Madras High Court
Kumar @ Rakkapan vs The State Represented By on 21 August, 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 21.08.2023
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.575 of 2022
Kumar @ Rakkapan .. Appellant/Sole Accused
Vs.
The State represented by
The Inspector of Police,
All Women Police Station,
Sivagangai District.
(Crime No.9 of 2016) .. Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 389 (1) of Criminal
Procedure Code, to call for the records and set aside the conviction and
sentence imposed in Spl.S.C.No.37 of 2016 dated 29.03.2022 on the file of
the learned Sessions Judge, Special Court for Exclusive trial of cases under
POCSO Act, 2012, Sivagangai.
For Appellant : Mr.P.Krishnaswamy
For Mr.P.Pitchaimuthu
Page 1 of 12
https://www.mhc.tn.gov.in/judis
For Respondent : Mr.R.Sivakumar
Government Advocate (Criminal side)
JUDGMENT
The sole accused in Spl.S.C.No.37 of 2016 on the file of the learned
Sessions Judge, Special Court for Exclusive trial of cases under POCSO
Act, 2012, Sivagangai, filed this appeal challenging the judgment dated
29.03.2022 in which he was convicted for the offence Section 6 r/w 5(m)(n)
of the POCSO Act, 2012 and sentenced to undergo 10 years rigorous
imprisonment and to pay fine of Rs.5,000/-, in default, to undergo one
month simple imprisonment.
2. Case of the Prosecution:
On 09.05.2016, PW.1, mother of the victim girl cleaned her after
defecation and wore the trouser to the victim girl. Then, she went inside her
house leaving the victim girl outside for preparing cool drink to give to the
victim girl. Thereafter, when PW.1 came outside the house to give the cool
drink, she found the victim girl was missing. While searching, she found
that the victim girl was inside the house of the appellant situated next to
PW1's house. In the said house, the appellant kept the victim girl in his
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thigh by expanding his both legs and the same was not clearly ascertained
due to the darkness. She immediately entered into his house and took the
child and found sperm in the vagina and thigh of the victim girl. Thereafter,
while she bathing her daughter, her skin was found as peeled and her thigh
was reddish. Hence, she asked the victim girl whether the appellant pressed
his penis on her vagina. To that, the victim girl replied 'yes'. So, on
10.05.2016, PW.1 preferred complaint Ex.P1 to the respondent police and
the same was registered in Crime No.9 of 2016 for the alleged offence under
Sections 6 r/w 5(m)(n) of the POCSO Act.
2.1. On the same day, the appellant was arrested. Further the 164
Cr.P.C statement of the victim girl and PW.1 was recorded and investigation
was completed after obtaining necessary medical opinion and other
documents. After completion of the investigation, final report was filed for
the offence under Section 6 r/w 5(m)(n) of the POCSO Act, before the
learned Sessions Judge, Special Court for Exclusive trial of cases under
POCSO Act, 2012, Sivagangai.
3. The learned Special Judge taken the final report on file in
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Spl.S.C.No.37 of 2016. Thereafter, he furnished the copies under Section
207 Cr.P.C to the appellant. After furnishing the copies, he framed necessary
charges and questioned the appellant and the appellant pleaded not guilty
and hence, the trial was conducted.
4. To prove the charges, the prosecution examined PW.1 to PW.17,
marked Ex.P1 to Ex.P21 and produced M.O.1 to M.O.4. 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.
5. The learned trial Judge, after considering the above evidence,
convicted the appellant under Section 6 r/w 5(m)(n) of the POCSO Act and
sentenced him as stated supra and also granted compensation to the victim
girl for a sum of Rs.5,00,000/- (Rupees five lakhs only).
6. Challenging the conviction and sentence passed in the impugned
judgement dated 29.03.2022, the appellant preferred this appeal on the
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ground stated in the memorandum of grounds of appeal.
7. The learned counsel for the appellant reiterating the grounds stated
in the memorandum of grounds of appeal made the following submissions:
7.1. The case of the prosecution is that the appellant is said to have
committed penetrative sexual assault, but the same was not proved in
accordance with law. The victim girl, at the time of recording the statement
under Section 164 Cr.P.C before the learned Judicial Magistrate, did not
state about any penetrative sexual assault. The statement was not recorded
on the ground that the victim girl was not in a position to disclose the fact.
The investigation was conducted on the basis of the statement of PW.1 and
other hearsay evidence and no medical evidence was adduced to prove the
penetrative sexual assault. So, he pleaded for acquittal under Section 5(m)
(n) r/w 6 of the POCSO Act.
7.2. The learned counsel for the appellant further submitted that at the
time of alleged occurrence, the victim was LKG studying girl and after
going to nature call, without cleaning, she entered into the house of the
appellant and hence, he cleaned the victim girl. Due to the previous motive,
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he was falsely implicated in the above occurrence with fibre threads of false
allegation and the same was clearly proved from the circumstances available
in the prosecution evidence itself.
7.3. He further submitted that there are number of contradictions
between the evidence of PW.1 and other witnesses and the said
contradiction itself proved that the appellant never committed the offence.
8. During the course of the examination before the trial Court, the
victim girl stated that she went to the appellant's house to play and she
further stated that he placed his private part in the private part of the victim
girl. There was no symptoms of any penetrative sexual assault. So, the
learned counsel for the appellant submitted that even assuming the evidence
of the victim girl is true, offence under Section 5(m)(n) r/w 6 of the POCSO
Act is not made out. Only offence under Section 9 r/w 10 of the POCSO Act
alone made out. He further submitted that the appellant is inside the jail
from the date of the judgment and hence, seeks further reduction of
sentence.
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9. Per contra, the learned Additional Public Prosecutor submitted that
eventhough the victim girl was unable to state anything before the learned
Judicial Magistrate at the time of recording the 164 Cr.P.C statement, before
the trial Court, she clearly stated that the appellant placed his private part in
the private part of the victim girl. So, the offence under Section 5 (m)(n) r/w
6 of the POCSO Act is clearly made out. Absence of the injuries is not a
ground to disbelieve the evidence of the victim girl. In the said
circumstances, the prosecution clearly proved the offence and hence, he
seeks for dismissal of the appeal by confirming the judgment of the trial
Court.
10. This Court has considered the rival submissions made by both
parties and perused the records and also the impugned judgment passed by
the learned trial Judge.
11. According to PW.1, when she entered into the house of the
appellant, the appellant kept the victim girl in his thigh by expanding his
legs and the same was not clearly visible due to darkness. Further, she stated
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that some sperm was found in the vagina and thigh of the victim girl. She
also found that some injuries in the thigh and private of the victim girl. So,
she gave the complaint and also the victim girl was taken to the hospital.
But the hospital authorities did not find any injury. It is the case of the
penetrative sexual assault on the victim girl aged about 4 ½ years. In that
event, according to PW.12-Doctor, she examined the victim girl on
10.05.2016 at 1.40 p.m. She found that there was no injuries in the thigh and
private parts of the victim girl. Further, the victim girl was unable to say
anything on the date of recording the 164 Cr.P.C statement. Thereafter, the
examination was conducted after number of years, she deposed that the
appellant placed the private part in the private part of the victim girl. Even
in her belated version, there is no material overtact of penetrative sexual
assault. Therefore, the evidence of the victim girl is not sufficient to convict
the appellant under Section 6 r/w 5(m)(n) of the POCSO Act.
12.1. Even as per the evidence of PW.3, they made a complaint after
discussion with the President of the village. The victim girl stated that on
the day itself the complaint was preferred. So, in all circumstances, this
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Court presumes that the allegation of the penetrative sexual assault is
improved version. The same was revealed from the absence of any
allegation in the 164 Cr.P.C statement of the victim girl. According to the
evidence of PW.1, the trouser of the victim girl was not recovered by the
investigation agency to prove the presence of the sperm in the said dress.
The chemical analysis report relating to the test conducted in the lungi of
the appellant also not in favour of the prosecution case. The report said that
there was no trace of presence of sperm. Hence, the case of the prosecution
that the appellant committed penetrative sexual assault on the victim girl is
not proved beyond reasonable doubt.
12.2. Eventhough the victim girl stated that her mother was tutored
her, the victim girl's version of sexual assault cannot be termed as
exaggeration. The evidence of the victim girl regarding the sexual assault is
natural and trustworthy. The available evidence as held earlier, the appellant
has committed only sexual assault on the victim girl. Since the victim girl is
below 10 years, the case of the appellant comes under Section 9(m) of the
POCSO Act. Hence, the appellant is liable to be convicted under Section 10
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of the POCSO Act.
13. In the result, the Criminal Appeal is partly allowed. The
conviction and sentence passed against the appellant under Section 6 r/w
5(m)(n) of the POCSO Act, in Spl.S.C.No.37 of 2016 dated 29.03.2022 by
the learned Sessions Judge, Special Court for Exclusive trial of cases under
POCSO Act, 2012, Sivagangai, is set aside. The appellant is accordingly
convicted under Section 9(m) r/w 10 of the POCSO Act and sentenced to
undergo 5 years rigorous imprisonment and to pay a fine of Rs.5000/-, in
default, to undergo 2 months simple imprisonment. In view of the above
conviction, the award of compensation granted to the victim girl need not be
disturbed.
21.08.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
PJL
https://www.mhc.tn.gov.in/judis
To
1. The Sessions Judge,
Special Court for Exclusive trial of
cases under POCSO Act, 2012,
Sivagangai.
2.The Inspector of Police,
All Women Police Station,
Sivagangai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
K.K.RAMAKRISHNAN, J.
PJL
Crl.A.(MD).No.575 of 2022
21.08.2023
https://www.mhc.tn.gov.in/judis
