Vijay vs State Rep.By
2021 Latest Caselaw 19223 Mad

                                                                                   Crl.A.No.265 of 2020


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 21.09.2021

                                                      CORAM

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                            CRL.A.Nos.265 & 266 of 2020

                    Vijay                                         ... Appellant (in both Appeals)

                                                    Versus

                    State Rep.by
                    The Inspector of Police,
                    Mathur Police Station,
                    Krishnagiri District.                        ... Respondent(in both Appeals)

Common Prayer: Criminal Appeals filed under Section 374 (2) of Code of Criminal Procedure, to allow these appeals by setting aside the conviction and sentence dated 24.01.2020, imposed on the appellant in Spl.S.C.No.77 of 2018 and Spl.S.C.No.69 of 2018 respectively, passed by the learned Sessions Judge, Fast Track Court, Krishnagiri, Krishnagiri District.

                    Counsel on record for Appellant       : Mr. P. Veeranarayanan
                    (in both the appeals)                   for Mr.P.Saravanan

                    Legal Aid Counsel for Appellant
                    (in Crl.A.No.265/2020)                : Mr. S. Rajeswaran
                    (in Crl.A.No.266/2020)                : Mr. C. Samivel

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


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


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                                                                                     Crl.A.No.265 of 2020


                                                COMMON JUDGMENT

These Criminal Appeals have been filed against the Judgment of

conviction and sentence dated 24.01.2020 passed in Spl.S.C.Nos.69 & 77 of

2018 respectively, by the learned Sessions Judge, Fast Track Court,

Krishnagiri, Krishnagiri District.

2.Since the issue involved in both the criminal appeals are one and the

same, they are taken up for hearing together and are decided by this

common Judgment.

3.The case of the prosecution is that on 29.11.2017 at about 2.00 p.m.,

the appellant abducted the victim girl to Bangalore, married her with an

intention to commit sexual assault. On the same day itself, the appellant

forcibly committed sexual assault against her and continued such assault

with the victim girl from 30.11.2017 to 30.12.2017. Though the mother of

the victim girl warned the appellant not to follow her daughter, he did not

heed to her words and took her daughter outside frequently and committed

sexual assault. Initially the mother of the victim girl has lodged a complaint

on 04.12.2017, before the respondent police, based on the same, case was

registered in Crime No.423 of 2017, for the offences under Section 366(A) https://www.mhc.tn.gov.in/judis

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of IPC., and Section 4 of the Protection of Children from Sexual Offences

Act, 2012 and Section 9 of the Prohibition of Child Marriage Act, 2006.

4.The appellant once again abducted her daughter on 27.01.2018,

hence, the mother of the victim again lodged another complaint on

14.04.2018 against the same accused for the same offence before the same

respondent/police and a case was registered by the respondent/police in

Crime No.138 of 2018, for the offence under Section 366(A) of IPC.,

5.After completion of investigation, the respondent police laid two

charge sheets before the learned Sessions Judge, Fast Track Mahila Court,

Krishnagiri, Krishnagiri District and the cases were taken on file in Spl.S.C.

Nos. 69 & 77 of 2018. After completing formalities, charges were framed

against the appellant for the offence under Section 366 of IPC, Section 9 of

the Prohibition of Child Marriage Act, 2006 and Section 5(l) r/w Section 6

of POCSO Act, in both cases.

6.In order to prove the case of the prosecution in Spl.S.C.No.77 of

2018, before the Trial Court, on the side of the prosecution as many as 16

witnesses were examined as P.W.1 to P.W.16 and 19 documents were https://www.mhc.tn.gov.in/judis

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marked as Exs.P1 to P19. Besides, 7 material objects were marked as M.O.1

to M.O.7. and in Spl.S.C.No.69 of 2018, 15 witnesses were examined as

P.W.1 to P.W.15 and 17 documents were marked as Ex.P1 to P.17 and no

material object was produced.

7.After completion of examination on the prosecution side witnesses,

the incriminating circumstances culled out from the evidence of the

prosecution witnesses were put against the appellant/ accused by

questioning under Section 313 of Cr.P.C., in both the cases, he denied the

same as false and pleaded not guilty. On the side of the defence, no oral and

documentary evidence was produced.

8.Upon completion of trial, after hearing the arguments advanced on

either side and considering the materials, the learned Special Judge

convicted the appellant and sentenced him as follows:

(i) for Section 366 of IPC, sentenced to undergo five years rigorous imprisonment and to pay fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment.

(ii) for Section 5(l) punishable under Section 6 of POCSO Act, sentenced to undergo ten years rigorous imprisonment and to pay fine of Rs.1,000/-, in default, to undergo one year rigorous imprisonment. https://www.mhc.tn.gov.in/judis

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(iii) However, both the sentences were ordered to run concurrently and the period already undergone was ordered to be given set off under Section 428 of Cr.P.C.

(iv) for Section 9 of the Prohibition of Child Marriage Act, 2006, the appellant was acquitted.

9.In Spl.S.C.No.69 of 2018, also the learned Sessions Judge convicted the appellant and imposed the sentence as stated above, which were ordered to run concurrently along with the sentence imposed in Spl.S.C.No.77 of 2018.

10.Challenging the said Judgments of conviction and sentence, the

appellant has filed the present two appeals before this Court.

11.The learned counsel for the appellant in both the appeals would

submit that before the trial court, the victim herself stated that no occurrence

has taken place as alleged by the prosecution. Further, the victim girl stated

that she married the appellant and now she is living with the appellant.

Therefore, no offence was made out as against the appellant as alleged by

the prosecution. Even the medical evidence does not corroborate with the

evidence of the prosecution witnesses. Further, the victim girl clearly stated

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

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that her mother has given a wrong complaint against the appellant and she

also stated that she was not aware of the complaint given by her mother,

initially. Even the Doctor stated that there is possibility of hymen getting

disturbed, while playing games. The learned counsel would submit that age

of the victim was not proved. The certificate produced by P.W.9 is not a

conclusive proof, therefore, the commission of offence under POCSO Act,

would not attract.

12.Both the learned legal aid counsel appearing for the appellant

would jointly submit that no opportunity was given to cross-examine the

witnesses. The trial court has not conducted fair trial and it is in violation of

procedural law and principal of natural Justice. Therefore, he stated that this

court has to remit back the matter to trial court and to give opportunity to

the defence counsel to argue the case against the prosecution and without

cross-examination, the chief examination cannot be treated as evidence.

Further, he would submit that prosecution has not established that the

appellant stayed with the victim girl and he had forcibly had sexual

intercourse with her or made her to pregnant. Though the trial court

accepted the defence raised and also found that the prosecution has not

established any proof of the marriage between the appellant and the victim, https://www.mhc.tn.gov.in/judis

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however erroneously convicted the appellant for the other offences.

Therefore, the prosecution has failed to prove the charge for the offence

under Section 9 of the Prohibition of Child Marriage Act, 2006. Once it has

come to the conclusion that child marriage has not been proved, the trial

court ought to have acquitted the appellant for the charge under Section 5(l)

which is punishable under Section 6 of the POCSO Act. Since the victim had

gone with the appellant voluntarily and she had already completed the age of

18 years, the ingredients of the offence under Section 366 of IPC., and

Section 5(l) punishable under Section 6 of POCSO Act are not attracted.

The trial court had erroneously found the appellant guilty of the said

offences and the Judgment of conviction and sentence passed by the trial

court are liable to be set aside and the appeal may be allowed.

13.The Learned Government Advocate would submit that age of the

victim was 17 years, at the time of occurrence. She is a child under the

definition of Section 2(1) (d) of POCSO Act, therefore the offence under

POCSO Act would get attracted. Even as per the evidence of P.W.2, the date

of birth of the victim is 21.10.2000 and on the date of occurrence viz.,

29.11.2017, she completed 17 years and not completed the age of 18 years,

therefore, she is a minor and child under the definition of POCSO Act. In https://www.mhc.tn.gov.in/judis

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order to prove the date of birth of the victim Ex.P.19/Transfer Certificate of

the victim was produced through P.W.9/Head Master of the school, where

the victim girl studied. As per Section 94(2) of the Juvenile Justice (Care

and Protection of Children) Act, 2015, once prosecution has produced the

Transfer Certificate, issued by the Educational authority to prove the age of

victim, the presumption is that the age mentioned in such certificate is

genuine, unless, the contrary is proved. Further, while the victim was

admitted in the hospital, she has stated before the doctor that a known

person had committed sexual assault on her. The doctor, who examined the

victim girl in both cases are one and the same, has stated that her vagina

admitted one finger and hymen was not intact. Therefore, it is proved that

she was subjected to penetrative sexual assault and while in the second time

of examination, her pregnancy was confirmed. The victim girl stated before

the doctor and before the police officials, at the time of examination that she

was subjected to penetrative sexual assault made by the appellant. However,

while she was examined as witness before the trial court, she has not

supported the case of the prosecution. Even though she has not stated before

the court, however, in her earlier statement, she clearly stated that she was

subjected to penetrative sexual assault. The doctor is an independent witness

and she has no motive to give false report. Though the mother of the victim https://www.mhc.tn.gov.in/judis

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girl tried to prevent her daughter from going with the appellant, he took the

victim girl from the custody of the mother twice, which is clearly proved by

P.W.3, who is neighbour.

14.On combined reading of evidence of P.W.1, P.W.3 and

P.W.12/Doctor, the prosecution proved its case beyond reasonable doubt.

The victim is a minor under the definition of POCSO Act, and she was

subjected to penetrative sexual assault more than once. Therefore, the

alleged offence falls under aggravated penetrative sexual assault within the

meaning of Section 5 (l) of POCSO Act, which is punishable under Section

6 of POCSO Act. Since the appellant abducted a minor from the custody of

lawful guardian twice and had sexual intercourse with her, the ingredients of

the offence under Section 366 of IPC., is attracted. Therefore, appellant

committed the offences under Sections 366 of IPC., and Section 5(l)

punishable under Section 6 of POCSO Act and it has been proved by

evidence of prosecution witnesses.

15.Though the victim stated that she lived with the appellant and the

appellant is her husband, neither the defence nor the victim has proved the

marriage between them, hence, the marriage was not proved in the manner https://www.mhc.tn.gov.in/judis

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known to law. Therefore, the trial court acquitted the appellant for the

offence under Section 9 of the Prohibition of Child Marriage Act, 2006 and

rightly convicted the appellant for the offences punishable under Section 366

of IPC., and under Section 5(1) punishable under Section 6 of POCSO Act,

in both cases. The learned Government Advocate therefore prayed for

dismissal of the appeals.

16.Heard the learned counsel on record for the appellant, both the legal

aid counsel for the appellant as well as the learned Government Advocate

(Crl.Side) appearing for the respondent and also perused the materials

available on record.

17.Since the Appellate Court is a final Court of fact finding and it can

re-appreciate the evidence and give independent findings, this Court has

carefully gone through the entire materials.

18.As far as the age of the victim is concerned, the prosecution

examined P.W.9/Head Master of School, who issued Ex.P.19/Transfer

Certificate of the victim girl, in which, the date of birth of victim is

mentioned as 21.10.2000 and date of occurrence was 29.11.2017. https://www.mhc.tn.gov.in/judis

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Therefore, from the evidence of P.W.9 and Ex.P.19 and even from the

evidence of victim girl, it is proved that at the time of occurrence, the victim

has not completed 18 years. The victim girl was a child under the definition

of Section 2(1)(d) of POCSO Act. Thus, the presumption as regards to the

age of the victim is proved by the prosecution. The defence has not rebutted

the presumption regarding the age of the victim.

20.As far as the charge under Section 366 of IPC., is concerned, in

order to substantiate the charge, on the side of the prosecution, the mother of

the victim was examined as PW.1. On reading her evidence, she has clearly

narrated that the appellant took the victim for marrying her, however, the

marriage was not proved in the manner known to law. Further, on reading of

evidence of the P.W.1 to P.W.3, it is seen that even P.W.2/ victim also

admitted earlier that the appellant had taken the victim from the custody of

her mother/natural guardian without her consent. Even before the Doctor,

she has stated that she was subjected to penetrative sexual assault by a

known person. The appellant for the purpose of having sexual intercourse,

removed the victim from the custody of lawful guardian without her consent.

Therefore, the appellant has committed the offence under Section 366 of

IPC.

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

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21.As far as the charges under POCSO Act, is concerned the victim

herself has stated that her date of birth is on 21.10.2000, and the date of

occurrence is 29.11.2017. The victim has stated before the medical officer

and also the police officials that she was subjected to penetrative sexual

assault, immediately, soon after securing she was subjected to medical

examination. The medical officer, who examined the victim girl has clearly

stated that hymen was not intact and her vaginal portion admits one finger,

thus, she was subjected to penetrative sexual assault. Therefore, the offence

under Section 5(l) punishable under Section 6 of POCSO Act, committed by

the appellant, was proved.

22.Though the learned counsel for the appellant would submit that the

statement made by the victim was not admissible in evidence and the same

has not been substantiated before the court of law, while examining as

witness, the victim has stated that nothing has happened, as alleged by the

prosecution. However, the medical evidence clearly shows that the victim

was subjected to penetrative sexual assault. Since the victim is a child and

she was subjected to penetrative sexual assault repeatedly, it falls under

Section 5 (l) of POCSO Act which is punishable under Section 6 of POCSO https://www.mhc.tn.gov.in/judis

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Act. Since the victim girl married the appellant and she is living with

appellant as his wife, she made such a contra statement. Even though, the

appellant was aware that the victim is minor, committed penetrative sexual

assault, and also had sexual intercourse continuously. Since the victim is

minor her consent is immaterial, therefore, the trial court rightly convicted

the appellant for the offences and acquitted him for the offence under

Section 9 of th Prohibition of Child Marriage Act, 2006. Therefore, this

Court finds that there is no reason to discard the evidence of the

doctor/PW.9, P.W.1 to P.W.3. While re-appreciating the evidence, this

Court is of the opinion that the appellant has committed the offence under

Section 366 of IPC., and also committed the offence under Section 5 (l) of

POCSO Act, which is punishable under Section 6 of POCSO Act and this

Court does not find any reason to interfere with the Judgment of conviction

and sentence passed by the trial court. Considering the facts and

circumstances of case, this court could not find any merits in these appeals

and the same are liable to be dismissed.

23.In the result, the Criminal Appeals are dismissed. The suspension

of sentence already granted by this Court dated 01.07.2020 in

Crl.M.P.No.4327 of 2020 in Crl.A.No.265 of 2020 and in Crl.M.P.No.4328 https://www.mhc.tn.gov.in/judis

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of 2020 in Crl.A.No.266 of 2020 respectively stand cancelled. The trial

court is directed to secure the appellant for sufferance of the above sentence.

21.09.2021

Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order

klt/pbl

To

1.The Sessions Judge, Fast Track Court, Krishnagiri, Krishnagiri District

2.The Inspector of Police, Mathur Police Station, Krishnagiri District.

3.The Public Prosecutor, High Court, Madras.

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

Page No.14/15 Crl.A.No.265 of 2020

P.VELMURUGAN, J.

klt

CRL.A.Nos.265 & 266 of 2020

21.09.2021

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

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