Madras High Court
Ravichandiran vs State By Its on 20 January, 2021
Crl.A.No.559 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.01.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.559 of 2019 &
Crl.M.P.No.12376 of 2019
Ravichandiran ... Appellant
Vs.
State by its
The Inspector of Police,
All Women Police Station,
Chidambaram,
Cuddalore District. ... Respondent
(Crime No.99 of 2014)
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside
the conviction and sentence imposed upon the appellants vide judgment dated
11.06.2018 made in Spl.S.C.No.17 of 2018, on the file of the Sessions Judge,
Mahila Court, Cuddalore and acquit the appellant.
For Appellant : Mr.K.G.Senthilkumar
For Respondent : Mr.R.Suryaprakash
Government Advocate
1/11
https://www.mhc.tn.gov.in/judis/
Crl.A.No.559 of 2019
JUDGMENT
Aggrieved by a Judgment dated 11.06.2018 of the learned Sessions Judge,
Mahila Court, Cuddalore in Spl.S.C.No.17 of 2018 arising out of FIR No.99 of
2014 registered at All Women Police station, Chidambaram, by which the
appellant was held guilty for committing offences punishable under Section
10 of the Protection of Children from Sexual Offences Act, 2012 ( for brevity
“the POCSO Act”), the instant appeal has been preferred by him.
2. By an order dated 11.06.2018, the appellant was sentenced to undergo
Rigorous Imprisonment for seven years and to pay a fine of Rs.25,000/- under
Section 10 of POCSO Act, in default to undergo simple imprisonment for one
year.
3. The case of the prosecution, in brief, is as under:-
3.1 On 02.06.2014, around 6.30 p.m., the appellant committed sexual
assault on the victim girl “X” (name not divulged for the sake of anonymity),
who was aged about 4 years, when she was playing in the backyard garden of
her house, which was seen by “X's” grand mother Dhanam (PW2) and who in
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Crl.A.No.559 of 2019
turn, informed the same to Sathya, who is the mother of the victim girl (P.W.1)
and she (P.W.1) immediately contacted her husband through phone and
informed the occurrence. Thereafter, she (P.W.1) lodged a complaint against
the accused.
3.2 On a written complaint (Ex-P1) lodged by Sathya (PW1), the Sub-
Inspector of Police, registered a case in Crime No.99 of 2014 under Section 10 of
the POCSO Act and prepared the FIR (Ex-P3).
3.3 The investigation of the case was taken over by Meena (PW5),
Inspector of Police, who went to the place of occurrence and prepared the
Observation Mahazar (Ex-P2) and Rough Sketch (Ex-P4). The appellant was not
arrested, as he had obtained anticipatory bail on 12.06.2014.
3.4 After completing the investigation, the police filed a final report in
S.C.No.17 of 2018 before the Sessions Mahila Court, Cuddalore.
3.5 On appearance of the appellant, the provisions of Section 207 Cr.P.C.
were complied with and the trial Court framed charge for the offence under
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Crl.A.No.559 of 2019
Section 10 of the POCSO Act, against the appellant. When questioned, the
appellant pleaded “not guilty”.
3.6 To prove the case, the prosecution examined ten witnesses and
marked four exhibits.
3.7 When the appellant was questioned under Section 313 Cr.P.C. on the
incriminating circumstances appearing against him, he denied the same. On
behalf of the appellant, no witness was examined nor any document marked.
3.8 After considering the evidence on record and hearing either side, the
trial Court, by judgment and order dated 11.06.2018, convicted the appellant of
the offence under Section 10 of the POCSO Act and sentenced him to undergo
seven years Rigorous Imprisonment and to pay a fine of Rs.25,000/-, in default
to undergo one year Simple Imprisonment.
3.9 Challenging the above conviction and sentence, the appellant is
before this Court.
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Crl.A.No.559 of 2019
4. The learned counsel for the appellant would submit that the victim
girl was not referred to Medical Officer for clinical examination and no
documents were produced by the prosecution. It is also contended that the
learned Judge failed to take note that neither statement nor the victim child
was produced before the learned Judicial Magistrate as per the POCSO Act,
2012. Therefore, the learned Sessions Judge failed to consider the materials
available on record and only on the sympathy ground, considering the age of the
victim girl, imposed a maximum punishment of 7 years and therefore, the order
of conviction and sentence passed by the learned Sessions Judge, has to be set
aside.
5. The learned Government Advocate (Criminal Side) would submit that
the victim girl is 4 years old and since there is no allegation against the
appellant that he had committed penetrated sexual assault with the victim girl
and sustained injury, she was not subjected to medical examination, however,
non producing the victim girl before the Medical Officer is not a fatal to the
case of the prosecution. The Grandmother of the victim girl was examined as
and P.W.2 and she categorically deposed that that the appellant had lifted the
victim girl and tried to sexual assault, after the victim girl raised alarm and
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Crl.A.No.559 of 2019
after seeing the P.W.2, he escaped from the scene of occurrence, Therefore,
the prosecution has proved its case beyond reasonable doubt.
6. Heard the learned counsel on either side and perused the materials
placed on record.
7. Sathya (PW1) was examined-in-chief on 24.05.2018. In her evidence,
she has stated that she is residing with her husband and two sons and a daughter
in Thillaividangam Village at Chidambaram Taluk. On 02.06.2014, around 6.00
p.m., when she was in residing her house, her daughter was playing in the
backyard garden and at that time P.W.2 (grandmother of the victim) told her
that the accused had tried to commit rape her daughter and when P.W.2 had
beaten the accused, he fled from the scene of occurrence. She (PW1)
immediately informed to her husband and told the occurrence through phone
and when her husband returned home and together, they went to the police
station and lodged the complaint (Ex-P1).
8. She (P.W.10 was cross-examined on the same day i.e., 24.05.2018. The
defence was not able to make any serious dent in the testimony of Sathya
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Crl.A.No.559 of 2019
(PW1), but, it was ultimately suggested to her that she has foisted a false case
against the appellant to wreak vengeance due to land dispute, which suggestion,
she has denied. Apart from this bare suggestion, no other motive has been
suggested to Sathya (PW1), for falsely implicating the appellant.
9. Dhanam (PW2), in her evidence, has stated that she is living in
Thillaividangam Village at Chidambaram Taluk, P.W.1 is her daughter-in-law and
at the time of occurrence, when she had returned to home after the work, she
had gone to backside of the home to take the dried clothes, and at that time
she heard the sound of her granddaughter cries, and she had also noticed that
the accused had removed his trouser and the dress of her granddaughter and
lifted her to his hip and rubbed his private part with the private part of her
granddaughter and when she went to near and beaten the accused, he escaped
from the scene of occurrence. Immediately, she informed to her daughter-in-
law (P.W.1), who in turn, informed to her husband (P.W.2), and has given a
police complaint. During cross-examination, she was also denied, due to land
dispute, they foisted a false complaint against the appellant.
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Crl.A.No.559 of 2019
10. The evidence of P.W.1 and P.W.2 are categorical to the effect that
the accused / appellant had attempted to penetrate the victim girl, who is aged
about 4 years at the time of occurrence. The learned counsel for the appellant
took a stand that the victim girl was not examined and she was not sent to
doctor for clinical examination. Since the girl is aged 4 years at the time of
occurrence and there was no penetrated sexual assault and there cannot be no
injury, and therefore, the victim girl need not be produced before the Medical
Officer for clinical examination and therefore, mere non-sending of the victim
girl to the Medical Officer is not a fatal to prosecution. Admittedly, in the case
on hand, from the evidence of P.W.2, it could be seen that no penetration had
taken place, however, in her evidence, the intention of the accused for
attempting to penetrate the vagina of the minor victim is proved. No doubt, as
per Section 7 of POCSO Act, 2012, touching the vagina or any other act with
sexual intent which involves physical contraction without penetration is a sexual
assault. Therefore, the learned Judge rightly held that since the victim girl is
aged about 4 years old and the sexual assault which involved physical contract
of the accused with the naked body of the child with sexual intent is aggravated
sexual assault which is punishable under Section 10 of POCSO Act and convicted
and sentenced him to undergo Rigorous Imprisonment for a period of 7 years
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Crl.A.No.559 of 2019
Rigorous Imprisonment and fine of Rs.25,000/- in default on year simple
imprisonment.
11. In view of the above, the learned Sessions Judge, rightly recorded the
order of the conviction of the accused/appellant. However, the learned
Sessions Judge imposed maximum punishment prescribed by Section 10 of the
POCSO Act. In the considered view of this Court, the facts and circumstances of
the case, if the substantive sentence is reduced to 5 years Rigorous
Imprisonment from 7 Years Rigorous Imprisonment, will suffice to meet the ends
of justice. In respect of punishment in the form of fine, and the default clause,
this Court finds no reason to interfere with. The substantive sentence of
Rigorous Imprisonment is reduced to 5 years Rigorous Imprisonment.
12. In the result, the Criminal Appeal is partly allowed with the above
modification. Consequently, connected miscellaneous petition is closed.
20.01.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
https://www.mhc.tn.gov.in/judis/
Crl.A.No.559 of 2019
To
1.The Inspector of Police,
All Women Police Station,
Chidambaram,
Cuddalore District.
2. The Sessions Judge,
Mahila Court,
Cuddalore
https://www.mhc.tn.gov.in/judis/
Crl.A.No.559 of 2019
P.VELMURUGAN, J.
rns
Crl.A.No.559 of 2019 &
Crl.M.P.No.12376 of 2019
20.01.2021
https://www.mhc.tn.gov.in/judis/
