Madras High Court
Viji @ Vijay vs State By Its on 28 November, 2023
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.1006 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.1006 of 2023 and
Crl.M.P.No.18262 of 2023
Viji @ Vijay,
S/o.Nagappan ... Appellant
Vs.
State by its
Inspector of Police,
Villianur Police Station,
Puducherry.
(Crime No.42/2020). ... Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure
Code, to allow the above appeal and set aside the conviction and sentence
imposed upon the appellant vide judgment dated 24-01-2023 in
Spl.S.C.No.68/2020 on the file of the Special Judge at Puducherry (under
the POCSO Act, 2012) Principal Sessions Judge, Puducherry, and acquit the
appellant and direct the trial Court to refund the fine amount in the interest
of justice.
For Appellant : Mr.G.Mohana Krishnan
For Respondent : Mr.K.S.Mohandass,
Public Prosecutor, Puducherry
assisted by Mrs.Dhanalatchoumy
Page No.1 of 16
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Crl.A.No.1006 of 2023
ORDER
This Criminal Appeal has been filed by the appellant/A1 to set aside
the impugned judgment, dated 24.01.2023 in Special Sessions Case No.68
of 2020 passed by the learned Special Judge (Under the POCSO Act, 2012),
Principal Sessions Judge, Puducherry (trial Court).
2.The conviction and sentence passed by the trial Court against the
appellant/A1 and her mother/A2 are as follows:
● For offence under Section 366 IPC, the appellant/A1 is convicted and
sentenced to undergo seven years Rigorous Imprisonment and to pay
a fine of Rs.1,000/- in default to undergo Simple Imprisonment for six
months.
● For offence under Section 344 IPC, the appellant/A1 is convicted and
sentenced to undergo two years Rigorous Imprisonment and to pay a
fine of Rs.1,000/- in default to undergo Simple Imprisonment for six
months.
● For offence under Section 9 of the Prohibition of Child Marriage Act,
2006, the appellant/A1 is convicted and sentenced to undergo one
year Rigorous Imprisonment.
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● For offence under Section 6 of the Protection of Children from Sexual
Offence Act, 2012, the appellant/A1 is convicted and sentenced to
undergo twenty years Rigorous Imprisonment and to pay a fine of
Rs.5,000/- in default to undergo Rigorous Imprisonment for six
months. All the sentences were ordered to run concurrently.
● For offence under Section 11 of the Prohibition of Child Marriage Act,
2006, A2 is convicted and directed to pay a fine of Rs.5,000/-.
3.The case of the prosecution is that in this case, the victim (PW2), a
school minor girl was kidnapped by the appellant from the lawful
guardianship of her parents during October 2019 near Malliga Theatre,
Villianur, Puducherry by giving false promise to marry her and taken her to
his residence at Chennai, tied Thali in presence of his mother/A2. From then
on, the victim girl was confined in the appellant's house nearly five months.
During this period, the appellant committed penetrative sexual assault on her
on several occasions. Thereafter, PW1, the mother of the victim girl went to
the house of the appellant, but she was not allowed to meet her daughter,
chased away. PW1 was helpless, later she informed the child helpline. On
one occasion, when the victim girl came to Puducherry to collect her school
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certificates, the officials from the child helpline enquired and confirmed that
the victim girl was minor and she was subjected to penetrative sexual
assault. Hence, a complaint (Ex.P1) was lodged with the respondent Police
who registered FIR (Ex.P11), arrested the appellant and his mother/A2,
recorded the statement of the victim girl, her mother, produced the victim
girl before the learned Magistrate, statement under Section 164 Cr.P.C.,
recorded confirming that she was a minor and she was subjected to
penetrative sexual assault. Thereafter, the victim girl produced before the
Doctor/PW6. During medical examination, the victim girl's pregnancy
confirmed. Later on the advice of the Doctor and the child helpline and with
the consent of PW1 and PW2, the fetus aborted.
4.Thus, the appellant knowing fully well that the victim girl was a
minor, committed the offence punishable under Sections 363, 364 of IPC
and Section 9 of the Prohibition of Child Marriage Act, 2006 and Section 6
of the Protection of Children from Sexual Offence Act, 2012 and A2
committed the offence punishable under Section 11 of the Prohibition of
Child Marriage Act, 2006.
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5.During trial, on the side of the prosecution, eleven witnesses
examined as PW1 to PW11 and fourteen documents marked as Exs.P1 to
P14 and one Material Object marked. On the side of the defence, no witness
examined and no document marked. The trial Court on the evidence and
materials produced convicted the appellant/A1 and A2 as stated above.
6.Though the appeal was listed for Suspension of Sentence, later both
the learned counsel for the appellant as well as the Public Prosecutor,
Puducherry agreed for taking up the main appeal in view of the victim girl
attains majority and she confirms that the appellant is her husband and the
parents of the victim girl as well as the appellant all confirmed that both of
them attain marriageable age, and they had no objection for the marriage
and also filed affidavit to that effect which was verified by the learned Public
Prosecutor through the respondent Police who confirmed the same. Hence,
the present Criminal Appeal has been taken up for final disposal.
7.The learned counsel for the appellant submitted that admittedly, the
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victim girl and the appellant were in love affair and they were having regular
touch and contact with each other. This relationship was initially objected
by the PW1, mother of the victim girl. Thereafter, the appellant's parents
and family members approached PW1 for marriage. Though she was
agreeable for the same, but informed that the appellant and his family have
to wait for four years for the marriage since the victim girl was school going
child. But the mother of the victim girl/PW1 made arrangement of the
marriage of victim girl with an elderly person against her wish. On coming
to know about the same, the victim girl informed the appellant about the
same and asked him to rescue her and take her away, otherwise she would
take drastic step even to end her life. Fearing for life and well being, the
appellant having no other option, came to Puducherry and rescued her. This
has been termed as kidnap. During the stay, the appellant and the victim
girl had physical relationship which is now termed as penetrative sexual
assault/rape.
8.The learned counsel further submitted that when the case of the
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prosecution is that the appellant and the victim girl were in regular touch
through mobile phone, no mobile phone seized and no call details collected
to confirm the same. The Doctor/PW6, who examined the victim girl, stated
that there is no sign or recent sexual intercourse and there was no injury or
marks to show any violent act of the appellant. The marriage is said to have
taken place inside the house of the appellant in presence of his mother/A2 is
also not proved in the manner known to law. None from Nochikuppam,
Chennai where the victim girl and the appellant is said to have lived
together, were examined to prove the same. He further submitted that there
have been inordinate delay in lodging the complaint, no explanation given
for the same. Without prejudice to his contention on merits, the appellant
filed affidavit from the Central Prison, Puducherry with an undertaking that
he would marry the victim girl and marriage would be registered with the
registration authorities. A2, the mother of the appellant confirmed the same
and also filed affidavit to that effect. PW1, the mother of the victim girl
confirmed that the victim girl completed 19 years and now, she is of the
marriageable age and the marriage will be conducted between the appellant
and her daughter. PW1 enquired with her daughter/PW2 and confirmed
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that during the stay with the appellant in Chennai, she was taken care well
by the appellant and his mother/A2, she is also comfortable to reside with
them, the victim girl is also very firm that she wants to continue the
relationship with the appellant and lead a happy family life. The victim
girl/PW2 confirmed that she completed 19 years of age and the love and
affection showered by the appellant and his mother and she is willing to get
married with the appellant.
9.The learned counsel for the appellant relied upon the decision of the
Hon'ble Apex Court and submitted that in a similar situation the Apex Court
in the case of “K.Dhandapani vs. State by the Inspector of Police reported
in 2022 SCC Online SC 1056”, considered the subsequent events and
observed that the Court cannot shut its eyes to the ground reality and disturb
the happy family life of the appellant and the prosecutrix. Hence, he prayed
for setting aside the conviction and sentence imposed by the Trial Court.
10.The learned Public Prosecutor, Puducherry appearing for the
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respondent Police submitted that on the complaint of the child helpline, an
FIR (Ex.P11) registered, the victim girl was enquired, she confirmed that she
was a minor school going child and she had love affair with the appellant.
Taking advantage of the relationship, she was enticed and kidnapped by the
appellant to Nochikuppam, Chennai where in the house of the appellant, he
tied Thali and confined her for five months. At that time, the appellant
committed penetrative sexual assault on the victim girl, due to which, she
became pregnant. After registration of the case, the victim girl and her
mother/PW1 was produced before the learned Magistrate and statements
under Section 164 Cr.P.C., recorded. Thereafter, the victim girl produced
before the Doctor/PW6 who confirmed her pregnancy. Later, fetus aborted.
He further submitted that the victim girl was minor at the time of occurrence
has been confirmed by PW1 and PW2, which is not seriously disputed by
the learned counsel for the appellant. Though PW1 and PW2 in chief
examination confirmed the case of the prosecution, later they disowned their
earlier statements and chief examination in cross examination. The trial
Court finding that the cross examination is done five months after the chief
examination, hence, not considered the same and on the medical evidence
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and the earlier statements, convicted the appellant and his mother/A2 as
stated above.
11.The learned Public Prosecutor fairly submitted that on the
affidavits filed by the appellant, his mother/A2, victim girl and her
mother/PW1, the respondent Police enquired with all concerned and
confirmed that both the appellant and the victim girl are now at the
marriageable age. Both the families agreed for the same. In view of the
subsequent development considering the welfare and future of the appellant
and the victim girl to live as husband and wife, this Court can decide the
appeal.
12.This Court considered the submissions and perused all the
materials available on record and also the affidavits filed.
13.It is seen that PW2 is the victim girl and PW1 is her mother. The
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love affair between the appellant and the victim girl is not denied at any
point of time. The only objection was that the victim girl was a school going
child and she has to complete her education and to attain the marriageable
age, thereafter, PW1, the mother of the victim was willing to give in
marriage to the appellant. But due to the precarious age and due to
physiological change, both the appellant and the victim took such extreme
step and they were lived together as husband and wife for quite sometime.
Admittedly, the marriage between the appellant and the victim girl took
place in Pooja room of the house of the appellant on 06.11.2019, for which
no evidence available. The only charge against the mother of the
appellant/A2 is conducting the marriage between the appellant and the
victim girl. As regards the appellant is concerned, he took the victim girl to
his house at Nochikuppam, Chennai, tied Thali and committed penetrative
sexual assault knowing fully well that she was a minor at the time of
occurrence.
14.Admittedly, none from Nochikuppam, Chennai examined as
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witness to prove that the appellant and the victim girl were residing there.
But the victim girl's statement before the learned Magistrate and the medical
records confirmed that the victim girl was a minor at the time of occurrence
and she was found pregnant by PW6/Doctor. Both the victim girl/PW2 and
her mother/PW1 in cross examination denied their earlier statements both
under Section 164 Cr.P.C., and chief examination, now supporting the
appellant.
15.Now, PW1/mother of the victim girl, and A2/mother of the
appellant/A2 appeared before this Court in person and produced their
affidavits confirming that they are ready to conduct marriage between the
appellant and the victim girl/PW2. The victim girl/PW2 also appeared
before this Court and filed affidavit that she is willing to marry the appellant.
The affidavits filed by them verified by the respondent Police and confirmed
that both the families are willing to conduct marriage between the appellant
and the victim girl.
16.The Hon'ble Apex Court in K.Dhandapani's case had considered
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the subsequent events and observed that the Courts cannot shut its eyes to
the ground reality and disturb the happy family life of the appellant as well
as the victim girl. In view of the same, this Court is of the view that allowing
the appellant and the victim girl to continue to have marriage and lead a
happy family life would be the real justice. Further, the act of the appellant
and the victim girl was due to the change of hormones and due to their
innocence not knowing the seriousness and repercussion.
17.In view of the above, the conviction and sentence imposed on the
appellant in Spl.S.C.No.68 of 2020, dated 24.01.2023 by the learned Special
Judge (Under the POCSO Act, 2012), Principal Sessions Judge, Puducherry
are hereby set aside. The appellant is acquitted from all the charges levelled
against his and he is directed to be released forthwith, if he is not required in
any other case. Fine amount, if any, paid shall be refunded. Bail bond, if
any, executed shall stand cancelled.
18.The mother of the appellant/A2 though not filed any appeal against
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her conviction under Section 11 of the Prohibition of Child Marriage Act,
2006, the benefit of the appellant is also granted to her mother/A2. The
conviction under Section 11 of the Prohibition of Child Marriage Act, 2006
is set aside and fine amount paid by the petitioner shall be refunded.
19.In the result, the Criminal Appeal stands allowed. Consequently,
connected M.P. is closed.
28.11.2023
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
Internet: Yes/No
vv2
To
1.The Special Judge (under the POCSO Act, 2012),
Principal Sessions Judge,
Puducherry.
2.The Inspector of Police,
Villianur Police Station,
Puducherry.
3.The Central Prison,
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Puducherry.
4.The Public Prosecutor,
Puducherry.
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M.NIRMAL KUMAR, J.
vv2
28.11.2023
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