Madras High Court
Jeeva Bharathi @ Jeeva vs The State Represented By on 27 July, 2021
Crl.A.No.74 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.74 of 2020
Jeeva Bharathi @ Jeeva ...Appellant
Vs.
The State represented by
The Inspector of Police,
Lawspet Police Station,
Puducherry.
(Cr.No.172/2015)
...Respondent
This Criminal Appeal is filed under Section 374 of Cr.P.C. to set
aside the judgment of conviction and sentence made in Spl.S.C.No.13 of
2016 dated 06.12.2019 by the learned Special Judge, Under the POCSO
Act, 2012, Puducherry.
1/13
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Crl.A.No.74 of 2020
For Appellant : Mr.R.Johnsathyan for
M/s.Swamisubramanian
For Respondent : Mr.D.Bharatha Chakravarthy
Public Prosecutor (Pondicherry)
------
JUDGMENT
The criminal appeal has been filed against the judgment of conviction
and sentence made in Spl.S.C.No.13 of 2016 dated 06.12.2019 by the
learned Special Judge, Under the POCSO Act, 2012, Puducherry.
2 The respondent police registered a case in Cr.No.172 of 2015
against the appellant for the offence under Sections 4 and 6 of Protection of
Children from Sexual Offences Act, 2012 (for brevity “the POCSO Act”).
After completing investigation, the respondent police laid a charge sheet
before the learned Special Judge, Under the POCSO Act, Puducherry,
which was taken on file in Spl.S.C.No.13 of 2016. The learned Sessions
Judge, after hearing both the accused and the prosecution and after perusing
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the records, since there is prima facie case, framed charges against the
appellant/accused for the offence under Sections 4 and 6 of the POCSO Act.
3 Before the trial Court, in order to prove the case of the
prosecution, as many as 19 witnesses were examined as P.Ws.1 to 19 and 19
documents were marked as Exs.P1 to P19 and 6 material objects were
exhibited as M.O.1 to M.O.6. 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, no one was examined and two documents were
marked as Exs.D1 and D2 and no material object was exhibited.
4 The learned Special Judge, on completion of trial and hearing
arguments advanced on either side, by judgment dated 06.12.2019 convicted
the appellant/accused and sentenced him to undergo rigorous imprisonment
for a period of ten years and imposed fine of Rs.2,000/-, in default, to
undergo rigorous imprisonment for a further period of three months for the
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Crl.A.No.74 of 2020
offence punishable under Section 6 of the POCSO Act. 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 P.W.1 and P.W.2 mother of the victim assert that
P.W.1 was major at the time of occurrence. To prove the same, the appellant
produced Ex.D1 copy of Adhar Card of the victim and Ex.D2, victim girl's
horoscope. P.W.1 was a Nursing School Student, who was residing in the
appellant's house for sometime, during that stay P.W.1 and the appellant had
physical relationship. P.W.1 assert that the act of physical relationship was
volunteer and it was on her own will. P.W.2/mother of the victim has also
deposed the same. P.W.7/Doctor, who attended delivery of P.W.1 states that
during delivery, the victim was aged about 19 years as stated by P.W.1. As
per Ex.D1, based on which, the victim was admitted in the Hospital and
delivery was attended, the victim was major at the time of occur.
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5.1 P.W.2/mother of the victim categorically states that
P.W.1 was admitted in the School belatedly, since she was suffering from
infirmity and her correct date of birth is 01.03.1996. Since it was late
admission, the school authority/P.W.13 recorded the age of the victim as
01.03.1999. The age found in Ex.P13 and Ex.P17 have been recorded by the
school authority on their own. P.W.2 mother of the victim assert the same
and it is also found that P.W.1 was over age when she got admitted in first
standard and there are some discrepancies and contradiction in her age at
various places in various documents. Hence when the prosecution failed to
prove the age of the victim and she is a child falls under the definition of
Section 2(1)(d) of the POCSO Act, 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 had voluntarily given consent for sexual
intercourse with the appellant. The learned counsel would further contend
that the trial Court failed to look into the discrepancies with regard to the
age of the victim and failed to consider the evidence of P.W.10, Ex.D1 and
Ex.D2 and had wrongly convicted the appellant, which is liable to be set
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aside.
6 The learned Public Prosecutor submitted that in this case P.W.1
had given birth to the female baby and gave the baby for adoption to the
office of Child Welfare Committee. P.W.15/The Chairperson of the Child
Welfare Committee, on enquiry found that P.W.1 was minor and lodged a
complaint to P.W.17. He registered a case, conducted investigation
thereafter the case was handed over to P.W.18/Investigating Officer, who
took up the further investigation, examined P.W.1 and P.W.2 and recorded
their statement. P.W.1 and P.W.2 have also given statement under Section
164 of Cr.P.C. before the Magistrate and in the statement they have
categorically stated that the victim was minor and she was subjected to
penetrative sexual assault by the appellant. Later, P.W.1 and P.W.2 become
complacent with the petitioner and hence turned hostile. Both P.W.1 and
P.W.2 have not supported the case of the prosecution. P.W.5, P.W.8 and
P.W.15 are the officials from the Social Welfare Department. P.W.6 is the
person from the Santhosh Home where P.W.1 was made to stay. P.W.7 is
the Doctor who attended delivery of P.W.1. P.W.13 is the school Head
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Crl.A.No.74 of 2020
Master, who produced transfer certificate, in which the date of birth of the
victim was found as 01.03.1999. Thus, the victim being minor had a
physical relationship with the appellant and hence her consent could not be
considered. The paternity of the child born to the victim is not disputed and
the prosecution had proved its case against the appellant by cogent
evidence. The trial Court considering the evidence and materials produced
had rightly convicted the appellant, which does not call for any interference
of this Court and the appeal is liable to be dismissed.
7 Heard the learned counsel for the appellant and the learned
Public Prosecutor (Pondicherry) appearing for respondent police and
perused the materials available on record.
8 Case of the prosecution is that on 18.11.2015, P.W.1/the victim
girl was brought to the office of the Child Welfare Committee along with
her baby, where P.W.15 Dr.Vidya Ramkumar, was Chairperson. On perusal
of the documents, P.W.15 came to know that the age of the victim girl is 17
years. On enquiry, it was found that the victim girl was subjected to
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penetrative sexual assault by the appellant. On the same day, P.W.15
obtained a complaint from the victim girl and forwarded the same to the
respondent police on 22.12.2015. The said complaint was marked as
Ex.P14. P.W.2 mother of the victim girl requested P.W.15 to take action
after the adoption of baby and hence there was delay in forwarding the
complaint to the respondent police. P.W.17/Sub-Inspector of Police
registered a case in Crim No.172 of 2015 under Section 6 of the POCSO
Act and 376 of IPC and the FIR was marked as Ex.P15. During the course
of investigation, the victim girl was examined at Santhosh Home in the
presence of P.W.5 and the same was videographed by P.W.14/
Photographer. P.W.1, the victim girl informed that the appellant is her
distant relative. Prior to 3 years, she had sexual intercourse with the
appellant with consent and she became pregnant. Thereafter, she went to
Government Hospital, Puducherry, along with her mother and obtained
some medicines. Later, when she went to Cluny Hospital for check up, her
pregnancy was confirmed. On 17.11.2015, a female child was born to P.W.1
and thereafter they went to the Office of Child Welfare Committee for
giving the child for adoption, there it was found that P.W.1 was minor,
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hence, a complaint was obtained from P.W.1 and the same was forwarded to
the respondent police. During the course of investigation, P.W.11/Social
Welfare Officer, P.W.5/Incharge of Santhosh Home, P.W.7/Doctor from
Cluny Hospital, P.W.9 and P.W.10/Doctors from Government Hospital were
examined. On completion of investigation, charge sheet was filed and the
same was taken on file and ended in conviction.
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.
10 It is seen that while recording statement under Section 164 of
Cr.P.C, the victim girl/P.W.1 before the Magistrate, has clearly stated that
the appellant had sexual intercourse against her will repeatedly and due to
which, she became pregnant. The appellant/accused himself admitted the
physical relationship with the victim girl. P.W.1 the victim and her mother
P.W.2, while recording statement under Section 164 of Cr.P.C. before the
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Magistrate have clearly stated that age of the victim is only 17 years at the
time of occurrence. In Ex.P1, complaint the victim has stated that she is 17
years old. Subsequently, while examining before the Court, in order to
safeguard the appellant/accused, both P.W.1 and P.W.2 have not supported
the case of the prosecution.
11 It is the main contention of the learned counsel for the
appellant that age of the victim has not been proved and hence offence
under POCSO Act would not attract, but, it is seen that to prove the age of
the victim girl, prosecution has marked Ex.P.13 copy of Transfer Certificate
of P.W.1, in which it was clearly mentioned that date of birth of the victim
is 01.03.1999. Ex.P13 is a public document and the same is genuine unless
the contrary is proved. The appellant has failed to produce any contra
evidence against Ex.P13 and hence the Court can safely come to the
conclusion that as per Ex.P13, the victim is a child on the date of occurrence
as per the definition of Section 2(1)(d) of POCSO Act.
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12 Further, as per the evidence of P.W.15, President of Child
Welfare Committee, even, before filing of complaint, when the victim along
with her mother P.W.2 approached the Child Welfare Committee for
adoption of the child born to P.W.1, age of the victim is only 17 years and
the proceedings of P.W.15 was marked as Ex.P14. Based on the proceedings
issued by P.W.15 i.e. Ex.P14, the present case was registered against the
appellant. Hence prosecution, by producing Ex.P13 and by examining
P.W.15 and Ex.P14 the document marked through P.W.15, has proved the
fact that age of the victim is only 17 years at the time of occurrence,.
Therefore, once prosecution has discharged their initial burden, presumption
under Section 29 of the POCSO Act would come into play and it is for the
appellant/accused to rebut the same in the manner known to law. In this
case, the appellant has failed to rebut the presumption.
13 Even though, the learned counsel for the appellant requested
this Court to consider the sentence, considering the conduct of the appellant
as stated by the learned Public Prosecutor, that the appellant being a married
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Crl.A.No.74 of 2020
man having two children, already had illegal relationship with another
woman and thirdly he cheated this victim child also, this Court is not
inclined to reduce the quantum of sentence awarded by the Court below.
14 In fine, this Court come 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.
27.07.2021
Index : Yes/No
cgi
To
1. The Special Judge, Under the POCSO Act, 2012, Puducherry.
2. The Inspector of Police, Lawspet Police Station, Puducherry.
3. The Public Prosecutor, High Court of Madras.
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Crl.A.No.74 of 2020
P.VELMURUGAN, J.,
cgi
Crl.A.No.74 of 2020
27.07.2021
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