Duraisamy vs State By:Inspector Of Police
2021 Latest Caselaw 5692 Mad

                                                     Crl.A.No.325 of 2019

        IN THE HIGH COURT OF JUDICATURE AT MADRAS

                             DATED: 04.03.2021

                                 CORAM

         THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                       CRL.A.No.325 of 2019 and
                        Crl.M.P.No.7350 of 2019

Duraisamy                                            .. Appellant

                                   .Vs.

State by:Inspector of Police
All Women Police Station,
at Kondalampatti
(Crime No.07 of 2014)                                 .. Respondent

       Criminal Appeal filed under Section 374 (2) of the Code of
Criminal Procedure to allow this appeal by setting aside the conviction
and sentence passed by the Judgment in SPL.S.C.No.1 of 2015 on the file
of Mahila Court, Salem by Judgment dated 24.04.2019.

       For Appellant     :       M/s.R.Krishnakumar
                                       P.Thalapathi
                                       M.Satham Hussain
                                 (Legal Aid counsel for
                                 Petitioner)

       For Respondent    :       Mr.R.Suryaprakash, GA

                                 JUDGMENT

This Criminal Appeal has been filed against the Judgment dated

Crl.A.No.325 of 2019

24.04.2019, made in Spl.S.C.No.1/2015, on the file of Mahila Court,

Salem.

2. The respondent police registered a case against the appellant in

Crime No.7 of 2014 for the offences punishable under Section 8 r/w 7 of

the Prevention of Children from Sexual Offences Act 2012 (in short

'POCSO' Act). After investigation, charge sheet was laid and the same

was taken on file in Spl.S.C.No.1 of 2015, by Mahila Court, Salem.

3.After completing the formalities, the learned Judge framed

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

the offences punishable under Section 8 r/w 7 of the POCSO Act and

convicted and sentenced the appellant to undergo rigorous imprisonment

for five years and to pay a fine of Rs.10,000/- in default to undergo 6

months simple imprisonment. The sentences were ordered to run

concurrently. Aggrieved by the said conviction and sentence, the accused

is before this Court by filing this Appeal.

4. The learned counsel for the appellant would submit that the

Crl.A.No.325 of 2019

appellant had not committed the sexual assault as alleged by the

prosecution, and the theory projected by the prosecution does not attract

the ingredients under Section 7 of the POCSO Act. He would further

submit that there is no penetrative sexual intercourse on the victim girl

and the complaint was lodged after four days from the occurrence. He

would further submit the alleged occurrence is said to have taken place at

10.30 A.M., by which time the public would have gathered and there is

no possibility for the appellant to commit such an offence in the public

place. He would further submit that complaint was given after four days

of the alleged occurrence, the said delay was not properly explained by

the prosecution. He would further submit even P.W.2- victim girl has

stated that when she went to fetch water from the bore well near to her

home, the appellant came there and committed sexual assault on her, and

when she shouted, he immediately put cloth on her mouth, however, the

victim girl escaped and thereafter informed to P.W.4 and then informed

to her parents through phone on the same day, but complaint was given

only after four days from the date of occurrence.

5. He would further submit that P.W.4, to whom the victim girl

Crl.A.No.325 of 2019

informed the occurrence is not an eye witness, but she is only a hear-say

witness. He would further submit that P.W.1- mother of the victim girl,

in her cross examination has not stated the correct date of lodging the

complaint and further stated that both P.W.1 and P.W.3 have attested the

complaint written by her daughter P.W.2., whereas, from Ex.P1-

complaint, it is clearly seen that the P.W.2 had put her thumb impression

on the complaint, which clearly shows that alleged complaint is not

genuine and earlier complaint given was suppressed. He would further

submit that due to enmity between the appellant and the victim family,

the complaint was lodged after four days from the date of alleged

offence. He would further submit that the earlier complaint given was

suppressed and the alleged complaint is only the development, to

implicate the appellant. He would further submit that P.W.2, in her

evidence had deposed that there was swelling in her chest as well as in

her thighs, whereas P.W.10- the Doctor who examined the victim girl

had not deposed that there was sexual assault on the victim girl and

therefore the evidence of P.W.10, does not corroborate the evidence of

P.W.2, which fact has not been taken note of by the learned trial Judge.

He would further submit that complaint does not corroborate the

Crl.A.No.325 of 2019

statement recorded under Section 164 Cr.P.C. and therefore, the

prosecution has failed to establish the case beyond reasonable doubt. He

would further submit that the learned Judge failed to consider the fact

that Section 7 of the POCSO Act has not been made out. He would

further submit that the prosecution has failed to establish its case with

cogent evidence and therefore the Judgment of the trial Court is liable to

be set aside.

6. The learned Government Advocate (Crl. side) would submit that

the age of the victim girl at the time of occurrence is only 13 years and

when the parents of the victim girl had gone outside, the victim girl went

alone to fetch water from the bore well near the house, and at that time,

the appellant went there and sexually assaulted the victim girl and when

she raised an alarm, the appellant put cloth in her mouth, thereafter the

victim kicked the appellant and escaped from the place of occurrence and

immediately informed P.W.4. He would further submit P.W.4 clearly

deposed that the victim girl came and informed her and thereafter they

informed to her parents immediately. P.W.1- mother of the victim girl

has clearly deposed that when they tried to approach the appellant, the

Crl.A.No.325 of 2019

appellant did not come to the house for two days and therefore, informed

to the panchayatars and since the appellant did not co-operate, left with

no other option, they gave a complaint to the police. He would further

submit that P.W.1 and P.W.3 parents of the victim girl clearly stated

that, when they had gone to their work, P.W.4 informed them about the

occurrence and immediately they came there, and when they went to the

house of the appellant, he was not found for two days. Subsequently,

they have deposed that on the same date, the victim girl was produced

before the Doctor and narrated the occurrence and the same was entered

in the accident register and the case of the prosecution is that the victim

girl has sustained no injuries and that there was no penetrative sexual

intercourse committed by the appellant and therefore, the Doctor's

evidence that there is no injury is not helpful to the defence case.

7. He would further submit that regarding the age proof, the Doctor

who examined the victim girl opined that the age of the victim girl as per

the medical certificate which is marked as Ex.P9 is 14 and less than 16

and hence, the victim is only minor below 18 as per the definition of

Section 2 (1)(d) of the POCSO Act, the victim is a child. He would

Crl.A.No.325 of 2019

further submit that the victim child who was examined as P.W.2 clearly

narrated the episode and she was produced before the Judicial Magistrate

for recording statement under Section 164 (Cr.P.C.) and the victim girl

informed the Magistrate that she had been subjected to sexual assault, for

which, the complaint was given. It is further contended that the

prosecution has explained the reason for delay and the delay is not

inordinate and has been properly explained and the prosecution has

proved its case beyond reasonable doubt. Though there are

contradictions in chief as well as cross examination, since the witnesses

were not cross examined immediately soon after the chief examination,

the contradictions are minor contradictions, which does not affect the

credibility of their depositions and therefore, the trial court has come to

the conclusion that the contradictions, pointed out by the defence does

not materially affect the root of the prosecution case. He would further

submit that a combined reading of the exhibits along with depositions

would reveal that the victim girl was subjected to sexual assault which

definitely falls under Section 7 of the POCSO Act and therefore, the trial

Court has rightly convicted and sentenced the accused as stated supra

and the same does not warrant any interference.

Crl.A.No.325 of 2019

8. Heard both sides. Perused the records.

9.The case of the prosecution is that on 26.07.2014 at about 10.30

a.m., when the victim girl, aged about 14 years, went to the bore well

near her house to fetch water, the appellant, with sexual intent, came

from backside and molested her and thereby committed sexual assault on

the victim girl, punishable under Section 8 of the POCSO Act.

10. After investigation, the respondent police laid the charge sheet

against the appellant and the trial Court framed a charge under Section 8

r/w 7 of the POCSO Act against the appellant.

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

Court, examined as many as 13 witnesses as P.W.1 to P.W.13 and 19

documents were marked as Exs.P1 to P19. No material object was

marked.

12. After completing the examination of the prosecution witnesses,

Crl.A.No.325 of 2019

all the incriminating circumstances culled out from the evidence of the

prosecution witnesses, were put before the appellant, but he denied the

same as false and pleaded not guilty. On the side of the appellant, no

oral or documentary evidence was produced.

13.After completing trial and hearing the arguments advanced on

either side, the learned Sessions Judge, Mahila Court, Salem, by

judgment dated 24.04.2019 made in Spl.S.C.No.1 of 2015, convicted and

sentenced the appellant as stated above.

14.Challenging the judgment of conviction and sentence, the

present appeal has been preferred by the appellant.

15.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.

16. Before the trial Court, the prosecution examined the victim

girl as PW.2 who is aged about 14 years at the time of occurrence and

Crl.A.No.325 of 2019

she had deposed that 26.07.2014 was a Saturday, and since the said day

was a holiday for her school, at about 10.30 A.M., she alone went for

fetching water from the nearby bore well. On noticing this, the appellant

came there and sexually assaulted her. When she raised alarm the

appellant put cloth on her mouth, but she kicked him and escaped from

there. P.W.2 immediately informed to P.W.4, who, in turn, informed to

her parents. Thereafter, the parents of the victim girl came there and

tried to search the appellant, but they could not find him for two days

and therefore they decided to file Ex.P1- complaint before the respondent

police and after registering the case, the respondent police have

investigated the matter.

17. A reading of the evidence of the victim child clearly shows that

the victim child had clearly narrated the events that there was no person

at the time of occurrence and she was alone, by which time, appellant

had committed the sexual assault on her. A reading of the complaint and

also the evidence of P.W.s 1 and 2 coupled with statement recorded

under Section 164 Cr.P.C. by the learned Judicial Magistrate, EX.P19

and Ex.P7- Doctor's certificate given to victim girl, clearly establishes

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that it was the appellant who has assaulted her sexually, which falls

under Section 7 of the POCSO Act and that it is to be pointed out that

penetrated sexual assualt is not necessary and that merely touching any

private part falls under Section 7 of the POCSO Act. In this case, the

victim girl has stated that the appellant squashed her breast which

clearly falls under Section 7 of the POCSO Act besides P.W.2 victim

child clearly stated that the appellant has committed sexual assault and

had identified the appellant as the perpetrator of the crime and, therefore,

no corroboration is necessary, because in cases like this the culprit will

wait for the chance of loneliness of the victim child and taking advantage

of the loneliness commit these types of activities and therefore there

wont be any eye witness and no corroboration is necessary. Only the

Court has to see the trustworthiness of the evidence of the victim. On a

perusal of the evidence, this Court does not find any reason to discard

the evidence of the victim child and there is no reason to doubt about the

trustworthiness of the victim girl. After the occurrence the victim girl

said to have gone to P.W.4 and informed about the occurrence, even

P.W.4 in her evidence also narrated the same. P.W.7- the Doctor also

stated that it was informed by the victim child that a known person had

Crl.A.No.325 of 2019

committed sexual assault on her. As far as the delay is concerned, the

father of the victim girl has clearly narrated that on coming to know

about the occurrence, immediately they went to the appellant's house to

sort out the matter and for two days the appellant had not turned up to his

house and thereafter they went to panchayatars to sort out the issue

without going to the police station. Since the appellant did not co-

operate before the panchayatars, there was a delay in lodging the

complaint. In the above backdrop, the delay, which is put in issue by the

defence, cannot be said to be fatal to the prosecution case, as the same

has been explained properly. Therefore, the contention of the appellant

is not acceptable.

18. Though a stand is taken by the defence that there were two

complaints and the earlier complaint has been suppressed, however, no

material whatsoever evidencing the said first complaint has been placed

before the trial court.

19. It is the contention of the appellant that though the complaint,

Ex.P-1 in which the victim, P.W.2, has put her thumb impression, is said

Crl.A.No.325 of 2019

to have been attested by witnesses, which fact has been spoken to by

P.W.3 in his cross examination, yet there is no attestation, which

discredits his testimony and, therefore, the genesis of the complaint,

Ex.P-1 is prone to be doubtful.

20. However, it is the submission of the learned Government

Advocate that cross examination of P.W.3 was not done on the the same

date, but was done after a period of two years from the date of chief

examination of the witnesses by recalling the witnesses and, therefore,

contradictions of this nature are prone to occur over a period of time and

such contradictions cannot be put against the prosecution. It is therefore

submitted that once the victim child clearly stated that she was subjected

to sexual assault, which has been established with evidence a

presumption is drawn under section 29 of the Act and it is for the

appellant to rebut the presumption in the manner known to law.

21. A perusal of the evidence of all the witnesses coupled with the

documentary evidence clearly prove the complicity of the appellant in the

commission of the offence. Further, the appellant has not rebutted the

Crl.A.No.325 of 2019

presumption raised by the prosecution relating to the act of the appellant

through any evidence and in the absence of the same, the stand of the

learned Government Advocate that minor contradictions cannot be put

against the prosecution to discard its case, more so when the witnesses

have been examined after a long lapse of time from the date when chief

examination was conducted deserves acceptance.

22. On a conjoint reading of all the evidence and the depositions,

this Court is of the conclusion that the appellant has committed the

offence as alleged by the prosecution. Therefore, the trial Court rightly

appreciated the evidence and convicted the accused as stated supra. This

court does not find any merit in the Appeal and the same is liable to be

dismissed and accordingly dismissed.

23. Considering the nature of the offence committed by the

appellant and since there being no penetrative sexual assault on the

victim and in the absence of any injury as evident from the evidence of

Doctor, this Court is of the considered view that the sentence imposed on

the appellant could be modified from five years to four years which will

Crl.A.No.325 of 2019

meet ends of justice.

24. In the result, this Criminal Appeal is dismissed with the above

modification in sentence. Consequently, connected M.P. is closed. The

legal aid counsel appointed by this Court is entitled to legal fees as per

rules.

04.03.2021

arr Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order

To

1. The Inspector of Police All Women Police Station, at Kondalampatti

2. The Public Prosecutor (Crl.side) Madras High Court.

3. The Deputy Registrar, High Court, Madras.

4. The Secretary, Legal Services Authority.

Crl.A.No.325 of 2019

P.VELMURUGAN,.J.

arr

CRL.A.No.325 of 2019

04.03.2021

Crl.A.No.325 of 2019