Madras High Court
Nagaraj vs The Inspector Of Police on 4 October, 2021
CRL.A.No. 99 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.10.2021
CORAM:
THE HON'BLE JUSTICE MR. JUSTICE P.VELMURUGAN
CRL.A.No.99 of 2015
Nagaraj ...Appellant
Vs
The Inspector of Police,
Udumalpet Police Station
(Crime No.7/2013) ...Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure praying to admit the appeal and set aside the conviction and
sentence imposed on the appellant by judgment dated 29.01.2015 passed in
Special S.C.No.5 of 2014 on the file of the Mahalir Neethimandram, Fast
Track Mahila Court (Sessions Judge, Mahila Court), Thiruppur by allowing
the Criminal Appeal.
For Appellant : Mrs.N.Premalatha for
Mr.R.Nalliyappan
For Respondent : S.Sugendran
Government Advocate (Crl Side)
*****
JUDGMENT
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CRL.A.No. 99 of 2015
This Criminal Appeal has been filed against the judgment of
conviction and sentence dated 29.01.2015 passed in Special S.C.No.5 of
2014 on the file of the Mahalir Neethimandram, Fast Track Mahila Court
(Sessions Judge, Mahila Court), Thiruppur.
2 The respondent police registered a case against the appellant
and two others in Crime No.7 of 2013 for the offence under Section 376
(2)(f) IPC and Section 5(l)&(m) punishable under Section 6 of POCSO Act
against the appellant and Section 294(b) against the other two accused.
After completing investigation, laid a charge sheet before the learned
Principal District and Sessions Judge, Tiruppur, and since the offence
against the woman, the case was transferred to the Mahila Court (Fast Track
Court), Tiruppur District and the case was taken on file in Spl.S.C.No.5 of
2014. The learned Sessions Judge, after completing formalities, framed
charges for the offence under Section 376 (2)(f) IPC and Section 5(l)&(m)
punishable under Section 6 of POCSO Act against the appellant and Section
294(b) against the other two accused. The learned Sessions Judge after
framing the charges proceeded with the trial in accordance with law.
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CRL.A.No. 99 of 2015
3 During the trial, in order to prove the case of the prosecution, on
the side of the prosecution, as many as 21 witnesses were examined as
P.Ws.1 to 21 and 17 documents were marked as Ex.P1 to P17 and 8
Material Objects were exhibited as M.O.1 to M.O.8. On completion of
examination of the prosecution witnesses, incriminating circumstances
culled out from the evidence of prosecution witnesses were put before the
accused by questioning under Section 313 Cr.P.C. with reference to the
incriminating circumstances, they denied the same as untrue and pleaded not
guilty. On the side of the defence, no one was examined and no document
was marked.
4 On completion of trial and hearing of arguments advanced on
either side and also after considering the material objects, the learned
Sessions Judge found the appellant guilty for the offence under Sections
376(1) IPC and Section 5(l) of POCSO Act and acquitted him and other two
accused from the other charges. The appellant was sentenced to undergo
rigorous imprisonment for a period of two years and pay to a fine of
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CRL.A.No. 99 of 2015
Rs.1,000/-, in default, to undergo simple imprisonment for a further period
of one month for the offence under Section 376(1) IPC and sentenced to
undergo rigorous imprisonment for a period of ten years and to pay a fine of
Rs.1,000/- in default, to undergo simple imprisonment for a further period of
three years for the offence under Section 5(l) of POCSO Act.
5 Challenging the said judgment of conviction and sentence
passed by the learned Sessions Judge, Fast Track Mahila Court, Tiruppur, in
Spl.S.C.No.5 of 2014 dated 29.01.2015 the accused has filed present appeal
before this Court.
6 Learned counsel for the appellant would submit that there are
material contradictions between the evidence of the victim before the Court
below and the statement under Section 164 of Cr.P.C. before the Magistrate,
which are not considered by the trial Court. Further, with consent of the
victim girl only, the appellant had sexual intercourse with her and even the
victim girl herself had stated that with her consent only the occurrence had
happened. It is to be noted that the victim girl did not inform the act of the
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CRL.A.No. 99 of 2015
appellant soon after the first occurrence and she did not even reveal the two
earlier occurrences to anyone and the present occurrence also she had not
informed to anyone and the parent of the victim only came to know about
the occurrence, which itself clearly proves that with consent of the victim
only the appellant had sexual intercourse with her and there is no forceful
sexual intercourse as projected by the prosecution. Further, P.W.15, the
Doctor, who examined the victim girl medically, had categorically deposed
that at the time of examination, the victim had stated that one known person
with her consent had sexual intercourse with her. She further deposed that
there was no internal or external injuries on the private part of the victim.
Therefore under such circumstances, the ingredients of offence under
Section 376 would not at all attract and hence conviction under Section
376(1) is liable to be set aside.
6.1 Further there is inordinate delay in filing the complaint and
there is no explanation offered by the prosecution for the delay. Hence
unexplained inordinate delay is fatal to the case of the prosecution. If there
are truth in the case of the prosecution, the victim should have filed the
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CRL.A.No. 99 of 2015
complaint soon after the occurrence and hence conviction against the
appellant for the offence under Section 376 of IPC is liable to be set aside.
6.2 As far as conviction under the POCSO Act is concerned,
prosecution has miserably failed to prove the age of the victim. It is stated
that date of birth of the victim is 25.08.2001, but no document has been
produced to prove the age of the victim and to substantiate the fact that the
victim is a child. The trial Court, even though framed charges for the offence
punishable under Section 4 and Section 5(m)&(l) of POCSO Act,
punishable under Section 6 of POCSO Act, since prosecution had not proved
the charges for Section 4 and Section 5(m) had acquitted the appellant, but,
on the very same materials and evidence of the victim, had erroneously
convicted the appellant for the offence under Section 5(l) of the POCSO Act.
6.3 The learned counsel further argued that at any angle,
prosecution has miserably failed to prove the charges levelled against the
appellant and had not produced any valid documents to substantiate the
guilt of the appellant. The trial Court has not appreciated the evidence of the
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CRL.A.No. 99 of 2015
prosecution witnesses in a right perspective and based on the available
materials, has erroneously convicted the appellant, which warrants
interference of this Court.
7 The learned Government Advocate (Criminal Side) appearing
for the respondent police would submit that the age of the victim was only
12 years at the time of occurrence and was studying 7 th standard. On the
date of occurrence, the victim was on the way to School, at that time the
appellant waylaid her and had committed the sexual assault repeatedly
forcefully and he threatened her not to reveal the said act committed by the
appellant to anybody, if she reveals, he would take away her life.
7.1 He would further submit that P.W.1 is mother and P.W.3 is
father of the victim and the victim girl was examined as P.W.2 and she has
clearly deposed before the Court as well as as while recording statement
under Section 164 of Cr.P.C., that the appellant had sexual intercourse with
her forcefully and repeatedly. The Head Master of the School, in which the
victim had studied was examined as P.W.8 and she has clearly stated that on
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the date of occurrence, i.e. 04.01.2013, the victim girl did not attend the
School.
7.2 Even though, the learned counsel for the appellant contended
that the victim, while examining medically, before the Doctor, had stated
that with her consent the appellant had sexual intercourse with her, but,
since the victim was only 12 years old at the time occurrence, consent of the
victim is immaterial. Even though, the trial Court acquitted the appellant for
the other offences, had convicted the appellant for the offence under Section
376(1) IPC and Section 5(l) of the POCSO Act. Therefore, the judgment of
conviction and sentence made by the trial Court does not call for any
interference of this Court and there is no merit in the appeal and the same is
liable to be dismissed.
8 Heard the learned counsel appearing for the appellant and the
learned Government Advocate (Crl.Side) appearing for the respondent and
has carefully perused the materials available on record and the judgment of
the trial Court.
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CRL.A.No. 99 of 2015
9 Case of the prosecution is that on 04.01.2013 and prior to that,
while the victim girl, who was aged about 12 years at the time of occurrence
and was studying 7th standard, was on the way to School, the appellant way
laid her and forcefully had taken her to his house and had sexual intercourse
against her will repeatedly and also threatened the victim girl that he would
take away her life, if she reveals the same to anyone. Therefore the present
complaint.
10 In order to find out the guilt of the accused this court, as final
court of fact finding, has re-appreciated the evidence independently. To
substantiate the charges, prosecution had examined 21 witnesses, out of
which, the victim girl was examined as P.W.2, who had clearly narrated the
sexual assault committed by the appellant.
11 Coming to the contention of the learned counsel for the
appellant that there are improvements and contradictions between the
evidence of the prosecution witnesses. According to this Court and on a
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careful reading of the evidence of the prosecution witnesses, the
contradictions pointed out by the learned counsel for the appellant are not
material contradictions and the same will not go into root of the case of the
prosecution. P.W.2 the victim girl has clearly stated that even prior to the
present occurrence on 04.01.2013, the appellant had sexual intercourse with
her forcefully more than 5 times and due to the threat made by the appellant,
she did not reveal the same to anyone and hence the contention of the
learned counsel that there is inordinate delay in filing the complaint is not
acceptable, since it was properly explained by the prosecution.
12 The learned counsel for the appellant contended that with
consent of the victim girl only the appellant had sexual intercourse with her
and there is no forceful sexual intercourse. As per Section 376, when a
prosecutrix is a minor below 16 years, question of consent does not arise.
Therefore, the consent said to have given by the victim is immaterial. Hence
this Court does not find any perversity in the conviction against the appellant
for the offence under Section 376 .
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13 It is contended by the learned counsel for the appellant that to
prove the age of the victim, prosecution has failed to mark any valid
document and Birth Certificate of the victim had not produced before the
Court. Even though, as contended by the learned counsel for the appellant
Birth Certificate of the victim had not marked, this Court, on verification,
found the Birth Certificate is very well available in the CD file, which shows
the date of the victim is 25.08.2001. Neither the Investigating Officer has
marked the Birth Certificate, which is very well available in the CD file, nor
the trial Court summoned the same. When, it is the case of the prosecution
that the victim is below the age of 12 years, they should have produced the
Birth Certificate or atleast the trial Judge should has summoned the same.
Even as per the evidence of the victim and Ex.P2, School Certificate, date of
birth of victim is 25.08.2001 and she was studying 7 th standard at the time of
occurrence. Therefore mere non production of Birth Certificate of the victim
does not mean that the victim is not a child. This Court, during arguments,
had seen the Birth Certificate of the victim and it came to know that the
victim was a child under the definition of Section 2(1)(d) of POCSO Act and
was below the age of 12 years on the date of occurrence.
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CRL.A.No. 99 of 2015
14 As per the evidence of the victim, the offence committed by the
appellant falls under Section 3 which is punishable under Section 4 and
since the appellant committed the said offence repeatedly more than once
and also the victim was only about 12 years, the same is falls under Section
5(m)&(l) which is punishable under Section 6. The trial Court, since Birth
Certificate of the victim was not marked, had acquitted the appellant from
the offence under Section 5(m). However, the Trial Court convicted the
appellant for the offence under Section 376(1) and Section 5(l) of the
POCSO Act.
15 As per Section 376, the minimum sentence is 7 years and the
learned trial Judge had only awarded the sentence for 2 years. Further for
the offence under the POCSO Act, the learned trial Judge had only awarded
minimum sentence of 10 years.
16 Therefore under these circumstances, this court does not find
any perversity in the judgment of the trial Court and considering the facts
and circumstances of the case, this court also does not find any mitigating
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CRL.A.No. 99 of 2015
circumstances to reduce the sentence and there is no merit in the appeal and
it is liable to be dismissed.
17 Accordingly, the criminal appeal stands dismissed. Trial Court
is directed to secure the custody of the appellant/accused to serve remaining
period of imprisonment, if any.
04.10.2021
Index: Yes/No
Speaking order/Non Speaking order
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To
1. The Sessions Judge, Mahalir Neethimandram, Fast Track Mahila
Court, Thiruppur.
2. The Inspector of Police, Udumalpet Police Station.
3. The Public Prosecutor, Madras High Court.
P.VELMURUGAN, J.
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CRL.A.No. 99 of 2015
CRL.A.No.99 of 2015
04.10.2021
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