Madras High Court
C.Selvaraj vs The State Represented By on 11 October, 2022
Crl.A.No.202 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.10.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.202 of 2018 and
Crl.MP.No.4853 of 2018
C.Selvaraj ... Appellant
Vs.
The State represented by
The Inspector of Police,
All Women Police Station,
Thiruvarur ... Respondent
PRAYER:
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure, to set aside the judgment passed by the Special Sessions Judge,
Magalir Neethimandram, Thiruvarur in Spl.SC.No.4 of 2013 dated 31.12.2015.
For Appellant : Mr.G.Murugendran
for Mr.M.Senthil
For Respondent : Mr.A.Gopinath,
Government Advocate(crl.side)
JUDGMENT
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Crl.A.No.202 of 2018
This criminal appeal is directed as against the judgment passed by the
Special Sessions Judge, Magalir Neethimandram, Thiruvarur in Spl.SC.No.4 of
2013 dated 31.12.2015, thereby convicted the appellant for the offence
punishable under Sections 6 r/w 5(m) and 10 r/w 9(m) of Protection of Children
from Sexual Offences Act, 2012.
2. The case of the prosecution is that the victim girl was aged about 2 ½
years and the appellant is a neighbour. While being so, on 11.01.2013 at about
04.30 p.m., when the victim went to play at the accused's house, the accused
had taken the victim and inserted his finger in to her vagina and due to which
she sustained injury with bleeding. While it was questioned to the accused, he
replied that stick may have pierced. Believing the version of the accused, the
mother of the victim brough the child to the hospital for treatment. After
treatment they returned to home. However, on subsequent enquiry of the victim
child, the mother of the victim came to understand that the accused committed
sexual assault on her. Hence, the respondent registered FIR in crime No.2 of
2013 for the offence under Sections 7 and 8 of the POCSO Act, 2012 r/w
Section 4 of Tamilnadu Prohibition of Harassment of Women Act. After
completion of investigation, the respondent filed final report and the same has
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Crl.A.No.202 of 2018
been taken cognizance by the trial court for the offence under Sections 4 and 8
of POCSO Act, 2012.
3. The prosecution examined PW1 to PW14 and marked Ex.P1 to
Ex.P9. On the side of the appellant, DW1 to DW3 were examined and no
documents were marked. On perusal of oral and documentary evidence, the trial
court found him guilty and convicted for the offence punishable under Section
6 r/w 5(m) of POCSO Act and sentenced him to undergo 10 years rigorous
imprisonment with fine of Rs.10,000/-, in default to undergo one year rigorous
imprisonment. He was also found guilty for the offence under Section 10 r/w
9(m) of POCSO Act. However, since the punishment imposed for major
offence, no separate sentence imposed for this conviction under Section 10 r/w
9(m) of POCSO Act.
4. The learned counsel for the appellant would submit that there was
previous enmity between the accused family and the victim family. Therefore,
the false complaint foisted as against the accused. Even according to the PW1
who lodged complaint alleging that the victim girl aged about 2 ½ years
sustained injury on her private parts due to stick and later, they changed their
own version and alleged that the appellant sexually assaulted on the victim by
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Crl.A.No.202 of 2018
his finger so as to attract the offence under POCSO Act. He further submitted
that the victim girl was examined as PW12. She categorically deposed that only
as tutored by her parents, she deposed before the court. The doctor who treated
the victim was examined as PW9 and she deposed that the victim was admitted
alleging that injury on her private parts herself with stick and she was
immediately discharged on 12.01.2013. Again, the victim girl was admitted at
hospital alleging that the injury was caused by the sexual assault made by one
known person. Therefore, it is clear that the entire allegations are only after
thought and only to wreak vengeance against the appellant due to previous
enmity.
4.1 He further submitted that in order to disprove the case of the
prosecution, the appellant had examined DW1 to DW3. They deposed that the
appellant was running a brick kiln. While being so, the goat belongs to PW1
damaged the brick of the appellant. Therefore, there was a quarrel. However,
thereafter they compromised the issue. It happened three to five years before
the occurrence and due to which the false complaint has been foisted as against
the appellant. He further submitted that the appellant is so far incarcerating
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Crl.A.No.202 of 2018
imprisonment more than seven years and the maximum punishment for the
alleged offence is only 10 years. Therefore, he prayed to reduce the sentence.
5. The learned Government Advocate(crl.side) appearing for the
respondent / police submitted that to bring the charge for the offences under
Sections 6 r/w 5(m) and 10 r/w 9(m) of Protection of Children from Sexual
Offences Act, 2012, the prosecution had examined PW1 to PW14 and marked
Ex.P1 to Ex.P9. PW1 is the mother of the victim who deposed categorically
that the victim aged about 2 ½ years was sexually assaulted by the appellant
herein by his hand, due to which she sustained injuries on private part and
immediately admitted in the hospital. Initially, she believed the words of the
appellant that the injury happened on her own by stick. Later, she came to
understand that the victim was sexually assaulted by the appellant and as such
she lodged complaint. It is not an after thought since the appellant committed
very serious and heinous offence as against the minor girl aged about 2 ½
years. In fact, the minor girl was examined as PW12 and she categorically
deposed that only the appellant caused sexual assault on her and due to which
she sustained injuries. She got admitted as in-patient for three days and she had
treatment. The doctor who treated the victim was examined as PW9 who
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Crl.A.No.202 of 2018
categorically deposed that she found the superficial mucosal abrasion nearly
posterior fourchette with no active bleeding. However, she got admitted for two
days and had given treatment to her. Therefore, the trial court rightly convicted
the appellant and the judgment of the trial court does not require any
interference of this Court.
6. Heard, Mr.G.Murugendran, the learned counsel for the appellant
and Mr.A.Gopinath, learned Government Advocate(crl.side) appearing for the
respondent / police.
7. On perusal of records revealed that the petitioner was arrested on
13.01.2013 and due to his arrest, he was incarcerating imprisonment from
13.01.2013 to 27.03.2013 and 18.06.2014 to 24.06.2014 and 30.12.2015. After
conviction i.e. on 31.12.2015, he was again remanded to judicial custody and
he is incarcerating imprisonment till today.
8. Admittedly the victim was aged about 2 ½ years at the time of
occurrence on 11.01.2013 and the appellant was aged about 45 years. He is a
neighbour to the victim. On the date of occurrence, when the victim went to the
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Crl.A.No.202 of 2018
house of the appellant for playing, while being so the appellant had sexually
assaulted on her by his finger. Therefore, she got heavy bleeding. It was
questioned by PW1 who is the mother of the victim to the appellant and he
stated that the injury was happened on her own by stick and it may have
pierced. On believing the version of the appellant, PW1 informed the doctor to
treat her. Thereafter, she found that the appellant sexually assaulted the victim
by his finger due to which the victim sustained heavy bleeding on her private
part. It is also evident from the deposition of PW9 who treated the victim girl.
Though there was no active bleeding immediately after the occurrence, there
was a bleeding and immediately she had been taken to hospital for treatment. It
is unfortunate to state that the victim was aged about 2 ½ years and the
appellant was aged about 45 years at the time of occurrence. When the victim
went to his house for playing, he sexually assaulted the victim girl by his
finger. In fact, she sustained bleeding on her skirt. The victim girl was
examined as PW12 and she deposed as follows:
v';fs; tPlL
; f;F gf;fj;jpy; nfrtd; khkh kw;Wk;
jf;fhsp tPlo; y; uhrhj;jp ,Uf;fpwJ/ uhrhj;jp bghpa mk;kh/
uhrhj;jp mk;khs; vdf;F rhg;ghL Cl;o tpl;lJ/ ma;ah nkny
ehd; tpisahondd;/ ma;ah fpr;R fpr;R K:lo; dhh;/ FHe;ij
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Crl.A.No.202 of 2018
jdJ khh;gf';fis mKf;fp fhl;oago rhl;rpak; mspj;jhh;/
FHe;ij ghthilia J}f;fp fhz;gpj;J ma;ah ,g;go bra;jhh;
vd;W jdJ tyJ ifahy; jdJ gpwg;g[ cWg;ig fhl;o
fhz;gpj;J brhd;dhh;/ jdf;F uj;jk; te;jjhft[k; brhd;dhh;/
uj;jk; fPnH kw;Wk; ghthilapy; Cw;wp ,Ue;jJ/ mk;kh
mGjJ/ Ml;nlhtpy; M!;gj;jphpf;F Tl;o nghdJ/ uhrhj;jp
jdf;F Jzp itj;J (gpwg;g[ cWg;ig fhz;gpj;J)
M!;gj;jphpf;F Tl;o brd;wJ/ eh';fs; M!;gj;jphpf;F
nghndhk;/ kUj;Jtkidapy; vd;id itj;J tpll; hh;fs; 3
ehl;fs; ,Ue;njd;/ ma;ah ePjpkd;wj;jpy; epw;Fk; vjphpia
fhz;gpj;J mth;jhd; ma;ah vd;W rhl;rp milahsk;
fhl;odhh;/
9. Thus, it is clear that at the time of her deposition, she was aged
about nearly 5 years. However, she categorically deposed. Thus it is clear that
the appellant committed very serious and heinous offence as against the minor
girl. Therefore, the trial court rightly convicted the appellant for the offence
punishable under Sections 6 r/w 5(m) and 10 r/w 9(m) of Protection of Children
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Crl.A.No.202 of 2018
from Sexual Offences Act, 2012 and this Court finds no infirmity or illegality
in the conviction rendered by the court below. However, this Court felt that it
would be appropriate to reduce the sentence considering the age of the
appellant. As such, the judgment passed by the learned Special Sessions Judge,
Magalir Neethimandram, Thiruvarur in Spl.SC.No.4 of 2013 dated 31.12.2015
is modified as follows:
(i) The conviction rendered by the trial court for the
offence under Sections 6 r/w 5(m) and 10 r/w 9(m) of
POCSO Act, 2012 is confirmed.
(ii) The sentence of imprisonment imposed by the trial
court is reduced to the period already undergone by
the appellant (the period of imprisonment already
undergone by the appellant is to be given set off under
Section 428 of Cr.P.C.)
(iii) The trial court imposed fine of Rs.10,000/- payable by
the accused, which was ordered to be awarded to the
victim gril as compensation, is hereby confirmed.
(iv) The appellant is directed to be set at liberty forthwith,
unless his custody is required in connection with any
other case. The bail bond, if any executed by the
accused, shall stand cancelled.
10. Accordingly, this criminal appeal is partly allowed. Consequently,
connected miscellaneous petition is closed.
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Crl.A.No.202 of 2018
11.10.2022
Speaking/non-speaking
Index : Yes/No
Internet : Yes
lok
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Crl.A.No.202 of 2018
https://www.mhc.tn.gov.in/judis
Crl.A.No.202 of 2018
G.K.ILANTHIRAIYAN, J.
lok
To
1.The learned Special Sessions Judge,
Magalir Neethimandram, Thiruvarur
2.The State represented by
The Inspector of Police,
All Women Police Station,
Thiruvarur
3.The Public Prosecutor,
High Court of Madras
Crl.A.No.202 of 2018
11.10.2022
https://www.mhc.tn.gov.in/judis
