Madras High Court
M.Shiva vs State Rep. By on 21 September, 2021
Crl.A.No.316 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.316 of 2020
M.Shiva .. Appellant
.Vs.
State Rep. by
The Inspector of Police,
All Women Police Station,
Krishnagiri, Krishnagiri District,
Crime No.18 of 2016. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to allow this appeal by setting aside the conviction and
sentence imposed to the appellant by the learned Sessions Judge, Fast
Track Mahila Court, Krishnagiri, Krishnagiri District, dated 11.02.2020 in
Spl.S.C.No.06 of 2017.
For Appellant : Mr.P.Veeranarayanan
for M/s.M.P.Saravanan
and
Mr.P.G.Perumal Pandiyan
Legal Aid Counsel
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
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JUDGMENT
This Criminal Appeal has been filed against the Judgment dated
11.02.2020 passed in Spl.S.C.No.6 of 2017 by the learned Sessions Judge,
Fast Track Mahila Court, Krishnagiri, Krishnagiri District.
2.The case of the prosecution is that on 01.11.2016 the appellant/A1
abducted the victim child from the lawful custody of her parents without
their consent to Krishnagiri. Thereafter, they were roaming in and around
Krishnagiri and went to Marudhaipalli and stayed there in a rental house.
At that time, the appellant forcibly tied a knot and had sexual intercourse
with her more than once. It is further alleged that A2 had abetted the said
offence. Hence, P.W.1/father of the victim girl filed a complaint/Ex.P1
against the accused.
3.The respondent police originally registered a case in Crime No.18
of 2016 against the appellant/A1 for the offence under Section 366(A) IPC
subsequently altered into Sections 366(A) IPC, Sections 5(l), 6, 16 and 17
of The Protection of Children from Sexual Offences Act, 2012 [hereinafter
'POCSO Act' for the sake of convenience]. On completion of the
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investigation, the respondent police filed a charge sheet before the learned
Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District.
Since the offence is against a girl child, it falls under the definition of
2(1)(d) of POCSO Act. After completing the formalities, the learned
Sessions Judge taken the case on file in Spl.S.C.No.6 of 2017 and charges
were framed against the 1st accused/appellant herein for the offence under
Section 366 IPC and Section 9 of Prohibition of Child Marriage Act, 2006
and Section 5(l) which is punishable under Section 6 of POCSO Act; and
as against the 2nd accused for the offence under Section 10 of Prohibition
of Child Marriage Act, 2006 and Section 17 of POCSO Act.
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 23 documents as Ex.P1 to Ex.P23 and no
material object was marked. After examining the prosecution witnesses,
the incriminating circumstances culled out from the evidence of the
prosecution were put before the appellant and questioned under Section
313 of Cr.P.C and he denied all the incriminating circumstances as false
and pleaded not guilty. On the side of the defence, three witnesses were
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examined as D.W.1 to D.W.3 and no material object was marked.
5.The Court below, after hearing the arguments advanced on either
side and also considering the materials available on record, found that A2
was found not guilty for the charged offences and acquitted him from the
charges, but, the 1st accused/appellant was found guilty for the following
offences:
● Under Section 366 IPC, 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.
● Under Section 5(1) which is punishable under Section 6 of POCSO
Act the appellant was convicted and sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
Rs.10,000/-, in default, to undergo rigorous imprisonment for a
period of one year and he was acquitted for the offence under
Section 9 of Prohibition of Child Marriage Act, 2006.
6.Challenging the said judgment of conviction and sentences, the
appellant/A1 is before this Court.
7.The learned counsel for the appellant would submit that originally
the case was registered against the appellant for kidnapping the victim girl,
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but he has not kidnapped the victim girl. The victim girl voluntarily eloped
with the appellant and therefore, the offence under Section 366 IPC would
not attract. He would further submit that P.W.10/Doctor who examined
the victim girl has clearly deposed that there was no evidence for sexual
intercourse and at the time of medical examination the victim girl stated
that she eloped with a known person, but, no materials are produced to
show that appellant has committed penetrative sexual assault on the victim
girl and she made entries in the Accident Register. Though the trial Court
has not accepted the case of the prosecution for the offence under Section
9 of Prohibition of Child Marriage Act, 2006 and acquitted him from the
said charge wrongly convicted and sentenced the appellant for the offence
under Section 366 IPC and Section 5 (l) which is punishable under Section
6 of POCSO Act. Once the trial Court disbelieved the evidence of the
prosecution for the offence under Section 9 of Prohibition of Child
Marriage Act, it would not have convicted the appellant for the offence
under Section 366 IPC. Further, the medical evidence did not corroborate
with the evidence of the victim/P.W.3 and there are contradictions and
discrepancies in the prosecution evidence. The trial Court failed to
appreciate the entire evidence and wrongly convicted the appellant only on
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assumption and sympathy and therefore, the judgment of conviction and
sentences passed by the trial Court against the appellant is liable to be set
aside.
8.The learned Legal Aid Counsel appearing for the appellant would
submit that at the time of occurrence, the victim girl was not a child and
she voluntarily eloped with the appellant. P.W.1/father and P.W.2/mother
of the victim girl have given only the tentative date of birth of the victim.
P.W.11/Assistant Headmistress of the school in which the victim girl
studied, has deposed that based on the school records she has given
Ex.P.11/Study certificate. It is a well settled proposition of law that
prosecution has to prove the age of the prosecutrix by way of valid
documents. However, in the present case, no birth certificate has been
marked by the prosecution to prove the age of the victim girl. Only based
on Ex.P11 the trial Court has decided the date of birth of the victim girl as
02.07.2000, which is not a valid document to confirm her age. Therefore,
the trial court failed to appreciate the oral and documentary evidence and
wrongly convicted and sentenced the appellant and hence, the judgment
passed by the trial Court is liable to be set aside.
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9.1 The learned Government Advocate (Crl.Side) for the respondent
would submit without consent of the natural/lawful guardians of the victim
girl, the appellant forcibly has taken the custody of the victim girl and
married her and also had sexual intercourse with her. Since the age of the
victim girl is 16 years, the appellant has committed the offence under
Section 366 IPC, Section 9 of Prohibition of Child Marriage Act,2006 and
Section 5 (l) which is punishable under Section 6 of POCSO Act. In the
First Information Report, it is mentioned that a known person kidnapped
the victim girl and had committed sexual assault on her. Further,
P.W.10/Doctor who examined the victim girl has clearly deposed that
vagina admitted one finger and there was no evidence for sexual
intercourse, since she was in menstrual period at the time of medical
examination, the Doctor would not give information regarding the sexual
assault. Subsequently, the victim girl was also produced before the
learned Judicial Magistrate II, Krishngiri for recording her statement
under Section 164 Cr.P.C/Ex.P2, in which, the victim girl clearly stated
that she voluntarily eloped with the appellant and they got married and
they stayed in rented house, which is situated at Marudheppalli and on the
same day they were having sexual intercourse. She further stated that
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both were living happily as husband and wife and during pongal festival,
while they were going to temple, they were waiting at Marudheppalli Bus
stand and at that time, the respondent/police arrested the appellant and
secured the victim girl and produced before the Court.
9.2 The learned Government Advocate (Crl.Side) would further
submit that during trial, the victim was examined as P.W.3 and she has
deposed that they went to Krishnagiri and at that time, the appellant gave
juice and thereafter, she became unconscious and had committed sexual
assault on her. The evidence of the victim during trial and her statement
recorded under Section 164 Cr.P.C and the entries made in the Accident
register clearly show that the appellant has committed penetrative sexual
assault on the victim. Since at the time of occurrence the victim was only
16 years, the appellant forcibly has taken the custody of the victim girl
from the lawful guardians of her parents without their consent and the act
committed by the appellant is punishable under Section 366 of IPC. Since
victim is a child and the appellant committed penetrative sexual assault on
her for more than once, he has been convicted for the offence under
Section 5 (l) which is punishable under Section 6 of POCSO Act. The trial
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Court rightly appreciated the entire evidence and convicted and sentenced
the appellant for the said charges. He would further submit that from the
evidence of the victim girl, it is seen that she has not stated anything
adversely about A2 and therefore, the trial Court acquitted A2 from the
charged offences. Since marriage between the appellant and the victim girl
is not proved in the manner known to law, the trial Court acquitted the
appellant for the offence under Section 9 of Prohibition of Child Marriage
Act, 2006. However from the evidence of the victim, the trial Court found
that the appellant committed the offence under Section 366 of IPC and
Section 5 (l) which is punishable under Section 6 of POCSO Act.
9.3 The learned Government Advocate (Crl.Side) would further
submit that though the learned counsel for the appellant contended that
medical evidence does not corroborate with the evidence of victim girl.
However, P.W.10/ Doctor has clearly deposed that since the victim girl
had menstrual period, during the medical examination and she was not
able to examine her. However, the Doctor has stated that vagina admitted
one finger. The victim girl also stated that she was subjected to sexual
assault by the appellant. Considering the fact that when there is a
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contradiction between the evidence of the victim girl and the Doctor
evidence, however, the evidence of the victim prevail over the medical
evidence. In the present case, the victim girl clearly stated that she was
subjected to penetrative sexual intercourse and therefore, the trial Court
rightly convicted and sentenced the appellant for the offence under Section
366 IPC and Section 5(1) r/w 6 of POCSO Act and hence, there is no
merit in this appeal and the same is liable to be dismissed.
10.Heard the learned counsel for the appellant; the learned Legal Aid
Counsel appearing for the appellant and the learned Government Advocate
(Crl.Side) for the respondent and also perused the materials available on
record.
11.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.
12.On a careful perusal of the deposition of P.W.3/victim girl, it
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reveals that on 30.10.2016, without consent of her natural/lawful
guardians, the appellant forcibly took her to Krishnagiri and they stayed in
a rented house and she was subjected to sexual assault by the appellant.
Further she has deposed that her date of birth is 02.07.2000, whereas, date
of occurrence is 30.10.2016 and hence, at the time of occurrence the
victim was 16 years. In order to prove the same the prosecution examined
P.W.11/Assistant Headmistress of the school, in which the victim was
studied and marked Ex.P.11/Study certificate. On a perusal of Ex.P.11, it
is seen that the date of birth of the victim is 02.07.2000. Though, the
defence counsel has stated that the document/Ex.P11, which was given by
P.W.11 is not a conclusive proof to prove the age of the victim girl. As
per Section 94(2) of THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 2015, the age can be proved
through the certificate given by the educational institution. Therefore, the
Court perused the public record Ex.P11 and found that the date of birth of
the victim girl is 02.07.2000 and at time of the occurrence, the victim was
a child and it comes under the definition of 2(1)(d) of POCSO Act.
Therefore, this Court finds that the prosecution has proved the age of the
victim girl is below 18 years. Hence, the contention raised by the learned
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counsel for the appellant is not acceptable.
13.As far as the offence under Section 366 IPC is concerned, the age
of the victim was 16 years at the time of occurrence, since she is a 'child',
the parents of the victim gave a complaint against appellant for
kidnapping. P.W.1/father of the victim girl has clearly deposed that his
daughter eloped with the appellant, without their consent. The appellant
has forcibly taken the custody of the minor child, without consent of her
natural guardians, though the victim girl has stated that she voluntarily
eloped with the appellant, however considering the age of the victim, the
act committed by the appellant falls under Section 366 IPC and therefore,
this Court finds that the appellant committed offence under Section 366 of
IPC.
14.As far as offence of aggravated penetrative sexual assault is
concerned, P.W.3/victim has very clearly stated that both the appellant
and victim girl left together and they got married and thereafter, they had
sexual intercourse. Since the marriage was not proved, as per the evidence
of the victim girl during trial, even accepting that the appellant married the
victim girl, neither the prosecution nor the complainant proved the
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marriage between them in the manner known to law. The appellant
removed the custody of the victim from her natural guardians, without
their consent and took her to various places and stayed away from the
house of the victim and had committed sexual assault on her for more than
once and hence, the act committed by the appellant falls under Section 5
(l) of POCSO Act which is punishable under Section (6) of POCSO Act.
15.On a perusal of Ex.P9/Accident Register it is clearly mentioned
that it is a case of sexual assault and the victim has clearly stated that she
eloped with her neighbour two months ago. Therefore, as already stated
that, the age of the victim is only 16 years and she is a child under the
definition of POCSO ACT. The victim girl herself admitted while
recording her statement under Section 164 Cr.P.C that she eloped with
neighbour, and stayed along with the appellant and they had sexual
intercourse, therefore, the act committed by the appellant falls under
Section 366 IPC and under Section 5 (l) which is punishable under
Section 6 of POCSO Act.
16.The Doctor/P.W.10 who examined the victim girl has stated that
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there is no symptoms for sexual intercourse, there is no external injuries
and she is not pregnant, however, the Doctor has stated that vagina admits
one finger. Since the victim girl had menstrual period at the time of
medical examination, the Doctor was unable to find out whether she was
subjected to sexual assault or not. However, during medical examination,
the victim girl has stated that she was subjected to penetrative sexual
assault by a known person and subsequently, she was produced before the
learned Judicial Magistrate for recording statement under Section 164
Cr.P.C and she has stated that she married the appellant at that time she
had sexual intercourse with him. During trial, the victim girl stated that she
was subjected to penetrative sexual assault by the appellant. Therefore, the
evidence of the victim/P.W.3 and Doctor/P.W.10 clearly show that the
victim was subjected to penetrative sexual assault. In cases of this nature
presence of eye witnesses are mostly improbable. The evidence of the
victim girl regarding sexual assault is enough for conviction and it does not
require any corroborative evidence, unless there are compelling reasons
seeking for corroboration. If the evidence of sole witness is cogent,
credible and trustworthy, conviction is permissible. However, as regards
the contradictions between the evidence of the victim girl and medical
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evidence, the evidence of the victim girl prevail over the medical evidence.
Even though the victim eloped with the appellant, he could have avoided
to take her along with him. However, without consent, the appellant
forcibly taken the custody of the victim girl, which falls under Section 366
IPC and had committed sexual assault on her during the stay from the
outside of the house it falls under Section 5 (l) which is punishable under
Section 6 of POCSO Act.
17.Under these circumstances, this Court, being an Appellant Court
as a fact finding Court reappreciated the entire evidence independently and
arrived at a just conclusion that the appellant has committed sexual assault
on the victim girl and the trial Court has rightly convicted and sentenced
the appellant and this Court does not find any mitigating circumstances to
reduce the sentence imposed by the trial Court.
18. 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.6 of 2017 by the learned Sessions Judge,
Fast Track Mahila Court, Krishnagiri, Krishnagiri District, is hereby,
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confirmed. If the appellant/accused is not in duress, the trial Court is
directed to take appropriate steps to secure the presence of the appellant to
serve the remaining period of sentence.
21.09.2021
pbl
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
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To
1.The Sessions Judge,
Fast Track Mahila Court,
Krishnagiri, Krishnagiri District.
2.The Inspector of Police,
All Women Police Station,
Krishnagiri, Krishnagiri District.
3.The Public Prosecutor,
High Court, Madras.
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P.VELMURUGAN, J.
pbl
CRL.A.No.316 of 2020
21.09.2021
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