Kanakkan vs State Rep By
2021 Latest Caselaw 14650 Mad

                                                                                    Crl.A.No.113 of 2020

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       Dated : 22.07.2021

                                                              CORAM:

                                    THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                                     Crl.A.No.113 of 2020

                     Kanakkan                                          ... Appellants/Single Accused
                                                                Vs.
                     State rep by
                     The Inspector of Police,
                     Belukurichi Police Station,
                     Namakkal District.
                     (Crime No.90 of 2017)                  ... Respondent/Complainant
                     PRAYER: This Criminal Appeal is filed under Section 374(2) of Criminal
                     Procedure Code, to set aside the judgment dated 29.01.2019 passed in
                     Spl.C.C.No.19 of 2017 on the file of Special Judge, Sessions (Fast Track
                     Mahila) Judge, Namakkal.
                                              For Appellant    : Mr.S.N.Arunkumar
                                              For Respondent : Mr.S.Sugendran
                                                               Government Advocate (Crl.Side)

                                                        JUDGMENT

This criminal appeal has been filed to set aside the judgment dated

29.01.2019 passed in Spl.C.C.No.19 of 2017 on the file of Special Judge,

Sessions (Fast Track Mahila) Judge, Namakkal.

2. The respondent police registered a case in Crime No.90 of 2017

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against the appellant for the offence under Section 3 punishable under Section

4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as 'POCSO Act' for short). After investigation, the respondent

police laid a charge sheet before the learned Sessions Judge, Fast Track

Mahila Court, Namakkal since the offence is against child under POCSO Act.

3. After completing the formalities, the learned Sessions Judge, Fast

Track Mahila Court, Namakkal framed charges against the appellant for the

offence under Section 5(m) punishable under Section 6 of POCSO Act and

the same was taken on file in Special C.C.No.19 of 2017.

4. After framing the charges, in order to prove the case of the

prosecution during trial, as many as 14 witnesses were examined as PW.1 to

PW.14 and 12 documents were marked as Ex.P1 to Ex.P12, besides 4

material objects were exhibited on the side of the prosecution.

5. After completing the evidence of the prosecution witnesses,

incriminating circumstances culled out from the evidence of the prosecution

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witnesses were put before the accused by questioning under Section

313(1)(b) of Cr.P.C., with reference to incriminating circumstances appears

on the evidence of the prosecution witness and the same was denied by the

appellant and pleaded not guilty. On the side of the defence, no oral and

documentary evidence was produced.

6. After the trial, hearing the arguments advanced on either side and

considering the materials on record, the learned Sessions Judge convicted the

appellant for the offence under Section 5(m) which is punishable under

Section 6 of POCSO Act and he was sentenced to undergo 10 years rigorous

imprisonment along with fine of Rs.2,000/- in default to undergo 6 months

rigorous imprisonment.

7. Challenging the said judgment of conviction and sentence, the

appellant has filed the present appeal before this Court.

8. Learned counsel for the appellant would submit that the prosecution

has not produced any documents to prove the age of the victim and that the

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age of the appellant is 70 years and he has not committed any offence and the

prosecution has foisted a false case against the appellant. Therefore, the

learned Sessions Judge wrongly convicted the appellant on the ground that

the defence counsel has not cross examined the private witnesses especially

the eye witness before the respondent police.

9. Even though the defence side has not cross examined, some of the

witnesses examined on the side of the prosecution in trial, the prosecution has

to prove its case beyond all reasonable doubt. They cannot take advantage of

the weakness of the defence. Therefore, the prosecution witness failed to

prove the age of the victim by producing birth certificate or any age proof

certificate stating that the victim girl was only 6 years and therefore, the

Special Judge wrongly convicted the appellant, which warrant interference.

10. Learned Government Advocate (Crl.Side) would submit that the

victim is aged about 6 years and the appellant is aged about 70 years and at

the time of occurrence the victim was studying and she was playing near the

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Pillaiyar Kovil situated nearer to her house and the appellant took her to a

lane and slapped her on cheek and then lying her down and removed her inner

wear. Thereafter, the appellant pressing his male organ into the female organ

of the victim child in which the victim sustained heavy pain and hence, the

victim was crying for the same. Further, the cloth of the victim also became

wet due to above said act of the appellant. Thereafter, the appellant

threatened the victim not to disclose the same to her parents. Thereafter, the

victim came to her house. When PW.1 enquired the victim, she narrated the

above said act of the appellant and PW.1 found that mucus liquid was found

in the private part of the victim and the same was informed by PW.1 to her

husband PW.3 and he lodged a complaint before the respondent police and

the respondent police registered the case in Crime No.90 of 2017 against the

appellant for the offence under Section 3 punishable under Section 4 of the

POCSO Act. Thereafter, the victim was produced before the

PW.9/Dr.Jayanthi and the victim was examined on 03.05.2017 and

PW.9/Dr.Jayanthi found that the private parts of the victim having a swelling

with red colour and the victim has clearly narrated the act of the appellant.

Thereafter, the victim was produced before the learned Judicial Magistrate for

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recording statement under Section 164 of Cr.P.C. and the said statement was

marked as Ex.P11.

11. A combined reading of evidence, complaint, the statement recorded

under Section 164 Cr.P.C., and the evidence of PW.9/Dr.Jayanthi and the

documents marked as Ex.P4/Medical Report of victim, which clearly shows

that the appellant has committed offence under Section 3 which is punishable

under Section 4 of POCSO Act. Since penetrative sexual assault committed

against the victim girl, who is below 12 years which turned as aggravated

penetrative sexual assault, the same is punishable under Section 6 of POCSO

Act. Therefore, the Trial Court rightly appreciated the evidence and convicted

and sentenced the appellant and there is no merit in the present appeal.

12. Heard both sides and perused the materials available on record.

13. The case of the prosecution is that the victim child was aged about

5 years and studying LKG at the time of occurrence. The victim along with

her parents and the accused were residing in a same village. On 02.05.2017 at

about 1.30 p.m., when the victim was playing at the nearby house of witness

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Shanthi, the appellant/accused took her to the nearby house belonging to

witness Selvakumar situated at Kalkurichi village with intent to make forcible

sex with the victim, the accused laid down the victim under the steps leading

to the open upstairs of the above house, slapped her on cheek and removed

her underwear and had sexual intercourse with the victim by pressing and

rubbing his genital organ with the genital organ of the victim and ejected

sperm over her and resulting in hurt to her private parts and hymen and

thereby the accused committed aggravated penetrative sexual assault under

Section 5(m) punishable under Section 6 of POCSO Act. After completing

the trial, the Special Judge convicted the appellant. Hence this appeal.

14. Since the Appellate Court is a final Court of fact finding, it has to

necessarily re-appreciate the entire evidence and give an independent finding.

15. The Trial Court after taking cognizance of the charge sheet, framed

charge against the appellant for the offence under Section 5(m) which is

punishable under Section 6 of POCSO Act and in order to substantiate the

charge framed against the appellant, on the side of the prosecution, 14

witnesses were examined and 12 documents were marked. PW.1 is the

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mother of the victim girl, she has spoken about the occurrence narrated by the

victim girl. The victim girl was examined as PW.2 and the victim girl has

clearly narrated the entire incident and the defence counsel has not cross

examined the evidence of the victim and the father of the victim was

examined as PW.3 and he has spoken about the complaint given by him.

PW.9 is the Doctor, who has conducted the medical examination and found

that the private parts of the victim having a swelling and found redishness.

Ex.P4 is the medical report of the victim and she was also produced before

the Judicial Magistrate for recording statement under Section 164 of Cr.P.C.

16. A combined reading of the evidence of PW.2/victim girl, the

statement recorded under Section 164 of Cr.P.C., and also the evidence of

PW.9/Dr.Jayanthi and the medical report of victim/Ex.P4, this Court comes to

the conclusion that the prosecution has proved the case beyond all reasonable

doubt against the appellant and he committed the offence under Section 5(m)

which is punishable under Section 6 of POCSO Act.

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17. At the time of occurrence, the age of the victim girl was only 5

years. Though birth certificate and the age proof certificate are not produced,

the age of the victim girl has not been disputed and the medical report of the

Doctor/PW.9, who has conducted the medical examination of the victim girl,

shows that the age of the victim is only 6 years. At the time of occurrence, the

victim has stated that she was studying LKG and she was only 5 years. Even

though, the birth certificate was not produced to prove the age of the victim,

the same was not disputed and she was a child under Section 2(i)(d) of the

POCSO Act and the appellant committed penetrative sexual assault which

falls under Section 3 which is punishable under Section 4 of POCSO Act.

Since the victim is below 12 years, the offence falls under Section 5(m) and

he committed aggravated penetrative sexual assault which is punishable under

Section 6 of POCSO Act.

18. The defence counsel has not cross examined the prosecution

witnesses. Further, the evidence of Doctor/PW.9 and the medical report

supports the case of the prosecution to prove the case. Therefore, this Court

finds that the appellant committed the offence under Section 5(m) which is

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punishable under Section 6 of POCSO Act. Hence, the Trial Court rightly

appreciated the evidence of the prosecution witnesses and facts. There is no

merit in the appeal and the same is liable to be dismissed.

19. Accordingly, the present criminal appeal is dismissed.

22.07.2021 Index: Yes/No dm

https://www.mhc.tn.gov.in/judis Crl.A.No.113 of 2020

To

1.The Special Judge, Sessions (Fast Track Mahila) Judge, Namakkal.

2.The Inspector of Police, Belukurichi Police Station, Namakkal District.

3.The Public Prosecutor, High Court, Madras.

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P.VELMURUGAN, J.,

dm

Crl.A.No.113 of 2020

22.07.2021

https://www.mhc.tn.gov.in/judis