Madras High Court
Sarathkumar vs State Represented By on 3 June, 2024
Author: R.Hemalatha
Bench: R.Hemalatha
Crl.A.No.209 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.06.2024
CORAM :
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
Crl.A.No.209 of 2017
Sarathkumar ...Appellant
vs.
State represented by
The Inspector of Police,
All Women Police Station,
Sooramangalam,
Salem District. ...Respondent
(Crime No.23/2014)
PRAYER: Criminal Appeal filed under Section 374 (2) of Criminal
Procedure Code, 1973, against the judgment dated 14.02.2017 passed by
the learned Sessions Judge, Mahila Court, Salem in Spl. S.C.No.22 of
2015.
For Appellant : Mr.R.Ezhilarasan
For Respondent : Mr.S. Rajakumar
Additional Public Prosecutor.
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Crl.A.No.209 of 2017
JUDGMENT
This criminal appeal is filed against the judgment and orders dated
14.02.2017 passed by the learned Sessions Judge, Mahila Court, Salem in
Spl. S.C.No.22 of 2015.
2. The appellant is the accused in Spl. S.C.No.22 of 2015 and is
convicted and sentenced as detailed hereunder:
S.No. Conviction Sentence
1. Section 450 IPC Rigorous Imprisonment for ten
years and a fine of Rs.2,000/-, in
default, to undergo Simple
Imprisonment for three months.
2. Section 363 IPC Rigorous Imprisonment for seven
years and a fine of Rs.2,000/-, in
default, to undergo Simple
Imprisonment for three months.
3. Section 366 IPC Rigorous Imprisonment for ten
years and a fine of Rs.2,000/-, in
default, to undergo Simple
Imprisonment for three months.
4. Section 6 r/w.5 (l) of Rigorous Imprisonment for ten
POCSO Act, 2012 years and a fine of Rs.10,000/-, in
default, to undergo Simple
Imprisonment for three months.
The aforesaid sentences shall run concurrently.
The period of sentence already undergone shall be set off under Section
428 Cr.P.C.
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3. The case of the prosecution in a condensed form is as
follows :
i. The appellant Sarathkumar is a neighbour of the victim girl
(P.W.1). They were in love with each other.
ii. The evidence of the victim P.W.1 was that the appellant had sex
with her in her house when no one was there, promising her that he
would marry her.
iii. He also took her to a Park near Dalmiapuram on 09.08.2014 at
about 10.30 P.M. and had sex with her and this continued for
several days. Since she did not get her menstrual periods, she
informed her father Balu (P.W.2) about her relationship with the
appellant. Both of them went to All Women Police Station,
Sooramangalam on 19.08.2014 and lodged a complaint (Ex.P1)
with Ms.K.P.Shanthi (P.W.10), the then Inspector of Police.
iv. K.P.Shanthi (P.W.10), received the complaint from P.W.1 and
registered an FIR (Ex.P12) on the same day in Crime Number
23/2014 against the appellant for the offences punishable under
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Sections 5 and 6 of the Protection of Children from Sexual
Offences (POCSO) Act, 2012 r/w. 376 (ii) (n) IPC.
v. She took up investigation in Crime No.23/2014, went to the places
where P.W.1 and the appellant used to meet each other and
prepared Observation Mahazars (Ex.P2 and Ex.P3) and rough
sketches (Ex.P13 and Ex.P14) in the presence of the witnesses
Selvakumar (P.W.4) and Selvam (not examined).
vi. Karthick (P.W.3), in his evidence had deposed that his father is
hard of hearing and also suffering from night blindness. According
to him, the appellant took his sister to a nearby park and had sexual
intercourse with her forcibly. P.W.2, the father of the victim
corroborated the versions of P.W.1 and P.W.3.
vii.P.W.10 sent P.W.1 for medical examination along with
Tmt.Amudha, Police Constable attached to All Women Police
Station, Sooramangalam.
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viii.Dr.Bharathi (P.W.9), examined the victim girl (P.W.1) on
20.08.2014 and found her 'hymen not intact'. The victim was not
pregnant and the vaginal smear was taken and sent to forensic lab.
She also referred her to Radiologist to ascertain her age.
ix. The forensic laboratory issued a report (Ex.P10) stating that the
vaginal smear and swab did not contain any 'spermatozoa'.
x. Dr.Sangeetha (P.W.8) examined the victim girl (P.W.1) and found
that the victim's age was above 16 and below 18 years. The age
certificate was marked as Ex.P8.
xi. P.W.10, the Investigation Officer arrested the appellant on
19.08.2014 near Ponnammapettai Railway Gate at about 17.15
hours and produced him before the concerned Judicial Magistrate
for remand. On 20.08.2014, the Judicial Magistrate No.III, Salem
examined the victim and recorded her statement under Section 164
Cr.P.C.
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xii.Dr.Gokularamanan (P.W.7), examined the appellant on 06.09.2014
and opined that there is nothing to suggest that the appellant is
impotent. His certificate is marked as Ex.P7.
xiii.P.W.10 after completing investigation, laid a final report before
the Mahila Court, Salem, against the appellant for the offences
punishable under Sections 450, 363, 366 IPC and Section 6 r/w.
5(l) of POCSO Act in Spl. S.C. No.22/2015.
xiv.The prosecution examined 10 witnesses and marked 21
documents.
xv.When the appellant was questioned with regard to the
incriminating circumstances appearing in evidence against him
under Section 313 Cr.P.C. he denied of having committed any
offence. However, he did not adduce any evidence on his side.
xvi.The learned Sessions Judge, Mahila Court, Salem, after analysing
the oral and documentary evidence on record, convicted the
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appellant for the offences punishable under Sections 450, 363, 366
IPC and Section 6 r/w. 5(l) of POCSO Act, 2012 and sentenced
him as stated in Paragraph No.2.
xvii.Aggrieved over the conviction and sentence passed by the
Sessions Judge, Mahila Court, Salem, the present Criminal Appeal
has been preferred.
4. Heard Mr.R.Ezhilarasan, learned Counsel appearing for the
appellant and Mr.S. Rajakumar, learned Additional Public Prosecutor
appearing for the respondent.
5. Mr.R.Ezhilarasan, learned counsel appearing for the appellant
would contend that the victim was aged more than 18 years on the date of
occurrence and that no acceptable evidence was filed by the prosecution
to prove the age of the victim. He also contended that a photostat copy of
the transfer certificate allegedly issued by the Headmaster, Government
Higher Secondary School, Karuppur, Salem has alone been marked as
Ex.P21. His specific contention is that the Headmaster who issued the
certificate was not examined to prove the contents of the document nor
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the original School Records were produced by the prosecution. It is his
further submission that the victim had also deposed that she gave her
consent to have sex with the appellant and in the circumstances, the
conviction and sentence passed by the trial court cannot be sustained.
6. Per contra, Mr.S.Raja Kumar, learned Additional Public
Prosecutor would contend that the trial court had, after analysing the
oral/documentary evidence, rightly convicted and sentenced the accused
and therefore, no interference is called for by this court and prayed for
dismissal of the Criminal Appeal.
7. It is seen from the records that right from the beginning the
accused has been questioning the age of the victim girl. In the transfer
certificate (Ex.P21), the date of birth of the victim girl has been indicated
as 12.04.1998. A perusal of the transfer certificate also shows that the
victim was admitted in IX standard in Government Higher Secondary
School, Karuppur, Salem on 06.06.2012. The prosecution did not take
steps to file the certificate issued by the concerned school authorities
where the victim was admitted in I standard. The birth certificate has also
not been marked. Moreover, P.W.1 in her evidence had stated that she
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was in relationship with the appellant for the past two years. When the
appellant is facing serious charges under Sections 5 and 6 of POCSO Act,
2012, it is the duty of the prosecution to prove the age of the victim,
especially, when the victim is closer to the age of 18 years.
8. Another contention of P.W.1 is that the appellant promised to
marry her and had sexual intercourse with her. According to P.W.1, the
appellant had sex with her on 09.08.2014 at about 10.30 P.M. It is not
known as to why P.W.1 did not raise any alarm especially when she had
specifically stated that the appellant forcibly had sexual intercourse with
her. The relationship between them continued thereafter and the victim
girl did not inform her parents immediately. Only on 19.08.2014 she had
lodged a complaint with the police. It is pertinent to point out that the age
of the appellant was 20 years on the date of occurrence and there is
nothing on record to show that he did not have any intention to marry the
victim girl from the beginning to conclude that the consent given by
P.W.1 was not a consent within the meaning of Section 90 IPC.
9. In view of all the reasons stated by me, the conviction and
sentence passed by the trial court is liable to be set aside.
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10. In the result,
(i) This Criminal Appeal is allowed.
(ii) The judgment and orders dated 14.02.2017 passed by the
learned Sessions Judge, Mahila Court, Salem in Spl. S.C.No.22 of 2015,
is set aside.
(iii) The appellant (accused in Spl. S.C. No.22/2015) is acquitted
from all the offences, of which he is charged. Bail bonds, if any, shall
stand cancelled. Fine amount, if already paid, shall be refunded.
03.06.2024
Index : yes/no
Speaking /Non speaking Order
mtl
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To
1. The Inspector of Police, All Women Police Station, Sooramangalam,
Salem District.
2. The Sessions Judge, Mahila Court, Salem.
3. The Public Prosecutor, High Court, Madras.
4. The Section Officer, Criminal Section, High Court, Madras.
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R.HEMALATHA, J.
mtl
03.06.2024
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