Madras High Court
M. Rajendren vs The State Represented By on 20 July, 2021
Criminal Appeal No.161 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Appeal No.161 of 2020
M. Rajendren ... Appellant
Versus
The State represented by
The Inspector of Police,
All Women Police Station (East)
Ramanathapuram
Coimbatore. ... Respondent
(Crime No.818 of 2017)
Criminal Appeal filed under Section 374(2) of Criminal Procedure
Code, to call for the records and set aside the conviction Judgment passed by
the learned Sessions Judge/Special Court for Exclusive Trial of cases under
POCSO Act, Coimbatore in Spl. C.C. No.40 of 2019, dated 30.01.2020 and set
the appellant at liberty.
For Appellant : Mr.P.Nagaraju
For Respondent : Mr. S. Sugendran,
Government Advocate (Crl.side)
JUDGMENT
The convicted sole accused is the appellant herein. The appellant herein
filed this appeal challenging the Judgment dated 30.01.2020 passed in
Spl.C.C.No.40 of 2019, on the file of the Sessions Judge/Special Court for
Exclusive Trial of cases under POCSO Act, Coimbatore, convicting him for
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Criminal Appeal No.161 of 2020
the offence under Section 7 of the Protection of Children from Sexual
Offences (POSCO) Act, 2012 and sentenced him to undergo Imprisonment for
three years and to pay fine of Rs.2000/-, in default to undergo three months
Simple Imprisonment. However, both the sentences were ordered to run
concurrently and the period already undergone was ordered to be given set off
under Section 428 of Cr.P.C.
2.The respondent/police registered a case against the appellant, in Crime
No.818 of 2017 on 21.07.2017, for the offence under Section 7 of the POSCO
Act. After investigation, the charge sheet was laid before the learned Special
Sessions Judge, Mahila Court, Coimbatore, since the offence is against the
child. The Mahila Court had taken the charge sheet in Special Sessions Case in
Spl.S.C.No.60 of 2018. After completing the formalities, the trial court
framed the charges against the appellant for the offence under Section 9(l),
9(m), which are punishable under Section 10 of the POCSO, Act, 2012.
3.After framing charges, in order to prove the case of the prosecution,
on the side of the prosecution, during the trial, as many as 9 witnesses were
examined as P.W.1 to P.W.9 and eight documents were marked as Ex.P1 to
Ex.P8. No material object was exhibited.
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Criminal Appeal No.161 of 2020
4.After completing examination of the prosecution side witnesses
incriminating circumstances culled out from the evidences of the prosecution
witnesses were put to the accused/appellant by questioning him under Section
313 of Cr.P.C., with reference to the incriminating circumstances on the
prosecution witnesses, but, he denied the same as false. On the side of the
defence, no oral or documentary evidences was produced.
5.On completion of trial and hearing the arguments advanced on either
side and considering the materials put forth before the Trial Court, the trial
court found the appellant/accused guilty of the offence under Section 7 which
is punishable under Section 8 of the POCSO Act and sentenced him to
undergo 3 years Imprisonment and to pay fine of Rs.2,000/- in default to
undergo 3 months simple imprisonment. Challenging the said judgment of
conviction and sentence, the accused/appellant has filed the present appeal
before this Court.
6.The learned counsel for the appellant would submit that none of the
witnesses spoken about the involvement of the appellant. Though PW1, father
of the victim child has stated that he has given the complaint the next day on
21.07.2017, he has stated that he had written the complaint as stated by the
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Criminal Appeal No.161 of 2020
Police. Thus, the averments in the complaint has been exaggerated by the
PW1. Even PW.1 is not an eyewitness to the incident. Further, PW.1 & PW.2,
parents of the victim child have not stated anything about the involvement of
the appellant. PW.1 also stated that when the police officials wanted the victim
child to be sent for medical examination, he has stated that medical
examination may not be required in this case since the victim child has not
suffered any injuries. Thus, none of the ingredients of Section 7 of the
POCSO Act is attracted. Though the charges were framed under Section 9 (l),
9 (m) which are punishable under Section 10 of the POCSO Act, the Trial
Court convicted the accused/appellant only for the offence under Section 7 of
the POCSO Act, which is unwarranted. In any event, there are no independent
witnesses examined by the prosecution to prove its case. Even the shopkeeper
Muthu Pandian, who was said to be available at the time of occurrence and
was present at the scene of occurrence was not examined and therefore his
non-examination is fatal to the case of the prosecution. The victim was not
immediately produced for medical examination before the medical officer or
before the Judicial Magistrate, to record her statement under Section 164 of
Cr.P.C., therefore, non-production of the victim before the medical officer for
medical examination and before the Judicial Magistrate is also fatal to the case
of the prosecution. It is also stated that there is enimity between the appellant
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Criminal Appeal No.161 of 2020
and PW1/father with reference to the construction work. In order to take
vengeance, the father of the victim had foisted a false against the appellant. In
this case, there is no eye witness, except the victim and she alone only stated
about the offence alleged to have been committed by the appellant. The
appellant is a neighbour known to the victim child and he is an aged person.
The appellant, without any intention, touched the child and it will not attract
the ingredients of Section 7 of the POSCO Act. The prosecution failed to
establish the sexual intention on the part of the appellant. From any angle, the
appellant has not committed any offence either under Section 9 or under
Section 7 of the POCSO Act. The Trial Court wrongly convicted the appellant,
without an appreciation of any evidence and therefore, the conviction and
sentence passed by the Trial Court is liable to be set aside.
7.The learned Government Advocate (Crl.side) submitted that the sole
testimony of the victim child is sufficient to convict the appellant and her
testimony needs no corroboration by any other independent witness. The
victim child has clearly identified the appellant, soon after the completion of
the offence. The appellant also admitted his guilt to PW1 when he has stated
that he is going to give a complaint to the police. The deposition of PW1, 2
and 4 also clearly reveal the presence of the appellant at the time of occurrence
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Criminal Appeal No.161 of 2020
in the place of commission of offence. The trial court, on appreciation of the
aforesaid evidence, both oral and documentary, has rightly convicted the
appellant and it does not call for any interference by this Honourable Court.
The learned Government Advocate (Crl.side) therefore prayed for dismissal of
this appeal.
8.Since this Court as an Appellate Court is a final Court of fact finding
Court, this Court has to independently arrive at a finding on re-appreciation of
the entire materials. Accordingly, this Court is re-appreciating the entire
evidence and made the following findings.
9.The case of the prosecution is that on 20.07.2017 at about 20.00 hours,
when the victim child went to “MJ Grocery Shop”, which was near
Ammankulam, Rajeev Nagar, to buy milk, the grocery shop keeper went inside
the grocery shop to take the milk. At that time, the accused came near to the
victim child with the intention of committing sexual assault. He rubbed the
victim child's private organ and sexually assaulted her. Immediately, the victim
child rushed into her house and told the incident happened to her father. The
father of the victim child went to the scene of occurrence where the victim
child identified him. Thereafter, PW1 questioned the appellant but the
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Criminal Appeal No.161 of 2020
appellant told that nothing had happened and he denied the complaint of the
victim child. When PW1 told the appellant that he is going to give a
complaint to the Police Station, the appellant confessed that he has done it
unknowingly. The next day, the complaint was registered by the
respondent/police in Crime No.818 of 2017 for the offence under Section 7 of
POSCO Act against the appellant herein.
10.The learned Special Judge, framed charges against the appellant for
the offences under Section 9(l) and 9(m) which are punishable under Section
10 of the POCSO Act. In order to substantiate the case of the prosecution,
totally nine witnesses were examined and eight documents were marked. The
victim child was examined as PW.3. She has clearly spoken in the Chief
examination that she went to the grocery shop for buying milk, at that time,
the shopkeeper went inside for taking milk. Further, the appellant, who was
standing behind her had rubbed her buttocks. Immediately she left that place
and informed her parents. Thereafter, the victim child, accompanied by her
parents, again come to the shop and identified the appellant. The parents of
the victim child questioned the appellant and thereafter, given the complaint to
the Police Station on 21.07.2017. PW.1 & PW.2 are not eyewitnesses in this
case. However, soon after the occurrence, they came to the occurrence place
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Criminal Appeal No.161 of 2020
and questioned the appellant. Though they did not witness the occurrence and
their testimony is hearsay, their evidence corroborated the evidence of the
victim. The victim has not stated that somebody at the scene of occurrence had
sexually assaulted her. The victim clearly identified the appellant. The
evidence of the victim child clearly proves that the appellant committed the
offence. While committing this type of offence, there may not be any person
who could witness the offence. Therefore, in case of this nature, the sole
testimony of the victim is sufficient to convict the appellant accused. If the
witness of the victim child is cogent and consistent it can be taken into
account for awarding a conviction against the appellant. Consequently, non-
examination of any independent witness is not fatal to the case of the
prosecution in this case.
11.The allegation against the appellant is that he had touched the
buttocks of the victim child. After the occurrence, PW.5/ the shop owner's wife
had seen the father of the victim child shouting the appellant. The evidence of
PW5 also corroborates the version of PW1 and PW2, as also PW3/victim
child. In those circumstances, no medical evidence is necessary to prove the
offence committed by the appellant. The appellant touched the buttocks of the
victim child and sexually assaulted her. Due to such assault, the victim child
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Criminal Appeal No.161 of 2020
has not sustained any injuries and therefore, medical evidence is not necessary.
The specific allegation against the appellant is that when the victim child was
standing in the grocery shop, to buy milk, the shopkeeper went inside the shop
and at that time, the appellant touched her on the backside. This was proved
by the prosecution by examination of the witnesses, including the victim child.
12.The learned counsel for the appellant would submit that the victim
has not identified the appellant and she has not seen the appellant before the
incident. It is also stated that the appellant is aged about 78 years, he went to
approach the grocery shop to get some grocery items, at that time, the victim
child went to the shop to buy milk, at the time, the appellant, who was
standing aside from the shop, without any intention, touched the victim child
and it will not attract the ingredient of Sections 7, 8 or 10 of the POSCO Act.
Further, three months after registration of the case on 21.07.2017, the
appellant was called by the police for enquiry.
13.This submission of the counsel for the appellant is not correct. In
Ex.P1/complaint, it was stated that when the victim child went to the local
shop the appellant came to the shop and rubbed her buttocks. The victim child
also identified the appellant to her father PW.1 and PW1 questioned the
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Criminal Appeal No.161 of 2020
appellant as to why he had committed the offence. The victim child identified
the appellant as she already knows him. In the cross-examination of PW1, he
has clearly stated about the presence of the appellant in the scene of
occurrence, as identified by the victim child. Further, even though the counsel
for the appellant stated about previous enimity between PW1 and the
appellant, there is no proof to substantiate the same by way of defence
evidence. Therefore, in the absence of any effective defence the previous
enimity theory projected by the counsel for the appellant cannot be accepted.
This Court finds that the evidence of victim child is cogent and consistent and
there is no reason to discard the evidence of the victim child. The victim child
need not foist a false case against the appellant. Therefore, the commission of
the offence under Section 7 of POCSO Act is made out. The Trial Court
framed the charges under Section 9 (l), 9 (m) which are punishable under
Section 10 of the POSCO Act, however, based on the available materials and
evidence of the victim the trial court convicted the appellant for the offences
under Sections 7 which is punishable under Section 8 of the POSCO Act. The
Trial Court has given a minimum punishment for the offence under Section 7
which is punishable under Section 8 of the POCSO Act for three years
Imprisonment, though the sentence ought to have been granted for five years.
Therefore, this Court does not find any merits in this appeal and it is liable to
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be dismissed.
14.Accordingly, the Criminal Appeal is dismissed. The conviction and
sentence imposed on the appellant/accused by the Court below is confirmed.
The Trial Court is directed to secure the appellant for sufferance of the
remaining period of sentence if he is in outside. The Suspension of Sentence
granted on 06.03.2020, by this Court in Crl.M.P.No.3019 of 2020 in
Crl.A.No.161 of 2020 is cancelled.
20.07.2021
Index : Yes/No
Speaking / Non-Speaking order
klt
To
1.The learned Sessions Judge/Special Court for
Exclusive Trial of cases under POCSO Act, Coimbatore.
2.The Inspector of Police,
All Women Police Station (East)
Ramanathapuram, Coimbatore.
3.The Public Prosecutor,
High Court of Madras.
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Criminal Appeal No.161 of 2020
P. VELMURUGAN, J.,
klt
Crl.A.No.161 of 2020
20.07.2021
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