Rangaraj vs State Rep.By
2021 Latest Caselaw 19341 Mad

                                                                               Crl.A.No.472 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 22.09.2021

                                                         CORAM

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                   CRL.A.No.472 of 2020

                     Rangaraj                                                   .. Appellant

                                                            Versus
                     State Rep.by
                     The Inspector of Police,
                     All Women Police Station,
                     Erode.
                     Crime No.5 of 2014.                                       .. Respondent

                              Criminal Appeal filed under Section 374 (2) of Code of Criminal
                     Procedure to set aside the conviction and sentence passed against the
                     appellant dated 12.08.2020 in Spl.S.C.No.19 of 2018 by the learned
                     Sessions Judge Magalir Neethi Mandram, Fast Track Mahila Court,
                     Erode.

                                  For Appellant         :       Mr.H.Maruthiraj
                                                                Legal Aid Counsel for Appellant
                                  For Respondent        :       Mr.J.C.Durairaj
                                                                Government Advocate (Crl.Side)

                                                     JUDGMENT

This Criminal Appeal has been filed against the Judgment dated

12.08.2020 in Spl.S.C.No.19 of 2018, on the file of the Sessions Court,

https://www.mhc.tn.gov.in/judis Page No.1/12 Crl.A.No.472 of 2020

Magalir Neethi Mandram, Fast Track Mahila Court, Erode.

2.The case of the prosecution is that on 24.03.2014, the mother of

the victim child gave a complaint in Sivagiri Police Station against her

husband (i.e., child's father) for misbehaving with her mentally retarded

child with sexual intention. Based on such complaint, the Sivagiri Police

registered a case in Crime No.57 of 2014, on 04.04.2014, against the

father of the victim child for the offence under Section 7 r/w Section 8 of

the POCSO Act. Later the case was transferred to All Women Police

Station for investigation, since the offence is against woman. Thereafter,

the respondent/police registered a case in Crime No.5 of 2014, on

19.04.2014, against the appellant for the said offences.

3.After investigation, the respondent/police laid charge sheet before

the Special Court, since the offence is against the women, particularly,

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

learned Sessions Judge took the charge sheet on file in Spl. S.C.No.19 of

2018. After completing the formalities, charges were framed against the

appellant for the above said offences.

4.In order to substantiate the charges framed against the appellant, https://www.mhc.tn.gov.in/judis Page No.2/12 Crl.A.No.472 of 2020

on the side of the prosecution, as many as 16 witnesses have been

examined as P.W.1 to P.W.16 and 18 documents as Ex.P.1 to Ex.P.18,

were marked and no material object was produced.

5.After completing examination of prosecution witnesses, when

incriminating circumstances culled out from the evidence of prosecution

witnesses were put before the accused by questioning him under Section

313 Cr.P.C., he denied the same as false and pleaded not guilty. On the

side of the defence, D.W.1 was examined and no document was marked.

6.On conclusion of trial, after hearing the arguments advanced on

the either side and considering the materials, the Special court found the

appellant guilty and convicted him for the offence under Section 7 of

POCSO Act, which is punishable under Section 8 of the POCSO Act,

and sentenced him to undergo 5 years rigorous imprisonment and to pay

fine of Rs.5,000/-, in default to undergo 2 months simple imprisonment.

However, the Trial Court ordered to give set off for the period of

imprisonment already undergone by him as per Section 428 of Cr.P.C.

7.Challenging the said Judgment of conviction and sentence, the https://www.mhc.tn.gov.in/judis Page No.3/12 Crl.A.No.472 of 2020

appellant filed the present appeal before this Court.

8.The learned counsel for the appellant/accused submitted that

though the date of occurrence was on 24.03.2014, the complaint was

given only on 04.04.2014, and therefore, there was delay in filing the

complaint. Subsequently the case was also transfered from the Sivagiri

Police Station to the respondent/police, where the case was registered on

19.04.2014. It is also recorded that the victim is a mentally retarded

person, and the appellant is father of the victim. Victim does not know as

to what was happening to her. Therefore, how could the appellant/father,

have committed this type of offence, that too against his own mentally

retarded daughter. P.W.1/mother of the victim is the wife of the appellant

and she had filed a false case and the prosecution failed to establish the

case as alleged by the de-facto complainant. There is no medical

evidence to show that the victim was subjected to penetrative sexual

assault, and therefore, the Trial Court failed to appreciate the evidence

and wrongly convicted her father/appellant.

9.The learned Government Advocate (crl.side) appearing for the

respondent submitted that, at the time of occurrence, the victim girl was https://www.mhc.tn.gov.in/judis Page No.4/12 Crl.A.No.472 of 2020

only aged 11 years, and she is a mentally retarded person, The

appellant/accused is the father of the victim girl. On the date of

occurrence, the appellant was in inebriated condition and sexually

assaulted his own mentally retarded daughter. P.W.1/mother of the

victim, wife of the appellant, who was the only eye-witness in this case,

has clearly stated about the incident and informed the same to her father,

immediately. Subsequently, the mother of the victim admitted her

daughter into the hospital, and thereafter, she filed a complaint. The

police officials, after getting intimation, recorded the statements of

P.W.2/victim girl in the hospital, in which, the victim girl has clearly

narrated about the incident. Thereafter, the victim was produced before

the learned Judicial Magistrate and statement was recorded from her

under Section 164 Cr.P.C., with the assistance of an interpreter, since she

was mentally retarded person, in which also she has clearly narrated the

incident. The statement before the Police official and before the learned

Judicial Magistrate, corroborated the same with each other. The

Doctor/P.W.6, who gave treatment to the victim girl, has clearly stated

that victim was admitted in the hospital from 02.04.2014 to 15.04.2014,

and he also given the statement that the victim girl sustained injuries on

her back and various parts of the body. Therefore, from the evidence of https://www.mhc.tn.gov.in/judis Page No.5/12 Crl.A.No.472 of 2020

the P.W.1, P.W.2, PW.8/one of the sisters of the mentally retarded

victim, medical evidence and also from the statement recorded under

Section 164 Cr.P.C., the prosecution has proved its case beyond

reasonable doubt that the appellant has committed sexual assault on the

mentally retarded victim girl. Hence, the Trial Court rightly convicted the

appellant and imposed sentence accordingly.

10.I have heard submissions made by the Learned Counsel on

both sides and perused the materials available on record.

11.Since the Appellate Court is a final Court of fact finding, it can

re-appreciate the evidence and give independent findings, for which, this

Court has carefully gone through the entire materials.

12.It is seen that the Trial Court framed the charge against the

appellant, and on the side of the prosecution, totally 16 witness were

examined and 18 documents were marked, out of which, the victim was

examined as P.W.2. On a reading of the entire evidence of P.W.2, it is

seen that the victim girl has clearly stated her father/appellant has

committed sexual assault on her. P.W.1 mother of the victim is none https://www.mhc.tn.gov.in/judis Page No.6/12 Crl.A.No.472 of 2020

other than the wife of the appellant and she has also clearly stated that on

the date of occurrence on 24.03.2014 during night hours, she saw the

appellant/husband committed the sexual assault on the victim/P.W.2,

who is none other than the daughter of P.W.1 and the appellant. It is to

be noted that she is also mentally retarded person. Since the victim is

mentally retarded person, and she was sleeping with her father on the

date of occurrence and the appellant had consumed alcohol. At that time,

during night hours, the appellant sexually assaulted his mentally retarded

daughter. After seeing the incident, P.W.1 informed the same to her

father and took the victim to the hospital. Thereafter, on information, the

Sivagiri Police came to the hospital and recorded their statements. Since

the offence against women, the case was transferred to the All Women

Police Sation, Erode and thereafter the respondent police registered the

case and after completing investigation filed a charge sheet against the

appellant form the offence under Section 7 which is punishable under

Section 8 of the POCSO Act. The evidence of the Doctor P.W.6 clearly

shows that the victim sustained injuries not only on back side and also on

her thigh, breast, shoulder and cheek. The victim girl was medically

examined on 03.04.2014 and Ex.P.5/Accident Register, clearly shows

that the mentally retarded victim girl was sexually assaulted by a known https://www.mhc.tn.gov.in/judis Page No.7/12 Crl.A.No.472 of 2020

person and also concerned about the injuries sustained by her.

13.From the evidence of P.W.1 and P.W.2, Ex.P.2, Ex.P.3 and

statements recorded under Section 164 of Cr.P.C., from P.W.1 to P.W.3,

Ex.P5/Accident Register Copy, Ex's.P8, P9, P12 & P14 and statements

recorded under Section 164 of Cr.P.C., from P.W.7 and P.W.8, when she

was admitted in the hospital, prosecution has proved that the appellant

had committed the offence, punishable under the POCSO Act. P.W.1 is

an eye-witness, since the occurrence had taken place in the house of the

appellant, during the night hours. P.W.1 clearly stated that after hearing

the sound of her mentally retarded daughter, immediately, she went to the

room and saw the victim's father/appellant without dress. Therefore, the

appellant with sexual intention, committed the said offence on his own

daughter. This Court does not find any reason to discard the evidence of

P.W.1 and P.W.2 and the medical evidence. The age of the mentally

retarded victim girl, at the time of occurrence, is only 10 years, which

was proved by the prosecution through Ex.P.15/Birth Certificate. As per

Ex.P.15/date of birth of the victim is 07.03.2003 and date of the

occurrence is on 24.03.2014. Therefore, the age of the victim is at the

time of the occurrence is only 11 years and therefore she is a child under https://www.mhc.tn.gov.in/judis Page No.8/12 Crl.A.No.472 of 2020

the definition of Section 2(1)(d) of the POCSO Act and also she is

mentally retarded person. The appellant being own father of the victim

has committed sexual assault on his own child, which was witnessed by

her wife/mother of the victim. Therefore the evidence of the victim and

P.W.1/wife of the appellant is cogent, consistent and also natural, and

hence, there is no reason to discard the evidence of P.W.1 and P.W.2.

The medical evidence also corroborated with the evidence of P.W.1 and

P.W.2 and supported the case of the prosecution. Therefore, this Court

does not find any perversity in the appreciation of evidence by the Trial

Court.

14.Though there is a delay in filing the complaint, in this case, the

victim was only 11 years at the time of occurrence and mentally retarded.

Under such circumstances, one cannot expect victim to speak about the

sexual assault committed by her own father, immediately soon after the

occurrence. Even, she did not understand what was happening to her.

Further the discrepancies and contradictions, pointed out by the Learned

Counsel for the appellant are not material contradictions, and the same

are not to go into the root of the case of the prosecution. Therefore, this

Court while re-appreciating the entire evidence, especially, the evidence https://www.mhc.tn.gov.in/judis Page No.9/12 Crl.A.No.472 of 2020

of P.W.1, P.W.2 and PW.8 and Ex.P2, Ex.P3, Ex.P6, Ex.P8, Ex.P9,

Ex.P.14, Ex.P.5 and Ex.P.15, finds that the prosecution has proved its

case beyond all reasonable doubts.

15.From the evidence of P.W.1 and P.W.2 and also Ex.P.2 and

Ex.P.3 and the evidence of P.W.8, it is proved that the appellant has

committed the penetrative sexual assault. From the evidence of

P.W.6/Doctor and the medical records, the Trial Court found that the

appellant guilty for the offence under Section 7 which is punishable

under Section 8 of the POCSO Act. Therefore, this Court, while re-

appreciating the entire evidence, does not find any perversity in the

findings of the Trial Court and there is no merit in the appeal, which is

liable to be dismissed. The Trial Court is directed to take steps to secure

the custody of the appellant, to undergo the remaining period of

sentence, if any.

22.09.2021

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

klt https://www.mhc.tn.gov.in/judis Page No.10/12 Crl.A.No.472 of 2020

To

1.The Sessions Judge Magalir Neethi Mandram, Fast Track Mahila Court, Erode.

2.The Inspector of Police, All Women Police Station, Erode.

3.The Public Prosecutor, High Court, Madras.

https://www.mhc.tn.gov.in/judis Page No.11/12 Crl.A.No.472 of 2020

P.VELMURUGAN, J.

klt/pbl

CRL.A.No.472 of 2020

22.09.2021

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