Madras High Court
Manigandan vs State By Its on 5 March, 2021
Crl.A.No.431 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.03.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.431 of 2019
Manigandan .. Appellant
.Vs.
State by its
Sub Inspector of Police,
All Women Police Station,
Panruti, Cuddalore District,
Crime No.4 of 2016. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to set aside the conviction and sentence imposed upon the
appellant vide judgment dated 08.04.2019 in Spl.S.C.No.40 of 2017 on
the file of the Sessions Judge, Mahila Court, Cuddalore and acquit the
appellant and direct the trial Court to refund the fine amount.
For Appellant : Mr.I.Syed Sibghatulla
Legal Aid Counsel
For Respondent : Mr.R.Surya Prakash
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
08.04.2019 in Spl.S.C.No.40 of 2017 by the learned Sessions Judge
Mahila Court, Cuddalore.
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2.The case of the prosecution is that the appellant was in love with
the victim girl/P.W.2, who was a minor studying 11 th Standard. The
father of the victim girl was working in Salem and her mother is a house
wife. When the victim girl was studying 10th Standard, the appellant used
to follow her regularly in person and over phone and developed intimacy
with the victim girl. On 09.10.2015, when the victim girl's mother/P.W.1
went to hospital with her sister, the appellant came to the house of the
victim girl and knocked the rear side door. When the victim opened the
door and questioned the appellant, he informed her that he is going
abroad and he would be back only after three years, hence, he wanted to
talk to her and he tried to enter into the house. The victim girl refused
him to enter into the house and the appellant pulled her nighty forcibly
and pushed her on the floor and had sexual intercourse with her. When
P.W.1 mother of the victim girl knocked the door, none opened the door
and on seeing through the window, she was shocked that the appellant
was lying over the victim. She entered into the house and the appellant
ran away from that place. Thereafter, P.W.1 informed the said incident to
one Shanthi, who is the aunt of the appellant and also informed to the
mother and brother of the appellant. The brother (D.W.1) of the appellant
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assured that the marriage between the appellant and the victim girl would
be performed. Believing the said words, no complaint was lodged against
the appellant. On 04.04.2016, the victim girl's family came to know that
the marriage for the appellant was held with some other girl. Therefore,
on 05.04.2016, P.W.1 the mother of the victim girl lodged a complaint
(Ex.P1) against the appellant.
3.On receipt of the complaint, the respondent police registered a
case in Crime No.4 of 2016 against the appellant/accused for the offence
under Section 3 and punishable under Section 4 of The Protection of
Children from Sexual Offences Act, 2012 [hereafter 'POCSO Act' for the
sake of convenience]. After investigation, the respondent police filed a
charge sheet before the learned Sessions Judge, Mahila Court, Cuddalore
and the same was taken on file in Spl.S.C.No.40 of 2017. After
completing formalities, the trial Court framed the charges against the
appellant for the offence punishable under Section 4 of POCSO Act.
4.In order to prove the case of the prosecution before the trial
Court, on the side of the prosecution as many as 15 witnesses were
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examined as P.W.1 to P.W.15 and Exs.P1 to P12 were marked and no
material objects were marked. After completion of the prosecution side
evidence, incriminating circumstances culled out from the evidence of
prosecution witnesses were put against the appellant/accused under
Section 313 of Cr.P.C., wherein he denied all the incriminating
circumstances as false and pleaded not guilty. On the side of the defence,
one witness was examined as D.W.1 and no documentary evidence was
produced.
5.The Court below, after hearing the arguments advanced on either
side and also considering the materials available on record, found that the
accused/appellant is guilty and convicted for the offence under Section 4
of POCSO Act and sentenced to undergo rigorous imprisonment for a
period of ten years and to pay a fine of Rs.20,000/- and in default to
undergo simple imprisonment for a period of two years.
6.Being aggrieved by the said judgment of conviction and sentence,
the appellant is before this Court.
7.1 The learned Legal Aid Counsel appearing for the appellant
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would submit that there was no forcible sexual intercourse and it was
only a consented sexual relationship. The occurrence was said to have
taken place on 09.10.2015 at 9.30 p.m in the house of the victim girl
(P.W.2). Thereafter, the complaint was lodged on 05.04.2016 with an
inordinate delay of six months and the delay has not been properly
explained. She would further submit that the appellant and the victim
girl were in love with each other. Initially the victim girl refused his love
proposal, however, the appellant used to follow her regularly and also
made a promise that he would not disturb her studies and would marry
her. Thereafter, the victim girl accepted his love proposal and on her free
will and consent, they had physical relationship and was not subjected to
penetrative sexual assault. Further, the Doctor (P.W.14), who examined
the victim girl has deposed that prior to the occurrence i.e., on
05.10.2015, she gave treatment for stomach pain to the victim girl,
subsequently, after the occurrence she once again treated the victim girl
and advised abdomen scan and given a report which was marked as
Ex.P.11, but, the victim girl and her mother have not stated anything
about the said incident. However, the victim girl in her cross examination
has deposed that she narrated the said incident to the Doctor (P.W.14).
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Therefore, there is a material contradiction in the evidence of the victim
girl (P.W.2) and the Doctor (P.W.14).
7.2 The learned counsel would further submit that the alleged
occurrence was not happened on 09.10.2015, since the appellant had
taken steps to marry another girl, in order to stop that marriage a false
case has been foisted against the appellant. The victim girl in her
deposition had deposed that after the occurrence, (P.W.1) mother of the
victim girl immediately informed the said incident to one Shanthi, who is
the aunt of the appellant and thereafter, on the next day morning P.W.1
accompanied Shanthi and told the said incident to the mother of the
appellant. However, the said Shanthi was not examined by the
prosecution as one of the witness. Therefore, non-examination of the
independent witness is fatal to the case of the prosecution. There was no
eye witness to the said occurrence. The mother of the victim has stated
that she saw the said occurrence, but, soon after the occurrence she has
not lodged the complaint. It is further submitted that P.W.1 the mother of
the victim in her evidence has deposed that since the father of the victim
girl is a close friend of (D.W.1) brother of the appellant, they have not
lodged the complaint soon after the occurrence. P.W.8, who is the father
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of the victim girl, has deposed that he was informed about the said
incident over phone by his wife (P.W.1), however, he did not rush to
home immediately after the occurrence and he simply stated that
whenever, he come to the place, he would enquire about the said incident
and also told his wife P.W.1 to inform the same to D.W.1, whereas, the
said facts were denied by D.W.1. Therefore, the reasons given for the
delay in filing the complaint has not been properly explained by the
prosecution. The Doctor (P.W.5), has clearly deposed that at the time of
clinical examination, the victim girl has stated that she was subjected to
forcible penetrative sexual assault by the appellant on 09.10.2015 and
after examination she has given a report (Ex.P5) categorically stating that
there is no external or internal injury on the victim girl and she was not
subjected to sexual assault, whereas, she has stated that the victim girl
might have been subjected to penetrative sexual assault. The medical
evidence is contrary to the case of the prosecution and therefore, the
prosecution has failed to prove its case beyond reasonable doubt.
Further, it is a case of consented sexual relationship and not forcible
sexual assault.
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7.3 The learned counsel would further submit that the mother of the
victim girl has stated that the appellant had put one hand in the mouth of
the victim girl, unless the consent of the victim girl, it was not possible to
put the hand. Therefore, it is clearly a consented sexual relationship and
not forcible sexual assault. She would further submit that P.W.1 in her
cross examination has deposed that immediately after the occurrence, she
lodged a complaint against the appellant and that the respondent police
enquired about the said incident and the same was admitted by P.W.7,
who is the neighbour of P.W.1, but the same was denied by the
Investigating Officer P.W.13. The prosecution has suppressed the earlier
complaint and hence, the investigation in this case was not properly done
by the Investigating Officer. The learned Sessions Judge also pointed out
the faulty investigation in paragraph No.86 of the judgment. It is further
submitted that since the appellant's family did not accept the marriage
between the appellant and the victim girl, a false case has been foisted
against the appellant. There was no material to convict the appellant for
the offence punishable under Section 4 of POCSO Act. However, the
trial Court failed to appreciate the entire evidence, convicted the
appellant only on assumption and sympathy, and therefore, the judgment
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of conviction and sentence passed by the trial Court against the
appellant, are liable to be set aside.
8.1 The learned Government Advocate (Crl.Side) would submit that
the victim girl was only 15 years at the time of occurrence i.e. 09.10.2015
and she was studying 11th standard. When the victim girl was studying
10th standard, the appellant used to follow her regularly and developed
intimacy with the victim girl; initially, the victim girl refused him, but the
appellant promised to marry her and also would not disturb in pursuing
her studies; and continuously insisted her and obtained consent for love.
On 09.10.2015, when the mother of the victim went to hospital with her
sister, the appellant came to the house of the victim girl in the night
hours and made forcible sexual intercourse and the mother of the victim
girl also seen the said occurrence and immediately informed about the
same to her neighbours. Thereafter, on the next day morning, P.W.1,
P.W.7 and others went to the house of the appellant and informed about
the same to the appellant's mother. Subsequently, P.W.1 informed the
said incident to the father of the victim girl. The learned Government
Advocate (Crl.Side) would further submit that though the occurrence
took place on 09.10.2015, the complaint came to be lodged on
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05.04.2016 and the reasons for the delay is, (P.W.8) father of the victim
girl is a close friend to (D.W.1) brother of the appellant and there were
talks going on for conducting marriage between the appellant and the
victim girl and hence, the complaint was not lodged immediately.
Initially, D.W.1 the brother of the appellant and the family members
accepted for the marriage between the appellant and the victim girl and
by giving one reason or other and delayed the marriage. Finally they
promised that since the victim girl is 16 years and after obtaining her
majority, they would perform marriage between them and that is the
reason why the parents of the victim girl were keeping silent and they
have also not revealed the said incident to the Doctor (P.W.14).
Subsequently, the appellant's family made arrangement for marriage
between the appellant and another girl and hence, P.W.1 lodged the
complaint and therefore, there was a delay in lodging the complaint.
Thus, the prosecution has properly explained the delay in preferring the
complaint and it is not fatal to the case of the prosecution.
8.2 The learned Government Advocate (Crl.Side) would further
submit that after lodging the complaint, the Doctor (P.W.5) who
examined the victim girl has clearly deposed that at the time of
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occurrence, the age of the victim girl was 16 years and also opined that
there is no external and internal injury on the body of the victim girl and
she was not subjected to sexual assault, whereas she has stated that the
victim girl might have been subjected to penetrative sexual assault. Since
the occurrence was said to have taken place on 09.10.2015, whereas, the
victim girl was clinically examined by P.W.5 on 05.04.2016, after a gap
of six months, it was not possible to find out any injury or symptoms for
the said incident. The victim girl was produced before the learned
Judicial Magistrate for recording statement under Section 164 (5)
Cr.P.C., which was marked as Ex.P2 and the same was substantiated by
the victim girl during the trial and also the victim girl has deposed that
the mother also seen the said occurrence. Therefore, the mother of the
victim girl was examined as P.W.1 and her evidence was corroborated
with the evidence of P.W.2. Further, the Doctor (P.W.14) who examined
the victim girl prior to the said occurrence clearly deposed that neither
P.W.1 nor P.W.2 had spoken about the incident to her, but, P.W.1 and
P.W.2 had properly explained as to why they did not tell the said incident
to the Doctor P.W.14. The family of the victim girl did not have any
specific reason for falsely implicating the accused in the said offence.
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8.3.In order to prove the age of the victim girl, P.W.6, the Principal
of the school in which the victim girl studied, was examined and
produced the attested copy of SSLC Mark Sheet of P.W.2, which was
marked as Ex.P6. As per SSLC Mark Sheet Ex.P6, School Certificate
(Ex.P7) and copy of the admission register (Ex.P8) the date of birth of
the victim is 20.05.2000 and at the time of incident, she was aged about
15 years and not completed 18 years. Therefore, considering the
provision of Section 3 of POCSO Act, the learned trial Judge, has rightly
appreciated the entire evidence and convicted the appellant for the
offence punishable under Section 4 of POCSO Act and hence, there is no
merit in this appeal and the same is liable to be dismissed.
9.Heard the learned Legal Aid Counsel for the appellant and the
learned Government Advocate (Crl.Side) for the respondent and also
perused the materials available on record.
10.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.
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11.In order to prove the case of the prosecution, 15 witnesses were
examined as P.W.1 to P.W.15, out of which, the victim girl was
examined as P.W.2. The evidence of the victim girl would reveal that on
09.10.2015, the appellant entered in to the house of the victim girl and
forcibly had sexual intercourse with her and also deposed that her mother
P.W.1 also eye witness to the said incident. The evidence of the victim
girl was corroborated with the evidence of P.W.1 the mother of the
victim. The Doctor (P.W.5) who examined the victim girl has given
opinion that there was a possibility of sexual intercourse. The victim girl
was produced before the learned Judicial Magistrate and her statement
was recorded under Section 164 (5) Cr.P.C., which was corroborated
with her evidence during trial. In order to prove the age of the victim girl,
the prosecution has produced a copy of the Provisional SSLC Mark
Statement, which was marked as Ex.P6. As per Ex.P6, the date of birth of
the victim girl was 20.05.2000 at the time of committing the offence i.e.
on 09.10.2015 and her age was 15 years.
12. The main defence taken by the learned Legal Aid Counsel for
the appellant is that there was inordinate and unexplained delay in
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lodging the complaint and non-examination of the independent witness
viz., Shanthi, which are fatal to the case of the prosecution. Inasmuch as
the delay was clearly explained by P.W.1 and P.W.2, that the occurrence
said to have taken place on 09.10.2015 and P.W.1 informed the said
incident to her husband (P.W.8), who was residing out station due to his
work and he asked his wife to intimate the said incident to one
Sivamuthu (D.W.1)/the brother of the appellant, since he was close
friend to the father of the victim girl (P.W.8); when P.W.8 came home
during Pongal holidays, they went to D.W.1's house and sought justice.
Thereafter, there were talks going on for conducting marriage between
the victim and the appellant and hence, the complaint was not lodged
immediately. Subsequently, the appellant's family gave one reason or
other and delayed the marriage and in the meantime, they arranged the
marriage of the appellant with some other girl and the marriage was
solemnized on 04.04.2016. Thereafter, on 05.04.2016, the mother of the
victim girl P.W.1 lodged the complaint. Thus, the delay in lodging the
complaint has been properly explained by the prosecution.
13.In the present case, the appellant had sexually assaulted the
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victim girl and the mother of the victim girl also saw the said incident.
Naturally the family members of the victim girl would think about the
future of the victim girl. Since the appellant also a bachelor, they would
like to talk settlement amicably. Even the appellant's family initially
agreed for their marriage, subsequently, they refused to perform the
marriage between the appellant and victim girl and made arrangements
for the marriage of the appellant with some other girl. Therefore, the
present complaint has been lodged by P.W.1 and the delay also properly
explained.
14.Further, defence taken by the learned Legal Aid Counsel for the
appellant is that the prosecution has not examined one Shanthi, who is
the aunt and also relative of the appellant, as she would not support the
case of the prosecution. The occurrence said to have been taken place in
the house of the victim girl during night hours and the mother of the
victim girl was one of the eye witness to the said occurrence and her
evidence was also corroborated with the evidence of P.W.1 the victim
girl during trial and the statement recorded under Section 164(5) Cr.P.C
and therefore, non-examination of Shanthi is not fatal to the case of the
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prosecution. In cases like this, normally the other members of the village
would not support the case of the prosecution, because both the families
are known to them and that would not support any one of the family.
Further, P.W.1 and P.W.2 have clearly deposed the said incident and the
medical evidence also supports the case of the prosecution. Therefore,
non examination of independent witnesses were not fatal to the case of
the prosecution.
15.Even prior the said occurrence i.e. on 05.10.2015, P.W.1 the
mother of the victim girl took the victim girl to the Doctor (P.W.14) and
gave treatment for stomach pain. Subsequently, after the occurrence,
once again on 12.10.2015, the victim girl went to the hospital of P.W.14
for treatment, but, neither P.W.1 nor P.W.2 spoken about the said
incident to P.W.14. The Doctor (P.W.14) had given treatment and
advised for abdomen scan and given a report which was marked as
Ex.P11. The Doctor (P.W.14) in her evidence has clearly deposed that
the victim girl and her mother did not reveal the said incident to her and
the same was corroborated with the statement of the victim girl recorded
under Section 164(5) Cr.P.C by the learned Magistrate. As already the
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victim girl and her mother P.W.1 stated that they approached the
appellant's family for justice and they also assured to conduct marriage
between the appellant and the victim girl, after the victim girl completing
the age of 18 years. Therefore, they may not reveal the said incident to
any other person. Therefore, non information of the said incident to the
Doctor is not fatal to the case of the prosecution. After registering the
complaint, the victim girl was produced before the Doctor (P.W.5) for
medical examination and she has opined that the age of the victim girl is
15 to 16 years at the time of incident (less than 18 years) and therefore,
even, if it is assumed that the appellant had sexual intercourse with the
victim girl with her consent, in that case also, the appellant is guilty as
the victim girl was not completed the age of 18 years and her consent is
irrelevant. As per the POCSO Act, the child is defined as any person,
who is below the age of 18 years. In the present case, at the time of
occurrence the victim girl is 15-16 years and the age of the victim girl is
not challenged. The appellant's family made promise to perform marriage
between the appellant and the victim girl, after attaining the age of 18
years that itself shows that the victim girl is minor at the time of
occurrence.
16.In the light of the above facts and circumstances, this Court on a
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careful perusal of the entire materials independently come to the
conclusion that the accused/appellant committed the charged offence and
the trial Court has rightly appreciated the entire evidence and found
guilty for the offence punishable under Section 4 of POCSO Act.
17. In fine, this Criminal Appeal deserves to be dismissed and
accordingly, the same is dismissed. The conviction and sentences passed
in Spl.S.C.No.40 of 2017 by the learned Sessions Judge, Mahalir Court,
Cuddalore is confirmed. If the appellant/accused is not in duress, the trial
Court is directed to take appropriate steps to secure the presence of the
appellant to serve the remaining period of sentence.
18.The Legal Aid Counsel, who argued the case for the appellant is
entitled to get legal fees as per rules.
05.03.2021
ms
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
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To
1.The Sessions Judge,
Mahila Court,
Cuddalore.
2.The Sub Inspector of Police,
All Women Police Station,
Panruti, Cuddalore District,
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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P.VELMURUGAN, J.
ms
CRL.A.No.431 of 2019
05.03.2021
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