Madras High Court
Venkatachalam vs The Inspector Of Police on 20 January, 2021
Crl.A.No.113 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 01.04.2021
PRONOUNCED ON : 07.07.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.113 of 2021
and Crl.M.P.No.2925 of 2021
Venkatachalam .. Appellant
.Vs.
The Inspector of Police,
Puduchathiram Police Station,
Namakkal District,
Crime No.49 of 2014. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to call for the records and set aside the judgment and
conviction passed by the Sessions Judge, Fast Track Mahila Court,
Namakkal in Spl.C.C.No.29 of 2018 dated 20.01.2021 and acquit the
appellant.
For Appellant : Mr.G.Karuppasamy Pandian
For Respondent : Ms.T.P.Savitha
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
20.01.2021 in Spl.C.C.No.29 of 2018 by the learned Sessions Judge, Fast
Track Mahila Court, Namakkal.
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2.The case of the prosecution is that the victim girl, who is aged
about 10 years at the time of occurrence was studying 5th standard. On
26.01.2014 at about 11 a.m., when the victim was playing in front of her
house, the accused, who is the neighbour of the victim girl took her to his
house and made the victim girl to lay on a cot, hugged her, opened her
tops, lifted her skirt and sexually harassed her. The next day i.e. on
27.01.2014 at 4.00 p.m the accused with an intention to sexually harass
the victim girl called her to his house, the victim girl refused to go with
the accused and he threatened her. On 28.01.2014, again the accused
followed the victim girl and on seeing the said incident, P.W.2/mother of
the victim girl questioned her and that the victim girl narrated the said
incident to her mother. Thereafter, P.W.2/mother of the victim girl filed a
complaint against the appellant before the respondent police.
3.The respondent-Police registered a case in Crime No.49 of 2014
against the appellant for the offence under Section 354 and 506(i) IPC
subsequently it was altered into Sections 3 and 4 of The Protection of
Children from Sexual Offences Act, 2012 [hereafter referred to as
'POCSO Act' for the sake of convenience] later altered into Section 7 r/w
Section 8 of the POCSO Act and Section 506(i) IPC. On completion of
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investigation, the respondent police filed a charge sheet before the
learned Sessions Judge, Fast Track Mahila Court, Namakkal and the
same was taken on file in Spl.C.C.No.29 of 2018. After completing the
formalities, the trial Court framed charges against the appellant for the
offences under Section 7 r/w 8 of POCSO Act and Section 506(i) IPC.
4.In order to prove the case of the prosecution before the trial
Court, on the side of the prosecution as many as 9 witnesses were
examined as P.W.1 to P.W.9 and also marked 10 documents as Exs.P1 to
P10 and no material object was marked. After examining the prosecution
witnesses, incriminating circumstances culled out from the evidence of
the prosecution witnesses were put before the appellant/accused and he
was questioned under Section 313 of Cr.P.C., wherein he denied all the
incriminating circumstances as false and pleaded not guilty. On the side
of the defence one witness was examined as D.W.1 and also marked one
document as Ex.D1 and no material object was marked.
5. The Court below, after hearing the arguments advanced on either
side and also considering the materials available on record, found that the
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appellant is guilty for the following offences and imposed sentences as
follows :
(i) For the offence under Section 7 r/w 8 of POCSO Act the
appellant was convicted and sentenced to undergo rigorous imprisonment
for a period of three years and to pay a fine of Rs.1,000/-, in default, to
undergo simple imprisonment for a period of six months.
(ii) For the offence under Section 506(i) IPC, the appellant was
convicted and sentenced to undergo rigorous imprisonment for a period
of one year;
6.Challenging the said conviction and sentence, the appellant is
before this Court with this Criminal Appeal.
7.1 The learned counsel for the appellant would submit that there
was a delay in filing the complaint and the same has not been properly
explained by the prosecution and the unexplained inordinate delay is
fatal to the case of the prosecution. The case of the prosecution as per the
de facto complainant/P.W.2 is that on 26.01.2014, while the victim girl
aged about 10 years was playing in front of her house, the appellant took
the victim to his house and sexually harassed her. In the sequence on
27.01.2014, the appellant threatened the victim girl not to disclose the
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previous day incident to anybody. On 28.01.2014, when the appellant
called the victim girl to his house, she refused to go with him, the
appellant followed her and on seeing the victim girl crying, P.W.2/mother
of the victim girl questioned her and that the victim girl told about the
said occurrence to her mother. However, the complaint was given only on
29.01.2014 at about 1.20 p.m. Therefore, the delay of three days in filing
the complaint remains unexplained. Even though the distance between
the police station and the scene of occurrence is only 6 kms, the delay in
filing F.I.R is not properly explained. Further, there was an improvement
in the F.I.R and that there was a discrepancy in the statement made before
the Investigating Officer and also in the chief examination. The
contradictions are material contractions and there was an improvement
in every stage and the same is fatal to the case of the prosecution.
7.2 The learned counsel for the appellant would further submit that
the age of the victim girl has not been proved by the prosecution. In
sexual offence cases, it the duty of the prosecution to prove the age of the
victim girl. However, in the present case, no birth certificate has been
marked and no competent witness was examined to prove the date of
birth of the victim girl. Further, the victim girl was neither subjected to
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medical examination nor produced before the learned Judicial Magistrate
for recording statement under Section 164 Cr.P.C. Therefore, the
provisions of POCSO Act has not been properly followed in this case.
Further, the statement of witnesses have been reached the Court very
belatedly i.e. on 16.07.2018. Admittedly, their statements were recorded
in the year 2014 and the same reached after lapse of four years and the
said inordinate delay also remains unexplained. He would further submit
that except the statement of the victim girl, no other corroborative
evidence was adduced by the prosecution. Though the corroboration is
not a rule of law, but, it is a rule of prudence. When the evidence of the
victim suffers from doubt, undoubtedly that evidence should have been
corroborated by other independent witnesses in material particulars. In
the present case, since there was a previous enmity between the father of
the victim girl and the appellant, the appellant lodged a complaint, where
the father of the victim girl being an accused and only to settle that issue,
the present complaint has been falsely filed against the appellant.
However, the trial Judge has failed to appreciate both oral and
documentary evidence as well as the defence and erroneously convicted
the appellant only on assumption and on sympathy. Therefore, the
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judgment of conviction and sentence passed by the trial Court against the
appellant, is liable to be set aside.
8.1 The learned Government Advocate (Crl.Side) would submit that
at the time of occurrence, the victim girl, who examined as P.W.1 was
aged about 10 years and was studying 5th standard. The case of the
prosecution as per P.W.2/de facto complainant is that on 26.01.2014 at
about 11 a.m. when P.W.1/victim girl was playing in front of her house,
the appellant took her to his house and sexually harassed her and that he
committed the offence under Section 7 which is punishable under
Section 8 of POCSO Act. Thereafter, on 27.01.2014 at about 4.00 p.m the
accused with an intention of sexually harassing the victim girl, called her
to his house and when the victim girl refused to go with the appellant, he
criminally intimidated the victim and that the appellant committed the
offence punishable under Section 506(i) IPC.
8.2 The learned Government Advocate (Crl.Side) would further
submit that the appellant is none other than the neighbour of the victim
girl's family, apart from that, he is residing nearby their house. Though,
the offence is said to have taken place on 26.01.2014, at the time of
commission of offence, the victim girl escaped from the clutches of the
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appellant. The next day i.e on 27.01.2014, the appellant called her, but,
she refused to go to his house and the appellant criminally intimidated
the victim not to reveal the previous day occurrence to anybody. On
28.01.2014, again the appellant called the victim girl, but, she refused to
go, the appellant followed her and that the parents of the victim girl came
to know about the said incident and lodged the complaint against the
appellant. After investigation, the respondent police laid a charge sheet
against the appellant.
8.3 The learned Government Advocate (Crl.Side) would further
submit that in order to prove the case of the prosecution before the trial
Court, on the side of the prosecution totally 9 witnesses were examined.
out of which the victim girl was examined as P.W.1, the mother of the
victim girl was examined as P.W.2, the father of the victim girl was
examined as P.W.3 and also to prove the age of the victim girl, the
prosecution examined the Head Mistress of the school, in which the
victim girl studied, as P.W.5.
8.4 The learned Government Advocate (Crl.Side) would further
submit that since there was no penetrative sexual assault, it not necessary
to produce the victim girl before the Doctor for medical examination.
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Therefore non-production of the victim girl before the Doctor for
medical examination is not fatal to the case of the prosecution.
8.5 The learned Government Advocate (Crl.Side) would further
submit that during the trial, the victim girl was examined as P.W.1 and
she has clearly deposed that on 26.1.2014 she went to the school for
attending the Republic Day function and after returning home, she was
playing in front of her house, at that time the appellant, who is the
neighbour of the victim girl called her by saying that he would provide
chocolates and when the victim girl entered into his house, the appellant
misbehaved with her and she escaped from the appellant and due to fear
she did not reveal the said incident to her parents. Subsequently, on
27.01.2014 the appellant called her, but, she refused to go with him, the
appellant followed her and also threatened her. On 28.01.2014, again the
appellant called the victim girl to his house, but, she refused, the
appellant followed her and that the victim girl rushed to her house and on
seeing the said incident, P.W.2 questioned the victim girl and that she
revealed the said incident to her mother. Thereafter, on the next day i.e on
29.01.2014, P.W.2/mother of the victim girl filed the complaint Ex.P1
against the appellant. Therefore, there was no deliberation or inordinate
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delay in preferring the complaint. Mere delay in filing the complaint is
not fatal to the case of the prosecution and hence, the contention of the
learned counsel for the appellant is not acceptable. In cases like this
nature, no corroborative eye witness can be expected. The trial Court has
rightly appreciated the evidence of the victim girl and believed that the
evidence of the victim girl is clear, cogent and trust worthy and convicted
and sentenced the appellant. Hence, there is no merit in this Criminal
Appeal and the same is liable to be dismissed.
9.Heard the learned counsel for the appellant and the learned
Government Advocate (Crl.Side) for the respondent and also perused the
material available on record.
10.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.
11.It is a specific case of the prosecution that on 26.01.2014 at
about 11.00 a.m when the victim girl was playing in front of her house,
the appellant, who is the neighbour of the victim girl took the victim girl
to his house and sexually harassed her. The victim girl shouted, but her
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voice was not heard because of the sound of looms running outside and
that P.W.1 pushed the accused and came out of the accused house, at that
time, no one else in the accused house. Thereafter, P.W.1 went to her
house, but, due to fear she did not reveal the said incident to her parents.
The next day i.e. on 27.01.2014, the victim girl came back from school
and went to play, on that day also the appellant called her, but, she
refused to go, the appellant told her that if she tells about the said
incident, which took place on 26.01.2014, he would kill her, so that the
victim girl did not reveal the incident to anybody. The next day i.e on
28.01.2014, the appellant called the victim girl, but, she refused to go
with him; the appellant followed her, when her mother/P.W.2 saw the
same and questioned her; the victim girl revealed the truth. On the next
day itself i.e. on 29.01.2014, the mother of the victim girl lodged the
complaint against the appellant. While cross examining the victim girl as
P.W.1 before the Court, she has clearly narrated the said incident. During
the investigation, the victim girl was neither produced before any Doctor
for medical examination nor produced before any Judicial Magistrate for
recording statement under Section 164 Cr.P.C. However, from the
evidence of the victim girl, the prosecution has proved its case beyond
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reasonable doubts.
12.The defence taken by the learned counsel for the appellant is that
there was a delay in filing the complaint, but, there was no inordinate
delay in filing the complaint and the same has been properly explained
by the prosecution. The evidence of P.W.1 clearly shows that with an
intention, the appellant sexually harassed her. Further, there was no
injury or allegation of penetrative sexual assault, therefore, medical
examination of the victim girl is not necessary. The Investigating Officer
should have produced the victim girl before Judicial Magistrate for
recording statement under Section 164 Cr.P.C., however, they have not
produced the victim girl before Judicial Magistrate. Therefore, the lapses
committed on the part of the prosecution will not be a ground to
disbelieve the evidence of the victim girl. The victim girl was examined
before the Court as a witness and she has clearly narrated the said
incident.
13.Another defence taken by the learned counsel for the appellant is
that due to previous enmity, the de facto complainant filed a false case
against the appellant. But, the same has not been established in the
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manner known to law and they have taken the said plea only to escape
from the clutches of law. Further, non-production of the victim girl
neither before the Doctor for medical examination nor before Judicial
Magistrate for recording her statement under Section 164 Cr.P.C will not
be fatal to the case of the prosecution. In cases of this nature, no
corroboration is necessary, because prudent man would not commit these
type of offence in the presence of adult members and the presence of
independent eye witnesses are mostly improbable.
14.Though the learned counsel for the appellant submitted that the
victim girl is the only eye witness to the said incident and the prosecution
has proved its case only based on the evidence of P.W.1/victim girl and
that the evidence of P.W.1/mother of the victim girl is only hearsay
evidence, on a careful reading of the entire evidence, this Court finds that
the evidence of the victim girl is cogent and convincing. In cases of this
nature, no corroborative evidence is necessary, if the evidence of the
victim girl is trust worthy. Further, the defence taken by the learned
counsel for the appellant is not substantiated with any materials in the
manner known to law and hence, the trial Court has rightly rejected the
defence taken by the learned counsel for the appellant. Therefore, this
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Court finds that there is no reason to discard and disbelieve the evidence
of the victim girl/P.W.1.
15.On a careful reading of the evidence of the victim girl, it would
reveal that the appellant sexually harassed the victim girl, who is below
the age of 12 years and also threatened her not to disclose the said
incident to anybody. If the age of the victim girl is above 12 years, the
commission of sexual assault falls under Section 7 which is punishable
under Section 8 of POCSO Act and if the age of the victim girl is below
12 years, it is termed as an 'Aggravated sexual assault', which falls under
Section 9(m) punishable under Section 10 of POCSO Act. Further, the
minimum punishment for the offence under Section 7 of POCSO Act is
three years, which is punishable under Section 8 of POCSO Act, whereas
for the offence under Section 9(m) of POCSO Act is five years, which is
punishable under Section 10 of POCSO Act.
16.Under these circumstances, this Court finds that the appellant
has committed the offence under Section 9(m) of POCSO Act which is
punishable under Section 10 of POCSO Act. However, the trial Court has
failed to look into the age of the victim girl at the time of occurrence i.e.
8 years and wrongly convicted and sentenced the appellant only for the
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offence under Section 7 of POCSO Act, which is punishable under
Section 8 of POCSO Act.
17.In fine, this Court does not interfere with the charges framed by
the trial Court against the appellant, however, the benefit of set off given
by the trial Court is set aside. The trial Court has directed the appellant to
undergo three years of rigorous imprisonment for the offence under
Section 7 punishable under Section 8 of POCSO Act and also convicted
and sentenced to undergo one year rigorous imprisonment for the
offence under Section 506(i) IPC. Though the sentences are ordered to be
run concurrently by the trial Court, the same is set aside and modified as
both the sentence of imprisonment are to run consecutively, which will
meets the ends of justice.
18. With the above modification, this Criminal Appeal is dismissed.
Consequently, connected miscellaneous petition is closed.
19. It is seen from the records that the appellant/accused is on bail
and therefore, the trial Court is directed to take appropriate steps so as to
immure him in prison to serve out the remaining period of sentence.
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20.It is pertinent to mention here that the trial Judge has failed to
appreciate the age of the victim girl and not understood the relevant
provisions of POCSO Act. In many cases, this Court observed that the
Special Judges who deal with cases under POCSO Act, not properly
understood the scope and object of the POCSO Act. Before posting any
Sessions Judge to the Special Court which deals with the cases under
POCSO Act, have to necessarily sensitise and impart training to them
through Tamil Nadu State Judicial Academy. The Registrar General and
Director of State Judicial Academy have to necessarily take steps for the
same after getting necessary approval from My Lord The Honourable
Chief Justice as Patron-in-Chief and Board of Governors of the State
Judicial Academy.
07.07.2021
ms
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
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To
1.The Sessions Judge,
Fast Track Mahila Court,
Namakkal.
2.The Inspector of Police,
Puduchathiram Police Station,
Namakkal District.
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
Copy to:
1. The Registrar General,
High Court, Madras.
2. The Director,
Tamil Nadu State Judicial Academy,
Greenways Road,
Chennai.
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P.VELMURUGAN, J.
ms
CRL.A.No.113 of 2021
and
Crl.M.P.No.2925 fo 2021
07.07.2021
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