Madras High Court
V.Vinoth vs State Represented By on 4 March, 2021
Crl.A.No.455 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.455 of 2020
V.Vinoth ... Appellant
-Vs-
State represented by,
The Inspector of Police,
Bahour Police Station,
Puducherry.
(Crime No.65/2019). ... Respondent
PRAYER: Criminal Appeal filed under Section 378 of Code of Criminal
Procedure, to call for the records and to set aside the order of conviction
passed in judgment in S.C.No.30/2019, dated 13.10.2019, by the Special
Judge at Puducherry.
For Appellant : Mr.M.Muthu Kannan,
Legal Aid Counsel
For Respondent : Mr.D.Bharatha Chakravarthy,
Public Prosecutor (Pondicherry)
*****
JUDGMENT
This Criminal Appeal has been filed against the Judgment of
conviction and sentence imposed by the learned Special Judge (Under
the POCSO Act, 2012), Principal Sessions Judge, Puducherry in Special
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S.C.No.30 of 2019, dated 13.10.2020.
2.The respondent Police have registered a case in Crime No.65 of
2019, for offence under Section 6 of Protection of Children from Sexual
Offence Act, 2012 (hereinafter referred to as 'POCSO Act') against the
appellant on the complaint (Ex.P13) given by PW6. After completing
investigation, the respondent Police laid a charge sheet before the learned
Special Judge (Under the POCSO Act, 2012), Principal Sessions Judge,
Puducherry and same was taken on file in Special S.C.No.30 of 2019.
3.After completing the formalities under Section 207 Cr.P.C.,
since there was a prima facie material to frame charges against the
appellant, the Special Judge framed charges for offence punishable under
Section 6 of POCSO Act and Sections 450, 342 and 506(ii) IPC.
4.After completing the trial and hearing the arguments advanced
on either side and also considering the oral and documentary evidence,
the Special Judge found guilty of the appellant and convicted and
sentenced him as follows:-
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● For offence punishable under Section 6 of POCSO Act, the
appellant to undergo Rigorous Imprisonment for ten years and to
pay a fine of Rs.1,000/-, in default to undergo three months
Rigorous Imprisonment.
● For offence punishable under Section 450 of IPC, the appellant to
undergo Rigorous Imprisonment for seven years and to pay a fine
of Rs.1,000/-, in default to undergo three months Rigorous
Imprisonment.
● For offence punishable under Section 342 IPC, the appellant to
undergo Rigorous Imprisonment for six months. The appellant not
found guilty for offence under Section 506(ii) IPC and he is
acquitted.
5.Challenging the above said Judgment of conviction and
sentence, the appellant has filed the present appeal before this Court.
6.The learned counsel for the appellant would vehemently contend
that in this case, the identification of the appellant/accused itself is
doubtful, since the person who alleged to have committed the offence
was wearing uniform. The appellant has not weared uniform and he
entered the house of the victim girl only for taking meter reading.
Someone under the pretext of taking meter reading, might have entered
the house of the victim girl and committed the offence and it is not the
appellant. The learned counsel would further submit that when the
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victim girl (PW1) was examined before the trial Court, she was not in a
position to identify the appellant. A bear reading of the evidence of the
prosecution, shows that the victim girl was tutored by the adult
memebers to depose against the appellant. If at all the appellant
committed the offence, the victim girl had seen the appellant and
definitely she could have identifed him before the trial Court. Even in
the statement given by the victim girl (PW1) under Section 164 Cr.P.C.,
before the learned Judicial Magistrate No.I, Puducherry also, there are
discrepancies and contradictions. Therefore, the prosecution has failed
to establish its case beyond all reasonable doubt.
7.The learned counsel for the appellant would further submit that
the brother (PW2) of the victim girl would not have been eye witness in
this case. According to the case of the prosecution, the appellant sent out
the brother of the victim girl (PW2) outside and locked the house inside
and thereafter, he committed the offence. Therefore, at the time of
occurrence, no one was present in the house. Even in evidence of other
witnesses, there is no corroboration that the appellant is the person, who
had come to the place of occurrence on the pretext of note down the
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Crl.A.No.455 of 2020
meter reading and committed the offence. Even though the Attendance
Register (Ex.P6) shows that on the date of occurrence the appellant was
present, no witnesses have spoken that the appellant had gone to the
house of the victim girl for taking meter reading. The neighbour (PW21)
has stated that on the date of occurrence, one person came to his house
and took meter reading and after that, he went to the house of the victim
girl for taking meter reading, but PW21 has not stated that the appellant
is the person, who has taken the meter reading in his house and the same
person went to the house of the victim girl and committed the offence
and left by bike very fast. Merely because the appellant had gone in his
bike in high speed, it could not be said that the appellant had committed
the sexual assault as alleged by the prosecution.
8.The learned counsel for the appellant would further submit that
the evidence of the Doctor (PW20) does not corroborate the evidence of
the victim girl (PW1) and there are material contradictions, which are go
to affect the root of the case of the prosecution. In this case, the
identification of the appellant/accused itself is very doubtful and
therefore, the prosecution has not proved the charges as framed against
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the appellant. The trial Court miserably failed to appreciate the evidence
of the witnesses, especially the evidence of the victim girl (PW1). Since
the victim girl (PW1) could not identify the appellant while deposing
before the trial Court, it is very doubtful whether such occurrence had
taken place. The presumption under Section 29 of POCSO Act would
not attract in this case, since the evidence of the victim girl (PW1) and
his brother (PW2) itself shows that they have clearly understood what are
the parts of the body. The learned counsel would submit that the learned
Special Judge failed to consider the material contradictions and
mechanically convicted the appellant only on assumptions and on
sympathy, and therefore, the judgment of conviction and sentence passed
by the trial Court against the appellant, is liable to be set aside.
9.The learned Government Advocate (Crl. Side) appearing on
behalf of the respondent Police would submit that the neighbour (PW21)
has clearly spoken about the presence of the appellant that on the date of
occurrence, the appellant came to the area and took meter reading in all
the houses including the house of the victim girl. Immediately soon after
the occurrence, the appellant left by two wheeler in high speed and
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subsequently, he came to know that the appellant has committed the oral
penetrative sexual assault. The evidence of the brother of the victim girl
(PW2) clearly shows that at the time of occurrence, the appellant was in
the area for taking meter reading and he identified the appellant even
before the trial Court. Hence, the prosecution has proved the
identification of the accused beyond reasonable doubt. Though the
victim girl (PW1) due to some reason could not identify the appellant,
she deposed that her brother (PW2) had seen the occurrence through
window. PW2 in his evidence has also stated that he saw the occurrence
through window and after the appellant left the place, he opend the door
and removed the ribbon and released the victim girl. Therefore, the
evidence of the victim girl (PW1) was corroborated by the evidence of
the brother of the victim girl (PW2).
10.The learned Government Advocate would further submit that
the evidence of the neighbour (PW21) is that during the relevant time the
appellant moving away by two wheeler in high speed, which itself shows
that the prosecution has proved the case not only through eye witness,
but also through the circumstancial evidence. Further, the witness, who
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allotted the duty to the appellant for taking reading was also examined as
PW10 in this case. PW10 stated that on the date of occurrrence, he
alloted work to the appellant to that area, where the place of occurrence
is located. The Attendance Register (Ex.P6) also shows that the
appellant had attended the duty for taking reading in that locality where
the occurrence place is located. Since the appellant has committed the
oral penetrative sexual intercourse, the medical witness could not be
possible to support the case of the prosecution. From the evidence of
the victim girl (PW1), her brother (PW2) and the neighbour (PW21) and
the other official witnesses, the prosecution has proved its case beyond
reasonable doubt and the trial Court has also rightly appreciated the same
and convicted the appellant, which need not be interfered with.
11.Heard the learned counsel appearing for the appellant and the
learned Government Advocate [Crl. Side] appearing for the respondent
Police and also perused the materials available on record.
12.The case of the prosecution is that at the time of occurrence, the
victim girl (PW1) is a minor below the age of 18 years. On 15.05.2019,
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at about 12.00 p.m., the victim girl (PW1) and her brother (PW.2) were
alone in the house. The father of the victim girl (PW.6) had gone for his
regular work and her mother had gone to hospital. At that time, the
appellant who was working as Construction Helper in the Electricity
Department, Puducherry had gone for recording electricity meter reading
in the house of the victim girl. Noticing that the victim girl was alone in
the home and knowing that she is a minor below the age of 18 years, the
appellant sent out the brother of the victim girl outside and locked the
door inside and pushed the victim girl into the chair, tied her hand with
ribbon and inserted her penis into her mouth and committed oral
penetrative sexual assault. At that time, her brother saw the occurrence
through the window and shouted the appellant to open the door.
Thereafter, the appellant went out by locking the door outside. Then, the
brother of the victim girl opened the door and untied the ribbon and took
her to aunt's house and waited till her parents would come. Thereafter,
the father of the victim girl (PW.6) lodged a complaint to the respondent
Police.
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13.Based on the complaint (Ex.P13) given by the father of the
victim girl (PW.6), an First Information Report (Ex.P14) in Crime No.65
of 2019 was registered for offence punishable under Section 6 of POCSO
Act. After completing investigation, the respondent police laid a charge
sheet before the learned Special Judge, (Under the POCSO Act),
Principal Sessions Judge, Puducherry and the same was taken on file as
Special S.C.No.30 of 2019.
14.During the trial, in order to prove the case of the prosecution,
on the side of the prosecution, as many as 26 witnesses were examined as
PW1 to PW26 and 18 documents were marked as Exs.P1 to P18 and
three material objects were exhibited. After completing the examination
of prosecution witnesses, when incriminating circumstances were culled
out from the evidence of prosecution witnesses put before the appellant,
he denied the same as false. On the side of the defence, no oral and
documentary evidence was produced.
15.After completing trial and hearing arguments advanced on
either side, the learned Special Judge, vide judgment dated 13.10.2020 in
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Special S.C.No.30 of 2019, convicted and sentenced the appellant as
stated above.
16.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.
17.A reading of the evidence and materials, it is seen that the
victim girl is a minor child below the age of 18 years at the time
occurrence. The charges framed against the appellant is for offence
punishable under Section 6 of POCSO Act and Section 450, 342 and
506(ii) IPC. In order to prove the above charges framed against the
appellant, the prosecution has totally examined 26 witnesses and marked
18 documents. Out of the 26 witnesses, the victim girl was examined as
PW1 and her brother was examined as PW2. In this case, PW2 is the eye
witness, who had seen the occurrence through window. PW21 also saw
the appellant was on duty on the date of occurrence in that area. PW10,
the official witness has stated that he alloted the work to the appellant in
the said area. Hence, the appellant is the person, who has gone to that
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area for taking meter reading.
18.A perusal of the evidence, it is not dispute that the appellant
was working in the Electricity Department and he was alloted to take
meter reading in the area, where the house of the victim girl is located.
The Attendance Register (Ex.P6) clearly shows that the appellant was on
duty on that particular date of occurrence and he was also alloted to work
to take meter reading. The victim girl has not identified the appellant
while deposing before the trial Court. The reason for not identifying the
appellant is that on the date of occurrence, she was aged about 9 years
and she already stated that at the time of occurrence, the appellant
threatened her. Therefore, most probably at the time of occurrence, the
victim girl did not see the face of the appellant due to fear and shock
which might be reason for not identifying the appellant before the trial
Court. However, the brother of the victim girl (PW2) who is an eye
witness, has clearly stated that he saw the occurrence through window
and shouted the appellant to open the door. Hence, PW2 has clearly
identified the appellant befere the trial Court and one of the neighbours
(PW21) also clearly identified the appellant, who had come to his house
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and taken meter reading and gone to the house of the victim girl for
taking meter reading. Therefore, this Court does not find any reason to
disbelieve the evidence of PW1, PW2 and PW21 and there is no dispute
regarding the identification of the appellant and the appellant is the one
who had committed the offence.
19.As far as the occurrence is concerned, PW1 and PW2 have
clearly stated that the appellant came to the house for taking reading and
asked the victim girl (PW1) to bring water and at that time, he sent out
the brother of the victim and locked the door and pushed the victim girl
in a plastic chair and tied her hands by ribbon and subsequently, he put
his penis into the mouth of the victim girl (PW1). PW2 has also seen the
same and shouted the appellant to open the door. Thus, PW1 and PW2
have clearly stated the act of the appellant before the trial Court and PW1
also stated the same before the learned Judicial Magistrate No.I,
Puducherry while recording the statement under Section 164 Cr.P.C.
Even though PW1 and PW2 were not stated about the name of each and
every part, they clearly stated that the appellant has commited the oral
penetrative sexual assault on the victim girl.
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20.Therefore, on a perusal and consideration of the evidence of the
victim girl (PW1), his brother (PW.2) and the neighbour (PW21) and the
statement of the victim girl recorded under Section 164 Cr.P.C., and the
Attendance Register (Ex.P6) and all other oral and documentary evidence
on record, this Court finds that the appellant forcibly entered into the
house of the victim girl in the absence of the adult members and wrongly
confined her and committed the oral penetrative sexual assault. The
charges framed against the appellant have been proved by the
prosecution beyond all reasonable doubt and the trial Court has also
rightly appreciated the entire oral and documentary evidence and
convicted the appellant for the offence punishable under Section 6 of
POCSO Act and Sections 450 and 342 IPC.
21.In the light of the above discussion, this Court does not find
any merit in this appeal and the appeal is liable to be dismissed.
22.Accordingly, this Criminal Appeal is dismissed and the
judgment of conviction and sentence passed by the trial Court is
confirmed.
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23.The counsel who appointed by the Legal Services Authority
from the legal aid panel for the appellant is entitled for fees as per rule.
04.03.2021
Speaking Order/Non-Speaking Order
Internet : Yes/No
Index : Yes/No
vv2
To
1.The Sessions Judge,
Special Court (POCSO Act Cases),
Cuddalore.
2.The Inspector of Police,
Panruti All Women Police Station,
Panruti,
Cuddalore District.
3.The Public Prosecutor,
High Court, Madras.
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Crl.A.No.455 of 2020
P.VELMURUGAN, J.
vv2
Crl.A.No.455 of 2020
04.03.2021
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