Madras High Court
K.Arulraj vs State Represented By on 22 July, 2021
CRL.A.No. 424 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.07.2021
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
CRL.A.No.424 of 2020
K.Arulraj,
S/o, Kesavan ... Appellant
Versus
State represented by
The Inspector of Police,
Hosur,
Krishnagiri District. ...
Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure,to allow this appeal by setting aside the conviction
and sentence imposed on him passed by the learned Sessions Judge, Fast
Track Mahila Court, Krishnagiri, Krishnagiri District in Spl.S.C.No.47 of
2018 dated 18.03.2020.
For Appellant : Mr.Naveen Kumar Murthi
For Respondent : Mr.S.Sugendran
Government Advocate, (Criminal Side)
Page No.1 of 18
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JUDGEMENT
Challenge in this Criminal Appeal is made to the judgment and
decree dated 18.03.2020 passed in Spl.S.C.No.47 of 2018 on the file of
the Sessions Judge, Fast Track Mahila Court, Krishnagiri.
2. The respondent police registered a case in Crime No.12 of 2018
against the appellant herein for the offence under section 7 punishable
under section 8 of POCSO Act and also under section 3 punishable under
section 4 of the POCSO Act. After investigation, laid a charge sheet
before the Mahila Court, Krishnagiri, since the offence is against the
child under the POCSO Act. The learned Special Judge took cognizance
of the charge sheet in Spl.S.C.No.47 of 2018 and after completing the
formalities, framed charges against the appellant for the offence under
section 7 punishable under section 8 of POCSO Act and also under
section 3 punishable under section 4 of the POSCO Act. After framing
charges, in order to prove the case, on the side of the prosecution, 18
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witnesses were examined as P.Ws.1 to 18 and 19 documents were
marked. On the side of the defence, no oral or documentary materials
were produced.
3. After examining all the prosecution witnesses, the incriminating
circumstances which were culled out from the evidence of the prosecution
witnesses was read before the accused on questioning under Section 313
Crpc, and he denied the same as false and pleaded not guilty.
4. On completion of trial, after hearing the arguments of either side
and perusing the materials, the trial court found the accused guilty for the
offence under section 7 punishable under section 8 of POCSO Act and
also under section 3 punishable under section 4 of the POSCO Act,
convicted and sentenced to undergo three years rigorous imprisonment
and to pay a fine of Rs.1000/- in default to undergo three months rigorous
imprisonment for the offence under section 7 punishable under section 8
of POCSO Act and also he was convicted and sentenced to undergo 7
years rigorous imprisonment and to pay a fine of Rs.1000/- in default to
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CRL.A.No. 424 of 2020
undergo one year rigorous imprisonment for the offence under section 3
punishable under section 4 of the POCSO Act.
5. The learned counsel for the appellant submitted that the age of
the victim girl is 15 years and the age of the appellant is 25 years. They
fell in love with each other and there is no offence that has taken place as
projected by the prosecution. He also submitted that the debate in the
Rajya Sabha regarding amendment to the Protection of Children from
Sexual Offences Act and also the report of the adhoc Committee of Rajya
Sabha stated about the menace of Child Pornography on social media
and it has affected on children and society.
6. Further submitted that the victim is in adolescent stage and she
fell in love with the appellant and except that no offence has been made
out against the appellant. Further even assuming that there are
allegations of some offences committed by the appellant like penetrative
sexual assault, however even in the complaint she has not stated that
there was penetrative sexual assault and further except the victim child,
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all the witnesses ie., parents and relatives of the victim child have stated
that only the victim child informed that she was sexually assaulted and
did not say anything about penetrative sexual assault.
7. The doctor also opined that there is no external injury and
therefore under the said circumstances, he has not committed any offence
under section 3 of POCSO Act which is punishable under section 4 of
POCSO Act. The trial court failed to appreciate the evidences and
wrongly convicted the appellant for the offence under section 3
punishable under section 4 of POCSO Act. No witnesses have spoken
about penetrative sexual assault. Though P.W.2 is said to have been the
eye witness, he has not supported the case of the prosecution and he has
not stated that he has seen the penetrative sexual assault made by the
appellant on the victim child. Therefore, the prosecution failed to
establish its case through independent witness and in this case all other
witnesses are hearsay witnesses and they are not supporting the case of
the prosecution. Further he would submit that the alleged occurrence
said to have been taken place on 07.07.2018 at 7.30 pm, whereas the
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CRL.A.No. 424 of 2020
complaint was given only on 09.07.2018 at about 9 'o clock. Therefore,
the delay in filing the complaint is not properly explained and after
discussion they filed the complaint and even in the complaint, the victim
child has not stated that she was subjected to penetrative sexual assault,
but simply stated that she was only subjected to sexual assault.
Afterwards she was tutored by the parents and relatives and made the
improvement and gave the complaint. The evidence of the parents of the
victim child and other evidence clearly show that there was no penetrative
sexual assault made by the appellant and therefore under such
circumstances, the trial court is failed to appreciate the evidence and
convicted the appellant for both the offences under sections 7 and 3 of
POCSO Act.
8. The learned Government Advocate appearing for the respondent
submitted that age of the victim child was only 15 years at the time of
occurrence and the appellant fell in love with the victim child. Both are
staying in the Sri Lanka Refugee Camp and the appellant asked the
victim child to come out side the camp and he committed sexual assault
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CRL.A.No. 424 of 2020
on her and she refused and then he forcibly had penetrative sexual
assault. She informed to her mother about the same and on the date of
occurrence her father was not in station and hence, the next day after her
father came, victim child's mother informed to the father about the
occurrence and he gave the complaint. The victim child was produced
before the Doctor for medical examination and the Doctor who examined
the victim has deposed that the victim child was subjected to penetrative
sexual assault. Subsequently, she was produced before the Judicial
Magistrate to record the statement under section 164 Crpc which was
marked as Ex.P2. The doctor who examined the victim child was
examined as P.W.6.and the medical certificate was marked as Ex.P.13.
The complete reading of the evidence of P.W.1 victim child, P.W.6 Doctor
and also the statement recorded under section 164 Crpc Ex.P.2, Medical
Certificate Ex.P.13 would clearly prove that the appellant has committed
the offence under section 3 of the POCSO Act and also under section 7 of
POCSO Act and which are punishable under sections 4 and 8
respectively. The trial court also appreciated the entire evidence and
convicted the accused and there is no merit in the appeal.
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9. Heard the learned counsel appearing for the appellant and the
learned Government Advocate (Criminal Side) appearing for the official
respondent and perused the materials.
10. Since this Court is the Appellate Court as a Final Court of fact
finding in order to give independent finding it has to reappreciate the
entire evidence independently, accordingly this Court also independently
re-appreciated the entire evidence.
11. The trial court framed charges against the appellant for the
offences under section 3 punishable under section 4 and also under
section 7 punishable under section 8 of POCSO Act. In order to
substantiate the charges above against the appellant, totally 18 witnesses
were examined and 19 documents were marked. Out of the 18 witnesses,
the victim child was examined as P.W.1. On a reading of the deposition
of the victim child, she has clearly narrated the entire incident which
attracts the offence under section 3 and also under section 7 of the
POCSO Act. P.W.2 is the victim's father. But his evidence is only
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hearsay. Though in this case, P.W.12 is said to have been the eye witness,
but has turned hostile and however, in the chief examination, he has
admitted that he saw the appellant with the victim child on 07.07.2018 at
7.30 pm near the river side when he went to answer the nature's call.
But, however he has not stated that he has seen the occurrence. However
he stated that he saw the appellant and the victim child together on the
date of occurrence at the relevant point of time, near the river side.
Therefore it clearly shows that on the date of occurrence, the victim child
went to the river side. The evidence of the victim child shows that the
victim child fell on love with the appellant and on the date of occurrence,
she went to the river side at the time, the appellant misbehaved with her
and subsequently she refused and also he had penetrative sexual assault
on her. The victim child informed her mother about the incidence after
that the victim child went along with her father before the respondent
police and her father gave a complaint in which the victim child signed.
Then the victim child was produced before the doctor on 09.07.2018. The
victim child was produced before P.W.16 and he conducted the medical
examination on the victim child and stated that the victim child informed
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that no person sexually assaulted her. He has given the opinion that her
hymen was not in tact and also she was subjected to penetrative sexual
assault. Subsequently, the victim child was produced before the Judicial
Magistrate for recording statement under section 164 Crpc and the said
statement marked as Ex.P.2. The reading of Ex.P.2 clearly shows that the
appellant is the known person to the victim child and both are staying in
the Sri Lanka Refugee Camp and they loved each other and when the
appellant called the victim child on the date of occurrence near the river
side, at that time, the appellant misbehaved with her and also had
penetrative sexual assault on her.
12. P.W.12 stated to have been the eye witness but he has not
supported the case of the prosecution. However he stated in the chief
examination that he saw the appellant with the victim child in the river
side on the date of the occurrence. Though he turned hostile, not stated
that he has seen the occurrence, however he saw the victim child and the
appellant at the time of occurrence. It is the well settled proposition of
law, the evidence of the hostile witness need not be totally rejected, if
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spoken in favour of the prosecution or the accused, but required to be
subjected to close scrutiny and the portion of the evidence which is
consistent with the case of the prosecution or the defence can be relied
upon. Where as in this case, the victim child P.W.1 has clearly stated on
07.07.2018, the appellant called the victim child to the river side and she
went there at 7.30 pm, the appellant tried to misbehave and she resisted,
and despite he had penetrative sexual assault on her. Though P.W.12 has
stated that before the police that he saw the occurrence, but subsequently
before the Court, he has stated that he saw the appellant with the victim
child on the date of occurrence ie., on 07.07.2018 at about 7.30 pm.
However, he has stated that he has not seen the occurrence. Therefore the
said witness has stated the portion that he saw the appellant and the
victim child on the date of occurrence at the relevant point of time at the
place of occurrence. Therefore the evidence of the victim child would
corroborate in the sense that on the date of occurrence the appellant and
the victim child went to the river side and she talked with the appellant.
Though there is no eye witness for the occurrence, the victim child has
clearly stated that on the date of occurrence the appellant misbehaved
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CRL.A.No. 424 of 2020
with her and committed sexual assault and subsequently he had
penetrative sexual assault. Therefore she informed to her parents and
gave the complaint.
13. The medical evidence of P.W.6 also clearly shows that the
victim child was subjected to penetrative sexual assault and in the nature
of the case like this, no eye witness can be expected. It is a settled
proposition of law that if the evidence of sole witness is cogent, credible
and trustworthy, the conviction is permissible.
14. Since in this case, the victim child is only the sole witness and
there is no reason to discredit her witness and her evidence is cogent and
consistent. The learned counsel for the appellant pointed out and
submitted that the victim child has not stated anything regarding the
offences with regard to the second charge and she has not spoken
anything about the penetrative sexual assault and subsequently even the
parents have not stated anything about the victim child informed to them
anything about the penetrative sexual assault, however, subsequently the
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CRL.A.No. 424 of 2020
victim child made the improvement and there is a contradiction regarding
the penetrative sexual assault. But in this regard, in the complaint itself
she has stated the sexual assault was committed and there is no detail
about the penetrative sexual assault. Therefore it is the well settled
proposition of law that F.I.R is not an encyclopaedia. Every minute detail
need not be mentioned in F.I.R. Therefore in F.I.R, the detail of the
commission of the offence has not been mentioned, the case of the
prosecution cannot be thrown away. Therefore the victim child was
produced before the doctor and before the doctor she mentioned that
known person assaulted both physically and had penetrative sexual
assault. Subsequently she was produced before the Magistrate for
recording statement under section 164 Crpc., the statement is Ex.P2
which reveals that the victim clearly stated that the appellant committed
penetrative sexual assault.
15. A complete reading of the evidence of the victim child, the
doctor, and the statement recorded under section 164 Crpc, the victim
child has clearly stated about the incident and the evidence of the victim
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child is cogent and consistent and there is no improvement as stated by
the learned counsel for the appellant. Though there are some
discrepancies and contradictions are here and which are not material
contradictions and it will not go to the root of the case of the prosecution
and in case of this nature, no independent witness can be expected and no
eye witness can be expected and even if there are eye witnesses, some
time the independent witness will not support the case of the
prosecution. However the evidence of the victim child is cogent and
consistent which is corroborated by the medical evidence. Therefore from
the evidence of the victim child, she was subjected to penetrative sexual
assault made by the appellant and the evidence of the doctor P.W.6, the
victim child was subjected to penetrative sexual assault and medical
report also clearly shows that hymen was not intact and she was
subjected to sexual assault.
16. The evidence of P.W.2 though he turned hostile in his evidence
before the police, has stated that he saw occurrence whereas in the court
he did not support the case of the prosecution however, he stated that he
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saw the appellant and the victim child on the date of occurrence at the
place of occurrence ie., river side at the relevant point of time.
17. P.W.14 Head Master of the school in which the victim child
studied and Ex.P.11, the education certificate of the victim child clearly
shows that the date of birth of the victim child is 04.03.2004 and P.W.14
who issued the certificate Ex.P.11 has spoken about the same. Based on
the records maintained in the school, the age of the victim was only 14
years at the time of occurrence ie., on 07.07.2018 and not completed 18
years. Therefore she is a child under the definition of section 2(1) (d) of
POCSO Act. From the evidence of P.Ws.1, 6 and 12 and Ex.P1
complaint, Ex.P2 the statement recorded under section 164 Crpc and
Ex.P13 Medical Certificate, this Court finds that the appellant has
committed the offence under section 3 which is punishable under section
4 and also committed the offence under section 7 which is punishable
under section 8.
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18. Therefore this Court finds that the appellant has committed the
offences for which he is charged and there is no merit in the appeal and
the trial court rightly appreciated the evidence and convicted the appellant
for the abovesaid offence. Therefore, this court finds no merit in the
appeal.
19. Though the learned counsel for the appellant has projected that
the victim child is aged about 15 years and she is adolescent and also fell
in love with the appellant and she gave a consent, therefore it is not the
offence, some leniency may be shown in the quantum of sentence. In
this case, since the victim girl is child under the definition of POCSO Act
and even assuming that there is consent, the said consent is immaterial.
Once it is proved by the prosecution that the victim girl is a child and she
was subjected to penetrative sexual assault and the medical evidence also
proved that she was subjected to penetrative sexual assault and from the
evidences of PW.1 and P.W.12 it is proved that the appellant has
committed the offence and the consent is immaterial.
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20. In such circumstances, this Court does not find any perversity
in the judgement of the trial court and also does not find any mitigating
circumstance to reduce the sentence and there is no merit in the appeal.
Accordingly the Criminal Appeal is dismissed.
22.07.2021
Index: Yes/No
Internet: Yes/No
mfa
To
1. The Sessions Judge,
Fast Trac Mahila Court,
Krishnagiri, Krishnagiri District.
2. The Inspector of Police,
Hosur,
Krishnagiri District.
3. The Public Prosecutor,
High Court,
Madras.
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CRL.A.No. 424 of 2020
P.VELMURUGAN, J.
mfa
CRL.A.No.424 of 2020
22.07.2021
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