Jayabalan vs The State By
2021 Latest Caselaw 18417 Mad

                                                                             CRL A No.407 of 2020


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 08.09.2021


                                                       Coram:

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                            Criminal Appeal No.407 of 2020


                     Jayabalan                                    ... Appellant / Accused
                                                         Vs.
                     The State by
                     Inspector of Police
                     All Women Police Station (North)
                     Tiruppur District
                     Crime No.5 of 2019                           ...Respondent / Complainant


                     Prayer : Criminal Appeal filed under Section 374(2) of Criminal
                     Procedure Code praying to set aside the conviction and sentence imposed
                     on the appellant by the Judgment dated 29.11.2019 passed in
                     Spl.S.C.No.35 of 2019 on the file of the Magalir Neethi Mandram (Fast
                     Track Mahila Court), Tiruppur.

                                     For Appellant          : Mr.I.C.Vasudevan

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




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                                                                                 CRL A No.407 of 2020


                                                      JUDGMENT

(The case has been heard through video conference)

The Criminal Appeal has been filed against the conviction and

sentence imposed on the appellant by Judgment dated 29.11.2019 passed

in Spl.S.C.No.35 of 2019 on the file of the Magalir Neethi Mandram

(Fast Track Mahila Court), Tiruppur.

2. The respondent police registered a case in Crime No.5 of 2019

against the appellant for the offence under Section 3(a), 4, 5(m), 6 of

POCSO Act, 2012. After investigation, they laid charge sheet before the

Special Court since, the offence is against a woman especially a child

under the definition of Section 2(1)(d) of POCSO Act. The learned

Special Judge taken the charge sheet on file in Special S.C.No.35 of 2019

and after completing the formalities, framed charges against the appellant

for the offence under Section 5(m) which is punishable under Section 6 of

POCSO Act.

3. After framing charges, during trial, on the side of the

prosecution, as many as 8 witnesses were examined as P.W.1 to P.W.8

and 12 documents were marked as Exs.P.1 to P.12.

4. On completion of examination of the prosecution witnesses,

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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 he

pleaded not guilty. On the side of the defence no oral or documentary

evidence was marked.

5. On completion of trial and conclusion of arguments advanced by

both the counsel and considering the materials available, the trial Court

found the appellant guilty for the offence under Section 5(m) read with 6

of POCSO Act and convicted and sentenced to undergo Rigorous

imprisonment for 10 years and to pay fine of Rs.10,000/- in default to

undergo rigorous imprisonment for a further period of one year.

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

victim is only aged about 5 years and no injury is found on the body of

the victim. Further, P.W.2/ mother of the victim has not supported the

case of the prosecution and P.W.5/the great grandmother of the victim

who is stated to be the eyewitness to the occurrence has also not

supported the case of the prosecution. In the evidence of P.W.2 and

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P.W.5, they have clearly stated that no sexual assault was made on the

victim and the trial Court failed to appreciate the same. The medical

evidence also does not show any external or internal injury or possibility

of penetrative sexual assault on the victim girl. In the absence of any

eyewitness and medical evidence, the trial Court convicted the appellant

when no offence is made out against him only based on assumption and

conjunction and also on the ground of sympathy which warrants

interference of this Court. Further, he would submit that there is a

contradiction between the evidence of P.W.1 before the Court and the

statement made before the Judicial Magistrate under Section 164 Cr.P.C.

In one place, the victim/P.W.1 has stated while she was playing the

incident had happened and in other place, she has stated that while she

was sitting in her grandmother's vegetable shop, the appellant came and

took her to his house and committed the alleged offence which clearly

shows that the victim was not aware of the date, time and place of

occurrence. Further, the learned Counsel for the appellant would submit

that the statement recorded under Section 164 Cr.P.C. was neither

marked through P.W.1 nor marked through the Magistrate who recorded

the statement from the victim girl and it was only marked through the

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Investigating Officer. The learned Counsel placed reliance on the

citations of the Hon'ble Supreme Court and stated that the practice of

omnibus marking of the statement of the witness deserves to be

deprecated. Therefore no effect can be given to the statement recorded

under Section 164 Cr.P.C. which is marked as Ex.P.12. The said

statement cannot be used for contradiction or corroboration. Even the

mahazar witness has stated that he does not know what is mentioned in

the mahazar. Therefore, the prosecution failed to establish the case

against the appellant beyond reasonable doubt. Hence, the appeal may be

allowed and the Judgment of conviction and sentence passed against the

appellant may be set aside.

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

the appellant is the sole accused and he is the neighbour of the victim

who is aged about 5 years. On the date of occurrence, the mother of the

victim was not in the house. At that time, the appellant took the victim to

his house and made an oral sex with her. A reading of Section 3 of

POCSO Act and the evidence of P.W.1/victim would go to show that the

appellant has committed the offence of penetrative sexual assault on the

victim. Since, the victim is below 12 years, the offence committed by the

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appellant falls under Section 5 (m) of POCSO Act which is termed as

aggravated penetrative sexual assault and punishable under Section 6 of

POCSO Act. The victim was earlier produced before the Judicial

Magistrate for recording statement under Section 164 Cr.P.C. in which,

the victim has clearly narrated the entire incident. Further, P.W.3/doctor

has also deposed that the mother of the victim brought the victim girl for

medical examination and she informed her that a known person

committed oral sex on the victim girl and therefore, they lodged the

complaint. Though the learned Counsel for the appellant contended that

the doctor has given opinion that there was no external injury on the body

of the victim girl, the case of the prosecution is that the appellant took

the victim girl to his house and inserted his male organ into the mouth of

the victim girl and therefore, no injury can be expected and it is not the

case of the prosecution that the victim sustained injury. Though the

learned Counsel for the appellant contended that the statement of the

victim recorded under Section 164 Cr.P.C. was marked only through the

Investigating Officer and therefore, the omni-bus marking of the

statement recorded under Section 164 Cr.P.C. is not admissible. A

reading of the evidence of P.W.1 clearly shows that the victim was earlier

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brought to the Judicial Magistrate and there also her statement was

recorded. While P.W.1 was examined as witness,she has clearly stated

that she was earlier produced before the Judicial Magistrate and there

also, her statement was recorded. Therefore, under these circumstances,

the non marking of the document through P.W.1/victim is not fatal to the

case of the prosecution. Though, P.W.2/the mother of the victim and

P.W.5/great grandmother of the victim not supported the case of the

prosecution, the prosecution proved its case beyond all reasonable doubt.

Therefore, the evidence of the victim/P.W.1 and her statement recorded

under Section 164 Cr.P.C./Ex.P.12 and the evidence of the doctor/P.W.3,

are cogent and consistent. Therefore, there is no merit in the appeal and

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.

9. The case of the prosecution is that on 05.07.2019, the P.W.1/

mother of the victim had gone to the Baniyan company to attend her work

and at about 7.45 p.m., her daughters were playing near the house of the

accused. Later, the elder daughter returned home and the younger

daughter/victim did not return home. Therefore, the great grandmother of

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the victim/P.W.5 went in search of the victim girl. At that time, she saw

the accused in his bedroom keeping his male organ into the mouth of the

victim girl and he was shaking. On seeing the same, the great

grandmother of the victim/P.W.5 assaulted the accused and brought the

victim back to her house and later informed the same to the defacto

complainant.

10. This Court is the appellate Court as a final Court of fact

finding, it has to re-appreciate the entire evidence and to give its findings

independently. Accordingly, this Court pursued the entire materials and

the Judgment of the trial Court, and gives its findings independently.

11. In order to substantiate the charges framed against the

appellant, on the side of the prosecution, totally 8 witnesses were

examined out of which, the victim was examined as P.W.1.

12. Earlier, the victim/P.W.1 was produced before the Judicial

Magistrate for recording statement under Section 164 Cr.P.C. and the

same was marked as Ex.P.12. A complete reading of the evidence of

P.W.1/victim and Ex.P.12/the statement recorded under Section 164

Cr.P.C., shows that the evidence of the victim is cogent and consistent and

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the evidence of the victim is very natural which inspires the confidence of

this Court and there is no reason to disbelieve or discard the same.

Therefore, this Court believes that the evidence of the victim is natural

and the defence has not proved that the victim was tutored. The

contention of the learned Counsel for the appellant is that the prosecution

would have threatened to say so whereas, in this case the P.W.2 and

P.W.5 namely the mother and great grandmother of the victim have

turned hostile and they have not supported the case of the prosecution.

Hence, it is clear that there could not be any tutoring or threatening.

Though the contention of the learned counsel for the appellant is that

P.W.2 and P.W.5 not supported the case of the prosecution, they were not

cross examined by the defence counsel. The learned Counsel for the

appellant contended that in the evidence of P.W.2 and P.W.5, they have

clearly stated that on the date of occurrence, the victim entered into the

house of the appellant for watching T.V. and at that time, she broken the

cell phone of the accused due to which, the appellant pushed the victim

from his house; on seeing the same, P.W.5/the great grandmother of the

victim questioned the appellant for which, the appellant abused P.W.5 in

filthy language and so they lodged a complaint before police and the

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police have foisted the false case against the appellant. However, the

learned defence counsel had not cross examined the victim on the above

aspect. Further, on the date of occurrence, the presence of the victim in

the house of the appellant is not disputed and there was a quarrel

between the appellant and the great grand mother of the victim is also not

disputed. Under these circumstances, the evidence of P.W.1 / victim and

her previous statement made before the Judicial Magistrate corroborated

with the evidence of the doctor/P.W.3 wherein, the doctor has clearly

stated that P.W.2/the mother of the victim, while bringing the victim for

medical examination informed her that the appellant who is her

neighbour made oral sex with the victim child and thereby, they lodged

the complaint. Subsequently, for the reasons bast known to the mother of

the victim, she turned hostile and not supported the case of the

prosecution. Since because one of the witnesses turned hostile, it is not a

sole ground to acquit the appellant.

13. A complete reading of the entire evidence and materials and

considering the age of the victim, this Court does not find any reason to

disbelieve or discard the bonafide of the victim girl to take a different

view and there is no benefit of doubt to be extended to the appellant. In

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this case, the prosecution proved its case beyond all reasonable doubt that

the appellant has committed the offence under Section 5(m) which is

punishable under Section 6 of POCSO Act. Considering the age of the

victim and the grave nature of the offence, this Court doses not find any

perversity in the Judgment of the trail Court. Since the victim has clearly

deposed that she was earlier produced before the Judicial Magistrate and

there also her statement was recorded, the citations referenced to by the

learned Counsel for the appellant is not applicable to the case on hand.

14. As far as the sentence is concerned, the trial Court considering

the age of the appellant has awarded only the minimum sentence of 10

years and there is no mitigating circumstances to reduce the sentence less

than 10 years. Therefore, there is no merit in the appeal and the appeal is

liable to be dismissed.

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

dated 29.11.2019 passed in Spl.S.C.No.35 of 2019 passed by the

Magalir Neethi Mandram (Fast Track Mahila Court), Tiruppur. is hereby

confirmed. Hence, the trial Court is directed to secure the

appellant/accused to undergo the remaining period of sentence, if any.

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The period of incarceration already undergone, shall be given set off.

08.09.2021

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

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To

1. The Magalir Neethi Mandram (Fast Track Mahila Court), Tiruppur.

2.The Inspector of Police All Women Police Station (North) Tiruppur District

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

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

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P.VELMURUGAN, J

ksa-2

Criminal Appeal No.407 of 2020

08.09.2021

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