Aravind @ Aravindsamy vs State Rep.By
2021 Latest Caselaw 20264 Mad

                                                                                    Crl.A.No.293 of 2016


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 04.10.2021

                                                         CORAM

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                   CRL.A.No.293 of 2016

                     Aravind @ Aravindsamy                                    ... Appellant

                                                          Versus
                     State Rep.by
                     The Inspector of Police,
                     Thudialur All Women Police Station,
                     Coimbatore.
                     Crime No.68 of 2013.                                    ... Respondent

                          Criminal Appeal filed under Section 374 (2) of Code of Criminal
                     Procedure, against the Judgment of conviction and sentence imposed on
                     the appellant dated 29.03.2016 in Spl.C.C.No.25 of 2014 by the learned
                     Sessions Judge, Magalir Neethimandram, (Mahila Court) Coimbatore.

                                  For Appellant         : Mr.R.Vinayaga Vishnu
                                                           for Mr.V.Purushothaman

                                  For Respondent        : Mr.S.Sugendran,
                                                          Government Advocate (Crl.Side)

                                                     JUDGMENT

This Criminal Appeal has been filed against the conviction and

sentence imposed on the appellant vide Judgment dated 29.03.2016 made

in Special C.C. No.25 of 2014, by the learned Sessions Judge, Magalir

https://www.mhc.tn.gov.in/judis

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Neethimandram, (Mahila Court), Coimbatore.

2.The respondent/police registered a case in Crime No.68 of 2013,

for the offence under Section 3 (a), 4 & 5(m) of the Protection of Children

from Sexual Offences Act, 2012, (for brevity 'the POCSO Act' against the

appellant. The respondent/police, after investigation laid a charge sheet

before the Special Court, since the offence is against the woman

particularly child. After completing the formalities, the Special Court

framed the charges. In order to substantiate the charges framed against the

appellant, on the side of the prosecution, as many as 13 witnesses were

examined as P.W.1 to P.W.13 and 9 documents were marked as Ex.P.1 to

Ex.P.9 and no material object was produced.

3.After completing the examination of the prosecution side

witnesses, when incriminating materials culled out from the evidence of

prosecution witnesses were put before the accused by questioning under

Section 313 Cr.P.C., he denied the same as false and pleaded not guilty.

On the side of the defence, no oral and documentary evidence was

produced.

https://www.mhc.tn.gov.in/judis

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4.On completion of trial and after considering the arguments

advanced on either side and also considering the materials, the learned

Special Judge found the appellant guilty and convicted him for the offence

under Section 7 r/w Section 9 (m) r/w 10 of the POCSO Act, and

sentenced him to undergo 5 years rigorous imprisonment and to pay a fine

of Rs.2,000/-, in default to undergo 3 months simple imprisonment.

However, the Trial Court ordered to set off the period already undergone

by the accused as per Section 428 of Cr.P.C.,

5.Challenging the said Judgment of conviction and sentence, the

appellant/accused has filed the present appeal before this Court.

6.The learned counsel for the appellant/accused would submit that

occurrence had taken place on 24.12.2013, the complaint was given only

on 25.12.2013, therefore, there was an inordinate delay in filing the

complaint. Further, the investigation itself commenced belatedly which

led to lapses in the investigation. There are some material contradictions

between the evidence and the statements recorded under Section 161 of

Cr.P.C., The victim's father and the appellant are friends and they are fans

of actor Ajithkumar. There seems to be some dispute between them in https://www.mhc.tn.gov.in/judis

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respect of the Ajithkumar Fans Association Club, hence, the father of the

victim girl foisted a false case against the appellant, for the above said

offences.

6.1.Further, he submitted that there are some material contradictions

in the evidence of P.W.1/the victim, PW.2/ mother of the victim and

PW.3/father of the victim. The inordinate delay in filing the complaint

and unexplained delay of sending the documents to the Court are fatal to

the case of the prosecution, but the learned Trial Judge has failed to

consider the same. Further he would submit that victim was not produced

before the learned Judicial Magistrate for recording the statement under

Section 164 of Cr.P.C. When the victim girl was produced before the

Doctor by her grand mother, she stated that a known person committed

sexual assault on her. But there was no external or internal injury in the

private part of the victim girl or any other parts of the body of the victim

girl, therefore, there is no material medical evidence with regard to the

sexual assault. The doctor/PW.12 who examined the victim girl has stated

that the hymen was intact. Further, there are material contradictions in

sending the hospital memo and obtaining statements for registering the

case. The age of the victim has also not been proved in the manner known https://www.mhc.tn.gov.in/judis

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to law. The witnesses examined on the side of the prosecution did not

prove the commission of penetrative sexual assault. Therefore, the Trial

Court failed to appreciate the evidence and wrongly convicted appellant

for the alleged offence.

6.2.Though P.W.1 has stated that the appellant has committed sexual

assault, it was not corroborated by any eye witness in this case. Even the

evidence and documents produced by the prosecution were not genuine.

There is doubt in filing of the complaint and a false case has been foisted

against the appellant. The appellant was convicted for the offence under

Section 7 r/w and Section 9 (m) r/w 10 of the POCSO Act without any

materials, and it is unwarranted. The Trial Court failed to appreciate the

oral and documentary evidence and erroneously held that the motive was

clearly established by the prosecution without considering the defence

evidence.

6.3.The evidence of the victim girl is suspicious, it is not cogent,

consistent and natural. The victim girl is four year child, she was tutored

by her parents to victimise the appellant and to wreck vengeance due to

the previous enimity between the appellant and de-facto complainant, the https://www.mhc.tn.gov.in/judis

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father of the victim. The father tutored the 4 year old daughter and foisted

a false case, which warrants interference of this Court.

7.The learned Government Advocate (crl.side) appearing for the

respondent would submit that at the time of occurrence, the age of the

victim girl was only 5 years. On the date of occurrence, the appellant took

the victim girl to his house, removed her dress and his dress and he

inserted his pennis on the vaginal part of the victim girl. At that time, the

victim girl shouted due to pain and thereafter, he left the victim girl. The

victim girl informed the same to her mother, who in turn, informed it to the

father of the victim girl. The father of the victim girl had taken his

daughter to the hospital. Since the victim was admitted in the hospital,

there was a delay in lodging the complaint. Subsequently, the next day, the

case was registered and investigation commenced. After investigation,

charge sheet has been filed. In order to prove the case of the prosecution as

many as 13 witnesses were examined, out of which, the victim was

examined as PW.1 and she has clearly narrated the incident. Even when

she was produced before the doctor for medical examination, she has

stated that a known person committed the sexual assault. Though

PW.10/grandmother of the victim girl has stated that the victim girl was https://www.mhc.tn.gov.in/judis

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subjected to penetrative sexual assault, there is no internal or external

injury found on the victim girl. The Trial Court considering the evidence

of the victim girl, framed the charges under POCSO Act and found the

appellant guilty of the offence under Section 7 r/w Section 9(m) r/w

Section 10 of the POCSO Act and convicted and sentenced him as stated

above. There is no merit in the appeal and the same is liable to be

dismissed.

8.Heard submissions made on either side and perused the materials

available on record.

9.The case of the prosecution is that on 24.12.2013 at about 8.30

a.m., the appellant went to the victim's house, to fix a Flex Board of the

upcoming movie of Ajithkumar as an Association member of the

Ajithkumar Fans Club, he had taken the victim girl into his house on the

pretext of taking photo for the flex board, locked the door and lifted the

victim's robes as well as his robes and kept his pennis on her private part

and made an attempt of committing sexual assault on her. The victim,

unable to bear the pain due to which she shouted. Thereafter, he left the

victim girl and attended his usual course of works. The victim girl https://www.mhc.tn.gov.in/judis

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informed the incident to her mother, who in turn had taken the child to the

hospital along with the grandmother of the victim girl. After hearing the

incident happened to her daughter, the father of the victim girl/PW.3 went

to the Mettupalayam Government Hospital, from where she was referred to

the Government Hospital, Coimbatore for further treatment. On the next

day, the complaint was lodged by the father of the victim/PW.3 and the

case was registered by the respondent/police against the appellant under

the POCSO Act.

10.The Trial Court framed charges against the appellant as stated

above.

11.In order to substantiate the case of the prosecution, totally thirteen

witnesses were examined and nine documents were marked, out of which,

the victim was examined as PW.1. On a reading of the evidence of the

victim girl/PW.1, she has clearly narrated the act committed by the

appellant. PW.2 is the mother of the victim and PW.3 is the father of the

victim. PW.10 is the grandmother of the victim girl. The doctor/PW.12,

examined the victim girl and recorded the statement, which was marked as

Ex.P7 and the doctor/PW.11, who examined the age of the victim girl has https://www.mhc.tn.gov.in/judis

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given a report and it was marked as Ex.P6. PW.13/Inspector of Police,

who prepared observation mahazar. On a combined reading of the

evidence of PW.2, PW.10, PW.11, PW.12 and PW.13 and documents

Ex's.P6, P7 and P3, it could be seen that the age of the victim was four

years and there is no dispute in the age of the victim, therefore, she is a

child under the definition of 2(1)(d) of the POCSO Act, 2012. Before the

doctor/PW.12, the grandmother of the victim girl/PW.10 had informed that

the child was subjected to the sexual assault, however, the medical

evidence shows that there is no external or internal injury and the hymen

was intact and there is no marks on the victim body.

12.As far as the penetrative sexual assault is concerned, the victim

has not suffered any internal or external injury in any other part. On a

reading of Section 3 of the POCSO Act, it is very clear that injury on the

private part of the child is not condition precedent for an offence falling

under this Section. As per the ingredients of Section 3(c) of the POCSO

Act, even he manipulates any part of the body of the child as to cause

penetration into vagina is an offence of penetrative sexual assault which is

punishable under Section 4 of the POCSO Act. If the offence falls under

anyone of the ingredients of the section 3 of the POCSO Act and if the https://www.mhc.tn.gov.in/judis

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victim was under the age of 12 years then the offence would fall under

Section 5 of POCSO Act. Therefore, the commission of the offence falls

under Section 5(m) of the POCSO Act which is punishable under Section 6

of POCSO Act. However, the Trial Court finds the appellant guilty for the

offence under Section 7 r/w 9 (m) r/w 10 of the POCSO Act. Since there

was no external injury and other significant injury, the Trial Court came to

a conclusion that the act committed by the appellant was not an aggravated

penetrative sexual assault, but found that there was some sexual assault

committed on the victim girl, who is below the age of 12 years, and

therefore, the Trial Court framed the charges against the appellant for the

offence under Section 7 of POCSO Act, since the victim is below 12 years

which falls under Section 9(m) of the POCSO Act and also which is

punishable under Section 10 of the POCSO Act.

13.The Trial Court recorded the acquittal for the offence under

Section 5(m) which is punishable under Section 6 of the POCSO Act, 2012

and this was not challenged by the prosecution. However, the Trial Court

recorded the conviction of the appellant for the offence under Section 9

punishable under Section 10 of the POCSO Act. In this case, the victim

was four years old, soon after the occurrence, the victim girl informed the https://www.mhc.tn.gov.in/judis

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same to her mother. Since the father of the victim girl was out of station, it

was informed to the grandmother of the victim girl. Though the learned

defence counsel has taken the stand that there was enmity between the

appellant and the victim's father and they were members of the Association

of actor Ajithkumar Fans Club, it was not proved by any substantial

evidence. However, no parent will sacrifice the life of their children and

make false allegation, especially a mother cannot do so, for the four year

old daughter, by projecting false case against the appellant to take

vengeance or to ventilate the enmity relating to any association / club.

The victim has very clearly stated that a known person committed the

offence, who is none other than the relative and neighbour of the victim,

who took the victim to a secluded place and committed sexual assault on

her by removing her dress and touched the private part and pressed his

pennis on her vaginal part. Though the doctor has stated that there is no

external injury and the hymen of the victim was intact and there was no

penetrative sexual assault on the victim, the victim has clearly narrated that

the appellant touched her private part and kept his pennis on her vagina.

Therefore, the appellant committed the offence under Section 5(m) of the

POCSO Act. Even though, the charge framed against the appellant is for

the offence under Section 5(m) in this case, however, the Trial Court https://www.mhc.tn.gov.in/judis

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acquitted the appellant from the charge of Section 5(m) of the POCSO Act,

found that the prosecution has not proved from the evidence that the

appellant committed penetrative sexual assault. Whereas PW.1 clearly

narrated that the appellant touched her private part and pressed his pennies

into her vagina, further, from the evidence of the doctor/PW.12, who had

clearly stated in the Accident Register/Ex.P7, that victim was examined by

the doctor, she informed about the sexual assault committed by the

appellant, therefore, the appellant is liable to be punished for the offence

under Section 5(m) which is punishable under Section 6 of the POCSO

Act.

14.As regards, the delay in lodging the complaint and filing the First

Information Report, in a case of this nature, the delay is not fatal to the

case of the prosecution. Further, considering the age of the victim girl, who

does not know what is good touch and bad touch, since she is not in the

age to explain what happened to her. Further, the victim girl informed the

said incident to her mother, who in turn informed the same to her husband

and after his arrival they preferred the complaint and hence, the delay has

been properly explained by the prosecution. Though PW.2 & PW.3, are

parents, they would not take a hasty decision immediately to take a risk on https://www.mhc.tn.gov.in/judis

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their own daughter's life. Therefore, the delay in filing the complaint is not

fatal to the case of the prosecution and hence, the contention raised by the

learned counsel for the appellant is not acceptable.

15.The medical evidence revealed that no external or internal injury

was found at the time of admitting the victim girl into the hospital. The

grandmother of the victim girl accompanied her, she has informed that a

known person had committed the sexual assault. The evidence of the

victim was cogent and consistent and further, she was only four years old,

therefore, she cannot be tutored. Unless, the victim girl directly suffered

with such an act, she could not say so. Therefore, this Court does not find

any reason to discard the evidence of the victim. The victim was only four

years old and there is no reason to tutor the victim. If anybody tutored,

undoubtedly she would have also revealed the same. The victim has stated

simply that she was taken by the appellant in a secluded place and

offence was committed on her. Therefore, the evidence of the victim was

very clear and there was no motive that could be attributed towards the

victim to register a false case against the appellant.

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16.Considering the facts and circumstances of the case, this Court

finds that the appellant committed aggravated penetrative sexual assault on

the victim. However, neither prosecution nor victim filed any appeal for

acquittal for the offence of 5(m) of the POCSO Act, there is no reason to

interfere with the Judgment of the Trial Court and there is no merit in the

appeal. Accordingly, the Criminal Appeal is liable to be dismissed.

17.The learned counsel for the appellant would submit that the

appellant/accused is aged about 19 years and prayed to send him to the

Borstal School, as per the Tamil Nadu Borstal Schools Act, 1925 and his

incarceration cannot extend more than three years and he cannot be

retained in the general prison. Since the offence falls under POCSO Act, it

is special enactment, which prevails over all other Acts.

18.Especially, the victim girl is four years old and the appellant is 19

years at the time of occurrence. The contention raised by the learned

counsel for the appellant is not acceptable and the same is not applicable to

the present case and it is rejected as per the decision rendered by the larger

bench of this Court in the case of N.Gowthaman @ Babu Vs. The

Government of Tamil Nadu and another reported in 2016 (5) CTC 225 https://www.mhc.tn.gov.in/judis

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and 2016 (4) MLJ (Crl) 129.

19.In the result, the Criminal Appeal is dismissed by confirming the

Judgment of conviction and sentence dated 29.03.2016 passed in

Spl.C.C.No.25 of 2014 by the learned Sessions Judge, Magalir

Neethimandram, (Mahila Court), Coimbatore.

20.Since the accused was released on suspension of sentence passed

by this Court in Crl.M.P.No.14932 of 2017, dated 03.01.2018, and now the

appeal is dismissed, the trial Court is directed to take steps to secure his

custody, to undergo the remaining period of sentence, if any.

04.10.2021 Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order

pbl/klt

https://www.mhc.tn.gov.in/judis

Page No.15/16 Crl.A.No.293 of 2016

P.VELMURUGAN, J.

klt

To

1.The learned Sessions Judge, Magalir Neethimandram, (Mahila Court), Coimbatore.

2.The Inspector of Police, Thudialur All Women Police Station, Coimbatore.

3.The Public Prosecutor, High Court, Madras.

CRL.A.No.293 of 2016

04.10.2021

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