Madras High Court
This Appeal Is Listed Today Under ... vs The State Rep. By on 11 August, 2023
Crl.A(MD)No.83 of 2023
Crl.A(MD)No.83 of 2023
K.K.RAMAKRISHNAN, J.
This appeal is listed today under the caption 'for being
mentioned' at the instance of the learned counsel for the appellant.
2. The learned counsel for the appellant submitted that there
was some typographical error in the order dated 11.08.2023 viz., crime
number was wrongly mentioned as “Crime No.3 of 2020” instead of
“Crime No.15 of 2021” and the special case number was typed as
“Spl.S.C.No.17 of 2020” instead of “Spl.S.C.No.172 of 2021” and the
respondent police was typed as “Madurai Town All Women Police
Station” instead of “Thirupparankundram All Women Police
Station”.
4. Heard both side counsel and perused the order dated
11.08.2023 in Crl.A(MD)No.83 of 2023.
5.The learned Government Advocate(criminal side) has no
objection to carry out the above said corrections in the order dated
11.08.2023.
6. Since it is a typographical error, the Registry is directed to
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Crl.A(MD)No.83 of 2023
carry out the above said corrections in the order copy dated 11.08.2023 in
Crl.A(MD)No.83 of 2023 wherever it is necessary and also to substitute
the last para as follows:
“13. In the result, this Criminal Appeal is allowed and the
judgment passed in Spl.S.C.No.172 of 2021 dated 30.08.2022 on the
file of the learned Sessions Judge, Special Court for the Exclusive
Trial of Protection of Children from Sexual Offences Act cases-cum-
Sessions Court, Madurai, is hereby set aside and the appellant is
acquitted from the charges. The appellant is directed to be released
forthwith unless his presence or custody is required in connection with
any other case. The compensation granted by the learned Special
Judge in respect of the victim girls remains unchanged.”
6. The Registry is directed to issue a fresh order copy to the
parties after making the above said corrections by marking a copy to the
Superintendent of Prison, Central Prison, Madurai.
26.09.2023
PJL
Note:Issue order copy on 27.09.2023.
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Crl.A(MD)No.83 of 2023
Copy to:
The Superintendent of Prison,
Central Prison, Madurai.
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Crl.A(MD)No.83 of 2023
K.K.RAMAKRISHNAN, J.
PJL
Crl.A(MD)No.83 of 2023
27.09.2023
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.83 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2023
CORAM
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD)No.83 of 2023
Muthuramalingam .. Appellant / Sole Accused
Vs.
The State rep. by
The Inspector of Police,
Madurai Town All Women Police Station,
Madurai City.
(Crime No.3 of 2020) .. Respondent/
Complainant
PRAYER: Appeal filed under Sections 374(2) of the Criminal Procedure
Code, to call for the records relating to the judgment passed in
Spl.S.C.No.17 of 2020 dated 30.08.2022 on the file of the learned
Sessions Judge, Special Court for the Exclusive Trial of Protection of
Children from Sexual Offences Act cases-cum-Sessions Court, Madurai,
and set aside the same.
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Crl.A(MD)No.83 of 2023
For Appellant : Mr.M.S.Suresh Kumar
For Respondent : Mr.R.Sivakumar
Government Advocate (Criminal side)
JUDGMENT
The sole accused in Spl.S.C.No.17 of 2021 on the file of the
learned Special Judge, Special Court for the Exclusive trial of POCSO
Act cases-cum- Sessions Court, Madurai, filed this appeal challenging
the conviction and sentence imposed by the learned Special Judge vide
order dated 30.08.2022 in Spl.S.C.No.17 of 2021. The appellant was
convicted for the offence under Sections 11(i) and 12(2 counts) of the
Protection of Children from Sexual Offences Act, 2012, and sentenced to
undergo three years simple imprisonment for each count (totally 6 years)
and a fine of Rs.1,000/- for each count (totally Rs.2000/-), in default, to
undergo simple imprisonment for six months for each count (totally 1
year) and ordered to undergo the sentence concurrently. He also awarded
compensation of Rs.50,000/- each, to the victim girls. Challenging the
same, the appellant is before this Court.
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Crl.A(MD)No.83 of 2023
2. Case of the prosecution:
The appellant is a mason and he is living in No.482,
Nallammal Compound, Sangupillai Matt, Sinthamani, Madurai. In the
said compound, number of persons are residing. The appellant drinking
liquor everyday heavily and in an inebriated condition causing nuisance
without even noticing his Dhoti slipping down and running helter-skelter
around the compound, losing control of himself and lying around there is
a regular feature. According to the prosecution, on 26.07.2021 at 7.45
pm., when the complainant and other persons were waiting near the
public water tap to fetch water in front of the compound, the victim
girls/PW.3 & PW.4 were playing around. At that time, the appellant
committed sexual assault on the victim girls by stroking their private
parts and also caused sexual harassment by lifting his Dhoti and
exposing his private part to the victim girls in an inebriated condition.
Therefore, the respondent police, on receipt of the complaint from PW.1,
registered the case in Crime No.15/2021 against the appellant for the
offence under Sections 9(m), 10 (2 counts), 11(i), 12(2 counts) of the the
Protection of Children from Sexual Offences Act, 2012 (hereinafter
called as 'the POCSO Act').
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Crl.A(MD)No.83 of 2023
2.2. The investigation officer-PW.15, after arresting the
appellant on 27.07.2021 itself, conducted the investigation and after
collecting the material documents, entrusted the investigation to PW.16.
Thereafter PW.16 completed the investigation and filed the final report
before the Special Court for the offence under Sections 9(m), 10(2
counts), 11(i), 12(2 counts) of the POCSO Act. The learned trial Judge,
after framing necessary charges, questioned the accused and the accused
pleaded not guilty and stood for trial.
2.3. On the side of the prosecution, to prove the charges, PW.1
to PW.16 were examined and Ex.P1 to Ex.P17 were marked and also
Court document-Ex.C1 was marked. The learned trial Judge, questioned
the appellant under Section 313 Cr.P.C by putting the incriminating
circumstances available against him and the appellant denied the same
as false. Neither witness nor document was produced on the side of the
defence.
3. The learned trial Judge, considering the above documents
and submission of the learned counsel for the accused and the learned
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Crl.A(MD)No.83 of 2023
Public Prosecutor, acquitted the appellant under Sections 9(m) and 10(2
counts) of the POCSO Act, holding that the victims never deposed before
the Court that the appellant touched their private parts and hence the
offence under Sections 9(m) and 10(2 counts) of the POCSO Act, are not
made out. But the learned trial Judge convicted the appellant for the
offence under Sections 11(i), 12(2 counts) of the POCSO Act, holding
that the prosecution proved the case that the appellant lifted his Dhoti
and had shown his private parts to the victim girls and thereby, he
committed the offence of sexual harassment and imposed the sentence as
stated above by passing the impugned judgment dated 30.08.2022 in
Spl.S.C.No.172 of 2021.
4. Challenging the same, the appellant preferred the above
appeal on the grounds stated in the memorandum of grounds of appeal.
5. The learned counsel for the appellant submitted that even as
per the prosecution, the appellant is aged about 52 years and doing
mason work. At the time of the occurrence, he was in an inebriated
condition without even noticing that his Dhoti is slipping down and
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Crl.A(MD)No.83 of 2023
losing control of himself and lying there. Some of the witnesses assaulted
him and hence, he fled from the place of the occurrence. In the said
circumstances, the evidence of the prosecution witnesses that he lifted
the Dhoti and showed the private parts with criminal intention to the
victim girls in the night hours around 7.45 p.m on 26.07.2021 is
unbelievable. Therefore, the appellant committed offences under Sections
11(i) and 12(2 counts) of the POCSO Act, with criminal intent is not
convincing and hence, the ingredients of Sections 11(i) of the POCSO
Act, are not made out.
6. The learned counsel for the appellant further submitted that
the learned trial Judge, after acquitting the appellant from the charges
under Sections 9(m) and 10(2 counts) of the POCSO Act, ought not to
have convicted the appellant under Sections 11(i) and 12(2 counts) of the
POCSO Act, on the basis of the same evidence.
7. The learned counsel for the appellant further submitted that
the evidence of the victim girls are not trustworthy and the remaining
evidence also not corroborated with the version of the victim girls. Only
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Crl.A(MD)No.83 of 2023
because the appellant caused nuisance in the locality under the influence
of alcohol, a false case was registered against the appellant.
8. Further, he submitted that the appellant is inside the jail from
the date of occurrence and hence, he seeks for the modification of
sentence in the event of the Court finds that the appellant is guilty of the
above charge.
9. On the other hand, the learned Additional Public Prosecutor
submitted that PW.3 clearly testified about the sexual harassment at the
hands of the appellant. Hence, the acquittal under Sections 9(m) and 10
(2 counts) of the POCSO Act, is not a bar to render the conviction under
Sections 11(i) and 12(2 counts) of the POCSO Act. The prosecution
proved the charges on the basis of the available evidence. Hence, he
prayed for the confirmation of the conviction.
10. This Court has considered the rival submissions and also
perused the records and the precedents relied upon by them.
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Crl.A(MD)No.83 of 2023
11. Now, the only question arises for consideration in this case
is whether the conviction passed by the learned trial Judge under
Sections 11(i) and 12(2 counts) of the POCSO Act, is sustainable after
acquitting the appellant for the offence under Sections 9(m) and 10 (2
counts) of the POCSO Act, on the basis of evidence adduced by the
prosecution?.
11.1. The appellant is aged about 52 years. He is a mason. He
is residing at 482, Nallammal Compound, Sangupillai Matt, Sinthamani,
Madurai. He is a drunkard. Further, he was roaming around the
compound in the inebriated condition even without knowing the slipping
of his dress and groaning and lying in different places in the compound.
In the said condition, it is alleged that on 26.07.2021, at 7.45 p.m, the
appellant committed sexual assault on the victim girls, namely, PW.3 and
PW.4 by stroking their private parts and also committed offence of sexual
harassment of showing his private part to the victim girls by lifting his
Dhoti. After the occurrence, when PW.1 questioned the same, the
appellant was in a drunken mood and fled from the scene of occurrence.
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Crl.A(MD)No.83 of 2023
12. Material portion charges as follows:
“tpisahbf; nfhz;bUe;j NghJ mq;F
te;j ePh; ghjpf;fg;gl;l rpWkp XXXX-d; jq;ifia
mth;fSila tPl;by; cs;Ns itj;J fjitg; G
+l;btpl;L ghjpf;fg;gl;l rpWkp XXXX-d;
khh;igAk; ,Lg;igAk; njhl;L ,Oj;Js;sPh;. gpd;dh;
ghjpf;fg;gl;l rpWkp YYYd; ifia
gpbj;J ,Oj;Js;sPh.; gpd;dh; ckJ ifypia Jhf;fp
ghypay; jhf;Fjy; Ghpe;Js;sPh;fs;.
Nkw;gb rk;gtj;jpd; njhlh;r;rpahf ckJ
ifypia Jhf;fp ckJ Mz; cWg;ig ghjpf;fg;gl;l
rpWkpfs;; XXXX; kw;Wk; YYYY ghh;f;Fk;gb nra;J
ghypay; jhf;Fjy; Ghpe;Js;sPh;.”
12.1. To prove the above said charges, the prosecution ought to
have proved the following incidents:
(i) The appellant forcefully took the victim girls to their house
and committed sexual assault on them by stroking their private parts.
(ii) When the victim girls were playing around their house,
the appellant committed the offence of sexual harassment by lifting his
Dhoti and showed his private parts to the victim girls.
12.2. Both victims never deposed in the above said line. They
deposed that the appellant never took them to the house and stroked their
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Crl.A(MD)No.83 of 2023
private parts. But they deposed that the appellant only lifted his Dhoti
and not even stated that the appellant showed his private part to them.
When the allegation of committing the sexual assault by stroking the
private parts of the victim girls is not proved, subsequent event of lifting
of the Dhoti is highly improbable in the special circumstances of this
case that the prosecution witnesses on seeing the appellant in a drunken
state, shouted at him and assaulted him and hence, he fled from the scene
of occurrence.
12.3. The above conclusion is also supported by the evidence
of PW.7, who deposed that he is one of the residents of the said
compound and the appellant was residing in the said house for the past
two years and prior to the occurrence, he never committed such a
shameful act in the said compound. Further, he deposed that the appellant
was also in an inebriated condition, running helter-skelter and lying over
there in the compound.
12.4. Even as per the prosecution witnesses, the appellant was
in drunken and inebriated condition which impaired his senses. He did
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Crl.A(MD)No.83 of 2023
not even notice the slipping down of his Dhoti. Therefore, the witnesses
assaulted him and hence he fled from the scene of occurrence. Hence,
two views are available on the face of records. One view is that the
appellant lifted his Dhoti and the another view is the appellant was in an
inebriated condition, running helter-skelter and lying in different places
in the compound without even noticing the slipping down of his dhoti. It
is settled principle that when two views are available in respect of the
same fact, benefit of doubt should be given to the accused.
12.6. In overall circumstances, this Court is of the view that the
prosecution failed to prove the charge of sexual harassment with the
necessary criminal intent as required under Sections 11(i) and 12(2
counts) of the POCSO Act. Accordingly, the question arising for
consideration is answered in favour of the appellant.
13. In the result, this Criminal Appeal is allowed and the
judgment passed in Spl.S.C.No.17 of 2020 dated 30.08.2022 on the file
of the learned Sessions Judge, Special Court for the Exclusive Trial of
Protection of Children from Sexual Offences Act cases-cum-Sessions
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Crl.A(MD)No.83 of 2023
Court, Madurai, is hereby set aside. The compensation granted by the
learned Special Judge in respect of the victim girls remains unchanged.
11.08.2023
Index: Yes/No
Internet:Yes/No
NCC : Yes/No
PJL
To
1. The Sessions Judge,
Special Court for the Exclusive Trial
of Protection of Children from Sexual
Offences Act cases-cum-Sessions Court,
Madurai.
2.The Inspector of Police,
Madurai Town All Women Police Station,
Madurai City.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.83 of 2023
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.83 of 2023
K.K.RAMAKRISHNAN, J.
PJL
CRL.A.
(MD)No.83 of 2023
11.08.2023
https://www.mhc.tn.gov.in/judis
