Viswanathan vs The State Rep. By
2021 Latest Caselaw 19889 Mad

                                                                               Crl.A.No. 449 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED:29.09.2021

                                                         CORAM

                                  THE HON'BLE JUSTICE JUSTICE P.VELMURUGAN

                                                CRL.A.No.449 of 2020


                     Viswanathan                                                ...Appellant
                                                             Vs.

                     The State Rep. by
                     Inspector of Police
                     All Women Police Station,
                     Mettur.
                     (Cr.No4/2017)                                              ...Respondent

                     Prayer: Criminal Appeal filed under Section 374 (2) of Code of
                     Criminal Procedure, praying to call for the records pertaining to the
                     Judgment dated 06.07.2020 in Spl.S.C.No.77/2019 passed by the learned
                     Sessions Judge, Special Court for offence under POCSO Act, Salem and
                     set aside the same.

                                     For Appellant       :     Ms.Revathy G.Mohan
                                                               Legal Aid Counsel

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




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https://www.mhc.tn.gov.in/judis
                                                                                   Crl.A.No. 449 of 2020

                                                       JUDGMENT

The Criminal Appeal has been filed against the Judgment dated

06.07.2020 in Spl.S.C.No.77/2019 passed by the Sessions Judge, Special

Court for offence under POCSO Act, Salem

2. The respondent police registered the case against the appellant

in Crime No.4 of 2017 for the offence under Section 11 of POCSO Act

punishable under Section 12 of POCSO Act. After investigation they laid

the charge sheet for the offence punishable under the POCSO Act against

the appellant. The learned Sessions Judge, Special Court for offence

under POCSO Act, Salem, after taking cognizance of the charge sheet on

file in Spl.S.C.No.77 of 2019 and after completing the formalities framed

the charges for the offence punishable under Section 12 of POCSO Act.

3. After framing the charges and during trial in order to prove the

case of the prosecution, on the side of the prosecution 8 witnesses were

examined as P.W.1 to 8 and 12 documents were marked as Exs.P1 to P.12

and one material object was exhibited as M.O.1

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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. However, he denied the same as untrue and

pleaded not guilty. On the side of the defence, no witness was examined

however, one document was marked as Ex.R1.

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

either side and perusing the materials, the Special Court found guilt of

the appellant for the offence under Section 11 which is punishable under

Section 12 of POCSO Act and convicted and sentenced to undergo 2

years rigorous imprisonment and pay fine of Rs.10,000/- in default to

undergo 6 months simple imprisonment. Challenging the said Judgment

of conviction and sentence the appellant has filed the present appeal

before this court.

6.Ms.Revathy G.Mohan, Legal Aid Counsel appearing for the

appellant would submit that the occurrence is said to have taken place on

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02.06.2017 at about 11.00 a.m. Whereas, the complaint was given only

on 03.06.2017 and the inordinate and un-explained delay in filing the

complaint is fatal to the case of the prosecution and the trial court failed

to consider the same. Therefore the Judgment of the trial Court is

perverse. The appellant was only bystander of the incident happened in a

TASMAC shop and the police arrested him wrongly and in order to

convict him illegaly, they have foisted a false case against the appellant.

Further he would submit that P.W.1/mother of the victim has stated that

one Kavitha had seen the children going on the mud path and if it is true,

she should have seen the appellant also along with the children.

Whereas, P.W.1 has not stated anything as if, the said Kavitha had seen

the children along with the appellant. Further, the said Kavitha was not

cited as witness and she was not examined as prosecution witness which

is fatal to the case of the prosecution and the place of occurrence is also

not established and the prosecution has not examined any independent

witness. Further, the appellant is an unknown person to the victim as well

as P.W.1. Therefore, the identification of the accused is also doubtful and

the prosecution has failed to establish its case beyond reasonable doubt

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and that the trial court erroneously convicted the appellant without any

substantiative evidence. Therefore the appeal to be allowed and

Judgment of conviction and sentence passed by the trial court is liable to

be set aside.

7. The learned Government Advocate (Crl. Side) would submit

that at the time of occurrence the victim girl was only 7 years. On

02.08.2017 at about 11.45. a.m., when the victim along with her younger

brother was playing in the garden, the mother of the victim went for

fetching water. At that time, appellant came there and asked the children

to come with him under the guise of providing them Candy chocolates.

Hence, the children followed the appellant and the appellant took them to

the place of occurrence and removed his dress and appeared nude in front

of the children and also asked the victim girl to remove her dress. When

she refused to do so, the appellant hold his private part and asked the

victim girl to see the same for which, the victim girl refused and started

to shout. Hence, the appellant threatened the victim girl not to reveal the

same to anybody or otherwise, he would kill them. By the time, the

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mother of the victim returned home and when she found the children

missing, she enquired with one Kavitha for which, she said that she had

seen the children going on the Mud Path. Hence, the mother of the victim

proceeded as per the direction of the said Kavitha and while reaching the

place of occurrence, she heard the noise of the victim girl and

immediately when she went and saw the place, the appellant was

standing nude in front of the children and on seeing the mother of the

victim, the appellant flew away form the place. The mother of the victim

secured the children and since the father of the victim was not in the

station, the next day, after the arrival of the father of the victim lodged

the complaint. In the meanwhile the mother of the victim informed the

same to the villagers and they caught hold of the appellant. The

respondent police registered the case and during the investigation, the

victim was produced before Judicial Magistrate to record the statement

under Section 164 Cr.P.C. and the same was also recorded wherein, the

victim girl has clearly narrated the incident and the act committed by the

appellant. Subsequently, the victim was examined as P.W.2 and before

the Court also, she clearly narrated the incident. Admittedly there is no

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eye witness and no independent witness to this case except the mother of

the victim. The mother of the victim herself has clearly stated that after

fetching water when she came back to the place where she left the

children, the children were not found and when she enquired one Kavitha

who was available in the distance place about her children, she said that

the children were walking through the mud path. Therefore, the mother

of the victim, proceeded towards the direction of the said Kavith and on

reaching the place of occurrence, she saw the children were sitting and

the appellant was standing nude in front of the children. On seeing the

mother of the victim, the appellant escaped from the place. Therefore, the

prosecution proved its case beyond all reasonable doubt that the

appellant committed the offence of sexual assault under Section 11

punishable under Section 12 of POCSO Act. Therefore, the trial Court

rightly appreciated the evidence and convicted the appellant and there is

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

8.Heard Mrs.Revathy, Legal Aid Counsel appearing for the

appellant and the Mr.S.Sugendran, Government Advocate (Crl.Side)

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appearing for the respondent police.

9. The case of the prosecution is that on 02.08.2017 at about 11.45.

a.m., the victim along with her younger brother was playing in the garden

and the mother of the victim, went for fetching water. At that time,

appellant came there and asked the children to come with him under the

guise of providing them Candy chocolates. Hence, the children followed

the appellant and the appellant took them to the place of occurrence and

removed his dress and appeared nude in front of the children and also

asked the victim girl to remove her dress. When she refused to do so, the

appellant hold his private part and asked the victim girl to see the same

for which, the victim girl refused and started to shout. Hence, the

appellant threatened the victim girl not to reveal the same to anybody or

otherwise, he would would kill them. By the time, the mother of the

victim had returned home and when she found the children missing, she

enquired with one Kavitha and came to know that the children were

going through the Mud Path and when she reached the place of

occurrence, she saw the appellant was standing nude in front of the

children and on seeing the mother of the victim, the appellant flew away

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form the place. Since, the father of the victim was not in the station, the

next day, after the arrival of the father of the victim, they lodged the

complaint.

10. In this case, since this Court is the appellate Court as the final

Court of fact finding, it has to re-appreciate the evidence and to give its

findings independently. Accordingly, this Court pursued the entire

materials and Judgment of the trial Court.

11. The Special Court framed the charge against the appellant as

stated above and in order to substantiate the charge framed against the

appellant, on the side of the prosecution totally 8 witnesses were

examined and 12 documents were marked, besides one material object

was marked as M.O.1.

12. Out of the 12 documents, Ex.P.7 is the age proof certificate of

the victim, Ex.P.4(A) is school certificate of the victim issued by P.W.6 /

Head Master of the school in which the victim studied. A combined

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reading of the evidence P.W.6 and Ex.P.4(A) shows that the prosecution

has proved that the age of the victim was 7 years at the time of the

occurrence and therefore, she is a child under the definition of Section

2(1)(d) of POCSO Act.

13. In order to substantiate the charge punishable under Section 12

of POCSO Act framed against the appellant, the prosecution examined

the victim child as P.W.2 and also marked Ex.P.2/the previous statement

of the victim child recorded by the learned Judicial Magistrate under

Section 164 Cr.P.C. A combined reading of the evidence of P.W.2/victim

as well as Ex.P.2/the previous statement recorded from the victim girl by

the Judicial Magistrate under Section 164 Cr.P.C. would go to show that

on the date of occurrence, the victim girl was playing in the land along

with her younger brother and her mother had gone for fetching water. At

that time, the appellant approached them and asked them to come with

him on the promise of providing them Candy and hence, the children

followed the appellant. After reaching the place of occurrence, the

appellant removed his dress and stood nude and asked the victim girl to

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remove her dress and the victim child refused to do so. Subsequently, the

appellant caught hold of his private part and asked the victim girl to look

at his private part for which also, the victim girl refused and started to

shout. By the time, the mother of the victim who was in search of the

children, reached the spot and on seeing the mother of the victim girl, the

appellant ran away from the place. Since, the father of the victim was not

in station, on the next day, they lodged the complaint.

14. The P.W.1/the mother of the victim has deposed that on the

date of occurrence i.e. on 02.06.2017, her 1st daughter/victim girl was

playing with her 2nd son in the land and at that time, she left for fetching

water and when she came back, she found the children missing and when

she asked one Kavitha who was available at the distance place, the said

Kavitha told her that the children were going through the mud path.

Immediately, she proceeded towards the said direction and on reaching

the place of occurrence, she saw the appellant standing nude in front of

the children and the children were found sitting and on seeing her, the

appellant escaped from the place. Therefore, the evidence of P.W.2/victim

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is corroborated with the evidence of P.W.1/the mother of the victim to the

extent that the appellant was with the victim without any dress. After the

appellant ran away from the place, when the mother of the victim asked

the victim girl as to why she came all the way from the land to the place

of occurrence, she informed her that the appellant had promised to

provide candy and thereby, she went along with the appellant and after

reaching the place, the appellant removed his dress and showed his

private part and also asked the victim to remove her dress and by that

time, the mother reached the place and there is no independent witness.

15. Though the learned Counsel for the appellant contended that as

per PW.1, one Kavitha had informed her that her children were going

through the mud path, however the said Kavitha was not examined which

is fatal to the case of the prosecution. He would further contended that

P.W.1/the mother of the victim has not stated anything as if, the said

Kavitha had informed her that she saw the appellant along with the

children or the appellant took the children. It is made clear that mere non

examination of the said Kavitha is not fatal to the case of the prosecution

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and it is not the case of the prosecution that the said Kavitha had seen the

occurrence. Even assuming, mere non examination of independent

witness is not fatal to the case of the prosecution. Admittedly, in this case

there is no eye witness except the victim and the mother of the victim to

that extent that the appellant was with the victim girl without dress.

Further, cases of this nature, eye witnesses cannot be expected.

16. The evidence of the victim is cogent, consistent, natural and

trustworthy which inspires the confidence of this Court. The Court

cannot reverse the Judgment of conviction unless the Court dis-believes

the evidence of the victim or any reason to discard the evidence of the

victim. In this case, this Court does not find any reason to dis-believe or

discard the evidence of the victim and the evidence of the victim is quiet

natural.

17. Therefore considering the evidence of the P.W1 and P.W.2 and

also Ex.P.2, this Court also found that the prosecution has proved its case

beyond all reasonable doubt that the appellant has committed the offence

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under Section 11 which is punishable under Section 12 of POCSO Act

and the trial Court rightly appreciated the evidence and convicted the

appellant and this Court does not find any perversity in the appreciation

of the evidence by the trial Court. Therefore, there is no merit in the

appeal and the appeal is liable to be dismissed.

18. Accordingly, this Criminal Appeal is dismissed confirming the

Judgment dated 06.07.2020 in Spl.S.C.No.77/2019 passed by the learned

Sessions Judge, Special Court for offence under POCSO Act, Salem. The

trial Court is directed to secure the appellant to undergo the remaining

period of sentence if any. The period of incarceration already undergone,

shall be given set off.

19. Ms.Revathy G.Mohan, Legal Aid Counsel appearing for the appellant is entitled for remuneration as per rules.

29.09.2021 Speaking Order/Non Speaking order ksa-2/dsn

https://www.mhc.tn.gov.in/judis Crl.A.No. 449 of 2020

To

1. The Special Court for offence under POCSO Act, Salem

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

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

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

https://www.mhc.tn.gov.in/judis Crl.A.No. 449 of 2020

P.VELMURUGAN.J, dsn

CRL.A.No.449 of 2020

29.09.2021

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