Madras High Court
Anandan @ Manavari Anandan vs State Rep. By on 2 August, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
Crl.A.No.384 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.06.2024
Pronounced on 02.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.A.No.384 of 2019
Anandan @ Manavari Anandan ...Appellant
Vs.
State rep. by
The Inspector of Police,
All Women Police Station,
Uthukottai, Tiruvallur District. ...Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to set aside the conviction and sentence imposed on the
Appellant by the Magalir Neethimandram (Fast Track Mahila Court),
Tiruvallur dated 25.02.2019 made in Special Sessions Case No.17 of
2017 and acquit the appellant herein.
For Appellant : Mr.S.Manoharan
For Respondent : Mr.E.Raj Thilak,
Additional Public Prosecutor
JUDGMENT
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M.S.RAMESH,J.
The appellant herein has been convicted and sentenced to the
following imprisonment, through the judgment of the learned Sessions
Judge, Magalir Neethimandram Tiruvallur, dated 25.02.2019, passed in
Special Sessions Case No.17/2017:-
“The accused is guilty of the offences
punishable u/s 5(m) r/w 6 of Protection of Children
from Sexual Offences Act, 2012 and Section 506(i) of
IPC. This Court convicted the accused u/s 5(m) r/w 6
of Protection of Children from Sexual Offences Act,
2012 and sentenced him to undergo LIFE
imprisonment and also imposed a fine of Rs.10,000/-
in default sentenced to undergo six month rigorous
imprisonment and the accused is convicted u/s 506(i)
of IPC and sentenced him to undergo one year
rigorous imprisonment.
The sentences imposed u/s 5(m) r/w 6 of
POCSO Act 2012 and u/s 506(i) of IPC shall run
concurrently. The period of detention already
undergone if any is ordered to be set off u/s 428 of
Cr.P.C.”
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2. The aforesaid judgment is under challenge in the present appeal.
For the sake of convenience, the parties to the appeal are addressed
according to the rank in the trial Court.
3. The case of the prosecution is that the victim girl was born on
21.09.2008 and was aged about 9 years at the time of occurrence, when
she was studying 4th Standard at Panchayat Union Primary School,
Ellapuram. On 12.04.2017, when the victim's mother was combing her
daughter's hair, she discovered some nail marks behind the right ear of
the victim girl. When questioned, the child narrated that on 10.04.2017 at
about 08.30 A.M., after her mother had gone to work at Ambattur and
when she was alone at her home, the accused carried the victim girl to the
bedroom of the house and put her on a cot and thereafter had pressed his
penis on her vagina. When the victim girl started crying, the accused
threatened her that he will kill her if she discloses the incident to her
mother. The victim's mother had then given a written complaint to the
Inspector of Police, All Women Police Station, Uthukottai on 12.04.2017
at 09.30 P.M., which came to be registered in FIR.No.02/2017, dated
12.04.2017 against the accused for the offences under Section 376(1)
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IPC, Section 6 read with Section 5(m) of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') and
Section 506(i) of Indian Penal Code (IPC). On completion of the
investigation, a final report was laid for the like offences.
4. Before the trial Court, the incriminating circumstances in the
charges framed against the accused were read over, to which he had
pleaded that he was “not guilty”. In order to prove the charges against the
accused, the prosecution had examined 15 witnesses P.W.1 to P.W.15 and
marked 10 documents Exs.P.1 to P.10. On the side of the defence, no oral
or documentary documents were let in.
5.1. The evidences let in by the prosecution before the trial Court
are as follows:-
5.2. P.W.1, namely Nirmala, who is the mother of the victim girl,
had narrated the incident that was informed to her by her daughter. She
had then given a written complaint (Ex.P.1) with the help of her
neighbors before the Police.
5.3. P.W.2 is the victim girl, who in her evidence has stated that she
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was studying 5th Standard. On the date of the incident, after her mother
had gone to work, the accused had come inside the house and lifted her
and after putting her on the bed, he had removed her panties and kept his
penis on her vagina and pressed it. When she cried in pain, the accused
had threatened her that if she discloses the incident to anybody, he would
kill her and then left the house. Thereafter, she had locked her house and
went to the school crying. She further states that she returned home in the
evening and did not disclose about the incident to anybody and started to
play. On the next day, when her mother enquired about the scratch marks
behind her right ear while she was combing her daughter's hair, the victim
girl narrated the sexual assault by the accused. Her mother had then
informed the neighbors. It is her further submission that her mother had
took the help of someone and recorded a complaint in the Police Station.
Thereafter, she states that she was taken to the hospital, as well as before
a Judge at Tiruvallur, who enquired her. The statement that she had given
before the Judge under Section 164 of the Criminal Procedure Code
(hereinafter referred to as 'Cr.P.C.') was marked as Ex.P.2. When the
curtains in the in-camera proceedings were partially lifted, she had
identified that it was the accused who assaulted her earlier.
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5.4. P.W.3, P.W.4 and P.W.5 are the close relatives of P.W.1, who
are hearsay witnesses to the incident.
5.5. P.W.6, namely Nagaraj, and P.W.7, namely Suresh, were the
witnesses to the observation mahazar and the signatures therein were
marked as Ex.P.3 and the rough sketch was marked as Ex.P.4.
5.6. The accused was arrested in the presence of Balaji (P.W.8) and
Prakash (P.W.9), who were standing near Thamaraipakkam Cross Road
for their personal work.
5.7. P.W.10 is the Headmistress of the School in which the victim
girl was studying and the bonafide certificate, evidencing her Date of
Birth as 21.06.2008, was marked as Ex.P.5.
5.8. P.W.11, namely Arumugam, is the Head Constable, who took
the accused to General Hospital for conducting potency test and the
doctor, who had issued the accident register copy of the accused (Ex.P8)
and the potency certificate (Ex.P.9), holding that there was no evidence
against the accused to be impotent, was examined as P.W.13.
5.9. P.W.12 is the doctor, who had issued the accident register of
the victim girl (Ex.P.6) and after examining her, had given the sexual
offence certificate (Ex.P.7). According to P.W.12, the victim girl had no
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injuries on her body and that there was no trace of any sexual assault on
her body.
5.10. P.W.14, namely Shanthi, is the Head Constable, who had
taken the victim girl to P.W.12.
5.11. P.W.15 is the Investigating Officer and the FIR (Ex.P.10)
registered in this case was marked through her. According to P.W.15, on
registration of the FIR, she had examined several witnesses and had
arrested the accused on 13.04.2017 at 11.30 A.M. Thereafter, she had
obtained the confession statement of the accused and took steps to
remand him. She had then examined the other witnesses, including the
Headmistress of the School and the doctor, who had examined the victim
girl and recorded their statements. She had then sent the accused for
medical checkup on 20.04.2017 along with the Head Constable. On the
same day, she had also produced the victim girl before the Judicial
Magistrate and recorded her statement under Section 164 Cr.P.C. On
completion of the investigation, she had filed the final report.
6. The learned counsel appearing on behalf of the accused
submitted that apart from the evidence of P.W.2, there are no other
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evidence connecting the accused to the crime. He submitted that while
P.W.1 is the mother of P.W.2, P.W.3, P.W.4 and P.W.5 are her close
relatives and all of them are hearsay witnesses and hence, much
credibility cannot be given to their testimonies. He also submitted that
from the evidence of the doctor (P.W.12), it is established that there was
no sign of any sexual assault and therefore, in the absence of any other
material to corroborate the version of P.W.2, who has also made
contradictory statements in her testimony and her version to P.W.1, as
well as her statement under 164 Cr.P.C. He further submitted that there
was a dispute touching upon the loan obtained by P.W.1 in her flower
business, when the accused refused to stand as a surety for P.W.1 and
therefore, with this grudge, a false case has been concocted.
7. Per contra, the learned Additional Public Prosecutor submitted
that the victim, who was born on 21.06.2008, was aged about 9 years
only at the time of occurrence. Even though there are minor discrepancies
in her version to her mother and in the oral testimony, as well as in the
Section 164 Cr.P.C. statement, the same would not totally discredit her
testimony. He submitted that though the doctor (P.W.12), who had
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examined the victim, had certified that she was not subjected to sexual
assault, the medical examination was after three days and therefore, no
adverse conclusion could be arrived at based on the sexual offence
certificate (Ex.P.7).
8. We have given careful consideration to the submissions made by
the respective counsels.
9. P.W.2 was studying in 4th Standard at Panchayat Union Primary
School, Ellapuram, She was born on 21.06.2008 and as per the evidence
of P.W.10, who is the Headmistress of the School in which P.W.2 was
studying, her Date of Birth is established through a bonafide certificate
(Ex.P5). The defence has not cross examined P.W.10 to disprove the age
of P.W.2. Thus, in our considered view, the prosecution has clearly
established that as on 10.04.2017, P.W.2 was aged about 9 years and is a
child within the definition under the POCSO Act.
10. The occurrence is said to have taken place on 10.04.2017 and
P.W.2 had informed her mother P.W.1 about the incident on 12.04.2017.
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P.W.1 had given a complaint (Ex.P.1) to the Police on 12.04.2017 at 09.30
P.M., which was registered as FIR (Ex.P.10) in Crime No.2/2017 by
P.W.15. The registered FIR was dispatched to the Judicial Magistrate on
13.04.2017 at 06.30 P.M. As per the version of P.W.2 to P.W.1, which was
reproduced in the form of a complaint (Ex.P1), it is stated that on
10.04.2017 at 08.30 A.M., the accused had carried P.W.2 and put her on
the bed and had pressed his penis on her vagina forcefully, owing to
which P.W.2 started crying. The accused had threatened her not to
disclose the incident to her mother, failing which he would kill her. In her
oral testimony before the Trial Court, P.W.2 had stated that after her
mother had left for work, the accused had lifted her and put her on the
bed and kept his penis on her vagina and pressed it. When she had cried,
the accused caused a threat to her. In the oral testimony of P.W.1, she
claims that on 12.04.2017, P.W.2 had told her that on the day of incident,
the accused had kept his penis on her vagina and pressed it. She then has
stated that she inspected her vagina and found it to be swollen. In the
statement made by P.W.2 under Section 164 Cr.P.C., P.W.2 had stated that
the accused had kept and took away his penis on her vagina and that
nothing else happened on the morning of 12.04.2017. P.W.12 is the
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doctor, who had issued the accident register (Ex.P.6). According to her
statement, when she had examined P.W.2 on 13.04.2017 at 11.15 A.M.,
her medical condition was normal and that there was no injury on her
lips, chest portion, inner thighs or her vagina. She also had issued the
accident register (Ex.P.7), certifying that there was no trace of any sexual
assault.
11. From the aforesaid discussion of evidence, it would be clear
that the evidence of the doctor, who had made entries in the accident
register (Ex.P6) would suggest that there was no evidence of sexual
offence on the victim. The doctor had further noted that there were no
injuries in the lips, both mammary area, medial side of the thigh and there
were no injuries in any other parts of the body. The doctor had noted a
minimal abrasion over the right external ear. The injury is said to have
been caused by 'sexual assault by a known person'. The earliest version
which came two days after the occurrence, only suggests that there was a
sexual assault and there were no information relating to penetrative
sexual assault or evidence suggesting any sexual offence.
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12. Section 3 of the POCSO Act inter alia provides that the offence
of penetrative sexual assault would be said to have been committed after
a person penetrates his penis, to any extent, into the vagina of a child.
13. In the case of State of U.P. Vs. Babul Nath reported in (1994)
6 SCC 29, the Hon'ble Supreme Court, while interpreting the term
'penetration', had held that in order to constitute the offence of rape, it is
not at all necessary that there should be complete penetration of the male
organ and even a partial or slightest penetration of the male organ within
the labia, majora or the vulva or pudenda with or without any emission
of semen, would amount to penetration.
14. We also find from the evidence of P.W.2 that though she
originally has stated that after the accused has committed sexual assault
on her and left, she had locked the house and went to school and she was
normal till 12.04.2017, when she narrated the incident to her mother.
However, in her cross examination, she has stated that after the incident
on 10.04.2017, she did not go to school at all. She has also stated in her
testimony before the trial Court that the accused is already known to her
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and whenever he passes by the street of her house and finds the children
playing there, he used to affectionately caress all the children and that on
10.04.2017 also, the accused affectionately touched her ears and left from
there. Though such a statement casts a doubt as to whether the incident
could have occurred in the manner alleged by the prosecution, we are of
the view that a sexual assault committed by the appellant, has been
established by the prosecution.
15. The Hon'ble Supreme Court has time and again dealt with the
reliability on the testimony of a child witness and in several cases,
including the case in Panchhi Vs. State of U.P. reported in (1998) 7 SCC
177, had held that the evidence of a child witness must be evaluated more
carefully and with greater circumspection because a child is susceptible
to be swayed by what others tell her and thus, a child witness is an easy
prey to tutoring. It was further observed therein that the evidence of a
child witness must find adequate corroboration before it is relied upon.
16. Thus, from the oral evidences of P.W.1 and P.W.2 and from the
medical evidence of P.W.2, what could be safely inferred is that the
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accused had indeed committed sexual assault on the child, but the assault
cannot be termed to be as 'penetrative sexual assault', as defined under
Section 3 of the POCSO Act.
17. It could also be seen that the charge against the accused for the
offence under Section 5(m) read with Section 6 of the POCSO Act was
only based on the evidences of P.W.2 and P.W.1, along with the medical
evidence of P.W.12. When there was no iota of allegation that the accused
had committed the act of penetration even to the smallest extent, we are
unable to endorse the views of the trial Court that the accused had
committed the offence of penetrative sexual assault, punishable under
Section 6 of the Act. On the other hand, when the evidences otherwise go
to show that there was an act of sexual assault, since the accused had
touched his penis on the vagina of P.W.2, the offence under Section 7 of
the POCSO Act would be attracted. When admittedly P.W.2 was less than
12 years and the accused has committed a sexual assault on her, the same
would amount to an aggravated sexual assault, punishable under Section
9(m) of the Act.
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18. We are of the view that for commission of such an offence, the
accused could be punished and sentenced to undergo a period of five
years imprisonment under Section 10 of the Act.
19. Insofar as the offence under Section 506(i) IPC, for which the
accused was found guilty and sentenced to undergo one year rigorous
imprisonment, is concerned, it is the consistent statement of P.W2 that at
the time of incident, when she had cried, the accused caused a death
threat to her, if she discloses about the incident to her mother. P.W.2 had
also informed her mother about the threat caused to her by the accused.
P.W.1, in turn, had recorded this part of the statement made to her by
P.W.2 in her complaint (Ex.P.1), as well as in her oral testimony. The
defence could not discredit this portion of the evidence let in against the
accused. As such, we do not find any infirmity or illegality in the finding
of the trial Court, holding the accused guilty for the offence under Section
506(i) IPC and the consequential sentence imposed for the same.
20. For all the foregoing reasons, the judgment passed by the
Magalir Neethimandram (Fast Track Mahila Court), Tiruvallur, dated
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25.02.2019 in Special Sessions Case No.17 of 2017, insofar as it has
found the accused/ appellant guilty of having committed the offence
under Section 5(m) read with 6 of the POCSO Act, is set aside and the
accused is acquitted from this offence. Consequently, this Court finds the
accused/appellant guilty of having committed the offence under Section
9(m) read with Section 10 of the POCSO Act and accordingly, the
accused is convicted and sentenced to undergo five years of rigorous
imprisonment, together with fine of Rs.10,000/-, in default of which he
shall undergo six months of further rigorous imprisonment. The
conviction of the accused/appellant by the trial Court for the offence
under Section 506(i) IPC stands upheld. The sentences imposed under
Section 9(m) read with Section 10 of the POCSO Act, as well as for the
offence under Section 506(i) IPC, shall run concurrently. The period of
detention already undergone by the appellant is ordered to be set off
under Section 428 Cr.P.C.
21. In the result, the Criminal Appeal stands partly allowed.
[M.S.R.,J.] [S.M.,J.]
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02.08.2024
Index:Yes
Neutral Citation:Yes
Speaking order
hvk
To
1.Magalir Neethimandram
(Fast Track Mahila Court),
Tiruvallur
2.The Superintendent of Prisons,
Central Prison, Puzhal.
3.The Inspector of Police,
All Women Police Station,
Uthukottai, Tiruvallur District.
4.The Public Prosecutor,
High Court of Madras.
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M.S.RAMESH, J.
and
SUNDER MOHAN, J.
hvk
Pre-delivery judgment made in
02.08.2024
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