Madras High Court
Nataraj vs State Represented By on 21 June, 2022
Crl. A(MD)No.244 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 21.06.2022
CORAM:
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE Mrs. JUSTICE R.HEMALATHA
Crl. A(MD)No.244 of 2019
Nataraj : Appellant
Vs.
State represented by
The Inspector of Police
All Women Police Station
Bodi
Theni District
Crime No.16/2017 : Respondent
PRAYER: Criminal Appeal is filed under Section 374(2) of the Code of
Criminal Procedure, against the judgment dated 20.11.2018 in S.C.No.
48/2017 on the file of the Fast Track Mahila Court, Theni.
For Appellant : Mr.G.Karuppasamy Pandian
for Mr.R.Nireshkumar
For Respondent : Mr.T.Senthilkumar
Additional Public Prosecutor
1/13
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Crl. A(MD)No.244 of 2019
JUDGMENT
P.N.PRAKASH, J.
This criminal appeal is filed against the judgment and order dated
20.11.2018 in S.C.No.48/2017 on the file of the Fast Track Mahila Court,
Theni. By the said Judgment and order, the trial Court convicted and
sentenced the appellant/accused to undergo life imprisonment and to pay a
fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for one year
for the offence under Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter “the POCSO Act” for brevity). Challenging
the said conviction and sentence, the appellant has come up with this
Criminal Appeal.
2.The prosecution story runs thus:
For the sake of anonymity, the victim girl in this case is referred to as
“X”. “X” was 3 years old at the time of the incident. She is the daughter of
Periyakaruppan [P.W.-1] and Selvapriya [P.W.-2] and great-granddaughter of
Vellaiyan [P.W.-5]. They are a family of hairdressers and residents of
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Crl. A(MD)No.244 of 2019
Silamalai Village, Bodinayakkanur Taluk, Theni District. Periyakaruppan
[P.W.-1] has his saloon in his house and his grandfather Vellaiyan [P.W.-5]
also has his saloon in the next door. Like all hairdressers in the villages, the
house of both Periyakaruppan [P.W.-1] and Vellaiyan [P.W.-5] are attached
to their saloons. Periyakaruppan [P.W.-1] has two children including “X”.
2.1. On 04.08.2017, around 9 in the morning, “X” was playing in the
saloon-cum-house of her great-grandfather Vellaiyan [P.W.-5]. Shortly
thereafter, “X” came crying to her father and told him that a person there
had pinched and caressed her private parts. Immediately, Periyakaruppan
[P.W.-1] and his wife Selvapriya [P.W.-2] rushed with “X” and they saw the
appellant fleeing. Since Periyakaruppan [P.W.-1] knew the name of the
appellant, who is also from the same village, he gave a written complaint
[Ex.P-1], based on which, a case in Bodinayakkanur All Women Police
Station Crime No.16 of 2017 under Section 6 of the POCSO Act was
registered by the Inspector of Police [P.W.-14] on 04.08.2017 at 8 hrs. The
printed FIR [Ex.P-5] was sent to the jurisdictional Court and the same was
received at 1.30 p.m. on 05.08.2017.
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Crl. A(MD)No.244 of 2019
2.2. “X” was examined by Dr.Priya [P.W.-13], who did not find any
visible injuries in the private parts. The appellant was arrested by the police
on 05.08.2017 at 7.00 a.m. and was sent in judicial custody. At the request
of the police, Mrs.Sundari, [P.W.-15], Judicial Magistrate, Theni, recorded
the Section 164 Cr.P.C. statement of “X” and the same has been marked as
Ex.P-7, wherein, X has stated that a person, whose name she does not know,
touched her at her private parts, pinched and caressed her. Her statement
has also been videographed and the same has been marked as Ex.P-9. After
completing the investigation, the Investigating Officer filed a final report in
Spl.S.C.No.48/2017 in the Special Court for POCSO Act cases (Fast Track
Mahila Court), Theni for the offence under Section 6 of the POCSO Act
against the appellant.
3. On appearance of the appellant, the provisions of Section 207
Cr.P.C. were complied with and a charge under Section 6 of the POCSO Act
was framed against the appellant. When questioned, the appellant pleaded
“not guilty”.
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Crl. A(MD)No.244 of 2019
4. To prove the case, the prosecution examined 15 witnesses and
marked 9 exhibits. When the appellant was questioned under Section 313
Cr.P.C., on the incriminating circumstances appearing against him, he
denied the same. He did not offer any explanation whatsoever. After
considering the evidence on record and on hearing either side, the trial
Court, by judgment and order, dated 20.11.2018 in Spl.S.C.No.48/2017, has
convicted the appellant of the offence under Section 6 of the POCSO Act
and sentenced him to imprisonment for life and to pay a fine of Rs.5,000/-,
in default, to undergo one year rigorous imprisonment. Challenging the
same, the appellant is before this Court.
5. Heard Mr.G.Karuppasamy Pandian, learned counsel for the
appellant and Mr.T.Senthilkumar, learned Additional Public Prosecutor for
the respondent.
6. At the outset, Mr.G.Karuppasamy Pandian contended that it is a
case of no evidence, inasmuch as “X” was not examined as a witness in the
trial Court and that the trial Judge has proceeded to convict and sentence the
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Crl. A(MD)No.244 of 2019
appellant based on the Section 164 Cr.P.C. statement (Ex.P-7) of “X” and
nothing more. At the first blush, this submission did look attractive.
However, on a closer scrutiny of the evidence, it appears otherwise to us. It
is true that “X” was not examined as a witness, may be, because of her
tender age. On instructions from the police, learned Additional Public
Prosecutor submitted that the child was brought to the Court, but when she
started crying, they dispensed with her examination. But, that does not, by
itself, mean that the fact in issue has not been proved by the prosecution via
collateral evidence. In this case, we have the evidence of Periyakaruppan
[P.W.-1] and Selvapriya [P.W.-2]. Periyakaruppan [P.W.-1] has stated, “I am
residing in Silamalai Village; I am running a saloon ; I know the accused ; I
have two children ; My daughter's name is Nithyashree and she is three
years old and my son's name is Sabarinathan; on 04.08.2017, at 9 O' clock,
my daughter Nithyashree was playing in my grandfather Vellaiyan's [P.W.-5]
house ; my wife and I were in our house; at that time, my daughter came
shouting “mg;gh”; “vd; kfs; me;j MS jhj;jh tPl;bw;F $l;L Nghap
vd;id mbj;J caph;jsj;jpy; fps;sp> jltp itj;jhh; vd;W vd; kfs;
$wpdhh;.”therefore, I and my wife rushed out of our house and saw; when we
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Crl. A(MD)No.244 of 2019
went there, the appellant escaped and ran away. Thereafter, we came to the
police station and gave the complaint [Ex.P-1].
7. The defence was not able to make any dent in the testimony of
Periyakaruppan [P.W.-1] and in fact, in the cross-examination,
Periyakaruppan [P.W.-1] has clearly stated that when the appellant saw
them, he ran away. The evidence of Selvapriya [P.W.-2], who is the mother
of “X”, is also on the same lines. Even in the cross-examination of
Selvapriya [P.W.-2], it was suggested to her that when they came there, they
saw the appellant running, which suggestion was accepted by her. It is not
the case of Periyakaruppan [P.W.-1] and Selvapriya [P.W.-2] that they had
themselves witnessed the occurrence. It is their clear evidence that “X”
came running to them crying and when they asked her, she stated that the
man there had caressed and pinched her private parts and so when they
immediately went next door, where Vellaiyan's [P.W.-5] saloon is located,
the accused saw them and ran away.
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Crl. A(MD)No.244 of 2019
8. Caressing of “X” by the appellant in Vellaiyan's [P.W.-5] saloon,
which is next door; the coming of the weeping child to her house and
complaining to her parents and the parents going with X to look out for the
person and the appellant running away from the place, have all occurred in
the course of the same transaction and therefore, the evidence of
Periyakaruppan [P.W.-1] and Selvapriya [P.W.-2] is relevant as res gestae
evidence under Section 6 of the Indian Evidence Act, 1872. The conduct of
the accused fleeing from the saloon of Vellaiyan (P.W.-5) on seeing
Periyakaruppan [P.W.-1] and Selvapriya [P.W.-2] and the child is relevant
under Section 8 of the Evidence Act. In fact, in the cross-examination of
Selvapriya [P.W.-2], it was suggested to her that the appellant had come to
the saloon of Vellaiyan [P.W.-5] for hair cutting and when Vellaiyan [P.W.-5]
was not there, he left the shop. Thus, the presence of the appellant in
Vellaiyan's [P.W.-5] saloon at the relevant point of time has been admitted
by him.
9. It is the assertion of Periyakaruppan [P.W.-1] and Selvapriya
[P.W.-2] that “X” was playing in Vellaiyan's [P.W.-5] shop at the relevant
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Crl. A(MD)No.244 of 2019
point of time. Vellaiyan [P.W.-5], being her own great-grandfather, has
stated in his evidence that he knows the accused, who is his customer and at
the relevant point of time, he had gone out and on his return only, he learnt
about the incident in question. Thus, had Vellaiyan [P.W.-5] been in his
saloon, the incident would not have occurred at all. Thus, the absence of
Vellaiyan [P.W.-5] in the saloon coupled with the presence of the appellant
in the saloon, X reporting to her parents that the appellant had misbehaved
with her and the accused fleeing on seeing Periyakaruppan [P.W.-1] and
Selvapriya [P.W.-2] clearly prove the fact in issue satisfactorily. Thus, the
non examination of X pales into insignificance in the peculiar facts and
circumstances of this case.
10. It would be traumatic for a child of 4 years to testify in a Court of
law about sexual abuse she has suffered, when she was 3 years old. In fact,
in the cross-examination of Selvapriya [P.W.-2], the appellant has suggested
that he [appellant] used to frequently consume liquor and ganja in front of
her [P.W.-2's] house and therefore, he has been falsely implicated. This
suggestion itself shows that the appellant was known to Periyakaruppan
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Crl. A(MD)No.244 of 2019
[P.W.-1] and Selvapriya [P.W.-2] earlier and was not a stranger.
11. Now, coming to the medical evidence, it no doubt supports the
case of the appellant, in that, no injuries or redness were found in the private
parts, which only shows that there was no aggravated penetrative sexual
assault as defined by Section 5 of the POCSO Act. Even X had told her
parents that the appellant had pinched her and caressed her. Therefore, we
find that there is sufficient evidence to convict the appellant for sexual
assault punishable under Section 9 (m) of the POCSO Act.
12. The appellant has not satisfactorily discharged the twin
presumptions under Sections 29 and 30 of the POCSO Act, for which,
Mr.G.Karuppasamypandian, learned counsel for the appellant, contended
that it is the duty of the prosecution to prove the foundational facts and only
thereafter, the aid of the presumptions could be resorted to.
13. What are foundational facts?
Foundational facts differ from case to case. In this case, the
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Crl. A(MD)No.244 of 2019
foundational facts are, a three year old child was playing in her great
grandfather's saloon; The appellant, who came for haircutting, did not find
the owner of the saloon there, but found “X”; He is said to have caressed
and pinched “X” in her private parts. In this case, these foundational facts
have been satisfactorily proved by the prosecution and therefore,
automatically, the presumption under Sections 29 ad 30 of the POCSO Act
would come in and in the absence of the appellant dislodging them
satisfactorily, he cannot escape criminal liability.
14. Mr.G.Karuppasamypandian, learned counsel for the appellant,
contended that the prosecution has not proved the age of child. We are
afraid, this submission lacks substance inasmuch as the parents of “X”,
namely, Periyakaruppan [P.W.-1] and Selvapriya [P.W.-2] as well as the
Doctor Priya [P.W.-13] and Mrs.Sundari, [P.W.15], the Judicial Magistrate,
have uniformly recorded the age of X as three, which has not been
challenged by the appellant in their cross-examination.
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Crl. A(MD)No.244 of 2019
15. In the result, this appeal is partly allowed; the conviction and
sentence of the appellant for the offence under Section 6 of the POCSO Act
are set aside and instead, the appellant is convicted of the offence under
Section 9(m) of the POCSO Act and sentenced to undergo five years
rigorous imprisonment under Section 10 of the POCSO Act. The sentence
of fine imposed by the trial Court stands confirmed. The period of sentence
already undergone by the accused/appellant is ordered to be set off under
Section 428 Cr.P.C.
[P.N.P., J.] & [R.H., J.]
21.06.2022
Index : Yes/No
Internet : Yes
RR
To
1.The Fast Track Mahila Court
Theni District.
2.The Inspector of Police
All Women Police Station
Bodi, Theni District
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court, Madurai.
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Crl. A(MD)No.244 of 2019
P.N.PRAKASH, J
AND
R.HEMALATHA, J
RR
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court, Madurai.
Judgment made in
Crl.A.(MD)No.244 of 2019
21.06.2022
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