Madras High Court
R.Gokul vs The State Rep. By on 4 March, 2021
Crl.A.No.104 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.104 of 2021 &
Crl.M.P.No.2623 of 2021
R.Gokul ... Appellant
Vs.
The State Rep. by:
The Deputy Superintendent of Police,
Namakkal A WPS,
Namakkal District. ... Respondent
(Crime No.3 of 2018)
PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to call for the
records and set aside the Judgment and sentence passed by the learned Sessions
Judge (Fast Track Mahila) Judge, Namakkal in Special C.C.No.26 of 2018, dated
04.12.2020.
For Appellant : Mr.P.Wellington
For Respondent : Mr.R.Suryaprakash
Government Advocate
1/17
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Crl.A.No.104 of 2021
JUDGMENT
By consent of the learned counsel on either side, the Criminal Appeal is
taken up for final disposal, at the admission stage itself.
2. This Criminal Appeal has been filed against the Judgment of Conviction
and Sentence, dated 04.12.2020 made in Special S.C.No.26 of 2018 on the file of
the learned Sessions Judge, Fast Track Mahila Court, Namakkal.
3. The respondent-Police registered a case against the appellant in Crime
No.19 of 2018, for the offence punishable under Section 363 of IPC and 5 (l) r/w
6 of Protection of Children from Sexual Offences Act, 2012 (For brevity "the
POCSO Act) and Section 3 (2) (V), 3 (1) (r) SC/ST Prevention of Atrocities
Amendment Act, 2015. After the investigation, laid a charge sheet before the
learned Sessions Judge, Fas Track Mahila Court, Namakkal. On appearance of
the appellant, the provisions of Section 207 of Cr.P.C., were complied with and
the trial Court framed charges for the offence, as referred above, and
conducted the trial.
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Crl.A.No.104 of 2021
4. During trial, in order to prove the case of the prosecution, 20
witnesses were examined as P.W.1 to P.W.20 and 15 documents were marked as
Exs.P1 to P15 and no material object was exhibited. After completion of the
examination of the prosecution witnesses, the incriminating circumstances
culled out from the evidence of the prosecution witnesses were put before the
appellant, the same was denied as false and on the side of the defence, one
Tr.Syedh Kadhar was examined as D.W.1 and birth certificate of the accused
was marked as Ex.D1. After considering the evidence on record and hearing on
either side, the learned Sessions Judge, Mahila Court, Namakkal, by Judgment
dated 04.02.2020, convicted the appellant and sentenced him to undergo
Rigorous Imprisonment of 3 years and imposed a fine of Rs.1,000/-, in default,
to undergo further period of six months Simple Imprisonment for the offence
under Section 363 of IPC; and sentenced him to undergo Rigorous Imprisonment
of ten years and imposed a fine of Rs.1,000/-, in default, to undergo further
period of six months Simple Imprisonment for the offence under Section 5 (l)
r/w 6 of POCSO Act and acquitted the appellant for the offence under Sections
3 (1) (r) and 3 (2) (V) of SC/ST Prevention of Atrocities Amendment Act, 2015.
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Crl.A.No.104 of 2021
5. Challenging the said Judgment and Conviction, the accused /appellant
has preferred the present Appeal.
6. The learned counsel for the appellant would submit that the appellant
was a minor and he had not completed 18 years on the date of occurrence viz.,
03.08.2017 and he was a juvenile at the time of alleged offence and therefore,
he could tried only by the Juvenile Justice Board. The doctor, who examined
the victim girl was examined as P.W.13 and during her cross-examination has
clearly stated that the victim's hymen may be ruptured due to some other
reasons, and however, the learned Sessions Judge failed to consider the said
aspect. It is further submitted that the prosecution had failed to examine the
workers of the lodge, where the victim girl and appellant had alleged to have
stayed for two days, and also not seized the lodge register and copy of the cash
receipt to establish the case, which creates a doubt against the prosecution
case. In this case, there is no eyewitness and there are material contradictions
in the the statement recorded under Section 164 of Cr.P.C, and also the
evidence of the victim girl. During the statement recorded under Section 164 of
Cr.P.C., the victim girl has not stated that there was penetrative sexual assault
and subsequently, during evidence, she deposed about penetrative sexual
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Crl.A.No.104 of 2021
assault, by improvisation. There was a delay in filing the complaint and also the
earlier complaint said to have given by the complainant was suppressed by the
respondent-Police and the respondent-Police has not explained as to what
happened with regard to the first complaint. Both the appellant and the victim
girl are in the same age group and they loved each other and there is no proof
to show that the appellant had sexual intercourse with the victim girl. Even
according to the victim girl, though she had initially refused to accept the love
proposal of the accused, subsequently, the victim girl started to love him and
both were roamed here and there, however, the learned Judge, failed to
consider the evidence of the victim girl and wrongly convicted the appellant for
the offence under Section 363 of IPC. More so, at the time of first occurrence,
viz., on 03.08.2017, the appellant himself has not attained the age of 18 years
and most probably, the victim girl awaited for the appellant to attain the age
of 18 years, for making Ex.P1-complaint. The learned Sessions Judge, failed to
appreciate the evidence and also not considered the date of birth of the
appellant, however erroneously convicted the appellant for the offence under
Section 5 (l) r/w 6 of POCSO Act and however, rightly acquitted the appellant
for the offence under Sections 3 (1) (r) and 3 (2) (V) of SC/ST Prevention of
Atrocities Amendment Act, 2015.
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Crl.A.No.104 of 2021
7. The learned Government Advocate appearing for the respondent-Police
would submit that the date of birth of the appellant is 03.10.1999 and the date
of last occurrence is 10.12.2017 and as such, at the time of last occurrence, the
accused has completed 18 years of age and attained majority. The date of
birth of the victim girl is 24.06.2000 and date of last occurrence is 10.12.2017,
and as such, the victim girl would fall under the definition of 2 1(d) of POCSO
Act. It is further submitted that the appellant took the victim girl on several
occasions and lastly on 09.12.2017 and 10.12.2017, to his residence, when no
one was available in his house and had undergone penetrative sexual intercourse
on two days. The doctor, who examined the victim girl has clearly adduced in
her evidence that the hymen of the victim girl was not intact and vagina
admitted two fingers and she has opined that the victim girl was subjected to
sexual intercourse and also issued Ex.P7 certificate to that effect. Though the
victim girl has not stated about the penetrative sexual intercourse during her
statement which was recorded under Section 164 of Cr.P.C. by the learned
Magistrate, however, during evidence, she has clearly stated that the appellant
took the victim girl to Vinayagar Temple and he kept Kumkumam on her head
and promised to marry her, and had undergone sexual intercourse with her and
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Crl.A.No.104 of 2021
however, subsequently, the appellant refused to marry her. As such, from the
evidence of P.W.1, the victim girl and the evidence of P.W.13-doctor and also
the birth certificate of the victim girl, would reveal that the prosecution has
proved its case beyond reasonable doubt and the learned Sessions Judge, rightly
convicted the appellant for the offence under Section Section 363 of IPC and
also for the offence under Section 5 (l) r/w 6 of POCSO Act. Therefore, there is
no merit in the appeal and the same is liable to be dismissed.
8. Heard the learned counsel on either side and perused the materials
placed on record.
9. The case of the prosecution is that on 03.08.2017, the appellant
kidnapped the victim girl, aged 17 years from her lawful guardianship of her
grandmother and seducing her and took her to Thathagiri Murugan Temple in
Sendamangalam and before the Vinayagar Temple the accused kept kumkumam
on the head of the victim girl and promised to marry her and had the intention
to have sexual intercourse with her. On 07.08.2017, the appellant took the
victim girl to a hotel room in Erode and committed penetrative sexual assault on
the victim girl several time without the will or consent of the victim girl
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Crl.A.No.104 of 2021
seducing her that he would marry her and subsequently on 09.10.2017, the
accused again took her to his house stating that his mother wants to see her,
but no one was present in the house of the accused and during night hour, the
appellant had forcible sexual intercourse with her and on 10.10.2017, the victim
girl returned to her house. Thereafter, the appellant did not come for work and
when the victim girl tried to contact the accused on his mobile, it was switched
off and on 26.02.2018, she saw the accused standing in Namakkal bus stand and
she went near him and asked him to take her home, the appellant stated that
the victim girl belongs to Scheduled Caste and how he could marry her and his
parents would not allow her into their house and she has not completed the age
of 18 years and she would not do anything, that if she gives any trouble he
would kill her and therefore, she filed Ex.P1-complaint before the respondent-
Police. Subsequently the Investigating Officer, investigated the matter and laid
a charge sheet before the learned Sessions Judge, Fast Track Mahila Court,
Namakkal.
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Crl.A.No.104 of 2021
10. The appellate Court, as a fact finding Court has to re-appreciate the
entire evidence and come to the independent finding, as to whether, the
appellant has committed the charged offences and whether the prosecution has
proved its case beyond reasonable doubt.
11. During the admission stage itself, the learned counsel for the
appellant has produced all the depositions and also relevant documents and
elaborately argued the matter. This Court, has carefully gone through the
entire materials, including the Judgment rendered by the learned Sessions
Judge, Fast Track Mahila Court, Namakkal.
12. A specific allegation made by the victim girl against the appellant is
that they loved each other and the appellant made the victim girl to believe
that he would marry her and thereafter, both had sexual intercourse.
Subsequently, appellant stated that the victim girl belongs to Scheduled Caste
and his parents would not allow her into their house and he denied to marry her
and therefore, she was constrained to file Ex.P1-complaint against the
appellant.
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Crl.A.No.104 of 2021
13. The victim was also produced before the Medical Officer, and the
Doctor, who examined the victim was examined as P.W.13 and she had clearly
deposed that on examination of the victim girl, she found that her hymen was
not intact and she was subjected to sexual intercourse and issued Ex.P7
Certificate.
14. Thereafter, the victim girl was produced before the learned
Magistrate for recording the statement under Section 164 (5) of Cr.P.C. Before
the learned Magistrate, though the victim girl has not stated anything about
penetrative sexual assault, during her evidence, when she was examined as
P.W.1, has clearly stated that on 03.08.2017, the appellant accepted the victim
as his wife by keeping kumkumam on her forehead at Thatagiri Murugan Temple
and on 07.08.2017, the accused took her to lodge at around 11 a.m. in spite of
the objection raised by P.W.1-victim girl, the appellant committed penetrative
sexual assault. Thereafter on 09.10.2017, the appellant took her to his house
stating that his mother wants to see her, but however, no one was present in
the appellant's house and on 09.10.2017, during night hours, the appellant had
forcible sexual intercourse with her.
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Crl.A.No.104 of 2021
15. The date of birth of the victim girl is 24.06.2000 and date of last
occurrence is on 10.12.2017, and therefore, at the time of last date of
occurrence, she was aged about 17 years and not completed 18 years and as
such, the victim girl would fall under the definition of 2 (1)(d) of POCSO Act.
The date of birth of the appellant is 03.10.1999 and the date of last occurrence
is on 10.12.2017 and as such, at the time of last occurrence, the accused has
completed 18 years of age and attained majority. In cases of this
nature presence eyewitnesses are mostly improbable. In the case on hand, as
the appellant has designed and preplanned and moved with the victim girl with
sexual intention. Though initially, the victim girl has not accepted the love
proposal made by the appellant, thereafter, she has accepted under the pretext
that the appellant would marry her and therefore, they went to extreme stage
of sexual intercourse. However, it is settled principles of law, consent given
below 18 years is not a valid consent, especially, under the POCSO Act, there is
no exception, and the main object of the POCSO Act is, if a child below 18
years, subjected to sexual harassment, shall be punished under the POCSO Act.
16. Therefore, the contention of the learned counsel for the appellant
that appellant should be tried before only Juvenile Justice Board, is not
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Crl.A.No.104 of 2021
acceptable, because, at the time of initial occurrence, viz., 03.08.2017 though
the appellant was not a major, he was only 17 years and 10 months, but
however, at the time of last occurrence viz., 09.10.2017 and 10.10.2017, the
appellant attained majority and completed 18 years of age, and therefore, he
could not be tried by the Juvenile Justice Board.
17. As per the prosecution, on the date of last occurrence viz.,
09.10.2017 and on 10.10.2017, the age of the appellant is 19 years and the age
of the victim girl is only 17 years and in order to substantiate the age, they have
also produced the birth certificate and perusal of the same, the learned Sessions
Judge has rightly come to the conclusion that the victim girl would fall under
the definition of 2 1(d) of POCSO Act the appellant has already attained
majority.
18. Though the learned counsel for the appellant vehemently contended
that there is no eyewitness, in this case, this Court is of the view that there was
no reason to discard the evidence of P.W.1. Normally, corroboration of witness
is necessary, whereas, offence under POCSO Act, the evidence of the victim girl
is sufficient and the Court cannot expect the eyewitness, since it is not the case
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Crl.A.No.104 of 2021
of the prosecution that the offence had taken place in the public place or in the
presence of some other eye witness. Therefore, there is no reason to discard
or disbelieve the evidence of P.W.1 and there is no reason to doubt trustworthy
of the victim girl. If the evidence of sole witness is cogent, credible and
trustworthy, conviction is permissible.
19. No doubt, from the evidence of P.W.1-victim girl and the evidence of
P.W.13-doctor and Ex.P7-certificate, the prosecution has proved its case beyond
reasonable doubt for the offence under Section 5 (l) r/w 6 of POCSO Act,
committed by the appellant. Though there is a presumption under Section 29 of
POCSO Act, and once the victim girl has stated that she was subjected to
penetrative sexual intercourse, that was made by the appellant, it is for the
appellant to rebut the presumption in the manner known to law. Therefore, this
Court has come to the conclusion that the learned Sessions Judge, rightly
appreciating the entire evidence of the prosecution witnesses, convicted the
appellant for the offence under Section Section 5 (l) r/w 6 of POCSO Act.
20. However, a reading of the entire materials, even as per the evidence
of the victim girl, though the victim girl initially refused to accept the love
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Crl.A.No.104 of 2021
proposal of the appellant, later changed her mind and accepted his proposal and
they loved each other, and on 07.08.2017, the accused took her to lodge and on
09.10.2017, the accused took her to his residence and they had undergone
penetrative sexual intercourse. Therefore, there is no material to show that the
appellant removed the custody of the victim girl from the lawful guardian
without their consent. No doubt, if minor girl was taken without the consent of
the parents or the custody of the lawful guardian, Section 363 of IPC would
attract, however, in the peculiar case, the victim girl fully knowing the
consequences and also moved freely with the appellant and had gone to his
house, where also they had sexual intercourse and therefore, Section 363 of IPC
would not attract in this case and the conviction and sentence passed by the
learned Sessions Judge for the offence punishable under Section 363 of IPC is
liable to be set-aside.
21. Accordingly, the conviction and sentence imposed by the learned
Sessions Judge, Namakkal for the offence under Section 363 of IPC is set aside.
The conviction and sentence passed under Section 5 (l) r/w 6 of POCSO Act, is
confirmed.
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Crl.A.No.104 of 2021
22. In the result, the Criminal Appeal is dismissed with the above
modification.
04.03.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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Crl.A.No.104 of 2021
To
1. The Sessions Judge,
(Fast Track Mahila Court,
Namakkal.
2. The Deputy Superintendent of Police,
Namakkal A WPS,
Namakkal District.
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Crl.A.No.104 of 2021
P.VELMURUGAN, J.
rns
Crl.A.No.104 of 2021 &
Crl.M.P.No.2623 of 2021
04.03.2021
https://www.mhc.tn.gov.in/judis/
