Madras High Court
Senthilkumar vs State Rep By Its on 2 September, 2021
Crl.A(MD) No.31 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A (MD)No.31 of 2016
Senthilkumar : Appellant
Vs.
State rep by its
The Inspector of Police,
Thuvarankurichi Police Station,
Trichy City.
(in Crime No.260 of 2013) : Respondent
PRAYER: The Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure, to allow the appeal and set aside the
judgment dated 08.01.2016 made in Spl.S.C No.12/2014 on the file of
the Sessions Judge, Mahila Court, Tiruchirapalli.
For Petitioner : Mr.N.Anandakumar
For Respondent : Mr.E.Antony Sahaya Prabahar
Government Advocate (crl.side)
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Crl.A(MD) No.31 of 2016
JUDGMENT
This present Criminal Appeal is filed against the conviction and
sentence dated 08.01.2016 made in Spl.S.C No.12/2014 on the file of
the learned Sessions Judge, Mahila Court, Tiruchirapalli.
2.The appellant is the sole accused. He stood charged for the
offence punishable under Section 6 of Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred as “POCSO Act”) and
Section 450 of IPC r/w Section 3(1)(XII) of Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act. After full-fledged trial,
the learned Sessions Judge, Mahila Court, Tiruchirapalli, came to the
conclusion that the appellant was found guilty for the offence under
Section 8 of POCSO Act and Section 451 of IPC and accordingly, the
appellant was convicted under Section 8 of POCSO Act and sentenced to
undergo Rigorous Imprisonment for five years and to pay a fine of
Rs.1,000/-, in default, to undergo simple Imprisonment for three months.
Further he has been convicted under Section 451 of IPC and sentenced to
undergo Rigorous Imprisonment for one year and to pay a fine of
Rs.500/-, in default, to undergo simple Imprisonment for one month. The
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sentences are directed to run concurrently. In respect to the other offence,
the accused was acquitted. Challenging the said conviction and sentence,
the appellant is before this Court, by way of filing the present Criminal
Appeal.
3. The case of the prosecution in brief is as follows:-
(i) PW1- the victim girl aged about 9 years was studying in 4th
standard. During the relevant point of time, when she was playing in the
street, the accused came there and asked her to charge his mobile phone.
Obliging the request made by the accused, in order to charge the mobile
phone, she went to her home and during such time, the accused has
followed her. When at the moment the victim girl entered into her home,
the accused closed her mouth and after removing his kaily, the victim
girl's skirt, lay down on her. At that moment, PW5-Pradeep residing
nearby in order to return the pen, which was received from the victim
girl, came there and saw the occurrence. Immediately, on seeing the
occurrence, he stabbed the accused in his back side and afterwards, the
accused went off from the victim girl's house. Thereafter, PW5 informed
the occurrence to the villagers as well as PW2, who is the father of the
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victim. In turn, the villagers got the accused and brought him to the
Samathuvapuram. From where after getting information, the police
persons came there and took the accused. In this regard, the victim girl
along with her father went to the police station wherein PW2 lodged the
complaint before PW13.
(ii) PW13-Buvaneswari the then Sub Inspector of Police,
Thuvarankurichi Police Station on 25.12.2013 at 23.30 hours after
receipt of the complaint given by PW2, registered the case against the
accused in Crime No.260 of 2013 under Section 376 of IPC r/w Sections
4 and 10 of POCSO Act. The copy of the FIR was marked as Ex.P8 and
the complaint given by PW2 was marked as Ex.P2. After registration of
the case, he made arrangements for examining the accused and the victim
girl medically. During the time of medical examination,
PW10-Dr.Saravanan attached with Government Medical College
Hospital, Trichy, on 26.12.2013 around 12.30 noon examined the accused
and issued the certificate under Ex.P5 stating that there is nothing to
suggest that the above examined male individual is incapable of
performing sexual intercourse. In otherwise, he did not say that the
accused sustained any injury. Similarly, PW15-Dr.Thiruselvi attached
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with the same Hospital examined the victim girl and issued the Accident
Register copy under Ex.P12 that she is normal. She collected the vaginal
smear and sent the same for chemical examination. In the chemical
examination, there was no semen is detected. Along with Accident
Register she issued the discharge summary and the same was marked as
Ex.P13.
(iii) In continuation of investigation, on 26.12.2013, PW13 visited
the scene of occurrence and in the presence of PW6-Soundaram and one
Rasu, she prepared an observation mahazar under Ex.P3. She drew the
rough sketch and the same was marked as Ex.P9. On the same day,
around 8.00 am in the presence of PW7-Aathimoolam and Azhagar, she
recovered the skirt and midi dressed by the victim girl under a cover of
seizure mahazar under Ex.P4. She examined the witnesses and recorded
their statements. On the same day, around 15 hours she sent the accused
for remand and after completing the said formalities, she handed over the
case records to Deputy Superintendent of Police, Manaparai for further
investigation.
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(iv)PW16-M.Ganesan the then Deputy Superintendent of Police,
Manaparai Sub Division, on receipt of the case records from PW13 in
view of the order passed by the Superintendent of Police, dated
02.01.2014, conducted further investigation and during such time, under
Ex.P14 he submitted the requisition before the Chief Judicial Magistrate
for recording 164 Cr.P.C statement from PW1. In turn, in view of the
orders passed by the Chief Judicial Magistrate, the learned Judicial
Magistrate No.3, Trichy, on 07.04.2014, examined the victim girl and
recorded 164 Cr.P.C statement from PW1 under Ex.P1. In continuation of
investigation, PW16 recovered kaily (M.O.3) dressed by the accused
through Form-95. The same was marked Ex.P17. He submitted an
application before the learned Sessions Judge, Mahila Court, Trichy, for
sending the said material objects to chemical examination and thereafter,
in view of the proceedings issued by the learned Sessions Judge, PW11-
Jeya, who is the Scientific Assistant working in Forensic Science
Department, Trichy, examined M.O1 to M.O3 and issued the report under
Ex.P6 stating that there is no semen and blood detected in M.O1 to M.O.
(v) However, PW16 altered the Section of law under Ex.P16 from
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376 of IPC r/w Sections 4 and 10 of POCSO Act to 376 of IPC r/w
Sections 4 and 10 of POCSO Act r/w Section 3(1)(XII) of SC/ST Act.
Thereafter, since he got transfer, he handed over the case records to
PW17-R.Mutharasu for further investigation. PW17, the then Deputy
Superintendent of Police, Manaparai, on receipt of the case records from
PW16, examined the victim girl and recorded her statement. Ultimately,
after concluding the investigation, he came to the positive conclusion
that the accused herein is liable to be convicted under Section 6 of
POCSO Act, Section 450 of IPC and Section 3(1)(XII) of SC/ST Act and
filed the final report accordingly.
4.Based on the materials available on record, the trial Court framed
the charges for the offences under Section 6 of POCSO Act and Section
450 of IPC r/w Section 3(1)(XII) of SC/ST Act. The accused denied the
charges and opted for trial. Therefore, the accused was put on trial.
5.During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, 17 witnesses were examined as
PW1 to PW17 and 22 documents were exhibited as Ex.P1 to Ex.P22,
besides three material objects (M.O1 to M.O.3).
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6.(i)Out of the above said witnesses, PW1 being the victim girl
speaks about the occurrence as during the relevant point of time the
accused came into her house and after removing her dress, lay down on
her. She further states that during such time, PW5-Pradeep came there
and after seeing the said position, he stabbed the accused on his back side
and after seeing PW5, the accused went off from her house.
(ii)PW2-Sakthivel, who is the father of the victim girl, speaks
about the occurrence on 25.12.2013 around 6.30 pm when at the time he
was collecting entrance fee in the toilet, PW5 came there and reported
the occurrence. Immediately, he went to her home and on search, secured
the accused in bus stand. Thereafter, he lodged the complaint before the
Police Officer.
(iii)PW3- Mariammal who is the grandmother of PW1 claims that
on 25.12.2013 she heard the news and thereafter after securing the
accused, PW1, PW2 and herself went to the police station and lodged the
complaint. PW4-Muthuraman, who the resident of same locality, narrated
the occurrence as during the relevant point of time, there was a crowd
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found in the house of PW3.
(iv) PW5-Pradeep who is the student studying in 9th standard in
the school, in which, PW1 was studied speaks about the occurrence as
upon entering into the house of PW1 for returning the pen, which has
been received from PW1, he saw the accused herein in the position he
way lying on PW1. PW6-Soundaram has stated in respect to the
preparation of observation mahazar as PW13 prepared the observation
mahazar in his presence. PW7-Aathimoolam, is also a person attested in
the seizure mahazar gave evidence as PW13 recovered the skirt and midi
from PW1 in his presence.
(v) PW8-Vellasamy, alleged occurrence witness did not support the
case of the prosecution, hence, he was treated as hostile witness. PW9-
Kumar @ Adaikkalam who is the co-worker of the accused gave
evidence as the alleged occurrence was informed to him by PW2. PW10-
Dr.Saravanan gave evidence in respect to the examination of accused.
(vi) PW11-C.Jaya, who is the Scientific Assistant, Forensic
Science Department, gave evidence in respect to the examination of
M.O1 to M.O3. PW12-Veeramani, the then Tahsildar, Manaparai, speaks
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about the requisition given by Investigation Officer in respect to the
issuance of community certificate to PW1. According to him, PW1
belongs to community of Pallar which is recognized as Scheduled Caste.
Further, he certified that the accused belongs to the community of Hindu
Yathavar.
(vii) PW13-Buvaneswari, the then Sub Inspector of Police,
Thuvarankurichi, speaks about the receipt of complaint from PW2 and
about the registration of case. PW14-K.Alli, the then Judicial Magistrate,
gave evidence in respect to recording of 164 Cr.P.C statement from PW1.
PW15 Dr.Thiruselvi gave evidence in respect to the examination of
victim girl and about the issuance of Accident Register and discharge
summary. PW16 and PW17 are police officers speaks about the
investigation and about the filing of final report.
7.When the above incriminating materials were put to the accused
under Section 313 of Cr.P.C., the accused denied the same as false.
However, on his side, he examined three witnesses as DW1 to DW3.
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8.Out of the said witnesses, DW1-Palani gave evidence as on
17.11.2013 around 10.00 am the accused herein met him and reported the
quarrel happened in the hotel, in which he was working as Labourer.
DW-2 Aariyappan and DW3-A.Palanisamy are also gave similar
evidence as the accused herein is having the dispute with his master in
respect to the payment of salary and other things.
9.Having considered all the above, the learned Sessions Judge,
Mahila Court, Tiruchirapalli, came to the conclusion that the accused
found guilty for offence under Section 8 of POCSO Act and Section 451
of IPC and sentenced as stated in paragraph No.2 of this judgment.
Aggrieved by the said conviction and sentence, the appellant/accused is
before this Court with this appeal.
10. I have heard Mr.N.Anandakumar, learned counsel appearing
for the appellant/accused and Mr.E.Antony Sahaya Prabahar, learned
Government Advocate (crl.side) appearing for the State and also perused
the records carefully.
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11.The learned counsel appearing for the appellant would contend
that the evidences given by the prosecution witnesses are having lot of
contradictions in respect to the alleged occurrence. Only the evidence
found available in support of the evidence given by PW1 is the evidence
given by PW5. He would further submit that since PW1 and PW5 are the
children, their evidence has to be looked into with great caution and in
otherwise, the learned trial Judge without looking into their evidence
with great caution and without looking into the contradictions found in
their evidence, convicted the accused, which is erroneous in law.
12.Per contra, the learned Government Advocate appearing for the
respondent would contend that the evidence given by the prosecution
witnesses in respect to the occurrence are cogent and in the farm of
inspiring the confidence of this Court. Only because of the reason that
PW1 and PW5 alleged eye witnesses are the child witnesses, their
evidence cannot be thrown away easily. According to him, interference
of this Court in the finding arrived at by the trial Court does not require.
13.I have considered the rival submissions made by the learned
counsel appearing on either side.
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14.It is the evidence given by PW15 is that the age of the victim
girl is 9 years at the time of occurrence. Though there is no document
has been produced to show the age of PW1/victim child, during the
course of trial proceedings on the side of the accused, there was no denial
that PW1 is not a child having 9 years at the time of occurrence. So, in
order to resolve the issue raised in this appeal, this Court has determined
the age of the victim girl as 9 years.
15.Secondly, on going through the nature of the allegations
levelled against the accused during the relevant point of time, the
accused in the absence of others in PW1's home after removing the skirt
and midi owned by the PW1, lay down on her and assaulted her sexually.
In this occasion, in respect to sexual assault, Section 7 of POCSO Act
has narrated as follows:-
“7. Sexual Assault:- Whoever, with sexual intent
touches the vagina, penis, anus or breast of the child or makes
the child touch the vagina, penis, anus or breast of such
person or any other person, or does any other act with sexual
intent which involves physical contact without penetration is
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said to commit sexual assault.”
16.Now on going through the said definition, the same appears
for proving the offence of sexual assault, it would necessary to
see the following ingredients:-
1.touching the vagina, penis, anus, or breast of the
child;
2.making the child touch the vagina, penis, anus, or
breast of such person or any other person;
3.doing any other act which involves physical contact
without penetration.
17.All of the above acts, however, must have been done with
‘sexual indent'. On that score, applying the materials available in this
case, the evidence given by PW1 is very clear that during the time of
occurrence, the accused came there and after made request to charge his
mobile phone, when at the time she was entered into her house, he
followed her and after removing the skirt and midi, lay down on her. The
said evidence is corroborated through the evidence of PW5, who is also
the student studying in the same school. His evidence is fully in support
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of the evidence given by PW1 as after seeing the position of PW1, he
stabbed the accused on his back side and thereafter, the accused is run
away from the scene of occurrence. The entire cross examination of
PW1 and PW5 was not in the form of assailing the character and validity
of the chief examination given by PW1 and PW5 in respect to the
occurrence. Therefore, their evidence in respect to the sexual assault
committed by the accused is more than sufficient to hold that the story
put forth by the prosecution is found correct.
18.Yet another circumstance found available in support of the case
of the prosecution is that as per the evidence of PW5 after the
occurrence, he reported the same to the neighbours as well as to the
father of PW1. In this regard, the father of PW1 has stated in his
evidence as PW5 alone reported the occurrence to him. On the other
hand, it is the case of the prosecution that PW2 lodged the complaint
before the police station on the same day in night hours. The evidence
given by PW13, who is the Police Officer is also in support of the same
that on the date of occurrence itself PW2 came there and lodged the
complaint. Further, the fact that the peoples gathered in the occurrence
place secured the accused and produced before the police, is also not
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denied on the side of the accused. So, in all the evidence given by the
prosecution witnesses, is fully in support of the case of the prosecution
and inspired the confidence of this Court.
19.On considering the submission made by the learned counsel
appearing for the accused in respect to the evidence given by the child
witnesses, it would be relevant to see Section 118 of Indian Evidence act
1988, which states that there is no minimum age for the witness. The
children have three years old have been given evidence before the trial
Court in the case of sexual assault. In general, any person who appears
before a Court so as to give evidence against any person involved, is
called as witness. In otherwise, any person may be a witness, who can
understand the question put to him and rationally answer them. Further,
usually during the trial, the Court before recording the testimony of the
child witnesses, put questions regarding his or her competency on the
basis of their ability to give rational answer. In this regard, now on go
through the deposition recorded by PW1 and PW5, the learned trial
Judge before recording the testimony, put so many questions and only
after came to the conclusion that the child is capable for giving evidence,
then only the said evidence is recorded.
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20.In order to consider the competency of the child as a witness the
Court conducts the test called “voir dire”. In this case, the judge
personally asked the questions which are unrelated to the case to a child
before starting the proceedings of the case, in order to determine whether
the child is of a rationale and sound mind or not. Some of the questions
put forth by the Court are name of the child, place of residence, date of
birth, name of the school, etc. If the Court is fully satisfied with the
answers given by him during the enquiry done by them, then only the
Court can recorded the statements. As already stated, in this case also,
the said procedure is properly applied by the trial Court and therefore, I
am of the opinion that the evidence given by PW1 and PW5, who are
school going students, cannot be rejected merely on the ground that they
are child. Accordingly, the said submission made by the learned counsel
appearing for the appellant that the witness given by the child cannot be
accepted, is not having any much force.
21.The another submission made by the learned counsel for the
appellant that PW2 and the accused is having enmity and due to the
same, a false case has been foisted against the accused. In this regard, it
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would be relevant to see the evidence given by DW1 to DW3. All the
witnesses examined on the side of the accused as DW1 to DW3 have
stated that there was a dispute between the accused and his Master and
not with PW2. In the said circumstances, in order to prove the previous
enmity except the evidence of DW1 to DW3, no material is shown on the
side of the accused that the accused and PW2 is having previous enmity.
Accordingly, this submission also is not having any much force to
disbelieve the evidence given by PW1.
22.It is the contention raised by the learned counsel appearing for
the accused that the Doctor, who examined the victim girl has not stated
about the injury sustained by the victim. He has further added that if
such type of occurrence narrated by the prosecution is occurred,
definitely it would be possible to cause injury to the victim girl.
23.Now, on considering the said submission, it is true on going
through the Accident Register (Ex.P12) and discharge summary (Ex.P.13)
issued by the Doctor, who examined the victim girl, stated that there was
no injury found on the body of the victim girl. May be the doctor who
examined the victim girl has stated in his cross-examination as if the
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person lied over on the child, there may be a possibility of causing injury.
Considering the said evidence with the normal course, it is not at all
necessary that every child has to be sustained injury in these type of
occurrence. More than that, it is the case of the prosecution that
immediately after lied over the victim girl, PW5 came there and stabbed
the accused. So, in the said circumstances, only because of the reason
that the child is not sustained any injury, we cannot disbelieve the entire
case of the prosecution as false one.
24. So in all, on going through the evidence given by the
prosecution witnesses and the exhibits marked on the side of the
prosecution, I am of the considered opinion that the prosecution has
proved its case beyond reasonable doubt. However, on going through the
punishment awarded to the accused, the trial Court convicted the accused
under Section 8 of the POCSO Act which is nothing, but erroneous in
law. In fact, on a conjoint reading of Sections 7 to 9 of POCSO Act, it
seems that if the person committed an offence of sexual assault on a child
below 12 years, the same has come under the purview of Section 9 (m) of
the POCSO Act, which means the sexual assault termed as aggravated
sexual assault. The learned trial Judge without following the said aspect,
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convicted the appellant under Section 8 of POCSO Act, which is found
not correct. However, the same cannot be a reason for allowing the
appeal and thereby, he is liable to be convicted under Section 9 (m) of
POCSO Act.
24.In the light of above discussions stated supra, I find that the
accused is guilty under Section 9(m) of POCSO Act, convicted and
sentenced to undergo Rigorous Imprisonment for five years and to pay a
fine of Rs.1,000/-, in default, to undergo simple Imprisonment for three
months. In respect to other offence, the conviction and sentence awarded by
the trial Court is confirmed. The sentences are ordered to run
concurrently. The period of imprisonment already undergone by the
appellant shall be set off. Bail bond, if any, executed by the appellant
shall stand cancelled. The trial Court is directed to secure the appellant
and commit him in prison to undergo the remaining period of sentence.
25. In view of the above modification, this Criminal Appeal is
Dismissed.
02.09.2021
Index : Yes/No
Internet : Yes/No
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Crl.A(MD) No.31 of 2016
To:-
1.The Sessions Judge, Mahila Court, Tiruchirapalli.
2.The Inspector of Police,
Thuvarankurichi Police Station,
Trichy City.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section records,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD) No.31 of 2016
R.PONGIAPPAN,J.
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02.09.2021
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