Madras High Court
Saminathan vs The State Of Tamilnadu on 4 July, 2022
Crl.A.No.198 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.198 of 2022
and
Crl.M.P.No.2494 of 2022
Saminathan,
S/o.Kalimuthu ... Appellant
Versus
The State of Tamilnadu,
Rep. by its Inspector of Police,
All Women Police Station,
Neyveli. ... Respondent
Prayer : Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure,
praying to set aside the Judgment passed against the appellant on 31.08.2015
by the District Mazhalir Session Judge, Cuddalore, in Special S.C.No.13 of
2015 and acquit the appellant from all charges in the circumstances of the case.
For Appellant : Mr.V.Murali
For Respondent : Mr.S.Vinoth Kumar,
Government Advocate (Crl.Side)
JUDGMENT
This Appeal arises out of the judgment passed by the learned District
Mazhalir Session Judge, Cuddalore in Special S.C.No.13 of 2015, dated
31.08.2015.
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Crl.A.No.198 of 2022
2.The appellant, who is the accused in Spl.S.C.No.13 of 2015, aggrieved
by the judgment of the learned District Mazhalir Session Judge, Cuddalore,
dated 31.08.2015, in and by which, the appellant was convicted under Section 6
r/w 5(m) of POCSO Act and was sentenced to undergo rigorous imprisonment
for a period of ten years and pay a fine of Rs.500/- and in default of payment of
fine to undergo rigorous imprisonment for a further period of six months and
under Section 323 IPC and to undergo rigorous imprisonment for a period of six
months.
3.When the matter came up for hearing, the learned Counsel appearing
on behalf of the appellant would submit that the appellant is in prison and as so
far, undergone the sentence of imprisonment for a period more than seven year.
In that view of the matter, the learned Counsel restricted his arguments on the
question of the appropriate provision under which the appellant is convicted and
on the sentence alone.
4.The learned Counsel for the appellant would submit that the evidence of
the victim child P.W.2 in this case reads as follows :-
“me;j jhj;jh vdf;F rhf;nyl; bfhLj;J Tg;gpl;Lf;bfhz;L
nghdhh;/ gpwF vdf;F a{hpd; nghFk; ,lj;jpy; rhkpehjd; jhj;jh
vd;id fPwptpll; hh;/ mjd;gpwF vd;id $p nf M!;gplYf;F
https://www.mhc.tn.gov.in/judis
Crl.A.No.198 of 2022
Tg;gpl;L nghdhh;fs;/”
5. Therefore, taking this Court to Section 3 of POCSO Act (in short 'the
Act'), the learned Counsel would submit that there is no any overt act even to
attract Section 3(b) of the Act and therefore, the conviction under Section 6 r/w
5(m) of the Act was unsustainable.
6.Per contra, the learned Government Advocate (Crl.Side) appearing for
the respondent/Police would submit that even if the offence under Section 5(m)
is not made out, still the act committed by the appellant is an aggravated sexual
assault as it can be seen from evidence of P.W.1, mother of the victim that the
child had injury on her private part. Therefore, he would submit that still the act
of the appellant would be an offence under Section 9(i) and 9(m) of the Act.
7.On a careful perusal of the evidence of the victim child and the doctor,
who examined in this case, it is clear that the accused had caused bodily harm
and injury to the sexual organ of the child and the child is less than 12 years of
age and therefore, even though the evidence of the child is as above, still the
said act of the appellant, who is an aged person, is heinous in nature and as
rightly pointed by the learned Government Advocate (Crl.Side), the same would
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Crl.A.No.198 of 2022
constitute an offence under Sections 9(i) and 9(m) of the Act.
8.Considering the age of the appellant, who is in advanced age and this
heinous and disgusting act to the poor little child, I am of the view that the
appellant is to be awarded with maximum punishment for the offence
committed by him. But, however, in the absence of any allegation about
insertion of finger or even attempting to insert the finger, the judgment of the
Trial Court convicting the appellant under Section 6 r/w 5(m) is unsustainable
and therefore, I am inclined to modify the said conviction to the lesser offence
punishable under Section 10 of the Act r/w 9(i) and 9(m) of the Act and impose
the appellant with the maximum sentence of 7 years. I also confirm the fine
amount of Rs.500/- imposed by the Trial Court. The other conviction in respect
of 323 IPC also stands confirmed. Accordingly, this Criminal Appeal is partly
allowed with the following terms :-
(i) the judgment of the learned District Mazhalir Session Judge,
Cuddalore in Special S.C.No.13 of 2015, dated 31.08.2015 is partially modified
in as much as the conviction of the appellant under Section 6 r/w 5(m) of the
Act into one under Section 10 r/w 9(i) and 9(m) of the Act and the appellant is
sentenced to undergo rigorous imprisonment for a period of 7 years and pay a
sum of Rs.500/- and in default of payment of fine, to undergo rigorous
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Crl.A.No.198 of 2022
imprisonment for a further period of six months;
(ii) in other aspects, the finding and conclusion reached by the Trial
Court are confirmed;
(iii) It is stated that the appellant has already undergone and completed
sentence and also paid the fine of Rs.500/-;
(iv) the appellant will be entitled to set off the period already undergone
and the Superintendent of Police, Cuddalore is directed to forthwith release the
appellant, if he had completed the sentence and if he is not required in any other
case.
9.With the above terms, this Criminal Appeal is partly allowed.
Consequently, connected criminal miscellaneous petition is closed.
04.07.2022
Index : yes/no
Speaking order/Non-speaking order
sp
To
1.The District Mazhalir Session Judge, Cuddalore.
2.The Inspector of Police, All Women Police Station, Neyveli.
3.The Central Prison, Cuddalore.
4.The Public Prosecutor, Madras High Court.
https://www.mhc.tn.gov.in/judis
Crl.A.No.198 of 2022
D.BHARATHA CHAKRAVARTHY, J.,
sp
Crl.A.No.198 of 2022
and
Crl.M.P.No.2494 of 2022
04.07.2022
https://www.mhc.tn.gov.in/judis
