Madras High Court
R.Babu vs State on 14 August, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
Crl.A.No.781 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 14.08.2024
CORAM : JUSTICE N.SESHASAYEE
Crl.A.No.781 of 2018
and Crl.M.P.No.14949 of 2022
R.Babu ... Petitioner
Vs.
State, rep. by
The Inspector of Police
All Women Police Station
Denkanikottai
Krishnagiri District
(Crime No.13/2016) ... Respondent
Prayer: Criminal Appeal is filed under Section 374 Cr.P.C. to set aside the
conviction and sentence imposed in Spl.S.C.No.53 of 2016 dated 22.10.2018
on the file of the learned Sessions Judge, Fast Track Mahalir Court at
Krishnagiri.
For Petitioner : Mr.R.Sankarasubbu
For Respondent : Dr.C.E.Pratap
Government Advocate ( Crl. Side)
Assisted by Ms.J.R.Archana
JUDGMENT
https://www.mhc.tn.gov.in/judis
This appeal is preferred challenging the judgment in Special S.C.No.53 of
2016, on the file of the learned Sessions Judge, Fast Track Mahalir Court,
Krishnagiri, dated 22.10.2018 convicting the appellant/accused for offences
U/s. 450 I.P.C., Section 5 (k) (l) r/w 6 of POCSO Act, 2012 and Section 9 (k)
(i) r/w 10 of POCSO Act, 2012. The accused was sentenced for maximum of
10 years for the offence U/s.5 (k) (l) r/w 6 of POCSO Act, 2012 along with a
fine of Rs.2,500/-. He was sentenced to relatively lower punishments for other
offences, and the sentences were directed to run concurrently.
2.The case of the prosecution opens with Ex.P1, complaint, lodged by PW1 on
27.08.2016. It narrates as follows:
➢ On the previous day of the complaint viz. 26.08.2016, at about 16:00
hours, when PW2 (wife of PW1) and PW3 (daughter in law of both PW1
& PW2) entered their house, they found the appellant lying on the victim
girl, aged about 14 years with difficulty in speech, and on seeing PW2
and PW3, the appellant pushed them aside and ran away. When they
approached the victim, they found the clothing of the victim girl torn and
there were nail marks with oozing blood on the cheeks and the breast of
the child.
https://www.mhc.tn.gov.in/judis
➢ Receiving Ex.P1, PW15, the Inspector of Police, registered Ex.P13,
F.I.R for the offence U/s.9 (k) r/w Section 10 of the POCSO Act, and
commenced the investigation. She visited the scene of occurrence and
prepared Ex.P14, Observation Mahazar and Ex.P15, rough sketch. She
also seized the dress material of the victim girl which she was wearing at
the time of occurrence under Ex.P16, Form 95 (MO1). She would then
arrange for a medical examination of the victim girl.
➢ The victim was first examined by PW8 and she came out with her Ex.P7,
Accident Register. The Accident Register shows the following injuries:
i. scratch marks 4 x 1 cm over LP chest region
ii. nail marks over 3 x 1 cm over the RP clavicular region
iii. scratch marks 3 x 1 cm over the LP cheek
iv. nail marks over 4 x 1 cm over the RP forearm
➢ Then she forwarded the victim girl to PW16, the gynaecologist attached
to the hospital. On examining the victim girl, she found the same set of
injuries which are noted in the Accident Register. She had also obtained
vaginal smear and forwarded the same to forensic examination. The
preliminary report of PW16 is Ex.P20. The forensic department
forwarded its Ex.P19 report, as per which the vaginal smear did not
contain any spermatozoa. Then PW16 proceeded to give her final
opinion (Ex.P21), wherein she has stated that notwithstanding the
https://www.mhc.tn.gov.in/judis
absence of spermatozoa in the vaginal smear, it could not be said that
there could not have been a penetrative sexual assault.
➢ The investigating officer also subjected the victim girl to dentist's
examination to ascertain the age of the victim. Accordingly, PW9
examined the girl and provided his Ex.P8 report, as per which the age of
the girl was fixed approximately at 14 years.
➢ The girl was also produced before the jurisdictional magistrate for
recording her statement under Section 164 Cr.P.C. which was later
marked during trial as Ex.P6. After completing her investigation, the
investigating officer filed her Ex.P17, alteration report on 28.09.2016 to
include offence U/s.5 (k)(l) r/w 6 of POCSO Act. She again filed her
second alteration report vide Ex.P22 dated 26.10.2016 to include Section
451 I.P.C., Section 5(k)(l) r/w. Section 6 and Section 9(k)(i) read with
Section 10 of POCSO Act, and 506(ii) I.P.C. and finally laid a charge
sheet.
➢ The trial Court then proceeded to frame charges against the accused
U/s.450 I.P.C., Section 5(k)(l) read with Section 6 and Section 9 (k)(i)
r/w Section 10 of POCSO Act.
https://www.mhc.tn.gov.in/judis
The appellant denied the charges.
3.The matter went to trial, during which prosecution examined PW1 to PW17,
some of whom have already been introduced in the narration above. It has also
produced Ex.P1 to Ex.P22, and again some of the documents critical to the
prosecution case have already been introduced. It has also produced MO1, the
dress material of the victim girl. The defence did not examine any witnesses
on its side.
4.Post trial, on an evaluation of the evidence before it, the trial Court convicted
the appellant and sentenced him as below:
Accused Offence Sentence imposed
U/s.450 I.P.C. R.I. for 10 years and a fine of Rs.2,500/-
in default to undergo R.I. for 1 year.
U/s.5(k)(l) r/w 6 of R.I. for 10 years and a fine of Rs.2,500/-
Accused
POCSO Act, 2012 in default to undergo R.I. for 1 year.
U/s.9(k)(i) r/w 10 of R.I. for 5 years and a fine of Rs.1,000/-
POCSO Act, 2012 in default to undergo R.I. for 10 months.
This judgment is now under challenge.
5.The learned counsel for the appellant made the following submissions:
a) the age of the victim girl which is critical for invoking POCSO Act
https://www.mhc.tn.gov.in/judis
is inconclusive, since only the dentist's report was relied on without
the X-ray. Admittedly, the victim girl had studied upto 3rd standard
and hence there should have been a birth certificate and the
prosecution did not care to produce the same.
b) Neither the evidence of PW6 nor her statement given before the
learned Magistrate U/s.164 Cr.P.C. nor the testimonies of PW2 and
PW3, the alleged two eye witnesses to the occurrence speak anything
about penetrative offence and this is corroborated by Ex.P7, Accident
Register as well as Ex.P20, report of the PW16, gynaecologist. When
there is no penetrative offence, the appellant ought not to have been
convicted for offence U/s.5(k)(l) read with Section 6 of POCSO Act,
2012.
(c) So far as the alleged offence U/s.450 of IPC or Section 9(k)(i) r/w.
Section 10 of POCSO Act are concerned, there has been previous
enmity between the accused and PW1's family over a cock crossing
over from appellant's house to PW1's house, and it is the cock that has
created the cause, responsible for the scratch marks and it was
wrongly attributed to the appellant.
https://www.mhc.tn.gov.in/judis
6.Per contra, the learned Government Advocate (Crl. Side) submitted:
a) It is not in dispute that the victim girl (PW6) had difficulty in speech
and even her testimony was recorded by the trial Court with the help
of PW7, the speech therapist. PW16 finds that the hymen of the
victim girl was not intact. Both PW1 and PW2 testify that the girl
cannot walk alone and when she attempts to walk, she has a tendency
to fall. While tearing of hymen by itself may not be a conclusive
proof of any sexual intercourse, given the fact that this girl who is not
a school going child, and not into any sports activity because of her
difficulty in walking, it would be difficult to concede that her hymen
could have been torn in any other way except penetrative sexual
assault.
b) So far as the defence version explaining the scratches or injuries
denoted in Ex.P7, Accident Register and Ex.P20, report of the
Gynaecologist, it is a plain cock and bull story. Here the testimony of
the victim girl, PW2 and PW3 are consistent.
c) Inasmuch as the occurrence had taken place inside the house of the
victim girl, Section 450 I.P.C. instantly invites house trespass.
https://www.mhc.tn.gov.in/judis
7. This Court weighed rival submissions carefully. What gets proved
unassailably is that the appellant had perpetrated sexual assault on this hapless
child, which the scratch marks on her cheeks, breast and about the shoulder
portion establish. However, there is very little evidentiary material to support
the finding of the trial Court that there has been a penetrative assault on the
victim. The statute makes each category of sexual assault as distinct offences,
and has also provided distinct ingredients for constituting them. Therefore,
unless there is substantial evidence to hold that there definitely has been a
penetrative offence, the benefit of doubt necessarily may have to be given to
the accused.
8. Turning to proof, the victim girl had not deposed anything to suggest that
there could have been a penetrative sexual assault on her. Nor P.W.2 and
P.W.3 speak to it. In this context, neither P.W.7 nor P.W.16 find any injury
anywhere about the private parts of the victim girl. And P.W.14 who
examined the appellant also did not notice any abrasions or any injuries to the
genital of the appellant. However, the learned prosecutor argued that it has
been found that the hymen of the victim girl was not intact and that it lets in
two fingers easily. While the finger test is abhorrent in civil society,
https://www.mhc.tn.gov.in/judis
something which the Supreme Court has deprecated few times, this Court does
not want to rely on the same. Turning to the hymen, the mere fact that it was
not intact does not lead to a definite conclusion that there has been a
penetrative sexual assault. If hymen was torn during the incident, that would
have led to some injuries which P.W.7 and P.W.16 could not have missed
during their observation of the victim girl. It is therefore quite possible the
hymen might have torn even earlier and there can be very many reasons for the
same. Therefore, this Court may not be able to appreciate the argument of the
learned Prosecutor pitching her proof of penetrative offence, merely on the
medical report that the hymen of the victim girl was not intact. And, P.W.16's
opinion that there could have been a penetrative assault on the victim cannot be
appreciated, for an expert opinion needs existence of basic facts which should
fit well to substantiate the prosecution case.
9. To sum up, this Court finds that the conviction of the trial Court for offence
under Section 5(k)(l) r/w.Section 6 of POCSO Act is not sustainable, whereas
the conviction for offence under Section 9(k)(i) r/w.Section 10 of POCSO Act
deserves to be upheld. Turning to conviction of the appellant under Section
https://www.mhc.tn.gov.in/judis
450 IPC is concerned, inasmuch as this Court has found that the appellant is
not guilty of any penetrative sexual assault as to invite a life-term under
Section 6 of POCSO Act, this Court has to modify the conviction to one under
Section 451 IPC, for which the maximum sentence is only for two years, if the
offence is not one of commission of theft.
10. Turning to the sentence part of it, the trial Court has imposed five years
rigorous imprisonment for offence under Sec.9(k)(i) r/w. 10 of POCSO Act.
And so far as the offence under Section 450 IPC viz., house-trespass, stands
established, the appellant could be convicted only under Section 451 of IPC,
for which he could be sentenced only for a maximum period of two years. If both
the sentences were to run concurrently, then the maximum period for which the
appellant could suffer the sentence is only five years of rigorous imprisonment.
11.1 In conclusion, this appeal is partially allowed and this Court confirms the
conviction and sentence imposed on the appellant by the Session Court for
offence under Section 9(k)(i) r/w. Section 10 of POCSO Act and modifies the
conviction for offence under Section 450 IPC into one under Section 451 IPC
and imposes the penalty of two years rigorous imprisonment.
https://www.mhc.tn.gov.in/judis
11.2 In terms of this judgment, the maximum sentence which the appellant
could undergo is five years. Today this Court is informed that he is undergoing
sentence from 22.10.2018, the date of the judgment of the trial Court till now.
This implies that the appellant had been in jail, longer than the maximum
period of sentence imposed on him. Since the appellant has already undergone
imprisonment for a term exceeding five year period, he is required to be set
free forthwith. Consequently, connected miscellaneous petition is closed.
14.08.2024
Note : Registry is required to communicate this judgment to the trial Court as
well the prison concerned forthwith.
Index : Yes / No
Neutral Citation : Yes / No
kas/ds
N.SESHASAYEE.J.,
ds
To:
1.The Sessions Judge
Fast Track Mahalir Court
Krishnagiri.
2.The Inspector of Police
All Women Police Station
Denkanikottai
Krishnagiri District.
https://www.mhc.tn.gov.in/judis
14.08.2024
https://www.mhc.tn.gov.in/judis
