Rameshkumar vs State Rep. By
2021 Latest Caselaw 18263 Mad

                                                                              CRL A No.505 of 2020


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 07.09.2021
                                                      Coram:

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                             Criminal Appeal No.505 of 2020

                     Rameshkumar                                   ... Appellant / Accused
                                                          Vs.
                     State rep. by
                     The Inspector of Police
                     All Women Police Station
                     Gobichettipalayam
                     Erode – District
                     (Crime No.2 of 2017)                          ... Respondent/Complainant

                     Prayer :         Criminal Appeal filed under Section 374(2) of Criminal
                     Procedure Code, praying to allow the criminal appeal by setting aside the
                     Judgment made in Special Session Case No.11 of 2018 on the file of the
                     Sessions, Magalir Neethi Mandram, (Fast Track Mahila Court), Erode
                     dated 09.01.2020.

                                      For Appellant          : Mr.D.Veerasekharan

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




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https://www.mhc.tn.gov.in/judis/
                                                                               CRL A No.505 of 2020


                                                    JUDGMENT

(The case has been heard through video conference)

This Criminal Appeal has been filed against the Judgment made in

Special Session Case No.11 of 2018 dated 09.01.2020 passed by the

learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila

Court), Erode.

2. The respondent police registered the case against the appellant

in Crime No.2 of 2017 for the offence punishable under Section 6 of

POCSO Act and also Section 506 (i) of IPC. After investigation laid the

charge sheet before the Special Court, Mahila Court, Erode since the

offence is against a woman particularly against a child under the

definition of 2(1)(d) of POCSO Act. The learned Special Judge after

completing the formalities, taken the charge sheet on file in

Spl.S.C.No.11 of 2018 and framed charges against the appellant for the

offence under Section 450 IPC and under Section 5(j)(ii) and 5 (l) which

are punishable under Section 6 of POCSO Act and also under Section

506(i) IPC.

3. After completing the formalities regarding the charges, during

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trial, in order to prove the case of the prosecution, on the side of the

prosecution as many as 17 witnesses were examined as P.W.1 to P.W.17

and 27 documents were marked as Exs.P1 to P27 besides 1 material

object (X-ray 3 nos.) was exhibited and one Court document was marked

as C1.

4. After completing the examination of the evidence of the

prosecution witnesses, incriminating circumstances culled out from the

evidence of the prosecution witnesses were put before the appellant by

questioning under Section 313 Cr.P.C. However, he denied the same as

false and pleaded not guilty. On the side of the defence one witness was

examined as D.W.1 and one document was marked as Ex.D.1.

5. On completion of trial and hearing the arguments advanced on

either side and considering the materials, the trial Court not found guilty

of the accused for the offence under Sections 450 and 506(i) IPC and

acquitted him. However, found him guilty for the offence under 5(j)(ii)

and (l) and convicted him under Section 6 of POCSO Act and sentenced

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him to undergo 20 years rigorous imprisonment and to pay fine of

Rs.1,00,000/- in default to undergo three months simple imprisonment

and the amount of Rs.1,00,000/- imposed and recovered as find to be

paid to the victim girl after appeal time or appeal is over. Challenging

the said Judgment of conviction and sentence, the appellant has filed the

present appeal before this Court.

6. The learned Counsel for the appellant would submit that the

prosecution has not proved the age of the victim and the age of the victim

at the time of offence was more than 18 years and she was not a child

under the definition of 2(1)(d) of POCSO Act. Further, Ex.D1/birth

certificate of the victim which has been marked on the side of the

defence clearly shows that the said certificate was registered only after

the occurrence in order to bring the appellant into the offence under the

POCSO Act and the prosecution has concocted the birth certificate of the

victim which clearly shows that the victim was not a child at the time of

occurrence. He would further submit that the appellant has not

committed any offence much less the offences under Section 5 of

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POCSO Act and the prosecution failed to prove its case beyond all

reasonable doubt. He would submit that from the very same evidence, the

trial Court came to the conclusion that the prosecution failed to prove its

case for the offence under Section 450 and 506(i) IPC and acquitted the

appellant from the said charges. However, from the very same evidence,

the trial Court wrongly convicted the appellant for the offence under

Section 5(j)(ii) and (l) of POCSO Act. Even assuming that he has

committed the offence under Section 5 of POCSO Act, the minimum

sentence prescribed for the offence punishable under Section 6 of

POCSO is only 10 years whereas, the trial Court has wrongly imposed

sentence of 20 years rigourous imprisonment. He would reiterate that

there was no forcible sexual assault and the victim had already became

major and she was not a child and that it was a consensual sex. However,

he would pray at least the sentence may be reduced.

7. The learned Government Advocate (Crl. Side) would submit

that the age of the victim at the time of occurrence was only 16 years.

The appellant is a married man who has got two children and the victim

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was a minor and she was a child under the definition of 2(1)(d) of

POCSO Act. The appellant committed penetrative sexual assault and

made the victim child to became pregnant. Subsequently, she gave birth

to a female baby and after medical examination, the DNA profiles were

sent to the Forensic Lab and the report clearly shows that the appellant is

the biological father of the female baby born to the victim child which

itself shows that the appellant has committed penetrative sexual assault

on the victim child and which falls under Section 5(j)(ii) and (l) of the

POCSO Act. Therefore, the trial Court from the evidence of the victim

child as well as the medical evidence and Forensic report has arrived to

the conclusion that the prosecution proved its case beyond all reasonable

doubt. Though, the trial Court found that the prosecution not proved the

charges for the offence under Sections 450 and 506(i) IPC, however, the

prosecution proved its case for the offence under Section 5(j)(ii) and 5(l)

of POCSO Act and thereby, convicted the appellant and sentenced him to

undergo 20 years rigorous imprisonment. Though the minimum sentence

prescribed at the relevant point of time for the offence punishable under

Section 6 of POCSO Act was 10 years, the offence committed by the

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appellant are two sets of offence viz. (1) the appellant made the victim

child became conceive which falls under Section 5(j)(ii) of POCSO Act

and (2) the appellant has had sexual intercourse with the victim child

more than once which falls under Section 5(l) of POCSO Act. Therefore,

the trial Court taking into account of the fact that the appellant who is a

married man and got two children, committed repeated penetrative sexual

assault on the victim child who was only aged 16 years and made her to

conceive and subsequently, she gave birth to a female baby, rightly

imposed sentence of 20 years rigorous imprisonment and there is no

mitigating circumstances. Therefore, the appeal is liable to be dismissed.

8. Heard the learned Counsel for the appellant and the learned

Government Advocate (Crl. Side) appearing for the respondent and

perused the materials on record.

9.The case of the prosecution is that P.W.1 is the mother of the

victim/P.W.2. P.W.1/the mother of the victim was working at Mysore as a

sanitary worker and her father was staying at Sirumugi and works as a

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Coolie. Once, P.W.1/the mother of the victim came home, she found her

daughter's belly bigger and when she asked, her daughter/P.W.2 replied

that she had food just then. Next time, when P.W.1/the mother of the

victim came home, her daughter cried due to stomach pain. Therefore,

she took the victim/P.W.2 to a nearby Government hospital wherein, it

was informed that her daughter / P.W.2 was pregnant and was about to

deliver baby. When P.W.1/the mother of the victim enquired, the

victim/P.W.2, she said that the accused is the reason for the same and he

had also criminally intimidated her not to disclose the same to any one.

Hence, the complaint.

10. Since in this case, this Court is the appellate Court of fact

finding, it has to re-appreciate the entire evidence independently and to

give its findings. Accordingly, this Court pursued the entire materials

and the Judgment of the trial Court.

11. In order to substantiate the charges framed against the

appellant, on the side of the prosecution as many as 17 witnesses were

examined as P.W.1 to P.W.17 and 27 documents were marked as Exs.P1

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to P27 besides 1 material object (X-ray 3 nos.) was exhibited and one

Court document was marked as C1.

12. The victim was examined as P.W.2 and she has clearly narrated

the incident. In order to prove the age of the victim, the prosecution

marked Ex.P.12/the transfer certificate of the victim girl issued by the

Department of School Education in which the date of birth of the victim

is mentioned as 14.10.2001. Though the learned Counsel for the

appellant pointed out that the Ex.D1/the birth certificate of the victim has

been registered only on 04.07.2018 which is after the occurrence only for

the purpose of showing the victim as minor, however, even in Ex.D1, the

date of birth of the victim is only mentioned as 14.10.2001 which

corroborate the document Ex.P.12. On 04.07.2018 is the date of

application for obtaining the copy of the birth certificate, but not the date

of registration.

13. A careful perusal of Ex.P.12/transfer certificate of the victim

child and Ex.D1/birth certificate of the victim child clearly shows that

the date of birth of the victim is 14.10.2001 and the date of occurrence is

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on 14.10.2016. However, the complaint has been given on 13.10.2017.

Even at that time of complaint, the victim was only 17 years. Ex.P.4 is the

birth certificate of the baby born to the victim child which shows that the

victim child gave birth to a female baby on 07.10.2017.

14. A complete reading of P.W.2, Ex.P.12 and Ex.D1 shows that on

the date of occurrence the victim was a minor and she had not completed

the age of 18 years and she was a child under the definition of 2(1)(d) of

POCSO Act. Even in the Accident Register/Ex.P.15, the age of the victim

is mentioned as 17 years. Section 94(2) of the Juvenile Justice (Care and

Protection of Children) Act, says about Presumption and Determination

of age as to prove the age of the Juvenile as well as the victim by

evidence.

15. Therefore, this Courts finds that on the date of occurrence, the

victim was only 16 years old and the documents are genuine one. The

entry is made in the public records and the defence has not proved

anything contrary of Ex.P.12/transfer certificate and therefore, as per

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Ex.P.12/transfer certificate of the victim, on the date of occurrence, the

victim was only 16 years and she was a child under the definition of

2(1)(d) of POCSO Act. As far as Section 5(j)(ii) and 5(l) of POCSO are

concerned, the victim during examination as a witness P.W.2, she has

clearly narrated the entire incident. Further, the evidence of

doctors/P.W.6, P.W.7, Ex.P.9/certificate issued by the doctor, Ex.P.4/birth

certificate of the female baby born to the victim child and the DNA Test

Report, clearly shows that the appellant committed the offence under

Sections 5(j)(ii) and 5(l) of POCSO Act which are punishable under

Section 6 of POCSO Act. Once the prosecution proved that from the

DNA profile that the appellant is the biological father of the child born

to the victim, then it is for the appellant to rebut the presumption that the

appellant has not committed penetrative sexual assault on the victim. In

this case, the appellant has not rebutted the presumption in the manner

known to law. Therefore, this Court as a final Court of fact finding Court

finds that the appellant has committed aggravated penetrative sexual

assault on the victim child under Section 5(j)(ii) and 5(l) which are

punishable under Section 6 of POCSO Act. Therefore, considering the

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facts and circumstances of the case, this Court does not find any merit in

the appeal and the appeal is liable to be dismissed.

16. As far as the quantum of sentence is concerned, the learned

Counsel for the appellant pointed out that the minimum sentence at the

relevant point of time was only 10 years. Though on the date of

occurrence, Section 6 of POCSO Act prescribed the minimum sentence

of 10 years, however, it can be extended to life. Even then, the appellant

has committed 2 sets of offence. One is, the appellant made the victim to

conceive and subsequently, she gave birth to a female child which falls

under Section 5(j)(ii) of POCSO Act. The other one is, the appellant has

had penetrative sexual intercourse with the victim child more than once

which falls under Section 5(l) of POCSO Act. this Court does not find

any mitigating circumstances to award the minimum sentence. Further,

Section 6 of POCSO Act prescribes sentence up to life. Therefore, this

Court does not find any mitigating circumstances to reduce the sentence.

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17. Taking into account of the fact that the appellant is a married

man and got two children and made the victim child pregnant who was

aged 16 years and subsequently, she gave birth to a female child, this

Court is of the opinion that the appellant does not deserve to be shown

any leniency for reducing the sentence imposed by the trial Court and the

appeal is deserved to be dismissed.

18. Accordingly, this Criminal Appeal is dismissed. The Judgment

passed in Special Session Case No.11 of 2018 on the file of the Court of

Sessions, Magalir Neethi Mandram, (Fast Track Mahila Court), Erode,

dated 09.01.2020, is hereby confirmed. Hence, the trial Court is directed

to secure the appellant/accused to undergo the remaining period of

sentence, if any. The period of incarceration already undergone, shall be

given set off.

07.09.2021

Internet: Yes/No Speaking Order/Non Speaking Order ksa-2

https://www.mhc.tn.gov.in/judis/ CRL A No.505 of 2020

P.VELMURUGAN, J

ksa-2 To

1. The Court of Sessions Magalir Neethi Mandram, (Fast Track Mahila Court), Erode

2. The Inspector of Police All Women Police Station Gobichettipalayam Erode – District

3.The Public Prosecutor Officer, High Court, Madras.

4.The Section Officer, Criminal Section, High Court, Madras.

Criminal Appeal No.505 of 2020

07.09.2021

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