Madras High Court

N.Balamurugan vs State on 9 January, 2024

                                                                           CRL.A(MD).No.39 of 2022


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            Reserved on     : 20.12.2023
                                           Pronounced on : 09.01.2024

                                                     CORAM

                           THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

                                            Crl.A(MD)No.39 of 2022

                     N.Balamurugan                              .. Appellant/Sole Accused

                                                      Vs.


                     State, rep. by
                     The Inspector of Police,
                     Rajapalayam South Police Station,
                     Virudhunagar District.
                     (Crime No.760/2017)                        .. Respondent/Complainant


                     Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C. to

                     call for the records and set aside the Judgment and Conviction dated

                     08.12.2021, by the Special Court For Exclusive Trial of Cases Under the

                     Protection of Children from Sexual Offences Act, 2012, Virudhunagar at

                     Srivilliputhur in Spl.S.C.No.18 of 2018 and acquit the Appellant.




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https://www.mhc.tn.gov.in/judis
                                                                               CRL.A(MD).No.39 of 2022


                                       For Appellant     : Mr.R.L.Dhilipan Pandian
                                                           for Mr.D.Rajaboopathy

                                       For Respondent    : Mr.T.Senthil Kumar
                                                           Additional Public Prosecutor


                                                       JUDGMENT

The appellant, who is the sole accused in Spl.S.C.No.18 of 2018

on the file of the Special Court for POCSO Act cases, Srivilliputhur,

filed this criminal appeal challenging the conviction and sentence

imposed against him by the Special Court for POCSO Act Cases,

Srivilliputhur. The learned trial Judge convicted the appellant for the

offence under Sections 417, 366 IPC and Section 6 r/w 5(l) of the

POCSO Act and sentenced him to undergo 7 years imprisonment and a

fine of Rs.1000/- for the offence under Section 366 IPC; to undergo one

year imprisonment and a fine of Rs.1000/- for the offence under Section

417 IPC; and to undergo 7 years imprisonment and a fine of Rs.1000/-

for the offence under Section 6 r/w 5(l) of the POCSO Act, 2012.

2. The case of the prosecution is that the respondent police

registered a case against the appellant in Crime No.760 of 2017 on

16.10.2017 on the allegation that the appellant kidnapped the victim girl

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took her to Othakuthirai Village, Gopichettipalayam, Tiruppur District. In

the said village, he took a rental house from PW.8 and married the victim

girl and had sexual intercourse with her. Thereafter, he dropped the

victim girl in her village. In the meantime, PW.1, the father of the victim

girl lodged a complaint before the jurisdictional police. The same was

registered in Crime No.760 of 2017 for 'girl missing'. Thereafter, PW.1

produced the victim girl before the respondent police and the respondent

police conducted the medical test and altered the offence into Sections

417, 366, 376 (2 counts) IPC and Section 6 r/w 5(l)(2 counts) of the

POCSO Act, 2012. Thereafter, the respondent police arrested the

appellant and completed the investigation and filed the final report before

the learned trial Judge. The learned trial Judge taken the final report on

file in Spl.S.C.No.18 of 2018. The learned trial Judge issued summons to

the accused and after his appearance, served the copies under Section

207 Cr.P.C. Thereafter, he framed necessary charges and questioned the

accused. The accused pleaded not guilty and hence the trial commenced

against the accused.

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3. To prove the case, the prosecution examined PW.1 to PW.12 and

Ex.P1 to Ex.P15. The learned trial Judge thereafter questioned the

accused under Section 313 Cr.P.C by putting the relevant question and

the accused denied the same as false and thereafter, the case was posted

for examination of the witnesses on the side of the accused. The accused

neither produced any documents nor examined any witnesses on his side.

4. The learned trial Judge, on considering the evidences and

witnesses, convicted and sentenced the appellant for the offence as stated

supra and he acquitted the appellant for the offence under Section 9 of

the Prohibition of Child Marriage Act. Aggrieved over the same, the

appellant preferred this appeal.

5. The learned counsel for the appellant submitted that the victim

girl gave 164 Cr.P.C statement before the learned trial Judge and in the

said 164 Cr.P.C statement, she did not disclose any penetrative sexual

assault and the marriage. Further, she did not depose about the

kidnapping done by the appellant. But in the evidence before the Court,

she deposed that the appellant committed penetrative sexual assault in

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the said village of Gobichettipalayam. The said evidence of the victim

girl is not trustworthy in view of the above said improvement over the

164 Cr.P.C statement. Hence, her evidence is to be supported with

sufficient corroboration. In this case, there was no corroboration. The

medical evidence stated that there was no injury on the part of the victim

girl and also there is no recent penetrative sexual assault. In the said

circumstances, the conviction under Section 6 of the POCSO Act is not

maintainable. The learned counsel for the appellant further submitted that

in view of the absence of the evidence to prove that the appellant

kidnapped the victim girl for the purpose of having sexual intercourse

and marriage is not proved, the conviction passed under Section 366 IPC

is not legally valid. In the said circumstances, he seeks for acquittal. He

further submitted that the trial Judge acquitted the accused under

Section 9 of the Prohibition of Child Marriage Act. In that event, the

conviction under Section 417 and 366 IPC is not made out. Hence, he

argued that the learned trial Judge committed error in convicting the

appellant.

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6. The learned Additional Public Prosecutor countered the

argument of the learned counsel for the appellant and made the following

submission.

6.1. The prosecution proved the charges framed against the

appellant through the evidence of the victim girl and the evidence of the

Doctor. The alleged kidnapping and stay at Gopichettipalayam is proved

through the evidence of PW.8 and hence, the prosecution clearly proved

the offence under Sections 417 and 366 IPC. The evidence of the victim

girl that there was penetrative sexual assault by the appellant is proved

through her evidence apart from the evidence of the Doctor. Hence, he

seeks for confirmation of the conviction and sentence passed by the trial

Judge.

7. This Court has Court has considered the rival submissions made

by either side and perused the records and also the precedents relied upon

by them.

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8. In this case, the prosecution is duty-bound to prove the

following foundational facts:

(i)the appellant kidnapped the victim with false promise to her

from the custody of P.W.1.

(ii)The appellant married the victim girl to attract the offence

under Section 9 of the Prohibition of Child Marriage Act.

(iii)The appellant committed aggravated penetrative sexual assault.

9. Proof of the offence under Section 417 of IPC

The victim is more than 17 ½ years at the time of the occurrence.

Even as per the evidence of the victim girl and the other documents, the

victim girl and the appellant loved each other. It is the specific case of

the prosecution that the appellant kidnapped the victim girl to marry her.

Therefore, he took the victim girl to the Othakuthirai Village,

Gopichettipalayam, Tiruppur District and tied Thali and consummated

the marriage with her. Thereby, he committed offence under Section 9 of

the Prohibition of the Child Marriage Act. According to the the finding of

the learned trial Judge, the marriage was not proved in accordance with

law and hence, he acquitted the appellant from the charge framed under

Section 9 of the Prohibition of the Child Marriage Act. In view of the

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above said finding, the conviction under Section 417 of IPC is not legally

maintainable.

10.Proof of Aggravated Penetrative Sexual Assault:

According to the prosecution, the appellant kidnapped the victim

girl on 16.10.2017. He tied Thali at Pillaiyar Kovil, Othakuthirai Village,

and resided in P.W.8's house. In the said house, he committed aggravated

penetrative sexual assault till she parted company with the appellant on

01.11.2017. The victim girl gave 164 Cr.P.C., statement before the

learned Judicial Magistrate on 02.11.2017. The statement is as follows:

,uh[ghisak; Nrj;Jhh; NrTf ghz;bad;

muR Nky;epiyg;gs;spapy; 12 k; tFg;G gbj;Jf;nfhz;bUf;fpNwd;. 16.10.2017 k; Njjp fhiy 10.00 kzpf;F ,uh[ghisaj;jpypUe;J jpUg;Gh; ehDk; ghyKUfd; vd;gtUk; g]; Vwp NghNdhk;. mq;fpUe;J Nfhgpf;F gf;fKs;s xl;lFepiu vd;w ,lj;jpw;F Ngha; thliff;F FbapUe;Njhk;. 21.10.2017 k; Njjp mq;Fs;s gps;isahh; Nfhtpypy; itj;J jpUkzk;

nra;Jnfhz;Nlhk;. md;wpypUe;J 01.11.2017 k;

Njjp tiu mtUld; FbapUe;J te;Njhk;.

                                     New;W     ghyKUfd;      tPl;lhh;fs;  vq;fis
                                     mioj;J te;jhh;fs;

From the above reading of 164 Cr.P.C., statement, it is clear that victim

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girl never stated the appellant committed aggravated penetrative sexual

assault. But, during the course of the examination before the Court, she

deposed that she was subjected to aggravated penetrative sexual assault.

The said deposition of the victim girl amounts to material improvement

which affects the trustworthiness of the victim's evidence. Therefore, the

said improvement of the victim girl's version is not lightly to be brushed

aside. In the said circumstances, this Court is duty-bound to see if there is

any corroborative material to match the aggravated penetrative sexual

assault. According to the prosecution, the victim girl was taken by the

appellant on 16.10.2017. Thereafter the victim girl was produced before

her house on 01.11.2017. In the meantime, according to the medical

evidence, there is no trace of aggravated penetrative sexual assault. As

per the Doctor's evidence, the victim girl's last mensuration was on

19.10.2017. The Doctor also taken the test to find out any pregnancy on

02.11.2017. There was no pregnancy. They also had taken the vaginal

smear and swab and the same was also not in favour of the prosecution.

The Doctor also stated that there was no injury in the body of the victim

girl. He also confirmed the rupture of the vagina can happen due to some

other reason other than the sexual intercourse. In the said circumstances,

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the evidence of the victim girl that she was subjected to aggravated

penetrative sexual assault by the appellant is not corroborated with

medical evidence. The corroboration of the medical evidence is not

necessary in all circumstances, but in the present case, the victim girl in

her 164 Cr.P.C statement, never stated that she was subjected to the

aggravated penetrative sexual assault. In the said circumstances, the

corroboration of the medical evidence is necessary. In the said

circumstances, this Court feels that the prosecution failed to prove the

offence under Section 6 of the POCSO Act.

11. Proof of offence under Section 366 of IPC

The learned trial Judge already found that the prosecution failed to

prove the marriage. In view of the above specific finding that the

prosecution also not proved the penetrative sexual assault upon the

victim girl, the offence under Section 366 IPC is not also made out

against the appellant. Further, when the learned trial Judge acquitted the

appellant for the offence under Section 9 of the Prohibition of the Child

Marriage Act, the conviction for the offence under Section 417 IPC that

the appellant made the sexual intercourse with the victim girl under the

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promise of marriage is not legally made out. Hence, the offence under

Section 366 of IPC is not made out.

12. Conclusion:

When the evidence of victim is intrisincally inseparable one, then

her whole evidence liable to be rejected. According to her evidence, the

appellant took her to the Othakuthirai Village and tying the Thali and

committed aggravated penetrative sexual assault. In her 161 statement,

she specifically stated that on 21.10.2017, the appellant married the

victim girl. But, the learned trial Judge disbelieved the said version on

account of the absence of any corroboratory evidence. But, the learned

trial Judge believed her evidence without considering the material

improvement subsequently made by her ie., she was subjected to the

aggravated penetrative sexual assault without any corroboratory

evidence.

12.1. But, the learned trial Judge, without considering the above

legal and factual aspects, only on the basis of the evidence of the victim

girl's statement that she was subjected to penetrative sexual assault,

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convicted the appellant for the offence punishable under Sections 366

IPC and 6 of POCSO Act. The said approach of the learned trial Judge is

not correct in the considered view of this Court for the reason that when

the victim girl made substantial improvement in the deposition before the

Court over the 164 Cr.P.C statement, this Court is duty-bound to analyse

the evidence of the victim girl and the other evidence. In the said

circumstances, this Court finds that the prosecution miserably failed to

prove the charges against the appellant. Hence, this Court is inclined to

interfere with the finding of the learned trial Judge in convicting the

appellant under Section 366, 417 of IPC and Section 6 of the POCSO

Act, and acquit the appellant for the above stated reasons.

13. In the result, this Criminal Appeal stands allowed. The

conviction and sentence dated 08.12.2021, passed by the learned Special

Judge, Special Court for Exclusive Trial of Cases under the Protection of

Children from Sexual Offences Act, 2012, Virudhunagar at Srivilliputhur

in Spl.S.C.No.18 of 2018 is hereby set aside. The learned trial Judge

granted compensation to the victim girl. Even though this Court

acquitted the appellant from all the charges, the order of compensation

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granted to the victim girl is not disturbed. The fine amount, if any, paid

by the appellant/sole accused shall be refunded to him. The bail bond, if

any, executed by the appellant/sole accused shall stand cancelled. The

appellant is set liberty unless his presence is required in any other case.