Madras High Court
Vijay vs State Rep. By Its on 2 August, 2022
Crl.A.No.283 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02..08..2022
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Criminal Appeal No.283 of 2022
Vijay, aged 24 years,
son of Sivamudali ... Appellant / Sole Accused
-Versus-
State Rep. By its
Inspector of Police,
T.Palur Police Station,
Ariyalur District.
[Crime No.144 of 2016] ... Respondent
Appeal filed under Section 374(2) of The Code of Criminal
Procedure,1973, against the judgment of conviction and sentence dated
05.10.2016 by the learned Sessions Judge, Fast Track Mahila Court, Ariyalur,
Ariyalur District, in Spl.S.C.No.15 of 2016.
For Appellant : Mr.V.Perarasu
For Respondent : Mr.S.Vinoth Kumar,
Government Advocate
(Criminal Side)
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JUDGEMENT
This Criminal Appeal is filed by the sole accused in Spl.S.C.No.15 of
2016 on the file of the learned Sessions Judge, Fast Track Mahila Court,
Ariyalur, Ariyalur District, in and by which, the appellant/accused was convicted
for an offence punishable under Section 6 of the Protection of Children from
Sexual Assault Act, 2012 (POCSO Act) and was sentenced to undergo rigorous
imprisonment for 10 (Ten) years and to pay a fine of Rs.1,000/- (Rupees One
Thousand only) and in default of payment of fine, to undergo simple
imprisonment for 6 (six) months.
2. P.W.1 is the mother of the victim child aged about 10 years. The child
is also a mentally retarded and she cannot speak even though she can hear. On
01.06.2016, at about 10.00 a.m., the victim child was playing at the rear side of
the house of one Mathiazhagan which was unoccupied. When P.W.1 was in the
opposite house washing clothes suddenly heard the child crying and wailing and
immediately, when she rushed inside the said house of Mathiazhagan, she found
the appellant had removed the clothes of the child and was lying on the top of the
child. On seeing P.W.1, the appellant stood up and ran way and P.W.2 gave him
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a chase and followed him upto his house and there was a quarrel and he hit P.W.2
is the allegation.
3. After registering the case in Crime No.144 of 2016 for offence under
Sections 3, 4, 5(k) and 5 (m) of the Protection of Children from Sexual Offences
Act, 2012 (POCSO Act,), P.W.18 took up the case for investigation and laid a
final report proposing the appellant/accused as guilty for the offence under
Sections 3 & 4, 5 (k) (m) of POCSO Act r/w 6 of the POCSO Act. On
considering the materials on record, the trial court framed a single charge that on
01.06.2016 at about 10.00 a.m. the appellant/accused had made the victim child
to lay down on the floor and committed penetrative sexual assault and hence, he
had committed an offence punishable under Section 6 of the POCSO Act. Upon
questioning, the appellant/accused denied the charge and stood trial.
4. The prosecution in order to prove the charge, examined the mother of
the victim as P.W.1 and the father of the victim as P.W.2 and the other witnesses
being P.Ws.3 to 8 and marked Ex.Ex.P.1 to P.11. Upon questioning about the
material evidence and the incriminating circumstances on record, the
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appellant/accused denied the same as false. Thereafter, no evidence was let in on
behalf of the defence and therefore, the trial court proceeded to hear the
submissions of the learned Special Public Prosecutor appearing on behalf of the
prosecuting agency and the learned counsel appearing on behalf of the defence
and found the appellant/accused guilty of the charge and accordingly, punished
him under Section 6 of the POCSO Act as stated supra.
5. Heard the learned counsel appearing for the appellant/accused and the
learned Government Advocate (Criminal Side) appearing on behalf of the
respondent/State and perused the material records of this case.
6. The learned counsel appearing for the appellant/accused considering the
fact that the appellant/accused is confined in prison for more than six years and
one month from date of filing of the FIR, i.e., from 01.06.2016 onwards, would
straightaway make his submissions on the provision for which the
appellant/accused can be convicted. He would submit that this is a case where
the victim child was not examined by the prosecution. He would further submit
that even the evidence of P.W.1 the mother of the child, is not to the effect that
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the child was totally mentally retarded and the child is in a position to understand
things and, therefore, non examination of the child in this case is a serious
omission on behalf of the prosecution. Therefore, the learned Government
Advocate (Criminal Side) would submit that in the absence of any description
from the child, the only evidence on record relating to the act committed by the
appellant/accused is the evidence of P.W.1, even leaving out the cross
examination of P.W.1, the chief examination of P.W.1 is as follows:-
“vd; kfs; rj;ag;gphpah vd; bfhSe;jdhh; tPl;L mLg;g';fiwapy;
jiuapy; gLj;jpUe;jhs;/ ehd; ghh;j nghJ M$h; vjphp tp$a; vd; kfs;
nky; gLj;J jtwhd fhhpak; bra;Jbfhz;oUe;jhh;/ ehd; clnd
rj;jk;nghl;L FHe;ijia J}f;fpf;bfhz;L Xote;njd;/ vd;id ghh;j;jcld;
tp$a; Xotpl;lhh;/ vd;dhy; mtid gpof;fKoatpy;iy/ FHe;ijia J}f;fp
te;J bjUtpy; itj;Jf;bfhz;L mGnjd;/”
Therefore, P.W.1's deposition which is the only evidence in this case also does
not specifically speak of any penetrative sexual assault. This apart, the evidence
of P.W.11, the Doctor, who examined the child in chief examination is as
follows:-
“rpWkpia ghpnrhjiz bra;jjpy; btspf;fha';fs; VJkpy;iy/
fd;dpj;jpiu fpHpe;jpUe;jJ/ tpe;J ghpnrhjiz bra;jjpy; tpe;jQqf;fs;
VJkpy;iy/ mts; tajpw;F tutpy;iy/ cs;fhak; vJt[kpy;iy.”
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7. The learned counsel would therefore submit that here in this case
unambiguous evidence is that the appellant/accused was committing sexual
assault on the child, but, there is not even an iota of positive evidence to suggest
penetrative sexual assault . In that view of the matter, the learned counsel would
submit that the conviction for offence under Section 6 of the POCSO Act is
unwarranted.
8. The learned Government Advocate (Criminal Side) would on the other
hand submit that the victim is a mentally retarded child and therefore, the act of
the appellant/accused comes under section 5 (k) of the POCSO Act and since the
child is also less than 12 years of age, Section 5 (m) of the POCSO Act is also
attracted and the prosecution has duly produced the certificate of mentally
retardation as well as the birth certificate of the child to prove its case and
therefore, the trial court has rightly convicted the appellant/accused under
Section 6 of the POCSO Act. When this court questioned about the actual act
committed the appellant/accused, the learned Government Advocate (Criminal
Side) would submit that even if the evidence of P.W.1 does not specifically state
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about any act coming within the definition of penetrative sexual assault under
Section 3 of the POCSO Act, still, the sexual assault committed by the
appellant/accused would fall within the definition of Sections 9(k) & 9 (m) of the
POCSO Act and therefore, the offence would be punishable for a term not less
than 5 years but, upto 7 years under POCSO Act. Considering the nature of the
evidence in this case, the learned Government Advocate would submit that even
then, the appellant/accused should be punished for the maximum imprisonment
awardable under Sections 9(k) & 9 (m) of the POCSO Act i.e., imprisonment for
7 years. He would further submit that as far as the allegations regarding the
previous enmity is concerned, just because there are some enmity between the
neighbours, evidence of P.W.1 cannot be discarded and it cannot be presumed to
be a false evidence and therefore, he would submit that the said contention is
without any merits.
9. I have considered the rival submissions made on either side and also
perused the material records of this case.
10. As contested by the learned counsel for the appellant, it is the bounden
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duty of the prosecution to discharge its initial onus when it is specifically alleged
that the appellant/accused had committed penetrative sexual assault. P.W.1's
evidence does not specifically say so. It was also not clarified by the court or by
the prosecuting agency. P.W.1 has generally stated that after making the child
lying down, the appellant/accused was committing the act. But, considering the
evidence of P.W.11, the doctor, the age of the victim child, the manner in which
the offence is said to have happened, it is clear that the act committed by the
appellant/accused is an aggravated sexual assault and therefore, the
appellant/accused is liable to be convicted for offence punishable under Section
10 of the POCSO Act. Considering the fact that the victim child is mentally
retarded , this is not a case for imposition of the minimum sentence of 5 years.
The maximum punishment is 7 years. The appellant/accused has now undergone
imprisonment for 6 years, 2 months and 1 day. Therefore, I am of the view that
the same can be imposed as punishment on the appellant/accused.
11. Considering the fact that the victim is a mentally retarded child, the
trial court has directed the District Legal Services Authority to assess and award
compensation to the victim for rehabilitation and welfare of the child. In that
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view of the matter, the District Legal Services Authority, Nammakal District is
directed to issue notice forthwith, if not so far issued, to P.W.1, the mother of the
victim Child namely, Latha W/o Murugan, Thenkatchi Perumal Natham, Kizha
Theru, Udayarpalayam Taluk, Ariyalur District and upon such notice, P.W.1
shall apply in due form and the case shall considered for award of compensation
under the applicable victim compensation scheme and maximum permissible
compensation can be awarded and paid out to the child.
In view thereof, this Criminal Appeal is partly allowed and the conviction
of the appellant/accused for the offence punishable under Section 6 of the
POCSO Act, 2012 and the sentence thereof to undergo rigorous imprisonment for
Ten years and to pay a fine of Rs.1,000/- are set aside and modified as one under
Section 9(k) and (m) of the POCSO Act r/w 10 of the POCSO Act and the
appellant is sentenced to rigorous imprisonment for the period already under
gone by him so far (6 years, 2 months and 1 day) and the appellant/accused shall
pay a fine of Rs.1,000/- (so far no fine has been paid by the appellant) and in
default to undergo simple imprisonment for a further period of three months.
The appellant/accused is directed to be released forthwith, if fine amount is paid
and if his detention is not required in connection with any other case.
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Index : yes/no 02..08.2022
Internet : yes/no
Speaking / Non speaking Order
kmk
To
1.The Sessions Judge, Fast Track Mahila Court, Ariyalur, Ariyalur District.
2.The District Legal Services Authority , Ariyalur, Ariyalur District.
3.The Inspector of Police, T.Palur Police Station, Ariyalur District.
4.The Superintendent of Central Prison, Trichy.
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D.BHARATHA CHAKRAVARTHY.J.,
kmk
Criminal Appeal No.283 of 2022
02..08..2022
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