Madras High Court
A.Arunachalam vs State Of Tamil Nadu Rep.By on 26 July, 2021
Crl.A.No.328 of
2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.328 of 2021
A.Arunachalam .. Appellant
.Vs.
State of Tamil Nadu Rep.by
Inspector of Police,
All Women Police Station,
Omalur, Salem District. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to set aside the judgment dated 26.02.2021 in New Special
Sessions Case No.109/2019 (Old Special Sessions Case No.65 of 2018)
on the file of the learned Special Sessions Judge (Special Court under
PCOSO Act) Salem and acquit the petitioner/accused from all the
charges.
For Appellant : Mr.S.Sundar
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the judgment dated
26.02.2021 in New Special Sessions Case No.109/2019 (Old Special
Sessions Case No.65 of 2018) by the learned Sessions Judge (Special
Court under POCSO Act) Salem.
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2.The case of the prosecution is that on 28.04.2018 at 12.00 p.m
when the victim girl, who is aged about seven years was sleeping in her
house alone, the appellant, who is the neighbour of the victim girl
tresspassed into the house and had committed penetrative sexual assault
on the victim girl. Hence, P.W.1/mother of the victim girl has filed a
complaint/Ex.P1 against the appellant.
3.The respondent-Police registered a case in Crime No.17 of 2018
against the appellant for the offence under Section 451 IPC and Section
5(m) which is punishable under Section 6 of The Protection of Children
from Sexual Offences Act, 2012 [hereafter referred to as 'POCSO Act' for
the sake of convenience]. On completion of the investigation, the
respondent police filed a charge sheet before the learned Sessions Judge,
(Special Court under POCSO Act) Salem and the same was taken on file
in Spl.S.C.No.65 of 2018, subsequently renumbered as Spl.S.C.No.109
of 2019. After completing the formalities, the learned Sessions Judge,
framed charges against the appellant for the offence punishable under
Section 450 IPC and Section 6 of POCSO Act.
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4.In order to prove the case of the prosecution before the trial Court,
on the side of the prosecution as many as 13 witnesses were examined as
P.W.1 to P.W.13 and marked 16 documents as Exs.P1 to P16 and no
material object was marked. After examining the prosecution witnesses,
the incriminating circumstances culled out from the evidence of the
prosecution witnesses were put before the appellant/accused and
questioned under Section 313 of Cr.P.C., wherein he denied all the
incriminating circumstances as false and pleaded not guilty. On the side
of the defence, no oral and documentary evidence was produced.
5. The Court below, after hearing the arguments advanced on either
side and also considering the materials available on record, found that the
appellant is guilty for the following offences :
(i) for the offence under Section 5(m) which is punishable under
Section 6 of POCSO Act, the appellant was convicted and sentenced to
undergo rigorous imprisonment for a period of twenty years and to pay a
fine of Rs.50,000/-, in default, to undergo simple imprisonment for a
period of six months.
(ii) for the offence under Section 450 IPC, the appellant was
convicted and sentenced to undergo rigorous imprisonment for a period of
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seven years and to pay a fine of Rs.5,000/-, in default, to undergo simple
imprisonment for a period of three months. Challenging the said
conviction and sentence, the appellant is before this Court.
6.1 The learned counsel for the appellant would submit that no
occurrence had taken place as alleged by the prosecution. At the time of
occurrence, the victim girl is seven years and the appellant is 62 years.
The appellant is the neighbour and relative of the victim girl's
grandmother and he frequently visit their house and no prudent man
would commit such type of offence. He would further submit that as per
the evidence of P.W.4/grand mother of the victim girl, soon after the
occurrence, the neighbours and public gathered, but, none of them
informed the said incident to the police officials, which clearly shows that
no such occurrence had taken place are projected by the prosecution.
6.2 The learned counsel for the appellant would further submit that
P.W.12/Doctor, one who examined the victim girl has clearly deposed that
no external injuries were found on the body of the victim girl. Even
assuming that a person, who is aged about 62 years had forcibly
committed sexual assault on a child, on such force, certainly some
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injuries would have been appeared on the body of the victim girl.
However, in the present case, the Doctor has clearly deposed that no
injuries were found on the body of the victim girl, which clearly shows
that the appellant has not committed any of the charged offence as alleged
by the prosecution.
6.3 The learned counsel for the appellant would further submit that
there was a delay in filing the complaint and the inordinate delay has not
been properly explained. Therefore, the prosecution has not proved its
case beyond all reasonable doubts. However, the trial Court failed to
appreciate the entire evidence, convicted the appellant only on
assumption and sympathy, and therefore, the judgment of conviction and
sentences passed by the trial Court against the appellant, are liable to be
set aside.
7.1 The learned Government Advocate (Crl.Side) for the respondent
would submit that at the time of occurrence, the age of the victim girl is
seven years and the appellant is 62 years. On 28.04.2018, when the
victim girl was sleeping in her house, alone, at that time, the appellant,
who is the neighbour of the victim girl tresspassed into the house and
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removed his dress and dress of the victim girl and laid on her and had
committed penetrative sexual assault. At that time, P.W.4/grand mother of
the victim girl entered into the house, after seeing the said incident,
immediately, she shouted and beaten the appellant and he escaped from
that place. Thereafter, P.W.4 informed the said incident to her son and
daughter-in-law, after arrival from their work and thereafter, they
registered the complaint/Ex.P1 against the appellant before the
respondent police.
7.2 The learned Government Advocate (Crl.Side) would further
submit that after registration of the complaint, the victim girl was
produced before P.W.12/Doctor for medical examination and the Doctor
has clearly deposed that on enquiry, the victim girl has stated that a
known person had committed sexual assault on her and on clinical
examination she found that hymen of the victim girl was not intact and
she has not attained menarche and the Doctor made entries in the
Accident Register, which was marked as Ex.P.10. Thereafter, the victim
girl was produced before the Judicial Magistrate for recording her
statement under Section 164 Cr.P.C/Ex.P2, in which, the victim girl has
clearly narrated the said incident. Therefore, the evidence of the victim
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girl is corroborated with the evidence of P.W.4/grand mother of the victim
girl, the Doctor/P.W.12 and her statement recorded under Section 164
Cr.P.C. He would further submit that the Doctor has opined that there
was no injury found on the body of the victim girl, in cases of this nature,
it depends upon the force and method adopted by the accused. Further,
there is no dispute regarding identification of the accused, during trial and
statement of the victim girl recorded under Section 164 Cr.P.C, in which,
the victim girl has clearly deposed that when she was sleeping at her
home, at that time the appellant, who is a well known person had
committed the said offence and there is no reason to disbelieve the
evidence of the victim girl. Therefore, considering the age of the victim
girl and the gravity of the offence committed by the appellant, the trial
Court rightly appreciated the entire evidence and convicted and sentenced
the appellant and hence, there is no merit in this appeal and the same is
liable to be dismissed.
8.Heard the learned counsel for the appellant and the learned
Government Advocate (Crl.Side) for the respondent and also perused the
materials available on record.
9.This Court, being an Appellate Court, is a final Court of fact
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finding, which has to necessarily re-appreciate the entire evidence and
give an independent finding.
10.On a careful reading of the complaint (Ex.P1) clearly indicates
that the appellant had sexually assaulted the victim girl on 28.04.2018
and that the mother of the victim girl preferred the complaint and the
respondent police registered the case in Crime No.17 of 2018. After
completing formalities, the trial Court framed charges against the
appellant for the offence under Section 450 IPC and Section 6 of POCSO
Act.
11.In order to prove the case of the prosecution, the mother of the
victim girl was examined as P.W.1. Though she was not an eye witness to
the said occurrence, she has heard about the occurrence from P.W.4 and
gave evidence clearly about the information received from P.W.4 and
registration of the complaint. P.W.3 is the father of the victim girl and his
evidence is corroborated with the evidence of P.W.1. P.W.4/grand mother
of the victim girl, who is an eye witness to the said occurrence and she
has clearly spoken about the said incident. Further, the victim girl was
examined as P.W.2 and she clearly deposed the said incident, which was
corroborated with her statement recorded under Section 164 Cr.P.C.
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After recording the statement, the victim girl was produced before the
Doctor (P.W.12) and she has opined that there was no external injury
found on the victim girl and her hymen was not intact. Therefore, the
evidence of the victim girl is cogent and trustworthy and her evidence is
corroborated with the evidence of P.W.4/grand mother of the victim girl
and P.W.12/Doctor. In cases of this nature, no independent eye witness is
expected. However, in the present case, P.W.4/grand mother of the victim
girl is an eye witness, though she is a relative of P.W.2, there is no need to
discard the evidence of interested witnesses, if the evidence of the
interested witness is cogent, consistent and her evidence can be taken into
consideration.
12.On a combined reading of the evidence of P.W.2 and P.W.4
coupled with the statement of the victim girl recorded under Section 164
Cr.P.C and the evidence of P.W12/Doctor and also medical records, which
clearly show that the appellant had committed penetrative sexual assault
on the victim girl. As far as the age of the victim girl is concerned, there is
no dispute. At the time of occurrence, the victim girl is seven years. In
order to substantiate the same, the prosecution produced Ex.P6/Transfer
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Certificate, which clearly shows that the date of birth of the victim girl is
24.04.2011, whereas the date of occurrence is
28.04.2018. Since the victim girl is a child, Section 2(1) (d) of POCSO
Act would be attracted. From the evidence of P.W.2/victim girl and
P.W.4/grand mother of the victim girl, the prosecution has proved that
when the victim girl, who is below 12 years was sleeping in her house
alone, the appellant tresspassed into the house and had committed the
aggravated penetrative sexual assault on her, thereby, the appellant
committed the offence under Section 451 IPC and Section 5(m) which is
punishable under Section 6 of POCSO Act.
13.This Court independently, re-appreciated the entire evidence
especially P.W.1 to P.W.4, P.W.12/Doctor, Ex.P1/complaint,
Ex.P2/statement recorded under Section 164 Cr.P.C, Ex.P6/Age proof
certificate of the victim girl and Ex.P8/Accident register, Ex.P9/enquiry
report found that the appellant, who is none other than neighbour and
relative of P.W.4 had committed the offence under Section 450 IPC and
Section 5(m) which is punishable under Section 6 of POCSO Act. The
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trial Court has rightly appreciated the entire evidence and awarded
maximum punishment. However, considering the age of the victim girl
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and nature of the offence committed by the appellant, there is no
mitigating circumstances to reduce the sentence.
14.In fine, this Criminal Appeal deserves to be dismissed and
accordingly, the same is dismissed. The conviction and sentences passed
in New Special Sessions Case No.109/2019 (Old Special Sessions Case
No.65 of 2018) by the learned Special Sessions Judge (Special Court
under PCOSO Act) Salem is confirmed.
26.07.2021
Internet:Yes/No
ms
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To
1.The Sessions Judge,
Special Court under PCOSO Act,
Salem.
2.The Superintendent,
Central Prison, Salem.
3.The Inspector of Police,
All Women Police Station,
Omalur, Salem District.
4.The Public Prosecutor,
High Court, Madras.
5.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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P.VELMURUGAN, J.
ms
CRL.A.No.328 of 2021
26.07.2021
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