Madras High Court
Rajkumar vs State By The Inspector Of Police on 4 March, 2021
Crl.A.No.520 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.03.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.520 of 2019 and
Crl.M.P.No.1081 of 2020
Rajkumar .. Appellant
.Vs.
State by the Inspector of Police,
Veppankuppam Police Station,
Vellore District.
(Crime No.66/2015) .. Respondent
Criminal Appeal filed under Section 374 (2) of the Code of
Criminal Procedure to set aside the entire records in connection with
Spl.S.C.No.26/2015 on the file of Learned Fast Track, Magalir
Neethimandram (Sessions Judge) Vellore, Vellore District and set aside
the Judgment dated 11.12.2018.
For Appellant : M/s. E.Kannadasan
For Respondents : Mr.R.Suryaprakash
Government Advocate
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Crl.A.No.520 of 2019
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
11.12.2018., made in Spl.S.C.No.26/2015, by the Learned Sessions
Judge, Fast Track Magalir Neethimandram, Vellore.
2. The respondent police registered a case against the appellant in
Crime No.66 of 2015 for the offences punishable under Sections 363,
366, 376, 511 I.P.C. and Section 4 r/w 3(a)(d) of the Protection of
Children from Sexual Offences Act, 2012 (in short 'POCSO' Act). After
investigation, charge sheet was laid before Special Court and the same
was taken on file in Spl.S.C.No.26 of 2015, by the Sessions Judge, Fast
Track Mahalir Neethimandram, Vellore.
3.After completing the formalities, the learned Sessions Judge
framed charges against the accused for the offences punishable under
Sections 363, 366, 376 (i) and Section 4 r/w 3 (a)(d) of the POCSO Act
and after trial, found the appellant guilty of the offences punishable
under Sections 363, 366, 376(i) of I.P.C. and Section 4 r/w 3 (a)(d) of the
POCSO Act and convicted and sentenced the appellant as under:.
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Crl.A.No.520 of 2019
S.No. Conviction Sentence
1 U/s. 366 of IPC to undergo 7 years of rigorous imprisonment
and to pay a fine of Rs.1.000 and in default
to undergo 1 month rigorous imprisonment.
2. Under Section 4 r/w 3 (a)(d) to undergo 10 years of rigorous
of the POCSO Act imprisonment and to pay a fine of Rs.5000/-
and in default to undergo three months
rigorous imprisonment.
The sentences were ordered to run concurrently. Aggrieved against
the same, the accused/appellant is before this Court by filing this Appeal.
4. The learned counsel for the appellant would submit that the
appellant had not committed penetrative sexual intercourse with the
victim girl. He would further submit that there is no eye witness to the
occurrence. He would also submit that the non examination of the
material witness, namely, wife of P.W.4 who has seen the appellant and
the victim- P.W.2 in the place of occurrence is fatal to the case of the
prosecution. He would further submit that the victim girl was not
produced before the Judicial Magistrate for recording statement under
164 Cr.P.C.. The evidence of P.W.16- Doctor clearly reveals that there
are no external bite marks and internal injuries on the P.W.2-victim child
and the medical evidence was also not supported the case of the
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Crl.A.No.520 of 2019
prosecution, as such, the prosecution has not proved its case beyond
reasonable doubt. The learned Judge, based on assumption and also on
the ground of sympathy, convicted the appellant for the offences and
awarded maximum punishment, which warrants interference.
5. The learned Government Advocate (Crl.side) would submit that
the victim child is ten years old at the time of occurrence and she was
examined as P.W.2 and she has clearly narrated the occurrence. P.W.4
who is an eye witnesses to the occurrence clearly stated that when he
went to the place of occurrence, he heard the crying sound of the victim
girl and found that the victim child was nude and the appellant was lying
on the victim child and thereafter he caught hold of the appellant and
beat him. Further, he took both the appellant and victim child to his home
and therefore, the statement under Section 164 Cr.P.C. was not recorded.
Further, the evidence of the victim child corroborates with the evidence
of P.W.4. Though it is stated that there are no injuries, it cannot be stated
that the occurrence had not happened. He would further submit that the
act of the appellant clearly falls within the ambit of POCSO Act. Since,
the age of the victim child is below 12 years, the learned Sessions Judge,
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Crl.A.No.520 of 2019
on proper appreciation of evidence, rightly imposed punishment and
hence, there is no merit and the appeal is liable to be dismissed.
6. Heard both sides. Perused the records.
7. The case of the prosecution is that on 19.02.2015, at about 6.30
P.M., P.W.2-victim child, went to P.W.3's shop for purchase of pooja
articles. At that time, the appellant went there and purchased lolly pop
and gave it to the victim child and he took the victim child in his TVS 50
XL at Mango Grove of Murugesan and there the appellant removed her
dress and induced her that he will give lot of lolly pop to her and
committed sexual assault on her by penetrating his finger on her private
part. On receipt of information from P.W.4, P.W.1 lodged a complaint
against the appellant. Based on which, the respondent police registered a
case against the appellant and after investigation, charge sheet was laid
and the trial court framed charges against the appellant as stated above.
8. In order to prove the case, the prosecution before the trial Court,
examined as many as 17 witnesses as P.W.1 to P.W.17 and 18 documents
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Crl.A.No.520 of 2019
were marked as Exs.P1 to P18. Six Material Objects were marked as
M.Os.1 to 6.
9.After completing the examination of the prosecution witnesses,
all the incriminating circumstances culled out from the evidence of the
prosecution witnesses, were put before the appellant and questioned
under Section 313 Cr.P.C, but he denied the same as false and pleaded
not guilty. On the side of the appellant, no oral or documentary
evidence was produced.
10.After considering the evidence on record and hearing arguments
advanced on either side, the learned Sessions Judge, Fast Track Magalir
Neethimandram, Vellore, vide judgment dated 11.12.2018 made in
Spl.S.C.No.26 of 2015 convicted and sentenced the appellant as stated
above.
11.Challenging the judgment of conviction and sentence, the
present appeal has been preferred by the appellant.
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Crl.A.No.520 of 2019
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. The mother of the victim girl was examined as P.W.1 and she
has clearly narrated that on information given by P.W.4, she has lodged a
complaint against the accused. The victim child was examined as P.W.2
and the victim girl clearly narrated the entire incident and there is no
reason to disbelieve the evidence of the victim child. Further, the victim
girl is aged 10 years at the time of occurrence. Further, it is not the case
of the appellant that the family of the victim had some axe to grind
against the appellant, which led to the lodging of the complaint. Such
being the case, there was no need for P.W.1 to give any police complaint
by implicating the appellant herein falsely. P.W.4 is an eye witness and
he has clearly deposed that on hearing the crying sound of the victim
child, he went to the place of occurrence and caught hold of both the
victim girl and the appellant. The evidence of P.W.4, who is an eye
witness to the occurrence, corroborates the evidence of P.W.s 1 and 2.
Therefore, this Court does not find any reason to disbelieve or discard
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Crl.A.No.520 of 2019
the evidence of P.W.1 and P.W.4. Though P.W.16-Doctor, had stated
that there was no external injury, in the present case, it is not the case of
the prosecution that due to forcible sexual assault committed by the
appellant with the victim child, she sustained injury. Though P.W.16-
Doctor deposed that there was no injury, there is no sound reason to
disbelieve the case of the prosecution. During evidence, the victim child
has clearly stated that the appellant sucked here private part and inserted
his finger on the private part, and due to pain she cried, P.W.4 and his
wife rescued her.
At this juncture, it would be useful to refer the relevant provisions of the
POCSO Act.
"Section 2. Definitions- (1) In this
Act, unless the context otherwise
requires,---
(d) "child" means any person
below the age of eighteen years;
Section 3-Penetrative Sexual assault- A
person is said to commit "Penetrative
sexual assault" if,-
-------
(b) he inserts, to any extent, any
object or a part of the body, not
being the penis, into the vagina,
the urethra or anus of the child or
makes the child to do so with him
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Crl.A.No.520 of 2019
or any other person;
(d) he applies his mouth to the
penis, vagina, anus, urethra of the
child or makes the child to do so
to such person or any other
person.
.......
Section 4 - Punishment for penetrative
sexual assault-- Whoever commits
penetrative sexual shall be punished with
imprisonment of either description for a
term which shall not be less than seven
years but which may extend to
imprisonment for life, and shall also be
liable to fine."
14. A reading of the evidence of P.W.2 victim child and Section 3
(b) and (d) of the POCSO Act, it is very clear that the appellant has
committed the offence punishable under Section 4 of the POCSO Act,
Depth of penetration is immaterial, mere touching of private part would
be sufficient so as to constitute the offence. If the evidence of sole
witness is cogent, credible and trustworthy, conviction is permissible. In
cases of this nature, presence of eye witnesses are mostly improbable.
Therefore, this Court is of the considered view that the prosecution has
proved its case beyond reasonable doubt for the alleged offences and the
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Crl.A.No.520 of 2019
Special Court has also rightly convicted the accused.
15. From the evidence of P.W.1 and P.W.4 the custody of the
victim female child below the age of 18 years was removed from the
lawful guardian without their consent by the appellant and therefore he
has committed the offence punishable under Section 363 and 366 of
I.P.C.
16. In view of all the above, this Court does not find any merit in
this Appeal and therefore, the same is liable to be dismissed.
Accordingly, this Appeal is dismissed, confirming the conviction passed
by the trial Court dated 11.12.2018 made in Fast Track Magalir
Neethimandram (Sessions Court), Vellore, Vellore District. However,
considering the age of the appellant and the specific overt act attributed
against him, the sentence imposed on him for the offence punishable
under Section 4 of the POCSO Act is reduced from 10 years rigorous
imprisonment to 7 years rigorous imprisonment. The sentence for the
offence u/s 366 of IPC and the fine imposed on the appellant in respect
of both the offences are confirmed.
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Crl.A.No.520 of 2019
In the result, this Criminal Appeal is dismissed with the above
modification. Consequently, connected M.P. is closed.
04.03.2021
arr
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
To
1.The Inspector of Police,
Veppankuppam Police Station,
Vellore District.
2. Fast Track, Magalir Neethimandram (Sessions Judge) Vellore,
Vellore District.
3. The Public Prosecutor (Crl.side)
Madras High Court.
4. The Deputy Registrar,
High Court, Madras.
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Crl.A.No.520 of 2019
P.VELMURUGAN,.J.
arr
CRL.A.No.520 of 2019
04.03.2021
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Crl.A.No.520 of 2019
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