Madras High Court
Balasubramani vs State By on 8 September, 2021
Crl.A.No.271 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.271 of 2021
Balasubramani ...
Appellant
.Vs.
State by
The Inspector of Police,
All Women Police Station,
Central Coimbatore City,
Coimbatore,
Crime No.5 of 2019. ... Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to set aside the judgment, conviction passed against the appellant
by the learned Special Court for Exclusive Trial of Cases under POCSO Act,
Coimbatore in Spl.S.C.No.111 of 2019 dated 02.03.2021.
For Appellant : Mr.M.Jaikumar
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
Page No.1/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
02.03.2021 passed in Spl.S.C.No.111 of 2019 by the learned Sessions Judge,
Special Court for Exclusive Trial of Cases under POCSO Act, Coimbatore.
2.The case of the prosecution is that the accused/appellant is the
foster father of the victim girl. On 14.09.2019 at about 10 a.m., when the
victim girl was in her house alone, the accused sexually harassed her by way
of touching her breast, she resisted the same, the appellant expressed his
desire to have sex with her. Thereafter, he repeated the same on several
times. The victim girl hesitated to intimate the same to her mother and that the
she has stated that she did not want to live in their house. Thereafter, she
informed the said incident to her lecturers, who in turn, informed the said
incident to her mother, thereafter, she went to her aunt's house. On
25.09.2019, the victim girl due to stomach pain went to the Doctor/P.W.7
and on medical examination she informed the said incident to the Doctor.
Subsequently, based on the instructions given by the Doctor, the victim girl
contacted Child Help Line and thereafter, preferred a complaint/Ex.P1 against
Page No.2/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
the appellant.
3.The respondent police registered a case in Crime No.5 of 2019 against
the appellant for the offence under Sections 7 and 8 of The Protection of
Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO
Act' for the sake of convenience]. Subsequently, altered into Sections 7 r/w 8,
9(l), 9(n) r/w 10 of POCSO Act. After completing the investigation, the
respondent police filed a charge sheet before the learned Sessions Judge,
Special Court for Exclusive Trial of Cases under POCSO Act, Coimbatore.
The offence is against a child, which falls under the definition of Section 2(1)
(d) of POCSO Act and the learned Sessions Judge, taken cognizance of the
case on file in Spl.S.C.No.111 of 2019. On completion of the formalities, the
learned Sessions Judge framed charges against the appellant for the aforesaid
offences.
4.In order to prove the case of the prosecution before the trial Court, on
the side of the prosecution as many as 14 witnesses were examined as
P.W.1 to P.W.14 and marked 15 documents as Exs.P1 to P15. After
Page No.3/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
examining the prosecution witnesses, the incriminating circumstances culled
out from the evidence of the prosecution witnesses were put before the
appellant/accused 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 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 following offences and imposed sentences as
follows :
(i) For the offence under Section 7 which is punishable under Section 8
of POCSO Act, the appellant was convicted and sentenced to undergo
rigorous imprisonment for a period of five years and to pay a fine of
Rs.5,000/-, in default, to undergo rigorous imprisonment for a period of six
months.
(ii) For the offence under Sections 9(l), 9(n) which is punishable under
Section 10 of POCSO Act, the appellant was convicted and sentenced to
undergo rigorous imprisonment for a period of five years and to pay a fine of
Page No.4/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
Rs.5,000/-, in default, to undergo rigorous imprisonment for a period of six
months and ordered that the sentences to be run concurrently. Challenging
the said conviction and sentences, the appellant is before this Court.
6.The learned counsel for the appellant would submit that the specific
allegation against the appellant is that on 14.09.2019 at about 10 a.m., the
appellant sexually harassed the victim girl, who is aged about 16 years,
whereas, P.Ws.5 and 6/Lecturers of the victim girl have stated that the victim
girl was present at college on 14.09.2019 at 9.30 a.m and hence, the
occurrence itself is very doubtful. He would further submit that the victim
girl was produced before the learned Judicial Magistrate for recording her
statement under Section 164 Cr.P.C on 10.10.2019 and she has clearly stated
that her grandmother and her aunt tutored her to preferred the complaint
against the appellant and hence, the prosecution has not established its case
beyond all reasonable doubts. He would further submit that the appellant is
the foster father of the victim girl, the victim girl asked phone to the appellant,
he resisted the same and beaten her in angry and hence, a false case has been
foisted against the appellant. However, at the time of recording statement
Page No.5/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
under Section 164 Cr.P.C and during trial, the victim girl/P.W.1 turned hostile
and P.W.2/mother of the victim girl and P.Ws.3 and 4/aunts of the victim girl
also turned hostile and they have not supported the case of the prosecution.
There is no eye witness to the said occurrence. The trial Court failed to
appreciate the entire evidence in a right manner and simply convicted the
appellant on the ground of assumption and sympathy, which warrants
interference of this Court.
7.The learned Government Advocate (Crl.Side) for the respondent
would submit that Doctor/P.W.7, who examined the victim girl has stated that
on 25.09.2019, the victim girl along with her aunt came to her hospital due to
stomach pain and on medical examination the victim girl has stated that her
foster father misbehaved with her by touching her private parts, when she
resisted the same the appellant insisted her to co-operate with him. The
Doctor questioned the victim girl, why she did not inform the said incident to
her mother, the victim girl has stated that already she informed the said
incident to her mother and she advised her to adjust with him and that the
victim girl went to her aunt's house. Hence, P.W.7/Doctor advised the victim
Page No.6/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
girl to approach the Child Help Line and informed the said incident to
P.W.9/Counselor of Child Help Line. Thereafter, as per the instructions of
P.W.9, the victim girl preferred the complaint/Ex.P1 on 26.09.2019. He
would further submit that even prior to filing of the complaint, on 25.09.2019
itself, the victim girl has clearly narrated the said incident before the
Doctor/P.W.7 and P.W.9/Counselor of Child Help Line. Therefore, from the
evidence of P.W.7 and P.W.9, the prosecution has established its case
beyond all reasonable doubts. The trial Court rightly appreciated the entire
evidence and found that the appellant, who is none other than foster father of
victim girl has sexually harassed her for more than once and that convicted
and sentenced the appellant for the offence under Section 7 which is
punishable under Section 8 of POCSO Act and Section 9(l), 9(n) which is
punishable under Section 10 of POCSO Act. He
would further submit that the victim girl is the foster daughter of the appellant
and till the date of occurrence, both the victim girl and her mother were living
along with the appellant and that only at the instigation of her mother, the
victim girl might have turned hostile and not supported the case of the
Page No.7/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
prosecution, after registration of the complaint. However, the evidence of
P.W.7 and P.W.9 clearly shows that when the victim girl informed the said
incident to her mother, she advised the victim girl to adjust with him and
hence, one cannot expect that the mother will support the case of the
prosecution. The facts remains that even prior to the complaint, the victim girl
informed the said incident before P.W.7 and P.W.9 regarding sexual assault
made by the appellant. Therefore, the trial Court has rightly convicted the
appellant for the charged offence and hence, the appeal is liable to be
dismissed.
8. Heard the learned counsel for the appellant and the learned
Government Advocate (Crl.Side) for the respondent and also perused the
materials available on record.
9.This Court, being an Appellate Court, is a final Court of fact finding,
which has to necessarily re-appreciate the entire evidence and give an
independent finding.
10.On a reading of the complaint, it would reveal that even prior to the
Page No.8/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
complaint i.e. on 26.09.2019, the victim girl went to hospital along with her
aunt, due to stomach pain. At that time, the victim girl stated before the
Doctor/P.W7 that her foster father misbehaved with her, when she resisted
the same, the appellant insisted her to co-operate with him. When she
informed the said incident to her mother, but, her mother also advised to
adjust with him, which clearly shows that the mother of the victim girl did
not want to disclose the said incident to any one and she want to live with the
appellant, since she has two more children through the appellant. The victim
girl is a grown up child, she did not like the behaviour of the appellant and
hence, she went to her aunt's house. Thereafter, as per the advise of Doctor,
the victim girl contacted Child Help Line and clearly narrated the said
incident to P.W.9 and the same was recorded in Ex.P9/True Copy of Call
Register. Thus, prior to the registration of the complaint, the victim girl
narrated the said incident before P.W.7 and P.W.9, subsequently, she turned
hostile and not supported the case of the prosecution.
11.Though the appellant is the second husband of the victim girl's
mother, the victim girl could have been tutored by her mother and her
Page No.9/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
relatives and that she might have turned hostile before the Judicial Magistrate
for recording her statement under Section 164 Cr.P.C and during trial.
Further, after fifteen days from the date of the complaint i.e. on 10.10.2019,
the victim girl was produced before the learned Magistrate. However, the
facts remains that prior to the complaint, the victim girl approached P.W.7
and P.W.9 and informed the said incident and thereafter, only she preferred
the complaint/Ex.P1. However, before the learned Judicial Magistrate, she
has stated that her aunt misguided to give a false complaint against the
appellant. Therefore, this Court finds that in order to safeguard the appellant
from the clutches of law, subsequent to the complaint the victim girl has not
supported the case of the prosecution.
12.Under these circumstances, considering the nature of the allegations
and that the appellant is the foster father of the victim girl, due to that, she
might have turned hostile. However, the evidence of P.W.7 and P.W.9
clearly shows that the victim girl informed that the appellant misbehaved with
her and her mother advised her to adjust with him. Hence, there is no reason
to discard the evidence of P.W.7 and P.W.9, since they are public servants
Page No.10/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
and independent witnesses, there is no reason for them to make false
allegations against the appellant.
13. In the light of the above facts and circumstances, this Court being
an Appellate Court, gone through the entire materials and found that the
appellant being a custodian of the victim girl had made a sexual assault on the
victim girl and he has committed the offence under Section 7 which is
punishable under Section 8 of POCSO Act and Section 9(l), 9(n) which is
punishable under Section 10 of POCSO Act. Hence, this Court does not find
any perversity in the judgment of the trial Court and the appeal is liable to be
dismissed. Considering the relationship between the victim and the appellant
and serious in nature of the offence, this Court does not find any mitigating
circumstances to modify or reduce the sentence of the appellant.
14.In fine, this Criminal Appeal deserves to be dismissed and
accordingly, the same is dismissed. The conviction and sentence passed in
Spl.S,C.No.111 of 2019 by the learned Sessions Judge, Special Court for
Exclusive Trial of Cases Under POCSO Act, Coimbatore is confirmed.
Page No.11/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
08.09.2021
Internet: Yes/No
Index: Yes/No
Speaking Order/Non Speaking Order
ms
Page No.12/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
To
1.The Sessions Judge,
Special Court for Exclusive Trial of Cases
under POCSO Act,
Coimbatore.
2.The Superintendent,
Central Prison,
Coimbatore.
3.The Inspector of Police,
All Women Police Station,
Central Coimbatore City,
Coimbatore.
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
Page No.13/14
https://www.mhc.tn.gov.in/judis
Crl.A.No.271 of 2021
P.VELMURUGAN, J.
ms
CRL.A.No.271 of 2021
08.09.2021
Page No.14/14
https://www.mhc.tn.gov.in/judis
