Moorthi vs The State Of Tamilnadu
2022 Latest Caselaw 13536 Mad

                                                                                     Crl.A.No.592 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 29.07.2022

                                                          CORAM :

                      THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
                                                     Crl.A.No.592 of 2021

                Moorthi                                             ... Appellant

                                                           Versus

                The State of Tamilnadu
                represented by Inspector of Police,
                Kallavi Police Station.
                (Crime No.44 of 2017)                               ... Respondent

                Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure
                Code, to set aside the order of conviction imposed as against the appellant by the
                judgment, dated 14.09.2021 made in Spl.S.C.No.42 of 2018 passed by the
                learned Sessions Judge, Fast Track Mahila Court at Krishnagiri and acquit the
                appellant from all charges.

                                   For Appellant        : Mr.V.Subramanya
                                                   for Mr.S.Sathish Rajan


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




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                                                                                  Crl.A.No.592 of 2021


                                                    JUDGMENT

A complaint by post was received at the Kallavi Police Station, on

10.04.2017 from P.W.1, to the effect that, on 04.04.2017 at about 9.30 A.M,

when P.W.1's grandson, namely victim child, aged 4 years was playing near the

house, the appellant took him by holding his hand and after some time, the victim

child was found lying naked with blood in his ear, mouth and nose and the

appellant/accused had committed oral penetration and even though she took up

the matter with the other residents of the village, they had directed her to go to

the Police Station and therefore, she has lodged the complaint.

2. On the strength of the said allegation, a case in Crime No.44 of 2017

under Section 3(A) read with 4 of the POCSO Act, 2012 was registered and

P.W.14 took up the case for investigation and laid a Final Report, after

completion of the investigation, proposing the accused guilty for the offence

under Section 5(m)(u) read with 6 of the POCSO Act. The offence was taken

cognizance by the Trial Court and after furnishing copies under Section 207 of

the Code of Criminal Procedure and upon perusing the material records of the

case, a charge was framed against the accused under Section 5(m)(u) read with

Section 6 of the POCSO Act, 2012. Upon being questioned, the accused denied

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the charge and stood trial.

3. So as to prove the charge, the prosecution examined one Rani, the

grand-mother of the victim child and the de-facto complainant in this case, as

P.W.1. She deposed that since the child did not return home, she went in search

of the child and upon hearing of wailing of the child, she found the child in the

neighbour's field and when she ran and enquired her grandson, he told her that

the appellant/accused had made him to lie down and by pressing his mouth made

his mouth open and inserted his penis inside his mouth. She also saw that her

grandson was bleeding in the ears and nose and there was an injury on the cheek

because of pinching by the appellant/accused. She took her grandson to a private

Doctor. She also went to the house of the appellant/accused and when she

confronted his mother, the appellant/accused came and threatened her.

Thereafter, she had lodged a complaint.

4. The prosecution examined one Kumaravel, who was the mahazar

witness, as P.W.2. He deposed that he accompanied the Police when the Police

examined the child and the child took the Police to the place of occurrence and

told them that the appellant/accused had oral penetration at the place. The

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prosecution had examined the victim child as P.W.3. The victim child was

examined in detail and the child vividly described about the oral penetration done

by the accused and was cross-examined in great detail and the child withstood

the very many questions and denied the suggestions that such an act never

happened. The child also clarified in the cross-examination that a thorn pricked

in his ear, therefore there was bleeding. The prosecution examined one Rangan

as P.W.4, who was said to be an independent ocular witness, who had also

rushed to the spot upon the request of P.W.1, but, however, he turned hostile.

The prosecution examined one Raja as P.W.5, who is the father of the victim

child and he spoke about the fact that after being informed, he came to the village

and his son once again narrated the entire incident to him. The prosecution

examined one Chennakesavan, as P.W.6, who was the brother of P.W.5 and

who also spoke about the account given to them by the child. The yet another

mahazar witness, namely Chennakrishnan, who was examined as P.W.7, was

turned hostile. P.W.8, Dr.Sathishkumar, who examined the child and who gave

the certificate that there were no visible injuries either in the mouth or in the anus

or in the private parts of the child. P.W.9, Dr.Arivazhagan, who examined the

appellant/accused and gave a certificate that he was potent and in his cross-

examination, he admitted that if there was oral penetration, there would have

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abrasion and also if the child has bitten the penis, there would have been the

corresponding injury in the private part of the appellant/accused and there was no

such injury. The Sub-Inspector, who took the appellant/accused for medical

examination, was examined as P.W.10. One Palanisamy, who registered the

F.I.R was examined as P.W.11. One Sivakumar, who is yet another Sub-

Inspector, who accompanied P.W.10 was examined as P.W.12. One

Kanakesan, the Investigating Officer, who conducted the initial investigation,

was examined as P.W.13. One Veerappan, who completed the further

investigation by obtaining medical opinion from the Doctors and filed the

chargesheet, was examined as P.W.14.

5. On behalf of the prosecution, the complaint lodged by P.W.1 was

marked as Ex.P-1; Section 164 Cr.P.C., statement of P.W.1 was marked as

Ex.P-2; the observation mahazar was marked as Ex.P-3; Section 164 Cr.P.C.,

statement of P.W.3, the victim child, was marked as Ex.P-4; the signature of

P.W.7, in the observation mahazar, was marked as Ex.P-5; the Accident

Register copy, for the treatment of the victim child, was marked as Ex.P-6;

medical report of the victim was marked as Ex.P-7; the requisition letter for

potentiality test was marked as Ex.P-8; the potentiality report of the accused was

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marked as Ex.P-9; the further requisition letter given by the Investigating Officer

for the same purpose was marked as Ex.P-10; the First Information Report was

marked as Ex.P-11; the rough sketch prepared by the Investigating Officer was

marked as Ex.P-12; the requisition letter sent by the Investigating Officer for

recording Section 164 Cr.P.C., statement was marked as Ex.P-13 and the

alteration of section report was marked as Ex.P-14.

6. Upon being questioned about the material evidence on record and the

incriminating circumstances, the appellant/accused denied the same as false.

Thereafter, no evidence was let in on behalf of the appellant/accused and the

Trial Court, thereafter, proceeded to hear the learned Special Public Prosecutor

on behalf of the prosecution and the learned Counsel for the appellant/accused

and by a judgment, dated 14.09.2021 found that the prosecution has not proved

the charge under Section 5(u) of the POCSO Act, namely parading the child

nude, but, however, found that the prosecution has proved the charge under

Section 5(m) of the POCSO Act i.e., committing an aggravated penetrative

sexual assault in respect of a child less than 12 years of age and therefore,

convicted the appellant/accused under Section 6 of the POCSO Act and imposed

Rigorous Imprisonment for ten years and directed the appellant/accused to pay a

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fine of Rs.1,000/- and in default, to undergo Rigorous Imprisonment for six

months. Aggrieved by the same, the present appeal is laid before this Court.

7. Heard Mr.V.Subramanya, learned Counsel for the appellant and

Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) appearing on

behalf of the prosecution.

8. The learned Counsel for the appellant/accused, taking this Court

through the evidence on record, namely the evidence of P.W.1, the evidence of

P.W.3, the victim child and the evidence of both the Doctors, who examined the

victim child as well as the appellant/accused, would submit that this is a case in

which there is absolutely no corroborating material for the version of the child for

committing the penetrative sexual assault by way of oral penetration. From both

the Doctors as well as the medical report, it is very clear that there was

absolutely no external injury on the child. If the occurrence had taken place in

the manner as described by the victim child witness, upon examination of the

victim child, definitely the injury on the cheek and the other injuries mentioned

by P.W.1 would have been found by the Doctor, P.W.8, on his examination and

therefore, the same throws considerable doubt in the version of the prosecution.

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He would further submit that in the absence of corroborating injury, the Hon'ble

Supreme Court of India has in Prahlad Vs. State of Rajasthan1, in paragraph

No.11 held that in the absence of corroborative medical evidence, the

appellant/accused cannot be convicted under the POCSO Act.

9. The learned Counsel would further submit that in this case, except for

the child witness, there is no eye witness. P.W.1, in her complaint, has stated as

if she actually saw the appellant/accused performing the act complained of.

However, she did not stand by her complaint when she came into the box. This

is one circumstance which raises suspicion in the case of the prosecution. The

second suspicious circumstance is that the occurrence took place on 04.04.2017,

while the complaint in the offence of this serious nature was by post, received at

the Police Station only on 10.04.2017. Thereafter, it is seen that without even

examining the complaint, strangely it is registered, even though the mobile

number of the complainant is mentioned in the complaint itself. This, is the

second circumstance raising doubt in the case of the prosecution. The third

circumstance is that the only independent witness, namely P.W.4, who sought to

be examined and who also said to have been rushed to the spot as per the charge

itself, has turned hostile. He would further submit that the yet another

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circumstance in this case is that even though the child has described the place as

bush in nature and speaks about the injury by thorns, no such thing is mentioned

in the rough sketch drawn by the Investigating Officer and therefore, the

Investigating Officer, without even visiting the spot, has conducted only table top

investigation and has laid the charge sheet. The investigation suffers from so

much infirmity right from the manner in which the First Information Report is

recorded as P.W.1 says that she was sent back from the Police Station to write

the complaint from bank official and on a reading of the First Information Report,

it shows that the complaint was received by post and up to the preparation of the

mahazar and especially one of the mahazar witnesses have also turned hostile,

the appellant/accused cannot be punished for such a serious offence, on the mere

ipse dixit the victim child, when no other medical evidence corroboration is there

and when the investigation suffers serious infirmities.

10. Per contra, Mr.S.Vinoth Kumar, the learned Government Advocate

(Crl. Side) would submit that in this kind of offenses, it is only the evidence of

victim child which matters the most. When the appellant/accused has taken the

victim to a secluded place and performed the dastardly act, there will be no other

witness for the incident. But, by way of corroboration, soon after the incident,

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P.W.1 has gone to the place and had found the boy with blood on his ears and

nose and also naked. The boy had narrated the entire incident to P.W.1 and also

the other witnesses. The version of the victim boy is consistent in the Section

164 Cr.P.C., statement as well as in the witness box. A detailed cross-

examination was done by the learned Counsel for the appellant/accused, but,

however, no answer favourable to them was elicited.

11. He would submit that there are two things which this Court has to take

into consideration as far as the medical evidence is concerned. Firstly, the

incident is said to happened on 04.04.2017 and the First Information Report itself

was registered only on 10.04.2017 and thereafter only, the boy was taken for

medical checkup. Secondly, the nature of the act i.e., oral penetration, there will

not be any external injury either on the boy or on the appellant/accused.

Therefore, he would submit that the submission of the learned Counsel for the

appellant/accused regarding the non-corroboration of medical evidence is totally

without merit. He would further submit that in this case, the answers of P.W.1

about the developments and thereafter, the registration of the First Information

Report and the further investigation, all would corroborate the version of P.W.3

victim and therefore, he would submit that there is ample material on record to

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prove the charge against the accused and nothing has been done by the

appellant/accused to rebut the presumption under Section 29 of the Act.

Therefore, he would pray this Court to dismiss the appeal and confirm the

sentence imposed by the Trial Court.

12. I have considered the rival submissions made on either side and

perused the material records of the case. In this case, on a reading of the Section

3 of the POCSO Act, 2012, it would be clear that the act complained would

definitely come within the Section 3(a) of the Act and therefore, there is a

penetrative sexual assault. If the same is done to a child below 12 years of age,

as per Section 5(m) of the Act, it becomes aggravated penetrative sexual assault

and thereby, punishable under Section 6 of the POCSO Act. Now, the victim

child was examined as P.W.3. The child has clearly spoken about the act of the

appellant/accused. The child was also specifically cross-examined regarding the

same and the child stood his ground even in the cross-examination and the

repeated suggestions. Now, in this case, P.W.1 has found the child wailing in

the said spot, lying naked on the ground in pain. As far as the absence of injuries

is concerned, it is the evidence of the child that the appellant/accused had

pressed his mouth and also pinched his chin and such kind of injuries will not be

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visible after a period of seven or eight days, after which, he was taken for

medical examination. As far as the absence of other injuries is concerned, in the

judgment relied upon by the learned Counsel for the appellant cited supra is the

case where a tender girl child was abused by having penetrative sexual

intercourse in the vagina, in which, the Hon'ble Supreme Court of India had

relied upon the medical opinion that in respect of such a tender child, if

penetrative sexual assault is committed, there will surely be an injury in the

private part of the child. But, in this case, the allegation is different and it is oral

penetration. In such a case, there need not be an external injury both for the

victim child as well as for the appellant/accused. In this regard, the learned

Counsel for the appellant/accused relied upon the evidence of P.W.9, the Doctor

who examined the appellant/accused. His second statement that if the child has

bitten the private part of the appellant/accused, a corresponding injury will be

there is logical, but in this case, it is not the case of the prosecution that the child

had beaten. But, as far as his other statement that there will be an abrasion injury

in the private part of the appellant/accused is concerned, considering the nature

of allegation made by the prosecution in this case, the said statement, on the face

of it, absurd and therefore, even though coming from a Doctor, who examined

the appellant/accused, stands rejected by this Court.

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13. The further argument of the learned Counsel for the appellant/accused,

regarding the discrepancy in the manner of registration of the First Information

Report is concerned, it can be seen from the evidence of P.W.1 that she had

confronted the mother of the appellant/accused initially and then taken up with

the other villagers and finally the complaint was lodged. Considering the nature

and background of the parties and the fact that the parents of the victim/child

were also not with the child and the child was under the care of his grand-

mother, the delay in lodging a complaint is clearly explained and in any event, I

am of the view that the same has not caused any prejudice to the

appellant/accused especially when he is the sole accused and was a known

person and there is no any quarrel over identity.

14. Further, the contention of the learned Counsel for the

appellant/accused that as far as the non-mentioning of thorn bush in the

observation mahazar by the Investigating Officer is concerned, it may be so, but,

even the absence of observation mahazar, will not entitle the appellant/accused

for acquittal in the case of this nature, much less to say about any discrepancy in

noting down the feature. As far as the contention regarding the injuries on the

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child is concerned, the child himself, in his cross-examination, has clearly stated

that there was a thorn prick in his ear and therefore, being a tender child and

especially when the thorn tears the cartilaginous tissue, there would be bleeding

and being a child, it could have spread through his nose and mouth etc., as the

child was lying on the ground crying and wailing. Therefore, none of the

contentions of the appellant/accused can be accepted by this Court and I am of

the view that the prosecution has proved the case beyond doubt.

15. Now, coming to the sentence, the Trial Court itself had imposed only

the minimum sentence and imposed minimum amount of fine. Therefore, there is

no scope for this Court in any manner interfering with the sentence imposed by

the Trial Court. It is seen from the judgment that no compensation has been

awarded to the victim child. A copy of this judgment shall be marked and

forwarded to the Tamil Nadu State Legal Services Authority, which shall issue

notice to P.W.5, the father of the victim child and upon such notice, the

application can be made on behalf of the victim child in accordance with the

scheme available and the Legal Services Authority shall determine the

compensation amount payable to the victim child under the scheme. The said

compensation shall also be paid to the victim child.

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16. With the above said observations, the Criminal Appeal is dismissed as

without merits. Consequently, Crl.M.P.No.12180 of 2021 is closed.

17. Before parting with the case, this court places on record its

appreciation to the Learned Counsel for the appellant, who despite all the facts

stacked against the appellant/accused, had left no stone unturned to defend the

accused by raising all the points, but still arguing in a manner befitting as the

officer of this Court.

29.07.2022 Index : yes Speaking order grs

To

1. The Sessions Judge, Fast Track Mahila Court, Krishnagiri.

2. The Public Prosecutor, High Court of Madras.

3. The Tamil Nadu State Legal Services Authority, High Court of Madras.

4. The Inspector of Police, https://www.mhc.tn.gov.in/judis

Crl.A.No.592 of 2021

Kallavi Police Station.

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Crl.A.No.592 of 2021

D.BHARATHA CHAKRAVARTHY. J.,

grs

Crl.A.No.592 of 2021

29.07.2022

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