Madras High Court
Murugan @ Murugesan @ Selvam vs The State Represented By on 13 November, 2024
Crl.A.No.5 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.11.2024
CORAM :
THE HON'BLE MR. JUSTICE SUNDER MOHAN
Crl.A.No.5 of 2023
Murugan @ Murugesan @ Selvam ...Appellant/Accused
vs.
The State represented by
Inspector of Police,
W 20, All Women Police Station,
Saidapet, Chennai.
(Crime No.93 of 2021) ...Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure
Code, 1973, to call for the records pertaining to the Judgement dated
12.04.2022 made in Spl.S.C.No.93 of 2021 by the learned Sessions Judge,
Special Court for Exclusive Trial of Cases under the POCSO Act, Chennai,
and set aside the same.
For Appellant : Mr.K.Selvakumaraswami
For Respondent : Dr.C.E.Pratap
Government Advocate (Crl.Side)
1
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Crl.A.No.5 of 2023
JUDGMENT
This Criminal Appeal has been filed by the accused, challenging the
conviction and sentence imposed upon him, vide judgment dated 12.04.2022
in Spl.C.C.No.93 of 2021, on the file of the learned Sessions Judge, Special
Court for Exclusive Trial of Cases under the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act), Chennai.
2(a). The case of the prosecution is that the appellant is the victim's
neighbour and they were living in the same building; and that on
19.05.2014, at about 2.30 p.m., the appellant touched the genital part of the
victim inappropriately, which was witnessed by the mother of the victim and
a complaint was lodged on the next day of the occurrence.
(b). On the appearance of the appellant, the provisions of Section 207
Cr.P.C., were complied with and the trial Court framed charges against the
appellant, and when questioned, the appellant pleaded 'not guilty.'
(c). To prove the case, the prosecution examined nine witnesses as
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P.W.1 to P.W.9 and marked eight exhibits as Exs.P1 to P8. When the
appellant was questioned under Section 313 of the Cr.P.C. on the
incriminating circumstances appearing against him, he denied the same. The
appellant did not examine any witnesses or mark any documents.
(d). On appreciation of oral and documentary evidence, the trial Court
found that the prosecution had established its case beyond reasonable doubt
and held the appellant guilty of the offence under Sections 10 of the POCSO
Act, 2012 and 352 of the IPC and acquitted the appellant for the offences
294(b) and 506(ii) of the IPC. The appellant was sentenced as follows:
Offence under Sentence imposed
10 of the POCSO Act, To undergo imprisonment for five years and to pay a fine of
2012 Rs.5,000/-, in default to undergo SI for one month.
352 of the IPC To undergo imprisonment for three months.
Both the sentences were ordered to run concurrently.
Hence, the accused has preferred the appeal challenging the said conviction
and sentence.
3. Heard, Mr.K.Selvakumaraswami, learned counsel appearing for the
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appellant and Dr.C.E.Pratap, learned Government Advocate (Crl.Side)
appearing for the respondent/State.
4. The learned counsel for the appellant would submit that the
evidence of the victim is highly doubtful; that her version is tutored and it
would be revealed from the fact that in her 164 Statement of Cr.P.C., she
would say that nothing had happened; that the evidence of the father of the
victim also does not inspire confidence and in fact in his statement under
Section 164 of Cr.P.C., he had stated that he was not interested in pursuing
the complaint; and that the dispute between the neighbours has been
projected as a case of sexual assault; that the FIR was lodged nearly twenty
four hours after the occurrence; and that therefore, the Judgment of
conviction is liable to be set aside.
5. The learned Government Advocate (Crl.Side), per contra,
submitted that notwithstanding the statements made before the learned
Magistrate under 164 of Cr.P.C., the witnesses have deposed in a cogent
manner and therefore, the trial Court was right in convicting the appellant
for the offences under Sections 10 of the POCSO Act and 352 of the IPC.
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Hence, he prayed for dismissal of the appeal.
6. This Court carefully considered the submissions made on either
side and perused the records.
7. The prosecution had examined nine witnesses. P.W.1 is the father
of the victim and is the defacto complainant. P.W.2 is the mother of the
victim and said to be an eye witness to the occurrence. P.W.3 is the victim.
P.W.4 is the neighbour and is a hearsay witness. P.W.5 is the witness to the
Observation Mahazar, Ex.P6. P.W.6 is the Sub-inspector of Police, who
assisted the Investigating Officer in the investigation. P.W.7 was the
Inspector of Police, at the relevant point of time and had registered the FIR,
(Ex.P7) on the complaint given by P.W.1/father of the victim/defacto
complainant. Pursuant to the registration of the FIR, she had conducted an
investigation and thereafter, handed over the case to P.W.8, ten days after
the occurrence. P.W.8 is the Investigating Officer, who had recorded the
statements of witnesses and had handed over the investigation to P.W.9,
who in turn filed the final report.
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8. The narration would show that the complaint was filed by P.W.1 on
the information given by P.W.2, the next day, i.e., on 20.05.2014 at
12.30 p.m. The occurrence is said to have taken place on 19.05.2014 at
about 2.30 p.m. During the investigation, the 164 statements of P.W.1, the
father and P.W.3, the victim, were recorded. The trial Court had convicted
the appellant for the offence under Section 10 of the POCSO Act (Charge 1)
and 352 of the IPC (Charge 2). The Trial Court had acquitted the appellant
for the offences under Sections 294(b) and 506(ii) of the IPC.
Charge No.1 reads as follows:
“fle;j 19/05/2024 md;W gpwg; fy; 14/30
kzpastpy; 12 taJf;Fk; Fiwthd gl;oay;
rhl;rp 3. 6 tajhd ghjpf;fg;gl;l rpWkp
tPl;od; Kd;g[ epd;Wbfhz;oUe;jnghJ mnj
tPl;oy; khoapy; FoapUe;J tUk; vjphpahfpa
ePh; ghypay; nehf;fj;Jld; rpWkpia
fLikahd ghypay; td;jhf;Fjy; bra;jjpd;
K:yk; gphpt[ 10 ghypay; Fw;wj;jpypUe;J
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FHe;ijfisg; ghJfhf;Fk; rl;lk; 2012 ,d;fPH;
jz;of;fj;jf;fJk;. ,e;ePjpkd;wj;jhy;
tprhhpf;fj;jf;fJkhd Fw;wj;ij g[hpe;Js;sPh;
vd;Wk; Fw;wr;rhl;L/”
Strangely, there is no reference in Charge No.1 as to the nature of the sexual
assault that is said to have been committed. It is needless to point out that
the accused must be put on notice as to the nature of the allegations against
him in order to defend himself effectively. Be that as it may. The prosecution
case is that the appellant had inappropriately touched the undergarment of
the victim/P.W.3 and had slapped the P.W.1/father of the victim when he
questioned him about the same.
9. From the narration of the above evidence, it would be seen that
P.W.2/the mother of the victim, is said to have witnessed the occurrence.
However, P.W.2, in her cross-examination, would state that she had not
witnessed the occurrence and she came to know of the occurrence only from
her daughter/P.W.3/victim. Therefore, P.W.3 (victim) is the only witness to
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speak about the occurrence. The occurrence is said to have taken place in the
year 2014. P.W.3/victim, who was examined by the learned Magistrate on
03.01.2022 under Section 164 of Cr.P.C., had not stated anything about the
occurrence and when a specific question was put to her, she would say that
she did not remember what had happened. However, for the first time in the
Court, she would state that the appellant had inappropriately touched the
undergarment. When specifically asked in the cross-examination about the
statement given earlier, she would say that she did not remember.
10. Be that as it may. P.W.1/the father of the victim, would also state
that he had told the learned Magistrate in his statement under 164 of Cr.P.C.
that he did not wish to pursue the complaint, and as to why he said so, there
is no explanation. The complaint was also lodged one day after the alleged
occurrence. Further P.W.1, in the cross-examination, would state that the
occurrence took place at 10.00 a.m., and he clarified on the questions put by
the Court that he could not remember the exact time because of the lapse of
time. The earliest version of P.W.1 is that his wife/P.W.2 witnessed the
occurrence, which is contradicted by P.W.2 herself in her deposition.
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11. It is also seen that P.W.7/the first investigating officer had
admitted that none of the statements recorded by her had any specific date
and were sent to the Court only on 22.02.2021 along with the Final Report.
12. Considering the fact that the victim had not stated anything about
the occurrence in her earliest statement before the learned Magistrate and
considering the above-said infirmities in the prosecution case, it would be
highly unsafe to convict the appellant on the basis of such evidence.
Therefore, this Court is inclined to extend the benefit of the doubt to the
appellant and hence the Judgment of conviction and sentence passed in
Spl.C.C.No.93 of 2021, dated 12.04.2022, on the file of the learned Sessions
Judge, Special Court for Exclusive Trial of Cases under the POCSO Act,
Chennai, is liable to be set aside.
13. As a result, this Criminal Appeal is allowed, and the appellant is
acquitted of all the charges. The conviction and sentence passed in
Spl.C.C.No.93 of 2021, dated 12.04.2022, on the file of the learned Sessions
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Judge, Special Court for Exclusive Trial of Cases under the POCSO Act,
Chennai, are set aside. The fine amount, if any, paid by the appellant shall
be refunded. Bail bond, if any, executed shall stand discharged.
13.11.2024
Speaking /Non-speaking order
Neutral citation : yes/no
dk
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To
1. The Sessions Judge,
(Under POCSO Act, 2012)
Chennai.
2.The Inspector of Police,
W20, All Women Police Station,
Saidapet, Chennai.
3. The Superintendent of Prisons,
Central Prison, Puzhal.
4. The Public Prosecutor,
High Court, Madras.
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SUNDER MOHAN,J.
dk
13.11.2024
https://www.mhc.tn.gov.in/judis
