B.Kesavan vs State Represented By
2021 Latest Caselaw 19235 Mad

                                                                         CRL.A.No.215 of 2020

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 21.09.2021

                                                        CORAM:

                                   THE HON'BLE MR.JUSTICE P.VELMURUGAN

                                                  CRL.A.No.215 of 2020

                     B.Kesavan
                     S/o Bairappa                                                     ... Appellant

                                                          Versus
                     State Represented by
                     The Inspector of Police,
                     All Women Police Station,
                     Krishnagiri,
                     Krishnagiri District.                                        ... Respondent

                     PRAYER: Criminal Appeal filed under Section 374(2) of the Code of
                     Criminal Procedure, to allow this appeal by setting aside the conviction
                     and sentence imposed on him passed by the learned Sessions Judge, Fast
                     Track Mahila Court, Krishnagiri, Krishnagiri District in Spl.S.C.No.45 of
                     2018 dated 28.02.2020.
                                       For Appellant    : Mr.P.Veeranarayanan
                                                          for M/s.M.P.Saravanan   &
                                                          Mrs.A.Veeramarthini
                                                           Legal Aid Counsel

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

                     Page No.1 of 10


https://www.mhc.tn.gov.in/judis
                                                                           CRL.A.No.215 of 2020

                                                      JUDGMENT

This Criminal Appeal has been filed to set aside judgment dated

28.02.2020 passed in Spl.S.C.No.45 of 2018 on the file of the learned

Sessions Judge, Fast Track Mahila Court, Krishnagiri.

2. The respondent police registered a case in Crime No.7 of 2018

for the offence under Section 5(l) of POCSO Act, which is punishable

under Section 6 of POCSO Act. After investigation, laid a charge sheet

before the Sessions Judge, Fast Track Mahila Court, Krishnagiri, since

the offence is against child. The learned Special Judge taken the charge

sheet on file in S.C.No.45 of 2018. After completing the formalities,

framed the charge against the appellant for the offence under Section 5(l)

of POCSO Act, which is punishable under Section 6 of POCSO Act.

During trial, in order to substantiate the charge, on the side of the

prosecution, totally 16 witnesses were examined as P.Ws.1 to 16. 23

documents were marked as Exs.P1 to P23. On completion of

examination of the prosecution witnesses, incriminating circumstances

culled out from the evidence of the prosecution witnesses put before the

https://www.mhc.tn.gov.in/judis CRL.A.No.215 of 2020

accused by questioning under Section 313 Cr.P.C. He denied the same as

untrue and pleaded not guilty. On the side of the defence, one witness

was examined as D.W.1 and one document was marked as Ex.D1.

3. On completion of trial and hearing the arguments advanced on

either side and considering the materials placed, the trial court found the

appellant guilty for the offence under Section 5(l) of POCSO Act, which

is punishable under Section 6 of POCSO Act and convicted the appellant

and sentenced him to undergo 10 years rigorous imprisonment and to pay

a fine of Rs.30,000/- in default, to undergo one year rigorous

imprisonment. Challenging the said judgment of conviction and

sentence, the accused has filed the present appeal before this Court.

4. The learned counsel for the appellant would submit that there

are two complaints filed by P.W.1. The prosecution suppressed the earlier

complaint filed by the victim and foisted a false case against the

appellant. No offence has taken place as alleged by the prosecution. The

respondent police without conducting proper investigation, filed the

https://www.mhc.tn.gov.in/judis CRL.A.No.215 of 2020

charge sheet. There is no eye witness in this case. The prosecution failed

to prove its case beyond reasonable doubt. He would further submit that

from the medical evidence, it is seen that there is no mentioning about

forcible sexual intercourse and external injury. It is only a consent

sexual intercourse. Since she has completed 18 years on the date of

occurrence, she is not a child under the definition of POCSO Act.

Therefore, offence under Section 5(l) POCSO Act would not attract. The

trial court failed to appreciate the same. Both the appellant and the

victim loved each other and with the consent of the victim only, the

appellant committed the alleged sexual intercourse.

5. The learned Government Advocate (Criminal Side) appearing

for the respondent would submit that the date of occurrence is

21.03.2018 The date of birth of the victim is 06.08.2002. Therefore, the

age of the victim is only 16 years at the time of occurrence. The appellant

misrepresented that he would marry her and had sexual intercourse with

her and subsequently he refused to marry her and therefore, the victim

approached the respondent. The respondent advised the appellant. Since

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he did not respond, she has no other option, gave a complaint. The

victim was examined as P.W.1. She has clearly narrated the incident.

P.W.6 is the doctor one who conducted medical examination on the

victim, has clearly deposed that the victim was subjected to penetrative

sexual assault. Even in A.R entry, it is mentioned that one known person

committed sexual assault on the victim girl. Further, he would submit

that though doctor has stated that no external injury, however, stated that

the victim was subjected to sexual intercourse. Therefore, evidence of

P.W.1 corroborate with the medical evidence. The victim girl was

produced before the Magistrate, for recording the statement under

Section 164 Cr.P.C., which has been marked as Ex.P2 and before the

Magistrate also she narrated the entire incident, which also corroborate

the evidence of P.W.1. On a reading of evidence of P.W.1, medical

evidence P.W.4, Ex.P2 statement recorded under Section 164 Cr.P.C and

also Ex.P3, final report, Ex.P9 medical report, it clearly shows that she

was subjected to penetrative sexual assault. Therefore, the trial court

rightly appreciated the evidence and convicted the appellant. Hence,

there is no merit in the Appeal and the same is liable to be dismissed.

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6. Heard the learned counsel for the appellant and the learned

Government Advocate (Criminal Side) appearing for the respondent and

perused the materials.

7. The case of the prosecution is that the appellant misrepresented

that he loved the victim girl and made a false promise that he would

marry her and had sexual intercourse with her. When the victim

approached the appellant to marry her, he refused to do so. Hence the

complaint.

8. This Court is the appellate court, as a final court of fact finding

appreciated the entire evidence in accordance with law. The trial court

framed the charges against the appellant for the offence under Section

5(l) of POCSO Act, which is punishable under Section 6 of POCSO Act.

9. In order to substantiate the charge, on the side of the

prosecution totally 16 witnesses were examined and 23 documents were

marked. Out of 16 witnesses, victim was examined as P.W.1. P.W.2 is

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the cousin sister of P.W.1. P.W.3 is the mother of victim, P.W.4 is the

doctor one who conducted medical examination of the victim girl. The

victim was produced before the Judicial Magistrate for recording

statement under Section 164 Cr.P.C and the same was marked as Ex.P2.

Ex.P3 is the final report given by the doctor and Ex.P4 is the medical

analysis report. Though the victim deposed in Kannada language, the

same was translated through the competent witness. From the evidence

of P.W.1- victim girl, she has clearly stated that the appellant approached

her and made a false promise that he would marry her, had sexual

intercourse. Subsequently, the appellant refused to marry her. Hence the

victim made a complaint before the respondent police on 17.02.2018, and

the police advised the appellant. Since the appellant has not accepted the

advice, she filed a complaint. After registering the complaint on

21.03.2018, the respondent police registered the case in Crime No.7 of

2018 against the appellant for the offence under Section 5(l) of POCSO

Act, which is punishable under Section 6 of POCSO Act. In this case,

from the evidence of P.W.4-Doctor, it clearly shows that the victim was

subjected to penetrative sexual assault and in his medical report, he has

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clearly mentioned that, the vagina admitted insertion of two fingers.

P.W.1 has also narrated the incident before the Judicial Magistrate and

subsequently she was examined as witness before the Court. While

examining as P.W.1, she has clearly deposed that the appellant has

committed penetrative sexual assault on her. On a combined reading of

evidence of P.W.1 and P.W.4, Ex.P2- statement recorded under Section

164 Cr.P.C, medical report, final opinion-Ex.P3, the prosecution proved

its case beyond all reasonable doubt. In order to prove the age of the

victim, the prosecution produced Ex.P15, the education certificate. As

per Ex.P15, the date of birth of the victim is 06.08.2002. The date of

occurrence is 21.03.2018. Therefore, age of the victim is only 16 years

and she is a child under the definition of Section 2(1)(d) of POCSO Act.

The prosecution proved the age of the victim by producing school

certificate of the victim and also further proved that the victim was

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

appellant committed penetrative sexual assault on her more than once,

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

Section 6 of POCSO Act. Even assuming that the victim gave consent for

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sexual intercourse, the said alleged consent is immaterial since victim is

minor at the time of occurrence. Once the prosecution proved its case

beyond all reasonable doubt and the trial court rightly appreciated the

entire evidence and come to the conclusion that the appellant has

committed the charged offence and imposed the sentence, this Court is

the appellate court, as the final Court of fact finding, re-appreciated the

entire evidence and come to the conclusion that the appellant has

committed the offence under Section 5(l) of POCSO Act, which is

punishable under Section 6 of POCSO Act. This Court finds that there is

no merit in the appeal and the same is liable to be dismissed.

Accordingly the Criminal Appeal is dismissed.

21.09.2021

Index: Yes/No Internet: Yes/No mfa

https://www.mhc.tn.gov.in/judis CRL.A.No.215 of 2020

P.VELMURUGAN, J.

mfa

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.

CRL.A.No.215 of 2020

21.09.2021

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