T.Siva vs State Represented By
2021 Latest Caselaw 5565 Mad

                                                                                Crl.A.No.667 of
                                                         2019

                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 03.03.2021

                                                       CORAM

                               THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                             CRL.A.No.667 of 2019 and
                                             Crl.M.P.No.14155 of 2019


                      T.Siva                                                .. Appellant

                                                         .Vs.

                      1. State represented by
                         The Assistant Commissioner of Police,
                         Tiruppur South,
                         All Women Police Station,
                         Tiruppur,
                         Tiruppur District.

                      2. The Inspector of Police,
                         All Women Police Station, Tiruppur South,
                         Tiruppur District,
                         in Crime No.8 of 2018                                    ..
                      Respondents



                             Criminal Appeal filed under Section 374 (2) of the Code of Criminal
                      Procedure to set aside the order of conviction and sentence passed in
                      Spl.S.C.No.35 of 2018 dated 28.03.2019 on the file of the learned
                      Sessions Judge, Fast Track Mahila Court, Tiruppur and allow this appeal
                      and acquit the Appellant/Accused from the charge levelled against him.
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                                                                                Crl.A.No.667 of
                                                          2019

                             For Appellant      :       Mr.P.P.Raja Raja Chozhan
                                                        Legal Aid counsel

                             For Respondent     :       Mr.R.Suryaprakash
                                                        Government Advocate (Crl.side)


                                                    JUDGMENT

This Criminal Appeal has been filed challenging the conviction and

sentence passed in Spl.S.C.No.35 of 2018 dated 28.03.2019 on the file of

the learned Sessions Judge, Fast Track Mahila Court, Tiruppur.

2. The respondent police registered a case in Crime No.8 of 2018

against the appellant for the offences punishable under Section 7 r/w 8 of

Protection of Children from Sexual Offences Act 2012 (for short 'POCSO

Act') and thereafter altered by incorporating Section 3 (1)(w)(i) r/w 3

(2)(va) of SC/ST Act (Prevention of Atrocities) Act. After investigation,

charge sheet was laid and taken on file before the Magalir

Neethimandram in S.C.No.35 of 2018 for the offence under Section 9 (m)

r/w 10 of POCSO Act and Section 3 (1)(w)(i) r/w 3 (2)(va) of SC/ST Act

(Prevention of Atrocities) Act.

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Crl.A.No.667 of

3.After completing the formalities, the learned Judge framed the

charges against the accused and after trial, found the appellant guilty of

the offence punishable under Section 9 (m) r/w 10 of POCSO Act and

Section 3 (1)(w)(i) r/w 3 (2)(va) of SC/ST Act (Prevention of Atrocities)

Act and convicted and sentenced the appellant to undergo rigorous

imprisonment for a period of five years with fine of Rs.5,000/- for each of

the offences. The above sentences were ordered to run concurrently.

Aggrieved by the said conviction, the appellant is before this Court by

filing this Appeal.

4. The learned counsel for the appellant submits that a false case

has been registered against the appellant and there are material

contradictions in the complaint and statement recorded from the victim

girl under Section 164 Cr.P.C. In the complaint, she has stated that when

the victim girl had gone to attend nature's call at Muthusamy Gounder's

North Thottam, the appellant embraced her from the back side, whereas

in the statement recorded by the learned Magistrate under Section 164

Cr.P.C. she has stated that when she was attending nature's call in

Muthusamy Gounder's Thottam, the appellant came there and on seeing

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Crl.A.No.667 of

him she started running and the appellant followed her, lifted her and put

her on his shoulder. He further submits that the mother and grandmother

of the victim girl admitted that they did not know the name of the

appellant at the time of lodging the complaint, whereas in Ex.P-2,

complaint, the name of the accused is mentioned. He would further

submit that the appellant is a resident of Usilampatti and he was working

at Tiruppur at the time of occurrence and there was money transaction

between the accused and P.W.3, due to which he has been falsely

implicated in this case. He would further submit that a case has been

registered by the respondent police underSection 7 r/w 8 of POCSO Act

2012, after investigation when they came to know that the victim belongs

to Scheduled Caste community, the charge sheet was altered by

incorporating Section 3 (1)(w)(i) r/w 3 (2)(va) of SC/ST Act (Prevention

of Atrocities) Act. He further submits that the trial Court also without

appreciating the same convicted the appellant for the offence punishable

under Section 3 (1)(w)(i) r/w 3 (2)(va) of SC/ST Act (Prevention of

Atrocities) Act. He would further submit that as far as POCSO Act is

concerned, the prosecution has not established its case beyond

reasonable doubt. He would further submit that independent witnesses

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Crl.A.No.667 of

have not been examined in this case and therefore the Judgment of the

trial Court is liable to be set aside.

5. The learned Government Advocate (Crl. Side) would submit that

at the time of occurrence the victim girl was below 18 years and when she

went to attend nature's call at Muthusamy Gounder's North Thottam, the

appellant followed the victim girl, came behind her, lifted her and put her

on his shoulders and when she raised alarm, the grandmother of the

victim girl came there and shouted at the accused, and thereafter the

accused ran away from the place of occurrence. Subsequently, she

informed to the mother of the victim girl and thereafter a complaint was

lodged against the appellant. He further submits that since there was no

penetrated sexual assault, she was not produced before the medical

officer for medical examination. He further submit that the victim girl

was produced before the learned Magistrate for recording statement

under Section 164 Cr.P.C. and she was examined before the Court as

P.W.1., and she has clearly narrated the occurrence. The mother and

grandmother of the victim girl were examined as P.W.2 and P.W.3

respectively and their version corroborate the statement of the victim girl.

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Crl.A.No.667 of

He would further submit that from the evidence of P.W.'s 1 and 3, the

prosecution has proved its case beyond reasonable doubt and further the

appellant has not rebutted the presumption in the manner known to law

as mentioned under Section 29 of the POCSO Act. He would further

submit that the trial Court has rightly appreciated oral and documentary

evidence and convicted the appellant under Section 9(m) r/w 10 of

POCSO Act and since the victim girl belongs to Scheduled Caste

community and the appellant belongs to backward community, the

offence under Section 3 (1)(w)(i) r/w 3 (2)(va) of SC/ST Act (Prevention

of Atrocities) Act was also invoked. He would further submit that the

prosecution has established its case beyond reasonable doubt and the

learned Sessions Judge, rightly appreciated the entire evidence and

convicted the accused as stated above and there is no merit in this

Criminal Appeal and the same deserves to be dismissed.

6. Heard both sides and perused the records.

7. The case of the prosecution is that on 04.06.2018 at about 7.40

A.M., when the victim girl went to attend nature's call at Muthusamy

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Crl.A.No.667 of

Gounder's North Thottam, the accused, with sexual intent, came there

followed the victim and hugged her. Thereafter, the victim raised alarm

and on hearing the alarm, the grandmother of the victim girl, who was

attending her nature's call on the other side of the farm shouted at the

accused and thereafter the accused left the victim and ran away from the

scene of occurrence. Subsequently, the grandmother of the victim girl

informed the said fact to the mother of the victim girl and thereafter a

complaint was lodged before the respondent police.

8. In order to prove the case of the prosecution before the trial

Court, the prosecution examined as many as 10 witnesses as P.W.1 to

P.W.10 and 14 documents were marked as Exs.P1 to P14 and the C.D.

was exhibited as M.O.1.

9.After completing the prosecution evidence, the incriminating

circumstances culled out from the prosecution witnesses were put before

the appellant and the appellant denied it as false, however on the side of

the appellant, no witness was examined and no documentary evidence

was produced.

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Crl.A.No.667 of

10.After considering the evidence on record and after hearing either

side, the Magalir Neethimandram vide judgment dated 28.03.2019 in Spl.

S.C.No.35 of 2018, convicted and sentenced the appellant as stated

supra.

11.Challenging the said conviction and sentence, the present appeal

has been preferred by the appellant.

12.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.

13. As per Ex.P1 birth certificate, date of birth of the victim girl is

09.03.2009. As per the evidence of P.W.1- the victim girl, the date of

offence is 04.06.2018 i.e,, the victim girl was 17 years,at the time

occurrence. Therefore, the victim girl is a child under the definition of

POCSO Act. The appellant is liable to be prosecuted under the POCSO

Act.

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Crl.A.No.667 of

14. The victim girl was examined as P.W.1. A reading of the

evidence of the victim girl shows that when the victim girl was attending

her nature's call at Muthusamy Gounder's North Thottam, the accused

came from backside and hugged her. Thereafter, the victim raised an

alarm and after hearing this, the grandmother of the victim girl,who was

attending her nature's call on the other side of the Kadu shouted and on

hearing the voice of her grandmother, the accused left the victim and ran

away from the scene of occurrence. Subsequently she came to her house

and informed the occurrence to her mother and thereafter the mother of

the victim lodged a complaint. The mother of the victim was examined

as P.W.2. and she has deposed that she came to know the alleged

occurrence from her daughter and her aunt and thereafter she lodged the

compliant against the accused. The grandmother of the victim girl was

examined as P.W.3. She has stated that when she was attending nature's

call in Muthusamy Gounder's farm, her granddaughter who was also

attending her nature's call on the other side suddenly raised an alarm and

on hearing the same, she went to the place of occurrence and saw the

accused hugging Manisha and on seeing this, she shouted at the accused,

immediately he left her granddaughter and ran away. The evidence of

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Crl.A.No.667 of

P.W.2 and P.W.3 corroborate the evidence of P.W.1.

15. As far as the contention of the learned counsel for the appellant

that in the statement recorded under Section 164 Cr.P.C., the victim girl

has stated that when she was attending her nature's call, the accused

came there and on seeing him she started to run and the accused followed

her and lift and put her in his shoulder and thereafter she raised alarm

and on hearing the same, her grandmother came to the place of

occurrence and shouted at the accused and thereafter the accused ran

away, which does not substantiate the evidence of victim girl before

Court. The complaint also states otherwise. It is well settled proposition

of law that the complaint is not an encyclopedia and the alleged

complaint was given only by the mother based on the information given

by her daughter and therefore there may be some contradictions, but the

same cannot be taken as a ground to acquit the accused. Further, the

grandmother of the victim girl, P.W.3 who is an eye witness to the

occurrence has stated that when she went to the place of occurrence, she

saw the accused hugging her granddaughter and therefore, this Court

does not find any reason to disbelieve the evidence of P.W.1-victim and

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Crl.A.No.667 of

P.W.3, the grandmother who is an eye witness. Further, the statement of

the victim girl that after hearing her noise, her grandmother came to the

place of occurrence and shouted at the accused, and the evidence of

P.W.s 1 and 3 corroborate each other. Therefore, the trial Court by

considering the evidence of P.W.1 to P.W.3, has found that the

prosecution has proved its case beyond reasonable doubt for the offence

under Section 9 (m) r/w 10 of POCSO Act. This Court does not find any

perversity in the Judgment passed by the trial Court with respect of the

aforesaid offence. Hence, the conviction and sentence imposed on the

accused for the offence punishable under Section 9 (m) r/w 10 of

POCSO Act is confirmed.

16. As far as the offence punishable under Section 3 (1)(w) (i) r/w

3 (2)(va) of S.C./S.T. (Prevention of Atrocities) Act is concerned, this

Court finds that there is no averment in the complaint with regard to

degrading of the victim, by uttering her caste name and the trial Court

failed to appreciate the evidence and convicted the accused under Section

3 (1) r/w 3 (2) (va) of S.T./S.T. Act and, hence, the conviction and

sentence imposed on the accused with respect to the offence under

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Crl.A.No.667 of

Section 3 (1) r/w 3 (2) (va) of S.T./S.T. Act has not been established and,

accordingly, the same is set aside. The fine amount, if paid, in respect of

the said offence shall be refunded.

17. In the result, this Criminal Appeal is partly allowed, by

confirming the conviction and sentence imposed on the accused for the

offence punishable under Section 9 (m) r/w 10 of POCSO Act and

setting aside with respect to the offence under Section 3 (1) r/w 3 (2)

(va) of S.T./S.T. Act. The fine amount, if paid, in respect of the said

offence shall be refunded. The suspension of sentence already granted by

this Court on 05.08.2020 in Crl.M.P.No.14155 of 2019 stands cancelled.

The trial court is directed to secure the appellant for sufferance of the

above sentence under Section 9 (m) r/w 10 of POCSO Act . The Legal

Aid counsel appointed by this Court is entitled to legal fees, as per rules.

03.03.2021

arr Index: Yes/No Internet: Yes/No

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Crl.A.No.667 of

To

1. The Assistant Commissioner of Police, Tiruppur South, All Women Police Station, Tiruppur, Tiruppur District.

2. The Inspector of Police, All Women Police Station, Tiruppur South, Tiruppur District.

3. The Sessions Judge, Fast Track Mahila Court, Tiruppur

4.The Public Prosecutor, High Court, Madras.

5.The Deputy Registrar (Criminal Section), High Court, Madras.

6.The Secretary, Legal Services Authority Madras High Court Chennai.

P.VELMURUGAN, J.

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Crl.A.No.667 of

arr

CRL.A.No.667 of 2019

03.03.2021

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