Madras High Court
Arun vs The State By Inspector Of Police on 25 January, 2021
Crl.A.No.453 of
2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.453 of 2019 and
Crl.M.P.No.9832 of 2019
Arun .. Appellant
.Vs.
The State by Inspector of Police,
Salem Town All Women Police Station,
Salem District,
Crime No.5 of 2017 .. Respondent
Criminal Appeal filed under Section 374 (2) of the Code of Criminal
Procedure,to set aside the conviction and sentence imposed on the
appellant by the Judgment dated 09.11.2018 passed in Spl.S.C.No.25 of
2017 on the file of the learned Mahila Judge, (Sessions Judge), Salem, by
allowing the present Criminal Appeal before this Court.
For Appellant : Ms.Revathi. V
Mr.Nalliyappan
For Respondent : Mr.R.Suryaprakash
Government Advocate
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Crl.A.No.453 of
2019
JUDGMENT
This Criminal Appeal has been filed against the Judgment in
Spl.S.C.No.25 of 2017 dated 09.11.2018 passed by the learned Mahila
Judge, (Sessions Judge), Salem.
2. Originally, the respondent police registered a case against the
appellant for the offences punishable under Sections 506 (i) I.P.C and
Sections 8 r/w 7, 3 r/w 4 of Protection of Children from Sexual Offences
Act, 2012 (in short 'POCSO' Act) and after investigation laid a charge
sheet before the learned Sessions Judge, Mahalir Needhimandram for the
offences punishable under Sections 451, 506(ii) I.P.C. and Section 4 and
8 of POCSO Act and Section 4 of Tamilnadu Women Harassment Act,
1998 and the learned Sessions Judge also taken the case on file in
Spl.S.C.No.25 of 2017.
3. In order to prove the case of the prosecution before the trial
Court, on the side of the prosecution as many as 18 witnesses were
examined as P.W.1 to P.W.18 and 22 documents were marked as Exs.P1
to P22 and one material object was marked. On the side of the defence,
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no witnesses were examined and no documents were marked.
4. The learned Sessions Judge, after adverting to the materials
placed on record and after hearing both the parties, by Judgment dated
09.11.2018, convicted the appellant/accused for the offence under Section
451 of IPC and sentenced him to undergo rigorous imprisonment for two
years and to pay a fine of Rs.2,000/- in default to undergo two months
simple imprisonment; for offence under Section 4 of POCSO Act 2012
and sentenced him to undergo rigorous imprisonment for seven years
with a fine of Rs.50,000/- in default to undergo further six months simple
imprisonment; for offence under Section 4 of Tamilnadu Women
Harassment Act, 1998 and sentenced him to undergo rigorous
imprisonment for three years with fine of Rs.10,000/- in default to
undergo three months simple imprisonment.
5.Aggrieved against the said judgment of conviction, the appellant
has preferred the present criminal appeal.
6. The learned counsel for the appellant would submit that the
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Crl.A.No.453 of
appellant has not involved in the offence as alleged by the prosecution
and there is no evidence to show that the appellant had committed the
offence. It is further stated that the complaint was given only two months
from the date of alleged occurrence and there is no explanation for delay
in filing the complaint. He would further submit that at the time of
admitting in the hospital, the victim girl has stated that due to stomach
pain she consumed poison and the accident register does not reveal that
due to sexual intercourse committed by the appellant, the victim
consumed the poison.
7. He would further submit that P.W.16 the Doctor, who examined
the victim girl, also stated that there is no external injuries on the private
part of the victim girl and further no sperms were found on the private
part of the victim and therefore the prosecution has not proved its case
beyond reasonable doubt. He would further submit that the victim girl
has consumed the poison only three months after the occurrence due to
stomach pain, but the learned Judge failed to consider the same and only
on the ground of presumption and suspicion, convicted the appellant and
therefore the Judgment passed by the learned Sessions Judge is liable to
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be set aside.
8. The learned Government Advocate (Crl.side) would submit that
the victim girl is aged only 16 years at the time of occurrence and as per
Ex.P6- the school certificate the date of birth of victim is only 20.05.2000
and the date of occurrence is 17.01.2017. He would further submit that
P.W.16- Doctor who examined the victim girl and issued Ex.P14-
Medical Examination report and Ex.P15-SOC form of the victim girl has
opined that the age of the victim is between 16 to 17 years. He would
further submit that the victim girl was examined before the Court as
P.W.2. and she has clearly narrated before the learned Sessions Judge
that the appellant is her neighbour and under the guise of marrying her,
on the date of occurrence i.e., on 17.01.2017, the appellant had
intercourse with her and thereafter refused to marry her, for which she
consumed poison and admitted in the hospital. Thereafter, a complaint
was given before the respondent police and the respondent police took up
the investigation and filed the charge sheet. He would further submit
that the victim was produced before the learned Magistrate, who recorded
Section 164 Cr.P.C. statement. He would further submit that the Doctor
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who examined the victim girl- P.W.16 clearly stated that the victim girl
was subject to sexual intercourse. He would further submit that the
deposition of victim girl-P.W.2 before the Court clearly corroborates the
statement of victim girl recorded under Section 164 Cr.P.C. before the
learned Magistrate and hence the prosecution has proved the case
beyond reasonable doubt and there is no merit in this appeal and the
same is liable to be dismissed.
9. Heard both sides. Perused the records.
10 . The case of the prosecution is that the victim girl is aged about
16 years and the appellant is an auto driver. She is residing in the same
locality of the appellant. The appellant had kept watching the victim
whenever she goes to work and developed liking towards her and with an
intention to commit sexual intercourse, he forced her to kiss him and this
happened on three occasions and on one such occasion, the accused
forcibly embraced her, squeezed her breast and kissed her, with sexual
intent and thereby the accused had committed an offence of sexual
assault which involves physical contact without penetration which is
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punishable under Section 451 IPC and Sections 8 r/w 7 of the POCSO
Act, 2012. On the date of occurrence i.e., on 17.01.2017, the accused,
knowing about the loneliness of the victim, entered into her house,
hugged her, kissed her and had sexual intercourse with her, thereby the
accused committed the offence of penetrative sexual assault which is
punishable under Section 4 r/w Section 3 of the Protection of Children
from Sexual Offence Act, 2012 and 506 (i) of I.P.C. .Further, the accused
had given continuous sexual harassment and torture by making false
promise that he will marry her and after having enjoyed the sexual
intercourse, he left her with a stern warning not to contact him thereafter
and cheated her, thereby the accused had committed an offence
punishable under Section 4 of the Tamil Nadu Women Harassment Act.
11. During the trial in order to the prove the case on the side of the
prosecution, 18 witnesses were examined as P.W.'S 1 to 18 and 22
documents were marked as Exs.P1 to 22, besides one material object. On
the side of the defendants none was examined and no documents were
marked.
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12.After completing the examination of the prosecution witnesses,
the incriminating circumstances culled out from the evidence of the
prosecution witnesses were put before the appellant and he denied the
same as false. On the side of the defence, no oral or documentary
evidence was produced.
13. After hearing the submissions made on either side and
considering the evidence on record, the trial Court, by judgment dated
09.11.2018, in Spl.S.C.No.25 of 2017, convicted the appellant and
sentenced him as stated above.
14. Challenging the said judgment of conviction and sentence, the
appellant has filed the present appeal before this Court.
15. This Court, being an Appellate Court, is a fact finding Court,
and it has to give a finding independently after appreciating the entire
evidence independently. Accordingly, this Court has re-appreciated the
entire evidence.
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16. A careful perusal of the records would go to show that P.W.2
is the victim girl and she was examined on the side of the prosecution and
she has deposed clearly the conduct of the appellant for the commission
of alleged offences and the mother of the victim was examined as P.W.1
and she had corroborated the same. A reading of the evidence of P.W.1
and P.W.2 shows that the appellant is the resident of the same locality
of the victim girl and the victim studied upto seventh standard and
worked in a private company. Whenever she goes to work, the appellant
used to follow her and fell in love with her and also demanded her to kiss
him, when she refused to kiss him, the appellant entered into her house
and kissed her three times and on 17.01.2017, when the victim girl was
alone in the house, the appellant entered into her house and also kissed
her, subsequently he had intercourse with the victim girl with a false
promise to marry her and thereafter neglected her. When the victim
approached the appellant he avoided her and having fed up with the
action of the appellant, after two months, she consumed poison and
admitted in the hospital and P.W.13-Doctor who examined the victim
and recorded accident register- Ex.P9 has clearly stated that the victim
was admitted in the hospital by her mother after consuming the poison
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and P.W.16- Doctor who examined the victim girl has clearly stated that
the age of the victim girl was between 16 to 17 years and she was
subjected to sexual intercourse.
17. Though the learned counsel for the appellant submitted that
there is no external injury in the private part of the victim, it is not the
case of the prosecution that on the date of occurrence she was produced
to examine by the doctor, only after two months, after consuming
poison, when the victim girl stated that the appellant had sexual
intercourse with her, a complaint was given and thereafter she was
clinically examined by the doctor and therefore there may not be an
external injury. Under these circumstances the contention of the learned
counsel for the appellant is not acceptable.
18. Further, a reading of the statement recorded under Section 164
Cr.P.C., makes it clear that the victim girl was produced before the
learned Magistrate and the learned Magistrate also recorded the statement
from the victim girl and the statement recorded under Section 164 Cr.P.C.
itself is very clear that the appellant had committed sexual intercourse on
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her on 17.01.2017, with the false promise to marry her and thereafter
since the appellant refused to marry her and failed to keep up his
promise, she consumed poison.
19. A combined reading of the evidence of P.W.2 and P.W.13-
Doctor who admitted the victim in the hospital and registered the accident
register and P.W.16 - Doctor who examined the victim and Statement
recorded under Section 164 Cr.P.C., shows that the prosecution has
proved the case beyond reasonable doubt.
20. The trial Court also found that the appellant had committed
aforesaid offences and rightly convicted and sentenced the accused as
stated supra. Therefore, this Court does not find any perversity in finding
of the Judgment of the Court below and there is no merit in the Appeal
and the same is liable to be dismissed.
21. In the result, this Appeal is dismissed, confirming the Judgment
of the learned Mahila Judge (Sessions Judge), Salem dated 09.11.2018 in
Spl.S.C.No.25 of 2017. Consequently, connected
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P.VELMURUGAN,.J.
arr
Miscellaneous Petition is closed.
25.01.2021
arr
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
To
1. The Inspector of Police,
Salem Town All Women Police Station,
Salem District.
2. The Mahila Judge, (Sessions Judge), Salem.
3. The Public Prosecutor,
High Court, Madras.
4. The Deputy Registrar (Crl.side)
High Court, Madras.
CRL.A.No.453 of 2019
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