Madras High Court
Anbalagan vs The State. Rep. By. Its on 4 March, 2021
Crl.A.No.243 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.243 of 2020
Anbalagan ... Appellant
-Vs-
The State. Rep. By. Its
The Inspector of Police,
Panruti All Women Police Station,
Panruti,
Cuddalore District.
Crime No.10 of 2018. ... Respondent
PRAYER: Criminal Appeal filed under Section 378 of Code of Criminal
Procedure, to set aside the conviction and sentence passed in
Spl.S.C.No.19 of 2019 by the Special Court (POCSO Act Cases),
Cuddalore dated 10.03.2020.
For Appellant : Mr.C.Venkatesan,
Legal Aid Counsel
For Respondent : Mr.R.Suryaprakash
Government Advocate (Crl. Side)
*****
JUDGMENT
This Criminal Appeal has been filed against the Judgment of
conviction and sentence imposed by the learned Sessions Judge, Special
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Court (POCSO Act Cases), Cuddalore in Special S.C.No.19 of 2019,
dated 10.03.2020.
2.The respondent Police have registered a case in Crime No.10 of
2018, for offence under Section 450 IPC and Section 9(k), 10 of
Protection of Children from Sexual Offence Act, 2012 and Section
3(2)(va) and 3(1)(w)(i) of Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Amendment Act, 2015 against the appellant on
the complaint (Ex.P3) given by PW1. After completing investigation,
the respondent Police laid a charge sheet before the learned Sessions
Judge, Special Court (POCSO Act Cases), and same was taken on file in
Special S.C.No.19 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 Sessions Judge framed charges under Section 450 IPC and
Section 9(k), 10 of Protection of Children from Sexual Offence Act,
2012 (hereinafter referred to as 'POCSO Act') and Section 3(2)(va) and
3(1)(w)(i) of Scheduled Caste and Scheduled Tribe (Prevention of
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Crl.A.No.243 of 2020
Atrocities) Amendment Act, 2015.
4.After completing the trial and hearing the arguments advanced
on either side and also considering the oral and documentary evidence,
the Sessions Judge found guilty of the appellant for offence punishable
under Section 10 of POCSO Act and convicted and sentenced to undergo
Rigorous Imprisonment for six years and to pay a fine of Rs.2,000/-, in
default to undergo one month Rigorous Imprisonment and acquitted him
for offence under Section 450 of IPC and Section 3(2)(va) and 3(1)(w)(i)
of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)
Amendment Act, 2015.
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 the victim girl (PW.9) is not a normal person, she is a special child
and she is unable to speak and write. During recording her statement
under Section 164 Cr.P.C., before the learned Judicial Magistrate, the
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Crl.A.No.243 of 2020
victim girl was only put her thumb impression and she did not make
signature in it, which shows that she did not understand what was
recorded in the statement. The learned counsel would further submit that
the brother of the victim girl (PW.7) is not an eye witnesses to the
occurrence. According to the prosecution, he was only outside at the
time of occurrence. The Doctor (PW.11) has clearly stated that the
victim girl (PW.9) has not understood the questions asked while
examining her clinically. The Special Teacher, who was examined as
PW.10 has stated that he aided the trial Court to record the evidence of
the victim girl (PW.9), but he has not produced any document to show
that he is a qualified Psychiatric Doctor and fully qualified to understand
the language of the special child. Therefore, in the absence of certificate
for qualification, the evidence of the Special Teacher (PW.10) cannot be
taken into consideration.
7.The learned counsel for the appellant would further submit that
the the evidence of the Doctor (PW.11) has not corroborated the case of
the prosecution. The Doctor (PW.11) has clearly stated that there was no
external injury on the private parts of the victim girl and no forcible
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Crl.A.No.243 of 2020
sexual intercourse. PW.8, who is the brother of the victim girl is a small
child and he cannot understand what had happened at the time of
occurrence. In the statement recorded under Section 164 Cr.P.C., the
children (PW.7, PW.8 & PW.9) have not stated all the things which they
have deposed before the trial Court and hence, there are material
contradictions and discrepancies in the oral and documentary evidence.
The learned counsel would further submit that the age of the victim was
not proved by the prosecution. Though the prosecution has stated that
the victim girl studied 9th standard, no signature was obtained from her
either in the statement recorded under Section 164 Cr.P.C., or in the
deposition made before trial Court. Therefore, the evidence of the victim
girl (PW.9) cannot be considered for convicting the appellant. When the
trial Court disbelieved the case of the prosecution for offence under
Section 450 IPC and Section 3(2)(va) and 3(1)(w)(i) of Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015,
the conviction recorded under Section 10 of POCSO Act is
impermissible which warrants interference of this Court. Therefore, in
the absence of any translation of the qualified person, the evidence of the
victim girl (PW.9) cannot be accepted. PW.7 and PW.8 are the brothers
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of the victim girl and they were tutored by the family members to depose
against the appellant.
8.Since there are material contradictions and discrepancies in the
evidence of the prosecution, it is unsafe to convict the appellant under
Section 10 of POCSO Act. From the evidence of the Doctor (PW.11), it
could not be conclusively proved that there was penetrative sexual
assault and hence, the evidence of the Doctor (PW.11) is false. The trial
Court failed to appreciate the evidence and materials and convicted the
appellant erroneously. Therefore, the judgment of the trial Court is
liable to be side and the appellant is to be acquitted.
9.Mr.K.Madhan, learned Government Advocate (Crl. Side)
appearing on behalf of the respondent Police would submit that the
prosecution has clearly established its case beyond all reasonable doubt.
The victim girl at the time of clinical examination and the statement
recorded under Section 164 Cr.P.C., and at the time of deposing before
the trial Court, the Special Teacher/PW10 was present to translate her
version. In the presence of the Special Teacher (PW.10), the victim girl
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was examined. The Special Teacher (PW.10) translated the statement
recorded under Section 164 Cr.P.C., and her deposition and certified the
translated version and attested the same. PW.7 and PW.8, who are the
younger brothers of the victim girl have clearly stated that the appellant
entered into the house and put PW.7 outside and locked the door and
misbehaved with her sister (PW.9), but unfortunately PW.8 was inside
the house. The Doctor (PW.11) has opined that the hymen was not intact
and the victim girl was subjected to sexual intercourse. On combined
reading of the evidence of the victim girl (PW.9), her brothers (PW.7 &
PW.8), Special Teacher (PW.10) and Doctor (PW.11), the prosecution
has proved its case beyond all reasonable doubt. Even though the trial
Court found that the appellant not guilty for offence under Section 450
IPC and Section 3(2)(va) and 3(1)(w)(i) of Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015, the
charge framed under Section 10 of POCSO Act is proved beyond all
reasonable doubt and the trial Court rightly convicted the appellant.
10.The trial Court considering the speical status of the victim girl
and also considering that the appellant had committed a penetrative
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sexual assault with the special child, rightly convicted the appellant and
imposed maximum sentence. Hence, the judgment of the trial Court is
sustainable 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 the victim girl (PW.9) is a
special child and aged about 16 years at the time of occurrence. On
03.07.2018, at about 07.00 a.m., the parents of the victim girl had gone to
their regular work and their children (PW.7, PW.8 & PW.9) were in the
house. At about 10.00 a.m., the appellant trespassed into the house and
put PW.7 outside and locked the door, but unfortunately PW.8 was inside
the home. At that time, the appellant threatened the victim girl (PW.9)
by showing knife and pressed her breast and also pressed the other parts
of the victim girl. Seeing the act of the appellant, PW.8, who was inside
the house raised alarm and PW.8 who was outside also raised alarm and
crying. On hearing the noise of the children, the neighbours (PW.3,
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PW.4 and PW.5) rushed to the house of the victim girl. Thereafter, the
appellant had left the house and it was witnessed by the neighbours
(PW.3, PW.4 & PW.5). Then, the information was sent to the parents of
the victim girl and the father of the victim girl (PW.1) lodged a complaint
to the respondent Police.
13.Based on the complaint (Ex.P3) given by the father of the
victim girl (PW.1), an First Information Report [Ex.P8] in Crime No.10
of 2018 was registered for offence under Section 450 IPC and Section
9(k), 10 of Protection of Children from Sexual Offence Act, 2012 and
Section 3(2)(va) and 3(1)(w)(i) of Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Amendment Act, 2015. After completing
investigation, the respondent police laid a charge sheet before the learned
Sessions Judge, Special Court (POCSO Act), Cuddalore and the same
was taken on file in Special S.C.No.19 of 2019.
14.During the trial, in order to prove the case of the prosecution,
on the side of the prosecution, as many as 14 witnesses were examined as
PW1 to PW14 and 15 documents were marked as Exs.P1 to P15 and one
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material object was 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 Sessions Judge, by judgment dated 10.03.2020 in
Special S.C.No.19 of 2017, 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.Admittedly, the victim girl (PW.9) is a child, which comes
under the definition of Section 2(1)(d) of POCSO Act. At the time of
occurrence, she was a minor and aged below 18 years. Further, she is a
special child as per the evidence of the Special Teacher (PW.10), Doctor
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(PW.11) and the Disability Certificate (Ex.P2). The age of the appellant
is 50 years. The appellant on the pretext that he is a trainee to the victim
girl for her disability, entered the house and committed the penetrative
sexual assault. Though she is a special child and her language could not
be understood by others, at the time occurrence the appellant was in the
house of the victim girl and it was witnessed by the neighbours (PW.3,
PW.4 and PW.5). The appellant put PW.7 outside and entered the house
and locked the door. But unfortunately PW.8 was also inside the house
along with the victim girl. The appellant removed the dress of the victim
girl and pressed her breast and also pressed the other parts of the victim
girl and committed the penetrative sexual intercourse. The appellant
threatened the victim girl (PW.9) by showing the knife and on seeing the
same, PW.7 and PW.8 were shouting and raised alarm and the appellant
left the house of the victim girl and it was witnessed by the neighbours
(PW.3, PW.4 & PW.5). Subsequently, the incident was informed to the
parents and the father of the victim girl made a complaint (Ex.P3) to the
respondent Police. Thereafter, the victim girl (PW.9) was produced
before the Doctor (PW.11) for clinical examination. The Doctor (PW.9)
has examined the victim girl and spoken about her mental and physical
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status. Subsequently, the victim girl (PW.9) was produced before the
learned Judicial Magistrate for recording the statement under Section 164
Cr.P.C. Since the victim girl is a special child, she was examined in the
presence of the Special Teacher (PW.10), who is having a special
knowledge about mentally disorder person. Therefore, in the presence of
Special Teacher (PW.10), the learned Judicial Magistrate recorded the
statement under Section 164 Cr.P.C., of the victim girl and the Special
Teacher (PW.10) also attested that what are all the victim girl (PW.9)
stated, she translated the same to the learned Judicial Magistrate.
18.A reading of the evidence and materials, the victim girl was
examined as PW.9 in the presence of the Special Teacher (PW.10). The
evidence of the victim girl (PW.9) was corroborated by the evidence of
PW.7 and PW.8 and also corroborated by the evidence of the Doctor
(PW.11). The evidence of the Doctor (PW.11) clearly shows that the
victim girl is a special child and she was subjected to penetrative sexual
assault.
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19.This Court does not find any reason to disbelieve the evidence
of PW.7, PW.8, PW.9, PW.10 and PW.11. As against the acquittal of the
appellant for offence under Section 450 of IPC and 3(2)(va) and
3(1)(w)(i) of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Amendment Act, 2015, neither the prosecution nor the victim
girl have filed any appeal before the concerned Court and hence, this
Court is not inclined to interfere with the same.
20.The trial Court has rightly appreciated the entire evidence and
materials and convicted the appellant for offence punishable under
Section 10 of POCSO Act and the prosecution has established the case
beyond all reasonable doubt for offence punishable under Section 10 of
POCSO Act and proved the charge with cogent evidence and materials.
21.This Court independently comes to the conclusion that the
appellant has committed the offence under Section 10 of POCSO Act and
therefore, the prosecution has established its case beyond all reasonable
doubt. 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.
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22.Accordingly, this Criminal Appeal is dismissed and the
judgment of conviction and sentence passed by the trial Court is
confirmed. The trial Court is directed to secure the appellant to undergo
the sentence, if he is outside.
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.243 of 2020
P.VELMURUGAN, J.
vv2
Crl.A.No.243 of 2020
04.03.2021
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