Madras High Court
Sivakumar vs State By on 7 September, 2021
Crl.A.No.45 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.09.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.45 of 2020
Sivakumar .. Appellant
.Vs.
State by:
The Inspector of Police,
All Women Police Station,
Thenkanikottai Taluk,
Krishnagiri District.
Crime No.16 of 2016. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to allow this Criminal Appeal by setting aside the judgment
dated 13.08.2019 in Spl.S.C.No.2 of 2017 on the file of the learned
Sessions Judge, Fast Track Mahila Court, Krishnagiri.
For Appellant : Mr.M. Dhamodharan
Legal Aid Counsel for petitioner
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
13.08.2019 in Spl.S.C.No.2 of 2017 by the learned Sessions Judge Fast
Track Mahila Court, Krishngiri.
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2.The case of the prosecution is that at the time of occurrence the
victim girl/P.W.1, who was aged about 15 years was residing along with
her father and brother. On the date of occurrence i.e on 20.11.2016 at
about 2.00 p.m., when the victim girl cooking in her house, at that time the
accused, who is the neighbour of the victim girl trespassed into her house
and committed sexual assault, thereafter, he escaped from that place.
Hence, a complaint/Ex.P1was registered against the appellant.
3.The respondent-Police registered a case in Crime No.16 of 2016
against the appellant for the offence under Section 3 r/w 4 of The
Protection of Children from Sexual Offences Act, 2012 [hereafter referred
to as 'POCSO Act' for the sake of convenience]. On completion of the
investigation, the respondent police filed a charge sheet before the learned
Sessions Judge, Fast Track Mahila Court, Krishnagiri. The offence is
against a child which falls under the definition of 2(1)(d) of POCSO Act.
The learned Sessions Judge, has taken cognizance of the case in
Spl.S.C.No.2 of 2017. After completing the formalities, the learned
Sessions Judge framed charges against the appellant for the offence under
Section 452 IPC and Section 3 r/w 4 of POCSO Act.
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4.In order to prove the case of the prosecution before the trial Court,
on the side of the prosecution as many as 15 witnesses were examined as
P.W.1 to P.W.15 and marked 18 documents as Exs.P1 to P18 and no
material object was marked. After examining the prosecution witnesses,
the incriminating circumstances culled out from the evidence of the
prosecution witnesses were put before the appellant and questioned under
Section 313 of Cr.P.C., wherein he denied all the incriminating
circumstances as false and pleaded not guilty. On the side of the defence,
no oral and no documentary evidence was produced.
5. The Court below, after hearing the arguments advanced on either
side and also considering the materials available on record, found that the
appellant is guilty for the offence under Section 452 IPC and convicted
and sentenced him to undergo rigorous imprisonment for a period of one
year and to pay a fine of Rs.1,000/-, in default, to undergo rigorous
imprisonment for a period of one month; and for the offence under Section
3 which is punishable under Section 4 of POCSO Act convicted and
sentenced him to undergo rigorous imprisonment for a period of seven
years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous
imprisonment for a period of six months and ordering the sentences to run
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concurrently. Challenging the said conviction and sentences, the appellant
is before this Court.
6.When the matter was taken up for hearing on previous hearings
there was no representation for the appellant and hence, this Court
directed the Registry to appoint a competent Legal Aid Counsel for
appellant. Therefore, Mr.M.Dhamodharan, learned counsel was appointed
as Legal Aid Counsel.
7.The learned Legal Aid Counsel appearing for the appellant would
submit that the alleged occurrence was said to have taken place on
20.11.2016, whereas, the complaint was preferred on 21.11.2016 and the
delay in preferring the complaint has not been properly explained, which
itself clearly shows that the allegations made in the complaint are not
genuine. There are material contradictions between the prosecution
witnesses and no independent eye witness was examined to prove the
case of the prosecution. There was a previous enmity between the
appellant and the victim's family. Due to such enmity and to take
vengeance, a false case has been foisted against the appellant. He would
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further submit that to prove the age of the victim girl, the prosecution has
not produced the birth certificate of the victim girl. Further, there is a
discrepancy in the date of medical examination of the victim girl. He
would further submit in the forensic report regarding the sexual assault
committed by the appellant, the Doctor has clearly stated that no semen
detected on the body of the victim girl. Therefore, in the absence of the
same and also in the absence of the independent eye witnesses to the
occurrence, the conviction imposed by the trial Court warrants interference
of this Court.
8.1 The learned Government Advocate (Crl.Side) for the respondent
would submit that the victim girl/P.W.1 was aged about 14 years at the
time of occurrence, and she was 9th standard drop out student. On the date
of occurrence i.e. on 20.11.2016, when the victim girl was alone in her
house, the appellant trespassed into the house of the victim girl and had
committed sexual assault on her. He would further submit that during the
course of investigation, on 21.11.2016 the victim girl was produced before
the Doctor/P.W.7 and she has clearly deposed that there was a contusion
appeared on the right side breast of the victim girl, due to bite and also
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deposed that hymen was not intact. Subsequently, on 29.11.2016, the
victim girl was produced before the learned Judicial Magistrate for
recording her statement under Section 164 Cr.P.C and she has clearly
narrated the said incident. He would further submit that during trial, the
victim girl, who examined as P.W.1 has clearly deposed that after the said
incident, she informed the same to her cousin sister, thereafter, the family
members of the victim girl approached the Village Panchayat for justice,
since they have not given any solution, the family members approached the
police. Thereafter, the victim girl has filed the complaint against the
appellant on 21.11.2016 and hence, from the evidence of the victim girl,
the prosecution has properly explained the delay in filing the complaint.
8.2 He would further submit that in order to substantiate the charges
against the appellant, the victim girl, who was examined as P.W.1 during
the trial and her statement recorded under Section 164 Cr.P.C/Ex.P2 has
clearly deposed that she was subjected to sexual assault by the appellant
and the same was corroborated with the evidence of Doctor/P.W.7 coupled
with Ex.P5/Medical Report, Ex.P6/Final Medical Report, Ex.P11/Accident
Register. Further, in order to prove the age of the victim girl the
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prosecution exhibited Ex.P7/School Certificate of the victim girl, which
clearly shows that the date of birth of the victim girl is 26.04.2002,
whereas the date of alleged occurrence has happened on 20.11.2016. At
the time of occurrence, the victim girl was aged about 14 years. Since the
victim girl was a minor, the appellant one who committed penetrative
sexual assault on her forcibly has committed the offence under Sections
452 IPC and 3 punishable under Section 4 of POSCO Act. Therefore, the
trial Court has rightly convicted and sentenced the appellant, and the
appeal is liable to be dismissed.
9.Heard the learned Legal Aid Counsel for the appellant and the
learned Government Advocate (Crl.Side) for the respondent and also
perused the materials available on record.
10.This Court, being an Appellate Court, is a fact finding Court,
which has to necessarily re-appreciate the entire evidence and give an
independent finding.
11. On a careful reading of the evidence of P.W.1/victim girl, it
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reveals that on 20.11.2016 when she was alone in her house, the appellant
who is the neighbour of the victim girl trespassed into her house and
forcibly committed penetrative sexual assault on her. She has further
deposed that the appellant is a friend of her brother and that after the said
incident, her family members approached the Village Panchayat and who
in turn advised to approach the police station and gave complaint.
Thereafter, on the next day i.e. on 21.11.2016, victim girl/P.W.1 filed the
complaint. Subsequently, the victim girl was produced before the
Doctor/P.W.7 for medical examination and she has clearly deposed that
there are possibilities of sexual assault, the hymen of the victim girl was
not intact and two fingers were freely allowed in the vagina of the victim
and also contusion appeared on the right side of her breast, due to bite and
she has given Medical Report/Ex.P5 and Final Medical Report/Ex.P6.
12. Further on a reading of Statement of the victim girl recorded
under Section 164 Cr.P.C/Ex.P2, it reveals that the appellant trespassed
into the house of the victim girl and had committed sexual assault on her.
13. From the combined reading of the evidence of P.W.1/victim girl,
P.W.7/Doctor, Ex.P1/complaint, Ex.P2/Statement recorded under Section
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164 Cr.P.C, Ex.P5/Medical Report, Ex.P6/Final Medical report,
Ex.P11/Accident Register, Ex.P7/School certificate of the victim girl and
all other oral and documentary evidence on record, this Court finds that the
prosecution has proved its case beyond all reasonable doubt that the
appellant has committed penetrative sexual assault on the victim girl, who
was a minor girl at the time of the occurrence, and therefore, she is a child
under Section 2(1)(d) of POCSO Act. Therefore, the appellant has
committed the offence under Section 3 of POCSO Act which is punishable
under Section 4 of POCSO Act.
14.The appellant is a stranger to the victim girl and he is only a
friend of the brother of the victim girl and he entered into the house with
malafide intention and had forcibly committed penetrative sexual assault
and thereby, he has committed the offence under Section 452 IPC. There is
a presumption under Section 29 and 30 of POCSO Act that once the
prosecution has established its case, it is the duty of the accused to rebut
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the presumption. But, the appellant has not rebutted the statutory
presumption in the manner known to law.
15.In the light of the above facts and circumstances, this Court, being
an Appellate Court, as a fact finding Court re appreciated the entire
evidence independently and come to the conclusion that the appellant has
committed the offence under Section 452 IPC and Section 3 of POCSO
Act which is punishable under Section 4 of POCSO Act. The minimum
sentence prescribed for the offence under Section 4 of POCSO Act is
seven years, the trial Court only granted minimum sentence of 7 years.
Therefore, this Court does not find any mitigating circumstances to reduce
the sentence imposed by the trial Court.
16. In the light of the above discussion, this Court does not find any
merit in this appeal and the appeal is liable to be dismissed. Accordingly,
this Criminal Appeal is dismissed and the judgment of conviction and
sentence passed in Spl.S.C.No.2 of 201 by the learned Sessions Judge,
Fast Track Mahila Court, Krishnagiri. is hereby, confirmed.
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17.The Legal Aid counsel appointed by this Court is entitled to legal
fees as per Rules.
07.09.2021
Internet:Yes/No
Index: Yes/No
Speaking Order/Non-Speaking Order
ms
To
1.The Sessions Judge,
(Fast Track Mahila Court)
Krishnagiri.
2.The Inspector of Police,
All Women Police Station,
Thenkanikottai Taluk,
Krishnagiri District.
3.The Superintendent,
Central Prison,
Krishnagiri.
4.The Public Prosecutor,
High Court, Madras.
5.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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P.VELMURUGAN, J.
ms
CRL.A.No.45 of 2020
07.09.2021
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