Madras High Court
J.Antony Vinoth vs The State Represented By on 19 July, 2021
Crl.A.No.231 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.231 of 2021 and
Crl.M.P.No.5658 of 2021
J.Antony Vinoth ...Appellant
Vs.
The State represented by
The Inspector of Police,
All Women Police Station,
Coonoor, Nilgiris District.
(Cr.No.01/2017)
...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.01 of
2018 on the file of the learned Sessions Judge, Mahalir Neethmandram (Fast
Track Mahila Court), Udhagamandalam at Nilgiris.
1/13
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Crl.A.No.231 of 2021
For Appellant : Mrs.Yogalakshmi
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
------
JUDGMENT
The criminal appeal has been filed against the judgment of conviction
and sentence made in Spl.C.C.No.01 of 2018 on the file of the learned
Sessions Judge, Mahalir Neethmandram (Fast Track Mahila Court),
Udhagamandalam at Nilgiris.
2 The respondent police registered a case in Cr.No.01 of 2017
against the appellant for the offence under Sections 315 and 506(i) of IPC
and 5(1) 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 learned Sessions Judge,
Magalir Neethimandram, (FTMC), Udhagamandalam at Nilgiris, which
was taken on file in Spl.C.C.No.01 of 2018. The learned Sessions Judge,
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Crl.A.No.231 of 2021
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 315 and 506(i) of IPC and
Sections 5(1) r/w 6 and 5(j)(ii) r/w 6 of the POCSO Act.
3 Before the trial Court, in order to prove the case of the
prosecution, as many as 18 witnesses were examined as P.Ws.1 to 18 and
Exs.P1 to P30 were marked and one material object was exhibited as M.O.1.
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 two documents were marked as Exs.D1 and D2 and no
material object was exhibited.
4 The learned Sessions Judge, Magalir Neethimandram, (FTMC),
Udhagamandalam at Nilgiris, on completion of trial and hearing arguments
advanced on either side, by judgment dated 27.01.2021 convicted the
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Crl.A.No.231 of 2021
appellant/accused for the offence under Sections 315 and 506(i) of IPC and
Sections 5(l) and 5(j)(ii) punishable under Section 6 of the POCSO Act and
sentenced him to undergo rigorous imprisonment for a period of two years
for each of the offence under Sections 315 and 506(i) of IPC and imposed
no fine for the same and to undergo rigorous imprisonment for a period of
20 years with fine of Rs.50,000/-, in default, to undergo simple
imprisonment for a period of six months for each of the offence under
Sections 5(l) and 5(j)(ii) punishable under Section 6 of the POCSO Act and
ordered the sentences to run concurrently. Aggrieved against the said
judgment of conviction and sentence, the accused has preferred the present
criminal appeal before this Court.
5 The learned counsel appearing for the appellant/accused would
submit that the victim girl fell in love with the appellant and knowing fully
well that the appellant was already married and got separated from his wife,
the victim girl had intimacy with the appellant. Further, the victim girl gave
consent and she voluntarily had sexual intercourse with the appellant and
she also went up to the stage of pregnancy. Further, age of the victim girl
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Crl.A.No.231 of 2021
has not been proved by the prosecution in the manner known to law and the
prosecution failed to produce Birth Certificate of the victim girl to prove
that the victim girl was below the age of 18 years. Hence offence under the
POCSO Act would not at all attract and the appellant cannot be convicted
for the offence under the POCSO Act. The victim girl gave consent for
sexual intercourse and she voluntarily had intercourse with the appellant
and hence there is no necessity for the appellant to give threat to the victim
girl and hence ingredients of offence punishable under IPC would not made
out.
5.1 Since, prosecution has failed to prove the fact that the victim
has not completed the age of 18 years and also by consent the victim girl
voluntarily had sexual intercourse with the appellant, the appellant could
not be convicted either for the offence under IPC or the POCSO Act. The
learned Sessions Judge, failed to consider the same and erroneously come to
the conclusion that prosecution has proved its case and wrongly convicted
the appellant, which is liable to be set aside.
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Crl.A.No.231 of 2021
6 The learned Government Advocate (Crl.Side) appearing for the
respondent police would submit that the victim girl was aged about 17 years
and was studying 12th standard. The appellant/accused is a neighbour of the
victim and he got married and also got separated from his wife. The
appellant used to talk with the victim, while she was returning home and
asked her to come to his home and on false promise to marry the victim, he
had sexual intercourse with the victim against her will in the year of 2016
and in that way he repeatedly had intercourse with the victim girl, due to
which, she became pregnant. The victim girl missed her menses and while
she informing the same to the appellant, he administered pills for abortion
and he threatened the victim girl not to reveal anyone about her pregnancy,
if she reveal to anyone he would not marry her.
6.1 Exs.P17 & 18, DNA test reports clearly shows that the
appellant is the biological father of the fetus, which got aborted by the
victim. Further, as per Ex.P6, Bonafide Certificate issued by the School, in
which the victim studied, date of birth of the victim is 15.02.2000, which
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Crl.A.No.231 of 2021
clearly shows that the victim is a child not completed 18 years and she is a
child as per the definition of Section 2(d) of the POCSO Act. Hence
penetrative sexual assault and the fact that the victim girl is a child below
the age of 18 years have been proved by the prosecution beyond all
reasonable doubts. The learned Sessions Judge, after appreciating the
evidence of prosecution witnesses in a proper manner, has convicted the
appellant and awarded imprisonment, which does not call for any
interference of this Court and the appeal is liable to be dismissed.
7 Heard the learned counsel appearing 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 P.W.1 is the victim girl and was
aged about 17 years and was studying 12th standard in the year 2017. The
accused is a neighbor and got separated from his wife. The victim girl got
acquainted with the appellant while returning home every day and they
often talked with each other and the appellant compelled the victim girl to
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Crl.A.No.231 of 2021
come to his home and on a false promise that he would marry her, had
sexual intercourse with her for several times and due to which the victim got
pregnant. The victim girl informed the same to the appellant and he
threatened the victim not to reveal anyone, if she revealed, he would not
marry her and administered five pills for abortion. As instructed by the
appellant, the victim girl consumed the pills and got over bleeding and
immediately she informed the same to her parents P.W.2 and P.W.3.
Thereafter, the victim was taken to the Government Hospital, Coonoor,
where it was informed that the fetus got aborted and referred the victim to
Government Hospital, Udhagamandalam. The Police Officials came and
obtained statement from the victim girl and the present case was registered
against the appellant.
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.
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Crl.A.No.231 of 2021
10 P.W.1 is the victim, P.W.2 is father and P.W.3 is mother of the
victim girl. When P.W.1 the victim girl produced before the Magistrate for
recording statement under Section 164 of Cr.P.C., she has clearly stated that
the appellant compelled her to come to his home and had intercourse with
her against her will on 20.12.2016 and thereafter repeatedly had sexual
intercourse and made the victim girl became pregnant. P.W.1, the victim girl
also stated that when she revealed the same to the appellant, he threatened
her not to reveal anyone and if she revealed, he would not marry her and he
also offered five pills for abortion. P.W.2 and P.W.3 in their evidence, have
stated that the appellant forced their daughter P.W.1 to consume the pills for
abortion and their evidence corroborated with the evidence of the victim
girl. P.W.2 and P.W.3 parents of the victim girl have spoken about the
complaint of pain, which the victim had and they took her to the Hospital
and they were informed that their daughter got abortion and hence she has
over bleeding. It is seen that blood samples were taken from the victim and
the appellant for DNA test and as per Exs.P16 and 17, it is proved that the
appellant is biological father of the fetus.
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Crl.A.No.231 of 2021
11 P.W.13, the Doctor, who examined the victim girl has spoken
about the pregnancy of the victim and he also deposed that on enquiry, the
victim girl told that she had intercourse with the appellant in the month of
May 2017 and the victim girl reiterated the same before P.W.17, who also
examined the victim girl. Hence, as far as penetrative sexual assault is
concerned, it was proved from the evidence of P.Ws.1, 2, 3, 13, 15, 16 and
17 and from Exs.P16 and 17, it is also proved that the appellant is the
biological father of the fetus. As far as age of the victim is concerned,
prosecution has proved that the victim girl was aged about 17 years and not
completed 18 years, by producing Ex.P6 Bonafide Certificate and also from
the evidence of P.W.7 the Head Master of the School.
12 Even though, it is contended by the learned counsel for the
appellant that the victim girl gave consent for intercourse and hence it is a
consensual sex and the appellant has not committed any offence under the
POCSO Act, it is proved that the victim girl is only 17 years and not
completed 18 years and hence her consent is immaterial and the contention
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Crl.A.No.231 of 2021
of the learned counsel is not acceptable. It is also proved that the appellant
had sexual intercourse with the victim girl repeatedly and made the victim
girl became pregnant and offered pills for abortion and he also intimidated
the victim girl not to reveal anyone about her pregnancy and hence the
learned trial Judge has framed charges for the offence under Sections 315
and 506(i) of IPC and Sections 5(1) and 5(j)(ii) punishable under Section 6
of the POCSO Act and convicted accordingly.
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. The
trial Court is directed to secure the appellant/accused to serve remaining
period of imprisonment, if any. Consequently connected miscellaneous
petition is closed.
19.07.2021
Index : Yes/No
Speaking order/Non Speaking order
cgi
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Crl.A.No.231 of 2021
To
1. The Sessions Judge,
Mahalir Neethmandram (Fast Track Mahila Court),
Udhagamandalam at Nilgiris.
2. The Inspector of Police,
All Women Police Station,
Coonoor, Nilgiris District.
3. The Public Prosecutor,
High Court of Madras.
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Crl.A.No.231 of 2021
P.VELMURUGAN, J.,
cgi
Crl.A.No.231 of 2021 and
Crl.M.P.No.5658 of 2021
19.07.2021
https://www.mhc.tn.gov.in/judis
