Madras High Court
Renold Mike Tyson vs State Rep. By on 23 June, 2021
Crl.A.No.93 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.06.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.93 of 2020
Renold Mike Tyson ...Appellant
-Vs-
State Rep. by
The Inspector of Police,
Town Police Station,
Karaikal, Puducherry
(Crime No.176 of 2017) ...Respondent
This Criminal Appeal is filed under Section 374(2) of Cr.P.C.
praying to set aside the judgment dated 25.11.2019 made in
Spl.S.C.No.1 of 2019 by the learned Special Judge, Karaikal.
For Appellant : Mr.V.Perarasu
For Respondent : Mr.D.Bharatha Chakravarthy
Public Prosecutor, (Pondicherry)
*******
JUDGMENT
This criminal appeal has been filed against the judgment of
conviction dated 25.11.2019 made in Spl.S.C.No.1 of 2019 by the
learned Special Judge, Karaikal, for the offence under Section 4 of the
Protection of Children from Sexual Offences Act ( in short “the POCSO
Act”).
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Crl.A.No.93 of 2020
2 The respondent police registered a case against the
appellant in Crime No.176 of 2017 for the offence under Section 4 of the
POCSO Act, 2012 and after investigation, laid a charge sheet before the
learned Special Judge, Karaikal, which was taken on file in Spl.S.C.No.1
of 2019 and the learned Special Judge, after completing all formalities,
framed charges against the appellant for the offence punishable under
Section 4 of the POCSO Act.
3 In order to prove the case of the prosecution, before the
trial Court, P.W.1 to P.W.8 were examined and Ex.P1 to Ex.P11 were
marked and no Material Object was exhibited. After completing evidence
of prosecution witnesses, when incriminating circumstances culled out
and put before the accused, he denied as false and pleaded not guilty.
On the side of the defense, no one was examined and no document was
marked.
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Crl.A.No.93 of 2020
4 The learned Special Judge, after adverting to the materials
placed on record and after hearing both the parties, by judgment dated
25.11.2019 convicted the appellant/accused for the offence punishable
under Section 4 of the POCSO Act and sentenced him to undergo rigorous
imprisonment for a period of 10 years with fine of Rs.15,000/-, in
default, to undergo simple imprisonment for a period of one year for the
offence under Section 4 of the POCSO Act and also directed the Taluk
Legal Services Authority, Karaikal, to pay compensation to the victim
child not less than Rs.4.00 Lakhs.
5 Aggrieved against the said judgment of conviction, accused
has preferred the present criminal appeal.
6 The learned counsel appearing for the appellant would
submit that the victim girl has not made any allegations against the
appellant and she did not lodge any complaint against him. It is only
father of the appellant, due to civil dispute, had given false information
to the Child Line and they have informed to P.W.1, brother of the victim.
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Crl.A.No.93 of 2020
After receiving information from Child Line, P.W.1 lodged complaint
against the appellant. The victim girl has improved her version by stage
by stage. At the time of giving statement before the Magistrate under
Section 164 of Cr.P.C. she stated that the appellant had sexual
intercourse with her only three times, but, before the Doctor, at the
time medical examination, she stated several times. Therefore there are
material contradictions in the evidence of the victim girl, which the trial
Court failed to consider. Further, father of the appellant, who is the
reason to made complaint against the appellant was not examined by the
prosecution and also one Rajalakshmi, who accompanied the victim at
the time of medical examination, was also not examined, which are fatal
to the case of the prosecution.
7 The learned counsel would further contend that the Doctor,
one who conducted medical examination on the victim girl was not
examined and successor only examined as P.W.5, who gave evidence only
based on the records. Further, prosecution has failed to examine any
independent witness to prove the offence said to have committed by the
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Crl.A.No.93 of 2020
appellant. In Ex.P7, it was stated that there was no external injury and it
was deposed that hymen may appears to be not intact by cycling also.
The victim also stated that she has a habit of cycling and hence the
medical evidence also went against the case of the prosecution. But, the
trial Court failed to consider the discrepancies stated above and failed
to appreciate the defects in the case of the prosecution and erroneously
convicted the appellant based on the contradictory evidence of the
victim girl, which warrants interference of this Court.
8 According to the learned Government Advocate (Crl.Side)
appearing for the respondent the victim girl, who is aged about 16 years
old at the time of occurrence has clearly spoken about the offence
committed by the appellant, which would clearly attract offence under
the POCSO Act. Even though, victim did not file any complaint, the
father of the appellant informed about the act of his son to the Child
Welfare Officer and on receipt of the same, the Child Welfare Officer
informed the same to P.W.1 and he made complaint before the
respondent police. In every cases, we cannot expect the victim to made
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Crl.A.No.93 of 2020
complaint before the authority and hence it is not a fatal to the case of
the prosecution. Further, the learned counsel for the appellant
contended that the victim girl has improved her version by stage by
stage. The victim girl, before the Magistrate, has stated that the
appellant had sexual intercourse with her three times and before the
Doctor, she stated that several times. In colloquial language, people
used to say “several times” or “three or four times” if the action has
taken place more than two times, like wise only the victim girl has
stated. Hence, we cannot conclude that there are discrepancies in the
evidence of the victim girl. The victim girl herself stated that last
intercourse was three weeks prior to the medical examination and hence
the evidence of Doctor stating that there was no symptoms for recent
intercourse is not a fatal to the case of the prosecution. From Ex.P7, it is
clear that vagina of the victim admitted two fingers and her hymen was
not intact. Hence prosecution has clearly proved its case beyond all
reasonable doubt and medical evidence also supported the case of the
prosecution. There is no reason to interfere with the judgment of
conviction, when it is well founded.
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Crl.A.No.93 of 2020
9 Heard the learned counsel appearing on either side and
perused the materials available on record.
10 Case of the prosecution is that during the year 2015, the
victim was residing along with her parents at Neduntheru. On
31.08.2015, father of the victim committed suicide by hanging and hence
the house in which victim was residing was demolished by its owner.
Thereafter, her mother along with her brother have gone to house of the
accused on his request and after sometime her brother left to his Grand
Mother's house. Thereafter, mother of the victim also left somewhere
else. When the appellant and the victim were alone in the house, the
appellant, on a false promise to marry the victim, had sexual intercourse
with the victim for several times. On knowing the above, father of the
appellant informed the same to the Child Welfare Officer and he
intimated the same to P.W.1, brother of the victim. P.W.1 made a
complaint against the appellant and hence the present case was
registered against the appellant.
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Crl.A.No.93 of 2020
11 This Court, being an Appellate Court, is a fact finding Court,
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.
12 On reading of the entire allegations made against the
appellant, it would reveal that cases of this nature under the POCSO Act,
the Court cannot expect independent witness and the evidence of the
victim itself would suffice to convict the accused, when it is trustworthy.
The victim, who is aged about 16 years at the time of occurrence, has
clearly narrated the incident and the involvement of the accused in the
offence, which would clearly attract offence under the POCSO Act. In the
case on hand, there is no reason to discard the evidence of the victim.
Further evidence of P.W.3, the victim girl and the Doctor, P.W.5 and
Exs.P5 and P7, statement recorded from the victim girl under Section 164
of Cr.P.C. and medical examination report, have clearly shows that the
victim was subjected to sexual intercourse and her hymen was not intact
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Crl.A.No.93 of 2020
and vagina admits two fingers. Even though, there was no forceful
intercourse as contended by the learned counsel for the appellant, the
appellant on a false promise to marry the victim, had sexual intercourse
for several times. Age of the victim child being 16 years, her capacity of
understanding cannot be on par with an adult, who has completed 18
years. Even otherwise, if she has given consent for sexual intercourse,
her consent is immaterial as she was a child under the definition of
Section 2(1) of the POCSO Act. Hence the offence committed by the
appellant would come under the definition of aggravated penetrative
sexual assault under Section 5(l) punishable under Section 6 of the
POCSO Act. But, neither, the prosecution nor the Special Judge framed
charges under Section 5(l) of the POCSO Act.
13 Hence, the State Judicial Academy is directed to impart
training to the stake holders, dealing with the cases under POCSO Act,
including the Investigating Officer, the Public Prosecutor and the Special
Judge, who is dealing with the cases under the POCSO Act, after
obtaining necessary permission from My Lord the Honourable Chief
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Crl.A.No.93 of 2020
Justice and Board of Governors.
14 The trial Court has already directed the Taluk Legal Services
Authority to pay compensation to the victim not less than Rs.4.00 Lakhs
under Victim Compensation Scheme and this Court, in the interest of
justice, enhancing the amount to Rs.5.00 Lakhs and the appellant is also
directed to pay a compensation of Rs.5.00 Lakhs to the victim girl
immediately.
15 With the above observations, directions and modifications,
this Criminal Appeal stands dismissed. Trial Court is directed to secure
the appellant to serve remaining period of imprisonment, if any.
23.06.2021
Index : Yes/No
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To
1. The Special Judge, Karaikal.
2. The Inspector of Police, Town Police Station,
Karaikal, Puducherry.
3. The Public Prosecutor, High Court of Madras.
4. The Tamilnadu State Judicial Academy, Chennai.
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Crl.A.No.93 of 2020
P.VELMURUGAN
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Crl.A.No.93 of 2020
23.06.2021
https://www.mhc.tn.gov.in/judis/
