.W.7-Doctor and Ex.P.7-Accident Register, the prosecution has

proved its case that the appellant has committed the offence under Section 5(l)

r/w 6 of the POCSO Act. At this juncture, it would be useful to refer the

Section 5(l) & 6 of POCSO Act.

Section 5 - Aggravated penetrative sexual assault

(l) whoever commits penetrative sexual assault on the child more than once or repeatedly;

Section 6 - Punishment for aggravated penetrative sexual assault (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

16. A careful reading of the language of the said provisions of law and

also the statement recorded under Section 164(5) Cr.P.C of the victim child,

chief examination of victim child and medical evidence, this Court has come to

the conclusion that the appellant has committed the offence under Section 5(l),

which is punishable under Section 6 of the POCSO Act. The victim girl has

not stated before Trial Court while she was cross-examined as witness but

Page No.9/12 Crl.A.No.53 of 2019

however, after preparing the complaint she revealed before the respondent

Police and also before the Judicial Magistrate. Therefore, in the first available

opportunity, the victim girl narrated events both before the Investigation

Officer and Judicial Magistrate even during chief examination also, she has

clearly deposed that the appellant has committed penetrative sexual assault on

several times but subsequently, due to some fear or some reason, the family of

the victim did not support the case of the prosecution during the cross-

examination. It is settled proposition of law that the evidence of hostile

witness need not be discarded in totality, but the portion of evidence, in chief

examination, which supports the case of the prosecution can be taken for

consideration.

17. 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 complaint in

cases like this, may not be fatal to the case of the prosecution if the delay is

Page No.10/12 Crl.A.No.53 of 2019

satisfactorily explained. Further, minor contradictions will not affect the case

of the prosecution. Mere technicalities should not be allowed to stand in way

of administration of justice.

18. On a careful reading of the entire documents available on records,

this Court finds that the appellant has committed the offence under Section 5(l)

r/w Section 6 of the POCSO Act and the Trial Court also rightly appreciated

the entire evidence and convicted and therefore, the appeal is partly allowed

and conviction and sentence for the offence under Section 354 IPC alone is set

aside and conviction and sentence passed for the offence under Section 5(l) r/w

Section 6 of POCSO Act is confirmed.

In the result, the Criminal Appeal is partly allowed as indicated above.

19.01.2021 Speaking Order/Non Speaking Order sni

To

1.Inspector of Police, All Women Police Station, Krishnagiri, Krishnagiri District.

2.The Sessions Judge, Fast Track Mahila Court, Krishnagiri.

Page No.11/12 Crl.A.No.53 of 2019

P.VELMURUGAN, J.

Sni

Crl.A.No.53 of 2019

19.01.2021

Page No.12/12