Madras High Court
Kanagaraj vs State By Inspector Of Police on 11 October, 2022
Crl. A. No. 598 of 202
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.10.2022
CORAM
THE HONOURABLE MR.JUSTICE P. VELMURUGAN
Crl. A. No. 598 of 2021
Kanagaraj
... Appellant
Vs
State by Inspector of Police
Anaimalai Police Station,
Crime No. 113 of 2019,
Coimbatore District.
... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of Crl.PC, to call for
the record relating to the judgment dated 23.10.2020 made in Spl.C.C.No. 88 of
2019 on the file of the learned Sessions Judge/Special Court for POCSO cases,
Coimbatore and dismiss the sentencing and the same by allowing this Criminal
Appeal.
For Appellant ... Mr. K. Ethirajulu
Legal Aid Counsel
For respondent ... Mr. S. Sugendran
Additional Public Prosecutor
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Crl. A. No. 598 of 202
JUDGMENT
The appeal has been filed against the judgment dated 23.10.2020 passed
in Spl,C.C.No. 88 of 2019, on the file of the learned Sessions Judge/Special
Court for POCSO Cases, Coimbatore.
2. The respondent police has registered a case against the appellant in
Crime No. 113 of 2019 for the offences under Section 9 (i) (l) (n) read with 10,
11 (i) read with 12 of the POCSO Act and also under Section 506 (i) of IPC.
After investigation, charge sheet was laid before the Special Court,
Coimbatore. Since the offence against the appellant, involved a girl child, the
learned Special Judge has taken the case in CC No. 96 of 2019 on file and after
completing the formalities, framed the charges against the appellant for the
offences under Sections 9 (i) (l) (n) read with 10, 11 (i) read with 12 of the
POCSO Act and also Section 506 (i) of IPC. In order to substantiate the case,
charges were framed against the appellant.
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3. During the trial, on the side of the prosecution, totally 21 witnesses
were examined as PW1 to PW21 and 27 documents were marked as Exs. P1 to
P27. No material object was exhibited.
4. On completion of examination of prosecution witnesses, the
incriminating circumstances cult out from the evidence of prosecution
witnesses, were put to the appellant, who denied the same as false. On the side
of the appellant, no one was examined as witness, no exhibits were marked and
no material objects were produced. On completion of trial, arguments were
advanced on either side.
5. The trial court, on a perusal of the materials placed by the prosecution,
found that the appellant is guilty for the offence under Section 9 (i) (l) (n) read
with 10 and under section 11 (i) read with section 12 of the POCSO Act and
not guilty under Section 506 (i) of IPC. Thus, the appellant was convicted and
sentenced to undergo seven years rigorous imprisonment under section
9(i)(1)(n) read with section 10 of POCSO Act and pay a fine of Rs.2,000/-, in
default to undergo one year rigorous imprisonment. For the offence under
Section 11(i) read with 12 of POCSO Act, he was also convicted and sentenced
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to undergo three years rigorous imprisonment and to pay a fine of Rs.2,000/-, in
default to undergo six months rigorous imprisonment; however, not found
guilty for the offence under Section 506(i) IPC.
6. Aggrieved over the said conviction and sentence, the accused has filed
the present appeal before this Court.
7. The learned counsel for the appellant would submit that there is no
offence made out as alleged by the prosecution. The appellant is the father of
the victim. The de facto complainant is none other than the own daughter of
the appellant. The appellant used to ask her daughter to massage him after
coming from his work place and the appellant is so strict towards the victim
since her mother was not residing with them. Since the de facto complainant
being a girl child, in order to avoid any further comments from the public he
was strict towards his daughter, and only in order to escape from the clutches of
her father, she made a false complaint against the appellant but later on, she
herself realized that she had given a false complaint against her own father and
subsequently retracted from the allegation made in the complaint. Examined as
PW1, the victim in the chief examination has stated that though she made a
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complaint as well as statement before the Judicial Magistrate, there was no
incident as stated in the complaint and the statement given under Section 164
Cr.P.C. No other witness corroborate the incident when the complainant
herself had retracted from her allegation and thus, the offence under Section
9(i) would not attract and accordingly the prosecution has failed to establish its
case beyond reasonable doubt. Only based on the complaint given by PW1,
the case was registered, however later on PW1, the victim herself has denied
the allegation.
8. It is further submitted that in this case, there is no physical assault,
penetrative sexual assault and physical violence and the victim also did not
suffer any injuries. There is no medical evidence also. Therefore, the trial
court by considering the case only based on the complaint and statement
recorded under Section 164 Cr.P.C. found that the prosecution had proved its
case beyond reasonable doubt and accordingly convicted the appellant for the
offences under Section 9 (i) (l) (n) read with 10, 11 (i) read with 12 of the
POCSO Act; however found not guilty under section 506 (i) of IPC. Since
there is no corroborative evidence, it is unsafe to convict the accused. It is the
duty of the prosecution to prove its case beyond reasonable doubt. The
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prosecution has not proved its case. No other independent witness or any other
witness except the victim was examined. The victim also, while giving
evidence, has not supported the case of the prosecution. Therefore, the victim
was cross-examined by the prosecution. Therefore, the conviction made by the
trial court is against the principles of law and without any substance or without
any corroborative evidence. Therefore, the judgment of the trial court is liable
to be set aside and the appeal is to be allowed and appellant is to be acquitted.
9. The learned Additional Public Prosecutor would submit that based on
the complaint given by the de facto complainant, the case was registered
against the appellant and immediately the victim was also produced before the
Judicial Magistrate for recording statement under Section 164 Clause 5 of the
Cr.P.C. The said statement is also marked as Ex.P2 and in the said statement,
the victim has clearly stated that the appellant used to ask the victim to massage
him. On 16.04.2019, he called the victim and when she reached the appellant,
the appellant removed his dress and showed his private parts, asking the victim
to lay on him. The victim got afraid and fled away from the place and went to
her grandmother, who was sleeping outside the house. Later, on 17.04.2019,
the victim left the house as she was afraid about the action of his father that he
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would sexually assault the victim. Therefore, she made a complaint and
statement was also recorded under Section 164 Cr.P.C. From reading of the
complaint given by the victim, it is very clear that the appellant has committed
the offence as projected by the prosecution. Since the appellant and the victim
are father and daughter, at the instigation of the appellant, subsequently during
the trial, the victim did not support the case of the prosecution. Therefore, the
trial court found that, on the earlier occasion, while giving complaint as well as
statement before the Judicial Magistrate, she has clearly narrated the incident,
which is an offence as charged against the appellant. However, at a later point
of time, due to their relationship, the appellant managed to convince the victim.
Therefore, she has not supported the case of the prosecution. As such, the trial
court has rightly found that the appellant has committed the offence and in
cases of this nature, no corroborative evidence is necessary. Further, the trial
court had also given the reason for not counting the evidence of victim while
examining her as a witness, considering the relationship of the parties. But
however the trial court found that since the victim in her statement under
Section 164 of Cr.P.C, before the Magistrate has clearly narrated the actual
incident as taken place. Therefore, there is no merit in the appeal and the appeal
is liable to be dismissed.
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10. Heard and perused the records.
11. The case of the prosecution is that the appellant has made an
aggravated sexual assault and also threatened her daughter not to reveal it to
anybody. Therefore, the daughter gave a complaint against her own father and
investigation also reveals that the appellant has committed the offence. The
trial Court convicted the appellant for the offence under section 9(i)(1)(n)
punishable under Section 10, 11(i), punishable under Section 12 of the POCSO
Act. However, acquitted the appellant for the offence under section 506(i) IPC.
12. This Court, being an appellate Court, is a final court of fact finding.
It has to re-appreciate the entire evidence before giving a finding. Accordingly,
this Court, re-appreciated the entire evidence. From a bare reading of the
complaint given by the victim and the statement recorded by the Judicial
Magistrate under Section 164 Cr.P.C, it is seen that the victim has stated that
as usual her father called the victim to do the massage and on 16.04.2019 also
when she went inside she found that his father was lying without underwear
and he asked her daughter to lie on him and she immediately went to her
grandmother who was lying outside the house. On the next day, she fled away
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from the place. When she was examined as PW1, she has admitted that she
made a complaint and also made a statement before the Judicial Magistrate and
the police advised her to give such a statement, only to escape from his father's
harassment since her mother had already left the house. The victim was
studying first year graduation. Her father stopped the victim from college to
pursue her studies. Therefore, she made such a complaint and except the
victim, no other evidence is available. No doubt, the victim had voluntarily
approached the police and she was also brought before the Magistrate for
recording evidence under Section 164 Cr.P.C. But, subsequently when she was
examined as witness, she admitted the same. However, in the case of this
nature, especially when the accused is father or brother or close relative,
naturally the relatives would try to convince the victim and later on they would
manage to give a retracted statement, from the one given on the earlier
occasion. In this case also, the same has happened. However, when the victim
herself has admitted that she gave a complaint, the reason stated that because of
the advice of the police she made such a statement is not an acceptable one.
However, a careful perusal of the allegation in the complaint and also in the
statement recorded by the Magistrate, the victim has stated that, on 16.04.2019,
all of a sudden his father removed his underwear and shown his private parts
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and asked her to lie on him. Except this, there is no other allegation of any
physical assault or physical touch with sexual intent, thus the offence false
under Sections 7 and 9(i)(l)(n) of the POCSO Act. The definition of section 7
of POCSO Act reads as follows:
Section 7 reads of POCSO Act reads as follows:
''Whoever, with sexual intent touches the vagina, penis,
anus or breast of the child or makes the child touch the
vagina, penis, anus or breast of such person or any other
person, or does any other act with sexual intent which
involves physical contact without penetration is said to
commit sexual assault.''
Section 9 (i) (l) (n) reads of POCSO Act reads as follows:
(i) whoever commits sexual assault causing grievous
hurt or causing bodily harm and injury or injury to the
sexual organs of the child; or
(l) whoever commits sexual assault on the child
more than once or repeatedly; or
n) whoever, being a relative of the child through blood
or adoption or marriage or guardianship or in foster
care, or having domestic relationship with a parent of
the child, or who is living in the same or shared
household with the child, commits sexual assault on
such child.
13. Therefore, in order to attract Section 7, there should be a physical
touch with sexual intention. There should be an act of sexual intention, which
involves physical contact. In this case, the allegation in the complaint is very
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clear that the appellant all of a sudden removed his underwear to show his
private parts asking the daughter to lie on him. She has not stated that her
father forced and pulled her or he has lied on her or she was made to lie on him.
She simply says that the appellant asked her to lie on him and she immediately
fled away. Therefore, once if section 7 would not attract, it is not sexual
assault under section 7, then aggravated sexual assault would not attract under
Section 9. Therefore, the trial court has wrongly framed the charge against the
appellant for the offence under Section 9 (i) (l) (n) of POCSO Act and
convicted under Section 10 of POCSO Act. Therefore, the conviction and
sentence passed by the Trial Court under section 9 (i) (l) (n) punishable under
Section 10 of the POCSO Act is liable to be set aside. However, a careful
perusal of the entire records, including the complaint given by the victim and
statement given before the judicial magistrate while recording statement under
Section 164 Cr.P.C and in the evidence, since the victim girl has stated that the
father of the victim, the appellant removed his underwear and showed his
private parts and asked her daughter to lie on him. In that position, no physical
touch or any penetration forcibly took place, since she disliked the act of her
father, she left the house.
14. From this evidence, this court finds that the appellant has committed
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an offence under Section 11 of POCSO Act, punishable under Section 12 of
the POCSO Act. Therefore, the appellant is found guilty for the offence under
Section 11(i) which is punishable under Section 12 of the POCSO Act, which
means the appellant has made severe harassment to the victim. Thus, the
judgment of conviction and sentence passed by the trial court for the offence
under Section 11(i) which is punishable under Section 12 of the POCSO Act is
confirmed. Accordingly, the Criminal Appeal is partly allowed.
15. For the above reasons, this Court finds that the prosecution has not
proved the charges under Section 9 and the appellant has not committed the
offences under section 9 (i) (l) (n) punishable under Section 10 of POCSO Act
and therefore the sentence awarded under Section 10 is set aside. However this
Court finds that the appellant has committed an offence under Section 11 of the
POCSO Act and therefore, the conviction and sentence for the offence under
section 11 punishable under section 12 of the POCSO Act, to undergo three
years imprisonment and to pay a fine of Rs.2,000/-, in default to undergo
rigorous imprisonment for six months, are confirmed.
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17. In the result, the Appeal is partly allowed. The conviction and
sentence passed by the Special Court for the offence under section 9(i)(l)(n)
punishable under Section 10 of POCSO Act with seven years rigorous
imprisonment together with a fine of Rs.2,000/-, in default to undergo rigorous
imprisonment for one year are set aside. The conviction and sentence passed
by the Special Court for the offence under section 11(i) punishable under
section 12 of POCSO Act with three years rigorous imprisonment together with
a fine of Rs.2,000/-, in default to under go rigorous imprisonment for six
months, are confirmed.
11.10.2022
Index : Yes / No
Internet: Yes
Speaking/non speaking order
mrn
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P. VELMURUGAN, J.
mrn
To
1.The Inspector of Police
Anaimalai Police Station,
Crime No. 113 of 2019,
Coimbatore District.
2. The learned Sessions Judge
/Special Court for POCSO cases,
Coimbatore.
3. The Public Prosecutor
Madras High Court.
Crl. A. No. 598 of 2021
11.10.2022
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