Madras High Court
Arumugam vs State Rep By on 5 March, 2021
Crl.A.No.694 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.03.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.694 of 2019
Arumugam .. Appellant
.Vs.
State rep by:-
The Inspector of Police,
All Women Police Station,
East Coimbatore,
Coimbatore District. .. Respondent
Criminal Appeal filed under Section 374 (2) of the Code of
Criminal Procedure to set aside the Judgment of Mahila Court, Fast
Track, Coimbatore dated 28.12.2017 passed in Spl.C.C.No.2 of 2017 in
erroneously convicting the appellant herein under Section 9(m) r/w
Section 10 of Protection of Children from Sexual Offences Act 2012
sentencing him to 7 years rigorous imprisonment and fine of Rs.2,500/-.
https://www.mhc.tn.gov.in/judis/
1/16
Crl.A.No.694 of 2019
For Appellant : M/s.Vijayalakshmi
K.Rajaratnam
Legal Aid counsel
For Respondent : Mr.R.Suryaprakash
Government Advocate (Crl.side)
JUDGMENT
This Criminal Appeal has been filed challenging the conviction and
sentence passed in Spl.C.C.No.2 of 2017 dated 28.12.2017 on the file of
the learned Sessions Judge, Magalir Court,[Magalir Fast Track Court],
Coimbatore.
2. The respondent police registered a case in Crime No.8 of 2015
against the appellant for the offences punishable under Section 9 r/w 10
of Protection of Children from Sexual Offences Act 2012 (in short
'POCSO Act'). After investigation, charge sheet was laid and taken on
file before the Sessions Judge, Magalir Court, [Magalir Fast Track
Court], Coimbatore.
3.After completing the formalities, the learned Judge framed the
charge against the appellant for the offences punishable under Sections
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
9(m) r/w 10 of POCSO Act.
4. After completing the trial and hearing the arguments advanced on
either side and also considering the oral and documentary evidence, the
Special Court found the appellant guilty of the offence under Section 9 of
the POCSO Act which is punishable under Section 10 of POCSO Act,
2012 and convicted and sentenced the appellant to undergo rigorous
imprisonment for a period of seven years and to pay a fine of Rs.2,500/-,
in default, to undergo one month rigorous imprisonment. Aggrieved by
the said conviction and sentence, the appellant is before this Court by
filing this Appeal.
5. The learned counsel for the appellant would submit that the
occurrence is said to have taken place on 21.03.2015 but the complaint
had been lodged belatedly only on 25.03.2015 and the said delay in filing
the complaint has not been properly explained, which shows that a false
case has been foisted against the appellant. He would further submit that
though it is the case of the prosecution that at the time of occurrence, the
appellant was at Cheranmanagram and that the occurrence had taken
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
place in the house of Kathirvelu, the prosecution having not established
the presence of the appellant at the time of occurrence at
Cheranmanagaram and at the house of Kathirvelu, the said infirmity is
fatal to the case of the prosecution. It is the further contention of the
learned counsel for the appellant that though the victim child
categorically deposed that Kathirvelu used to take the victim child out
and used to touch her inappropriately while playing with her, however,
the learned Judge has failed to consider the same and in this backdrop,
the delay in filing the complaint is detrimental to the case of the
prosecution. It is the further submission of the learned counsel for the
appellant that the identification of the appellant by the victim child does
not inspire the confidence as she has taken varied stance in her
identification during cross examination. Further, the father and mother
of the victim having no idea about the appellant and the kids, more
particularly, the brother of the victim, being elder, who is said to have
been playing along with her at the time of occurrence having not been
examined, the theory projected by the prosecution does not deserve
acceptance. Further, it is submitted that the investigating officer has not
properly investigated the matter to find out the real culprit and the
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
evidence of P.W.10- Doctor, relating to non-existence of any external
injury and further the victim having not disclosed the name of the
appellant clearly show that the implication of the appellant is by chance
without there being any material to connect him with the said offence.
6. It is further submission of the learned counsel for the appellant
that there is no corroborating material to the evidence of the victim girl
as to the presence of the appellant at the time of occurrence and taking
into account the age of the victim at the time of occurrence, relying on
her evidence to find the appellant guilty is wholly unsustainable. The
learned trial Judge has failed to consider that the prosecution has not
established its case beyond reasonable doubt and the victim girl being
aged only about 3 years basing conviction on her identification, which
has varied both in chief and cross, the conviction rendered by the trial
court deserves interference.
7. The learned Government Advocate (Crl. Side) would submit that
the deposition of P.W.1 - the mother of the victim clearly reveals that on
the date of occurrence, the victim had complained of pain in her private
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
part, which was ignored initially, but the continuous pain had caused the
victim to be examined by a doctor, leading to the discovery of the alleged
sexual act meted out to the victim by the appellant. It is the further
submission of the learned Government Advocate that the victim had
clearly identified the appellant even at the first time as the person who
had committed the sexual act and the said identification coupled with the
evidence of the doctor, P.W.10, and the certificate issued relating to the
internal injury suffered by the victim clearly reveal that the victim had
been sexually abused by the appellant. Learned Government Advocate
further submitted that the delay in lodging the complaint could not be put
against the prosecution as even the parents of the victim were not
initially aware of the sexual abuse meted out to the victim and only the
continuous pain suffered by the victim leading to the doctor certifying
that she had suffered sexual abuse had resulted in P.W.1 lodging the
complaint with the police. It is the further submission of the learned
Government Advocate that the evidence of P.W.s 1, 3, 4 and 5, viz., the
mother, father, neighbour and uncle of the victim corroborate each other
and the identification of the appellant by the victim along with the
corroboration offered by the other witnesses clearly point the finger on
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
the appellant as the person, who had committed the offence and the trial
court, on proper application of mind to the evidence placed before it had
found the appellant guilty.
8. He would further submit that the non-mentioning of the name of
the appellant by the victim to the doctor is not fatal, keeping in mind the
age of the victim and the prosecution had proved its case beyond
reasonable doubt and the trial court had appreciated all the materials
placed before it and had come to the conclusion that it was the appellant,
who had committed the offence and the appellant, having not placed any
tenable material to rebut the said evidence, the findings recorded by the
trial court does not warrant any interference.
9. Heard both sides and perused the records.
10. The case of the prosecution is that on 21.03.2015 the victim
child and her family went to their own house at Cheranmanagram, for
doing some renovation work and when the victim girl was playing in
portico, the appellant, who had come to the house of P.W.4, who was a
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
lessee under P.W.s 1 and 3, has sexually abused the victim. It is the
further case of the prosecution that when the victim came to her house,
she had complained of pain while attending nature's call and immediately
P.W.1 washed the private part of the victim girl with hot water. Since,
the pain persisted for two days, P.W.1 found that there are injuries in the
private part of the victim girl thereafter taken her to P.W.10, who found
that the victim had been sexually abused as she had internal injury on her
private part. Enquiry of the same with the victim led to the identification
of the appellant and lodging of the complaint.
11.After completing the investigation, the police laid a charge
sheet and the same was taken on file by the Mahila Court, Coimbatore,
and charges were framed against the appellant as above.
12. In order to prove the case of the prosecution before the trial
Court, the prosecution examined as many as 12 witnesses as P.W.1 to
P.W.12 and 12 documents were marked as Exs.P1 to P12. No material
object was exhibited.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
13. After completing the examination of the prosecution witnesses,
all the incriminating circumstances culled out from the evidence of the
prosecution witnesses, were put before the appellant and the appellant
denied the same false and pleaded not guilty. However on the side of the
appellant, neither any witness was examined nor any documentary
evidence was marked.
14.After completing trial and after hearing arguments advanced on
either side, the trial court, by judgment dated 28.12.2017 in Spl.C.C.No.2
of 2017, convicted and sentenced the appellant as stated supra.
Challenging the said conviction and sentence, the present appeal has
been preferred by the appellant.
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. The occurrence is said to have taken place on 21.3.2015, while
the complaint, Ex.P-1, has been lodged only on 24.3.2015. It is the
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
submission of the appellant that the delay in lodging the complaint is
fatal to the prosecution case. In order to appreciate, whether the delay is
fatal to the case of the prosecution, a perusal of the deposition of P.W.s 1
to 5 reveal that on finding the persistent pain suffered by the victim,
P.W.1, the mother of the victim, had taken her to the doctor, P.W.10 on
the morning hours of 24.3.15 and on coming to know about the sexual
abuse suffered by the victim and after conversing with the victim, who
was aged only about 3 years at that time and after ascertaining that some
person in the household had sexually abused her, the fact finding mission
as to who had sexually abused the victim was launched, leading to the
victim identifying the appellant at the house of P.W.4, as the person, who
perpetrated the offence. Thereafter, the complaint had been lodged with
the police on the same day. The delay from the date of occurrence to the
lodging of the complaint is sought to be put against the prosecution, but
an overall analysis of the entire scenario, it is to be pointed out that the
sexual abuse has been given to a girl child and the parents of the child,
would definitely be very guarded in giving the complaint, lest the name
of the child would be smeared and her life would be ruined. However, in
this case, immediately on knowing about the sexual abuse and also
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
identifying the person, the complaint had been lodged and the mere delay
from the date of occurrence to the lodging of the complaint could not be
taken as delay, more so, when the victim was aged only 3 years and after
finding out the facts, the complaint was lodged. Therefore, the
contention of the appellant that the delay is fatal to the prosecution does
not merit acceptance.
17. It is the submission of the appellant that the evidence of the
witnesses does not corroborate with the evidence of the victim and the
victim had not been firm in her identification of the appellant and,
therefore, the fixing of the appellant as the person, who had caused the
sexual abuse, does not stand established and only to shield some other
person, the appellant had been roped in as the accused.
18.A perusal of the deposition of P.W.s 1 to 5 clearly reveal that
based on the identification made by the victim to the effect that it is the
appellant who is the person, who had caused the sexual abuse, the
criminal machinery was set in motion. P.W.s 1 and 3, the parents of the
victim were not aware of the name of the appellant, as they did not know
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
the appellant, who was a friend of P.W.4. The victim, who was aged
only 3 years at the time of occurrence, cannot be expected to know the
name of the appellant, however, in a group of persons, the victim had
identified the appellant as the person, who had sexually assaulted her.
Though in the deposition in chief and cross, there is slight variation as to
the identification of the appellant, however, it is to be pointed out that
even during trial, the victim was aged only about 7 years and though the
trial court had satisfied itself as to the mind and ability of the victim to
give evidence, however, slight variation in the evidence during chief and
cross cannot be put against the victim to hold that her entire evidence is
unacceptable. A child aged about 7 years would not be able to know the
exact nature of the questions and the impact of her answers to the said
questions being put to her in chief and cross. The said answers in chief
and cross have to be harmoniously considered to render a finding as to
whether the said evidence can be accepted or not. Though there is slight
ambiguity in the identification of the appellant in court by the victim, yet
it can be safely said from the evidence of the victim, both in chief and
cross that she had identified the appellant in court, as she had done at the
initial point of time. May be, the actual nature of the question framed in
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
cross is trying to defeat the evidence given by the victim in chief, but
considering the age of the victim, even at the time of giving evidence,
this Court is of the view that the said evidence cannot be said to be self-
contradictory and coupled with the evidence of P.W.s 2 to 5, who have
corroborated each other on all material particulars, the finding of guilt of
the appellant recorded by the trial court does not call for any interference.
19. Further, the evidence of P.W.10, the doctor, who examined the
victim coupled with the accident register, Ex.P-11 issued by her relating
to the sexual assault suffered by the victim clearly establish that the
victim had suffered sexual assault and the other evidence, as pointed out
above, point the finger on the appellant as the person who has committed
the sexual assault. The minor discrepancies in the statement given by the
victim to the Magistrate vis-a-vis her evidence in court cannot be the sole
ground to treat the evidence as flawed as the age of the victim has to be
borne in mind while appreciating the evidence. It is to be pointed out
that neither the victim nor her family members had any axe to grind
against the appellant and the case of the appellant that a false case is
foisted against him falls short of acceptance, as the appellant has not
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
placed any evidence to the contra to show that there existed any enmity
between the appellant and the family of the victim or any of the
witnesses/investigating authorities necessitating fabrication of a false
case against him. Mere raising a plea that a false case is being foisted
against him would not suffice, as charge is made under the POCSO Act
and it is the duty of the appellant to rebut the presumption by placing
necessary evidence, which the appellant has failed to furnish. In the
absence of the same, the finding recorded by the court below is based on
proper appreciation of evidence and the conviction does not suffer any
infirmity requiring interference at the hands of this Court.
20.Though this Court confirms the conviction recorded by the
Court below, however, it cannot be brushed aside that certain minor
infirmities are there in the prosecution evidence, which is not affecting
the prosecution case in any way, but yet tend to lean more in favour of
the appellant for a modification in sentence. Considering the age of the
appellant and all the associated factors connected therewith, as pointed
out above, the sentence of of seven years rigorous imprisonment imposed
on the appellant is modified to five years.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
21. In the result, this appeal is dismissed by confirming the
conviction, but modifying the quantum of sentence awarded by the trial
court from seven years to five years. The legal aid counsel appointed by
this Court is entitled to legal fees.
05.03.2021
arr
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
P.VELMURUGAN, J.
arr
To
1.The Inspector of Police,
All Women Police Station,
East Coimbatore,
Coimbatore District.
2.The Mahila Court, Fast Track Court, Coimbatore
3.The Public Prosecutor,
High Court, Madras.
4.The Deputy Registrar
(Criminal Section),
High Court, Madras.
5 .The Secretary,
Legal Services Authority
Madras High Court
Chennai.
CRL.A.No.694 of 2019
05.03.2021
https://www.mhc.tn.gov.in/judis/
Crl.A.No.694 of 2019
https://www.mhc.tn.gov.in/judis/
