Madras High Court
Venugopal vs State Rep By on 2 November, 2021
Crl.A.No.514 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
CRL.A.No.514 of 2021
and
Crl.M.P.No.11181 of 2021
Venugopal .. Appellant
.Vs.
State rep by
The Inspector of Police,
W–18, All Women Police Station,
M.K.B.Nagar, Chennai,
Crime No.9 of 2018. .. Respondent
Criminal Appeal filed under Section 374 of Code of Criminal
Procedure to call for the entire records and to set aside the order of
conviction in S.C.No.420 of 2018, dated 27.09.2021 passed by the
learned Sessions Judge, Special Court for Exclusive Trial of Cases under
POCSO Act, Chennai.
For Appellant : Mr.M.Soundar Vijay Arul Ram
for Mr.R.C.Paul Kanagaraj
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
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JUDGMENT
This Criminal Appeal has been filed against the judgment dated
27.09.2021 passed in S.C.No.420 of 2018 by the learned Sessions Judge,
Special Court for Exclusive Trial of Cases under POCSO Act, Chennai.
2.The case of the prosecution is that on 28.07.2018 at about 03.00
p.m when the victim child was playing outside the newly constructed
building, which was situated at 1st Street, Salaima Nagar, the accused who
was working as a watchman in that building pulled the hands of the victim
child, hugged and attempted to kiss on her face. When the victim child
tried to evade the same, the accused attempted to put his hand on her
private parts. Thereby, he had attempted to commit sexual assault against
the victim child, who was aged about 8 years. One neighbour/P.W.3, who
witnessed the said incident had rescued the child and informed the same to
P.W.2/mother of the victim child. Thereafter, P.W.2 filed a
complaint/Ex.P1 against the accused.
3.The respondent police registered a case in Crime No.9 of 2018
against the appellant for the offence punishable under Section 8 of The
Protection of Children from Sexual Offences Act, 2012 [hereinafter
referred to as 'POCSO Act' for the sake of convenience]. After
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investigation, the respondent police filed a charge sheet before the learned
Sessions Judge, Special Court For Exclusive Trial of Cases under POCSO
Act, Chennai against the appellant for the offence under Section 8 of
POCSO Act which was altered into Sections 18 and 6 of POCSO Act.
Since the offence is against a child, the learned Sessions Judge taken the
case on file in S.C.No.420 of 2018. On completion of the formalities, the
trial Court framed charges against the appellant for the offence punishable
under Section 10 and altered into Section 18 punishable under Section 10
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 5 witnesses were examined as
P.W.1 to P.W.5 and marked 6 documents as Exs.P1 to P6 and no material
object was marked. After examining the prosecution witnesses, the
incriminating circumstances culled out from the evidence of the
prosecution witnesses were put before the accused/appellant and
questioned under Section 313 of Cr.P.C. and he denied all the
incriminating circumstances as false and pleaded not guilty. On the side of
the defence, no oral and documentary evidence was produced.
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5.The Court below, after hearing the arguments advanced on either
side and also materials available on record, found that the
accused/appellant is guilty for the offence under Section 10 of POCSO Act
which was altered into Section 18 punishable under Section 10 of POCSO
Act and sentenced him to undergo imprisonment for a period of three years
and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment
for a period of one month. Being aggrieved by the said judgment of
conviction and sentence, the appellant is before this Court.
6.Learned counsel for the appellant would submit that the appellant
had no bad intention against the victim child. At the time of occurrence,
the appellant was aged about 59 years and the victim child was 8 years. As
a child, due to love and affection, the appellant touched the victim child
and he has not committed any offence as alleged by the prosecution and
hence, the offence under Section 10 of POCSO Act would not attract
against the appellant. He would further submit that there are material
contradictions between the prosecution witnesses and there was
improvement in every stage, which is fatal to the case of the prosecution.
As per the prosecution, the alleged occurrence had taken place in a newly
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constructed building, whereas, P.W.3 has stated that the alleged
occurrence said to have been taken place between two Auto Rickshaws
and hence, the place of occurrence is highly doubtful and the same was not
proved by the prosecution. Therefore, P.W.3, who is said to be an eye
witness to the occurrence could not have seen the occurrence. Further, the
evidence of P.W.3 is completely contradictory to her statement recorded
under Section 164 Cr.P.C. The prosecution does not make out the case
and wrongly convicted the appellant under Section 18 of POCSO Act. He
would further submit that no opportunity was given to the defence counsel
to cross examine P.W.1 and P.W.3, which violates the principles of natural
justice. The trial Court failed to appreciate the entire oral and documentary
evidence, convicted and sentenced the appellant only on assumption,
conjectures and sympathy. Therefore, the judgment of conviction and
sentence passed by the trial Court against the appellant is liable to be set
aside.
7.1 Learned Government Advocate (Crl.Side) appearing for the
respondent would submit that at the time occurrence, the age of the
appellant was 59 years and he had committed the offence of sexual assault
against the victim child, who was aged about 8 years. In order to prove the
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age of the victim child, the prosecution exhibited Ex.P1/birth certificate of
the victim child. According to Ex.P1, the date of birth of the victim is
23.01.2010. Hence, the victim is a child on the date of occurrence i.e. on
28.07.2018 and the offence committed by the appellant is an aggravated
one, which falls under Section 10 of POCSO Act. He would further submit
that P.W.1/victim child and P.W.3/neighbour of the victim child are the
direct witnesses to the said occurrence. P.W.3, who in turn informed the
said incident to P.W.2/mother of the victim child. Thereby, P.W.2 lodged
the complaint against the accused/appellant. The trial Judge found prima
facie allegations against the appellant and taken cognizance of the charge
sheet on file and framed charges against the appellant.
7.2 Learned Government Advocate (Crl.Side) would further submit
that while recording the statement of the victim child under Section 164
Cr.P.C before the learned Judicial Magistrate and during trial as P.W.1,
she had clearly narrated the said incident. However, the defence counsel
has not cross examined P.W.1/victim child. Further, the mother of the
victim child was examined as P.W.2 and she had clearly deposed about
the complaint lodged against the appellant during her chief and cross
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examination. P.W.3/neighbour of the victim child as well as an eye witness
to the said occurrence also clearly deposed about the said incident. From
the evidence of P.W.1, P.W.2 and P.W.3 the prosecution proved its case
beyond all reasonable doubts. He would further submit that as per Sections
29 and 30 of POCSO Act, it is very clear that once the prosecution has
established its case, it is the duty of the accused to rebut the presumption.
However, in the present case, the appellant has not rebutted the
presumption under Section 29 of POCSO Act. The trial Court has rightly
found guilty of the appellant for the charged offences and convicted and
sentenced him and there is no perversity in the order of the trial Court.
Hence, the appeal is liable to be dismissed.
8.Today, when the matter is taken up for hearing, the learned counsel
appearing for the appellant produced all the copies of depositions. This
Court heard the arguments of the appellant and the learned Government
Advocate (Crl.Side) for the respondent extensively and also perused the
materials available on record and with the consent of both sides, the case
on hand is taken up for final disposal, at the admission stage itself. Further,
considering the scope of POCSO Act amended in 2019, this Court is of the
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view that there is no necessity to call for the records from the Court below.
9.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.
10.Initially charge sheet has been filed against the appellant for the
offence punishable under Sections 8 of POCSO Act altered into 18 and 6
of POCSO Act. However, the trial Court found guilty of the accused/
appellant for the offence punishable under Sections 10 @ 18 punishable
under Section 10 of POCSO Act.
11.On a careful reading of the evidence of P.W.1, it would reveal
that on the date of occurrence i.e. on 28.07.2018 at about 3.00 p.m the
accused way laid her and not allowed her to go for playing. She further
deposed that her friend was in the upstairs and while she went to call her
for playing, the accused restrained her and attempted to hug her.
Thereafter, the accused attempted to put his hand on her private part. At
that time, one Rafia/P.W.3 came to that place and shouted the accused and
the accused ran away from that place and P.W.3 asked the victim child to
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go to her house. Subsequently, P.W.3 informed the said incident to her
parents and lodged the complaint. After registration of the complaint, the
victim child was produced before the learned Judicial Magistrate for
recording her statement under Section 164 of Cr.P.C/Ex.P2 wherein, she
had stated that appellant/accused pulled her hands and hugged her and
tried to kiss on her face and when she resisted the same, the accused put
his hand on her private part.
12.P.W.3, who is an eye witness to the occurrence, had deposed that
the appellant committed the offence of sexual assault by holding the
cheeks of the victim child, kissed on her mouth and also put his hands on
the private parts of the victim child. The victim child/P.W.1 had stated that
the appellant attempted to hug and kiss on her face and also attempted to
touch on her vaginal area. Therefore, from the evidence of P.W.1, the trial
Court found that the prosecution has proved its case that the accused had
attempted to commit sexual assault on the victim child and thereby, framed
the charges for the offence punishable under Sections 10 @ 18 punishable
under Section 10 of POCSO Act. Since the appellant attempted to commit
sexual assault on the victim child and there is no commission of
penetrative sexual assault, the victim child was not produced before the
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Doctor for getting medical opinion.
13.The defence taken by the learned counsel for the appellant is that
no opportunity was given to the defence to cross examine P.W.1 and
P.W.3. However, the defence has not challenged the chief examination of
P.Ws.1, 2 and 3. Further, the victim girl had clearly deposed the said said
incident. Therefore, this Court finds that the evidence of the victim is
cogent, consistent, natural and trustworthy and also the evidence of the
victim child inspires confidence of this Court.
14.According to the case of the prosecution at the time of
occurrence, the age of the victim child was 8 years, in order to prove the
same, birth certificate of the victim child was marked as Ex.P1. As per
Ex.P1 the date of birth of the victim child is 23.01.2010, whereas, date of
occurrence is 28.07.2018. The offence is made out under Section 8 of
POCSO Act, since the victim is below 12 years. Thereby the offence
committed by the appellant is an aggravated one and it falls under Section
9 (m), which is punishable under Section 10 of POCSO Act. As per the
prosecution witnesses, especially P.W.1/victim child, this Court finds that
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the appellant had attempted to commit sexual assault on the victim child,
therefore, it falls under Section 9(m) which is punishable under Section 10
of POCSO Act and also for the offence under Section 18 which is
punishable under Section 10 of POCSO Act.
15.On a combined reading of the evidence of P.Ws.1, 2 and 3 and
Ex.P1 and Ex.P2 this Court finds that the prosecution has proved that the
appellant has committed the offence under Section 18 which is punishable
under Section 10 of POCSO Act not under Section 8 which is punishable
under Section 18 of POCSO Act and 18 punishable under Section 6 of
POCSO Act. Therefore from the evidence of P.W.1, the trial Court rightly
convicted the appellant/accused for the offence under Section 18
punishable under Section 10 of POCSO Act.
16.Under these circumstances, this Court being an Appellate Court,
is a fact finding Court re-appreciated the entire evidence and come to the
conclusion that the appellant has committed the said offence and the
prosecution has established its case beyond all reasonable doubts. In the
light of the above discussion, this Court does not find any merit in this
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appeal and the appeal is liable to be dismissed.
17.Accordingly, this Criminal Appeal is dismissed at the admission
stage itself and the conviction and sentences passed in S.C.No.420 of
2018 dated 27.09.2021 by the learned Sessions Judge, Special Court for
Exclusive Trial of Cases Under POCSO Act, Chennai is confirmed.
Consequently, connected miscellaneous petition is closed.
18.If the appellant/accused is not in duress, the trial Court is
directed to take appropriate steps to secure the appellant to serve the
remaining period of sentence.
02.11.2021
ms
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
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To
1.The Sessions Judge,
Special Court for Exclusive Trial of Cases under POCSO Act,
Chennai.
2.The Inspector of Police,
W–18, All Women Police Station,
M.K.B. Nagar,
Chennai
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.514 of 2021
and
Crl.M.P.No.11181 of 2021
02.11.2021
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