Madras High Court
Muniyandi vs State Rep By on 26 October, 2022
Crl. A(MD)No.138 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated 26.10.2022
CORAM:
THE HONOURABLE Mrs.JUSTICE J.NISHA BANU
AND
THE HONOURABLE Mr. JUSTICE N.ANAND VENKATESH
Crl. A. (MD)No.138 of 2020
Muniyandi .. Appellant
Vs.
State rep by
The Inspector of Police,
Kurangani Police Station,
Theni District.
(Crime No. 22 of 2013) .. Respondent/Complainant
Appeals filed under Section 374 of Criminal Procedure Code, against
the judgment and order dated 23.03.2017 in S.S.C.No.1 of 2015 on the file
of the Sessions Judge, Mahalir Neethimandram, FTC, Theni.
For Appellant : Mr.L.M.Vijay Boominathan for
Mr.R.Prakash
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
1/11
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Crl. A(MD)No.138 of 2020
JUDGMENT
J.NISHA BANU
AND
N.ANAND VENKATESH
This criminal appeal has been preferred against the judgment and
order dated 23.03.2017 in S.S.C.No.1 of 2015 on the file of the Sessions
Judge, Mahalir Neethimandram, FTC, Theni, whereby, the appellant was
convicted for an offence under Section 4 of the Protection of Children from
Sexual Offences Act, 2012 (POCSO) (hereinafter referred to as 'the Act')
and was sentenced to undergo life imprisonment and to pay a fine of
Rs.10,000/-, in default, to undergo rigorous imprisonment for one year.
2. The case of the prosecution is that on 29.04.2013 at about 6.30
p.m., the victim girl had gone to fetch the goats, which were grazing in the
adjacent field and at that point of time, the accused person is said to have
forcibly taken the victim girl to a thatched shed and committed sexual
assault. The victim girl went missing and therefore, her parents [P.W.1 and
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Crl. A(MD)No.138 of 2020
P.W.4] went in search of her. The victim girl was ultimately brought by P.W.
3 and one Vadamalur, who was not examined and P.W.1 enquired the victim
girl. Initially, the victim girl did not reveal about the incident and her
mother [P.W.-1] on examining the victim girl, who had sustained some
injuries, found that she has been sexually assaulted. Immediately, a
complaint [Ex.P.-1] was lodged by P.W.1 and an FIR came to be registered
by P.W.18 and it was marked as Ex.P13.
3. The investigation was taken over by P.W.19 and it was completed
by P.W.20 and the final report was laid before the Court below. The Court
below, after serving the copies under Section 207 of the Code of Criminal
Procedure, framed charge against the appellant for an offence under Section
4 of the POCSO Act.
4. The prosecution examined P.W.1 to P.W.20 and marked Ex.P-1 to
Ex.P14 and identified and marked M.O.1 to M.O.4. The incriminating
materials collected during the course of evidence was put to the appellant,
while he was questioning under Section 313(i)(b) of Cr.P.C. and he denied
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Crl. A(MD)No.138 of 2020
the same as false. The Court below, on considering the facts and
circumstances of the case and on appreciation of evidence, came to a
conclusion that the prosecution has established the case beyond reasonable
doubts and accordingly convicted and sentenced the appellant in the manner
stated supra. Aggrieved by the same, the present criminal appeal has been
preferred before this Court.
5. Heard the learned counsel for the appellant and the learned
Additional Public Prosecutor appearing for the State.
6. The key witness in this case is P.W.2, who is the victim girl. She
was aged about 8 years at the time of incident. She has deposed before the
Court below in a cogent manner with regard to the sexual assault committed
by the appellant. It is clear from her evidence that the appellant has not only
sexually assaulted in the thatched shed near the field but also had taken the
victim girl to a burial ground and repeated the sexual assault. The victim
girl was subjected to cross-examination and it is seen that her evidence has
not been discredited and the same inspires the confidence of this Court.
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Crl. A(MD)No.138 of 2020
7. It is now a well settled principle of law that in cases involving
sexual molestation, it is the duty of the Court to deal with it with utmost
sensitivity and minor contradictions or insignificant discrepancies should be
disregarded once the evidence of the victim girl inspires the confidence of
the Court. Useful reference can be made to the judgment of the Apex Court
in State of Punjab v. Gurmit Singh reported in 1996 SCC Crl. 316.
8. P.W.1, who is the mother of the victim girl speaks about the search
that was made by her and her husband [P.W.-4] for the victim girl, since she
went missing and the complaint that was lodged by her before the
respondent police on 30.04.2013 at about 10.30 a.m. The evidence of P.W.4
is also to the same effect.
9. The Doctor [P.W.-8] was the one, who examined the victim girl on
02.05.2013 at about 3.00 p.m. Ex.P4 and Ex.P5 were marked through her
and on examination of the victim girl, she has identified the injuries on the
right thigh, left thigh and also on the vagina. She has specifically opined
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Crl. A(MD)No.138 of 2020
that these injuries can be sustained only if the victim had suffered a sexual
assault.
10. P.W.11 is the Doctor, who examined the victim girl in the
Government Medical College Hospital, Theni and had issued the discharge
summary marked as Ex.P10. The following injuries were recorded in the
discharge summary and are extracted hereunder:
“1.Laceration of 2 x 0.5 x 0.1 cm at the junction of labia
majora and minora.
2.Multiple abrasion in back largest 5 x 2 cm
3.Nail marks on chest L infraclavicular region
4.Lower lip contusion.”
The above evidence of P.W.8 and P.W.11 corroborates the evidence of the
victim girl.
11. A careful reading of the evidence of P.W.19 and P.W.20 shows
that the investigation had been carried out in a proper manner and the final
report was filed within time. The evidence tendered by the other witnesses
also do not in any way discredit the case of the prosecution.
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Crl. A(MD)No.138 of 2020
12. In the considered view of this Court, the prosecution has
established the offence committed by the appellant beyond reasonable
doubts. Unfortunately, no steps were taken by the prosecution to establish
the exact age of the victim girl. If really the victim girl was 8 years at the
time of incident, the charge ought to have been framed for an offence under
Section 5(m) of the POCSO Act and the same should have been brought
under aggravated penetrative sexual assault punishable under Section 6 of
the Act. Even the Court below did not properly go into this issue and had
confined itself to the offence under Section 3, which is punishable under
Section 4 of the Act. In any case, the punishment for the offence under
Section 4 of the Act can extend to imprisonment for life. Hence, the failure
to frame a charge under Section 5(m) of the Act punishable under Section 6
of the Act does not seriously prejudice the interest of the victim girl.
13. The Court below has properly appreciated the evidence available
on record and has come to a correct conclusion while convicting the
appellant for an offence under Section 3 of the Act. That apart, the
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Crl. A(MD)No.138 of 2020
presumption under Section 29 of the Evidence Act has not been rebutted by
the accused person and apart from the prosecution establishing the case
against the appellant, the appellant has not dislodged the reverse burden that
has been cast upon him under the Act.
14. The next issue to be gone into is with regard to the punishment
that was imposed by the Court below. It is brought to the notice of this
Court that the appellant has already undergone imprisonment for nearly 9
years and 6 months. The appellant is having a female child aged about 13
years. That apart, the victim girl is also said to have married and she also
has a kid. Considering the age of the appellant at the time incident, the poor
financial status of the appellant, the period of incarceration already
undergone by him and considering his family situation, this Court is
inclined to modify the sentence imposed on the appellant and reduce the
same from life imprisonment to 12 years rigorous imprisonment without
remission.
15. In view of the above discussion, the conviction against the
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Crl. A(MD)No.138 of 2020
appellant is sustained and the sentence is modified in the following manner:
a) The conviction and sentence imposed under Section 4 of the POCSO
is hereby sustained and the appellant is sentenced to undergo 12 years
rigorous imprisonment without remission;
b) The sentence of fine imposed by the trial Court stands confirmed; and
c) The period of sentence already undergone by the accused/appellant is
ordered to be set off under Section 428 Cr.P.C.
16. In the result, the criminal appeal is allowed in part to the extent
indicated above.
[J.N.B., J.] & [N.A.V., J.]
26.10.2022
Index : Yes/No
Internet : Yes
RR
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Crl. A(MD)No.138 of 2020
To
1.The Sessions Judge, Mahalir Neethimandram, FTC, Theni.
2.The Inspector of Police,
Kurangani Police Station,
Theni District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl. A(MD)No.138 of 2020
J.NISHA BANU, J
AND
N.ANAND VENKATESH, J
RR
Judgment made in
Crl. A. (MD)No.138 of 2020
26.10.2022
https://www.mhc.tn.gov.in/judis
