Madras High Court
P.Natesan vs State Rep By on 20 July, 2021
CRL.A.No.5 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.07.2021
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
CRL.A.No. 5 of 2020
and
CRL.MP.No.85 of 2020
P.Natesan
S/o, Pachamuthu ... Appellant
Versus
State Rep by
The Sub Inspector of Police,
Erode All Women Police Station,
Erode District.
Crime No.19 of 2017 ...
Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure, against the judgment dated 22.11.2019 made in
Spl.S.C.No.14 of 2018 passed by the learned Sessions Judge, Magalir
Neethi Mandram, (Fast Track Mahila Court), Erode by convicting and
sentencing the appellant under section 3 r/w 4 of Protection of Children
from Sexual Offences Act, 2012 to undergo 10 years Rigorous
Imprisonment and to pay a fine of Rs.5,000/- I/d 3 months Simple
Page No.1 of 23
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CRL.A.No.5 of 2020
Imprisonment.
For Appellant : Mr.P.Palaninathan
For Respondent : Mr.S.Sugendran
Government Advocate, (Criminal Side)
*****
JUDGEMENT
This Criminal Appeal has been filed by the appellant against the
judgment dated 22.11.2019 made in Spl.S.C.No.14 of 2018 passed by the
learned Sessions Judge, Magalir Neethi Mandram, (Fast Track Mahila
Court), Erode by convicting and sentencing the appellant under section 3
r/w 4 of Protection of Children from Sexual Offences Act, 2012 to
undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.5,000/-
in default to under go 3 months Simple Imprisonment.
2. The respondent police has filed the case in Crime No.19 of 2017
against the appellant for the offences under sections 9(n) punishable
under section 10 and 5(n) punishable under section 6 of POCSO Act.
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3. After investigation laid a charge sheet before the Sessions Judge,
Magalir Neethi Mandram, (Fast Track Mahila Court), Erode. After
completing the formalities, the Special Judge, Erode taken the charge
sheet on file in Special Sessions Case No.14 of 2018. After completing
the formalities, framed the charges against the accused/appellant for the
offences under section 5(n) punishable under section 6 and 9(n)
punishable under section 10 of POCSO Act.
4. After framing charges, in order to prove the case of the
prosecution, during the trial on the side of the prosecution, as many as 12
witnesses were examined as P.Ws.1 to 12 and 20 documents were
marked as Ex.P1 to P20. One material object was also exhibited as
M.O.1. After completing the examination of the prosecution witnesses,
incriminating circumstances were culled out from the evidence of the
prosecution witnesses and put before the accused by questioning under
section 313 Crpc., and he denied the same as false and pleaded not guilty.
On the side of the defence, no oral evidence was produced and one
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CRL.A.No.5 of 2020
document was marked as Ex.D1.
5. On completion of trial, hearing of arguments advanced on either
side perused the materials, the trial court found the accused guilty of the
abovesaid charges. However, found the accused guilty of the offence
under section 3 of POCSO Act which is punishable under section 4 of
POCSO Act, convicted and sentenced to undergo ten years rigorous
imprisonment and to pay a fine of Rs.5,000/- in default to undergo three
months simple imprisonment. Challenging the abovesaid judgment of
conviction and sentence, the accused has filed the present Criminal
Appeal before this Court.
6. The counsel for the appellant would submit that the appellant is
not the father of the victim girl and the prosecution has not proved that
the appellant is the father of the victim. The trial court also accepted that
the prosecution has not proved the relationship between the appellant and
the victim and acquitted the appellant for the charge of offence under
section 5(n) punishable under section 6 of POCSO Act. However wrongly
convicted the appellant for the offence under section 3 which is
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CRL.A.No.5 of 2020
punishable under section 4 of POCSO Act.
7. The learned counsel for the appellant would further submit that
the victim girl fell on love with one boy while she was studying in school.
Victim's mother was staying in the house of the appellant. The appellant
is the owner of the house in which the mother of the victim girl is residing
as a tenant. The appellant asked the victim girl about the love affairs
with the boy friend, in order to escape from it, she foisted a false case
against the appellant. The mother of the victim girl examined as P.W.4,
she has clearly stated that the appellant is the owner of the house in
which she is residing as tenant. When she asked about the love affair of
the victim girl with her boy friend and also she beaten her, at the time, the
appellant also warned the victim girl. Therefore the victim girl gave a
false complaint against the appellant and her mother. Therefore from the
evidence of the mother of the victim girl P.W.4, it is proved that the
appellant has not committed any offence and in order to take vengeance
and since he warned the victim girl, she has foisted a false case against
the appellant. Though the victim girl stated that the appellant is the
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CRL.A.No.5 of 2020
biological father of the victim, however the appellant and the mother of
the victim girl had denied the same. The prosecution failed to prove that
the appellant is the biological father of the victim, the trial court
appreciated and accepted the same and acquitted the accused for the
offence under section 5(n) of POCSO Act. The victim girl has foisted the
false against him. There is no witness to show that the appellant has
committed the offence and there is no independent witnesses also and
even more so, the mother of the victim girl herself not supported the case
of the prosecution. Even the victim girl has not specifically stated the
penetrative sexual assualt made by the appellant and the trial court failed
to appreciate the evidence of the victim girl, though acquitted for the
charged offences, wrongly convicted the accused under section 3
punishable under section 4 of POCSO Act.
8. The learned Government Advocate (Criminal Side) appearing for
the respondent would submit that the mother of the victim girl was
residing with the appellant. The victim girl was also staying along with
them. On 17.12.2017 the appellant committed the penetrative sexual
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CRL.A.No.5 of 2020
assualt with the victim girl in order to do parigaram, as per horoscope on
the victim girl, as otherwise she will have two husbands and in order to
avoid the same, before marriage, he performed the said act. Under the
pretext, the appellant committed the sexual assault on the victim girl.
When the victim girl went to the school on the next day, she informed to
the teacher. On 19.12.2017 classmates of the victim girl informed to
P.W.3 that the victim girl was so dull and when they enquired about the
same, the victim girl reveals that her father committed penetrative sexual
assualt on her and informed the same to the Headmistress, P.W.2 and she
informed to the Social Welfare Officer on the next day. Thereafter they
preferred the complaint before the police and the police investigated the
matter and produced the victim girl before the doctor and the doctor
examined the victim girl and gave a certificate that the victim girl was
subjected to penetrative sexual assault. The victim girl was also produced
before the Judicial Magistrate for recording the statement under section
164 Crpc., and the Judicial Magistrate also recorded the same which is
marked as Ex.P2. On a combined reading of the evidence of P.W.1 the
victim girl, P.W.2 Headmistress, P.W.3 Physical Education Teacher and
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the evidence of P.W.12 Doctor and Ex.P2, statement recorded under
section 164 Crpc, Ex.P3 School certificate, Ex.P13,Birth certificate of the
victim girl, Ex.P19 medical records and Ex.P20, Opinion of the Doctor,
the prosecution has proved the case beyond all reasonable doubt that the
appellant had penetrative sexual assault on the victim girl. Therefore the
trial court though not found guilt of the appellant for the charged
offences, however convicted the appellant for the offence under section 3
punishable under section 4 of POCSO Act. There is no merit in this
appeal and the same is liable to be dismissed.
9. Heard the learned counsel appearing for the appellant and the
learned Government Advocate (Criminal Side) appearing for the
respondent and perused the records.
10. In this case, this Court is the appellate court as a final court of
fact finding, in order to give independent finding, it has to re-appreciate
the entire evidence independently for which this Court has also gone
through the entire materials and re-appreciated the evidence and give this
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finding.
11. The Special Court framed the charges against the appellant for
the offence under section 5(n) punishable under section 6 of POCSO Act
and also framed the charge for the offence under section 9(n) punishable
under section 10 of POCSO Act. In order to substantiate the charges, on
the side of the prosecution totally 12 witnesses were examined and 20
documents were marked. The victim girl was examined as P.W.1. She
has clearly spoken about the incident and the information given to the
school teacher and to the Social Welfare Officer and through them, gave
a complaint to the respondent police. P.W.2 is the School Headmistress
of the school in which the victim girl was studying during the relevant
period of time and she has spoken about the information received from
the victim girl . P.W.30 is the teacher who is working in the school in
which the victim girl was studying at the relevant point of time and she
has also spoken that the victim girl was studying in her school at the
relevant point of time. On the next day to the date of occurrence, they
come to know that the victim girl was subjected to penetrative sexual
assault P.W.4 is the mother of the victim girl. P.W.5 is the Assistant
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District Child Protection Officer, who has spoken about the information
which is received from the school and helped the victim girl to file the
complaint. P.W.12 is the Doctor who conducted the medical examination
on the victim girl. She has clearly spoken about the medical examination
conducted by her and the medical certificate is Ex.P19 and her opinion is
Ex.P20. Ex.P13 is the birth certificate of the victim girl, As per Ex.P13,
the date of birth of the victim girl is 01.12.2000. But the date of
occurrence is 19.12.2017. Therefore the victim's age is only 17 years old
and not completed 18 years. Therefore she is a child under the definition
of Section 2(1)(d) of POCSO Act. Since the victim girl is a child, the
alleged offence said to have committed by the appellant/accused on the
victim girl falls under the POCSO Act.
12. As far as the commission of alleged offence made by the
appellant is concerned, in order to substantiate the said charge, the
prosecution examined the victim girl itself as P.W.1 and she has clearly
narrated the event that the mother of the victim girl married one
Ramasamy. Subsequently her mother was living with accused and the
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she was born to her and the accused. Since he made a harassment on her
mother, she left the place. When she was studying 12th standard, the
appellant requested them to come and live with him. Hence all are
residing in the same roof. For one month, he had taken care and after
that he had showed his colour and told that according to horoscope of the
victim girl, she will have two husbands and if she had premarital sexual
intercourse with any other person, she may get the possibility of only one
husband and therefore the appellant misbehaved with the victim girl and
her mother also advised her to have the sexual intercourse with the
appellant and also the appellant had sexual assaulted on her. They gave
some drinks to the victim girl and when she was in semi-sense, at that
time, the appellant misbehaved with the victim girl. He had penetrative
sexual assault on her on 19.12.2017 between 11 to 11.30 pm. Next day
the classmates asked about her dull appearance, she informed about the
act of the appellant to the school teacher and headmistress and they gave
a complaint on 21.12.2017 to the police.
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13. Though the learned counsel for the appellant contended that
there is a delay in filing the complaint, but cases of this nature, a prudent
man cannot expect that the victim girl rush to the police that to against
her mother and father and the school authority also cannot rush to the
police, since the offence is connected with 17 years old girl. The school
authority informed the same to the Social Welfare Officer and made
enquiry and advised to give a complaint. The date of occurrence is on
19.12.2017 and the complaint was given on 21.12.2017. Moreover, it is
not an inordinate delay. Therefore the delay in filing the complaint is not
a fatal to the case of the prosecution.
14. The main defence taken by the appellant is that the mother of
the victim girl is residing in his house as a tenant. When the mother of
the victim girl separated from her husband, the victim was studying in the
hostel and staying there for some time. At that time, she had love affair
with one boy and therefore the hostel authorities could not control her
and advised her mother to take her daughter from the hostel. From that
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day onwards, the victim girl was staying with her mother and she
enquired about the complaints given by the hostel authorities about her
behavior and her mother also beaten her and the appellant also advised
and warned the victim girl. In order to escape from the same, the victim
girl made the complaint against the appellant and the mother of the victim
girl.
15. In this case, on a reading of the evidence of the victim girl, she
has clearly stated that the appellant is the father of the victim girl.
Though the appellant denied the same, the prosecution has failed to
establish the same and failed to take DNA test. However the subject
matter is not about whether the appellant is the biological father of the
victim girl or not and whether the victim girl is a biological daughter of
the appellant or not. The allegation is that whether the appellant has
committed the penetrative sexual assault on the victim girl or not. In
order to bring the offence into section 5(n) of POCSO Act, the
prosecution stated that from the statement of the victim girl, after framing
the charges under section 5(n) of POCSO Act, the appellant taken the
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CRL.A.No.5 of 2020
defence that he is not a biological father. Prosecution also not taken the
same fact in serious manner and not conducted any DNA test. However,
the appellant accepted that they are residing in his house as a tenant and
nowhere the appellant has stated that on the date of occurrence, the
appellant, victim girl and the mother of the victim girl were staying in one
roof. Further the evidence of the victim girl has clearly stated that he
tried to misbehave with the victim girl and the mother also abetted for the
same and they gave a flimsy reason and blamed the horoscope of the
victim girl, which is against law. As per the evidence of the victim girl, the
appellant has committed the penetrative sexual assault and subsequently
the evidence of P.Ws.2 and 3 are not the eye witnesses and they are the
Headmistress and the teacher working in the school in which the victim
girl was studying and their evidence is only hearsay evidence.
Subsequent to which, their evidence has clearly shows that they informed
about the occurrence to the Social Welfare Officer and she helped to give
the complaint. Then the victim girl was produced before the doctor
P.W.12. The evidence of P.W.12 clearly shows that the victim girl was
subjected to penetrative sexual assault and the appellant was also
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CRL.A.No.5 of 2020
examined by the doctor for proving the potency of the appellant and from
the evidence of P.W.1and P.W.12 doctor, it clearly shows that the victim
girl was subjected to penetrative sexual assault. The medical record
Ex.P20 also corroborate the same and in Ex.P19 accident register copy, it
is mentioned that at the time when she was in hospital, has clearly stated
that she was subjected to penetrative sexual assault. Therefore it is
proved from the medical evidence and the evidence of the doctor and the
medical record, it is found that the victim girl was subjected to penetrative
sexual assault. Therefore, now the question arise that as to whether the
appellant has committed such offence or not. In order to prove the same,
the prosecution examined the victim girl as P.W.1. The evidence of P.W.1
is very clear. Though during the cross examination on the side of the
defence, put so many questions, but they have not put any suggestion
that on the date of occurrence, the appellant, victim girl and the mother
of the victim girl were not residing in one roof. The cases of this nature,
no eye witness can be expected particularly when the offence committed
in the night hours within the four walls, especially when the victim girl
was residing with her mother. As per the evidence of the victim girl, the
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appellant misbehaved with her and tried to have sexual intercourse with
her. Since the victim resisted and objected the said act, they gave drinks
forcibly and after consuming drinks she become semi conscious and at
that time, the appellant committed the said act. As per the evidence of the
victim girl, her mother also forced her to such a relationship with the
appellant. The victim girl ascertain that the appellant is her biological
father. Since the appellant is already a married man and in order to
escape from the legal consequences, the mother of the victim girl gave a
name of the father of the victim girl as Raja instead of appellant's name
Natesan. However, the prosecution failed to take DNA test. and the
victim girl has stated that once the mother of the victim girl herself stated
to the victim girl that the appellant is the biological father of the victim
girl. However, though the prosecution is not proved the fact that as to
whether the appellant is the biological father of the victim girl or not,
from the evidence of P.W.1 and P.W.5, it is seen that she was residing in
the house of the appellant. However these facts remains that they
residing in the house of the appellant.
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16. Therefore cases like this, as already stated, no independent eye
witness can be expected and in this case, the mother of the victim girl
also not supported the case of the prosecution. Therefore from the
evidence of the victim girl and the evidence of the doctor P.W.12, Ex.P.19
the entry made in the accident register, P.W.20 opinion of the doctor,
Ex.P2 the statement recorded by the Judicial Magistrate under section
164 Crpc. Ex.P13 birth certificate of the victim's girl and the evidences of
P.Ws.2 and 3, the prosecution has proved that the victim girl is a child
under the definition of POCSO Act, she was subjected to penetrative
sexual assault which was committed by the appellant. The victim girl
stated that they lived in the same house, though the prosecution has not
proved that the appellant is the biological father of the victim. However,
on a reading of provision of section 5(n) of POCSO Act, which reads as
“Whoever being a relative of the child through blood or adoption
or marriage or guardianship or in foster care or having a domestic
relationship with a parent of the child or who is living in the same or
shared household with the child, commits penetrative sexual assault on
such child”
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Even though the prosecution has not proved that the appellant is a
biological father, the trial court also believed the same. However the
section clearly shows that even though they are not the father or relative,
anyone who is living in the shared household with the child committed
the penetrative sexual assault on such child is to be proceeded under
section 5(n) of POCSO Act. However the trial court ought to have
committed the appellant for the offences under section 5(n) of POCSO
Act. Therefore this Court could not go beyond the scope of the appeal.
However, this Court from the evidence of the victim girl and medical
evidence finds that the appellant has committed the penetrative sexual
assault which falls under section 3 of POCSO Act which is punishable
under section 4 of POCSO Act. There is no merit in the appeal. There is
no reason to interfere with the judgment of the trial court and therefore
the appeal is liable to be dismissed. Accordingly, the Appeal is dismissed.
Consequently, connected miscellaneous petition is closed.
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CRL.A.No.5 of 2020
17. On a combined reading of the evidence of the victim girl, she
made allegation that the appellant is her biological father and the same
was informed by her mother. The Investigating Officer failed to take
steps to conduct DNA test. If they conducted the DNA test, they would
have ascertain the fact as to whether the appellant is the biological father
of the victim girl or not. Further the I.O has also failed to ascertain that
during the relevant point of time, the appellant, victim girl and the mother
of the victim girl were residing in the same house with the child and for
that they ought to have examined any one of the tenant or neighbour
nearby the appellant's house. The trial court also, while framing the
charges, they should have ordered for DNA test, if not, at the time of
framing of charge, atleast after examining the victim girl as witness when
the suggestion made by the defence counsel before the victim girl that he
is not the biological father. Either the prosecution should have taken the
steps or the Judge suo motu should have taken steps to conduct DNA test,
in order to ascertain the offence falls under section 5(n) of POCSO Act.
The stakeholders who dealing with the POCSO Act are not sensitive and
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CRL.A.No.5 of 2020
serious and they are very lethargically proceeded with the investigation
and trial. In this case, the victim girl is a child and there is a complaint
against her own father and mother and no one would take care of her.
Therefore in order to ascertain the truth beyond reasonable doubt, it is the
duty of the I.O and Court to perform their duty diligently. Therefore
when the evidence of the victim girl that the mother of the appellant also
abetted for the commission of offence made by the appellant, neither the
I.O registered the case against the mother nor filed a charge sheet for the
offence under section 16 which is punishable under section 17 of
POCSO Act. Even the trial court, not at the time of initial stage of
framing charges, at least after examination of the victim girl, would have
exercised its discretionary power, and the mother of the appellant would
have arrayed as one of the accused under section 319 Crpc and charges
would have framed against the mother of the victim girl under section 16
of POCSO Act. Therefore, as already stated that both the I.O and trial
Judge failed to apply their mind and very lethargically dealt with the case
like any other case under IPC. Therefore this Court has given directions
to the State to give training to the stakeholders those who are dealing with
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the cases under POCSO Act in the State Judicial Academy, (Tamil Nadu
and Pondicherry) for imparting training to the Judges and sensitize them
on the provisions of the laws under the POCSO Act. It is made clear that
the Central Government and every State Government shall take all
measures to ensure that the provisions of this Act are given wide
publicity through media , at regular intervals made the general public,
children, as well as their parents and guardians are made aware of the
provisions of this Act. Further the officers of the Central Government and
State Government and other concerned persons including the police
officials have to be imparted periodical training on the matter relating to
the implementation of the provisions of the POCSO Act. This Court has
so far not come across any instance where the abovesaid provisions of the
Act has been implemented either by the Central Government or by the
State Government properly and had they done earlier, this type of lapse
would have been avoided. Even though it is not too late, the Act has
come into force in the year 2013 and still now the said provisions have
not been effectively implemented. It is not too late, but alteast hereinafter
both the Central Government and State Government are directed to
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implement the provisions of 43 of the said Act.
18. Registry is directed to mark a copy to be sent to appropriate
Departments, the Central Government, State Government (Tamil Nadu &
Pondicherry) and also State Judicial Academy.
20.07.2021
Index: Yes/No
Internet: Yes/No
mfa
To
1.The Sessions Judge,
Magalir Neethi Mandram,
(Fast Track Mahila Court),
Erode.
2. The Public Prosecutor,
High Court,
Madras.
P.VELMURUGAN, J.
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CRL.A.No.5 of 2020
mfa
CRL.A.No. 5 of 2020
and
CRL.MP.No.85 of 2020
20.07.2021
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