Madras High Court
S.Selvendran vs The State Represented By on 23 July, 2021
Crl.A.No.82 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 23.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.82 of 2020
S.Selvendran ...Appellant
Vs.
The State represented by
The Inspector of Police,
All Women Police Station,
Nannilam, Thiruvarur District.
(Cr.No.07/2016)
...Respondent
This Criminal Appeal is filed under Section 374 of Cr.P.C. to set
aside the judgment of conviction and sentence passed by the learned
Sessions Judge, Fast Track Mahila Court, Thiruvarur in Spl.S.C.No.11 of
2017 dated 26.09.2019.
1/15
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Crl.A.No.82 of 2020
For Appellant : Mr.K.Gandhikumar
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
*******
JUDGMENT
The criminal appeal has been filed against the judgment of conviction
and sentence passed by the learned Sessions Judge, Fast Track Mahila
Court, Thiruvarur in Spl.S.C.No.11 of 2017 dated 26.09.2019.
2 The respondent police registered a case in Cr.No.07 of 2016
against the appellant for the offence under Section 5(i) and (l) of Protection
of Children from Sexual Offences Act, 2012 (for brevity “the POCSO Act”).
After completing investigation, the respondent police altered the section to
5(i)(l) and 5(j)(ii) punishable under Section 6 of the POCSO Act and laid a
charge sheet before the learned Sessions Judge, Magalir Neethimandram,
(FTMC), Thiruvarur, which was taken on file in Spl.S.C.No.11 of 2017.
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The learned Sessions Judge, after hearing both the accused and the
prosecution and after perusing the records, since there is prima facie case,
altered the offence by framing charges against the appellant/accused for the
offence punishable under section 6 of the POCSO Act.
3 Before the trial Court, in order to prove the case of the
prosecution, as many as 15 witnesses were examined as P.Ws.1 to 15 and
Exs.P1 to P17 were marked and no material object was exhibited. 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 no document was marked.
4 The learned Sessions Judge, Magalir Neethimandram, (FTMC),
Thiruvarur, on completion of trial and hearing arguments advanced on
either side, by judgment dated 26.09.2019 convicted the appellant/accused
for the offence under Sections 6 of the POCSO Act and sentenced him to
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Crl.A.No.82 of 2020
undergo rigorous imprisonment for a period of ten years and to pay a fine of
Rs.500/-, in default, to undergo simple imprisonment for a further period of
four weeks and also awarded compensation of Rs.5,00,000/- (Rupees Five
Lakhs only). 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 P.W.1 has named one Manikandan, who had
physical relationship with her and subsequently when panchayat was
convened, there also she named Manikandan and since the said Manikandan
did not appear before the Panchayat, as directed, the victim girl preferred
complaint against the appellant. Further, in this case, parents of the victim
have not supported the victim and they have not been examined by the
prosecution and they refused to come forward either to give complaint or
stand as witness. DNA test has not been taken at the first instance and
during trial only the respondent police taken steps to send the blood samples
of the victim, appellant and the child to the DNA Test and therefore, there
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Crl.A.No.82 of 2020
was no occasion for the appellant to take a defence on the same and hence
he sought for second opinion of the DNA test. There is a great doubt that
prosecution has really sent the samples of the appellant to Forensic Lab or
they manipulated, since the victim at the first instance has not named the
appellant and not told that the appellant is the cause for her pregnancy and
she only named one Manikandan. Further, there is inordinate delay in
lodging the complaint, which was not explained by the prosecution properly
and the same is fatal to the case of the prosecution.
5.1 The learned counsel would further submit that age of the victim
girl has not been proved by the prosecution in the manner known to law and
the prosecution has not produced Birth Certificate of the victim girl, even
though, it was admitted that the same is available and hence prosecution has
failed to prove the fact 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 has not stated that she was forcefully subjected to penetrative
sexual assault as stated in the complaint and hence ingredients for the
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Crl.A.No.82 of 2020
offence under Section 376 of IPC would not attract. Even, after pregnancy
also, she did not reveal anything either to her parents or to her uncle and
aunt, where she stayed. When she was taken to Hospital, there only they
came to know that the victim is five months pregnant, which clearly shows
that the victim girl gave consent and she voluntarily had sexual intercourse
with the appellant and she also went up to the stage of pregnancy. Hence
ingredients of offence punishable under IPC would not made out. 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. Further, Birth Certificate of
the child born to the victim has not been produced before the Court, in
which, name of the father is not that of the appellant and it is some one else.
Prosecution has not examined the Manikandan, whose name was mentioned
by the victim girl at the first instance. It is settled proposition of law that
prosecution has to discharge their initial burden by proving its case beyond
all reasonable doubt and then only presumption under Section 29 of the
POCSO Act, would come into play, which is rebuttable.
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5.2 In this case, prosecution has miserably failed to prove its case
beyond all reasonable doubts and 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.
6 The learned Government Advocate (Crl.Side) appearing for the
respondent police would submit that the victim child was aged about 14
years at the time of occurrence and was studying 10 th standard. The
appellant/accused, forcefully had penetrative sexual intercourse with the
victim, due to which, she became pregnant and when panchayat was
convened, the appellant threatened the victim not to reveal his name. Hence,
the victim, has not mentioned the name of the appellant at the first instance,
but, thereafter, she made complaint against the appellant and when she was
produced before the Magistrate for recording statement under Section 164
of Cr.P.C., she has clearly narrated the incident and mentioned the name of
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Crl.A.No.82 of 2020
the appellant and the threat made by him. During trial, after the victim gave
birth to a child, DNA test was conducted and the report Ex.P16 shows that
the appellant is the biological father of the child born to the victim girl.
Hence prosecution has proved its case beyond all reasonable doubt. From
the evidence of victim girl/P.W.1 and medical records and also the DNA
test report, it is clear that the appellant committed offence punishable under
the POCSO Act. Further, to prove the age of the victim, prosecution has
marked Ex.P17, Transfer Certificate of the victim girl, in which, date of
birth of the victim was mentioned as 18.06.2002 and hence at the time of
occurrence, the victim was a child under the definition of 2(1)(d) of the
POCSO Act. Hence, the learned Sessions Judge has rightly appreciated the
evidence of prosecution witnesses and convicted the appellant for the
offence punishable under the POCSO Act, which does not call for any
interference of this Court.
7 Heard the learned counsel for the appellant and the learned
Government Advocate (Crl.Side) appearing for respondent police and
perused the materials available on record.
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Crl.A.No.82 of 2020
8 Case of the prosecution is that the victim was studying 10th
standard and she used to go to home of one Uthrapathy, who is a
grandfather of the appellant, to purchase fish. Like wise, six months prior to
the complaint, the appellant, who is a married man, asked the victim girl, to
come to his grandfather's home and when the victim went there, he
forcefully had sexual intercourse with her against her will and like wise, he
had penetrative sexual intercourse with her for several times, due to which,
the victim became pregnant. Hence the present case was registered against
the appellant for the offence under Sections 5(i), (l) and 5(j)(ii) punishable
under Section 6 of POCSO Act.
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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10 P.W.1 is victim, P.W.2 is sister of mother of P.W.1 and P.W.3
is husband of P.W.2. It is contended that there was inordinate delay in
preferring the complaint, but, it is seen that the victim is only 14 years at the
time of occurrence and was studying 10th standard and when it came to
know about pregnancy of the victim, she preferred the complaint. Hence
delay is not a fatal to the case of the prosecution. According to prosecution
date of birth of the victim is 18.06.2002 and date of complaint is
14.11.2016, hence at the time of occurrence, the victim girl was only 14
years old, even much prior to the complaint, the appellant had physical
relationship with the victim and due to the same the victim got pregnant. At
the time of occurrence, the victim was 14 years and to prove the same,
prosecution has produced Transfer Certificate of the victim, which was
marked as Ex.P17, in which it was clearly mentioned that date of birth of
the victim is 18.06.2002. The learned counsel vehemently contended that
when the witnesses have spoken that Birth Certificate of the victim is
available, prosecution has failed to produce the same and unless they
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Crl.A.No.82 of 2020
produce original Birth Certificate, it may not be stated that prosecution has
proved the age of the victim. But, it is seen that prosecution has produced
Transfer Certificate Ex.P17 and the endorsement shows that original
produced and compared and found correct. Ex.P17 was issued by the
Department of School Education, which is a public document and the same
is genuine unless the contrary is proved. The appellant has failed to produce
any contrary evidence. Hence, it is proved that at the time of occurrence, the
victim girl was aged about 14 years and she is a child under Section 2(1)(d)
of the POCSO Act. Once this Court finds that the victim is a child and she
got pregnant and the appellant is cause for the same, which was proved from
DNA test report, no penetrative sexual assault necessity to be proved.
11 Further it is contended that the victim, at the first instance, has
not named the appellant and she named only Manikandan and it is doubtful
that the appellant had intercourse with the victim. In this regard, it is seen
that even though, at the first instance, as stated by the learned counsel for
the appellant that the victim named one Manikandan, subsequently it was
explained that due to threat made by the appellant, she had named the said
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Crl.A.No.82 of 2020
Manikandan and when the appellant did not come forward to settle the
issue, she made complaint before the respondent police against the
appellant. Even, in the cross examination also, the victim has clearly stated
that due to threat by the appellant, she named Manikandan. Further, when
the victim was produced before the Magistrate for recording statement
under Section 164 of Cr.P.C., she has clearly mentioned about the threat by
the appellant. Hence, non mentioning of the name of the appellant, at the
first instance, is not a fatal to the case of the prosecution, since it was
explained by the victim, which cannot be thrown away.
12 It is the contention of the learned counsel for the appellant that
parents of the victim were not examined by the prosecution and they have
not come forward to support the victim, but, the fact remains that at the
relevant point of time, the victim girl was staying with her aunt's home, who
was examined as P.W.2 and her husband was examined as P.W.3, who have
spoken about the pregnancy of the victim. Therefore, the contention of the
learned counsel is not acceptable. P.W.9, who conducted medical
examination on the victim girl has given opinion Ex.P.8, that the victim was
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Crl.A.No.82 of 2020
pregnant for 20-21 weeks and made entry in the Accident Register/Ex.P7.
Further, as per Ex.P16, DNA report, the appellant is the biological father of
the child born to the victim. Hence medical evidence have clearly
corroborated with the case of the prosecution. There is no reason to
disbelieve the evidence of P.Ws.1 to 3, which are cogent and consistent.
Lastly the learned counsel for the appellant contended that there was no
forceful sexual intercourse and the victim has not stated that the appellant
had intercourse with her forcefully and hence the appellant cannot be
convicted for the offence under IPC. It is seen that the victim is a child at
the time of occurrence and was only aged about 14 years and studying 10th
standard. Even assuming that with her consent only the appellant had
penetrative sexual intercourse with her, since the victim is a child at the
time of occurrence as per the definition of Section 2(1)(d) of the POCSO
Act, her consent is immaterial. Hence the contention of the learned counsel
for the appellant is not acceptable. The trial Court as per Section 42A of the
POCSO Act, convicted the appellant for the offence punishable under
Section 6 of the POCSO Act, even though, the appellant committed offence
under Section 376 of IPC.
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Crl.A.No.82 of 2020
13 In fine, this Court comes 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.
23.07.2021
Index : Yes/No
cgi
To
1. The Sessions Judge, Fast Track Mahila Court, Thiruvarur.
2. The Inspector of Police, All Women Police Station,
Nannilam, Thiruvarur District.
3. The Public Prosecutor, High Court of Madras.
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Crl.A.No.82 of 2020
P.VELMURUGAN, J.,
cgi
Crl.A.No.82 of 2020
23.07.2021
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