Madras High Court
Palanisamy vs The State Represented By on 1 July, 2021
Crl.A.No.151 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.151 of 2020
Palanisamy ...Appellant
Vs.
The State represented by
The Inspector of Police,
AWPS, Perur Police Station,
Coimbatore.
(Cr.No.02/2017)
...Respondent
This Criminal Appeal is filed under Section 374 of Cr.P.C. to set
aside the judgment of conviction and sentence made in Spl.C.C.No.14 of
2019 by the learned Special Judge, The Special Court for Exclusive Trial of
cases under POCSO Act, Coimbatore.
1/12
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Crl.A.No.151 of 2020
For Appellant : Mr.Adithya Varadharajan
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
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JUDGMENT
The criminal appeal has been filed against the judgment of conviction
and sentence made in Spl.C.C.No.14 of 2019 by the learned Special Judge,
The Special Court for Exclusive Trial of cases under POCSO Act,
Coimbatore.
2 The respondent police registered a case in Cr.No.02 of 2017
against the appellant for the offence under Sections 7, 8 and 5(m) r/w 6 of
Protection of Children from Sexual Offences Act, 2012 (for brevity “the
POCSO Act”). After completing investigation, the respondent police laid a
charge sheet before the Mahila Court, Coimbatore, which was taken on file
in Spl.C.C.No.9 of 2018 and subsequently the case was transferred to the
Special Court for Exclusive trial of cases under POCSO Act, Coimbatore,
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which was renumbered as Spl.C.C.No.14 of 2019. The learned Sessions
Judge, after hearing both the accused and the prosecution and after perusing
the records, since there is prima facie case, framed charges against the
appellant/accused for the offence under Sections 7, 8 and 5(m) r/w 6 of of
the POCSO Act.
3 Before the trial Court, in order to prove the case of the
prosecution, as many as 12 witnesses were examined as P.Ws.1 to 12 and
Exs.P1 to P13 were marked and no material object was exhibited. After
completing examination of prosecution witnesses, when incriminating
circumstances culled out from the evidence of prosecution witnesses were
put before the accused by questioning under Section 313 Cr.P.C., he denied
the same as false and pleaded not guilty. On the side of the defence, D.W.1
was examined and no document was marked.
4 The learned Sessions Judge, Special Court for Exclusive trial
of cases under POCSO Act, Coimbatore, on completion of trial and hearing
arguments advanced on either side, by judgment dated 12.02.2020 acquitted
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for the offence under Section 5(m) r/w 6 and convicted the
appellant/accused for the offence under Section 7 punishable under Section
8 of the POCSO Act and sentenced him to undergo imprisonment for a
period of three years with fine of Rs.2,000/-, in default, to undergo simple
imprisonment for a period of six months and also directed the Government
to pay a sum of Rs.25,000/- to the victim through her mother P.W.1 as
compensation. Aggrieved against the said judgment of conviction and
sentence, the accused has preferred this criminal appeal.
5 The learned counsel appearing for the appellant/accused would
submit that there is no substantial material to convict the appellant for the
offence under Section 7 punishable under Section 8 of the POCSO Act.
There was previous enmity between the appellant and father of the victim
and in order to wreck vengeance, false case has been foisted against the
appellant. Even though, in the complaint it was stated that the victim P.W.2
had pain in her private part and there was reddishness, P.W.9 the Doctor,
one who examined the victim has clearly stated that there was no injury or
reddishness in the private part of the victim and hymen remains intact.
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Therefore evidence of prosecution witnesses have not corroborated with the
medical evidences, which is fatal to the case of the prosecution and there
was no evidence for penetrative sexual assault. Further, the alleged
occurrence said to have taken place on 30.12.2016, but the complaint was
lodged by P.W.1 only on 03.01.2017 i.e. after three days, and the delay in
lodging the complaint was not explained by the prosecution in a proper
manner, which clearly shows that there was no such incident as alleged by
the prosecution, only after deliberation, P.W.1 & P.W.3, has made false
complaint against the appellant. There was civil dispute between the
appellant and the father of victim P.W.3 and hence in order to wreck
vengeance, the present complaint has been made against the appellant.
5.1 The learned counsel would further contend that the appellant
sustained injuries and took treatments for the same, but, the prosecution has
not explained the injuries sustained by the appellant. The appellant
examined one Thangamani as D.W.1, who has clearly spoken about the
previous enmity between the appellant and P.W.3 father of the victim. It
was stated that on 31.12.2016 i.e. one day after the alleged occurrence, the
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victim was taken to Primary Health Centre for fever and P.W.8, the Doctor,
one who treated the victim has not stated anything about the pain or
reddishness in the private part of the victim. Hence, it is clearly proved that
P.W.1 and P.W.3, after deliberation, has made the present complaint against
the appellant in order to wreck vengeance. The trial Court has failed to look
into the above aspects and erroneously come to the conclusion that the
appellant committed the offence under Section 7 punishable under Section 8
of the POCSO Act and convicted accordingly, which warrants interference
of this Court.
6 The learned Government Advocate (Crl.Side) appearing for the
respondent police would submit that the victim child, who was aged about 5
years at the time of occurrence, has clearly spoken about the manner in
which the offence was committed by the appellant. P.W.1, the mother of the
victim in her evidence has clearly stated that when she gave bath to her
child P.W.2, the victim child had complained pain in her private part and
P.W.1 also saw reddishness and when P.W.1 questioned the same, the
victim child narrated the incident, which would clearly attract offence under
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the POCSO Act. Immediately, P.W.1 and P.W.3 made complaint against the
appellant. The victim child was produced before the Doctor, after four days
of the occurrence and hence it cannot be expected and not possible that the
injuries and reddishness as stated by P.W.1 should be in the same vigor.
Prosecution has proved its case beyond all reasonable doubts and since
there is no penetrative sexual assault, the learned trial Judge has acquitted
the appellant for the offence under Section 5(m) punishable under Section 6
of the POCSO Act and convicted only for the offence under Section 7 r/w 8
of the POCSO Act. Hence, there is no reason to interfere with the judgment
of the trial Court and the appeal is liable to be dismissed.
7 Heard the learned counsel for the appellant and the learned
Government Advocate (Crl.Side) appearing for respondent police and
perused the materials available on record.
8 Case of the prosecution is that on 30.12.2016 at 03.30 p.m.
when the victim girl was playing in front of her home, the accused, who is a
neighbour went there and took her into his home. The accused kept the
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victim child in the staircase and removed her dresses and put his finger in
the private part of the victim and pinched. On 02.01.2017, since the victim
child suffered from fever, P.W.1, the mother of the victim child took her to
the Primary Health Centre. Thereafter, when P.W.1 washed the private part
of her child, she complained pain and P.W.1 saw reddishness in the private
part and when P.W.1 questioned the same, the victim child narrated the
entire incident. Hence the present case was registered against the appellant
for the offence under Section 7, 8 and 5(m) r/w 6 of POCSO Act.
9 This Court, being an Appellate Court, is a final Court of fact
finding, which has to necessarily re-appreciate the entire evidence and give
an independent finding. Accordingly, this Court has re-appreciated the
entire oral and documentary evidence produced before this Court.
10 P.W.2 is the victim, P.W.1 is mother and P.W.3 is father of the
victim child. When P.W.2 the victim child produced before the Magistrate
for recording statement under Section 164 of Cr.P.C., she has clearly stated
that the appellant took her into his house and kept her in the staircase and
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removed her cloths and put his finger into the vagina of the victim child and
thereafter she revealed the same to her mother P.W.1. P.W.1 also narrated
the entire incident in the complaint Ex.P1 and also during examination
before the trial Court. On reading of evidence of P.Ws.1 to 3 and Exs.P1, P3
and P10, prosecution has proved its case beyond reasonable doubt. As per,
Ex.P2, birth certificate of the victim child, at the time of occurrence the
victim is aged about 4 years and she is a child under Section 2(d) of the
POCSO Act. It is seen that the appellant committed the penetrative sexual
assault on the victim child, which offence falls under Section 3(b) of the
POCSO Act. Even the trial Court without considering the evidence of
prosecution witnesses, acquitted the appellant for the offence under Section
5(m) of the POCSO Act, but, neither the defacto complainant nor the State
has preferred an appeal for the same.
11 Further it is contended that medical evidence not supported the
case of the prosecution and there was no injury or reddishness in the private
part of the victim child as projected by the prosecution. It is seen that the
offence was committed on 30.12.2016 at about 3.30 p.m. and the victim was
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produced before the Doctor on 05.01.2017 for medical examination i.e. after
five days of the occurrence and hence it is not possible and also cannot be
expected that the injury and the reddishness should be in the same vigor.
Hence the contention of the learned counsel for the appellant is not
acceptable. The victim girl is only aged about five years at the time of
occurrence and we cannot expect from her that she should reveal everything
to her mother immediately soon after the occurrence and after a day, since
the victim child suffered from fever, P.W.2 took her to the Hospital and
thereafter when she gave a bath to the victim child, she came to know about
the offence committed by the appellant. Immediately after knowing the
offence committed by the appellant, P.W.1 and P.W.3 went to Police Station
and made a complaint and therefore, the delay in lodging the complaint is
not fatal to the case of the prosecution. On a combined reading of evidence
of prosecution witnesses viz. P.Ws.1 to 3 and Exs.P1 to P3, Ex.P9 and
Ex.P10, this Court is of the opinion that prosecution has proved its case
beyond reasonable doubt. There is no reason to disbelieve the evidence of
P.Ws.1 to 3, which are cogent and consistent.
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12 In fine, this Court comes to the conclusion that there is no merit
in the appeal and there is no sound reason to interfere with the judgment of
conviction and sentence. Accordingly, this criminal appeal is dismissed. The
trial Court is directed to secure the appellant/accused to serve remaining
period of imprisonment, if any.
01.07.2021
Index : Yes/No
cgi
To
1. The Special Judge, The Special Court for
Exclusive Trial of cases under POCSO Act, Coimbatore.
2. The Inspector of Police, AWPS, Perur Police Station,
Coimbatore.
3. The Public Prosecutor, High Court of Madras.
P.VELMURUGAN, J.,
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Crl.A.No.151 of 2020
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Crl.A.No.151 of 2020
01.07.2021
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