Madras High Court
Perumal vs State Represented By on 17 October, 2022
Crl.A.(MD)No.338 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.10.2022
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
Crl.A.(MD)No.338 of 2020
Perumal ... Appellant / sole accused
Vs.
1.State Represented by
The Asssitant Commissioner of Police (Law & Order),
Tirunelveli Town,
Tirunelveli.
2.The Inspector of Police,
All Women Police Station,
Tirunelveli Town,
Tirunelveli.
(Crime No.10 of 2016) ... Respondents/Complainants
PRAYER: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, 1973, against the judgment and order dated 14.10.2020
in Spl.S.C.No.8 of 2019 on the file of the learned Sessions Judge, Special
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Court for POCSO Act, Tirunelveli, Tirunelveli District.
For Appellant : Mr.V.Kathirvelu
Senior Counsel
for Mr.K.Prabhu
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
JUDGMENT
J.NISHA BANU, J.
and
N.ANAND VENKATESH, J.
This Criminal Appeal has been filed against the Order and
Judgment passed by the learned Sessions Judge, Special Court for
exclusive trial of cases under the POCSO Act, Tirunelveli, made in Spl.
S.C.No.8 of 2019, dated 14.10.2020, convicting and sentencing the
appellant in the following manner:
Sl. Conviction for offence Sentence/Punishment
No. under
1. Section 341 IPC One month Simple Imprisonment.
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Sl. Conviction for offence Sentence/Punishment
No. under
2. Section 326 IPC 10 years Rigorous Imprisonment
and a fine of Rs.10,000/-, in
default, to undergo one year
Simple Imprisonment.
3. Section 506(i) IPC 2 years Rigorous Imprisonment
and a fine of Rs.5000/-, in default,
to undergo 3 months Simple
Imprisonment.
4. Section 6 of the POCSO Life Imprisonment and Rs.
Act
1,00,000/- to be paid as
compensation to the victim girl.
5. Section 3(1)(w)(i) of the 5 years Rigorous Imprisonment
Scheduled Castes and
and a fine of Rs.10,000/-, in
Scheduled Tribes
(Prevention of Atrocities) default, to undergo one year
Act
Simple Imprisonment and to pay a
compensation of Rs.50,000/- to the
victim girl.
2. The case of the prosecution is that the victim girl(P.W-2)
and her parents P.W-1 and P.W-3 are residing at Vannarapettai,
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Crl.A.(MD)No.338 of 2020
Arunthathiyar street at Tirunelveli and they belong to a Scheduled Caste
community. The appellant is said to be a van driver who takes children to
the school. On 08.06.2016 at about 09.30 a.m., the victim girl was
searching for her school bag inside the van and the appellant is said to
have touched the private part of the victim girl with a pen and caused
bleeding injury. Thereafter, she was pushed out of the van and was also
threatened by the appellant.
3. The further case of the prosecution is that the victim girl
had informed about this to P.W-7 and she was taken to the hospital and
P.W-10, who is a nurse, had given first aid. Thereafter, the victim girl
was taken to P.W-14, who referred her to P.W-15 through whom the case
sheet was marked as Ex.P12. Thereafter, treatment was given by P.W-16
and P.W-17 and the medical certificate was marked as Ex.P13.
4. The information was conveyed to P.W-1, who is the
mother of the victim girl and a complaint was given to P.W-24 and FIR
was registered in Crime No.10 of 2016 (Ex.P17). The initial investigation
was taken up by P.W-25 and she prepared the rough sketch and seizure
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Crl.A.(MD)No.338 of 2020
mahazar marked as Exhibits P18 and P19. The victim girl was also taken
to the learned Judicial Magistrate and Section 164 Cr.P.C. statement was
recorded and marked as Ex.P20. The investigation was taken over by
P.W- 27 and he prepared the alteration report Ex.P21.
5. On completion of the investigation, the final report was
filed before the Court below and charges were framed against the
appellant for offence under Sections 341, 326 & 506(i) IPC, Section 6 of
the Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as 'the Act') and Section 3 (1) (w) (i) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act. The prosecution
examined P.W-1 to P.W-27 and marked Exhibits P1 to P21 and
identified and marked M.O.1 to M.O.3. The incriminating materials were
put to the appellant while he was questioned under Section 313 (1)( b) of
Cr.P.C and the same was denied as false.
6. The Court below on considering the facts and
circumstances of the case and after appreciating the evidence available
on record, convicted and sentenced the appellant in the manner stated
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supra. Aggrieved by the same, the present appeal has been filed before
this Court.
7. Heard Mr.V.Kathirvelu, learned Senior Counsel for
Mr.K.Prabhu, learned counsel for the appellant and Mr.A.Thiruvadi
Kumar, learned Additional Public Prosecutor for the State.
8. The earliest version about the incident is spoken by
P.W-7. She is working as a teacher in the Middle School. She states in
her evidence that she found the victim girl on the floor on 08.06.2016 at
about 09.30 a.m. and she rushed and lifted her and brought her to one of
the classroom. The victim girl had stated to P.W-7 that she had fell down
and sustained injury. P.W-7 informed the headmistress(P.W-8) over
phone and thereafter, went in an auto to a hospital. P.W-10 was a nurse
who treated the victim girl and she found that there were lacerations in
the face, hand and on the cheek of the victim girl and she applied some
medicine.
9. P.W-7 has further stated that the victim girl wanted to go
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Crl.A.(MD)No.338 of 2020
to her mother and hence, she was sent along with an assistant to her
house.
10. P.W-1, who is the mother of the victim girl states that
after her daughter was dropped in the house, she noticed bleeding from
the vagina of the victim girl. Hence, she enquired the victim girl about
the reason for such an injury and she was informed that she fell on a
goat. The victim girl was thereafter taken to a private hospital and from
there, she was referred to the Government Hospital, Tirunelveli and the
victim girl was admitted as an inpatient in the children’s ward.
11. A careful reading of the evidence of P.W-14 to P.W-17
shows that treatment was given to the victim girl and they have also
stated that they were informed the reason for her injury and that she was
attacked by a goat and was struck with its horn in her private part. The
treatment that was given to the victim girl is evident from Exhibits P12
and P13.
12. P.W-1for the first time in the complaint marked as Ex.P1
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Crl.A.(MD)No.338 of 2020
which was also attested by P.W-3 states that her daughter informed that
the accused had sexually assaulted the victim girl and had threatened her
with dire consequences if the same is revealed to anyone.
13. Based on the complaint, an FIR came to be registered
against the accused person in Crime No.10 of 2016 at about 10.15 p.m.
on 08.06.2016. The victim girl was taken to the learned Additional
Mahila Court Judge on 22.06.2016 at about 12.50 p.m. for recording
Section 164 Cr.P.C statement and the learned Judge after satisfying
herself about the capability of the victim to give a statement, recorded the
statement of the victim girl regarding the incident. The statement made
by the victim girl is extracted hereunder :
nfs;tp: jw;nghJ eP vd;d
thf;FK:yk; ju tpUk;g[fpwhnah mij
brhy;>
gjpy;: ehd; g';fsh kpoy; !;Typy;
1tJ tFg;g[ gof;fpnwd;/ !;TYf;Fg;
nghdt[ld; kw;w gps;isfs;
vy;yhk; !;TYf;Fr; brd;W tpl;lhh;fs;/
mg;nghJ ehd; ntdpy; vd; ngf;if
njof;bfhz;oUe;njd;/ vdJ ngf;
fpilf;ftpy;iy/ mg;ngh ehd; kl;Lk;
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jhd; ntdpy; ,Ue;njd;/ mg;nghJ
ntd; khkh vd;id rPl;oy; gLf;f
itj;jhd;/ Fg;g[w gLf;fitj;J vdJ
rf;fiuapy; Fr;rpia
itj;J ,oj;Jtpl;lhd;/
Fz;oapYk; ,oj;Jtpl;lhd;/ ntd; khkh
gpwF vd;id fPnH js;sptpl;lhd;/
fha';fs; te;jJ/ nga;f;fz; itj;J
vd;id kpul;odhd;/ gpwF vd; kp!;
fpl;l ehd; ele;jij Kjypy;
brhd;ndd;/ gpwF M!;gj;jphpf;F Tl;of;
bfhz;L nghdhh;fs;/
14. It is clear from the above that the victim girl has
explained about the incident and she refers to a person who was available
in the van and she does not give any name. When the victim girl was
examined as P.W-2, she was not able to once again explain about the
incident and hence the trial judge thought it fit to atleast identify the
accused through the victim girl and the victim girl was kept in a position
such that the accused person did not see her and on seeing the accused
person, the victim girl deposed as follows:
,t;tHf;fpd; Kjy;
tprhuizapd; nghJk; Fw;wthsp Tz;oy;
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epWj;jp itf;fg;gl;oUf;Fk; vjphp kw;Wk;
rpWkp ,UtUf;Fkpilna xU
jpiur;rPiy itf;fg;gl;L rpWkp M$h;
vjpupiag; ghh;f;fhj tz;zk; rhl;rpak;
gjpt[ bra;ag;gl;lJ/ ,t;tHf;fpy;
rpWkpaplk; Fw;wk; g[hpe;jjhf Twg;gLk;
M$h; vjpupia milahsk; bjhptjw;fhf
Kjy; tprhuiz Koe;j gpwF jpiu
efh;j;jg;gl;L rpWkpaplk; jdf;F
jtW ,iHj;jjhf brhy;yg;gLk; egh;
ePjpkd;wj;jpy; ,Uf;fpwhuh vd;W nfl;Lk;
Fw;wthsp Tz;oy; cl;fhh;e;J
bfhz;oUe;jtiu epw;fitj;J bgUkhs;
nfhh;l;oy; cs;shuh vd;W nfl;ljw;F
mth; bgUkhs; ,y;iy vd;Wk; bgUkhs;
vd;gtUf;F Kfj;jpy;
g[s;spg[s;spahf ,Uf;Fk; vd rhl;rp
TWfpwhh;/
15. It is clear from the above that there was a serious issue
on the identity of the accused in this case. P.W-1 in her evidence states
that she knows the accused person and he was working as a van driver
and he used to take the children in the van. She further states that on
08.06.2016 at about 09.00 a.m., she had sent all her three children in the
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Crl.A.(MD)No.338 of 2020
van. P.W-1 has not stated as to whether the accused was the driver of the
van when she dropped her children in the van. She is completely silent
about this crucial fact.
16. P.W-7, who is the teacher of the school also states that
the accused was a van driver and he used to bring the children in the van
to the school. This witness states that she saw the accused on 08.06.2016
in the evening. This witness also does not state as to whether the accused
was the van driver when the children were dropped in the school on
08.06.2016 at about 09.30 a.m.
17. P.W-8, who is the Headmistress of the school states that
this incident could not have happened since the school is situated in a
very busy locality and this witness does not in any way help the case of
the prosecution.
18. The evidence of P.W-12 assumes a lot of significance
since he is the owner of the van and his services had been engaged by the
school. This witness was treated as hostile witness by the prosecution.
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However, from the evidence of this witness, it is seen that one Arun was
the van driver who took the children on 08.06.2016 and he specifically
states that he does not know the accused. Even though this witness was
treated as a hostile witness, he does not deny about extending the van
services to the children and he comes up with the name of a different
person, who had driven the van on the date of occurrence.
19. The evidence of the victim girl P.W-2 read along with
the evidence of P.W-1, P.W-7 and P.W-12 shows that there is a very
serious doubt on the very identity of the accused person in this case. The
prosecution has not at all proved that it is the appellant who was involved
in the crime.
20. There is yet another serious procedural lapse in this case.
Even though the incident had taken place in June 2016, surprisingly, the
statement of the witnesses were recorded only in August 2016 and all the
statements reached the Court only in November 2016. Even though delay
by itself may not be a clinching factor in cases of this nature, it assumes
significance since the very identity of the accused person has become
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Crl.A.(MD)No.338 of 2020
highly doubtful in this case. Therefore the possibility of a deliberation to
add/rope in someone as an accused person cannot be ruled out.
21. The Court below seems to have been swayed by Section
29 of the Act. The presumption under Section 29 of the Act which brings
in the concept of reverse burden, will apply only in a case where the
prosecution has established the occurrence and the person who
committed the crime. In the instant case, the involvement of the appellant
has not been established by the prosecution and as such, when the
accused person has not even been fixed, there is no question of applying
Section 29 of the Act. This crucial factor has been lost sight by the Court
below.
22. In view of the above discussion, this Court holds that the
prosecution did not prove that it was the appellant who had committed
the crime and hence, the benefit of doubt has to be extended in favour of
the appellant.
23. In the result,
(i) This criminal appeal stands allowed.
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(ii) The conviction and sentence passed by the learned
Sessions Judge, Special Court for POCSO Act, Tirunelveli, Tirunelveli
District, in Spl.S.C.No.8 of 2019 dated 14.10.2020 is hereby set aside.
(iii) The appellant is acquitted from all charges and he shall
be released from the jail forthwith, if his custody is not required in any
other case. Fine amount, if any, paid by the appellant shall be refunded to
him.
[J.N.B, J.] & [N.A.V., J.]
17.10.2022
Index : Yes/No
Internet : Yes
PJL
To
1. The Sessions Judge,
Special Court for POCSO Act,
Tirunelveli, Tirunelveli District.
2. The Assistant Commissioner of Police (Law & Order),
Tirunelveli Town,
Tirunelveli.
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Crl.A.(MD)No.338 of 2020
3.The Inspector of Police,
All Women Police Station,
Tirunelveli Town,
Tirunelveli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD)No.338 of 2020
J.NISHA BANU,J.
and
N.ANAND VENKATESH, J.
PJL
Judgment made in
Crl.A.(MD)No.338 of 2020
17.10.2022
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