Madras High Court
Ravi vs State Rep. By The Inspector Of ... on 2 July, 2021
Crl.A.No.81 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.81 of 2020
Ravi ... Appellant
Vs.
State Rep. by the Inspector of Police,
All Women Police Station,
Neively, Cuddalore District. ... Respondent
(Crime No.9 of 2017)
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside
the Judgment made in Spl.S.C.No.12 of 2019, dated 21.01.2020 by the learned
Sessions Judge, Special Court for Exclusive Trial of Cases under Section POCSO
Act, Cuddalore.
1/18
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For Appellant : Mr.S.N.Arunkumar
For Respondent : Mr.S.Sugendran
Government Advocate (Criminal Side)
JUDGMENT
This Criminal Appeal has been filed against the Judgment of Conviction
and Sentence, dated 21.01.2020 made in Special S.C.No.12 of 2019, on the file
of the learned Sessions Judge, Special Court for Exclusive Trial of Cases under
Section POCSO Act, Cuddalore.
2. The respondent Police have registered a case in Crime No.9 of 2017,
for offence under Section 5(j) (ii), 5 (k), 5 (l) of the Protection of Children from
Sexual Offence Act, 2012 (Hereinafter called as 'POCSO Act'), which is
punishable under Section 6 of the 'POCSO Act against the appellant on the
complaint (Ex.P1) given by PW1. After completing investigation, the respondent
police laid a charge sheet before the learned Sessions Judge, Special Court for
Exclusive Trial of Cases under Section POCSO Act, Cuddalore and the same was
taken on file as Special S.C.No.12 of 2019.
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3. After completing the formalities under Section 207 Cr.P.C., since there
was a prima facie material to frame charges against the appellant, the learned
Special Judge framed charges under Section 6 of POCSO Act and Section 366 of
IPC.
4. After completing the trial and hearing the arguments advanced on
either side and also considering the oral and documentary evidence, the trial
Judge found the appellant not guilty for the offence under Section 366 of IPC
and acquitted from the said charge and found guilty for offence punishable
under Section 6 of the POCSO Act and convicted and sentenced him to undergo
rigorous imprisonment for 12 years and to pay a fine of R.2,000/-, in default to
undergo simple imprisonment for a period of one year.
5. Challenging the above said Judgment of conviction and sentence, the
appellant has filed the present appeal before this Court.
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6. The learned counsel for the appellant would submit that P.W.2 in her
evidence has clearly stated that in her house Television is available and
therefore, the prosecution theory that P.W.2 went to see television to the
appellant's house has become doubtful. It is further contended that the case
was registered on 13.12.2017, whereas the statement under Section 164(5) of
Cr.P.C. was recorded only on 01.03.2018 and the delay in recording statement
of the victim child under Section 164 (5) of Cr.P.C. will rise suspicion that the
statement was tutored or it is her own statement. The learned counsel would
further contend the doctor who initially treated the victim child was not
examined as a witness and therefore, non examination of the said doctor, is
fatal to the case of the prosecution. It is also further contended that P.W.2 was
7 months pregnant at the time of registering the case and however, P.W.7, the
Investigating Officer not chosen to conduct DNA profiling test as early as
possible. Further, DNA report excludes the appellant from paternity of P.W.2's
male child viz., Vignesh Prasath and therefore prays that the conviction and
sentence passed by the learned Sessions Judge is liable to be set aside.
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7. The learned Government Advocate (Criminal Side) would submit that
the victim is aged about 17 years, studied upto 5th standard and dropped out
and the parents of the victim are daily wages and she also a neighbour to the
accused. The victim child was alone in the house and she used to go to the
appellant's house for watching TV at that time, one day on 03.07.2017, at about
2 pm., when the victim was watching TV in the house of the appellant, the
appellant asked the victim to accommodate for her joys, and when she refused
to accept her joys and tried to leave from his house, the appellant pulled her
and locked the door from inside and had a penetrative sexual assault against her
will and thereafter, he threatened her that if she would not give consent for
sexual assault, he would commit suicide and in that way called her several times
and had sexual intercourse with her, subsequently, the victim got pregnant and
thereafter, the mother came to know the pregnancy of the victim child and
made enquiry about the same with the accused for pregnancy, and
subsequently, she gave a birth to a male child and thereafter gave a complaint.
Thereafter, the victim chid gave a birth and DNA test was taken and the report
shows that the appellant is not the biological father. However, the fact remains
that when the victim child used to go to watch TV in the appellant's house and
taking advantage of the loneliness, he had forcible sexual intercourse and also
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threatened her not to disclose anybody, if do so, he would commit suicide.
Thereafter, he had sexual intercourse with her for several times. Subsequently,
the victim child was produced before the Doctor, and before the doctor also she
has stated that a known person, who is neigbhour had sexual intercourse and
thereafter, she was produced before the learned Magistrate to record
statement under Section 164(5) of Cr.P.C., which also reveals that the victim
child named the appellant, one who had forcible sexual intercourse with her.
Further, the medical evidence and the statement of the learned Magistrate
recorded under Section 164(5) of Cr.P.C. would clearly prove that the appellant
had committed the offence under Section 5 of the POCSO Act, which is
punishable under Section 6 of the POCSO Act. Though the appellant has not
taken the custody of the victim child and the victim child gone to the house of
the appellant for watching TV and at that time, he had penetrative sexual
assault and the trial Court acquitted the appellant for the offence under Section
366 of IPC, however, rightly convicted the appellant for the offence under
Section 6 of POCSO Act, and therefore, there is no merit in the appeal and the
appeal is liable to be dismissed.
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8. Heard the learned counsel for the appellant and the learned
Government Advocate (Criminal Side) for the respondent and perused the
materials placed on record.
9. The case of the prosecution is that on 13.02.2017, at about 12.00
hours, the defacto complainant, the mother of the victim child lodged a
complaint before the respondent-Police by stating that she is residing at Veeran
Kovil Street, and she having two daughters, viz., Kirthana and Andhini, victim,
aged about 17 years. The accused Ravi is the neighbour of the complainant and
the victim child often used to go to the accused house for the purpose of
watching television. While so, the accused had intercourse with her before the
six months several times, due to that, the victim child conceived and now he is
in the stage of 6 month pregnancy and the accused also threatened the victim
child, if she would not give consent for sexual intercourse, he would commit
suicide by writing a suicide note and hence, the mother of the victim child filed
Ex.P1 complaint before the respondent Police.
10. On the side of the prosecution, 7 witnesses were examined as P.W.1
to P.W.7 and 13 documents were marked as Exs.P1 to P13. After completion of
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the examination of the prosecution witnesses, the incriminating circumstances
culled out from the evidence of the prosecution witnesses were put before the
appellant under Section 313 of Cr.P.C., however, the same was denied as false.
On the side of the defence, no witnesses were examined and no documents
were marked. The learned Sessions Judge, Special Court for Exclusive Trial of
Cases under Section POCSO Act, Cuddalore. After hearing the arguments on
either side and considering all the materials placed on record, found that the
appellant is guilty and convicted and sentenced, as referred above, which is
challenged in this Criminal Appeal.
11. Since this Court is an Appellate Court and also final Court of fact
finding, has to re-appreciate the entire evidence and come to the independent
conclusion.
12. In this case, the trial Court has framed two charges against the
appellant viz., under Section 366 of IPC and Section 5 of the POCSO Act. In order
to prove the said charges, on the side of the prosecution, totally 7 witnesses
were examined and 13 documents were marked. Out of 7 witness, the victim
child was examined as P.W.2. A careful perusal of the evidence of the victim
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child, she has clearly deposed that she used to go to the appellant's house for
watching television. At that time, except the appellant and the victim child, no
one was there and he asked her to give a company, when she refused and tried
to leave from his house, he forcibly took her and locked door from inside and
threatened that if she would not give consent for sexual intercourse, he would
commit suicide, by writing a suicide note. Further, he had undergone
penetrative sexual assault on several times in that way and also threatened her
not to reveal anybody. Though the victim child got pregnancy and she was
admitted in the hospital and gave a birth of child, and the evidence of Ex.P8,
medical record shows that the victim child looks mentally sub normal and she is
pregnancy of six months and she had sexual contact with her neighbour Ravi, on
and off on his compulsion and the report further shows that the appellant
threatened the victim child not to reveal the same to even her mother.
Further, opinion shows that her hymen was not intact and vagina admits two
fingers easily. Further, radiology report shows that the age of the victim child
would be 17 years. Subsequently, she was produced before the learned
Magistrate to record statement under Section 164 (5) of Cr.P.C and the
statement was marked as Ex.P11. A perusal of Ex.P11, it could be seen that the
victim child has clearly stated that whenever TV is repair and not function, she
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used to go for watching TV on the appellant's house and in the place of
occurrence, except the appellant and the victim no one was there and he locked
the door from inside and had forcibly sexual intercourse with her and he called
her frequently to his house, by threatening her that if she does not come to his
home, he would commit suicide by leaving a suicide note. Therefore, she also
used to go there whenever, he calls to have sexual intercourse with him on
several times. Since her mother (P.W.1) suspected of pregnancy, she brought
her daughter (P.W.2) before one doctor Kuili and thereafter, she brought the
victim child (P.W.2) before P.W.6 Doctor for medical examination and the
doctor (P.W.6) stated that the victim child is in the stage of 6 month pregnancy.
Subsequently when the DNA samples are taken and the report shows that the
appellant is not the biological father. However, the issue in this Appeal is
whether the appellant is the biological father of the child born to the victim
child or not and the only question is to be tested, whether the appellant has
committed the offence which is punishable under Section 6 of the POCSO Act. In
the case on hand, it is to be noted that the victim child is a minor and
completed the age of 18 years and in order to prove the age of the victim, the
transfer certificate was marked as Ex.P5. A perusal of transfer certificate
(Exs.P5) and SSLC Certificate (Ex.P2), the date of birth of the victim child was
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mentioned as 19.05.2001 and the date of occurrence is said to have occurred on
13.07.2017, therefore, the victim is only 17 years and not completed the age of
18 years, and in order to prove Ex.P5 and P6, the headmaster (P.W.4) was
examined and therefore, from the evidence of P.W.4, Exs.P5 and P6, it could be
seen that the victim child is aged about 17 years and not completed the age of
18 years, therefore, she is a child under the definition of 2 (1)(d) of the POCSO
Act.
13. As far as commission of offence is concerned, the victim child has
clearly stated that when she used to go to watch television on the appellant's
house, who is aged about 40 years, when his family members were not there in
the house and taking advantage of the loneliness of the victim child, he has
committed penetrative sexual assault and also called her on several times in
that way by threatening that if she would not give consent for sexual assault, he
would commit by leaving a suicide note. Though DNA report as against the
prosecution case however, it is to be noted that the victim child has clearly
deposed the facts during her evidence and even the statement recorded under
Section 164 (5) of Cr.P.C., also she has clearly narrated. Though the statement
recorded under Section 164 (5) of Cr.P.C. is not substantive evidence, however,
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victim was examined as P.W.2, before the Court and prove the evidence, she is
substantiated statement recorded by the learned Judicial Magistrate under
Section 164(5) of Cr.P.C.
14. Though the learned counsel for the appellant would submit that P.W.2
in her evidence has clearly stated that in her house Television is available and
therefore, the prosecution theory that P.W.2 went to see television to the
appellant's house has become doubtful it is to be noted that the victim child
has clearly stated before the learned Magistrate that when Television in her
house was not working or repair, at that time she used to go to watch movie in
the house of the appellant and therefore, the defence taken in this regard is
rejected.
15. The next contention of the learned counsel for the appellant is that
the case was registered on 13.12.2017, whereas the statement under Section
164(5) of Cr.P.C. was registered only on 01.03.2018 and therefore
the statement recorded under Section 164(5) of Cr.P.C. will rise suspicion that
the statement was tutored or it is her own statement. It is pertinent to mention
that the occurrence was said to have occurred six months prior to 13.12.2017
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and the case was registered on 13.12.2017, after receipt of complaint (Ex.P1)
received from the mother of the victim child (P.W.2). It is to be noted that the
victim child was initially brought before one Doctor Kuyili and thereafter, she
was taken before the Government Headquarters Hospital, Cuddalore and the
victim child was treated by the doctor (P.W.6) on 10.01.2018 and she examined
the victim child and also opined that her hymen was not intact and her vagina
easily admits two fingers and issued Ex.P6 certificate to that effect. In so far as
the delay in recording the statement under Section 164(5) of Cr.P.C. is
concerned, it is not within the control of the victim, and it is purely laches on
the part of the prosecution. Mere laches on the part of the prosecution will not
be the reason to discard the evidence of the victim and also appellant is
entitled for acquittal.
16. Yet another contention of the learned counsel for the appellant is
that non examination of the doctor, who treated the victim initially,
is fatal to the case of the prosecution. As far as non examination of the doctor
viz., Kuyili, is concerned, it is to be noted that the mother of the victim child
(P.W.2) took the victim child initially before Dr.Kuyil and however, thereafter,
the victim child was brought before P.W.6, who conducted medical examination
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on the victim child and found that the victim child was six months pregnant and
her hymen was not intact and her vagina easily admits two fingers and also
issued Ex.P6 to that effect. Therefore, mere non examination of the doctor,
who has examined the victim child is not a fatal to the case of the prosecution
as P.W.6 doctor has thoroughly examined the victim child and also issued Ex.P8
certificate to that effect and therefore, the contention of the learned counsel
for the appellant is not merit acceptable. It is also to be noted that even
assuming that the victim is a prostitute or the even assuming that the victim had
intimacy with several person, the question is that the victim child is minor and
not completed the age of 18 years, and the appellant is aged 40 years, and the
appellant had committed penetrative sexual assault on the victim child, and the
evidence of P.W.6 clearly shows that the victim child was subjected to sexual
assault.
17. Therefore, from the evidence of P.W.2, P.W.6 and also the statement
recorded under Section 164 (5) of Cr.P.C., further medical evidence Ex.P8
clearly show that the appellant has committed penetrative sexual assault on the
victim child. In the case on hand, the victim child is aged about 17 years and the
appellant had committed penetrative sexual assault on the victim child on
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several times, and therefore, the offence committed by the appellant would fall
under Section 5 (l) of the POCSO Act, which is punishable under Section 6 of the
POCSO Act.
18. As far as Section 366 of IPC is concerned, it is to be noted that,
it is not the case of the prosecution that the appellant took the victim child
from the lawful custody of her parents or without their consent and it is the
case of the prosecution that the victim child herself had gone to the house of
the appellant for watching TV and at that time, he had committed penetrative
sexual assault, and therefore, the trial Court rightly gave a finding that the
appellant has not committed the offence under Section 366 of IPC.
19. A combined reading of the evidence of P.W.2-the victim child,
P.W.1-the mother of the victim child, the evidence of P.W.6-doctor, who
examined the victim child and her report, which was as Ex.P8, and Ex.P2-SSLC
Certificate of the victim child to prove the age of the victim, the prosecution
has proved that the appellant has committed the offence under Section 5 of the
POCSO Act, which is punishable under Section 6 of the POCSO Act. The
contradictions pointed out by the learned counsel for the appellant are only
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minor contradictions, and which are not material contradictions that would
affect the case of the prosecution.
20. Considering the nature of the offence and the age of the victim child,
the appellant is not deserved to be any sympathy. Therefore, under the
circumstances, this Court does not find any merit in the appeal and the Appeal
is liable to be dismissed, accordingly, it is dismissed. Consequently, connected
miscellaneous petition is closed.
02.07.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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To
1.The Sessions Judge, Special Court for
Exclusive Trial of Cases under Section POCSO Act, Cuddalore.
2.The Inspector of Police,
All Women Police Station,
Neively, Cuddalore District.
3.The Government Advocate (Criminal Side),
Madras High Court.
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P.VELMURUGAN, J.
rns
Crl.A.No.81 of 2020
02.07.2021
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