Madras High Court
Manikandan vs The State on 21 September, 2021
CRL.A.No.419 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.419 of 2020
Manikandan ...Appellant
Vs
The State,
Represented by the Inspector of Police
All women Police Station
Sooramangalam,
Salem District
(Crime No.3 of 2017)
...Respondent
prayer: Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure is praying to call for the records and set aside the order of conviction
and sentence passed in Spl.S.C.No.54 of 2019 dated 13.08.2020 by the learned
Sessions Judge, Special Court for Cases under the Protection of Children from
Sexual offences Act, Salem, and allow the appeal and acquit the
Appellant/Accused from the charge leveled against him.
For Appellant : Mr.R.Lingakumar
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
1/14
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CRL.A.No.419 of 2020
JUDGMENT
(The case has been heard through video conference)
This Criminal Appeal has been filed against the Judgment dated 13.08.2020
made in Old Spl.S.C.No.51 of 2017, New Spl.S.C.No.54 of 2019 passed by the
learned Special Court for Cases under the Protection of Children from Sexual
offences Act, Salem.
2. The respondent police registered the case in Crime No.3 of 2017 against
the appellant for the offence under Section 11(1) which is punishable under
Section 12 of POSCO Act and after investigation, they filed the charge sheet
against the appellant before the learned Sessions Judge, since the offence is
against a child under the definition of POSCO Act. The learned Special Judge
originally taken the case on file in Spl.S.C.No.51 of 2017 and subsequently, after
establishment of POCSO Court, transferred the case to the Special Court for Cases
under the Protection of Children from Sexual offences Act, Salem and re-
numbered as Spl.S.C.No.54 of 2019. The learned Special Judge, after completing
the formalities, framed the charges as against the appellant for the offence
punishable under Section 12 of POSCO Act.
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3. In order to substantiate the charges during trial, on the side of the
prosecution as many as 9 witnesses were examined as P.W.1 to P.W.9 and 8
documents were marked as Ex.P.1 to P.8. Besides, one Material object was
exhibited as M.O.1
4. After completing the examination of the prosecution witnesses
incriminating circumstances culled out from the evidence of prosecution witnesses
were put before the appellant by questioning under Section 313 Cr.P.C. However,
he denied the same as untrue and pleaded not guilty. On the side of the defence,
no oral or documentary evidence were produced.
5. On completion of trial and hearing of the arguments advanced on either
side and considering the materials, the trial Court found the appellant guilty for
the offence punishable under Section 12 of POSCO Act and convicted and
sentenced him to undergo 3 years rigorous imprisonment and pay fine of
Rs.20,000/- in default to undergo 3 months simple imprisonment. Challenging the
said Judgment of conviction and sentence, the appellant has filed the present
appeal before this Court.
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CRL.A.No.419 of 2020
6. The learned counsel for the appellant would submit that a false case has
been foisted against the appellant and no such occurrence has taken place as
projected by the prosecution. Since, the appellant had earlier given a complaint
against the family members of the victim for beating him, in order to wreck
vengeance, they have set up the victim and foisted the false case against the
appellant. Further, the prosecution has not produced the said counter case of the
appellant before the Court and the appellant had sustained injury during the
assault made by the family of the defacto complainant and the prosecution has not
proved as to how the appellant sustained injury. The non explanation of the injury
sustained by the appellant is fatal to the case of the prosecution. Though the
grandfather of the victim has lodged the complaint, he is not an eye witness to
the occurrence and P.W.6 who has been shown as witness is the cousin brother of
the victim and he is an interested witness. Except P.W.6, there is no eyewitness in
this case and the other witnesses are hearsay witnesses. Since, there is no
penetrative sexual assault or aggravated sexual assault, there is no medical
evidence in this case. Therefore, even the presumption under Section 29 or 30 of
the POSCO Act would not attract for the offence under Section 11 punishable
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CRL.A.No.419 of 2020
under Section 12 of POCSO Act. Further, the victim girl has not stated anything
about the physical assault stated to have been committed by the appellant and it is
for the prosecution to prove the case beyond all reasonable doubt. Whereas, in
this case the prosecution has failed to prove the case beyond all reasonable doubt.
The relative witnesses have been set up against the appellant and foisted a false
case against him and the trial Court also failed to appreciate the evidence that in
order to wreck vengeance, all the relatives joined together and foisted the false
case against the appellant, and wrongly convicted the appellant which warrants
interference of this Court.
7. The Learned Government Advocate (Crl. Side) would submit that the
victim girl was aged about only 15 years and she was studying 10th standard at the
time of occurrence. On 08.02.2017, while the victim girl was returning from
school, the appellant followed her and caused sexual harassment on her. At that
time, P.W.6 saw the same and questioned the appellant for which, the appellant
beaten him. In fact, P.W.6 is the cousin brother of the victim. Hence, he informed
the same to the grandfather of the victim. In turn, the grandfather informed the
same to the parents of the victim and subsequently, they all reached the place of
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CRL.A.No.419 of 2020
occurrence. Thereafter, P.W.1/grandfather of the victim lodged the complaint
before the respondent police. After registration of the complaint, the victim girl
was produced before the learned Judicial Magistrate for recording statement under
Section 164 Cr.P.C. and the learned Magistrate also recorded the statement in
which, the victim girl has clearly narrated that on the date of occurrence, while she
was returning from school, the appellant waylaid her and made sexual harassment
on her. On seeing the same, P.W.6 who is the cousin brother of the victim
interfered the appellant for which, the appellant beaten him. Further, P.W.6/the
cousin brother of the victim was examined and he has also clearly narrated the
incident. When the victim was examined as P.W.2, she clearly deposed regarding
the commission of offence made by the appellant and the evidence of P.W.2 is
corroborated with the evidence of P.W.6. The statement recorded under Section
164 Cr.P.C. also shows that the appellant committed the charged offence and
therefore, the prosecution proved its case beyond all reasonable doubt. Further, in
order to prove the age of the victim, the school certificate in which, the victim
studied was marked as Ex.P.8 through the Head Master of the School/P.W.9 and
as per Ex.P.8, the date of birth of the victim is 01.05.2002. Therefore, it is proved
that at the time of occurrence, the victim was only 15 years old and she was a
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CRL.A.No.419 of 2020
child under the definition of POSCO Act at the time of occurrence and since, the
prosecution proved its case beyond all reasonable doubt regarding the commission
of offence made by the appellant, the trial Court rightly appreciated the evidence
and convicted the appellant for the offence punishable under Section 12 of
POSCO Act. 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) and also perused the materials on record.
9. The case of the prosecution is that the victim girl who was aged about 15
years was studying 10th standard and the appellant being the resident of the same
locality, well known to the victim girl and her family. While being so, on
08.02.2017, at about 5.30 p.m, while the victim girl was returning from her
school, near Chinnayeri, Vattakkadu, the appellant came there and teased her and
asked her to come to Chinnayeri for enjoying by eye winking. Hence, she raised
alarm and on hearing the same, the relative of the victim/P.W.6 who was nearby
the place, went there and questioned the appellant. By the time, the parents and
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CRL.A.No.419 of 2020
relatives of the victim reaching the scene of occurrence, the appellant had escaped
from the place. Thereafter, the grandfather of the victim lodged the complaint
before respondent police.
10. This Court being an Appellate Court as a final Court of fact finding, it
has to necessarily re-appreciate the entire evidence and to give its findings
independently. Accordingly, this Court re-appreciated the entire evidence and
gives its findings independently.
11. In order to substantiate the charges framed against the appellant, on the
side of the prosecution, totally 9 witnesses were examined out of which, the victim
was examined as P.W.2 and she has spoken about the occurrence. The cousin
brother of the victim was examined as P.W.6 who corroborated with the evidence
of P.W.2/victim. P.W.1 is the grandfather of the victim and he has spoken about
the complaint given by him before the respondent police.
12. After registration of the F.I.R., the victim girl was produced before
Judicial Magistrate for recording statement under Section 164 Cr.P.C. and the
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statement was marked as Ex.P.2. In order to prove the age of the victim, the
school certificate of the victim was marked as Ex.P.8 through P.W.9/the Head
Master of the school in which the victim girl was studying. As per the evidence of
P.W.9 and Ex.P.8, the date of birth of the victim is 01.05.2002 and according to
the prosecution, the date of occurrence is on 08.02.2017. Therefore, the
prosecution has proved that at the time of occurrence, the age of the victim girl
was only 15 years and she was a child under the definition of POCSO and that the
defence has not rebutted the presumption regarding the age of the victim. Hence
this Court finds that on the date of occurrence, the victim girl was a child under
Section 2(1)(d) of POSCO Act.
13. As far as the sexual harassment is concerned, the victim girl has clearly
stated that when she was studying 10th standard, one day i.e. 08.02.2017 while she
was returning home from school, the appellant followed her and teased her.
Hence, she warned him. However, the appellant continued to follow her and
committed sexual harassment on her and thereby, she raised alarm. On hearing
the same, P.W.6 who is the cousin brother of the victim interfered the appellant
and questioned him and also informed the same to the family members of the
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CRL.A.No.419 of 2020
victim and before the family members of the victim reaching the spot, the
appellant escaped from the place of occurrence. Therefore, from the evidence of
P.W.2/victim and P.W.6/cousin brother of the victim, it is clearly proved that the
appellant committed the offence under Section 11 of POSCO Act which is
punishable under Section 12 of POSCO Act.
14. Though the learned counsel for the appellant contended that there was a
case in counter, neither he has produced the F.I.R. registered in the counter case,
nor he put a suggestion before any of the witnesses and therefore, the contention
of the learned counsel for the appellant is rejected. If at all there was a case in
counter and if the prosecution had not taken any action on the same, definitely, the
appellant would have approached the Superior Officer or otherwise filed a private
complaint. Further, the appellant has not marked the F.I.R. either through any of
the witnesses or through the Investigating Officer. Therefore, the contention of
the learned counsel for the appellant is not acceptable.
15. Therefore, in this the case, the complaint of the defacto complainant is
proved and the victim was produced before the learned Judicial Magistrate for
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recording statement under Section 164 Cr.P.C. and the same was also recorded
wherein, the victim girl has clearly narrated the entire incident. Though, the
statement recorded under Section 164 Cr.P.C. is not an substantiated evidence
however, it can be substantiated through witness during trial. While the victim girl
was examined as P.W.2, she clearly stated that earlier her statement was recorded
by the Judicial Magistrate.
16. A complete reading of evidence of P.W.1/grandfather of the victim who
lodged the complaint, P.W.2/victim, P.W.6/the cousin brother of the victim, and
Ex.P.2/the statement of the victim recorded under Section 164 Cr.P.C., this Court
also finds the guilt of the accused for the offence punishable under Section 12 of
POSCO Act. Since, the presumption clause would not attract for the offence under
Section 11 of POSCO Act, it has to be proved by the prosecution as any other
criminal case beyond all reasonable doubt. In the present case on hand, as already
stated above that the prosecution by examining the victim as P.W.2 and the
occurrence witness as P.W.6 and from the previous statement of the victim/Ex.P.2,
clearly established that the appellant has committed the offence punishable under
Section 12 of POSCO Act.
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CRL.A.No.419 of 2020
17. Even nowadays also, in villages, most of the parents are reluctant for
sending the girl children to schools and if such things are allowed to take place,
they would think of sending the female children to schools which would affect the
future of the girl children. Therefore, considering the facts and circumstances of
the case, this court does not find any mitigating circumstances for considering the
quantum of sentence and this Court as a final Court of fact finding, finds the guilt
of the appellant and there is no merit in the appeal.
18. Accordingly the Criminal Appeal is dismissed. The Judgment dated
13.08.2020 made in Old Spl.S.C.No.51 of 2017, New Spl.S.C.No.54 of 2019
passed by the Special Court for Cases under the Protection of Children from
Sexual offences Act, Salem, is hereby confirmed. Hence, the trial Court is directed
to secure the appellant/accused to undergo the remaining period of sentence, if
any. The period of incarceration already undergone, shall be given set off.
21.09.2021
ksa-2/dsn
Speaking order/Non Speaking order
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CRL.A.No.419 of 2020
To
1. The Sessions Judge, Special Court for cases under the Protection of Children
from Sexual offences Act, Salem.
2. The Inspector of Police, All women Police Station, Sooramangalam, Salem.
3. The Public Prosecutor Officer, High Court, Madras.
4. The Section Officer, Criminal Section, High Court, Madras.
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CRL.A.No.419 of 2020
P.VELMURUGAN, J.
ksa2/dsn
CRL.A.No.419 of 2020
21.09.2021
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