Madras High Court
Ram @ Ramlal vs The State Represented By on 7 July, 2021
Crl.A.No.401 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.401 of 2020 and
Crl.M.P.No.6142 of 2019
Ram @ Ramlal ...Appellant
Vs.
The State represented by
The Inspector of Police,
G-7 Chetpet Police Station
Chennai – 600 0031.
...Respondent
This Criminal Appeal is filed under Section 374 of Cr.P.C. to set
aside the judgment of conviction and sentence made in S.C.No.229 of 2015
by the learned Sessions Judge, Mahila Court / Special Court for Cases under
POCSO Act/Children's Court, Chennai, dated 08.03.2019
1/14
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Crl.A.No.401 of 2020
For Appellant : Mr.C.H.Vinobha Gandhi
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 S.C.No.229 of 2015 by the learned Sessions Judge,
Mahila Court / Special Court for Cases under POCSO Act/Children's Court,
Chennai, dated 08.03.2019
2 The respondent police registered a case in Cr.No.637 of 2014
against the appellant for the offence under Section 10 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 Sessions Judge, Mahila Court / Special Court for Cases under
POCSO Act/Children's Court, Chennai, which was taken on file in
S.C.No.229 of 2015. The learned Sessions Judge, after hearing both the
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Crl.A.No.401 of 2020
accused and the prosecution and after perusing the records, since there is
prima facie case, framed charges against the appellant/accused for the
offence punishable under Section 10 of the POCSO Act.
3 Before the trial Court, in order to prove the case of the
prosecution, on the side of the prosecution, as many as 8 witnesses were
examined as P.Ws.1 to 8 and Exs.P1 to P8 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, no one was examined and no document was marked.
4 The learned Sessions Judge, Mahila Court / Special Court for
Cases under POCSO Act/Children's Court, Chennai, on completion of trial
and hearing arguments advanced on either side, found the appellant/accused
guilty for the offence punishable under Section 10 of the POCSO Act and
hence by judgment dated 08.03.2019 convicted the appellant/accused for the
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Crl.A.No.401 of 2020
offence punishable under Section 10 of the POCSO Act and sentenced him
to undergo simple imprisonment for a period of five years with fine of
Rs.5,000/-, in default, to undergo simple imprisonment for a further period
of six months and also directed the Government to pay a sum of Rs.20,000/-
to the victim child 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 punishable under Section 10 of the POCSO Act. In this case, victim
child was not examined and she is only aged about 3½ years as projected by
the prosecution. The appellant residing at 3rd floor and mother and father of
the victim child are residing at 2nd floor and no mother would allow her
child, who is aged about only 3½ years to go to upstairs and hence it is clear
that prosecution has foisted false case against the appellant. Further, the
appellant and P.W.1 & P.W.2 and the victim child are residing in the three
storied building, which belong to P.W.3, who is the owner of the house and
there was previous enmity between the appellant and the landlady. In order
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Crl.A.No.401 of 2020
to wreck vengeance, the landlady made use of P.W.1 and foisted false case
against the appellant. P.W.1 in her evidence has stated that she knows only
Bengali, whereas, P.W.8, the Investigating Officer, in his evidence has
stated that P.W.1 has spoken Hindi. Neither the victim child, nor her mother
P.W.1 know Tamil or Hindi, they only know Bengali. Even the scribe of the
complaint has not been examined, which is fatal to the case of the
prosecution. It was stated that the victim child, while passing urine,
complained pain in her private part and when P.W.1 mother of the child
questioned the same, the victim child stated that the appellant put his finger
in her private part and thereafter they took the child to Hospital and on
information received from the Hospital, Police officials came and obtained
the complaint, whereas, P.W.8, the Investigating Officer, stated that P.W.1
went to Police Station and made complaint. Hence there are contradictions
in the evidence of prosecution witnesses.
5.1 The learned counsel further contended that there was no
external injury or any other injury on the parts of the body of the victim
child, but, it was stated that the victim child complained pain in her private
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Crl.A.No.401 of 2020
part and no medical evidence supported the case of the prosecution. P.W.1
to P.W.3 are not eye witnesses and all are only hearsay witnesses and the
only eye witness is the victim child, but she was not examined before the
Court. The trial Court has failed to look into the above aspects and observed
that P.Ws.1 to 3 were not subjected to cross examination and the evidence
of P.W.1 is unchallenged and hence erroneously come to the conclusion that
the appellant committed the offence punishable under Section 10 of the
POCSO Act and convicted accordingly. It is to be noted that the appellant,
while questioning under Section 313 of Cr.P.C, has pleaded the defence of
previous enmity between the appellant and the landlady, which is not at all
considered by the trial Court. It is settled proposition of law that prosecution
has to prove its case beyond all reasonable doubt and it should not take
advantage of the weakness in the defence. Hence, the conviction and
sentence made against the appellant by the learned trial Judge warrants
interference of this Court.
6 The learned Government Advocate (Crl.Side) appearing for the
respondent police would submit that the victim child was aged about 3 ½
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Crl.A.No.401 of 2020
years only at the time of occurrence and even she could not speak any of the
language and hence there is no use of examination of the victim child and
hence non examination of the victim child is not a fatal to the case of the
prosecution. Even though, P.W.1 did not know either Tamil or Hindi and
she can only speak in Bengali, P.W.2 husband of P.W1 knows Tamil and
Bengali. The victim child narrated the entire incident to her mother P.W.1
and P.W.1 informed the same to P.W.2 and immediately the victim child
was taken to Hospital. Before the Doctor/P.W.6, P.W.1 informed the sexual
assault committed by the appellant in Bengali and P.W.2 translated the same
in Tamil and P.W.6, the Doctor made entry in the Accident Register Ex.P5.
Even though the victim child was not examined, but, P.W.1, the mother of
the victim child has been examined before the Court and also recorded
statement under Section 164 of Cr.P.C/Ex.P2. in which, she has clearly
narrated the incident, which corroborates with the evidence of P.W.2.
Further it is contended that there was enmity between the appellant and the
landlady and hence false case has been foisted against the appellant making
use of P.W.1, but the fact remains that the appellant neither cross examined
P.W1 nor P.W.2, even after giving several opportunities. Hence the defence
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Crl.A.No.401 of 2020
taken by the appellant is after taught and the same need not be considered.
The trial Court, after appreciating the evidence of prosecution witnesses in a
proper manner, has recorded the conviction, which does not call for any
interference 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 05.08.2014 at about 06.00
p.m. the appellant/accused who was living at 3rd floor, removed panties and
penetrated his finger into the private part of the victim child, who was aged
about 3 years and thereby committed offence punishable under the POCSO
Act. Hence the present case was registered against the appellant for the
offence punishable under Section 10 of the 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
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Crl.A.No.401 of 2020
an independent finding. Accordingly, this Court has re-appreciated the
entire oral and documentary evidence produced before this Court.
10 P.W.1 is mother and P.W.2 is father of the victim child. P.W.1
deposed that on 05.08.2014 at about 2.00 a.m., the victim child told that she
wanted to go to toilet and while passing urine, she complained pain in the
private part and when P.W.1 questioned the same, the victim child stated
that the appellant inserted his fingers into her private parts. Since at that
time, P.W.2 husband of P.W.1 was not in station, on the next day, when he
came to home, immediately they went to Hospital and informed about the
sexual assault committed by the appellant. On information received from the
Hospital, P.W.8 went there and obtained complaint from P.W.1, in which
she has clearly stated about the offence committed by the appellant. P.W.2
has spoken about the incident, which was informed by his wife P.W.1.
P.W.3 is landlady of the appellant as well P.W.1 & P.W.2 and she has also
spoken about the incident as she heard from P.W.1.
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Crl.A.No.401 of 2020
11 Admittedly, at the time of occurrence the victim child was aged
about 3½ years, which is not disputed by the defence and she is a child
under definition of Section 2(d) of the POCSO Act. It it was not the case of
the prosecution that the appellant committed aggravated penetrative sexual
assault on the victim child, it was stated in Ex.P.1 complaint that the
appellant inserted his fingers into the vagina of the victim child and hence it
is not necessary to produce medical evidence for the same as contended by
the learned counsel appearing for the appellant. It is admitted that the victim
was only 3 ½ years at the time of occurrence and she could not speak any of
the language and hence it is not useful to examine the victim child before
the Court as witness and the same is not fatal to the case of the prosecution.
P.W.1, mother of the victim child was examined and statement under
Section 164 of Cr.P.C was also recorded, in which she has clearly spoken
about the offence committed by the appellant. P.W.1 was examined in chief
on 07.10.2015 and appeared on 10.08.2018 for cross examination, but, even
after three years of chief examination, the appellant did not cross examine
P.W.1, when she appeared before the Court on 10.08.2018. P.W.3, the
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Crl.A.No.401 of 2020
landlady also examined in chief on 18.08.2016, but the defence side did not
cross examine P.W.3. Once the appellant took the defence of previous
enmity between the appellant and the landlady, he should have cross
examined either P.W.1 or P.W.3 to prove his defence. But, the appellant,
even after giving sufficient opportunities, did not come forward to cross
examine the mother of the victim child/P.W.1 and the landlady/P.W.3 and
hence mere denial of charge framed against the appellant at the time of
questioning under Section 313 of Cr.P.C. stating that there was previous
enmity between him and the landlady cannot be given much importance.
12 The trial Court, after appreciating the evidence of prosecution
witnesses in a proper manner, has rightly observed that the appellant has
failed to cross examine P.W.1 and P.W.2 to prove his defence. Cases of this
nature, we cannot expect any eye witnesses and evidence of sole witness
would suffice to convict the accused, if it is cogent and consistent. On
reading of evidence of P.Ws. 1 to 3 and Exs.P1 and P2, it is clear that the
appellant committed offence under Section 9 of the POCSO Act, which is
punishable under Section 10 of the POCSO Act. The contradictions pointed
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Crl.A.No.401 of 2020
out by the learned counsel appearing for the appellant is not a material
contradictions and the same will not go into the root of the case of the
prosecution. There is no reason to disbelieve the evidence of P.Ws.1 to 3,
which are cogent and consistent.
13 In fine, this Court come 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.
Consequently connected miscellaneous petition is closed. The trial Court is
directed to secure the appellant/accused to serve remaining period of
imprisonment, if any.
07.07.2021
Index : Yes/No
Speaking order/Non Speaking order
cgi
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Crl.A.No.401 of 2020
To
1. The Sessions Judge, Mahila Court /Special Court for
Cases under POCSO Act/Children's Court, Chennai.
2. The Inspector of Police, G-7 Chetpet Police Station
Chennai – 600 0031.
3. The Public Prosecutor, High Court of Madras.
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Crl.A.No.401 of 2020
P.VELMURUGAN, J.,
cgi
Crl.A.No.401 of 2020 and
Crl.M.P.No.6142 of 2019
07.07.2021
https://www.mhc.tn.gov.in/judis
