K.V.Ramanujam vs The State Of Tamilnadu
2021 Latest Caselaw 19786 Mad

                                                                               CRL.A.No. 229 of 2021




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 28.09.2021

                                                          CORAM:

                                  THE HON'BLE JUSTICE MR. JUSTICE P.VELMURUGAN

                                                CRL.A.No.229 of 2021

                     K.V.Ramanujam                                            ...Appellant

                                                            Vs

                     The State of Tamilnadu,
                     Rep by the Inspector of Police,
                     W-22, All Women Police Station,
                     Mylapore, Chennai- 600 004.                              ...Respondent


                     Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal
                     Procedure praying to allow the appeal and set-aside the Judgment of
                     conviction imposed in S.C.No.124 of 2017 dated 16.04.2021 by the learned
                     Sessions Judge, Special Court for Exclusive Trial of cases under POCSO
                     Act, Chennai, against the Appellant/Accused.


                                          For Appellant     :    Mr.P.Ramesh Kumar

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


                     1/24


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                                                                                   CRL.A.No. 229 of 2021




                                                         JUDGMENT

This Criminal Appeal has been filed against the Judgment dated

16.04.2021 passed in S.C.No.124 of 2017 by the learned Sessions Judge,

Special Court for Exclusive Trial of cases under POCSO Act, Chennai.

2 The respondent police registered the case against the appellant

in Crime No.18 of 2016 for the offence under Section 5(k) and 5(l)

punishable under Section 6 and 14(1) of POCSO Act and also Section 506

(ii) of IPC. After completing investigation, laid a charge sheet before the

Mahila cum Children Court and the case was taken on file in S.C.No.124 of

2017 and since Special Court has been constituted, the case was transferred

to the Special Court for Exclusive Trial of Cases Under POCSO Act. The

learned Sessions Judge after completing formalities framed charges for the

offence punishable under Sections 10, 6, 14(3) and 14(5) of the POCSO Act

and Section 506 (i) of IPC. The learned Special Judge after framing the

charges proceeded with the trial in accordance with law.

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3 During the trial, in order to prove the case of the prosecution, on

the side of the prosecution, as many as 7 witnesses were examined as

P.Ws.1 to 7 and 11 documents were marked as Ex.P1 to P11 and 3 Material

Objects were exhibited as M.O.1 to M.O.3 besides two Court documents as

Ex.C1 and C2, the forensic lab reports, since it has been received by the

Court directly. On completion of examination of the prosecution witnesses,

incriminating circumstances culled out from the evidence of prosecution

witnesses were put before the accused by questioning under Section 313

Cr.P.C. with reference to the incriminating circumstances, 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 no documentary evidence was

produced.

4 On completion of trial and hearing of arguments advanced on

either side and also after considering the material objects, the learned

Sessions Judge found the appellant/accused not guilty for the offence

punishable under Sections 6, 14(3), 14(5) of POCSO Act and hence

acquitted him, however found guilty for the offence punishable under

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Section 10 of POCSO Act and also 506 (i) of IPC and sentenced him to

undergo rigorous imprisonment for a period of five years and pay to a fine of

Rs.25,000/-, in default, to undergo rigorous imprisonment for a further

period of three months for the offence punishable under Section 10 of

POCSO Act and to undergo rigorous imprisonment for a period of two years

and to pay a fine of Rs.5,000/- in default, to undergo rigorous imprisonment

for a further period of two months for the offence under Section 506 (i) of

IPC and out of total fine amount of Rs.30,000/-, Rs.25,000/- was ordered to

be paid to P.W.1/victim. The learned Sessions Judge has also awarded a

compensation of Rs.2,00,000/- under the scheme of Tamil Nadu Victim

Compensation Fund under the POCSO Act, which is to be paid by the

controlling authority viz. The Commissioner of Social Defence, Chennai-10.

5 Challenging the said judgment of conviction and sentence

passed by the learned Sessions Judge, Special Court for Exclusive trial of

Cases under POCSO Act, Chennai, in S.C.No.124 of 2017 dated

16.04.2021 the accused has filed present appeal before this Court.

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6 Learned counsel for the appellant would submit that the

framing of charge itself vague and there is no specific date mentioned and

therefore charge itself defective. There is a delay in filing the complaint and

also registering the case. The alleged occurrence is said to have taken place

on 13.06.2016 and the prosecutrix informed the same to P.W.4 the

grandmother of the victim on 15.06.2016, whereas, the complaint given

before the respondent police only on 17.06.2016 and the genesis of the

complaint is highly doubtful. Therefore there is delay in filing complaint and

the same has not been explained by the prosecution and the un-explained

delay is fatal to the case of the prosecution.

6.1 Learned counsel for the appellant would further submit that

even though the case was registered on 17.06.2016, the previous statement

under Section 164 of Cr.P.C. was recorded only on 02.07.2016 and there

was 16 days delay in recording the statement under Section 164 of Cr.P.C.

in which, there was more possibility for improving the version of the

prosecution. P.W.2 mother of the victim, who is the defacto complainant,

had lodged the present complaint against the appellant and it is to be noted

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that she is not an eye witness and her evidence is only hearsay evidence.

Even though the victim girl has stated that for 2 ½ years she went to the

house of the appellant for learning flute, but P.W.2 defacto complainant has

stated that her daughter has not informed anything about the sexual assault

committed by the appellant on an earlier occasion and she informed the

same only through P.W.4, who is the grand mother of the victim. If at all for

nearly 2½ years the appellant acted differently, the victim, being 17 years

old girl, should have informed the same to her parents at the threshold.

6.2 The victim was taken to the Music Class by her father/P.W.3 or

sometimes by her grandmother/P.W.4 and while they taking the victim to

the Music Class, they were waiting out side the hall, in which the class was

conducted and the waiting place is very closer to the hall and hence, if really

the appellant misbehaved with the victim as projected by the prosecution,

she can very well raise alarm, which can be easily heard by the parents of

the victim, who were waiting outside the hall and it can be prevented at the

earlier stage and it is not necessary for the victim to bear the act of the

appellant, but, the victim did not raise any alarm or any complaint against

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the appellant and she waited for 2 ½ years to raise complaint against the

appellant, which itself clearly shows that there is no truth in the prosecution

story. Further, the hall in which the music class conducted is a very small

and other students were also learning music in the same hall and it is highly

impossible for the appellant to misbehave with the victim girl. None of the

class students or their parents made any allegations of this nature against the

appellant and in order to prove the genuine character of the appellant, the

appellant has examined D.W.1, who is a father of two children who were

learning music from the appellant for more than 10 years, one boy child and

one female child and he clearly deposed that out of these years he had never

come across the complaint of this nature from any of the parents.

6.3 The character of the appellant is good and the same was proved

by the evidence of D.W.1 and as per Section 53 of Indian Evidence Act, in

criminal proceedings the fact that the accused person is of a good character

is relevant. In the instant case, except the victim, none of the students came

to the appellant for learning Musical Instruments, ever made any complaint

regarding the sexual harassment or sexual assault alleged to have made by

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the appellant on the victim. Further he would submit that there are

improvements in the evidence of the victim and material contradictions

between the statement under Section 161 (3) and 164 Cr.P.C and there are

lots of improvements and contradictions stage by stage. It is settled

proposition of law that conviction can be recorded solely based on the

evidence of the victim provided the same inspires the confidence of the Court

and in the instant case it is proved that the evidence of the victim is not

consistent, cogent and it seems to be unnatural and the same does not

inspires the confidence of the Court.

6.4 Further he would submit that P.W.2 is mother, P.W.3 is father

and P.W.4 is grandmother of the victim and they are all only hearsay

witnesses and the victim is the only eye witness. It is stated by the victim

that the appellant misbehaved with some of the other students also and the

prosecution has not examined such students to ascertain as to whether the

appellant has committed any offence of this nature with any other students

and the same is fatal to the case of the prosecution. Even though the victim

was subjected to medical examination, medical evidence does not support

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the case of the prosecution since from the medical evidence it is clear that

there was no external injuries and hymen was intact and therefore medical

evidence is not helpful to the case of the prosecution. The appellant was

charged for the offence under Section 14(3), 14(5) of the POCSO Act, but,

prosecution has failed to prove the charges from the recovered material

objects. It is the allegation made by the victim that the appellant used to

record the sexual assault in his cell phone and he used to threaten her that if

she reveals to anybody he will upload the same in the Internet and also he

would kill her parents and brother. There is no material evidence recovered

from the appellant and also produced to prove that appellant mis-behaved

with the victim and had committed sexual assault and took the photograph

and video graphed the same and hence evidence of the victim is not

believable, which is, in fact, highly doubtful. The trial only based on the

evidence of victim alone convicted the appellant for the offence under

Section 9(l) which is punishable under Section 10 of POCSO Act.

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6.5 The learned counsel for the appellant/accused would further

submit that there is no material evidence to show that the appellant

committed sexual offence on the victim more than once. Therefore charge

framed under Section 9(l) for aggravated penetrative sexual assault would

not attract. Further the charge itself is not specific and it is vague and

without understanding the charge it is difficult for the accused to face the

trial and establish his defence and dis-proves the case of the prosecution.

The statement recorded under Section 164 (5) of Cr.P.C. is not an

substantiative evidence and on reading of the statement recorded under 164

Cr.P.C. there is material contradiction and the trial Court convicted the

appellant based on the evidence of the victim girl without any corroborative

evidence. At any angle, conviction recorded against the appellant/accused is

not sustainable under law, in the absence of any corroborative evidence. The

trial court failed to appreciate the evidence and wrongly convicted the

appellant. Unless the prosecution established its case that the appellant has

committed the sexual assault, presumption under Section 29 and 30 of the

POCSO Act would not attract and if the prosecution established the sexual

assault then only Section 29 and 30 would come into play, which is a

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rebuttable presumption. Prosecution has failed to establish its case beyond

all reasonable doubt and the trial court failed to appreciate the evidence of

the prosecution witnesses.

6.6 The learned counsel further vehemently contended that P.W.1

victim girl during the cross examination has clearly stated that music class

was conducted at the room and during that time her father used to wait in

the Hall till the class gets over and she sat in the room one feet away from

the exit door and she can hear whatever spoke in the waiting hall. When that

being the position, the victim girl being a 17 years old at the time of

occurrence, it is not necessary for her to bear the sexual assault said to have

committed by the appellant for 2½ years and she would have raised alarm

and prevented the sexual assault at the threshold. The case of the

prosecution is improbable and the evidence of the victim girl does not inspire

the confidence of the Court. Unless there was a tutoring of the minor girl, it

is absolutely impossible for such a girl to depose against the appellant in a

verbatim statement before all authorities using the same words, which is

likely creating suspicious in the truth and veracity of the deposition of the

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victim girl.

6.7 From the evidence of D.W.1 it is proved that the door of waiting

hall and the music class are always open and they can always hear music

from the waiting hall and the parents are always permitted to have access to

the class room without any permission. Thus, the case of the prosecution

does not satisfy the foundational fact of the offence to initiate the

presumption under Section 29 and 30 of the POCSO Act. The appellant is a

senior citizen, permanently disabled and a person of Special Needs. He is

also suffering from serious Co-Morbidities such as Low Blood Pressure and

Type-2 Diabetes. Such a person cannot do this type of offence and the trial

Court failed to appreciate the evidence of the prosecution witnesses and

erroneously convicted the appellant, which warrants interference of this

Court.

7 The learned Government Advocate (Criminal Side) appearing

for the respondent police would submit that the age of the victim was 17

years at the time of occurrence and she went to the house of the appellant for

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learning flute and at that time, the appellant had committed the sexual

assault repeatedly and he threatened her not to reveal the said act committed

by the appellant to anybody, if she reveals he would take away the life of her

parents and brother and also he would upload the scene along with photos

and videos in the Internet and therefore she did not reveal the sexual assault

committed by the appellant to anybody. At one stage, since the victim could

not tolerate the behavior of the appellant, which exceeds the limit at one

point of time, the victim informed her grandmother, whom she trusts and

subsequently the parents of the victim questioned him, for which he also

admitted the same and said that nothing wrong in it. Therefore with no other

option except lodging the complaint, P.W.1 lodged the present complaint.

7.1 To prove the age of the victim, prosecution has marked Birth

Certificate and Transfer Certificate of the victim as Ex.P1. As per Ex.P1 the

date of birth of the victim is 31.07.1998 and the date of the occurrence is on

or before 13.06.2016 and therefore the age of the victim at the time of the

occurrence was only 16 to 17 years and hence she is a child under the

definition of Section 2(1)(d) of the POCSO Act and the defence has not

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disputed the age of the victim. The victim went to the appellant for 2 ½ years

to learn flute and the appellant mis-behaved with her and committed sexual

assault on her sometimes he used to record the same in his cell phone and

threatened the victim girl not to reveal the same to anybody, if she reveals,

he would kill the family members of the victim and also threatened the

victim that he would upload the videos in the Internet. Therefore, on fear, the

victim girl did not inform the sexual assault to anybody and since at one

point of time, she could not bear the act of the appellant, first time on

15.06.2016 she informed the same to her grandmother, on whom the victim

has faith. The victim was produced before the Judicial Magistrate to record

statement under Section 164 Cr.P.C and subsequently she was produced

before the Doctor/P.W.6 for medical examination and thereafter the victim

was also examined as P.W.1. In all the stages, the victim has clearly narrated

all incidents of sexual assault committed by the appellant. Therefore in this

case, prosecution has proved its case beyond all reasonable doubt by

examining the victim P.W.1 and also through previous statement recorded

under Section 164 Cr.PC.

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7.2 Even though, the victim has not stated or informed the sexual

assault committed by the appellant prior to 15.06.2016, but however,

P.Ws.2 to 4 have categorically stated that few months prior, the victim

behaved differently. In the cases of this nature, no independent witness can

be expected other than the victim girl and in this case, the victim girl has

clearly stated that the appellant soon after completing the music class when

all other students went out from the class and when she was alone, the

appellant used to mis-behave with her. Even though she has stated that one

of the students noticed the sexual assault committed by the appellant and

laughed at her, however non examination of the said witness is not fatal to

the case of the prosecution, since he is also a student of the appellant and

naturally one could not expect any favorable evidence to the prosecution

from those witnesses. Further delay is also not fatal to the prosecution, since

the victim has clearly stated that the appellant threatened her not to reveal to

anybody, if she reveals, he would upload the scene in the Internet.

Therefore, the trial Court has convicted the appellant and sentenced

accordingly and there is no merit in the appeal and the same is liable to be

dismissed.

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8 Heard the learned counsel appearing for the appellant and the

learned Government Advocate (Crl.Side) appearing for the respondent and

has carefully perused the materials available on record and the judgment of

the trial Court.

9 Case of the prosecution is that on 13.06.2016 and prior to that,

while the victim girl aged about 17 years, who has not having the mental

maturity of her, attended flute musical instrument class with the accused at

his residence at Maarvadi Thottam, Mylapore, the accused, with sexual

intent, despite the objection made by the victim girl, touched, rubbed and

sucked the breast of the victim girl, kissed on her cheek and also inserted his

hands inside her inner garments and penetrated her private parts and further

the accused made the victim to kiss on his cheek, suck his chest and made

the victim girl to insert her hands inside his inner garments and touch and

press his private parts and in the course of such act, the accused took videos

of the sexual assault committed by him and also threaten the victim girl that

he would post the videos in the Internet.

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10 In order to find out the guilt of the accused this court, as final

court of fact finding, has re-appreciated the evidence independently. The

victim joined music class for learning flute from the appellant, which was

conducting at the house of the appellant. According to the prosecution as

per the evidence of P.W.1, the appellant rubbed and sucked the breast of the

victim like mother feeding and also inserted his hands inside her inner

garments and made the victim to insert her hands in his inner garment and

also made her to touch his private part and he used to do the same when

other students are not in the class. Even though, sometimes, the father of the

victim used to drop her and wait for sometime very near to the hall, since the

hall is provided by air conditioning, it is clear from the evidence of the victim

that the appellant used to lock the hall and sometime he also ask the other

students to wait outside and after completing the class, when all the students

left, he used to mis-behave with the victim and made sexual assault on her

when she refuses, the appellant threatened her and also if she does not

cooperate with him and if she reveals the same to anyone, he would take

away the life of her. In the statement recorded under Section 164 Cr.P.C,

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and also while examining as witness before the trial Court, the victim girl

has clearly narrated the sexual assault committed by the appellant. As per

the evidence of the victim, the offence committed by the appellant falls under

Section 3 which is punishable under Section 4 and since the appellant

committed the said offence repeatedly more than once, the same is falls

under Section 5(l) which is punishable under Section 6, however the Trial

Court not found the appellant guilty for the said offences.

11 As per section 3 of POCSO Act, mere touching of the vagina of

a child with sexual intend is an offence comes under the definition of

penetrative sexual assault, but, however the trial court failed to understand

the provisions of law and convicted the appellant only for the offence

punishable under Section 10 of the POCSO Act.

12 Coming to the contention of the learned counsel for the

appellant, he contended that there are improvements and contradictions

between the evidence of the prosecution witnesses. According to this Court,

on a careful reading of the evidence of the prosecution witnesses, the

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contradictions pointed out by the learned counsel for the appellant are not

material contradictions and the same will not go into root of the case of the

prosecution. P.W.1 the victim girl has clearly stated that even more than 2

years the appellant had been continued the sexual assault on her and due to

the threat made by the appellant, she did not reveal the same to anyone and

hence the delay in filing the complaint has been properly explained by the

victim and therefore the delay in filing the complaint is not fatal to the case

of the prosecution.

13 In the cases of this nature, victim is a child and the culprits used

to take advantage of mental status and age of the victim and they used to

threaten the victim and sometimes the victim do not have boldness to reveal

the sexual assault immediately soon after the occurrence, which depends

upon the mental status of the victim and also forces used by the accused. In

this case the victim informed the sexual assault committed by the appellant

to her grandmother on 15.06.2016 and complaint was lodged on

17.06.2016. In the case of this nature, no parents would rush to the police

immediately soon after getting information and naturally they would think

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about the future of the child and reputation of the family and they also afraid

of the society and therefore delay in filing the complaint is not fatal to the

case of the prosecution.

14 The learned counsel for the appellant contended that there is no

independent witness and all are interested witnesses and the prosecution has

failed to examine any independent witness. As already stated, in the cases of

this nature, no independent witness could be expected and mere non

examination of the independent witness is not a sole ground to acquit the

accused. The cases of this nature, if the child is suffered from sexual assault,

conviction can be recorded solely based on the evidence of the victim child,

if the evidence of the victim is cogent, consistent and inspires confidence of

the court. Even though, learned counsel for the appellant contended that

even father of the victim was waiting outside of the hall and sitting very

close to the hall and in such circumstances, no person could commit such an

offence, but, on reading of the evidence of the victim girl, she had clearly

stated that the appellant used to send all the students after completing the

class and retain the victim for some time and since the hall is air

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conditioned, he would close the doors and would commit the sexual assault.

The victim girl did not raise any alarm, since the appellant threatened her

that he would upload all the obscene through Internet and also threatened

that he would take away the life of her family members. Since the victim had

not disclosed the sexual assault immediately, it cannot be concluded that she

was not subjected to sexual assault and non disclosure of the sexual assault

committed by the appellant was properly explained by the victim.

15 The appellant examined D.W.1 father of the one of the students

of the appellant and he has deposed that he had never come across such a

complaint against the appellant and the appellant is good and genuine

person. Since the appellant had not mis-behaved with other students or since

the other parents had not made any complaint against the appellant, does not

mean that the appellant did not mis-behave with the victim. It is not

necessary for him to mis-behave with all the students and he had chosen the

victim after observing her physical and mental maturity. It is the contention

of the learned counsel for the appellant that the charge is very vague and

there is no specific date, time and place, but, however the appellant

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understood the charges and examined one defence witness and hence the

contention of the learned counsel for the appellant is not acceptable. It is

contended by the learned counsel for the appellant that the the victim had

not resisted the act of the appellant and had accepted the same. Once

prosecution has proved the age of the victim that she is a child under the

definition of Section 2(1)(d) of POCSO Act, the consent of the victim and

non resistant of the act of the appellant are immaterial. The trial Court, from

the evidence of the victim girl, found that the appellant has committed the

offence under Section 9(l) which is punishable under Section 10 of POCSO

Act.

16 Therefore under these circumstances, this court does not find

any perversity in the judgment of the trial Court and considering the facts

and circumstances of the case, this court also does not find any mitigating

circumstances to reduce the sentence and there is no merit in the appeal and

it is liable to be dismissed.

17 Accordingly, the criminal appeal stands dismissed. Trial Court

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is directed to secure the custody of the appellant/accused to serve remaining

period of imprisonment, if any.

28.09.2021

Index: Yes/No Speaking order/Non Speaking order cgi/dsn

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P.VELMURUGAN, J.

dsn

CRL.A.No. 229 of 2021

28.09.2021

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