Madras High Court
Ananthakumar vs The State on 29 September, 2023
Crl.A.(MD)No.417 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
AND
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Judgment Reserved On Judgment Pronounced On
20.09.2023 29.09.2023
Crl.A.(MD)No.417 of 2021
Ananthakumar, S/o.Murugan ... Appellant/Sole Accused
Vs.
The State, Rep. by the
The Inspector of Police,
Silaiman Police Station,
Madurai District. ... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of Cr.P.C., to call for
the entire records pertaining to the judgment and conviction delivered by the
learned Sessions Judge, Special Court for Exclusive Trial of Cases under
POCSO Act, Madurai, in Spl.S.C.No.107 of 2018, vide judgment, dated
29.07.2021, set aside the same and consequently, acquit the appellant
honourably from all the charges referred to in the above said case.
For Appellant : Mr.P.Samuel Gunasingh
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For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
JUDGMENT
M.NIRMAL KUMAR, J.
This appeal has been filed by the appellant/sole accused as against the
conviction and sentence, dated 29.07.2021, made in Spl.S.C.No.107 of
2018, by the learned Sessions Judge, Special Court for Exclusive Trial of
Cases under the POCSO Act, Madurai.
2. The appellant / sole accused stood convicted and sentenced to
undergo imprisonment as detailed hereunder:-
Conviction under Sentence Fine amount
Section
u/s.363 I.P.C. To undergo seven years To pay a fine of
rigorous imprisonment Rs.1,000/-, in default, to
undergo one year
rigorous imprisonment
u/s.5(m) r/w. 6 of the To undergo life To pay a fine of
Protection of Children imprisonment Rs.5,000/-, in default, to
from Sexual Offences undergo one year
Act, 2012 rigorous imprisonment.
The Trial Court further directed the appellant/accused to pay Rs.50,000/- as
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compensation to the victim child and ordered the sentences to run
concurrently. The accused/appellant challenging the legality of the
conviction and sentence awarded by the Trial Court, vide impugned
judgment, has filed this Criminal Appeal.
3. The case of the prosecution is that, the victim child [P.W.2], who
was aged about 6 years and was studying 1st Standard in a School at
Theppakulam, is the daughter of the de-facto complainant [P.W.1]. On
15.07.2016 at 19.00 hours, when the victim child was playing in front of the
house of one Alavudeen [P.W.5], situated at L.K.B.Nagar, the
appellant/accused on the pretext of giving chocolate, forcibly took her to his
house, removed her inner garment, inserted his fingers into her Vagina and
thereby, committed the offence.
4. The facts leading to the filing of this appeal, necessary for the
disposal of this criminal appeal, are as follows:-
4.1. P.W.I Mathina, who is a resident of Sakkimangalam, is having
one daughter [P.W.2], aged about 8 years and son, aged about 6 years. She
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deposed that on 15.07.2016 at 4.00 p.m., her daughter went out for play,
returned home at 07.00 p.m. and went to sleep after supper. On the next day
i.e., 16.07.2016 at 07.00 a.m., her daughter informed her that she had pain in
her private part. P.W.1 enquired her, for which, her daughter informed her
that an uncle [appellant/accused] on the pretext of giving a chocolate, took
her to his house, removed her inner garment and inserted his hand in her
private part. As she had pain, he had left her. P.W.1 enquired her as to
whether she knows his house, her daughter informed that she knows the
house, took P.W.1 to L.K.B. Nagar, and identified the house of the
appellant/accused. The appellant/accused came out of his house. Her
daughter identified him. Immediately, P.W.1 went to her house, gave a call
to her husband [P.W.3] and asked him to come home immediately. Her
husband informed her that they need not ask anything and that they could
lodge the complaint. As soon as her husband came, P.W.1 along with her
husband and daughter went to the Police Station and preferred the
complaint, dated 16.7.2016, which is marked as Ex.P.1. P.W.1 affixed her
signature in the complaint and her husband had also affixed his signature,
which is marked as Ex.P4. The Police came and enquired P.W.1 on the next
day. P.W.1 went along with her daughter for medical examination and also
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P.W.1 went along with her daughter to the Court while recording the
statement of her daughter. P.W.1 along with her husband produced Birth
Certificate of her daughter, in which, the date of birth of the victim child is
recorded as 14.04.2011. The copy of the birth certificate is marked as Ex.P.
4.2. P.W.2, who is the victim child, in her evidence, deposed that she
knows the accused. While she was studying 1st Standard, the
appellant/accused informed her that he would give her chocolate and took
her to his house, inserted his hand inside the inner garment. Thereafter, she
came back, played with her friends, came home, had supper and went to
sleep. In the morning, she informed her mother [P.W.1] that she is feeling
pain and about the appellant/accused taking her to his house. She took her
mother [P.W.1] and identified the house of the appellant/accused. P.W.1
gave a call to her father [P.W.3]. P.W.3 came at 2 O'clock and they went to
Silaiman Police Station. Thereafter, she was taken to the hospital. At that
time, her father, mother, grandfather, grandmother and aunt came there. The
victim child gave 164 Cr.P.C. statement before the learned Magistrate,
which was marked as Ex.P.3.
4.3. P.W.3, who is the father of the victim child, in his evidence
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deposed that P.W.1 is his wife and P.W.2 is his daughter. He knows the
appellant/accused. On 15.07.2016 when his daughter was playing in front of
the house after returning from School, the appellant/accused took his
daughter to his house, and inserted his hand inside her inner garment. Her
daughter (P.W.2) returned home, had supper and slept. On the next day
morning, his daughter informed his wife [P.W.1] that she has pain in her
Vagina. Immediately, his wife enquired his daughter, for which, his
daughter informed the incident to his wife and had taken her to the house of
the appellant/accused and identified his house. On that day, P.W.3 had
gone out for business. His wife gave him a call at 11.00 a.m. and reported
the incident. He returned home at 02.00 p.m. Thereafter, they went to the
Police Station. His wife lodged the complaint, in which, the contents were
written by the Police and read to him. He also had affixed his signature in
the complaint, which is marked as Ex.P4.
4.4. P.W.4 Paramasivam, who is a resident of Sakkimangalam and is
working as a carpenter, in his evidence, deposed that he knows the
witnesses P.W.1, P.W.2 and P.W.3 and he is residing three houses away
from the house of P.W.1. He knew the appellant/accused. On 15.07.2016
when the daughter of P.W.3 was playing in front of his house, the
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appellant/accused had taken her. On the next day, Police came and
examined him. He enquired P.W.3, who informed him that the
appellant/accused misbehaved with his daughter.
4.5. P.W.5 Alavudeen, who is a resident of Sakkimangalam, Madurai,
in his evidence, deposed that he knows P.W.I to P.W.4 and the
appellant/accused. On 15.07.2016, in the evening, while he was walking
towards the street, he saw the appellant/accused taking the victim child
along with him. On the next day, his wife informed him that the
appellant/accused has committed penetrative sexual assault on the victim
child and that she had identified the house of the appellant/accused.
Thereafter, they preferred the complaint before the Police Station.
4.6. P.W.6, Veerar Abdulla, who is a resident of L.K.B. Nagar,
Sakkimangalam, in his evidence, deposed that on 16.07.2016 at 05.30 p.m.,
All Women Police of Melur came and informed him that they are
investigating the case related to Silaiman Police Station. The Police
informed him that the appellant/accused committed sexual assault on the
victim child. The Police drew Rough Sketch and obtained his signature and
the signature of one Muthuraja. The Observation Mahazar is marked as
Ex.P.5.
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4.7. P.W.7 Manotha, Grade-I Police Constable in Karuppayurani
Police Station, in her evidence, deposed that in the year 2016, while she was
serving in Silaiman Police Station, on 16.07.2016 at 08.00 p.m., as per the
instruction of the Inspector of Police, she took the victim child, aged about
6 years, along with her mother to Government Rajaji Hospital, Madurai, for
medical examination. After completion of medical examination, she sent the
victim child along with her mother.
4.8. P.W.8 Dr.Thennarasi, Assistant Professor in Obstetrics and
Gynaecology Department, Government Rajaji Hospital, Madurai, in her
evidence, deposed that on 16.07.2016 while she was on duty, the victim
child, aged about 6 years, was brought to her for medical examination by
one Manotha, Police Constable (847), and her mother. She obtained consent
from the mother of the victim child and commenced the examination at
10.30 p.m. The victim child not attained puberty. During examination, the
victim child was conscious and not anaemic, her lungs and heart were
normal, her pulse was normal, the stomach portion was soft, there were no
bite marks, nail scratch marks over breasts, abdomen, face, thigh and
external genitalia and hymen was intact. The smear was taken and sent for
chemical analysis. P.W.8 issued Medical Certificate Ex.P.6.
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4.9. P.W.9 Dr.Rajavel, Assistant Professor, Department of Forensic
Medicine, Madurai Medical College, in his evidence, deposed that on
21.07.2016 while he was on duty, he received the requisition letter from the
learned Judicial Magistrate, Additional Mahila Court, Madurai, seeking
potential test for the appellant/accused, aged about 30 years. On
examination, it was found that the appellant/accused was moderately
nourished and moderately built, his physical and mental status were normal,
his primary and secondary sexual characters were well developed, there was
no evidence of external injuries or foreign bodies noted in and around his
private part or anywhere on the body and issued Ex.P.7 Medical Certificate.
P.W.9 opined as follows:-
(1) There is nothing to suggest that the appellant/accused is impotent;
(2) There is nothing to suggest that the appellant/accused is not fit for
sexual intercourse; and
(3) Semen, blood saliva, hair was collected, preserved and sent for
analysis.
4.10. P.W.11 Maheswari, Sub-Inspector of Police, in her evidence
deposed that on 16.07.2016 while she was on duty, one Mathina,
W/o.Mohammed Ussain belonging to Sakkimangalam appeared before her
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and preferred the complaint. She registered a case in Crime No.290 of 2016
under Section 9(m) r/w. Section 10 of the POCSO Act. The first information
report is marked as Ex.P.8. She sent the complaint and the first information
report to Additional Mahila Court and copies to the Police Officials and she
kept the case records for the perusal of the Inspector of Police.
4.11. P.W.12 Ambika, in her evidence, deposed that she voluntarily
retired from service in the year 2016 and is residing at Dindigul. Previously,
while she was serving as Inspector of Police, Melur, she received order from
the Superintendent of Police to investigate the case registered by
Maheswari, Sub-Inspector of Police, in Crime No.290 of 2016, Silaiman
Police Station under Section 363 I.P.C. and Section 9(m) r/w. Section 10 of
the POCSO Act. On 16.07.2016 she took up the case for investigation. On
the same day, at 05.30 p.m., she went to the place of occurrence and
prepared the Observation Mahazar (Ex.P.5) and Rough Sketch (Ex.P.9) in
the presence of the witnesses Veerar Abdulla [P.W.6] and Muthuraja. She
examined Mathina (P.W.1), victim child (P.W.2), Mohammed Ussain (P.W.
3), Paramasivam (P.W.4), Alavudeen (P.W.5), Veerar Abdullah (P.W.6) and
Muthuraja and recorded their statements. Thereafter, she sent the victim
child to Government Rajaji Hospital, Madurai, for medical examination
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through Manotha, Grade – I Police Constable (P.W.7) and Maheswari, Sub-
Inspector of Police (P.W.11). Dr.Thennarasi (P.W.8) had conducted
medical examination of the victim child on 16.07.2016. On 16.07.2016 at
19.00 hours, she arrested the appellant/accused at Kalmedu Bus Stand and
produced him before the learned Magistrate. On 20.07.2016, P.W.12 gave a
requisition letter to the learned Chief Judicial Magistrate to record 164
Cr.P.C. statement of the victim child. The requisition letter is marked as
Ex.P.10. P.W.12 made arrangements to produce the victim child before the
learned Judicial Magistrate, Fast Track Court No.I, Madurai. On
26.07.2016, the learned Judicial Magistrate recorded 164 Cr.P.C. statement
of the victim child. Thereafter, she gave requisition letter to conduct
medical examination for the appellant/accused. On 21.07.2016, Pandian,
Grade I Police Constable and Subburayan, Constable (P.W.10) produced the
appellant/accused from the Central Prison for medical examination before
the Government Rajaji Hospital, Madurai. Dr.Rajavelu (P.W.9) examined
the appellant/accused and issued medical certificate (Ex.P.7). At this stage,
P.W.12 voluntarily retired from service. The Inspector of Police, Silaiman
Police Station, had taken up the case for further investigation.
4.12. P.W.13 Pugalendi, Inspector of Police, in his evidence, deposed
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that he is serving as an Inspector of Police in Tirunelveli Town Police
Station. Previously, he served as Inspector of Police in Silaiman Police
Station. On 10.09.2016, he perused the records relating to Crime No.290 of
2016 registered under Section 9(m) r/w. Section 10 of the POCSO Act.
Ambika, the then Inspector of Police (P.W.12) conducted initial
investigation, arrested the appellant/accused and sent him and the victim
child for medical examination. He examined Manotha, Police Constable
(P.W.7), Pandian, Police Constable and Subburayan (P.W.10), who
produced the victim child and the appellant/accused for medical
examination and recorded their statements. P.W.13 examined Maheswari,
Constable (P.W.11) and recorded her statement. At this stage, as he was
transferred, he handed over the case records to the Police Station.
4.13. P.W.14 Dinakaran, in his evidence, deposed that on 25.10.2017
while he was serving as Inspector of Police, Silaiman Police Station, he had
taken up the case registered in Crime No.290 of 2016 for further
investigation. On 25.10.2017 P.W.14 examined Dr.Thennarasi (P.W.8),
who conducted medical examination of the victim child and recorded her
statement. On 24.11.2016 the chemical analysis report was received by the
Court, which is marked as Ex.P.11. The Forensic Science Report, dated
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29.07.2016, is marked as Ex.P.12. On 15.12 2017, P.W.14 examined the
Scientific Officer Vijayendran and recorded his statement. Again, on
28.02.2018, P.W.14 examined the Scientific Officer Vijayendran and
recorded his statement. On 15.03.2018 P.W.14 examined Dr.Rajavelu (P.W.
9), who conducted medical examination of the appellant/accused, received
the medical certificate and recorded his statement. On 15.03.2018, P.W.14
completed investigation and filed final report against the appellant/accused
under Section 363 I.P.C. r/w. Sections 9(m) and 10 of the POCSO Act.
4.14. After the completion of evidence, the Trial Court placed the
incriminating evidence against the appellant/accused under Section 313(1)
(b) of Cr.P.C. and the appellant/accused denied the same and examined
three witnesses on his side and marked exhibits Ex.D1 to Ex.D4.
4.15. The appellant/accused examined himself as D.W.I. He in his
evidence deposed that he is doing mason work and is residing at Door No.
2/542, L.K.B. Nagar, Sakkimangalam. There was a quarrel between two
Mosques. His wife was a tenant in one shop owned by Muthalif Bai Jamath
The opposite Jamath to the Muthalif Bai informed his wife to vacate the
shop, for which, his wife refused. On 16.07.2016, he was in Pandi Kovil
from 04.00 p.m. to 06.30 p.m. He was not aware of the name of the
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complainant. As per the instigation of the above said Jamath, a false
complaint has been lodged against him and moreover, he and his wife
refused to vacate the shop and were giving rent to Muthalif Bai Jamath and
were intimate with Muthalif Bai Jamath and hence, a false case had been
lodged against him.
4.16. D.W.2 Abdul Muthalif, who is the Vice President of Aljami
Jumma Masthith, in his evidence, deposed that he knows the
appellant/accused, who is a tenant in the shop belonging to the Mosque for
the past seven years. He pays rent once in three months or once in a year
and the monthly rent was Rs.600/-. The rival party of the Jamath issued a
notice to the appellant/accused to vacate the shop. D.W.2 had also issued
notice to him to pay the rent to him. The rival party of the Jamath had given
reply notice to the appellant/accused threatening him that he had been
harassing the women. The rental agreement entered by the
appellant/accused with the Jamath is marked as Ex.D.1. The notice issued
by him to the appellant/accused to remit the rent to his Administration is
marked as Ex.D.2. The rental receipt is marked as Ex.D.3. The reply notice
issued to the appellant/accused by the opposite party is marked as Ex.D.4.
At 03.30 p.m., D.W.2 asked the appellant/accused to give the rent, for
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which, the appellant/accused informed him that he would give the rent after
returning from the Temple. The opposite party to the Jamath threatened the
appellant/accused to vacate the shop and hence, a false case has been filed
against him.
4.17. D.W.3 Kasi Viswanathan, in his evidence, deposed that he
knows the appellant/accused. On 15.07.2016 he along with the
appellant/accused went to Pandi Kovil at 03.30 p.m. and returned at 06.45
p.m. and at that time, Muthalif Bai asked the appellant/accused to pay rent
for the shop, for which, the appellant/accused informed that he would give
the rent after returning from the Temple. On 15.07.2016 he along with the
appellant/accused was in Pandi Kovil from 03.30 p.m. to 06.45 p.m.
4.18. The Trial Court, on consideration and appreciation of oral and
documentary evidences and other materials, convicted and sentenced the
appellant/accused as stated above and hence, this appeal.
5. The learned counsel for the appellant submits that the Trial Court
completely ignored the evidence of P.W.8 Dr.Thennarasi, who examined the
victim child and deposed that there is no scratch or bite marks anywhere in
her body nor in her private part. He further submits that the learned Trial
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Judge went beyond the scope of the Expert evidence by interpreting the
deposition and the medical certificate (Ex.P.6) of P.W.8 Dr.Thennarasi as
any swelling, will remain only for 24 hours and that the medical
examination was conducted only after 24 hours, hence, there will not be any
swelling or any marks in the body of the victim child.
5.1. The learned counsel for the appellant further submits that the
conduct of the de-facto complainant (P.W.1) was found untrustworthy, as
she went to the house of the appellant/accused along with the victim child,
returned to her home, and called her husband (P.W.3) without even shouting
at the appellant/accused, which creates serious doubt regarding the conduct
of the de-facto complainant as well as the veracity of her complaint. He
further submits that the de-facto complainant (P.W.1) in her evidence,
deposed that the victim child (P.W.2) informed her about the incident only
on 16.07.2016 at 07.00 a.m., whereas the alleged occurrence is said to have
taken place on the previous day, i.e., 15.07.2016 at 04.00 p.m. Had the
occurrence taken place in the manner as alleged by the de-facto
complainant, the victim child might have felt the pain soon after she reached
home after the appellant/accused misbehaved with her, rather the victim
informing de-facto complainant, a day later, which creates doubts over the
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alleged occurrence.
5.2. The learned counsel for the appellant further submits that even
though there is presumption under Section 29 of the POCSO Act, the
appellant/accused himself deposed by explaining the clear motive against
him and the dispute in the Jamath, where the de-facto complainant and her
family members are members, which has been completely overlooked by the
Trial Court.
5.3. The learned counsel for the appellant further submits that the
offence under Section 363 I.P.C. is not made out. Even assuming that the
entire case of prosecution is found to be true as the victim child was
kidnapped by the appellant/accused even as per the version of the
prosecution, whereas it has been stated by the prosecution that the victim
child herself had gone along with the appellant/accused.
5.4. The learned counsel for the appellant further submits that the
motive between the appellant/accused and the rivalry in the Jamath had
been clearly established by the evidence of D.W.1 to D.W.3 and Exs.D.1 to
D.4 which the Trial Court completely failed to consider and hence, the
conviction and sentence awarded by the Trial Court are liable to be set
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aside.
5.5. In support of his contention, the learned counsel for the appellant
relied on the judgment of the Hon'ble Supreme Court in the case of Arbind
Singh vs. State of Bihar reported in 1995 Supp (4) SCC 416, wherein the
Hon'ble Supreme Court held that a child witness is prone to tutoring and
hence, the Court should look for corroboration particularly when the
evidence prone for tutoring and therefore, the appellant therein was entitled
to benefit of doubt.
6. The learned Additional Public Prosecutor submits that the
appellant/accused at the time of registration of F.I.R. on the complaint given
by the mother of the victim child, initially, charged for the offence under
Section 9(m) r/w. Section 10 of the POCSO Act. In this case, P.W.1 to
P.W.14 were examined and Ex.P.1 to Ex.P.12 were marked. The victim
child was aged about 6 years at the time of occurrence and the incident
occurred on 15.07.2016 at about 4 O'clock in the evening and the complaint
preferred on 16.07.2016. There is no delay in giving the complaint, since
the victim child informed the occurrence to her mother (P.W.1) only on
16.07.2016. Immediately, the mother of the victim child (P.W.1) gave a
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complaint. Hence, there is no delay in giving the complaint and registration
of the case. The appellant/accused kidnapped the victim child from the
custody of her parents with sexual intention to his house and committed
aggravated penetrative sexual assault on the child, who is below 12 years.
Hence, the Trial Court altered the charges already framed under Section 363
I.P.C. and Section 3 r/w. Section 4 of the POCSO Act to Section 363 I.P.C.
and Section 5(m) r/w. Section 6 of the POCSO Act.
6.1. The learned Additional Public Prosecutor further submits that all
the prosecution witnesses corroborated the evidence of the victim child that
the appellant/accused took the victim child to his house and the victim child
clearly evidenced the offence committed by the appellant/accused.
6.2. It is the contention of the learned Additional Public Prosecutor
that the evidence of the victim child (P.W.2), is cogent and convincing and
once the evidence of the victim child is found to be trustworthy and
believable, the same would be sufficient to hold that the appellant/accused
is guilty of the charges levelled against him, which the Trial Court held and
rightly too.
6.3. In fine, it is submitted by the learned Additional Public
Prosecutor that the appellant/accused has not probabilised his innocence.
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The Trial Court, on cogent and convincing reasons and based on oral and
documentary evidence, has found the appellant/accused guilty of the
charges levelled against him and rightly convicted and sentenced him and,
therefore, no interference is called for with the conviction and sentence
recorded by the Court below.
7. This Court carefully considered the submissions made on either
side and also perused the oral and documentary evidence, to which its
attention was drawn.
8. The case of the prosecution is that, on 15.07.2016, at 19.00 hours,
when the victim girl (P.W.2) was playing in front of the house of Alavudeen
(P.W.5), situated at L.K.B. Nagar, the appellant/accused on the pretext of
giving chocolate, forcibly took her to his house, removed her inner garment
and inserted his fingers into the vagina of the victim child and thereby,
committed penetrative sexual assault. Hence, the present case was
registered against the appellant.
9. As far as age proof is concerned, copy of Birth certificate of the
victim child was marked as Ex.P2, in which the date of birth of the child
mentioned as 14.04.2011 and the date of occurrence is 15.07.2016 and
therefore, at the time of occurrence, age of the victim child is about 6 years
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and she is a child under the definition of Section 2 (1) (d) of POCSO Act.
10. Coming to the commission of offence under Section 5(m)
punishable under Section 6 of the POCSO Act by the appellant/accused, the
victim child was examined as P.W.2 and her statement recorded under
Section 164 Cr.P.C. was marked as Ex.P3, in which the victim child has
stated that ''a person had inserted his fingers in her Panty''. On the next day
morning, the victim child shared about her pain in the private part and on
hearing the same, when P.W.1 enquired, the victim child narrated
everything. Further, when the victim child was examined as P.W.2 before
the Court below, she clearly stated about the incident.
11. The victim child (P.W.2) was produced before P.W.8 Doctor to
conduct medical examination and copy of medical examination report of the
victim child was marked as Ex.P6, in which, it is stated that the victim child
not attained puberty and she was conscious and not anaemic, her lungs and
heart were normal, her pulse was normal, the stomach portion was soft,
there were no bite marks, nail scratch marks over breasts, abdomen, face
thigh and external genitalia and hymen was intact.
12. It is contended by the learned counsel for the appellant that due to
tenancy dispute, to vacate her wife from the shop owned by Muthalif Bai
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Jamath, false case has been foisted against the appellant. Further, as per the
defence, the dispute was between two groups in the mosques. The
complaint filed by the mother of the victim child (P.W.1) and she narrated
everything in the complaint that on 15.07.2016, at 19.00 hours, when the
victim girl (P.W.2) was playing in front of the house of Alavudeen (P.W.5),
situated at L.K.B. Nagar, the appellant/accused on the pretext of giving
chocolate, forcibly took her to his house, removed her inner garment and
inserted his fingers into the vagina of the victim child. On the next day, the
victim child got pain in her private part and on enquiry, she informed about
the act of the appellant to P.W.1. Upon hearing the same, P.W.1 went to the
Police Station along with her husband and the victim child and filed the
complaint.
13. As far as the offence under Section 5(m) punishable under Section
6 of the POCSO Act is concerned, the victim child during recording
statement under Section 164 Cr.P.C., which is the earliest statement, has
stated that a person kept his hand in her inner garments, and the medical
evidence confirms that there was no external injury, no scratch mark over
external genitalia and no inflammation. The victim child being 6 years old,
had she felt pain, definitely she would have complained immediately.
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Crl.A.(MD)No.417 of 2021
Further, the victim child after the incident, continued her play, which defies
immediate response. It is an admitted fact that the appellant's daughter of
similar age was playing with the victim child. This Court, being an
Appellate Court, is a final Court of fact finding, which has to necessarily re-
appreciate the entire evidence and give an independent finding and while re-
appreciating the entire oral and documentary evidence produced before it,
finds that prosecution has failed to prove the offence under Section 5(m) of
the POCSO Act 'aggravated penetrative sexual assault'. However, from the
evidence of the victim child and Exs.P6 to P8, it is proved that the appellant
took the victim girl on the pretext of giving chocolate, removed her inner
garment and touched her private part and therefore, the act of the appellant
falls under Section 9(m) of the POCSO Act 'aggravated sexual assault',
which is punishable under Section 10 of the POCSO Act, since the victim
was below 12 years at the time of occurrence. It is to be seen that the Trial
Court traversed beyond the punishment provided, sentenced the appellant
for life, meaning for the remainder of his natural life as per Section 6 of the
POCSO Act, failed to consider the amendment to Section 6 of the POCSO
Act, come into the statute by Act 25 of 2019 w.e.f. 16.08.2019. Prior to the
amendment, as per Section 6 of the POCSO Act, a person, who commits
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Crl.A.(MD)No.417 of 2021
aggravated penetrative sexual assault, shall be punished with rigorous
imprisonment for a term, which shall not be less than ten years, but which
may extend to imprisonment for life and shall also be liable to fine. Hence,
the Trial Court awarding life imprisonment for remainder of natural life to
the appellant is not proper.
14. The Trial Court found the appellant guilty for the offence
punishable under Section 6 of the POCSO Act, but from the evidence of the
victim child (P.W.2), and Exs.P6 to P8, this Court finds that the appellant
committed the offence under Section 7 punishable under Section 8 of the
POCSO Act and since age of the victim child was below 12 years at the
time of occurrence, the offence falls under Section 9(m) punishable under
Section 10 of the POCSO Act, for which, minimum sentence is 5 years.
15. In fine, the judgment of conviction and sentence made by the
Trial Court is modified to the effect that the appellant is convicted for the
offence under Section 9(m) of the POCSO Act punishable under Section 10
of the POCSO Act and sentenced to undergo rigorous imprisonment for a
period of five years. Considering the fact that the appellant is only a
Mason, daily wage earner, and having four children of tender age, the
compensation amount of Rs.50,000/- directed to be paid by the appellant, is
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Crl.A.(MD)No.417 of 2021
modified to Rs.5,000/- and the said amount of Rs.5,000/- is directed to be
paid by the appellant to the victim girl towards compensation. As regards
the direction issued by the Trial Court, by following G.O.(Ms)No.33, Social
Welfare and Nutritious Meal Programme (SW5(2)) Department, dated
03.10.2020, directing the Government to pay Rs.5,00,000/- shall remain
unaltered. The Government is directed to pay the said compensation
amount to the victim child, within a period of two months from the date of
receipt of a copy of the judgment, if not already paid. The District Legal
Services Authority, Madurai, to take necessary action as per the judgment of
the Trial Court. In the event of non-compliance in payment of
compensation amount, the victim or her parents can approach this Court for
disobedience of the order of this Court by filing appropriate petition.
16. With regard to conviction under Section 363 I.P.C., the conviction
and sentence of the Trial Court stands modified to five years rigorous
imprisonment and the fine amount of Rs.1,000/- awarded by the Trial Court
shall remain intact. This Criminal Appeal is partly allowed. All the
sentences are directed to run concurrently and the period of imprisonment
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Crl.A.(MD)No.417 of 2021
already undergone by the appellant/accused shall be given set-off under
Section 428 Cr.P.C.
Index : Yes/No (M.S.R., J.) (M.N.K., J.)
Internet: Yes/No 29.09.2023
Neutral Citation: Yes/No
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Copy to:-
1.The Principal Secretary,
Government of Tamil Nadu,
Social Welfare and Women Empowerment Department,
Secretariat, Chennai-600 009.
2.The Director of Social Defence,
Chennai.
3.The District Collector,
Madurai.
4.The District Child Protection Officer,
Madurai.
5.The Superintendent of Police,
Madurai.
6.The Secretary,
Tamil Nadu District Legal Services Authority,
Madurai.
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Crl.A.(MD)No.417 of 2021
To
1.The Sessions Judge,
Special Court for exclusive Trial of Cases under POCSO Act,
Madurai.
2.The Inspector of Police,
Silaiman Police Station,
Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD)No.417 of 2021
M.S.RAMESH, J.
AND
M.NIRMAL KUMAR, J.
smn2
Pre-delivery judgment made in
Crl.A.(MD)No.417 of 2021
29.09.2023
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