Munusamy vs State Represented By
2021 Latest Caselaw 1290 Mad

                                                                                        Crl.A.No.723 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 21.01.2021

                                                         CORAM

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                   Crl.A.No.723 of 2019
                                      and Crl.M.P.Nos.15097 of 2019 and 19040 of 2019

                Munusamy                                                     ... Appellant

                                                   Versus

                State represented by
                The Inspector of Police,
                Kadathur Police Station,
                Dharmapuri District.
                Crime No.286 of 2014                                         ... Respondent

                PRAYER: Criminal Appeal is filed under Section 374(2) Cr.P.C seeking to call
                for the records of the learned Sessions Judge, Fast Track Mahalir Neethimandram,
                Dharmapuri, Dharmapuri District made in S.C.No.39 of 2017 and set aside the
                judgment dated 31.10.2018.


                          For Appellant             : Mr.M.Purushothaman

                          For Respondent            : Mr.R.Surya Prakash
                                                      Government Advocate.




                1/20


https://www.mhc.tn.gov.in/judis/
                                                                                      Crl.A.No.723 of 2019



                                                    JUDGMENT

This Appeal has been filed seeking to call for the records of the learned

Sessions Judge, Fast Track Mahalir Neethimandram, Dharmapuri, Dharmapuri

District made in S.C.No.39 of 2017 and set aside the judgment dated 31.10.2018.

2. The case of the prosecution is that P.W.1 is the victim girl, who was 15

years at the time of the occurrence and she was working in the private mill. On

26.10.2014, since it was a Sunday, the mill was not working and it is a holiday, she

did not go to the mill. She went along with her father at 10 a.m for grazing the

cattle and at about 4 p.m, her father asked victim to take the cattles to the house

and he will gather the goats. So the victim was proceeding to her house. The

accused intercepted and misbehaved with her. She raised her voice. On hearing the

voice, P.W.2 came there. Immediately, the accused fled away from the occurrence

place. P.W.1 and P.W.2 approached the village elders, but they have not given any

solution. Therefore they approached the respondent police with the help of P.W.4.

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3. The respondent police registered the case against the appellant in Crime

No.286 of 2014 for the offence u/s.354 IPC and Section 7 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter called as POCSO Act).

After investigation, charge sheet was laid before the Fast Track Mahila Court,

Dharmapuri. Since the offences against the children, the respondent police laid the

charge sheet before the learned Sessions Judge, Fast Track Mahila

Neethimandram, Dharmapuri, Dharmapuri District. The learned Special Judge

taken the case on file in Spl. S.C.No.39 of 2017. After completing the formalities,

the learned Sessions Judge framed the charges for offence under section 354 IPC

and Section 7 of the POSCO Act and the accused has denied the charges and

claimed to be tried.

4. After framing charges, in order to prove the case, on the side of the

Prosecution, P.Ws.1 to 10 have been examined, Ex.P1 to P5 have been marked. No

material object was marked.

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5. When the accused was questioned under Section 313 of the Code of

Criminal Procedure, 1973 and the incriminating materials available in evidence

against them were put to him, he denied his complicity in the crime and pleaded

not guilty.

6. After closing of the prosecution witnesses, on the side of defence, no oral

and documentary evidence was produced. After completing the trial and hearing

the arguments advanced on either side, the learned Sessions Judge acquitted the

appellant for the offence under section 354 of IPC and convicted the appellant for

the offence punishable under section 8 of the POSCO Act and sentenced him to

undergo three years Rigorous Imprisonment and pay fine of Rs.5,000/- in default

to undergo 6 months Simple Imprisonment.

7. Challenging the said judgment of conviction, the accused has filed the

present appeal before this Court.

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8. The learned counsel for the appellant would submit that the appellant has

filed a petition under Section 391(1) Cr.P.C., and the same shall be heard along

with this appeal. Further he would submit that there is inordinate delay in lodging

the complaint before the police and there is no acceptable explanation given by the

prosecution and even in the complaint. There is no date mentioned regarding the

date of the occurrence and date of complaint. Though P.W.2 father of the victim

has stated that they approached the villagers, after five days only, they approached

the respondent police, P.W.1 has stated that three days after the occurrence they

approached the Police. Therefore, there is material contradiction in the date of

occurrence and the date of complaint. Further the complaint is alleged to have

been lodged on 01.11.2014. However, no date has been mentioned in the

complaint, but it reached the Court only on 05.11.2014. In the case involving

serious nature like this, the FIR should be reached within 24 hours. But

prosecution has not explained the reason for delay in filing the complaint and

delay in sending the FIR to the Court. Further statement recorded under Section

164 Cr.P.C of the victim also reached the Court belatedly. Even the statements of

other witnesses have also not reached to the Court soon after recording from the

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witnesses. Therefore, the prosecution has not explained the inordinate delay and

therefore it is fatal to the case of the prosecution.

9. The learned counsel would further submit that the place of occurrence is

a open space and it is a public place and there is a public movement in the place of

occurrence, but none of the persons have noted the same. Even the person who is

residing nearer to the place of occurrence, have not been examined. Further, taking

into account the place of occurrence is the open space, the alleged occurrence

would not have happened and it is not possible for the accused to escape from the

place of occurrence. P.W.2 father of the victim after hearing the voice of his

daughter, rushed to the place which is very nearest. Therefore it is highly

unbelievable and further P.W.2 is the interested witness. Further he would submit

that due to enmity with the appellant, the complainant has foisted the false case.

Therefore, they are not in a position to say the date of occurrence and date of the

complaint. Even in the complaint itself, it is not mentioned the date of giving

complaint to the respondent police. The Investigating officer has stated that after

lodging the complaint by P.W.2, he was keeping the complaint for some time and

registered only after five days. That itself shows that the Investigating officer, after

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deliberation from the witnesses, foisted false case against the appellant. P.W.4

only taken the victim and her father to the police station. P.W.4 is a person, who

used to go to Police Station very frequently and doing Katta Panchayat. Further, a

criminal case registered against P.W.4 and the same was also pending in the same

police station. In this case also, he conducted Katta Panchayat and he induced

P.W.1 and 2 to give false complaint. P.W.4 is not a genuine person and the

evidence of P.W.4 is not trustworthy. Prosecution witnesses P.W.1, 2 and 3 are

only interested witnesses and they have filed false case against the appellant.

P.W.4 is also having enmity with the appellant and the villagers. Therefore

evidence of P.W.4 cannot be considered and the evidence of P.W.4 is not

trustworthy. There are two mahazar witnesses. Only one of the witnesses viz.,

P.W.5 was examined but other witnesses have not been examined by the

prosecution. No proper explanation was given by the prosecution as to why they

have sent the FIR belatedly to the Court. Therefore, under these circumstances, the

learned Sessions Judge failed to consider the materials and however convicted the

accused/appellant on the ground of sympathy over victim and on assumption. The

settled proposition of law is that unless the prosecution has proved its case beyond

all reasonable doubt, the court cannot convict the accused on the basis of

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assumption and the accused who is unable to take effective defence to disprove the

case of the prosecution. However, he would submit that the appellant filed a

petition under Section 391(1) Cr.P.C. and also filed documents praying to take

additional evidence and documents on file. In such circumstances, the appellant

has to be given opportunity to establish his defence and disprove the case of the

prosecution. But the learned Trial Judge failed to consider the materials and

therefore the petition filed by the appellant under section 391(1) Cr.P.C., may be

allowed and the judgment of the trial Court may be set aside, and after going

through the additional evidence, the Court can either directly take the additional

evidence or can remit the matter back to the Trial Judge to record the evidence

afresh and passing of the judgment.

10. The learned Government Advocate(Criminal Side) would submit that

P.W.1 is the victim. P.W.2 is the father of the victim, P.W.3 is mother of the

victim. They have categorically stated about the occurrence. The evidence of

P.W.2 corroborated the evidence of P.W.1 father who has stated that since the

matter was informed to the village elders immediately, they did not approach the

police. But the elders of the villager have not properly responded. Therefore, father

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of the victim approached the police with the help of P.W.4 and thereafter

complaint was registered. After the complaint, the investigating officer recorded

the statement of witness who has clearly stated that on 01.11.2014, the occurrence

took place. After investigation, the police laid charge sheet. Before the trial Judge,

the prosecution examined victim as P.W.1 and who has clearly narrated the

incident happened on the date of occurrence. Therefore, the document relied on by

the learned counsel for the appellant sought to be received as additional evidence

in the petition filed under Section 391(1) Cr.P.C is not relevant to the present case

and the same is only relevant to some other case and no suggestion was either put

before P.W.4 or P.W.2 regarding the documents sought to be received as

additional evidence, which were very much available on the date of examination

of the said witnesses during the trial. Therefore, the petition filed under Section

391(1) Cr.P.C., is liable to be dismissed. Further, the trial Court after considering

the entire material and after fullfledged trial, found that there is no merit in the

petition and the appeal is liable to be dismissed.

11. Heard and perused the records.

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12. Admittedly on the side of the prosecution, totally 10 witnesses were

examined out of which, P.W.1 is the victim. She has clearly deposed that she is

working in the private textile mill; on 26.10.2014 since it was Sunday she did not

go to the mill, she went along with her father for grazing cattles. At about 4 p.m.,

father told the victim to go to the house with the cow. While going to home along

with the cow, the appellant intercepted and misbehaved with her. Immediately she

raised her voice. After hearing the voice of his daughter, P.W.2 father rushed there.

Subsequently, the appellant left from the scene of occurrence. The same was

immediately informed to the father and father also informed to his wife i.e., mother

of P.W.1. It is the usual practice in the villages, if anything happened to a girl

child, parents may not immediately go to the police station for their grievances

because they would think about the future of the child. Therefore, first they would

think that where should go and to whom they should approach. Normally if any

incident like this happens, they used to approach village elders in panchayat and

this practice is prevailing in the villages in our country since ancient times and

even till today also, the same practice is prevailing in many of the villages. In a

situation like this, parents of the victim would normally think about the future of

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their girl children and reputation of the family. Therefore in the present case also,

parents of the victim went to the elders of the village and they have also not

decided the matter immediately. In the cases like this, immediately the village

elders would call the persons involved and they advice them. If any of the party

not accepting their advise, then the aggrieved party use to approach the police. In

the case on hand, P.W.2 approached P.W.4 Tirupathy. Admittedly he is worldly-

wise man, who used to go to police station frequently in order to help the innocent

villagers. As stated by the learned counsel for the appellant, he is doing some katta

panchayat and it is very clear that the villagers wont directly go to the police

station to report the incident like this. They search for some person who is well-

versed and well-acquainted with police station and Government offices. With the

help of such persons only, villagers would approach Police due to their illiteracy.

Likewise in this case also, P.W.2 went to the police station along with P.W.4 to

give complaint. Though the investigation done belatedly and the FIR was sent to

the Court belatedly, for such defects, grievance of the victim should not be simply

thrown away. It is settled proposition of law that lapse on the part of the

prosecution should not lead unmerited acquittal, subjected to rider that in such a

situation, evidence on record should be clinching so that lapses of prosecution can

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be condoned. In a case like this, the Court has to consider the suffering of the

victim and testify the veracity of evidence of the prosecution witnesses. The aspect

regarding whether the complainant has given the complaint immediately,

registered the FIR immediately, and whether the Police sent the FIR to the Court

immediately or not are all beyond the control of the victim, for which defects on

the part of the investigating officer, which purely arose due to the lethargic attitude

of the investigating officer, for which, the victim would not be made to suffer. This

Court cannot take any hypothetical view in this case since there is no serious

infirmity in the prosecution case. Mere technicalities should not be allowed to

stand in way of administration of Justice.

13. In all cases delay in transmitting FIR and reaching the Magistrate with

delay will not be fatal unless the genesis of the complaint is in doubt. Further when

the delay is not inordinate and version of the victim's father is honest and straight

forward, the delay will not be fatal. The purpose behind sending FIR immediately

to Magistrate has got dual purpose. Firstly, to avoid possibility of distorted version

by consultation and deliberations and secondly, enabling the Magistrate to watch

progress of investigation. In this case, in the complaint itself, the defacto

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complainant has stated the reason as already explained above. The delay in filing

FIR itself is not a ground to doubt the case of a prosecution. The delay in lodging

the FIR would put the Court on its ground to search if any plausible explanation

has been offered if so, whether it is satisfactory. In this case, this Court is satisfied

with the explanation. Further lapse on the part of prosecution should not lead

unmerited acquittal, subject to rider that in such a situation evidence on record

should be clinching, so lapses of prosecution can be condoned.

14. A reading of the evidence of victim clearly shows that the offence under

section 7 of POCSO Act is committed by the appellant. This Court carefully seeing

the evidence of the victim girl, which is cogent and trustworthy. Her evidence was

corroborated by her father who was examined as P.W.2. If the evidence of sole

witness is cogent, incredible and trustworthy conviction is permissible. The

evidence of interested witnesses, if found to have creditworthiness, conviction

could be based on uncorroborated testimony.

15. Though the learned counsel for the appellant would submit that victim is

not subjected to medical examination, the allegation is not that the appellant

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committed penetrative sexual assault, but only intercepted and closed the mouth

and tried to touch her and since in the inception stage itself, the victim girl raised

voice, the father was also nearer to the calling distance, soon after hearing the

voice, he rushed to the place of occurrence, the appellant left the occurrence place.

Therefore, non sending of the victim to medical examination is not fatal to the case

of the prosecution. In the facts and circumstances of the case, sending the

appellant and the victim girl for medical examination does not arise.

16. A careful reading of the evidence of the victim girl and her father P.W.2,

this Court does not find any reason to discard the same. The prosecution has

established its case beyond all reasonable doubt. The trial Court has given the

reasons for conviction and therefore, petition under Section 391(1)Cr.P.C., is

concerned, those documents were very much available even at the time of trial and

examination of the witnesses. None of the documents have been either suggested

before P.W.4 or P.W.2 when they were examined as witness before trial Court, and

the motive has not been established. If at all, the respondent police is said to have

foisted false case against the appellant due to motive, at the time of trial, the

appellant would have handed over the documents now sought to be received as

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additional evidence to his counsel and gave instructions and the counsel at that

time would have put suggestion; or at least at the time of Section 313 Cr.P.C.,

questioning, the appellant would have given the written statement and those

documents would have been produced before the trial Court. Since the documents

are not related to the occurrence, the filing of the petition under Section 391(1)

Cr.P.C., are related to P.W.4, noway helpful to the defence case. In this case,

invoking Section 391 (1) of Cr.P.C. is nothing but brainchild of the counsel for the

appellant and it is not actual defence of the appellant / accused.

17. During the course of argument, the learned counsel for the appellant

placed reliance on the following judgments in support of his submissions:-

(1) (2019) 5 SCC 628 [Prakash Chand Vs. State of Himachal Pradesh]

(2) (2013) 3 SCC 791 [Rajesh Patel Vs. State of Jharkhand]

(3)(2019) 16 SCC 712 [Brigadier Sukhjeet Singh (Retired) MVC Vs. State of Uttar

Pradesh and others]

18. This court gone through the above decisions. As far as the case on hand

is concerned, it comes under POSCO Act and the minor girl clearly had stated that

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she undergone sexual harassment and in such situation, the parents of the minor

girl will not boldly come out immediately and lodge complaint but used to think

about the future of the girl and also approach the village elders; if they are not able

to get any solution, then they will approach the police station. In this case also,

they have done the same. Therefore, the judgments above cited are not applicable

to the present case on hand. Further, it is settled proposition of law that every

criminal case has to be decided on the basis of facts and evidence available and not

on precedence.

19. As far as the documents are concerned, they are very much available

even at the time of trial and at the time of examination of the witnesses, the

documents were not suggested before the witnesses especially P.W.4 and P.W.2

and the appellant not filed the documents at the earliest point of time. Therefore,

this court is of the view that the application is filed only afterthought and

therefore, not inclined to entertain the petition u/s.391 Cr.P.C., and the citations

are not applicable to the present case. Therefore, under these circumstances, this

Court finds that in order to protract the appeal and fill up lacunae, the appellant

has invoked Section 391 Cr.P.C. and it cannot be invoked in any extraneous

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circumstances. If any material is available on the side of defence and not produced

or suppose subsequently came to knowledge about the material, in the interest of

justice the Court can exercise power under Section 391 Cr.P.C., and allow the

additional evidence. But a careful perusal of the entire records, this Court finds

that the appellant is not entitled to the relief sought for under Section 391 Cr.P.C.,

and filing petition under section 391 Cr.P.C., will not helpful to the defence case.

Even if the said documents received as evidence and taken into consideration, the

decision of the trial Court will not be changed. The evidence of the victim child is

clear that the appellant has committed the charged offence. Therefore, under these

circumstances, the petition under Section 391 Cr.P.C., filed by the appellant is

liable to be dismissed.

20. The appellate Court is a fact finding Court, which has to necessarily

re-appreciate the entire evidence and give independent finding. Accordingly, this

Court also finds that the appellant has committed offence under section 7 which is

punishable under Section 8 of POCSO Act 2012 and the trial Court rightly

appreciated the evidence and convicted the appellant and sentenced him to

undergo three years rigorous imprisonment and to pay fine of Rs.5,000/- in default

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to undergo six months simple imprisonment. Therefore this Court does not find

any merit in the appeal and the Criminal Appeal is dismissed.

21. Accordingly, this Criminal Appeal and Crl.M.P.No.15097 of 2019 are

dismissed. Consequently, connected miscellaneous petition is closed.

22. It is seen from the records that the appellant/accused is at large 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.

21.01.2021 mpa

https://www.mhc.tn.gov.in/judis/ Crl.A.No.723 of 2019

To

1. The Sessions Judge, Fast Track Mahila Neethimandram, Dharmapuri, Dharmapuri District.

2. The Inspector of Police, Kadathur Police Station, Dharmapuri District.

3.The Section Officer, Criminal Section, High Court, Madras.

4.The Public Prosecutor Office, High Court, Madras.

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P.VELMURUGAN,J.

mpa

Crl.A.No.723 of 2019 and Crl.M.P.Nos.15097 of 2019 and 19040 of 2019

21.01.2021

https://www.mhc.tn.gov.in/judis/