Madras High Court
Chinnamarimuthu vs State Represented By on 5 March, 2021
Crl.A.No.596 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2021
CORAM :
THE HONOURABLE MR. JUSTICE P. VELMURUGAN
Crl.A.No.596 of 2019
Chinnamarimuthu ... Appellant
Vs.
State represented by
The Inspector of Police,
All Women Police Station,
Kangeyam. ... Respondent
Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., praying
to set aside the judgment of conviction and sentence dated
22.01.2019, passed by the learned Judge, Fast Track Mahila Court,
Tiruppur in Spl. S.C.No.14 of 2016.
For Appellant : Mr.Durai Kannan
Legal Aid Counsel
For Respondent : Mr.R.Suryaprakash
Government Advocate (Crl. Side)
JUDGMENT
This Criminal Appeal has been filed against the conviction
and sentence passed by the learned Judge, Fast Track Mahila Court,
Tiruppur in Spl.S.C.No.14 of 2016 dated 22.01.2019.
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2. Heard Mr.Durai Kannan, learned Legal Aid Counsel for
the appellant and Mr.R.Suryaprakash, learned Government Advocate
appearing on behalf of the respondent police.
3. The respondent police had registered a case in Cr.No.12
of 2015 against the accused for the offences under Sections 365 &
366 (A) IPC. After completing investigation, the charges were
framed for the offences under Section 363 IPC and under Sections
5(l) r/w. 6, 5(n) r/w.6 of the Protection of Children from Sexual
Offences Act, 2012 against the first accused and under Sections 16
r/w. 17 of the Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as “POCSO Act”) against the present
appellant/second accused.
4. After completing the investigation, the respondent Police
laid a charge-sheet before the Fast Track Mahila Court, Tiruppur.
Since the offence falls under POCSO Act, 2012, the learned Judge has
taken cognizance of the charge-sheet in Spl.S.C.No.14 of 2016.
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5. After completing the formalities, the learned Judge
framed charges against the present appellant for the offences
punishable under Sections 16 r/w. 17 of the POCSO Act.
6. After trial, the learned Judge, Fast Track Mahila Court,
Tiruppur convicted the appellant herein for the offences punishable
under Sections 16 r/w. 17 of the POCSO Act and sentenced him to
undergo Rigorous Imprisonment for a period of 10 years and to pay a
fine of Rs.15,000/-, in default of payment of fine to undergo Rigorous
Imprisonment for a further period of 2 years.
7. After framing charges and in order to prove the case on
the side of the prosecution, 13 witnesses were examined and 21
documents were marked and material object M.O.1 was exhibited.
8. After completing the prosecution evidence, the
incriminating circumstances culled out from the prosecution
witnesses were put before the appellant. He denied the same as
false. However, on the side of the appellant, no oral or documentary
evidence was produced.
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9. After considering the evidence on record and hearing on
either side, the learned Judge, by judgment dated 22.01.2019 in Spl.
S.C.No.14 of 2016, convicted the first accused for the offences under
Section 363 IPC and under Sections 5(l) r/w. 6 of the POCSO Act and
sentenced him to undergo 7 years rigorous imprisonment along with
a fine of Rs.5,000/- in default of payment of fine, to undergo a
further period of one year for the offence under 363 IPC and
sentenced him to undergo 10 years rigorous imprisonment along with
fine of Rs.15,000/- in default of payment of fine to undergo rigorous
imprisonment for a further period of 2 years for the offence under
Section 5(l) r/w. 6 of the POCSO Act and convicted the present
appellant/ second accused for the offences under Sections 16 r/w.17
of the POCSO Act and sentenced him to undergo 10 years rigorous
imprisonment along with a fine of Rs.15,000/- in default of payment
of fine to undergo rigorous imprisonment for a further period of 2
years.
10. Challenging the said conviction and sentence of 10
years rigorous imprisonment with a fine of Rs.15,000/-, in default of
payment of fine to undergo 2 years rigorous imprisonment passed by
the trial Court, the second accused has filed the present appeal
before this Court.
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11. The learned counsel for the appellant would submit that
the appellant is not a prime accused in this case and the charges
framed against him are for the offences under Sections 16 r/w. 17 of
the POCSO Act. The appellant has nothing to do with the alleged
offences and no witnesses have spoken about the specific overt act
against this appellant, except the victim girl in the statement
recorded under Section 164 Cr.P.C., has spoken about him. In the
164 Cr.P.C., statement also, she has not stated anything against the
appellant but stated that the first accused has introduced the second
accused/appellant herein. Whereas during chief examination, she has
spoken about the appellant which is only a contradiction. When the
victim girl during the statement recorded under 164 Cr.P.C. has not
spoken anything wrong about the appellant and subsequently she
has spoken about the appellant in the chief examination to the effect
that he has facilitated the first accused for commission of the offence
and therefore, the same seems to be material contradictions. Based
on the sole statement of the victim girl against the appellant which is
a material contradictions cannot be considered and also the
allegations levelled against the appellant does not falls under Section
16 of the POCSO Act, it may either be under Section 109 IPC or
under Section 29 of the POCSO Act. There is no mens-rea and the
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prosecution has not proved the appellant had mens rea and intended
to abet the victim or any inducement to commit the aforesaid
offences. Even arrest of the accused is doubtful and the place of
arrest has also not been established by the respondent police.
Therefore, the prosecution has foisted a false case against the
appellant. In support of his contentions, he has placed reliance on
the decision of the High Court of Bombay in the case of Asha Patil
Vs. The State of Maharastra reported in 2019 ALLMR (Cri) 4789
and has stated that the appellant has not committed any offences
under Sections 16 r/w 17 of the POCSO Act as he has not instigated
or committed any offence of abetment. Therefore, the decision
referred supra is squarely applicable to the present case on hand and
further, he has also relied upon the judgment of the High Court of
Uttarakhand at Nainital in the case of Anuradha Dalmia Vs. State
of Uttarakhand and others [Manu/UC/0256/2019].
12. Further, the learned counsel for the appellant submitted
that the prosecution has failed to prove that the appellant has
abetted for the offence committed by the first accused and therefore,
the learned Judge has failed to appreciate the evidence and also the
legal ingredients of Section 16 of the POCSO Act which has not been
made out in the case on hand and wrongly convicted and sentenced
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the present appellant equally to the prime accused and therefore, the
judgment of the trial Court as far as this appellant is concerned, is
liable to be set aside and the appellant should be acquitted.
13. The learned Government Advocate (Crl. Side) on the
other hand would submit that the age of the victim girl is only 14
years on the date of occurrence. When the victim girl went to the
school, the first accused took the victim girl from there with the
assistance of the second accused. Thereafter, the second accused
facilitated the first accused to stay with the victim girl in his room
and left for his work. The first accused had forceful sexual
intercourse with the victim girl. Based on the complaint given by the
victim's parents, police rescued the victim girl and arrested the
accused and the victim girl was produced before the learned Judicial
Magistrate, who recorded the statement under 164 Cr.P.C. Even at
that time, she had clearly stated that the first accused forcefully had
sexual intercourse with her and when she informed the same to the
appellant herein and asked him to threatened the first accused and
send her back to the house, he refused to do so. Further, during the
examination, she has clearly stated that the first accused after taking
the victim girl, the present appellant only facilitated them to stay in
his room and they stayed there and at that time, inspite of her
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resistance, the first accused had sexual intercourse with her and
when she informed the same to the present appellant and asked him
to make arrangements to send her to her parents' house, he refused
to do so. Therefore, the specific overt act against the appellant
herein falls under Explanation II of Section 16 of the POCSO Act and
therefore, the trial Court had rightly convicted the appellant. The
decisions referred to by the learned counsel for the appellant are not
applicable to the present case on hand. On considering the evidence,
it is obvious that she informed about the sexual assault made by the
first accused to the appellant but he has not taken any steps to her
complaint or questioned the first accused in this case. Even after the
victim girl had informed about the sexual assault made by the first
accused and requested the appellant to send her back to her parents,
he did not make any arrangements for her to return to her home. On
receiving the information about the occurrence, the case has been
registered by the police, he has not taken any steps either to produce
the victim girl before the police or hand over the victim to her
parents but he facilitated the first accused to abscond from the scene
of occurrence and hence, the decisions cited by the learned counsel
for the appellant are not applicable in the case on hand.
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14. Heard the learned counsel on either side and perused
the materials available on record.
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. Admittedly, the appellant herein is the second accused
in this case and the prime accused is the first accused. It is brought
to the notice of this Court that the first accused has not filed any
appeal. The appellant/second accused has been charged with the
offence that he has abetted the first accused to abduct the victim girl
and assisted the first accused to commit the offences under Sections
363 IPC and under Section 5(l) r/w. 6 of the POCSO Act and
therefore, the charge as against the present appellant is for
abetment for which reading of the evidence of P.W1/victim girl clearly
reveals that she has gone to school on the date of occurrence on
02.12.2015 at 9.00 a.m. and the first accused along with the
appellant herein took the victim girl. Since the victim girl has not
returned home, her parents gave complaint. After taking the victim
girl along with the first accused, the appellant had only made
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Crl.A.No.596 of 2019
arrangements for them to stay in the place of occurrence. During
their stay, the first accused had sexual intercourse with the victim
girl and when she informed the same to the appellant and asked him
to threaten the first accused and also to make arrangements to send
her back to her parents, the appellant refused to do so. Even after
receiving the information from the villager in regard to registration of
case by the police and they are tracing them, he facilitated the first
accused to escape from the scene of occurrence. Evidence of P.W.1
and also the statement recorded by the learned Judicial Magistrate
clearly states that when the appellant abetted the first accused to
abduct the victim girl near her school, she was only 14 years old for
which the prosecution marked Ex.P8/age certificate to prove her age.
From the evidences of P.W.1/victim girl and also the doctor, it is clear
that the victim girl has been subjected to sexual assault by the first
accused. Independent witnesses cannot be produced in the case of
this nature but however the prosecution has established their case
through victim girl, doctor and the proof of age certificate which
clearly establishes that the age of the victim girl is 14 years when
she was removed from the custody of the natural and lawful
guardian/parents. As per the evidence of P.W.1, the first accused
took the victim girl along with the present appellant. The present
appellant has made arrangements for their stay in his place and
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subsequently, when the victim girl informed him about sexual assault
by the first accused and requested to allow her to go home, he failed
to do so. Subsequently when he received information about
registration of case and search of police to arrest the accused, he
also made arrangements to escape the first accused from the scene
of occurrence. Therefore, the prosecution has clearly established
that the appellant has abetted the first accused to commit the
offence under Sections 363 IPC and under Sections 5(l) r/w. 6 of the
POCSO Act and therefore, the commission of the offence made by
this appellant would falls under Explanation II of Section 16 of the
POCSO Act. This Court also affirms the findings of the trial Court that
the appellant had committed the offence under Sections 16 r/w.17 of
the POCSO Act. Considering the facts and circumstances of the case,
the decisions referred to by the learned counsel for the appellant are
not applicable to the present case on hand. The facts and
circumstances narrated in the present case is entirely different and
there is no question of abetment by illegal omission or intentional
aid. In this, the victim girl has clearly stated that the first accused
took her near the school and the appellant only facilitated for their
stay in his place and left for night shift. Thereafter, on the next day
when the victim girl informed him regarding sexual assault made by
the first accused and sought his help to send her back to her parents
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but he failed to do so. Subsequently, after getting information about
registration of case, he also facilitated the first accused to escape
from the scene of occurrence. Though the learned counsel for the
appellant had contended that the appellant has no mens rea, it is
clear that if any abetment facilitated intentionally it would falls under
Section 16 of the POSCO Act. At the outset, it is necessary to
reproduce Explanation II of Section 16 of the POCSO Act, which
reads as follows:
“16. Abetment of an offence :- A
person abets an offence; or
...
Explanation II:- Whoever,
either prior to or at the time of
commission of an act, does anything in
order to facilitate the commission of that
act, and thereby facilitates the
commission thereof, is said to aid the
doing of that act. ...”
17. In this case, the appellant knew that the first accused
brought the victim girl, who was aged only about 14 years and if he
has no intention to facilitate the first accused, certainly, he would
have warned the first accused and would have not given any
accommodation. Even assuming that he innocently allowed them to
stay in his room and subsequently when the victim girl had informed
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him about the sexual assault of the first accused, he would have
taken steps to hand over the victim girl to the parents but he failed
to do so. After knowing about the complaint given by her parents, he
facilitated to escape the first accused from the scene occurrence.
The appellant with an intention facilitated the first accused to commit
the sexual assault which falls under Section 5(l) r/w. 6 of the POCSO
Act. Therefore, the decisions referred to by the appellant are not
applicable so far as Section 29 of the POCSO Act is concerned, which
is no doubt rebuttable. But in this case, the appellant has abetted
the first accused to commit the offences on the victim girl and also
made arrangements to the first accused to escape from the scene of
occurrence and the appellant has not rebutted the presumption to
commit such offence. Therefore, the trial Court has rightly convicted
the appellant for the offence under Sections 16 r/w.17 of the POCSO
Act for the offence of abetment. Under these circumstances, this
Court can safely come to the conclusion that the appellant has
committed the offence under Sections 16 r/w.17 of the POCSO Act
and therefore, the prosecution has established its case beyond
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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18. Accordingly, this Criminal Appeal is dismissed and the
judgment of conviction and sentence passed by the trial Court is
hereby confirmed. State Legal Services Authority is directed to pay
the remuneration to Mr.Duraikannan, the learned Legal Aid Counsel
as per Legal Aid Services Authority Rules.
05.03.2021
DP
To
1.The Fast Track Mahila Court,
Tiruppur.
2.The Inspector of Police,
All Women Police Station,
Kangeyam.
3.The Public Prosecutor,
High Court, Madras.
4.The Deputy Registrar | with a direction to send back
the (Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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Crl.A.No.596 of 2019
P. VELMURUGAN, J.
DP
Crl.A.No.596 of 2019
05.03.2021
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