M.Rubi vs The Inspector Of Police
2023 Latest Caselaw 7025 Mad

                                                                           Crl.A(MD)No.175 of 2017


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Date : 26.06.2023


                                                      CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                         Crl.A.(MD)No.175 of 2017

                     M.Rubi                          ... Appellant/Defacto Complainant

                                                           vs.

                     1.The Inspector of Police,
                       All Women Police Station,
                       Palayamkottai,
                       Tirunelveli District.
                       (Crime No.17 of 2013).         ... 1st Respondent/Complainant

                     2.K.Alagesan                     ... 2nd Respondent/Accused


                     PRAYER : Criminal Appeal has been filed under Section 372 of
                     Cr.P.C., to set aside the Judgment of acquittal passed in S.C.No.5 of
                     2014 on the file of the learned Mahila Court, Tirunelveli, dated
                     29.10.2015 and convict the accused.


                                  For Appellant            : Mr.G.Karuppasamy Pandian

                                  For R - 1                : Mr.T.Senthil Kumar
                                                               Additional Public Prosecutor

                                  For R – 2                : Mr.G.Kannan




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https://www.mhc.tn.gov.in/judis
                                                                        Crl.A(MD)No.175 of 2017




                                                 JUDGMENT

This Criminal Appeal has been preferred as against the

order of acquittal passed in S.C.No.5 of 2014, dated 29.10.2015, on

the file of the learned Mahila Judge, Tirunelveli, thereby acquitted

the second respondent for the offence under Section 452 of I.P.C

and Section 4 of the POCSO Act.

2.The case of the prosecution is that on 01.09.2013, at

about 04.30 p.m., when the victim girl was alone in her house,

when her mother had gone to Church for prayer, the accused had

taken advantage of the circumstances and trespassed into the

house of the victim girl. Thereafter, he removed her dress and

committed penetrative sexual assault on the minor victim girl aged

about 8 years. When the cable TV operator entered into the house,

the accused ran away from the scene of crime. It was informed to

her mother and immediately lodged the complaint.

3.On receipt of the said complaint, the respondent

registered the F.I.R in Crime No.17 of 2013 for the offences under

Sections 4 and 6 of the Protection of Children from Sexual Offences

Act. After completion of the investigation, the respondent filed a

final report and the same has been cognizance by the trial Court for

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.175 of 2017

the offence under Section 452 of I.P.C and under Section 4 of the

Protection of Children from Sexual Offences Act in S.C.No.5 of 2014

on the file of the learned Mahila Judge, Tirunelveli.

4.On the side of the prosecution, they had examined

P.W.1 to P.W.15 and marked Exs.P.1 to P.13 and on the side of the

accused, no one was examined and no documents were marked in

order to disprove the case of the prosecution.

5.On perusal of both oral and documentary evidence,

the trial Court found the second respondent/accused not guilty for

the offence under Section 452 of I.P.C and under Section 4 of the

Protection of Children from Sexual Offences Act. Aggrieved by the

same, the defacto complainant preferred the present revision.

6.The learned counsel appearing for the appellant would

submit that the minor victim girl, aged about 8 years, was examined

as P.W.2. She categorically deposed that the accused trespassed

into her house and removed her shirt. Thereafter, he committed

penetrative sexual assault by his penis and by his finger on the

victim girl. In fact, during her cross-examination, nothing was

elucidated by the accused. The victim's evidence was duly

corroborated by P.W.1, P.W.3 and P.W.4. Though P.W.5, the cable T.V

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.175 of 2017

operator turned hostile, it is not fatal to the case of the prosecution,

since the victim girl categorically deposed to prove all the charges

as against the accused. There was absolutely no contradiction in the

victim's evidence, even then the trial Court mechanically acquitted

the accused on the ground that the victim herself contradicted her

version by two views. The Doctor, who examined the victim girl, was

examined as P.W.13. According to the trial Court, P.W.13 also failed

to support the case of the prosecution, since the minor victim girl

was not found with any external injury on her private part and her

hymen was also intact. In the case of penetrative sexual assault,

the hymen need not be ruptured and external injuries are not

required in order to prove the offence under Section 4 of the

Protection of Children from Sexual Offences Act. Section 3(b) of the

POCSO Act is very clear that if the accused inserts, to any extent,

any object or a part of the body, not being the penis, into the

vagina, it constituted the offence under Section 3 of the POCSO Act.

Further, the victim's evidence is the best evidence and it need not

be corroborated by any other evidence. The contradiction pointed

out by the trial Court is not a contradiction since the victim girl

categorically deposed that first, he committed penetrative sexual

assault by penis and thereafter, by his finger. Therefore, the trial

Court ought to have convicted the accused.

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7.The second respondent filed a counter-affidavit before

this Court through the present counsel on record. However, on

21.06.2023, the learned counsel, who entered appearance on behalf

of the second respondent filed a memo stating that he has been

appointed as Additional Government Pleader and as such, he could

not able to appear on behalf of the second respondent and he has

withdrawn his appearance on behalf of the second respondent.

8.The Junior counsel appearing for the second

respondent/accused would submit that the prosecution failed to

prove any of the charges beyond any doubt. The case of the victim

girl was also not supported by Doctor, who examined the victim girl.

The Doctor was examined as P.W.13 and she found that there was

no external injury and the victim's hymen was intact. Further, he

submitted that the Cable TV operator entered into the house of the

victim when the alleged occurrence happened immediately and the

accused flew away. The cable TV operator was examined by the

prosecution as P.W.5 and he turned hostile and failed to support the

case of the prosecution Therefore, the trial Court rightly acquitted

the second respondent and the same does not warrant any

interference by this Court.

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.175 of 2017

9.Per contra, the learned Additional Public Prosecutor

would submit that the victim girl categorically deposed about the

occurrence and it is also supported by P.W.1, P.W.3 and P.W.4.

Therefore, the trial Court ought to have convicted the second

respondent.

10.Heard the learned counsel appearing on either side

and perused the materials available on record.

11.The second respondent is the sole accused and he

was charged for the offence under Section 452 of I.P.C and Section

4 of the POCSO Act. The victim girl was aged about 8 years at the

time of occurrence. On perusal of the deposition of P.W.1 revealed

that on 01.09.2013 when the victim was alone in the house, the

accused trespassed into her house and removed her dress.

Thereafter, he committed penetrative sexual assault by his penis

and thereafter, by his finger into the vagina of the victim girl.

Immediately, the victim girl raised a hue and cry due to intolerable

and unbearable pain. In turn, the accused gagged her mouth with

his hand. Thereafter, the cable TV operator entered into the house

and scolded the accused. He had flown away from the scene of the

crime. Immediately, the mother of the victim girl came from the

Church and the occurrence was duly explained by the victim.

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Immediately, she informed her mother and sister. Even during the

cross-examination of the victim, nothing was elucidated by the

accused. The victim girl categorically and cogently deposed about

the occurrence.

12.The victim girl's mother was examined as P.W.1. On

perusal of the deposition of P.W.1 also revealed that whatever was

deposed by the victim girl, the same was informed to her mother

and sister. Immediately, she lodged the complaint. On the

complaint, the respondent registered the F.I.R in Crime No.17 of

2013. Immediately, the victim girl was subjected for a medical

examination. On 01.09.2013 at about 10.30 p.m., the victim girl's

statement was recorded in the accident register, which was marked

as Ex.P.9. It is also duly corroborated the version of the victim girl.

13.The Doctor, who examined the victim girl, was

examined as P.W.13. On perusal of the deposition of P.W.13 revealed

that there was no injury on the victim's body and also her private

parts. Since she did not attain puberty, she was not subjected for

other tests related to her fitness for physical relationship. She also

opined that her hymen was not ruptured. However, she also

deposed that when the victim was subjected for penetrative sexual

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assault it is not compulsory to rupture her hymen. She issued a

wound certificate, which was marked as Ex.P.10.

14.In order to prove the age of the victim girl Ex.P.2

was marked through the Headmistress, P.W.7. She categorically

deposed that the victim girl was studying 3rd standard during the

academic year 2013-2014 and as per the School records her date of

birth was 31.10.2005. Her certificate was marked as Ex.P.2 and the

extract of the admission ledger was marked as Ex.P.3. Further the

grandmother of the victim girl and parental aunt of the victim girl

were examined as P.W.3 and P.W.4. They also categorically and

cogently deposed that they received a phone call from P.W.1 about

the occurrence. Therefore, the prosecution categorically proved its

case beyond any doubt. The trial Court acquitted the accused only

on the ground that Doctor P.W.13 is not supported the case of the

prosecution and self-contradiction in the victim's deposition.

15.On perusal of the deposition of the victim girl

revealed that first the accused committed penetrative sexual assault

by his penis and thereafter, by his finger and it would not amount to

any self-contradiction. She categorically and cogently deposed that

the accused committed penetrative sexual assault on the victim girl.

Therefore, the order of acquittal passed in S.C.No.5 of 2014, dated

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.175 of 2017

29.10.2015, on the file of the learned Mahila Court, Tirunelveli, is

liable to be set aside. The second respondent is liable to be

convicted for the offence under Section 452 of I.P.C and under

Section 4 of the POCSO Act.

16.Accordingly, the Judgment passed in S.C.No.5 of

2014, dated 29.10.2015, on the file of the learned Mahila Court,

Tirunelveli, is set aside. The second respondent is convicted for the

offence under Section 452 of I.P.C and Section 4 of the POCSO Act.

In respect of the sentence is concerned, as required under Section

235(2) of Cr.P.C., questioning about the sentence an effective and

substantive opportunity to be given for being heard on the question

of sentence, but when minimum sentence prescribed, then no need

to give any opportunity to the accused while imposing sentence,

therefore, the second respondent does not require any opportunity

with regard to questioning of sentence. Hence, the second

respondent is sentenced to undergo 3 years Rigorous Imprisonment

for the offence punishable under Section 452 of I.P.C and sentenced

him to undergo 7 years Rigorous Imprisonment for the offence

punishable under Section 4 of the POCSO Act and to pay a fine of

Rs.50,000/- and in default to undergo 3 months Rigorous

Imprisonment. The fine amount paid by the second

respondent/accused shall be permitted to withdraw by the victim.

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.175 of 2017

The sentences shall run concurrently. The second

respondent/accused is entitled to set off the period, if any, already

undergone by him. The trial Court is directed to secure the accused

to serve the period of sentence.

26.06.2023

NCC : Yes/No Index: Yes/No Internet: Yes ps

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.175 of 2017

To

1.The Mahila Court, Tirunelveli.

2.The Inspector of Police, All Women Police Station, Palayamkottai, Tirunelveli District.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.175 of 2017

G.K.ILANTHIRAIYAN , J.

ps

Crl.A.(MD)No.175 of 2017

26.06.2023

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