Madras High Court
Annamalai vs State Represented By on 2 November, 2022
Crl.A.No.346 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.346 of 2018
Annamalai ... Appellant/accused
Vs.
State represented by
The Inspector of Police,
All Women Police Station,
Vellore,
Vellore District
(crime No.5 of 2015) ... Respondent
PRAYER:
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure, to set aside the order of conviction imposed in judgment dated
24.04.2018 made in Spl.SC.No.45 of 2015 on the file of the learned Sessions
Judge, Magalir Neethi Mandram (Fast Track Mahila Court) at Vellore by
allowing this criminal appeal.
For Appellant : Mr.M.R.Thangavel
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Crl.A.No.346 of 2018
For Respondent : Mr.A.Gopinath,
Government Advocate(crl.side)
JUDGMENT
This criminal appeal is directed as against the judgment passed in
Spl.SC.No.45 of 2015 dated 24.04.2018 on the file of the learned Sessions
Judge, Magalir Neethi Mandram (Fast Track Mahila Court) at Vellore, thereby
convicted the appellant for the offence under Sections 363, 366 of IPC and
Section 6 r/w 5(m) of POCSO Act.
2. The case of the prosecution is that the defacto complainant / witness
Sumathi is residing at No.12/5, 3rd Suruttukara Street, Saidapettai, Vellore. Baby
Saranya, aged five years, is the daughter of the said defacto complainant. Her
date of birth is 08.06.2010 and she is a 'child' as defined under Section 2(1)(d) of
the Protection of Children from Sexual Offences Act, 2012 and the said baby
Saranya is studying in I std in Sarkar Mandi School, Vellore. On 19.04.2015 at
about 6.30 p.m., at Saidapettai, Suruttukara Street, Vellore, in front of the house
of the defacto complainant, while the child Saranya was playing, the accused
with an intention to have illicit intercourse with the child Saranya, kidnapped her
from the lawful guardianship of her parents to an unused municipality toilet,
situated in the same street in fraudulent manner and promising her to give
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Crl.A.No.346 of 2018
chocolate, took the said victim child Saranya to the above said toilet and
committed penetrative sexual assault on her. Thereby, the Inspector of Police, All
Women Police Station, Vellore filed final report against the accused for the
offence punishable under Sections 363, 366 of IPC and Section 6 r/w 5(m) of the
Protection of Children from Sexual Offences Act, 2012. The trial court had taken
cognizance for the offence under Sections 363, 366 of IPC and Section 6 r/w
5(m) of POCSO Act.
3. In order to bring the charges to home, the prosecution had examined
PW1 to PW12 and marked Ex.P1 to Ex.P12. On the side of the appellant, no one
was examined and no documents were marked. On perusal of oral and
documentary evidence, the trial court found him guilty for the offence under
Sections 363, 366 of IPC and Section 6 r/w 5(m) of POCSO Act. He was
sentenced to undergo one year rigorous imprisonment for the offence punishable
under Section 363 of IPC with fine of Rs.1,000/-, in default to undergo one
month simple imprisonment. He was sentenced to undergo two years rigorous
imprisonment for the offence punishable under Section 366 of IPC with fine of
Rs.2,000/-, in default to undergo two months simple imprisonment. He was also
sentenced to undergo ten years rigorous imprisonment with fine of Rs.3,000/-, in
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Crl.A.No.346 of 2018
default to undergo three months simple imprisonment. Aggrieved by the same,
the present appeal has been filed.
4. The learned counsel for the appellant would submit that there were
contradictions between PW1 and PW3. The mother of the victim was examined
as PW1, victim was examined as PW2 and her father was examined as PW3.
PW1 deposed that she went for fetching water along with her elder son whereas
PW3 i.e. her husband deposed that he went along with PW1 to fetch water. She
also deposed that when she returned her home after fetching water, the victim
was crying there. However, in her Section 164 of Cr.P.C. statement, she said that
after half an hour only, the victim reached home. He further submitted that the
alleged occurrence took place on 19.04.2015, whereas the complaint was lodged
only on 21.04.2015. There was absolutely no proper explanation by the
prosecution for the delay in lodging the complaint. He further submitted that even
assuming that the occurrence had happened, at the worst, charge under Section
9(m) of POCSO Act is only attracted as against the appellant and no charge is
made out under Section 5(m) of POCSO Act.
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Crl.A.No.346 of 2018
5. Per contra, the learned Government Advocate(crl.side) appearing
for the respondent / police submitted that in order to bring the charges to home,
the prosecution had examined PW1 to PW12 and marked Ex.P1 to Ex.P12. The
victim was examined as PW2 and she categorically deposed that she was
kidnapped by the appellant and he had penetrative sexual assault on her.
Therefore, the charge under Section 5(m) of POCSO Act is clearly attracted as
against the appellant and the trial court rightly framed charge under section 5(m)
of POCSO Act. Her evidence also corroborated with the evidence of PW1 and
PW3. Immediately after the complaint, the same was registered in Cr.No.5 of
2015 for the offence under Sections 363, 366 of IPC and Section 6 r/w 5(m) of
POCSO Act. Immediately after registering the FIR, the victim was sent for
medical examination. Though no injury was found on her private parts, the victim
categorically deposed before the doctor as well as in the statement recorded
under Section 164 Cr.P.C. that the appellant committed penetrative sexual assault
on her. The doctor who examined PW2 was examined as PW8. Therefore, the
trial court rightly found guilty and convicted the appellant.
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Crl.A.No.346 of 2018
6. Heard, Mr.M.R.Thangavel, the learned counsel for the appellant
and Mr.A.Gopinath, learned Government Advocate(crl.side) appearing for the
respondent / police.
7. The case of the prosecution is that the victim aged about five years
was kidnapped by the appellant and he had penetrative sexual assault on her on
19.04.2015. On perusal of the deposition of PW1, revealed that when she went
for fetching water along with her elder son, the victim was playing in front of her
house. While she returned home, the victim was found missing and after
half an hour, she returned to home and was crying. When she enquired the
victim, she said that the appellant / accused had taken her to Saidapettai
Municipality Toilet and removed her panties. Thereafter, he pressed his penis on
her vagina. He also kissed her. Immediately, she bit the appellant and ran away
from the place of occurrence.. The victim was examined as PW2 and she also
corroborated the same. It is also corroborated by PW3.
8. Though there was no proper explanation of delay in lodgment of
complaint, in these types of complaints, the delay is immaterial since the parents
as well as the victim sustained mental agony. Therefore, after recovering from the
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Crl.A.No.346 of 2018
same, PW1 lodged complaint. After registration of FIR, the victim was taken for
medical examination. The doctor, who examined the victim, was examined as
PW8 and she deposed that the victim was brought to her for medical examination
and she said that the appellant committed penetrative sexual assault on her.
Though no injury was found on her private parts, since she was examined after
three days, the occurrence had occurred and the victim girl was subjected to
sexual assault. On perusal of statement recorded under Section 164 of Cr.P.C.
and her deposition, it is very clear that the appellant had committed very serious
offence. Therefore, the only point for consideration is that whether the charge
under Section 6 r/w 5(m) of POCSO Act is attracted or the offence under Section
10 r/w 9(m) of POCSO Act is attracted. It is relevant to extract the deposition of
PW2 i.e. the victim girl hereunder:
ehd; mg;nghJ tPl;ow;F btspapy; tpisahof;
bfhz;oUe;njd;/ mg;nghJ vd;id fk;gp !;Tyhz;l
mz;zhkiy mzzd; rhf;iyl; th';fp jnud; vd;W brhy;yp
m';F xU jz;zpna tuhj lha;byl;Lf;Ff; Tl;of; bfhz;L
nghdhh;/ ghthilia fHw;wpdhh;/ mz;zhkiy m';fps; ehd;
xz;Qqf;F nghFk; ,lj;jpy; gy;yhit itj;J mGj;jpdhh;/
ehd; mz;zhkiy mz;zid moj;J tpl;L btspapy; te;J
tpl;nld;/
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Crl.A.No.346 of 2018
9. Thus, it is clear that the appellant, after removing her panties and
with sexual intent, attempted to commit sexual assault. Immediately, the victim
bit him and ran away. The doctor, who examined the victim girl, also deposed
that there was no injury or contusion in the vagina or any other part of her body.
Therefore, there was no material to attract the charge under Section 5(m) of
POCSO Act and it would attract only offence under Section 9(m) of POCSO
Act. It is also clear that if at all the victim sustained any injury on her private
parts, definitely she would have been taken to hospital for treatment. Admittedly,
the occurrence had taken place on 19.04.2015, whereas the complaint was
lodged only on 21.04.2015. Therefore, it can be presumed that there was no
injury on her private parts and no evidence to show that the appellant had
penetrative sexual assault on her. As such, the appellant can be charged only for
the offence under Section 10 r/w 9(m) of POCSO Act.
10. In view of the above, the judgment dated 24.04.2018 made in
Spl.SC.No.45 of 2015 on the file of the learned Sessions Judge, Magalir Neethi
Mandram (Fast Track Mahila Court) at Vellore is modified as follows:
(i) The conviction and sentence imposed for the offence
under Sections 363 & 366 of IPC is confirmed.
(ii) The conviction and sentence imposed for the offence
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Crl.A.No.346 of 2018
under Section 6 r/w 5(m) of POCSO Act is set aside.
However, the appellant is convicted for the offence
under Section 10 r/w 9(m) of POCSO Act and
sentenced to undergo five years rigorous imprisonment
with fine of Rs.3,000/-, in default to undergo three
months simple imprisonment.
(a) The above fine amount has already been paid
by the appellant.
(iii) All the sentences shall run concurrently
(iv) The period of detention already undergone by the
appellant / accused shall be set off under Section 428 of
Cr.P.C.
(v) The District Legal Aid Services Authority, Vellore is
hereby recommended to decide the necessary quantum
of the amount payable to the PW2 victim child as
compensation under Section 357-A sub clause (1) and
(2) of Cr.P.C.
11. Accordingly, this criminal appeal is partly allowed.
02.11.2022
Speaking/non-speaking
Index : Yes/No
Internet : Yes
lok
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Crl.A.No.346 of 2018
G.K.ILANTHIRAIYAN, J.
lok
To
1.The learned Sessions Judge,
Magalir Neethi Mandram
(Fast Track Mahila Court) at Vellore
2.The Inspector of Police,
All Women Police Station,
Vellore,
Vellore District
3.The Public Prosecutor,
High Court of Madras
Crl.A.No.346 of 2018
02.11.2022
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