Veeramani vs State By
2022 Latest Caselaw 9012 Mad

                                                                                  Crl.A.No.839 of 2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 28.04.2022

                                                         CORAM

                                  THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                                Crl.A.No.839 of 2018


                     Veeramani                                              ... Appellant

                                                          Vs.

                     State by
                     The Inspector of Police,
                     Tiruchengode Rural Police Station,
                     Namakkal District.
                     [Crime No.163 of 2016]                                 ... Respondent


                     PRAYER: Criminal Appeal filed under Section 374(2) of Criminal

                     Procedure Code, to set aside the judgment and conviction passed in Special

                     C.C.No.18 of 2016 dated 03.12.2018 by the learned Sessions [Fast Track

                     Mahila] Judge, Namakkal.


                                         For Appellant     :     Mr.K.Thenrajan

                                         For Respondent    :     Mr.R.Kishore Kumar
                                                                 Government Advocate


                     1/13



https://www.mhc.tn.gov.in/judis
                                                                                        Crl.A.No.839 of 2018


                                                          JUDGMENT

The petitioner/accused in Spl.C.C.No.18 of 2016 was convicted by the

learned Sessions [Fast Track Mahila] Judge, Namakkal on 03.12.2018 for

the offence under Section 366A IPC and sentenced to undergo seven years

rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to undergo

six months rigorous imprisonment, for the offence under Section 9 of

Prevention of Child Marriage Act and sentenced to undergo two years

rigorous imprisonment and for the offence under Section 5 r/w.6 of POCSO

Act and sentenced to undergo ten years rigorous imprisonment and to pay a

fine of Rs.1,000/-, in default to undergo six months rigorous imprisonment.

Against which, the present appeal is filed.

2.In this case, the prosecution examined P.W.1 to P.W.25 and marked

Ex.P1 to P16. On the side of defence, no witnesses examined and no

documents marked.

3.The facts of the case is that the victim/P.W.2, when she was

studying 11th Standard, aged about 17 years had love affair with the

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appellant for four years. Since there was opposition from her parents, she

eloped with the appellant on 20.05.2016. On 20.05.2016, the pretext of

visiting School to find out her results she left her home, she joined the

appellant and thereafter, both of them eloped, left to Erode by bike and

from there, by train they went to Bangalore, Hospet wherein the appellant's

relative was residing. They stayed there for 3 to 4 days, the appellant tied

thali in a temple, thereafter they had physical relationship. The appellant

called his parents, informed about the same, the appellant's mother informed

that the victim's father lodged a complaint and they are in search of them.

Thereafter, they left Bangalore, came back to their native. P.W.2 appeared

before the respondent police on 31.05.2016, thereafter she was sent with her

parents and the appellant was arrested on 01.06.2016. Earlier for missing of

the girl, the victim's father P.W.1 lodged a complaint with the respondent on

21.05.2016. On appearance of the victim, she was sent for medical

examination, accordingly case was altered for the above offences and

thereafter statement under Section 164 Cr.P.C. was recorded from the

victim. The accused was sent for medical examination. The witnesses,

namely, P.W.1/father, P.W.2/victim, P.W.3/mother, the neighbours and

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relatives of the victim were examined in this case, observation mahazar and

rough sketch prepared in the presence of the witnesses and after getting

medical opinion and forensic report, charge sheet filed. On conclusion of the

Trial Court, the Trial Court convicted the appellant as stated above.

4.The contention of the appellant is that P.W.2/victim not supported

the case of the prosecution. When she appeared before the respondent

police, she disclosed the fact that she was in love with the appellant, they

both loved each other for the past four years. When she was studying 8 th

Standard puberty function was held, at that time, the appellant came there as

a drum beater, thereafter friendship blossomed between them and they were

in love affair for the past four years. Their love affair was objected by her,

who were planning to give P.W.2 in marriage to someone against her wish,

hence she forced the appellant to take her away and marry her, otherwise

she would end her life. To save her life, the appellant had no other way

except to accompany the victim. P.W.2 in certain terms stated before the

Police as well as in her 164 Statement that it was she who forced the

appellant to take her away and to marry her. P.W.1 and P.W.3, the parents

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of the victim not approved the love affair of their daughter. Earlier P.W.1

lodged a complaint for the love affair, the appellant was called and warned.

P.W.2/victim girl continued her love relationship with the appellant. The

other witnesses, namely, P.W.4 to P.W.16 are the villagers who are in the

nature of hear say witnesses, further almost all the villagers not supported

the case of the prosecution. It is further submitted that in this case the age

certificate of the victim not marked and proved. It is admitted, in this case

neither the age certificate nor the School certificate of the victim marked.

P.W.25/Investigating Officer admits that he had not taken any steps to

collect the age certificate. P.W.24/Doctor who examined the victim was not

requested to confirm the age of the victim on the other hand, P.W.19 who

examined the appellant for potency examined the accused and given the age

certificate. P.W.25/Investigating Officer admits that he had neither visited

Hospet, Bangalore nor examined any witness to prove that the appellant and

P.W.2 stayed in Bangalore together and they had physical relationship

during that period.

5.It is further submitted that the observation mahazar/Ex.P13 and

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rough sketch/Ex.P14 pertains to the house of the victim which is not

required. Though the signature of P.W.14 to P.W.16 found in confession

statement, was marked as Ex.P.3 and Ex.P4, nothing lead to recovery from

the alleged confession. The Lower Court without any evidence and

materials given a finding that appellant and victim were staying together in

Karnataka for sometime and at that time, the appellant tied Thali to the

victim. Further, there is no material or document to show that the victim

was a minor, the victim herself admit that she only forced the appellant to

join her and both of them went to various places. In view of the same, the

Lower Court convicting the appellant for child marriage, kidnapping of

minor girl is not proper. The Lower Court placing reliance on the evidence

of P.W.1 and P.W.3/parents of victim and the evidence of Doctor/P.W.24

and on the 164 statement, convicted the appellant is not sustainable when

P.W.2/victim girl categorically state that she was never kidnapped and

physical relationship was also not under force. In this case, admittedly the

age of the victim not proved. In view of the same, the conviction of the

appellant under the POCSO Act is also not sustainable. In this case, both

the appellant and the victim belong to the same community, hail from the

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lower strata of the society equal in both social and economical background,

now they got married with the concurrence of both parents. The

victim/defacto complainant filed an affidavit confirming the marriage and the

registration certificate of their marriage produced. In view of the same, it is

submitted that confirming the conviction would do more harm than good to

the victim.

6.The learned Additional Public Prosecutor submits that P.W.1/father

of the victim lodged a complaint/Ex.P1 for girl missing on 21.05.2016 and

thereafter FIR/Ex.P10 was registered on 21.05.2016. On 31.05.2016, the

victim appeared before the respondent police, thereafter section was altered

from girl missing to kidnapping, child marriage and POCSO Act by Ex.P15.

Thereafter, the victim girl was sent for medical examination, her statement

was recorded under Section 164 Cr.P.C., accused was arrested, gave a

confession admitting that he took the victim girl to Hospet, Bangalore where

he tied Thali to the victim girl and thereafter had physical relationship with

her knowing very well that she is a minor. The medical examination

confirms that the victim was subjected to physical sexual assault, Accident

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Register/Ex.P 11 as well as the evidence of P.W.24/Doctor confirms that

there is tear in hymen and the possibility of victim subjected to sexual

assault confirmed. The potency of the accused was proved by medical

report Ex.P5. Though swab test was conducted, nothing was detected as

could be seen from the Forensic report/Ex.P9. In 164 Cr.P.C.

statement/EX.P8, the victim categorically stated that she was a minor and

she was having physical relationship with the appellant in Hospet, Bangalore

as well as near Tiruchengode from 23.05.2016 to 28.05.2016. The Trial

Court on the evidence of P.W.1 and P.W.3/parents of the victim, 164

statement and the medical records found that the victim was minor, who was

kidnapped and sexual assault committed by the appellant, convicted the

appellant by a well reasoned judgment which needs no interference. The

learned Additional Public Prosecutor fairly submitted that now the victim

and the appellant got married with the concurrence of both the family and

they are living happily as husband and wife. Their social and economic

status are identical. There is no opposition for their marriage. The victim is

very much dependent on the income of the appellant, who is the bread

winner.

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7.Considering the submissions and on perusal of the materials placed

before this Court, it is seen that P.W.2/victim girl right from the beginning

not supported the case of the prosecution, she admits in categorical terms

that she and the appellant were in love affair for the past four years and it

was she who compelled the appellant to take her away since her parents

were objecting for their love affair and contemplating a marriage to her

against her wish. From her statement, it is seen that she has been constantly

pressurizing the appellant to take her away. Unable to further withstand, the

appellant was forced to accompany the victim and both of them eloped to

Bangalore. Thereafter, they came back to Tiruchengode, appeared before

the respondent police. The Investigating Officer/P.W.25 admit that he had

not visited Hospet, Bangalore to confirm whether the appellant and the

victim got married and stayed in their relative's house at Hospet, Bangalore

P.W.25 admits that he had not taken any steps to collect the age certificate

and School certificate of the victim to prove that she is a minor. P.W.1 and

P.W.3, parents of the victim not produced any age certificate of the victim.

The parents of the victim P.W.1 and P.W.3 are uneducated villagers. They

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confirm that birth of victim not registered. Further the School authorities

registered the age as required for School admission, which is not the correct

age. The victim was born earlier, got admitted in the School belatedly. The

School authorities to overcome the loss of age registered the age in the

school records on their own. Be that as it may. Admittedly, no school

certificate of the victim produced. The Investigating Officer admits the

same. In this case, admittedly the age of the victim not proved. No school

authorities and no school certificates produced to confirm the age of the

victim. From the evidence of P.W.24/Doctor and the Accident

Register/Ex.P11, it is seen that there is no injuries to prove any force made

on her. The swab confirm sperm or spermatozoa not found. When the

Investigating Officer was so diligent to get the age of the appellant

confirmed, it is equally important for him to prove, the victim is a minor.

P.W.1 and P.W.3 admit the love affair between the victim and the appellant

which they had opposed at that time. None of the villagers, neighbours and

relatives have supported the case of the prosecution, almost all of them are in

the nature of hear say witnesses.

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8.From the above it is seen that the prosecution had miserably failed

to prove that the victim was a minor. The victim herself admit that she had

love affair with the appellant for the past four years and it was on her

compulsion, the appellant had accompanied her. Thus, from the evidence

and materials produced it cannot be conclusively held that the charges

against the appellant proved. The Lower Court convicted the appellant

primarily on the presumption under Section 29 of the POCSO Act. When

the appellant disputed the same by way of cross examination with regard to

the age and other aspects, it is for the prosecution thereafter to prove the

case. In this case, the prosecution miserably failed to prove the case against

the appellant. Added to it, it is seen that both the appellant and the

victim/P.W.2 hail from the same community with same social and

economical background, now both of them got married with the concurrence

of their parents and living happily. Hence, this Court set aside the

conviction and sentence imposed on the appellant and the appellant is

acquitted from all the charges.

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9.Accordingly, the conviction and sentence imposed on the appellant

in Special C.C.No.18 of 2016 by the learned Sessions [Fast Track Mahila]

Judge, Namakkal dated 03.12.2018 is hereby set aside.

10.In the result, the Criminal Appeal stands allowed.

28.04.2022 Speaking Order/Non Speaking Order Index : Yes/No Internet : Yes/No cse

To

1.The Inspector of Police, Tiruchengode Rural Police Station, Namakkal District.

2.The Sessions [Fast Track Mahila] Judge, Namakkal

3.The Public Prosecutor, High Court, Madras.

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M.NIRMAL KUMAR, J.

cse

Crl.A.No.839 of 2018

28.04.2022

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