Madras High Court
Dhakshinamoorthy vs State By on 6 July, 2021
Crl.A.No.507 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.507 of 2020
Dhakshinamoorthy ... Appellant
Vs.
State by
Inspector of Police
W-19 All Women Police Station,
Adyar, Chennai. ... Respondent
(Crime No.1039 of 2016)
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside
the conviction and sentence passed by the learned Special Judge, Special Court
for Exclusive Trial of Cases under POCSO Act, Chennai in S.C.No.162 of 2018, by
Judgment dated 02.11.2020 and acquit the appellant herein from the charges.
For Appellant : Mr.S.Sasikumar
For Respondent : Mr.S.Sugendran
Government Advocate (Criminal Side)
1/20
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JUDGMENT
This Criminal Appeal has been filed against the Judgment of Conviction
and Sentence, dated 02.11.2020 made in Special S.C.No.162 of 2018 on the file
of the learned Sessions Judge, Special Court for Exclusive trial of Cases under
POCSO Act, Chennai.
2. The respondent Police have registered a case in Crime No.1039 of
2016, for offence punishable under Section 6 of the Protection of Children from
Sexual Offence Act, 2012 (hereinafter called as 'POCSO Act') and 506 (i) of IPC
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 POCSO Act,
Chennai and the same was taken on file as Special S.C.No.162 of 2018.
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 for the offences under Section 6 of POCSO Act and
Sections 448 and 506 (ii) IPC.
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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 guilty for offence punishable under Sections 450,
506 (i) and Section 6 of POCSO Act, and convicted and sentenced him as
follows:-
● For offence under Section 450 IPC, the appellant shall undergo 5 Years
Rigorous Imprisonment and to pay a fine of Rs.3,000/-, in default to
undergo 6 months Rigorous Imprisonment.
● For offence under Section 506 (i) IPC, the appellant shall undergo one
year Rigorous Imprisonment.
● For offence under Section 6 of POCSO Act, 2012 the appellant shall
undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.5,000/-,
in default to undergo 6 months Rigorous Imprisonment.
5. Challenging the above said Judgment of conviction and sentence, the
appellant has filed the present appeal before this Court.
6. The learned counsel for the appellant would submit that the
prosecution has foisted a false case against the appellant and no occurrence
has taken place as projected by the prosecution. The learned counsel would
further submit that there was a previous enmity between P.W.1 and the
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appellant and in order to take vengeance, P.W.1 set up the victim child and
foisted a false case against the appellant. The learned counsel would further
submit that as per the prosecution witnesses, P.W.3 and P.W.4, the appellant
sown knife and threatened them, but the knife was not recovered by the
Investigating Officer and there is no plausible explanation offered by them for
non-recovery of knife used in the alleged occurrence and it is fatal to the case
of the prosecution. Further, he would submit that even the victim child has not
identified the appellant during the examination before the trial Court as a
witness and there are material contradictions between the evidence the
prosecution witnesses. Though P.W.1 has stated that the blood stain, semen,
the underwear was referred to the Forensic Department by the prosecution and
the report also shows that there was no semen or blood stain collected and
therefore, the case of the prosecution is false. Further, the medical report also
shows that there was no external injury and her hymen was intact and there is
no other injury or abrasions, which clearly shows that there was no penetrative
sexual assault and as such, the medical evidence also not supports the case of
the proescution. Even though the victim child not named the P.W.6 during the
statement recorded under Section 164(5) of Cr.P.C, and she has narrated one
Dharani and Mani, Mani was not examined by the prosecution and the name of
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P.W.6 [K.Suriyamoorthy] was not at all mentioned in the prosecution and
introduced P.W.6, which also suspicious about the case of the prosecution.
7. It is further stated by the learned counsel that the victim child was
not immediately sent before the learned Magistrate to record the statement
under Section 164 (5) of Cr.P.C. Therefore, the victim child was tutored by the
Investigating Officer and recorded statement under Section 164(5) of Cr.P.C.
Even in the statement recorded under Section 164 (5) of Cr.P.C. also, the victim
child has not stated anything about the penetrative sexual assault as alleged by
the prosecution. Therefore, the trial Court failed to appreciate the oral and
documentary evidence and convicted the appellant based on presumption and
sympathy, which warrants interference.
8. The learned Government Advocate (Criminal Side) appearing for the
respondent-Police would submit that the prosecution has proved its case beyond
reasonable doubt. The age of the victim at the time of occurrence is only 7
years and when the victim child was sleeping, the appellant trespassed into the
house and at that time the brothers of the victim were playing outside, and
taking advantage of the same, the appellant removed his dress and also
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removed her panty and laid over her and when the victim child made hue and
cry and after hearing the noise of the victim child, P.W.4 and P.W.6 entered
into the house and assaulted the appellant, however, the appellant escaped
from the spot by showing the knife. P.W.4 and P.W.6 have also identified the
appellant, one who committed the offence. It is further submitted that though
medical evidence not supported the case of the prosecution, however, the
evidence of victim child (P.W.3) and the eyewitness (P.W.4 and P.W.6) have
categorically stated that the appellant one who has committed the offence. The
learned Government Advocate would further submit that the intention of the
accused to commit the offence of aggravated penetrative sexual assault on the
victim child has been proved by the prosecution and the learned Special Judge,
on proper appreciation of evidence, rightly convicted the appellant for the
offence under Section 6 of the POCSO Act. Further, the appellant threatened
the accused trespassed into the house and when the victim child attempted to
shout, he threatened her that he would kill her and gagged her with cloth and
hence, the learned learned Special Judge also convicted the appellant for the
offence under Section 450 and 506 (i) of IPC and therefore, prays for dismissal
of the Appeal.
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9. Heard the learned counsel on either side and perused the materials
placed on record.
10. The case of the prosecution is that on 30.05.2016 at about 2.00 p.m.,
when the sister's daughter of the defacto complainant was sleeping at the house
of the defacto complainant, the accused trespassed into her house and locked
inside and committed penetrative sexual assault on the victim child forcibly.
When the victim child attempted to shout, he threatened her that he would kill
her and gagged her with cloth. At that time, the brother of the victim child
came there and noticed that the door was locked. When he saw through the
hole of the door, the accused who was lying on the victim child. He managed to
open the door by giving his hand inside the door gap and rushed inside. He beat
the accused and released the victim and the accused ran away from the place of
occurrence. At 7.30 p.m, when the defacto complainant returned home work,
the brother of the victim child and the victim child told her (P.W.1) about the
occurrence and thereafter, P.W.1 lodged complaint Ex.P1 before the
respondent-Police Station. Based on which, the respondent-Police registered a
case against the appellant for the offence under Sections 6 of POCSO Act and
506 (i) of IPC. Subsequently, the Investigating Officer, investigated the matter
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and laid a charge sheet before the learned Sessions Judge, Special Court for
Exclusive trial of Cases under POCSO Act, Chennai.
11. During the trial, on the side of the prosecution, as many as 9
witnesses were examined as P.W.1 to P.W.9 and 11 documents were marked as
Exs.P1 to P11 and three material objects were exhibited as M.O.1 to M.O.3.
After completing the examination of prosecution witnesses, when incriminating
circumstances were culled out from the evidence of prosecution witnesses put
before the appellant by questioning under Section 313 Cr.P.C., he denied the
same as false and pleaded not guilty. On the side of the defence, one Vinoth
was examined as D.W.1 and no document was marked.
12. The learned Sessions Judge, Special Court for Exclusive Trial of Cases
under POCSO Act, Chennai 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.
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13. 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 and accordingly, this Court has re-appreciated the entire oral and
documentary evidence produced before this Court and come to the independent
finding.
14. Against the appellant, the learned Sessions Judge, Special Court for
Exclusive Trial of Cases under POCSO Act, Chennai, framed three charges, viz.,
under Sections 448, 506 (ii) IPC and Section 6 of POCSO Act, 2012. In order to
prove the charges framed against the appellant, on the side of the prosecution,
totally, 9 witnesses were examined, out of which, the victim child was examined
as P.W.3. As per the prosecution evidence and also documents produced by the
prosecution, the victim child is 7 years at the time of the offence. In order to
prove the age of the victim child, the prosecution has marked Ex.P4-birth
certificate of the victim. As per Ex.P4, school certificate, the date of birth of
the victim child is 11.06.2008 and the occurrence said to have taken place on
30.05.2016, therefore, the victim child was aged only 7 years at that time, and
not completed 18 years and therefore, she is a child under the definition
u/s.2(1)(d) of POCSO Act and the offence committed by the appellant falls
under POCSO Act.
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15. As far as the commission of offence under Section 450 of IPC is
concerned, victim child (P.W.3) has clearly narrated the entire occurrence that
while sleeping, the appellant trespassed into the house and committed the
charged offence, which was also corroborated by the eyewitnesses (P.W.4) and
(P.W.6). They have also clearly stated that after hearing voice of the victim,
they had gone into the house, and the appellant was there in the house,
subsequently, he escaped from the place of occurrence. Though the counsel for
the appellant pointed out that there are contradictions and inconsistencies
regarding the sexual assault made by the appellant, they are not material
contradictions, which would go to the root of the case of the prosecution, and a
reading of the entire evidence of P.W.3, P.W.4 and P.W.6., this Court finds that
the appellant has committed the offence under Section 450 of IPC.
16. As far as commission of offence under Seton 506 (ii) of IPC is
concerned, the victim child has stated that the appellant trespassed into the
house of the victim and removed her dress and when the victim tried to raise
alarm, he threatened her by showing knife and told that he would kill her and
gagged her with cloth. P.W.4 and P.W.6 also after hearing the noise of the
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victim child, came to the house and unlocked the door through the door gap,
and immediately, entered into the house and attacked the appellant and he
escaped from the spot, by showing knife. Therefore, the prosecution has proved
for the offence under Section 506 (ii) of IPC. According to the learned counsel
for the appellant, the knife was not recovered by the Investigating Officer. It is
to be noted that the victim child is aged about 7 years and the eyewitnesses
P.W.4 and P.W.6 have clearly stated about the fact that the appellant was
having knife. Further, even cross examination, the victim child has stated that
the appellant took the knife from the cupboard of the house of the defacto
complainant. However, mere non recovery of knife is not the sole ground to
disbelieve the evidence of the victim and therefore, the contention of the
learned counsel for the appellant is rejected and the prosecution has proved
the case that the appellant has committed the offence under Section 506 (ii) of
IPC.
17. The next point to be decided in this Appeal, whether the appellant has
committed the offence punishable under Section 6 of POCSO Act, or not. A
careful reading of statement recorded under Section 164 (5) of Cr.P.C. of the
victim child by the learned Magistrate, it could be seen that the victim child has
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narrated the entire occurrence that took place on 30.05.20216, which was
marked as Ex.P3 and also during evidence, she deposed the entire occurrence.
A reading of the evidence of the victim child, who examined as P.W.3, has
clearly deposed that she had gone to her aunt's (defacto complainant) house
for a vacation and on the date of occurrence she was watching TV and then
slept and her bothers were outside to play goli and at that time, the appellant
trespassed into the house and removed her panty and inserted his finger into the
private part of the victim child and also laid over her and due to pain, when she
cried, the brothers of the victim child came there and noticed that the door was
locked and manged to unlock the door from outside and came into the house
and assaulted the accused and released her. The brother of the victim child was
examined as P.W.4 and the cousin brother of the defato complainant was
examined as P.W.6 and they have also corroborated the evidence of the victim
child regarding the fact that when the victim child shouted, they rushed to the
house and they have seen the accused lying down on the victim child without
clothes and they unlocked the door through the door gap and released the
victim and assaulted the accused and he escaped from the spot with knife point.
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18. According to the learned counsel for the appellant, the victim child
(P.W.3) did not identify the appellant on the first time during trial and admitted
that the appellant is not the person, who committed the offence on her and
when the trial Court pressurized the victim child (P.W.3) by way of putting
leading question to her to identity fit he appellant, the victim child identified
the appellant only on the instructions of the trial court. It is to be noted that
on a careful reading of the statement of the victim child, which was recorded
under Section 164(5) of Cr.P.C., the victim child had clearly narrated the entire
occurrence and in the statement it is stated by the victim child that when she
was sleeping, the appellant trespassed into the house and when she attempted
to shout, the accused threatened her that he would kill her and gagged her with
cloth and removed his pant and also removed her panty and inserted his private
part into her private part, when she cried out of pain, the brothers, who were
playing into the outside of the house, unlocked the door and rescued the victim
child and attacked the victim. During the evidence also, victim child has
narrated the entire occurrence. It is to be further noted that at the time of
occurrence, the victim child was aged about only 7 years and she was examined
only after two years and further, the victim child has clearly stated during her
evidence that when she was sleeping, the accused trespassed into the house and
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committed the offence and therefore, mere non-identifying the appellant on
the first time through video, during trial is not a fatal to the case of the
prosecution, and however, when the accused was shown to her for the second
time, he observed him keenly and told that he was the person who came to the
house on the date of occurrence. Further, the evidence of the victim child was
also corroborated by the P.W.4 and P.W.6 who are eyewitnesses to the
occurrence and therefore, the contention of the learned counsel in this aspect
is also rejected.
19. Though the learned counsel for the appellant would submit that
P.W.5.doctor, who examined the victim child has stated that there was no
external injuries found on her and her hymen was intact and there was no
symptoms for having sexual intercourse, it could be seen that the victim child
had clearly narrated the entire fact during statement recorded under Section
164(5) of Cr.P.C. and also during evidence. Admittedly, in the case on hand,
from the evidence of the victim child, it could be seen that the appellant had
inserted his private part into the private part of the victim child and due to
pain when she cried, P.W.4 and P.W.6 eyewitnesses came to the spot and
rescued the victim. Mere penetrates his penis, to any extent, into the vagina of
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a child is an offence. Depth is immaterial, likewise whether child gets injury or
not also immaterial. If the evidence of sole witness is cogent, credible and
trustworthy, conviction is permissible. Therefore, mere doctor has stated that
there was no injury, that would not affect the case of the prosecution.
20. Further, it is also to be noted that the victim child was only 7 years at
the time of occurrence and not completed 12 years and therefore, she is a child
under the definition under Section 2 (1)(d) of POCSO Act. P.W.4 and P.W.6 , the
eyewitness also clearly deposed that that when they were peeping through
window after hearing the noise of the victim child, they noticed that the
accused was lying down on the victim child without any dress by removing her
panties and they immediately rescued the victim child and attacked the accused
and otherwise, the accused would have achieved his intention. Therefore, under
the circumstances, this Court has found that the appellant had committed the
offence under Section 5(m) of the POCSO Act, which is punishable under Section
6 of the POCSO Act, and the learned Sessions Judge rightly appreciated the
evidence of the prosecution witnesses and convicted the appellant.
21. At this juncture, it would be useful to refer Section 3, 5(m) and 6 of
the POCSO Act.
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" 3. Penetrative Sexual Assault
A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a child or makes the child to do so with
him or any other person; or
(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or anus of
the child or makes the child to do so with him or any other
person; or
(c) he manipulates any part of the body of the child so as to
cause penetration into the vagina, urethra, anus or any part of
body of the child or makes the child to do so with him or any
other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra
of the child or makes the child to do so to such person or any
other person.
5. Aggravated penetrative sexual assault:-
5(m) Whoever commits penetrative sexual assault on a child
below 12 years,
6. Whoever, commits aggravated penetrative sexual
assault, shall be punished with rigorous imprisonment for a term
which shall not be less than 10 years but which may extend to
imprisonment for life and shall also be liable to fine."
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A careful reading of the language of the said provisions of law and also the
statement of the victim child (Ex.P3) and the evidence of the victim child
(P.W.3), and the evidence of the brothers of the victim child viz., P.W.4 and
P.W.6 (eyewitnesses), it could be seen that the appellant has committed the
offence under Sections 5 (m) of the POCSO Act, which is punishable under
Section 6 of POCSO Act.
22. Yet another contention of the learned counsel for the appellant is
that there was a motive to foist a false case against the appellant. In this case,
there is no reason to disbelieve or disregard the evidence of the victim child.
Further, there was no necessity to foist such a false serious case against the
appellant by spoiling the future of the victim child (P.W.3). It is pertinent to
mention here that parent of the victim child need not say all these things and
also the parent of the victim child will not spoil the future of the victim child
for any flimsy reason. Therefore, the above contention of the learned counsel
for the appellant is also rejected. Further, there was no reason to discard the
evidence of victim girls. Normally, corroboration of witness is necessary,
whereas, offence under POCSO Act, the evidence of the victim girls are
sufficient and the Court cannot expect any independent eyewitness, since it is
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not the case of the prosecution that the offense had taken in the presence of
some other eye witnesses. Further, the defense has not established that for
which specific reason, they foisted a false case against the appellant. Though
the appellant had taken the defense of motive behind the complaint, but
however, it has not been proved in the manner known to law. The evidence of
the victim child is cogent and consistent, and there is no reason to discard the
evidence of the victim child.
23. Hence, this Court can safely come to the conclusion that the
appellant has committed the charged offence. In the light of the above
discussion, this Court does not find any merit in this appeal and the appeal is
liable to be dismissed, accordingly, it is dismissed. The Trial Court is directed to
secure the appellant for sufferance of sentence, if he is outside.
06.07.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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Crl.A.No.507 of 2020
To
1.The Special Judge,
Special Court for Exclusive Trial of Cases
under POCSO Act,
Chennai.
2.The Inspector of Police
W-19 All Women Police Station,
Adyar, Chennai.
3.The Public Prosecutor,
High Court of Madras,
Chennai.
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P.VELMURUGAN, J.
rns
Crl.A.No.507 of 2020
06.07.2021
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