Suresh Babu vs State Represented By
2023 Latest Caselaw 9553 Mad

                                                                                     Crl.A.No.130 of 2022



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 03.08.2023

                                                               CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                   Crl.A.No.130 of 2022 &
                                               Crl.M.P. No.8292 of 2022


                     Suresh Babu                                                      ...Appellant
                                                                Vs.

                     State represented by,
                     Inspector of Police,
                     All Women Police Station,
                     Vellore, Vellore District.                                      ... Respondent
                     (Crime No.2/2019)


                     Prayer : Criminal Appeal filed under Section 374(2) of Cr.P.C. against
                     the judgment dated 29.12.2020 in Spl.S.C.No.59/2019, on the file of the
                     learned Special Judge for Exclusive Trial of Cases under POCSO Act,
                     Vellore, Vellore District.


                                   For Appellant           :    Mr.M.R.Thangavel
                                   For Respondent      :       Mr.S.Sugendran, APP




                     Page 1 of 14

https://www.mhc.tn.gov.in/judis
                                                                                 Crl.A.No.130 of 2022



                                                     JUDGMENT

This criminal appeal is against the Judgment and order of the

learned Special Judge for Exclusive Trial of Cases under POCSO Act,

Vellore, made in Spl.S.C.No.59/2019, dated 29.12.2020.

2. The appellant is the accused in Spl.S.C.No.59/2019 and he is

convicted and sentenced as detailed hereunder:

Conviction Sentence

1.Section 5(m), 5(n), 5(l) r/w.6 of Rigorous Imprisonment for 10 POCSO Act, 2012 years and a fine of Rs.1,000/-, in default, to undergo 3 months Rigorous imprisonment.

2. Section 5(m), 5(n), 5(l) r/w.6 of Rigorous Imprisonment for 10 POCSO Act, 2012 years and a fine of Rs.1,000/-, in default, to undergo 3 months Rigorous imprisonment.

3.Section 506 (ii) IPC Rigorous Imprisonment for 1 year

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

3. The Prosecution case:

i. Kavitha (P.W.1) is the wife of the accused's elder brother. P.W.1's

husband died a few years back and she has a male child (P.W.4)

and two minor female children aged 7 and 9.

ii. The wife of the accused left the matrimonial home due to some

mis-understanding with her husband. P.W.1 along with her

children were living in her mother-in-law's house, where the

accused was also residing.

iii. The children of P.W.1 used to go to school in the morning. They

also attend tuition classes at about 6 p.m. and come back home by

about 8 p.m.

iv. P.W.1 is running a 'tiffin centre' and on 14.02.2019 when she came

back home at about 7 p.m. she found one of the rooms in her house

locked. When she peeped inside through a narrow hole she saw

her child (victim) aged 7 years (P.W.2) along with the accused.

She knocked the doors and confronted with the accused. He

convinced her by stating that the child is just lying down in the

room.

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

v. Later P.W.1 was summoned on 14.02.2019 by Ms. Thamarai Selvi

(P.W.9), who is working as a teacher in Vinayaga Matriculation

Government Elementary School where both the victim children are

studying, to be informed that both the victim children were

subjected to sexual harassment by their paternal uncle (Accused).

According to P.W.9, the daughters of P.W.1 had informed her

about the commission of sexual harassment by their own paternal

uncle.

vi. PW1 thereafter, enquired her two victim children (PW2 & PW3)

and both of them in turn informed her that her paternal uncle used

to remove their dresses and forced himself upon them on several

occasions by taking both of them to the terrace of the building.

They further told her that their paternal uncle (Accused)

threatened them with dire consequences if they reveal the incident

to any person.

vii.PW1 took both her children to All Women Police Station, Vellore,

and lodged a complaint with the Inspector of Police on 15.02.2019

at about 11.30 am. Tmt.G.Mythili (PW-11), the then Inspector of

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

Police, All Women Police Station received the complaint (Ex.P1)

from PW1 and registered FIR (Ex.P15) in Crime No.2 of 2019 of

All Women Police Station, Vellore, against the accused for the

offences punishable under Sections 323, 506 (i) IPC and 6 of

POCSO Act.

viii.She took up investigation, went to the scene of offence and

prepared an observation mahazar (Ex.P16) and a rough sketch

(Ex.P17) in the presence of witnesses.

ix. She examined the victim children and other witnesses and

recorded their statements on the same date. Thereafter, at about

05.00 pm she arrested the accused near Thottapalayam Bus Stand

and recorded his confession statement in the presence of witnesses

Karthikeyan (PW-10) and Elumalai (not examined). She recovered

the dresses of the children (MO1 to MO3) under the cover of a

mahazar (Ex.P2). She also recovered the dresses of the accused

(MO4 & MO5) under the mahazar (Ex.P18). She then sent PW.2

and PW.3 to Government Hospital, Vellore for medical

examination.

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

x. Dr.Sathish (P.W.6) examined both the victim children and entries

in the Accident Registers (Ex.P7 & Ex.P8) and referred both the

children to gynecologist attached to Government hospital, Vellore.

xi. Dr.Geethanjali (P.W.7) examined the victim children and found

that the hymen was not intact for both the children and that the

children were aged between 6 and 10 years. She also opined that

there are no external injuries on the body of the children and on

their private parts.

xii.She took vaginal smear and swab to find out the presence of any

sperm and sent the same to forensic laboratory. After getting the

report of the forensic laboratory, she opined that the vaginal smear

and swab did not contain any 'spermatozoa'. The certificates given

by the doctor for both the children were marked as Ex.P9 and

Ex.P10.

xiii.In the meanwhile, the Investigating Officer sent the accused to the

Government Hospital, vellore, where Dr. Nagendira Kumar

(P.W.5) examined him and opined that there is nothing to suggest

that the accused is impotent. His certificate is marked as Ex.P6.

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

xiv.Tmt. Kanimozhi (P.W.8), the Headmistress of Vinayagamurthy

Management School, after verifying the school records, issued two

certificates stating that the Date of Birth of P.W.2 is 07.12.2011

and date of Birth of P.W.3 is 07.03.2010. The certificates given by

P.W.8 were marked as Ex.P11 and Ex.P12.

xv.P.W.4 is the minor son of P.W.1 and he had deposed that he had

seen his paternal uncle, taking up his sisters either to the terrace or

to a room and locked the door. He has also deposed that he has

seen P.W.2 and P.W.3 crying thereafter lying on the floor.

xvi.P.W.11, the investigating Officer examined all the witnesses

under Section 161(3) Cr.P.C., collected various documents and

filed a final report on 31.05.2019 under Sections 506(ii) IPC and

5(m), 5(n), 5(l) r/w 6 of POCSO Act, 2012 against the accused, in

S.C. No.59/2019 before the Sessions Judge for Exclusive Trial of

Cases under POCSO Act, Vellore.

xvii.The accused was questioned with regard to the circumstances

appearing in evidence against him under Section 313 Cr.P.C. and

he denied having committed any offence. However, he did not

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

examine any witnesses on his side.

xviii.The trial court judge, after analysing the oral and documentary

evidence, found the accused guilty of the offences punishable

under Sections 506(ii) IPC and 5(m), 5(n), 5(l) r/w 6 of POCSO

Act, 2012, and convicted and sentenced him as stated above.

4. Aggrieved over the conviction and sentence passed by the

trial court judge, the present Criminal Appeal is filed.

5. Heard M.R.Thangavel, learned counsel for the appellant and

Mr.S.Sugendran, learned Additional Public Prosecutor for the

respondent.

6. Mr. M.R.Thangavel learned counsel for the appellant

contended that the trial court had committed an error in relying on the

evidence of P.W.1 to P.W.4 since the medical reports of the victims did

not support the case of the prosecution. His further contention is that the

trial court had not only imposed imprisonment for a period of 10 years

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

for the offences punishable under Sections 5(m), 5(n), 5(l) r/w 6 of

POCSO Act, 2012, for each count but also ordered that the sentences

shall run consecutively. His specific prayer before this court is that

sentences shall be ordered to run concurrently.

7. In the instant case both P.W.2 and P.W.3 had clearly

deposed that their paternal uncle had sexually assaulted them by

removing their dresses and forced himself upon them. The trial court

judge had taken necessary precautions before examining the children in

the Court and both the children had clearly deposed about the

commission of crime by the accused. They also withstood the testimony

of cross examination. Therefore, it cannot be stated that these two

children were tutored by her mother. In fact in the instant case P.W.1,

even after the death of her husband, continued to live with her mother-in-

law along with her children where the accused is also residing. In other

words, the P.W.1 and the accused are living in the same house and when

she saw the accused with one of her daughters in a room she did not

suspect any foul play. On the other hand, P.W.1 trusted the accused till

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

she was summoned by the school teacher of the victim children to be

informed about the commission of a crime by the accused (paternal uncle

of the victim girls), which was confessed by the victim children to their

school teacher. This was corroborated by P.W.9. P.W.1 thereafter took

steps by way of lodging a complaint (Ex.P.1) with the police. The doctor

who examined both the children had stated that the hymen of both the

victim children were not intact and that their vagina admitted tip of a

finger. Merely because there were no external injuries on the private

parts of the children, it cannot be stated that both the children were not

sexually assaulted by the accused. The overwhelming evidence of P.W.1

to P.W.4 is sufficient to hold that the accused had sexually assaulted both

the victim children. Nothing useful was suggested to them during the

course of cross examination to discredit or disbelieve their versions and

the trial court had rightly convicted the accused for the offences

punishable under Sections 506(ii) IPC and 5(m), 5(n), 5(l) r/w 6 of

POCSO Act, 2012, Moreover, it is pertinent to point out that as per

Section 29 where a person is prosecuted for committing or abetting or

attempting to commit any offence under sections 3, 5, 7 and section 9 of

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the Act, the Special Court shall presume, that such person has committed

or abetted or attempted to commit the offence, as the case may be unless

the contrary is proved.

8. In the instant case, the accused had not adduced any rebuttal

evidence to prove that he has not committed the offences punishable

under Sections 5(m), 5(n), 5(l) r/w 6 of POCSO Act, 2012. Therefore,

the conviction passed by the trial Court is confirmed. The trial Court had

sentenced the accused to undergo rigorous imprisonment for a period of

ten years for each count and directed the accused to undergo

imprisonment consecutively for the offence punishable u/s.5(m), 5(n),

5(l) r/w.6 of POCSO Act, 2012. Though the accused had committed

sexual assault of both the children, considering the request of the

accused, the rigorous imprisonment for a period of ten years for each

count, which was ordered by the trial court to run consecutively, is

modified and ordered to run concurrently without any remission benefits.

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

9. In the result,

(i) This Criminal Appeal is partly allowed. Consequently

connected miscellaneous petition is closed.

(ii) While confirming the conviction passed by the learned

Special Judge for Exclusive Trial of Cases under POCSO Act, Vellore,

Vellore District, in Spl.S.C.No.59/2019, dated 29.12.2020, the sentence

imposed for the offences u/s.5(m), 5(n), 5(l) r/w.6 of POCSO Act, 2012

is modified as under:

The accused is sentenced to undergo Rigorous

Imprisonment for 10 years for each count, which shall run

concurrently without any remission benefits.

03.08.2023

Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order

bga

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

To

1. The Special Judge for Exclusive Trial of Cases under POCSO Act, Vellore, Vellore District.

2. Inspector of Police, All Women Police Station, Vellore, Vellore District.

(Crime No.2/2019)

3. The Additional Public Prosecutor High Court, Madras.

https://www.mhc.tn.gov.in/judis Crl.A.No.130 of 2022

R. HEMALATHA, J.

bga

Crl.A.No.130 of 2022 & Crl.M.P. No.8292 of 2022

03.08.2023

https://www.mhc.tn.gov.in/judis