Madras High Court
Murugesan @ Murugan vs State Rep. By on 9 January, 2023
CRL.A.No.125 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 09.01.2023
CORAM
THE HONOURABLE Mr. JUSTICE P.N. PRAKASH
AND
THE HONOURABLE Mr. JUSTICE N. ANAND VENKATESH
CRL.A.No.125 of 2022
Murugesan @ Murugan .. Appellant
Vs.
State rep. by
The Inspector of Police
All Women Police Station
Gobichettipalayam
Erode District
Cr.No.6/2016 .. Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C. to call for the
records relating to the judgment dated 23.06.2017 made in Spl.S.C.No.8 of
2017 on the file of the Additional Sessions Court, Magalir Neethimandram
(Fast Track Mahila Court), Erode and set aside the same by allowing this
criminal appeal.
1/18
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CRL.A.No.125 of 2022
For Appellants Mr.N.Manokaran
For Respondent Mr.M.Babu Muthumeeran
Additional Public Prosecutor
JUDGMENT
N. ANAND VENKATESH, J.
This criminal appeal is directed against the judgment and order of
conviction and sentence dated 23.06.2017 passed by the Additional Sessions
Court, Magalir Neethi Mandram (Fast Track Mahila Court), Erode, in
Spl.S.C.No.8 of 2017.
2. This being a case under the Protection of Children from Sexual
Offences Act, 2012 (for brevity “the POCSO Act”), we deem it necessary
not to refer to the name of the victim girl and instead, refer to her as “X”.
3. The prosecution case is as follows:
3.1. “X” is the daughter of Shanthi-Ravi couple. Shanthi is said to be
mentally retarded. The date of birth of “X” as per her school records is
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05.06.2003 and accordingly, she was 14 years old during the alleged
occurrence. “X” was living with her grandmother Backiyalakshmi in
Periyapuliyur village and was studying in 8th standard in the Government
Higher Secondary School in Periyapuliyur.
3.2. In September 2016, after the quarterly examination, “X” had
holidays and so, her aunt Meenakshi (P.W.1) took her to her village,
Kaalingarayanpalayam, which is about 10 kms. from Periyapuliyur. After
reaching the house of Meenakshi (P.W.1), “X” complained of body pain and
when Meenakshi (P.W.1) enquired her, she stated that she wanted to confide
in her certain things and said that she was sexually abused on various
occasions by four persons, of whom, she named three persons,
Sembulingam, Murugesan @ Murugan and Sivakumar @ Ramesh of
Periyapuliyur village. As regards the fourth person, she stated that he is
from Kaalingarayanpalayam and that she can identify him. Immediately,
Meenakshi (P.W.1) brought these revelations by “X” to the notice of the
elders in the house and on 25.09.2016, Meenakshi (P.W.1) gave a written
complaint vide Ex.P1 narrating what “X” had told her.
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CRL.A.No.125 of 2022
3.3. On the said complaint, Nagamani (P.W.21), Sub-Inspector of
Police, All Women Police Station, Gobichettipalayam, registered a case in
Crime No.6 of 2016 on 25.09.2016 for the offences under Sections 366 IPC,
5 r/w 6 of the POCSO Act and 506(II) IPC against Sembulingam,
Murugesan @ Murugan, Sivakumar @ Ramesh, all residents of
Periyapuliyur and one, not named, but an identifiable person being a
resident of Kaalingarayanpalayam and prepared the printed First
Information Report (Ex.P24), which reached the jurisdictional Magistrate
on the same day at 10.30 p.m.
3.4. Investigation of the case was taken over by Gayathri (P.W.22),
Inspector of Police, who arrested Sembulingam, Murugesan @ Murugan,
Sivakumar @ Ramesh and Vijayakumar (appellant) on 25.09.2016 at 15.15
hours in Gobichettipalayam Bus Stand.
3.5. All the arrested accused were medically examined by
Dr.Sivasankar (P.W.3), Assistant Medical Officer, Government Hospital,
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Gobichettipalayam, on 25.09.2016 at 07.15 p.m. and certificates were
issued, of which we are concerned with the one relating to the appellant
herein, viz., Ex.P5, wherein the following final opinion has been given:
‘FINAL OPINION
Mr.Murugesan @ Murugan 37/M
Based on clinical examination, there is nothing to suggest that the
male examined is not capable of performing sexual act.’
3.6. The appellant was further examined, his semen collected and it
was sent to Tamil Nadu Forensic Sciences Department for examination. The
final opinion (Ex.P8) given by Dr.S.Vijayakumar (P.W.4) reads as under:
‘FINAL OPINION
The result for grouping test is inconclusive. There is no evidence to
suggest he is impotent.’
3.7. Dr.Kalyani (P.W.5), Senior Assistant Medical Officer, examined
“X” on 26.09.2016 for determining her age and after conducting necessary
radiological tests, she gave a report (Ex.P9) opining that “X” has completed
14 years of age and is less than 15 years of age.
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3.8. Dr.Kalapriya (P.W.6) medically examined “X” on 25.09.2016 and
took her vaginal smears, which were sent to the Tamil Nadu Forensic
Sciences Department for chemical examination. The chemical examination
report showed absence of spermatozoa in the vaginal smears. Thereafter,
Dr.Kalapriya (P.W.6) gave her final opinion (Ex.P13), wherein she stated
that the hymen was torn; no spermatozoa was detected in the vaginal
smears; and that it is possible for “X” to have been subjected to coitus.
3.9. “X” was admitted as an inpatient on 31.12.2016 in the
Government Head Quarters Hospital, Erode, for psychological assessment.
Dr.Jayaprakash (P.W.13), Psychiatrist, conducted several psychological
screening and administered the following tests:
1. Vineland social maturity scale
2. Woodern Form Board Test
3. Binet Kamat Test of Intelligence
4. Mental Status Examination
5. Psychopathological Screening Test
and submitted a detailed report which has been marked as Ex.P23.
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3.10. After examining various witnesses and collecting the reports of
the experts, Gayathri (P.W.22), Inspector of Police, completed the
investigation and filed a single final report against four accused viz.,
Sembulingam (A1), Murugesan @ Murugan (A2), Sivakumar @ Ramesh
(A3) and Vijayakumar (A4) for the offences under the POCSO Act and IPC
in the Additional Sessions Court, Magalir Neethi Mandram (Fast Track
Mahila Court), Erode, which is designated as the Special Court under the
POCSO Act.
4. The learned Special Judge carefully analysed the final report and
found that the offences allegedly committed by the four accused were not
committed in the course of the same transaction and therefore, he split up
the case qua each accused and assigned separate case numbers to conduct
the trials simultaneously and not jointly. The details of the case numbers are
as under:
Sembulingam - Spl.S.C.No.5 of 2017
Murugesan @ Murugan - Spl.S.C.No.8 of 2017
(Appellant herein)
Sivakumar @ Ramesh - Spl.S.C.No.9 of 2017
Vijayakumar - Spl.S.C.No.10 of 2017
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4.1. The trial Court framed charges under Section 6 of the POCSO
Act and Section 506(II) IPC for intimidating “X”. When questioned, the
appellant pleaded “not guilty”.
4.2. To prove the case, the prosecution examined 22 witnesses and
marked 27 exhibits. When the appellant was questioned u/s.313 Cr.P.C. on
the incriminating circumstances appearing against him, he denied the same.
No witness was examined from the side of the appellant nor any document
marked.
4.3. After considering the evidence on record and hearing either side,
the trial Court, by judgment and order dated 23.06.2017, convicted the
appellant of the offence u/s.4 of the POCSO Act and Section 506(II) IPC
and sentenced him as under :
Provision under Sentence
which convicted
Section 4 of Life imprisonment and fine of Rs.5,000/-, in
POCSO Act default, to undergo two years simple
imprisonment.
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CRL.A.No.125 of 2022
Provision under Sentence
which convicted
Section 506(II) Seven years rigorous imprisonment and fine of
IPC Rs.5,000/-, in default, to undergo two years
simple imprisonment.
The aforesaid sentences were ordered to run concurrently.
Challenging the aforesaid conviction and sentences, the appellant has
preferred the present appeal.
5. It is pertinent to state here that the other three accused viz.,
Sembulingam, Sivakumar @ Ramesh and Vijayakumar were also convicted
and sentenced on the same day by three separate judgments.
6. Heard Mr.N.Manokaran, learned counsel for the appellant and
Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor appearing
for the respondent State.
7. At the outset, Mr.N.Manokaran, learned counsel for the appellant,
contended that a Division Bench of this Court has allowed the appeals in
Crl.A.No.424 of 2017 on 30.01.2018 that was filed by Sivakumar @
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CRL.A.No.125 of 2022
Ramesh and Crl.A.No.558 of 2019 on 29.07.2021 that was filed by
Vijayakumar against the judgment and order in Spl.S.C.No.9 of 2017 and
Spl.S.C.No.10 of 2017, respectively, by disbelieving the evidence of “X”
and therefore, the present appellant viz., Vijayakumar should also be given
the same benefit.
8. We find that the chief-examination of all the prosecution witnesses
is common to the four cases but only the cross-examination differs. The trial
Court cannot be faulted for adopting such a procedure in the peculiar facts
and circumstances of the present case. The defence has not disputed the age
of “X” nor other facts like the potency of the appellant. They have also not
disputed the inter se relationship of “X” with Meenakshi (P.W.1) and Vasuki
(P.W.15). The medical evidence does not, in any manner, implicate the
accused.
9. The whole prosecution case is posited on the testimony of “X”.
According to the complaint (Ex.P1), “X” spilled the beans to Meenakshi
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CRL.A.No.125 of 2022
(P.W.1) on 23.09.2016 when PW-1 brought her to her house during the post
quarterly examination holidays. “X” told Meenakshi (P.W.1) that one month
after she attained puberty, Sembulingam pulled her to his house saying that
he would give her chocolates, closed the door, removed her chudidhar and
sexually abused her; he further threatened her saying that she should not
disclose this to anyone; he also repeated this act four times later; four
months ago, while she was going to the fields for attending to the nature’s
call, Murugesan @ Murugan sexually abused her; he did this three times
later while she was on her way to ease herself; in the mean while, one day,
when she was playing with Aswathi in her house, when Aswathi went to the
rest room, her father Sivakumar @ Ramesh sexually abused her.
10. Coming to the allegations against the appellant, it was contended
that the evidence of P.W.1 is totally unbelievable, since she has stated that
“X” informed about the incident on 23.09.2016 and the complaint was given
on 25.09.2016. Whereas, it is clear from the evidence of P.W.17 that P.W.1
knew about the incident as early as on 18.09.2016 itself. That apart, P.W.15
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CRL.A.No.125 of 2022
stated that the incident had taken place on 25.09.2016. In the light of these
material contradictions, the manner in which the prosecution has projected
this case, has been questioned.
11. It was also brought to our notice that the most natural witness,
who could have spoken about the incident was Backiyalakshmi,
grandmother of “X” with whom she stayed and her father Santhanam.
Curiously, both of them were not examined by the prosecution. P.W.1, who
was only the aunt of “X”, has come forward to give a complaint, which
sounds doubtful and unnatural.
12. The evidence of P.W.7 and P.W.13 were also brought to the notice
of this Court, in order to understand the mental status of “X”, whose
intelligence quotient was found to be between 64 and 66 and “X” was
incapable of retaining in memory of the incidents for more than six months.
Hence, it was contended that “X” can be easily tutored and a reading of her
evidence shows that she was completely tutored by P.W.1.
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13. As mentioned supra, the chief-examination of all the prosecution
witnesses was common in all the four cases and only the cross-examination
differs. The evidence tendered by the witnesses was already appreciated by
this Court, in the earlier criminal appeals filed by Sivakumar @ Ramesh in
Crl.A.No.424 of 2017 and Vijayakumar in Crl.A.No.558 of 2019. It will be
more relevant to take note of the appreciation of the evidence that was
undertaken in Crl.A.No.424 of 2017, since the allegation is almost similar
and the appellant in the present case was stated to be the second person after
Sembulingam (A1), to have sexually assaulted “X”.
14. There is absolutely no clarity, as to when the incident took place
or where it actually took place. “X” is said to have attained puberty in the
year 2016 and the sexual assault is alleged to have been committed by four
accused persons thereafter. Individual sexual assault has been attributed
against each person and that is the reason why, the Court below has taken up
the case of each accused person independently.
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15. “X” was residing with her grandmother Backiyalakshmi and her
father Santhanam. If at all, such a serious crime had taken place against
“X”, they must be the one, who should have known about it and should have
taken action against the accused persons. Curiously, they are not even
examined on the side of the prosecution. This sounds completely unnatural.
P.W.1 claims to be a relative of “X” and she was the one, who had set the
law in motion by loding the complaint.
16. According to P.W.1, she took “X” to her house during quarterly
examination holidays and “X” narrated about the sexual abuse committed by
four accused persons. The narration of events is said to have been taken
place on 23.09.2016 and whereas, the complaint came to be filed only on
25.09.2016. The claim made by P.W.1 gets even more doubtful, since
P.W.17 has deposed that P.W.1 came to know about the incident as early as
on 18.09.2016 itself. This was also admitted by the Investigating Officer,
who was examined as P.W.22. The confusion gets confounded with the
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evidence of P.W.15, who stated that “X” spoke about this incident on
29.05.2016 itself.
17. In a case of this nature, the Courts are expected to act upon the
evidence of the victim girl and not to search for any corroboration, if the
evidence does not lack credibility. However, in the present case, the
evidence of the doctors viz., P.W.7 and P.W.13 shows that the intelligence
quotient level of “X” is below average and she is not even capable of
remembering things which happened six months back. Keeping the same in
mind, we have to necessarily assess her evidence with more care and
caution. While undertaking this exercise, this Court, in Crl.A.No.424 of
2017 and Crl.A.No.558 of 2019, has found that “X” has a poor intellectual
capacity and there is a possibility of tutoring her. That apart, the medical
examination of “X” does not reflect the fact that she was subjected to
repeated sexual assault by four persons. Even the medical officer, who was
examined as a witness was not able to give definite opinion, as to whether
“X” was subjected to repeated penetrative sexual assault.
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18. In the light of the above, it will not be safe to rely upon the
evidence of “X” and the same coupled with the patently contradicting
versions given by P.W.1, P.W.15 and P.W.17, it will be unsafe to sustain the
conviction of the appellant. We are aware of the fact that there is a reverse
burden provided under Sections 29 and 30 of the POCSO Act and hence,
there is a legal presumption against the accused persons. These
presumptions will come into operation, only when the prosecution places a
reasonably probable story before the Court and not otherwise. That apart,
this Court has appraised the evidence of “X”, P.W.1, P.W.15 and P.W.17 and
has given sound reasons for rejecting their testimonies.
19. In view of the same, we have to concur with those findings and
we are of the view that it will be highly unsafe to convict the appellant with
a grave crime, when the evidence available on record is wholly unreliable.
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In the result, this Criminal Appeal is allowed and the appellant is
acquitted of all the charges. The conviction and sentence imposed on the
appellant by the Additional Sessions Judge, Magalir Neethi Mandram (Fast
Track Mahila Court), Erode, in Spl.S.C.No.8 of 2017 vide judgment and
order dated 23.06.2017, are set aside. The appellant is directed to be
released forthwith, unless his presence is required in connection with any
other case.
[P.N.P., J.] [N.A.V., J.]
09.01.2023
Index : Yes/No
Internet : Yes
gya
To
1.The Additional Sessions Judge
Magalir Neethi Mandram (Fast Track Mahila Court)
Erode
(Spl.S.C.No.8/2017)
2.The Inspector of Police
All Women Police Station
Gobichettipalayam, Erode District
(Cr.No.6/2016)
3.The Superintendent
Central Prison, Coimbatore
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CRL.A.No.125 of 2022
P.N.PRAKASH, J.
AND
N.ANAND VENKATESH, J.
gya
4.The Public Prosecutor
Madras High Court
Chennai
CRL.A.No.125 of 2022
09.01.2023
https://www.mhc.tn.gov.in/judis
