Tamilselvan vs State Rep By
2021 Latest Caselaw 19737 Mad

                                                                              Crl.A.No.360 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 27.09.2021

                                                        CORAM

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                   Crl.A.No.360 of 2020

                     Tamilselvan                                               ... Appellant
                                                            .Vs.

                     State rep by
                     Inspector of Police,
                     All Women Police Station,
                     Gobichettypalayam.
                     (Crime No.1 of 2018)                                     ... Respondent

                     Prayer: Criminal Appeal filed under Section 374 (2) of Code of
                     Criminal Procedure praying to set aside the Judgment dated 14.10.2019
                     passed in Special Sessions Case No.8 of 2018 by the Learned Sessions
                     Judge, Magalir Neethi Mandram, (Fast Track Mahila Court) Erode and
                     acquit the accused.


                                  For Appellant         :      Mr.M.Dhamodharan
                                                               (Legal Aid Counsel)

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




https://www.mhc.tn.gov.in/judis
                     Page No.1/14
                                                                                Crl.A.No.360 of 2020

                                                    JUDGMENT

(The case has been heard through video conference)

This Criminal Appeal has been filed against the Judgment dated

14.10.2019 passed in Spl.S.C.No.8 of 2018 by the learned Sessions

Judge, Magalir Neethimandram (Fast Track Mahila Court), Erode.

2. The respondent police originally registered the case against the

appellant for the offence under Section 366 of IPC and also for the

offence punishable under Section 6 of POSCO Act. After investigation

laid the charge sheet before the Special Court since the offence is against

a woman especially a child under the definition of POSCO Act. The

learned Special Judge after completing the formalities, taken the charge

sheet on file in Special S.C.No.8 of 2018 and after completing the

formalities, framed charges against the appellant for the offence under

Section 366 IPC, Section 6 of POSCO Act and Section 3(1)(w)(i) of

SC/ST (POA) Amended Act 2015.

3. After completing the formalities and in order to prove the case of

the prosecution, on the side of the prosecution 25 witnesses were

examined as P.W.1 to P.W.25 and 49 documents were marked as Exs.P1

to P.49. Besides 4 material objects were exhibited as M.O.1 to M.O.4. https://www.mhc.tn.gov.in/judis Page No.2/14 Crl.A.No.360 of 2020

4. After completing the examination of the prosecution witnesses

incriminating circumstances culled out from the evidence of the

prosecution witnesses were put before the appellant by questioning

under Section 313 of Cr.P.C. He denied the same as untrue and also

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 not found the

appellant guilty for the offence under Section 366 IPC and also

3(1)(w)(i) of SC/ST (POA) Amendment Act 2015. However, found the

appellant guilty for the offence punishable under Section 6 of POSCO

Act and convicted and sentenced him to undergo 12 years rigorous

imprisonment and to pay fine of Rs.5,000/- 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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6. Mr.M.Dhamodharan, Legal Aid Counsel appearing for the

appellant would submit that the age of the victim was not proved. The

evidence of the doctor who examined the victim/P.W1 and the medical

report clearly show that there is no forceful sexual assault on the victim

and there is no eye witness in this case. He would further submit that the

victim has completed the age of 18 years and she on her own volition

went along with the appellant and with her consent only, the appellant

had sexual intercourse with her and therefore, the offence under POCSO

Act would not attract. Further, the victim is an unknown person and the

appellant does not know about the community of the victim. Though the

trial Court found the appellant not guilty for the offence under Section

366 IPC and Section 3(1)(w)(i) of SC/ST (POA) Act, however, from the

very same evidence, wrongly convicted the appellant for the offence

punishable offence under Section 6 of POCSO Act. Once the prosecution

failed to prove the age of the victim and the defence proved the fact that

the victim on her own volition went along with the appellant, the

ingredients of offence under the POCSO Act would not attract. Hence,

the appellant cannot be convicted for the offence under POCSO Act

since, the prosecution failed to prove that the victim was a child under th

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definition of 2(1)(d) of POCSO Act and the trial Court wrongly

convicted the appellant which warrants interference of this Court.

7. Mr.S.Sugendran, Government Advocate (Crl. Side) appearing for

the respondent would submit that the age of the victim at the time of

occurrence is only 17 years and in order to prove her age, the Transfer

Certificate of the victim was marked as Ex.P.18 and the Head Master of

the School in which, the victim studied was examined as P.W.14. Further,

he has issued a School Certificate/Ex.P.15 in which also, the date of birth

of the victim is mentioned as 29.01.2000 and the date of occurrence is

on 20.01.2018. Therefore, the prosecution proved that the age of the

victim is only 17 years and she had not completed the age of 18 years

and she was a child under the definition of the POCSO Act at the time of

occurrence and hence, her consent is immaterial. Further, the victim girl

has clearly deposed that on 15.01.2018, she received a call through her

mother's cellphone and when she attended the call, the appellant

introduced himself and developed the conversation stating that he is an

unmarried person and subsequently, he promised to marry the victim

girl. Thereafter, on 20.01.2018, the appellant took the victim girl to the

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place of occurrence and had sexual intercourse with her. Subsequently,

on 27.01.2018 the appellant took the victim to the place of occurrence

and had sexual intercourse with her. Though, the victim is stated to have

given consent to the appellant on the belief that he would marry her,

since the age of the victim was only 17 years and she was a child at the

time of occurrence, her consent is immaterial. Further, the appellant has

committed sexual intercourse on the victim for more than once and

thereby, the offence committed by the appellant falls under Section 5(l)

which is punishable under Section 6 of POCSO Act. Though the trial

Court wrongly acquitted the appellant for the offence under Section 366

of IPC and also 3(1)(w)(i) of SC/ST Act, however the trial Court rightly

convicted the appellant as stated above since, the appellant committed

penetrative sexual assault on the victim girl who was a child at the time

of occurrence. The doctor who examined the victim girl has clearly

deposed that the victim was subjected to penetrative sexual assault and

therefore, the prosecution has proved its case beyond all reasonable

doubt for the offence under Section 5(l) which is punishable under

Section 6 of POCSO Act. Therefore, there is no merit in the appeal and

the appeal is liable to be dismissed.

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8. Heard the learned Counsel for the appellant and the learned

Government Advocate (Crl. Side) and perused the materials on records.

9. The case of the prosecution is that the victim lives with her

mother and grandfather. She belongs to Hindu Sakkiliyar community and

the appellant belongs to Hindu Nadar in community. While so, the

appellant called up the cell phone number of the victim's mother and

started to develop relationship with the victim girl by introducing himself

as a bachelor. Thereafter, by inducing the victim girl that he would marry

her, took the victim girl to Sundapalayam and committed penetrative

sexual assault on her on 20.01.2018 and 27.01.2018. When the

grandfather of the victim came to know about their relationship, he

enquired about the appellant and came to know that the appellant is

already a married man and has a family at Palaiyur, Kadukkampalayam.

After realizing the offence committed by the appellant, the victim girl

along with her mother and grandfather lodged the complaint against the

appellant. Thereafter, she was produced before the Judicial Magistrate

and her statement was recorded under Section 164 Cr.P.C. The appellant

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is the sole accused and against him three charges were framed for the

offence under Section 366 IPC, Section 6 of POSCO Act and Section

3(1)(w)(i) of SC/ST (POA) Amended Act 2015.

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

and it has to re-appreciate the entire evidence and to give its findings

independently. Accordingly, this Court pursued the entire materials and

the Judgment of the trial Court, and gives its findings independently.

11. In order to substantiate the above said charges, on the side of

the prosecution totally 25 witnesses were examined and 49 documents

were marked and 4 material objects were exhibited. Out of the 25

witnesses, the victim was examined as P.W.1.

12. The date of birth of the victim is 29.01.2000 and date of

occurrence is on 20.01.2018. In order to prove the age of the victim, the

Head Master of the school in which the victim studied was examined as

P.W.14 and the certificate issued by the P.W.14 was marked as

Ex.P.17/School certificate and the copy of the Transfer Certificate issued

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by the Board of Secondary School was marked as Ex.P.18 in which, the

date of birth of the victim is mentioned as 29.01.2000. Admittedly, the

date of offence is on 20.01.2018 and thereby, the prosecution has proved

that the age of the victim is only 17 years and she was a child under the

definition of Section 21(d) of POCSO Act at the time of occurrence.

13. As far as the commission of offence is concerned, on the side of

the prosecution, the victim was examined as P.W.1. and she has clearly

narrated the entire incident. Even prior to that, the victim was produced

before the doctors/P.W.4 and P.W.6 for medical examination and they

have clearly stated that the victim was subjected to penetrative sexual

assault. Further, from the documents viz., Ex.P.7/copy of Accident

Register, Ex.P.8/final opinion of doctor and from the evidence of P.W.4

and P.W.6, it is proved that the victim was not completed 18 years at the

time of occurrence and she was subjected to penetrative sexual assault.

Earlier, the victim was also produced before Judicial Magistrate to record

statement under Section 164 of Cr.P.C. and the said statement was

marked as Ex.P.2. A reading of the previous statement/Ex.P.2 clearly

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shows that how the victim got acquaintance with the appellant and

subsequent to their telephone conversation, the appellant has promised to

marry the victim and believing his words, the victim went along with the

appellant to the place of occurrence wherein, the victim was subjected to

sexual assault by the appellant for more than once.

14. From the evidence of the victim/P.W.1 and doctor/P.W.6 and

the medical examination report, clearly show that the victim was

subjected to penetrative sexual assault. The appellant had promised to

marry the victim girl and thereby, the victim has given consent and went

along with the appellant. However, since the victim was a child at the

time of occurrence, her consent is immaterial. Though, the trial Court

wrongly acquitted the appellant for the offence under Section 366 IPC

and also Section 3(1)(w)(i) of SC/ST (POA) Act, neither the victim nor

the State has filed any appeal against the same. Therefore, this Court

does not interfere with the acquittal of the accused for the charged

offences under Section 366 of IPC and 3(1)(w)(i) of SC/ST (POA) Act.

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15. A perusal of entire materials viz., the evidence of the

victim/P.W.1, doctors/P.W.4 and P.W.6, the School Certificate issued by

the Head Master of the school in which the victim studied/Ex.P.15, copy

of the Transfer Certificate/Ex.P.18, the medical examination report of the

doctors/Ex.P.8 and P.11 and the previous statement of the victim recorded

under Section 164 Cr.P.C./Ex.P.2, this Court comes to independent

conclusion that the victim was not completed the age of 18 years at the

time of occurrence and she was a child under the definition of 2(1)(d) of

POCSO Act and she was subjected to penetrative sexual assault which

was made by the appellant and that the prosecution has proved its case

beyond all reasonable doubt. Further, the call details of the accused is

also produced before this Court which clearly shows that the appellant

had contact with the victim girl through her mother's cell phone and had

access with the victim girl. Therefore, this Court does not find any

perversity in the Judgment of the Court below. Therefore, there is no

merit in the appeal and the appeal is liable to be dismissed.

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16. Accordingly, this Criminal appeal is dismissed. The Judgment

dated 14.10.2019 passed in Spl.S.C.No.8 of 2018 by the learned Sessions

Judge, Magalir Neethimandram (Fast Track Mahila Court), Erode, is

hereby confirmed. Hence, the trial Court is directed to secure the

appellant/accused to undergo the remaining period of sentence, if any.

17. M.Dhamodharan, Legal Aid Counsel, appearing for the

appellant is entitled for remuneration as per rules.

27.09.2021

ksa2/dsn

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

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To

1. The Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Erode.

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

3.The Public Prosecutor Officer, High Court, Madras.

4.The Section Officer, Criminal Section, High Court, Madras.

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P.VELMURUGAN,J.

Dsn

Crl.A.No.360 of 2020

27.09.2021

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