Madras High Court
Nagesh vs State Represented By on 5 March, 2021
Crl.A.No.531 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.03.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.531 of 2020 and
Crl.M.P.No.8671 of 2020
Nagesh .. Appellant
.Vs.
State Represented by
Inspector of Police,
All Women Police Station,
Hosur, Krishnagiri District. .. Respondent
Criminal Appeal filed under Section 374 (2) of the Code of
Criminal Procedure to set aside the conviction and sentence imposed on
the Appellant by the learned Sessions Judge, Fast Track Mahila Court,
Krishnagiri, Krishnagiri District in Spl.S.C.No.28 of 2018 dated
17.12.2019.
For Appellant : Mr.S.Suresh
For Respondent : Mr.R.Suryaprakash
Government Advocate
1/18
Crl.A.No.531 of 2020
JUDGMENT
This Criminal Appeal has been filed, challenging the conviction
and sentence imposed on the appellant by Judgment dated 17.12.2019
passed in Spl.S.C.No.28/2018 by the learned Sessions Judge, Fast Track
Mahila Court, Krishnagiri.
2.The respondent police has initially registered a case in Crime
No.5 of 2017 against the accused for the offences punishable under
Sections 3 r/w 4 & 5 (l)(m)(n) r/w 6 of Protection of Children from
Sexual Offences Act, 2012 (in short POCSO Act) and later on, altered
the same into Sections 5 (l) r/w 6 and 5 (l)(m)(n)(u) r/w 6 and 9 (m)(n)
r/w 10, Section 11 (v) of POCSO Act & 506 (i) I.P.C. The appellant is
shown as second accused in the said crime number. After investigation,
a charge sheet was laid and the same was taken on file by the learned
Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri
District in Spl.S.C.No.28 of 2018 for the offences under Sections 5
(l)(m)(n)(u) r/w 6 of POCSO Act 2012, 506(i) IPC and Sections 9 (m)(n)
r/w 10 of POCSO Act 2012 as against the first accused and for the
offences punishable under Sections 5 (1) r/w 6 of POCSO Act 2012
Crl.A.No.531 of 2020
against the second accused.
3.After completing the formalities, the learned Sessions Judge
framed charges against the accused as stated above, and after trial, the 1st
accused was found guilty for the offences under Sections 5(1) r/w 6, 5(n)
r/w.6, 9(l) r/w.10, 9(n) r/w.10 of POCSO Act 2012 and Section 506(i)
IPC and the trial Court convicted him for the above said offences and
sentenced him to undergo various terms of imprisonment, the maximum
being 12 years Rigorous Imprisonment and total fine of Rs.31,000/- and
also imposed default sentence, the 2nd accused/appellant was found guilty
of the offence under Section 5(1) r/w 6 of POCSO Act 2012 and he was
convicted and sentenced to undergo 12 years rigorous imprisonment and
to pay a fine of Rs.10,000/-, in default, to undergo one year rigorous
imprisonment.
4. Aggrieved over the same, the second accused, namely the
appellant herein, is before this Court by filing this Appeal.
5. Learned counsel for the appellant would submit that victim girl
Crl.A.No.531 of 2020
has not spoken anything adverse against the appellant herein and the
prosecution has not produced incriminating circumstances against this
appellant and the teacher who is said to have informed the Child Welfare
Officer about the alleged occurrence, had not named the appellant herein.
She has stated that the victim girl had told the names of the persons who
assaulted her and therefore, the evidence of P.W.3- Gomathi, teacher
has not supported the case of the prosecution. He would further submit
that the Headmaster of the school has not spoken anything about the
occurrence and therefore, the evidence of P.W.2-victim girl is highly
flimsy and artificial in nature. He would also submit that P.W.2- victim
girl in her examination has admitted that till the age of 12, there was no
sexual assault by the first accused and further she has also admitted that
she was advised by the first accused that she should not go along with
boys, while attending school and she also admits that she was angry with
the first accused regarding this issue. He would further contend that the
victim girl also admitted that Panchayat Chairman caught her while
roaming with some boys and handed over to her parents.
5. It is further contended by the learned counsel for the appellant
Crl.A.No.531 of 2020
that the deposition of the victim girl is very vague and ambiguous in
nature and it does not contain proper allegations and does not inspire
confidence, as the same is artificial and exaggerated in nature. He would
further submit that the evidence of P.W.9 and P.W.10 - the Doctors who
examined the victim girl and gave treatment to her shows that there was
no traces of sexual assault on the victim girl and there was no injury or
signs of sexual violence and further the Doctor opined that the victim is
sexually active and opined that it may be caused due to riding bicycle
and active participation in sports. He would further submit that though
the victim has stated that she informed one Anusuya, the said Anusuya
was not examined by the prosecution. He would further submit that the
neighbours, who are independent witnesses were not examined in this
case. It is also submitted that the alleged recovery and arrest seem to be
artificial in nature, which was not supported by prosecution witnesses.
The learned Counsel would vehemently contend that the victim girl has
not spoken anything about the appellant herein and the allegation is only
against the first accused and therefore, there is no material to connect the
present appellant with the alleged crime. He would further submit that
there are material contradictions in the prosecution witnesses and the
Crl.A.No.531 of 2020
learned trial Judge has failed to appreciate the evidence and erroneously
convicted the appellant/second accused which warrants interference.
6. Per contra, the learned Government Advocate (Crl.side) would
submit that the victim child is not the biological daughter of the first
accused and she is his foster daughter. He would further submit that the
first accused had sexually assaulted the victim child from third standard.
He would also submit when A1 was working in Brick Kiln, he used to
take her and have sexual intercourse with her and subsequently, he had
also committed penetrative sexual assault on the victim girl in his house
during night hours. He would further submit that when there was
repeated penetrative sexual assault on the victim girl, she informed to her
sister Anusuya. When this appellant who is the relative of the first
accused came to know about the same, he took the victim girl to the
mango groove and committed penetrative sexual assault on her. He
would further submit that the victim girl was studying seventh standard
and she could not concentrate on her studies and was so dull in the class,
for which the class teacher enquired her, then the victim girl revealed
about the said facts and thereafter, the teacher informed to the District
Crl.A.No.531 of 2020
Child Welfare Committee, who intervened in the matter and secured the
victim girl, recorded her statement and lodged a complaint against the
accused. Subsequently the victim girl was also produced before the
Doctor- P.W.9 who made entry in the Accident Register and
subsequently referred to P.W.10-Doctor for medical examination, she
also examined the victim girl and opined that hymen was not intact
though there was no injury and she was subjected to penetrative sexual
assault. He would further submit that the victim was also produced
before the learned Magistrate for recording the statement under Section
164 Cr.P.C. and the learned Magistrate also recorded the statement and
subsequently, the victim girl was examined as P.W.2 during trial and she
has narrated that the first accused and the present appellant had
committed penetrative sexual assaults on her and therefore, there is
specific allegation against this appellant.
7. The learned Government Advocate (Crl.side) would further also
submit that P.W.1 – the President of District Welfare Committee,
Hosur, had spoken about the assault committed by the first appellant.
P.W.3 – the teacher who was working in the School of the victim girl
Crl.A.No.531 of 2020
stated that the victim girl had told her and subsequently she informed the
same to the Child Welfare Committee. He would further submit that the
statement recorded under Section 164 Cr.P.C. clearly proved the case of
the prosecution beyond all reasonable doubt and therefore, the trial Court
has rightly convicted the appellant as stated above. He would also
submit that there is no merit in this appeal and therefore, the same is
liable to be dismissed.
8. Heard both sides. Perused the records.
9. The case of the prosecution is that P.W.2 -victim girl is the
foster daughter of the first accused and the first accused alleged to have
sexually assaulted the victim girl when she was studying from third
standard. Further, when A1 was working in Brick Kiln, he used to take
her with him and have sexual intercourse with her and subsequently, he
had also committed penetrative sexual assault on the victim girl in his
house during night hours. When there was repeated penetrative sexual
assault, the victim girl informed the same to her sister Anusuya and
when the appellant, who is the relative of A1 came to know about the
Crl.A.No.531 of 2020
same, he also took the victim girl to the mango groove and committed
penetrative sexual assault on her. Further, when the victim girl had not
concentrated on her studies, P.W.3-the teacher enquired the victim girl
about the same and at that time, she revealed the entire facts to her.
Thereafter, P.W.3 informed to the Child Welfare Committee, who on
enquiry lodged a complaint against the accused. After investigation, the
respondent police laid a charge sheet against the accused and the trial
Court framed charges against the accused as stated above. When
questioned, the accused pleaded “not guilty”.
10. In order to prove the case of the prosecution before the trial
Court, on the side of the prosecution as many as 17 witnesses were
examined as P.W.1 to P.W.17 and 32 documents were marked as Exs.P1
to P32 and no material object was exhibited.
11. After completing the examination of the prosecution witnesses,
all the incriminating circumstances culled out from the evidence of
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
Crl.A.No.531 of 2020
witness was examined and no documentary evidence was produced.
12.After considering the evidence on record and after hearing
arguments advanced on either side, the learned Special Judge, by
judgment dated 17.12.2019 in Spl.S.C.No.28 of 2018, convicted and
sentenced the 1st accused and the appellant/2nd accused as stated supra.
13. Challenging the judgment of conviction and sentence, the 2nd
accused has preferred the present appeal before this Court.
14. This Court, being an Appellate Court, is final court of fact finding,
which has to necessarily re-appreciate the entire evidence and give an
independent finding.
15. The specific case of the prosecution is that the victim girl is the
foster daughter of A1 and she was subjected to penetrative sexual
assault by the first accused right when she was studying from the third
standard. Further, the first accused committed repeated sexual assault and
also harassed her several times. The appellant being the son-in-law of
Crl.A.No.531 of 2020
the first accused, after coming to know of the said fact he also committed
penetrative sexual assault on her by taking her to mango groove. At one
point of time, the victim girl informed to P.W.3 school teacher, who in
turn informed to the District Child Welfare Committee. The said District
Child Welfare Committee initiated enquiry and after confirming the said
incident, lodged the complaint. After investigation, Charge Sheet was
laid against the accused and during trial the victim girl was examined as
P.W.2 and on a careful perusal of the deposition, it is found that the
victim girl has also spoken about the involvement of the appellant in this
case.
16. When she was produced before Judicial Magistrate for
recording statement under Section 164 Cr.P.C., she has stated that the
appellant also had committed aggravated penetrative sexual assault on
her and the same was marked as Ex.P8. A reading of Ex.P8 clearly
shows that the appellant also had committed the aggravated penetrative
sexual assault on the victim girl and that even at the time of giving
complaint the age of the victim girl was 13 years. From the medical
certificate and the school certificate, the prosecution has proved that the
Crl.A.No.531 of 2020
victim child not completed age of 18 years and therefore, she is a child
under the definition of Section 2(i)(d) of POCSO Act. Doctor Kalaiselvi
was examined as P.W.9. She deposed that she conducted medical
examination on the victim girl and also made entry in the accident
register and thereafter, she referred her to the Doctor- P.W.10, who
conducted medical examination on the victim girl and clearly stated that
the hymen was not intact and the victim girl was subjected to sexual
assault and further stated that she found the victim girl sexually active.
P.W.3- the teacher has clearly stated in the academic year 2016-2017,
one day she noted that victim was not concentrating on her studies and
appears to be dull. Therefore, she enquired the victim girl and found
that she was subjected to sexual assault, but however she has not spoken
about the involvement of this appellant and therefore, the evidence of
P.W.3 was treated as hostile. However, she has stated that she enquired
the victim girl and immediately informed to the District Child welfare
committee. P.W.5- the member of the District Child Welfare Committee
has stated that P.W.3 informed about the harassment caused to the victim
on 07.02.2017 and after completing the formalities P.W.1- Chairman of
the District Welfare Committee made a complaint against the accused
Crl.A.No.531 of 2020
persons.
17.Though the learned counsel for the appellant contended that
since the P.W.1-Chairman of the District Child Welfare Committee told
that since her foster father warned the victim girl and further the
appellant is also a relative, he foisted a false complaint against the
accused with inordinate delay, the same cannot be a ground to disbelieve
the evidence of P.W.2-victim girl. Further, the learned counsel for the
appellant contended that in the complaint, it was stated that from third
standard, the victim was subjected to sexual assault, but during the cross
examination she has stated only from the age of 12, she was subjected to
sexual assault.
18.From the evidence of P.W.10-Doctor, it is clearly seen that she
was subjected to repeated sexual assault and the evidence of P.W.13-
Doctor who conducted the potency test and issued Ex.P20 clearly shows
that the appellant was capable of having the sexual intercourse.
Therefore, from the evidence of P.W.1, P.W.2, P.W.4, P.W.5, P.W.9 and
P.W.10 and from Ex.P8 statement of the victim girl recorded under
Crl.A.No.531 of 2020
Section 164 Cr.P.C, Ex.P12-Accident Register and Ex.P15-Medical
certificate of the victim girl, this Court finds that the appellant has
committed the offence of aggravated penetrative sexual assault on the
victim. The trial Court has rightly appreciated the entire evidence and
convicted the accused.
19.Though the learned counsel for the appellant vehemently
contended that the sister of the victim girl to whom the victim has
informed about the action of the first appellant, was not examined as
witness and even the evidence of school teachers P.W.3, P.W.6,P.W.7
and P.W.12 had not supported the case of the prosecution, P.W.3 on
coming to know of the sexual assault undergone by the victim girl, she
immediately informed to the District Child Welfare Committee, however
from the evidence of Doctors P.W.9 and P.W.10, it is obvious that she
was subjected to sexual assault which was seen from the medical
certificate and further, as per school certificate, she has not completed the
age of 18 years and therefore she is a child under the definition of
'POCSO' Act. Further, when she was produced before the learned
Judicial Magistrate, a statement was recorded from her under Section 164
of Cr.P.C. The evidence of the victim girl would corroborate with the
Crl.A.No.531 of 2020
evidence of P.W.1. P.W.1 who was the Chairman of the District Child
Welfare Officer has elaborately spoken about how he traced about the
incident and they need not create any document adversely against the
accused persons. Evidence of hostile witness need not be discarded in
totality but the portion of evidence, in chief which supports the
prosecution can be taken into consideration. Further, if the evidence of
sole witness is cogent, credible and trustworthy, conviction is
permissible.
20. On a reading of the evidence of the victim girl, this Court does
not find any reason to discard the evidence of the victim girl as she has
clearly narrated the events. There is no reason to disbelieve the evidence
of the victim girl. Therefore, this Court finds that the prosecution has
proved its case beyond all reasonable doubt with cogent evidence and
though there are discrepancies in the evidence of prosecution witnesses
which are pointed out by the learned counsel for the appellant, are not
material contradictions and only minor contradictions which will not go
to the root of the prosecution case. However the defect in investigation
is not the ground to disbelieve the evidence of victim girl. In cases of
Crl.A.No.531 of 2020
this nature presence of eye witnesses are mostly improbable. If the
evidence of sole witness is cogent, credible and trustworthy, conviction
is permissible.
21.Further, on a reading of the entire oral and documentary
evidence, this Court finds that the appellant also has committed
aggravated penetrative sexual assault on the victim girl. Therefore, the
conviction and sentence recorded by the trial court does not warrant
interference.
22. In view of the same, there is no merit in the Appeal and the
same is, therefore, liable to be dismissed and accordingly dismissed. The
judgment of conviction and sentence passed by the trial Court is
confirmed. Consequently, connected Miscellaneous petition is closed.
05.03.2021
arr
Index: Yes/No
Internet: Yes/No
Crl.A.No.531 of 2020
To
1. The Sessions Judge, Fast Track Mahila Court, Krishnagiri,
Krishnagiri District.
2.Inspector of Police,
All Women Police Station,
Hosur,Krishnagiri District.
3. The Public Prosecutor,
Madras High Court.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, immediately
High Court, Madras. | to the trial Court
Crl.A.No.531 of 2020
P.VELMURUGAN,.J.
arr
CRL.A.No.531 of 2020
05.03.2021
