Madras High Court
Periyasamy vs State Rep.By on 7 October, 2021
Crl.A.No.760 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:07.10.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.760 of 2019
1.Periyasamy
2.Sangeetha ... Appellants
Versus
State Rep.by
The Inspector of Police,
Edapadi Police Station,
Salem District. ... Respondent
(Crime No.282 of 2015)
Criminal Appeal is filed under Section 374 (2) of Criminal Procedure
Code, to set aside the Judgment dated 05.01.2019 in Spl.S.C.No.51 of 2015
on the file of the Mahila Court, Salem.
For Appellants : Mr.R.Ezhilarasan
For Appellants : Mr.K.Thirukkumaran,
Legal Aid Counsel
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
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1/18
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Crl.A.No.760 of 2019
JUDGMENT
The Criminal Appeal has been filed against the conviction and
sentence passed vide Judgment, dated 05.01.2019 made in Spl.S.C.No.51 of
2015, by the learned Sessions Judge, Mahila Court, Salem, Salem District.
2.The respondent/police have initially registered a case in Crime
No.282 of 2015, for the offence of “Girl Missing”, as against the appellant/
accused-A2.
3.After completion of the investigation respondent/police laid a
charge sheet for the offences under Section 363, 366 of IPC., and Section 6,
of the POCSO Act, 2012, as against the first accused. However, as against
the second accused/A2, the charge sheet has been filed for the offence under
Section 363, 366(A) of IPC., and under Section 16 of POCSO Act which is
punishable under Section 17 of the POCSO Act, and the same was filed
before the Special Court, since the offence is against the woman,
particularly child, which falls under the definition of 2(1)(d) of the POCSO
Act.
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4.The learned Special Judge, after completing the formalities under
Section 207 of Cr.P.C., and also under Section 209 of Cr.P.C., framed the
charges against the first appellant for the offences under Sections 363, 366
of IPC., and Section 5(l), which is punishable under Section 6 of the
POCSO Act and as against the second appellant charges were framed for the
offences under Sections 363, 366(A) of IPC., and under Section 16 which is
punishable under Section 17 of POCSO Act.
5.After framing of charges, during trial, in order to prove the case of
the prosecution, on the side of the prosecution, as many as 14 witnesses
were examined as P.W.1 to P.W.14 and as many as 22 documents were
exhibited as Exs.P.1 to Ex.P.22. Besides 2 material objects were exhibited
as M.O.1 & M.O.2.
6.After completing the examination of prosecution witnesses, when
incriminating materials culled out from the evidence of prosecution
witnesses were put before the accused by questioning under Section 313 of
Cr.P.C., they denied the same as false and pleaded not guilty. On the side of
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Crl.A.No.760 of 2019
the defence, one Chinnadurai was examined as D.W.1 and no document was
produced.
7.On completion of trial, after hearing the arguments advanced on
either side, and considering the facts and materials, the Trial Court found
the first appellant guilty and convicted him for the offence under Section
363, and sentenced to undergo 7 years rigorous imprisonment and to pay
fine of Rs.10,000/- , in default, to undergo six months simple imprisonment
and for the offence under Section 366 of IPC., he was sentenced to undergo
10 years rigorous imprisonment and to pay fine of Rs.10,000/-, in default, to
undergo six months simple imprisonment and also he was convicted for the
offence under Section 6 of the POCSO Act, and sentenced to undergo 10
year rigorous imprisonment and to pay fine of Rs.10,000/- in default, to
undergo six months simple imprisonment.
8. The trial court also convicted the second appellant for the offence
under Section 363, and sentenced to undergo 7 years rigorous imprisonment
and to pay fine of Rs.10,000/- , in default to undergo six months simple
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Crl.A.No.760 of 2019
imprisonment and for the offence under Section 366(A) of IPC., she was
convicted and sentenced to undergo 10 year rigorous imprisonment and to
pay fine of Rs.10,000/-, in default to undergo six months simple
imprisonment and for the offence under Section 17 of the POCSO Act, she
was sentenced to undergo 10 year rigorous imprisonment and to pay fine of
Rs.10,000/-, in default to undergo six months simple imprisonment.
However, all the sentences were ordered to run concurrently and the period
already undergone by the appellants was ordered to be set off, as per Section
428 of Cr.P.C.,
9.Challenging the said Judgment of conviction and sentence passed
by the Special Court, both appellants have preferred the present appeal
before this Court.
10.The learned counsel for the appellants/accused would submit that
it is the duty of the prosecution to prove the age of the victim girl, but, in
this case, it has failed to do so. For proving the age of the victim girl, the
prosecution has produced Ex.P5/bonafide certificate, which was issued by
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Crl.A.No.760 of 2019
the Headmaster of the school, where the victim girl studied. As the victim
girl studied in that school it may not be too heavy for the prosecution to
produce the vital documents viz., transfer certificate, community certificate,
mark sheet of the victim girl or any of the documents produced by the
parents of the victim girl, to the school, at the time of admission, but, it has
not done so. EX.P5/bonafide certificate, is not a conclusive evidence, which
does not prove the age of the victim and it is not sufficient to believe that
she has not completed the age of 18 years. Therefore, it is a fatal to the case
of the prosecution.
11.Further, the learned counsel for the appellants/accused would
submit that with the consent of the victim girl only the second appellant
took the victim girl and arranged the marriage with the first appellant, other
than that she did nothing. After their marriage, the first appellant had sexual
intercourse with the victim girl. The mother of the victim girl foisted a false
case against the second appellant that the victim girl is a minor and she was
abducted by the second appellant. In any event, the prosecution failed to
prove the age of the victim that she was a child under the definition of the
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Crl.A.No.760 of 2019
POCSO Act, therefore, the act committed by the first appellant does not
falls under Section 6 of the POCSO Act and also the act committed by the
second appellant is also not punishable under Section 17 of the POCSO Act
or other offences under Indian Penal Code. When the prosecution failed to
proves its case beyond reasonable doubt the benefit of doubt must be
extended against the appellants. But, the Trial Court wrongly convicted the
appellants, for the said offences, which warrants interference of this Court.
12.The learned Government Advocate (crl.side) would submit that the
school Headmaster was examined as P.W.4 and the parents of the victim girl
had produced the Transfer certificate to the Investigation officer, during
investigation. In order to get the certificate from the school, they shown
Transfer Certificate to the school Headmaster/P.W.4, who has clearly stated
that victim girl discontinued her studies and she studied up to 10 th standard.
P.W.2/victim girl also clearly stated that she discontinued her studies at 10 th
standard. Though PW.4/Headmaster has stated that at the time of admission
for verification some documents were produced and the parents of the
victim girl have also stated that they produced relevant documents, except
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Ex.P5/bonafide certificate, the defence has not proved contra to the
certificates otherwise for proving the date of birth of the victim girl.
13.However, at the time of arguing the case, the learned Government
Advocate (crl.side) has produced a copy of the Transfer Certificate, which
clearly shows that the victim girl studied in the Government Girls Higher
Secondary School, Edapadi. On 11.06.2012, the victim girl has got
admission in the said school for studying 10 th standard, in which, the date of
birth of the victim girl was mentioned as 03.06.1998. During chief
examination, P.W.2/victim girl, has clearly stated about her date of birth
that she was born on 03.06.1998 and her parents also confirmed the same.
As per Section 94(2) of the Juvenile Justice ( Care and Protection of
Children) Act, 2015, once it is certified in the Transfer Certificate, the age
of the victim by the Educational authority and produced to the Court or
Juvenile Board, the presumption is that the age mentioned in such certificate
is genuine, unless, the contrary is proved. Therefore, as per the document,
the date of birth of the victim girl is 03.06.1998.
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14.Therefore, this Court finds that Transfer Certificate, which is
produced before this Court at the time of hearing the case, is admissible.
However, though the parents of the victim girl have produced the Transfer
Certificate of the victim at the time investigation, the Investigation Officer
has failed to produce the said vital document, but he only produced a
bonafide certificate, to prove the age of the victim girl under Ex.P5, which
was issued by P.W.4/Headmaster. Therefore, it clearly shows the lethargic
attitude of the Investigation Officer, and they do not understand the object
and scope of the POCSO Act. Further, the Investigation Officer does not
known, how to proceed with the case of POCSO Act.
15.Thus, this Court has come to the conclusion that the prosecution
has proved its case that the age of the victim is below 18 years and she is
child under the definition of the POCSO Act and there is no contra evidence
laid by the defence. Therefore, Ex.P5/certificate reveal the correct date of
birth of the victim girl, since the same was mentioned in the Transfer
Certificate, which was produced before this Court, at the time of arguments
by the learned Government Advocate (crl.side) appearing for the
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respondent. Therefore, this Court concludes that the date of birth of the
victim girl is 03.06.1998 and the date of occurrence was 10.06.2015,
therefore, at the time of occurrence, the age of the victim is only 17 years
and she has not completed the age of 18 years, hence, the offence
committed by the appellants are punishable under the POCSO Act.
16.This Court time and again condemns that the prosecution agencies
have to mark all the relevant documents during the trial as exhibits in the
POCSO Act, and also to impart training to the stakeholders, but, still the
same attitude of the Investigation Officers are continuing. This Court hopes
that the State Government as well as the Central Government would initiate
a training programme to the stakeholders, as far as offence of this nature is
concerned. This Court, therefore, directs the Director General of Police to
take necessary action for imparting proper training to the investigating
officers, as otherwise such faulty investigation would lead to the accused
being let out on technicalities.
17.As far as the charges against the first appellant, regarding Section
363 and 366 of IPC., are concerned, the evidence of PW.1/mother of the
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victim and P.W.2/victim girl, would show that the victim girl was
kidnapped and subjected to penetrative sexual assault.
18.Though the learned counsel for the appellant would submit that
with the consent of the victim only, the appellants have taken the victim and
even the victim is also on her own volition eloped with the appellants, since
victim is a child, her evidence is immaterial and the ingredients of Section
361 of IPC., clearly states that if any minor girl below 18 years is removed
by any person, from the custody of lawful guardian, without their consent it
amounts to kidnapping and it falls under Section 361 of IPC., which is
punishable under Section 363 of IPC., for the purpose of having illegal
intimacy with her. The victim girl was removed from the lawful guardian
and during that period the first appellant had illicit sexual intercourse with
her, it satisfies the ingredients of Section 363 of IPC., therefore, on
combined reading of the evidence of P.W.2/victim girl and also her
statement recorded under Section 164 of Cr.P.C., marked under/Ex.P.21 and
Ex.P22/statement of the mother of the victim girl recorded under Section
164 of Cr.P.C., it is clear that the second appellant took the victim from the
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lawful guardian without their consent and the first appellant had sexual
intercourse with her. Therefore, the offence committed by the second
appellant is punishable under Section 363 and 366 of IPC.
19.As far as the penetrative sexual assault is concerned, the victim
girl/ P.W.2, has clearly narrated the incident that even prior to the statement
recorded before the learned Judicial Magistrate viz., EX.P.21, the Doctor,
who examined the victim girl has stated that the victim was subjected to
penetrative sexual assault and her hymen was not in intact.
20.The learned counsel for the appellant would submit that there was
no external injury and there is no possibility of forceful sexual intercourse
and it is only a consented sexual intercourse. As already stated it is proved
from the evidence of P.W.2/victim girl's statement of 164 Cr.P.C., to
substantiate the victim evidence, the same was corroborated with the
evidence given by the Medical Officer and the medical report has also
shows that the victim was subjected to the penetrative sexual assault. Even
assuming that the victim girl has not resisted and with the consent of the
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Crl.A.No.760 of 2019
victim only cohabitation has happened, still it attracts the offence under the
definition of POCSO Act because, the victim girl has not completed the age
of 18 years and the consent of the child is an immaterial. The POCSO Act,
does not speak about the consent, either with or without consent, it is not
applicable to this case, since the victim is a child.
21.Therefore, under these circumstances, the contention raised by the
learned counsel for the appellants is immaterial and on combined reading of
the evidence of P.W.1, P.W.2, P.W.3/Doctor, P.W.4/Headmaster,
P.W.10/Forensic expert, P.W.12/Doctor, who examined the victim girl
issued the age certificate of the victim girl, which was marked as Ex.P.12,,
Ex.P.13/Chemical analysis report of the victim girl, Ex.P.22 the previous
164 Cr.P.C., statement of the mother of the victim girl recorded by the
learned Judicial Magistrate and Ex.P21 is the statement recorded under 164
of Cr.P.C., of the victim girl, by the learned Judicial Magistrate, all the
above, this Court finds that the first appellant has committed the offences
under Sections 363 and 366 of IPC., and Section 6 of the POCSO Act.
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22.As far as second appellant is concerned, P.W.2 /victim girl has
clearly stated that the second appellant and the first appellant had taken her
to Edapadi, thereafter, to Avinashi, where the second appellant insisted the
victim girl to marry the first appellant and arranged for the marriage.
Thereafter, they went to Tiruppur Murugan Temple and the first appellant
had forcibly tied a Thali on the victim girl's neck. Thereafter, they went to
Avinashi and took a house for rent and they stayed there for about 10 days.
During that period, the first appellant had sexual intercourse with her
without consent of the victim girl. Therefore, the parents of the victim girl
had lodged a complaint of “Girl Missing”. After investigation, the victim
was produced before the learned Judicial Magistrate and recorded the
statement under Section 164 of Cr.P.C., and also produced before the
Doctor. Therefore, the second appellant also along with first appellant
committed the offence. It clearly shows that both the husband and wife
forcefully taken the victim girl to various places and also forcibly tied Thali,
but the marriage was not proved by the prosecution.
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23.However, the prosecution proved both appellants are husband and
wife, they had taken the victim girl from the custody of the lawful guardians
without their consent and stayed away from the house. During that time, the
first appellant had sexual intercourse with her, therefore, the act of the first
appellant is punishable under Section 363 and 366 of IPC and Section 6 of
the POCSO Act. Since, the second appellant insisted the victim girl to marry
the first appellant and took away the victim girl for the purpose of having
illicit sexual intercourse with the first appellant, the act of second appellant
falls under Section 17 of the POCSO Act, and also attracts the Section 366
(A) of IPC.,
24.Therefore this Court is a final court of fact finding, this court
carefully perused the materials available on record and finds that the
prosecution has proved its case beyond all reasonable doubt and the Trial
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Court has rightly appreciated the entire evidence and convicted the
appellants. While, re-appreciating the entire evidence, this Court found both
appellants guilty of the offence. Hence, there is no merit in the appeal.
Accordingly, the appeal is liable to be dismissed.
07.10.2021
Index : Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
klt/pbl
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Crl.A.No.760 of 2019
To
1.The Inspector of Police,
Edapadi Police Station,
Salem District.
2.The learned Sessions Judge,
Mahila Court, Salem, Salem District.
3.The Public Prosecutor,
High Court of Madras.
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Crl.A.No.760 of 2019
P.VELMURUGAN, J.,
klt/pbl
Crl.A.No.760 of 2019
07.10.2021
https://www.mhc.tn.gov.in/judis
