Madras High Court
Antony vs State Rep. By on 2 August, 2022
Crl. A(MD)No.381 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
CRL.A.(MD)No.381 of 2019
Antony : Appellant
Vs.
State rep. by
The Inspector of Police,
All Women Police Station,
Alangulam,
(Crime No.7/2015),
Tirunelveli District. : Respondent
PRAYER: Criminal Appeal filed under Section 374 (2) of the Code of
Criminal Procedure, seeking to call for the records in S.C.No.64 of
2015, on the file of the Mahila Court, Tirunelveli, Tirunelveli District
and set aside the judgment and order dated 19.07.2019, by acquitting
the appellant.
1/13
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Crl. A(MD)No.381 of 2019
For Appellant : Mr.V.Kathirvelu, Senior Counsel
for Mr.K.Prabhu
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
JUDGMENT
*************
[Delivered by P.N.PRAKASH, J.]
This criminal appeal is filed against the judgment and order
dated 19.07.2019 in S.C.No.64 of 2015, on the file of the learned
Sessions Judge, Mahila Court, Tirunelveli, Tirunelveli District.
2.The prosecution story runs thus:
2.1.The victim girl “X” is the daughter of Ponnuthai [P.W.1] and
Iyyadurai [P.W.3]. She was born on 10.07.2004 and at the time of the
incident, she was studying 6th Standard in the local village school. The
family was residing in South Street, Kurunthanmozhi Village, Tenkasi
District. “X” is a Dalit. The appellant was her neighbour and he is also
a Dalit.
2.2.While so, it is alleged that on 01.04.2015, while “X” was
sleeping in her house, the appellant forcibly carried her behind her
house, stuck plaster on her mouth and ravished her. “X” was unable to
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Crl. A(MD)No.381 of 2019
raise alarm. Ponnuthai [P.W.1], woke up in the night and not finding
her daughter beside her, went in search of her to the backyard of her
house, where she saw the appellant sexually abusing “X”. On seeing
Ponnuthai [P.W.1], the appellant fled.
2.3.On a written complaint [Ex.P.1], given by Ponnuthai [P.W.1],
Jeyashri [P.W.21], Sub-Inspector of Police, registered a case in
Alangulam Police Station Crime No.7 of 2015, for the offences under
Sections 5 and 6 of the POCSO Act, on 01.04.2015 at 10.00 a.m., and
prepared the printed FIR [Ex.P.23], which reached the jurisdictional
Magistrate on 01.04.2015 at 05.45 p.m., on the same day, as could be
seen from the endorsement thereon.
2.4.Investigation of the case was taken over by Stellabai
[P.W.24], Inspector of Police, who went to the place of occurrence and
prepared the observation mahazar [Ex.P.12] and rough sketch
[Ex.P.24].
2.5.”X” was medically examined by Dr.Arumugaselvi, [P.W.11],
at the Government Medical College and Hospital, Tirunelveli, who
issued a medical memo [Ex.P.27] and referred “X” to Dr.Esther
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Crl. A(MD)No.381 of 2019
[P.W.23]. Dr.Esther [P.W.23], noticed injuries in the private parts of “X”
and gave her treatment vide Exs.P.25 to P.27, as an inpatient in the
hospital.
2.6.The Section 164 Cr.P.C., statement [Ex.P.2] of “X” was
recorded on 18.04.2015 at 03.00 p.m., by Mrs.R.G.G.Gajara [P.W.17],
learned Judicial Magistrate V, Tirunelveli.
2.7.The appellant was arrested on 01.04.2015 at 02:00 p.m.,
and was remanded in judicial custody. After examining various
witnesses and collecting various reports, the investigating officer
[P.W.24] completed the investigation and filed a final report in S.C.No.
64 of 2015, in the Court of the Sessions Judge, Mahila Court,
Tirunelveli, [Special Court for POCSO Act Cases], against the
appellant for the offences under Sections 452, 342, 366, 328 and
506(I) IPC., r/w. Section 6 of the POCSO Act.
3.On appearance of the appellant, the provisions of Section 207
Cr.P.C. were complied with. The trial Court framed charges under
Sections 452, 363, 328 and 506(I) IPC r/w. Section 6 of the POCSO
Act and when questioned, the appellant pleaded “not guilty”.
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Crl. A(MD)No.381 of 2019
4.To prove the case, the prosecution examined 24 witnesses and
marked 27 exhibits and 2 material objects. When the appellant was
questioned under Section 313 Cr.P.C., on the incriminating
circumstances appearing against him, he denied the same. No witness
was examined nor any document marked from the side of the
appellant.
5.After considering the evidence on record and hearing either
side, the trial Court by judgment and order dated 19.07.2019, has
convicted and sentenced the appellant as under:
Offence under Conviction and Sentence
Section
452 IPC To undergo 7 years rigorous
imprisonment and to pay a fine of
Rs.10,000/-, in default, to undergo
simple imprisonment for three months
363 IPC To undergo 7 years rigorous
imprisonment and to pay a fine of
Rs.10,000/-, in default, to undergo
simple imprisonment for three months
6 of the POCSO Act Life imprisonment and to pay a fine of
Rs.1,00,000/-, in default to undergo
simple imprisonment for three
months.
6.The trial Court has directed that out of the total fine amount
of Rs.1,20,000/-, a sum of Rs.1,00,000/- should be paid to “X”, apart
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Crl. A(MD)No.381 of 2019
from which, the trial Court has also awarded a compensation of Rs.
2,00,000/- to “X” under Section 357(A) Cr.P.C., payable by the
Government.
7.Challenging the aforesaid conviction and sentences, the
present Criminal Appeal has been filed.
8.Heard Mr.V.Kathirvelu, learned Senior Counsel representing
Mr.K.Prabhu, learned counsel appearing for the appellant and
Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor
appearing for the respondent.
9.The entire case rests on the evidence of “X” and Ponnuthai
[P.W.1]. “X” was 12 years old when she was examined in chief in the
trial Court on 27.01.2016. After putting preliminary questions to “X”
in order to test her ability to depose, the trial Court, after being
convinced that she is capable of giving evidence, has recorded her
evidence.
10.”X”, in her examination in chief, has inter alia stated that she
is 12 years old; she is staying with her parents, sister and bother in
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Crl. A(MD)No.381 of 2019
South Street, Kurunthanmozhi village; she is studying 7th standard in
Harijan Middle School; she knows the appellant [whom she has
referred to as Antony uncle]; on the night of 31.03.2015, while she
was sleeping beside her brother and mother, the appellant carried her
behind her house and forcibly administered some medicine into her
mouth; he also stuck a plaster on her mouth and removed her
underpants and sexually abused her; she was wearing a nightie; at
that time, her mother came out looking out for her and found her in a
state of shock; she told everything to her mother and her mother took
her to the police station and gave a complaint.
11.She has further stated that she was taken for treatment and
to the doctor also, she has stated everything. She has also stated that
her statement was recorded by the Magistrate and the said statement
was marked as Ex.P.2. She identified the appellant but she was not
cross-examined on the same day. However, she was cross-examined on
11.04.2016. In the cross-examination, the defence was not able to
make any serious dent in her testimony and she reiterated the
statement that was given by her in her examination in chief. In fact,
when she was questioned as to whether the plaster that was stuck on
her mouth was recovered, she stated that her mother threw the
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Crl. A(MD)No.381 of 2019
plaster away. It was ultimately suggested to her that on account of
previous enmity between her mother and the appellant, the case was
foisted against the appellant, which was denied by her.
12.”X's” evidence has been substantially corroborated by the
evidence of her mother Ponnuthai [P.W.1], father Iyyadurai [P.W.3],
brother Gurusamy [P.W.4], neighbours Veluthai [P.W.8] and Ramar
[P.W.9], to whom “X” had narrated the incident soon thereafter. That
apart, the medical evidence of Dr.Arumugaselvi [P.W.11] and Dr.Esther
[P.W.23] also support the assertion of “X”.
13.Dr.Esther [P.W.23], in her evidence, has inter alia stated that
on 01.04.2015, “X” was admitted as an inpatient in the Government
Medical College and Hospital, Tirunelveli, and was shifted to
Obstetrics and Gynecology Ward under her on 02.04.2015; from
02.04.2015 to 09.04.2015, “X” was admitted as an inpatient and
vaginal exploration was done; lacerations were found in the wall of
the vagina, which was sutured. The case sheet was marked as Ex.P.25
and discharge summary was marked as Ex.P.26.
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Crl. A(MD)No.381 of 2019
14.Defence was not able to dislodge the medical testimony of
Dr.Arumugaselvi [P.W.11] and Dr.Esther [P.W.23]. Except suggesting
that on account of previous enmity between Ponnuthai [P.W.1], the
mother of “X” and the appellant, the appellant has not brought on
record any material to dislodge the charge against him. Even when
the appellant was questioned under Section 313 Cr.P.C., he has merely
denied the incriminating circumstances against him and he has not
given any explanation as to why “X” and her mother have to falsely
implicate him in this case.
15.Learned Senior Counsel appearing for the appellant
submitted that the incident took place in the night of 31.03.2015 and
at that time, the minimum sentence for the offence under Section 6 of
the POCSO Act was only 10 years, which has been subsequently
enhanced to imprisonment for life with effect from 16.08.2019 by Act
25 of 2019 and prayed atleast for reduction of sentence. He also
submitted that the appellant is not even able to pay the fine thus far,
as he is also equally in penury.
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Crl. A(MD)No.381 of 2019
16.The appellant is now 55 years old. In this case, the offence
had taken place on 31.03.2015, when the minimum sentence under
Section 6 of the POCSO Act was 10 years. Taking into consideration
the facts and circumstances of the case, we are of the opinion that
interests of justice would be served, if the imprisonment for life that
has been awarded by the trial Court for the offence under Section 6 of
the POCSO Act is reduced to 15 years rigorous imprisonment, without
any remission whatsoever. This means that atleast till his sixty
seventh age, the appellant will have to be in the prison.
17.As regards the conviction and sentence imposed on the
appellant in respect of the other offences, the same shall stand
confirmed. The sentence of fine and the compensation awarded to “X”
by the trial Court under Section 357(A) Cr.P.C., shall also stand
confirmed.
18.The sentences are ordered to run concurrently. The period of
sentence already undergone by the appellant is ordered to be set off
under Section 428 Cr.P.C.
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Crl. A(MD)No.381 of 2019
19.In the result, this Criminal Appeal is allowed in part.
[P.N.P., J.] & [R.H., J.]
02.08.2022
Index : Yes/No
Internet : Yes
Note: Mark a copy to
1) The Director of Social Defence,
Chennai.
2) The District Collector,
Tirunelveli District.
3) The District Child Protection Officer,
Tirunelveli District.
MR
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Crl. A(MD)No.381 of 2019
To
1.The Sessions Judge,
Mahila Court,
Tirunelveli District.
2.The Inspector of Police,
All Women Police Station,
Alangulam,
Tirunelveli District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl. A(MD)No.381 of 2019
P.N.PRAKASH, J.
and
R.HEMALATHA, J.
MR
JUDGMENT MADE IN
CRL.A.(MD)No.381 of 2019
02.08.2022
https://www.mhc.tn.gov.in/judis
