Madras High Court
Ibrahim vs State on 22 January, 2021
Crl.A.No.698 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.01.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.698 of 2019 and
Crl.M.P.No.14698 of 2010
Ibrahim .. Appellant
.Vs.
State, Rep. by
The Inspector of Police,
Ammapetai Police Station
(Crime No.595/2012) .. Respondent
Criminal Appeal filed under Section 374 and 427 of the Code of
Criminal Procedure, to call for the records relating to the Judgment of the
Sessions case in Spl.S.C.No.50 of 2015 on th file of the Mahalir
Needhimandram, Salem, dated 06.09.2019 and set aside the conviction
and sentence passed as against the Appellant/Accused.
For Petitioner : Mr.B.Harikrishnan
For Respondent : Mr.R.Suryaprakash
Government Advocate
JUDGMENT
This Criminal Appeal has been filed against the Judgment in
Spl.S.C.No.50 of 2015 dated 06.09.2019 passed by the learned Sessions
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Crl.A.No.698 of 2019
Judge, Mahalir Neethimandram, Salem, convicting the appellant for the
offence under the provisions of the Protection of Children from Sexual
Offences Act, 2012 (in short, “the POCSO Act”) and also I.P.C.
2. Originally, the respondent police registered a case against the
appellant for the offences punishable under Sections 366 (A) and 376
I.P.C. and on investigation laid the charge sheet before the learned
Sessions Judge, Mahalir Needhimandram, Salem for the offences
punishable under Sections 363, 366 of I.P.C. and Section 6 r/w Section 5
(1) of the Protection of Children from Sexual Offences Act, 2012. The
Sessions Court also taken the case on file in Spl.S.C.No.50 of 2015.
3. In order to prove the case of the prosecution before the trial
Court, on the side of the prosecution as many as 10 witnesses were
examined as P.W.1 to P.W.10 and 15 documents were marked as Exs.P1
to P15. On the side of the defence, no witnesses were examined and no
documents were marked.
4. The learned Sessions Judge, after adverting to the materials
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Crl.A.No.698 of 2019
placed on record and after hearing both the parties, by judgment dated
06.09.2019 convicted the appellant/accused for the offence punishable
under Section 363 of IPC and sentenced him to undergo seven years
rigorous imprisonment with a fine of Rs.10,000/- in default to undergo
further period of three months simple imprisonment; sentenced him to
undergo rigorous imprisonment for ten years with a fine of Rs.20,000/- in
default to undergo further period of six months simple imprisonment for
the offence punishable under Section 366 I.P.C. and sentenced him to
undergo rigorous imprisonment for ten years with a fine of Rs.50,000/- in
default to undergo one year simple imprisonment for the offence
punishable under Sections 6 r/w 5(1) and 17 of POCSO Act, 2012.
5. Aggrieved against the said judgment of conviction and sentence,
the appellant has preferred the present criminal appeal.
6.The learned counsel for the appellant would submit that there is
no conclusive proof with regard to the correct age of the victim and the
prosecution has not established the said fact beyond reasonable doubt.
The victim herself stated during cross-examination that she completed
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Crl.A.No.698 of 2019
19 years. Though she has completed +2, neither birth certificate nor
school certificate have been summoned to prove the correct age of the
victim. He would further submit that the Doctor who examined victim
girl opined that the age of the victim would be above 16 but below 18.
He would further submit that if the victim girl is below 18 years, she can
be treated as a child and in this case as the age of the victim girl has not
been established and further the victim herself admitted that she
completed 19 years, the offence under POCSO Act is not attracted. He
would further submit that the victim girl and the mother of the victim
have not supported the case of the prosecution and therefore the
prosecution has not established its version. He would further submit
that two important witnesses viz., parental grandmother Attayi, with
whom the accused and victim said to have stayed for two days as well as
the friend of the appellant one Iswan in whose place the appellant as well
as victim stayed for one night, wherein the appellant committed offence,
have not been examined. He would further submit that there is no direct
evidence in this case and even the Doctor who examined the appellant
has stated that only the accused has committed offence but there is no
material evidence with regard to the same.
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Crl.A.No.698 of 2019
7. He would further submit that P.W.7-Doctor who examined the
victim would admit that though the alleged occurrence took place on
16.11.2012, she had examined the victim only on 17.07.2013, nearly
after nine months from the date of occurrence and further she deposed
that penetrative sexual intercourse would have taken two weeks prior to
examination, which leads to doubt in the case of prosecution. He would
further submit that the age of the appellant is 21 years and it is purely
love affair and therefore under these circumstances leniency may be
shown on the appellant. In support of his contention, the learned counsel
for the appellant relied on the Judgment of Delhi High Court in the case
of State (GNCT of Delhi) Versus Hargovind.
8. The learned Government Advocate (Crl.side) would submit that
P.W.1 and 2 have clearly stated in their evidence that the Date of Birth of
the victim is 09.05.1995 and therefore at the time of occurrence she has
not even completed +2 and her age was below 17 years and in order to
corroborate the same, the Doctor who examined the victim has clearly
stated that the age of the victim is between 16 to 18 years and in this case
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Crl.A.No.698 of 2019
the victim is aged above 16 years and below 18 years and therefore
POCSO Act would be attracted. If at all the victim was above 18 years,
then the appellant would have summoned the documents and even the
appellant admitted that the victim is below 18 years and not disputed her
age and therefore the prosecution has not taken any further steps to
secure the birth certificate.
9. He would further submit that since the victim herself stated that
her Date of Birth is 09.05.1995 and the Doctor also confirmed the same.
He would further submit that though P.W.1 and P.W.2 were examined on
06.09.2016, they were cross-examined only on 20.09.2018 nearly after
two years, and therefore the contention raised by the learned counsel for
the appellant is not acceptable and further the evidence of P.W.1 and
P.W.2 has clearly established that the offence has been committed by the
appellant therefore no corroboration is necessary and further the victim
girl herself has clearly spoken during the chief examination with regard
to commission of offence by the accused. He would further submit that
the prosecution has established its case beyond reasonable doubt and
there is no merit in this appeal and the same is liable to be dismissed.
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Crl.A.No.698 of 2019
10. Heard both sides. Perused the records.
11. The case of the prosecution is that the victim girl was aged about
17 years and she is the resident of Salem and she completed her studies
in Indira Gandhi Higher Secondary School and the appellant is the auto
driver. On 16.11.2012 at about 9.00 A.M., the defacto complainant
Mohanapriya was compelled to leave her house and come to Pattai Kovil
Auto Stand, Salem where the appellant was waiting and he insisted her to
marry him, for which she refused and the accused threatened her that if
the victim did not come with him, he will disclose their love affair to
everyone and therefore the victim girl went with him. He kidnapped her
and took her to his friend Iswan's house at about 9.00 P.M. where he
forcibly tied Karugumani on her neck and made her to believe that she is
lawfully wedded wife of the accused and thereafter at about 10.30 P.M.,
the appellant committed rape against her wish by having sexual
intercourse with her and thereafter they went to her grandmother house
and stayed there for two days wherein also the appellant had sexual
intercourse with the victim girl during night hours.
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Crl.A.No.698 of 2019
12. After receiving the complaint, the respondent police
investigated the matter and laid charge sheet and the learned Trial Judge
framed the charges against the appellant.
13. In order to prove the case, the prosecution has examined as
many as 10 witnesses and marked 15 documents. No Material Object
was exhibited.
14. After completing the prosecution evidence, the incriminating
circumstances culled out from the prosecution witnesses were put before
the appellant, he denied the same as false and however on the side of the
appellant, no oral or documentary evidence was produced.
15. After considering the evidence on record and hearing either
side, the learned Sessions Judge, vide judgment dated 06.09.2019 in
Spl.S.C.No.50 of 2015, convicted and sentenced the appellant as stated
above.
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Crl.A.No.698 of 2019
16. Challenging the judgment of conviction and sentence, the
present appeal has been preferred by the appellant.
17. 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.
18. The victim girl as P.W.1 was examined in Chief, before the
learned Sessions Judge, Mahalir Needhimandram, Salem on 06.09.2016.
A reading of the evidence given by the victim girl clearly proves the age
of the victim at the relevant point of time and how the appellant had
taken her and had sexual intercourse with her several times without her
wish. Once the victim is below 18 years, she is a child under Section 2
(1)(d) of POSCO Act. Further, P.W.2 mother of the victim was examined
and she has also clearly spoken about the age of the victim girl and also
about the incident.
19. Though the learned counsel for the appellant would submit that
the grandmother of the victim child as well the appellant's friend in
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Crl.A.No.698 of 2019
whose house the appellant and the victim child said to have stayed and
wherein the offence was said to have been committed, were not
examined, the evidence of P.W.1 - Victim child, P.W.2-mother of the
victim child, P.W.7-Doctor who examined the victim, clearly show that
the victim child was subjected to penetrative sexual intercourse and
further Ex.P.9 - Age certificate and Ex.P10-chemical analysis with
Doctor's opinion also prove that the victim child was subjected to
penetrative sexual intercourse. As far as the age of the victim is
concerned, the learned counsel for the appellant would submit that there
is no conclusive proof with regard to her age and further the Doctor
certificate is not conclusive proof. It is no doubt that the opinion of the
Doctor is not conclusive proof, but the victim in her chief examination
i.e., on 06.09.2016, has clearly stated that her Date of Birth is
09.05.1995. Further, P.W.7- the Doctor who examined the victim has
clearly deposed that the age of victim is between 16 to 18 years. Once it
is established that the age of the victim girl is below 18 years and the
doctor also opined the same after medical examination, it is clear that the
victim is below 18 years and she is a child under the definition of
POSCO Act. Therefore, on a thorough reading of the evidence of P.W.1
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and P.W.7, this Court comes to the conclusion that the victim girl is a
child under the definition of POCSO Act.
20. As far as non-examination of vital witnesses is concerned, the
victim girl has clearly stated that the appellant had taken her to his
friend's house as well as to her maternal grandmother's house, wherein
the appellant had committed the offence. The fact that the offence has
been committed with consent or without consent is no matter since the
victim is a child. Once the prosecution has established that victim is
subjected to sexual intercourse and the victim has stated that appellant
has committed penetrative sexual intercourse, as far as POCSO Act is
concerned, it is for the appellant to rebut the same and the non-
examination of other witnesses for corroboration is not fatal to the case
of the prosecution. In the case on hand, the Court below has safely
considered the version of victim child and came to the conclusion that
the offence under POCSO Act is made out, charges framed against the
appellant were proved beyond reasonable doubt. This Court does not find
any reason to doubt the trustworthiness of P.W.1 and P.W.2, who had
deposed the same facts at the time of examination.
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Crl.A.No.698 of 2019
21. Though the learned counsel for the appellant would submit that
the evidence of P.W.1 and P.W.2 has not supported the case of the
prosecution and therefore they were declared as hostile for the reason
that victim herself stated during cross examination that she completed 19
years, it is settled proposition of law that if the investigation agency
recorded the statement from the witnesses under Section 161 Cr.P.C. at
the time of investigation, subsequently if the witnesses had not deposed
before the Court, as stated in Section 161 Cr.P.C. then they can be
declared as hostile, whereas in the case on hand, at the time of Chief
examination of P.W.1 and P.W.2, they have clearly narrated the incident
as per statement given under Section 161 Cr.P.C. and since the witnesses
were cross examined after two years, for the reason best known to the
witnesses they have turned hostile, the Court cannot discard the evidence
of P.W.1 and P.W.2, though have turned hostile, for the reason that the
witnesses, after the chief examination, have to be immediately cross-
examined, but that was not done in the present case. Further, the accused
was also not in custody at the time of cross examination. Since P.W.1
and 2 were cross examined after two years of chief examination, this
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Crl.A.No.698 of 2019
Court is inclined to rely on the chief examination of P.W.1 and P.W.2.
Moreso over, the medical evidence corroborated the evidence of victim.
Further, 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 which supports the prosecution can be taken for consideration. The
said proposition was held by the Hon'ble Supreme Court in the case of
Veersingh Vs. State of U.P. reported in 2014 (2) SCC page 455. The
trial Court, on considering the entire facts and circumstances, felt that the
prosecution has proved the case beyond reasonable doubt and convicted
and sentenced the accused as stated supra. Further, Judgment relied on
by the learned counsel for the appellant is not applicable to the case on
hand . Mere non-examination of the certain witnesses is not fatal to the
case of the prosecution. In the present case, the chief examination of
P.W.1, P.W.2 and evidence of P.W.7 clearly prove the case of the
prosecution, that the appellant has committed the offences as charged by
the prosecution.
22. Considering the overall facts and circumstances of the case and
also considering the evidence of P.W.1, P.W.2 and P.W.7, this Court
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Crl.A.No.698 of 2019
does not find any merit in the Appeal and the same is liable to be
dismissed.
23. Accordingly, this Criminal Appeal is dismissed and the
judgment of conviction and sentence passed by the trial Court is
confirmed. Consequently, connected Miscellaneous Petition is closed.
22.01.2021
arr
Index: Yes/No
Internet: Yes/No
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Crl.A.No.698 of 2019
To
1. The Sessions Judge, Mahalir Neethimandram,
Salem.
2. The Inspector of Police,
Ammapetai Police Station, Salem.
3. The Public Prosecutor,
High Court, Madras.
4. The Deputy Registrar (Crl.side)
High Court, Madras.
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Crl.A.No.698 of 2019
P.VELMURUGAN, J.
arr
CRL.A.No.698 of 2019
22.01.2021
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