Madras High Court
Rajamohan vs State Represented By on 25 October, 2024
CRL.A(MD).No.700 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 26.04.2024
Pronounced On : 25.10.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).No.700 of 2023
and
Crl.M.P(MD).No.11379 of 2023
Rajamohan ... Appellant
Vs.
State represented by
The Inspector of Police,
All Women Police Station,
Thallakulam,
Madurai City.
(In Crime No.13 of 2019) ... Respondent
Prayer: This Criminal Appeal has been filed under Section 374(2) of
Cr.P.C., to call for the records and set aside the Judgment and Conviction
dated 17.07.2023 in Spl.S.C.No.135 of 2019 on the file of the learned
Sessions Judge, Principal Special Court for Exclusive Trial of Cases under
POCSO Act, Madurai, and acquit the Appellant.
For Appellant : Mr.D.Rameshkumar,
For Respondent : Mr.R.Sivakumar,
Government Advocate(Crl.Side)
1/16
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CRL.A(MD).No.700 of 2023
JUDGMENT
This appeal has been filed to set aside the judgment and conviction
passed by the learned Sessions Judge, Principal Special Court for
Exclusive Trial of Cases under POCSO Act, Madurai in Spl.S.C.No.135 of
2019 dated 17.07.2023 and acquit the appellant.
2.The appellant who is the sole accused in Spl.S.C.No.135 of 2019
on the file of the learned Special Judge, Principal Special Court for
Exclusive Trial of Cases under POCSO Act, Madurai, has filed this appeal
challenging the conviction and sentence imposed on him for the offence
under Section 9[m] r/w 10 of the Protection of Children from Sexual
Offences Act, by the impugned order dated 17.07.2023.
3.Prosecution Case:
The appellant is the neighbour of the victim girl. On 09.04.2019 at
about 05.00 pm, when the victim girl went to the house of one Mary to
take a plastic bucket, the appellant grabbed the hand of the victim girl and
shut her mouth and kissed on her cheek and bit the cheek. Therefore, the
mother of the victim girl, P.W.1, gave a complaint before the jurisdictional
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police station and on receipt of the same, the respondent police registered
the case in Crime No.13 of 2019 for the offence under Sections 9[m] r/w
10 of Protection of Children from Sexual Offences Act. The investigating
officer conducted the investigation and arrested the accused and collected
the materials and filed the final report before the learned Sessions Judge,
Principal Special Court for Exclusive Trial of Cases under POCSO Act,
Madurai. The same was taken on file in Special Spl.S.C.No.135 of 2019.
3.1.After taking cognizance, the learned trial Judge framed the
charges against the appellant for the offences under Sections 9[m] r/w 10
of Protection of Children from Sexual Offences Act. The learned trial
Judge, upon the appearance of the accused, furnished the copies to him
under Section 207 of Cr.P.C., and framed the necessary charges and
questioned the accused and as he pleaded not guilty, and he stood for trial.
The trial was conducted and the prosecution adduced the evidence of P.W.1
to P.W.8 and marked the documents under Ex.P1 to Ex.P.12 and Ex.C1 also
was marked by the Court. Ex.C1, namely, the recording of the statement of
the victim girl also produced.
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3.2. The learned trial Judge, considered the same, examined the
appellant under Section 313 Cr.P.C., by putting the incriminating material
available against him and he denied the same and hence, the case was
posted for examination for the defence witness. On the side of defence, no
witness was examined and no document was marked.
3.3.The learned trial Judge after considering the oral and
documentary evidence, convicted the accused under Section 9[m] r/w 10 of
the Protection Of Children from Sexual Offences Act, by the impugned
order dated 14.09.2023 and sentenced him to undergo 5 years rigorous
imprisonment and to pay a fine of Rs.25,000/- (Rupees Twenty Five
Thousands only) with six months simple imprisonment in case of default
for the offence under Section 9[m] r/w 10 of the POCSO Act.
4.Aggrieved over the same, the appellant filed this appeal on the
grounds stated in the memorandum of grounds of appeal.
5.The learned counsel for the appellant submitted that P.W.1 had
illegal contact with someone. The same was questioned by the appellant
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and hence, false case was registered against him, stating that he committed
sexual assault upon the victim girl by kissing her on the cheek and bit the
cheek. The said version of the victim girl is false. The medical evidence
and also the other circumstances was not properly considered by the
learned trial Judge. He also further submitted that the delay in preferring
the complaint and no investigation relating to the motive is clearly shows
that the false case was registered against the appellant. The appellant also
submitted that the improvement in the statement recorded under Section
164 Cr.P.C., made by the victim girl clearly shows that there was a tutoring
on the side of the P.W.1 in order to save her skin from the stigma of illegal
relationship with somebody. The counsel also stated that there was an
admission with regard to the illicit relationship. In the said circumstances,
he seeks for setting aside the judgment passed by the Court below.
6.The learned Government Advocate (Crl.Side) submitted that when
the evidence of the victim girl inspired confidence and is cogent, this Court
has no jurisdiction to disbelieve her version. When there was a conflict
between the medical evidence and the ocular evidence, the evidence of the
victim girl has to be considered. In the said circumstances, he seeks for the
confirmation of the conviction and sentence imposed by the learned trial
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Judge.
7.This court considered the rival submissions made by the learned
counsel appearing on either side and perused the materials available on
records.
8.In order to prove the occurrence, the prosecution examined the
mother of the victim as P.W.1, victim as P.W.2, doctor as P.W.4. P.W.6 and
P.W.7 are witnesses to the observation mahazar/Ex.P.7.
9.P.W.2 was capricious and has changed her stand at every stage. In
the complaint, it was stated that after her school hours, around 05.00 p.m.,
of 09.04.2019, she went to fetch water from the corporation pipe. The said
corporation pipe was situated next to the house of the appellant. At that
time, the wife of the appellant allegedly took the plastic pot of the victim
to her house. Therefore, the victim went to the appellant's house to get it
back. At that time, in the said house, the appellant alone was present and
he forcefully grabbed the hand of the victim and shut her mouth to prevent
her from screaming and kissed her cheek and bit her cheek. The victim girl
pushed him down and ran away from the house of the appellant and on
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enquiry, she informed the same to her mother/P.W.1. Thereafter, a
complaint was made to P.W.8. on 11.04.2019, at 11.30 A.m. Hence, it is
under famdable that P.W.1 has not witnessed the occurrence directly and
she only heard about the sexual assault from P.W.2.
10.It is the specific case of the victim girl that the appellant
committed sexual assault by biting the cheek. But, there was no
corresponding injury as per the medical evidence. It is the specific case of
the prosecution, complaint was immediately made after the occurrence and
she was also brought to hospital immediately. The doctor categorically
deposed that there was no bite injury on the victim girl. The same was
corroborated with the evidence of the investigating officer. It is the specific
case of the investigating officer that both the complainant and P.W.2 victim
girl were present at the time of giving complaint and there was no injury
over the cheek of the victim girl. In assessing the above over all
circumstances, this Court unable to believe the evidence of the victim and
hence, the appellant was falsely roped in this course in order to save the
skin of P.W.1. In the said circumstances, this court is not inclined to
believe the evidence of the victim girl and P.W.1.
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11.The victim deposed as follows:
vq;fs; tPl;bw;F Ml;Nlhf;fhuh; mbf;fb tUthh; vd;why; rhpjhd;.
mtiuj;jhd; vd; mk;kh ,uz;lhtjhf jpUkzk; nra;Js;shh;. rk;gt jpdj;jpy;
vjphpia vd; mk;khtpd; ,uz;lhtJ fzth; mbj;Jtpl;lhh; vd;why; vjphp Kjypy;
mbj;j gpwF jhd; mth; mbj;jhh;. mt;thW mbj;jjpy; vjphpf;F Kd; gw;fs;
cile;Jtpl;lJ vd;why; Qhgfk; ,y;iy.
12.The same was elicited during the course of the examination.
Therefore, it is clear that P.W.1's step father assaulted the appellant and the
appellant sustained injuries and P.W.1 also sustained injuries. The said
material fact has not been disclosed by either P.W.1 or P.W.2. To give a
twist to the said occurrence, P.W.1 and P.W.2 planned together and made
the false allegation against the appellant herein as if the appellant has
sexually assaulted the victim and “kissed on her cheek and bit her cheek
and also shut her mouth in order to prevent her from screaming”. In the
said circumstances, the case of the defense that in order to save the skin of
P.W.1, the appellant falsely roped by tutoring the victim girl has some
substance in this case.
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13.The victim girl also present at the time of the complaint and
averment of the complaint are as follows:
me;j Flj;ij th';f vdJ FHe;ij mt[';f tPl;ow;F
Rkhh; 5 kzpanghy brd;wnghJ tPl;oy; uh$nkhfd;
kl;Lk; ,Ue;Js;shh;/ vd; FHe;ij KUfjh;c&pdp uh$nkhfdplk;
jhj;jh v';f Flj;ij jh';fd;D nfl;ljw;F vd; FHe;ijapd;
ifia gpoj;J ,Gj;J fd;dj;jpy; Kj;jk; bfhLj;J vd;
FHe;ijia fj;jtplhky; thia bghj;jpa[s;shh;/ vd; FHe;ij
mtiu js;sptpl;Ll;L Xote;J tpl;lJ/ Mdhy; mij vd; kfs;
vd;dplk; brhy;y gae;J bfhz;L ,Ue;Jtpl;lJ. new;W gs;spf;F
nghapl;L te;jjypUe;J xU khjphpahf ,Ue;jJ/ vd;dd;D
nfl;lnghJ nkw;go ele;jij brhy;Yr;R/
14. After making the above statement in the complaint, exaggerated
the version in the statement recorded under Section 164 of Cr.P.C., much
belatedly on 28.05.2019. In the statement under Section 164 of Cr.P.C., she
travelled more than the allegation what she stated in the complaint. But, in
the deposition before the Court she once again reverted book to the
allegation relating to the Kissing and biting the cheek. For better
appreciation, this Court extracted the three different versions in order to
appreciate her evidence.
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Averment in the Averment in 164 of Cr.P.C., Deposition before the trial Court
complaint statement
me;j Flj;ij mk;kh jz;zp vLf;fyd;dh Kjy; tprhuiz:
th';f vdJ ita[KD brhy;yp jz;zp
FHe;ij mt[';f Flj;ij th';fp nghndd;/
tPl;ow;F Rkhh; 5 me;j jhj;jh kl;Lk; jhd; ehd; rp.vk;.v];.N`hkpy; jq;fp muR khjphp
kzpanghy brd;w cs;ns ,Ue;jhh;/ jhj;jh me;j Nky;epiyg;gs;spapy;> b.fy;Yg;gl;bapy;
nghJ tPl;oy; mf;fh jz;zp Flj;ij 8j; ];lhd;lh;L gbf;fpNwd;. ,e;j tof;F
uh$nkhfd; th';fpl;L nghdh';f/ FL';f GfhUf;F gpd;dh; ehd; N`hkpy; jq;fp gbf;fpNwd;.
kl;Lk; ,Ue;Js;shh;/ jhj;jhd;D nfl;nld;/ ehd; ,e;j rk;gtj;jpd; NghJ vd; mk;kh
vd; FHe;ij cs;ns ,Uf;Fg;gh ,e;j fl;oy; jk;gpAld; kjpr;rpaj;jpy; Iah; fhk;gTz;l;by;
KUfjh;c&pdp uh$ nkny te;J jq;fpapUe;Njhk;. 09.04.2019 md;W ehd; Ie;jhk;
nkhfdplk; jhj;jh vLj;Jf;nfhg;ghd;D tFg;G gbj;Jf;nfhz;bUe;Njd;. vd; mk;kh
v';f Flj;ij brhd;dh';f/ jhj;jh eP';f gpsh];bf; fk;ngdpf;F Ntiyf;F Ngha; te;jhh;.
jh';fd;D nfl;ljw;F vLj;J jh';fD brhd;ndd;/ eP vd; jk;gp ntw;wpNty; mg;NghJ ,uz;lhk; tFg;G
vd; Fhe;ijapd; vLj;Jf;nfh. fhbyy;yhk; gbj;Jf;nfhz;bUe;jhd;. ehd; ];$y; Kbj;J
ifia typf;FJD brhd;dh';f/ te;J vd; mk;khtpw;F jz;zPh; vLj;J itg;Ngd;.
gpoj;J ,Gj;J mg;gw [ k; cs;s ngha; vLf;f
fd;dj;jpy; Kj;jk; nghndd;/ g[or;R fl;oy;y
fhh;gNu\d; igg; vq;fs; tPl;bw;F vjph;j;jhy;
bfhLj;J vd; js;sptpl;L. if fhy; vy;yhk; Nghy; cs;sJ. M[h; vjphpia njhpAk;. igg;
FHe;ijia fj;j fl;og;nghl;L. thbay;yhk; mUNf cs;s fhk;gTz;l;by; vjphp FbapUf;fpwhh;.
tplhky; thia fl;og;nghl;l. ,';f bjhl;lh';f ehd; vg;NghJk; jz;zPh; gpbj;J vq;fs; tPl;L
bghj;jpa[s;shh;/ vd; (rpWkp khh;ig bjhl;Lk; thrypy; itg;Ngd;. mk;kh Ntiyf;F Ngha; tpl;L
Fhe;ij mtiu fhz;gpf;fpwhh;) ,Lg;igf; te;J mij tPl;bw;Fs; vLj;J itg;ghh;fs;.
js;sp tpl;Ll;L fps;spdh';f/ fPnH bjhl;lh';f 09.04.2019 Mk; Njjp ehd; vg;nghOJk; Nghy;
Xote;J tpl;lJ/ vd;W iffshy; jdJ clk;gpy; tPl;by; jz;zp vLj;J itj;jpUe;Njd;. mij
Mdhy; mij vd; bjhl;Lf; fhz;gpf;fpwhh;/ mg;g[wk; vjphpapd; xa;g; vLj;J nfhz;L Ngha; tpl;lhh;.
kfs; vd;dplk; vy;yhj;ija[k; fHl;ol;L ehd; me;j Flj;ij thq;f vjphpapd; tPl;bw;F
brhy;y gae;J tPl;Lf;F nghd;D brhd;dhh;/ NghNdd;. tPl;by; vjphp kl;Lk; ,Ue;jhh;. vd;id
bfhz;L ,Ue;J ehd; vd; mk;khl;l ifia gpbj;J ,Oj;J fd;dj;jpy; Kj;jk;
tpl;lJ. new;W brhy;ntd;D brhd;ndd;/ c';f
nfhLj;jhh;. fd;dj;ij fbj;J itj;jhh;. ehd;
gs;spf;F nghapl;L mk;khfpl;l brhd;dhy; c';f
te;jjypUe;J xU mk;khita[k; cd;ida[k;
fj;jhky; ,Ug;gjw;F vd; thia ifahy;
khjphpahf ,Ue;jJ/ bfhd;Wntd;D brhd;dhh;/ nghj;jpdhh;. ehd; js;sptpl;Ll;L Xb te;Jl;Nld;.
vd;dd;D nfl;l mk;khl;l brhd;dh mof;Fk;D ehd; vd; mk;khtplk; mg;g nrhy;yy.
nghJ nkw;go gae;J mk;khl;l gakh ,Ue;jJ. kWehs; ];$y;f;F Nghapl;L
ele;jij brhy;Yr;R/ brhy;ynt ,y;iy/ mk;kh te;J vd; fd;dj;Jy fhak; tPq;fp ,Ue;jJdhy
brhd;dh';f ehd; mof;f mk;kh Nfl;lhq;f nrhd;Ndd;. vd; mk;kh
khl;nld;/ eP brhy;tJ mtq;fl;l Nfl;f Nghdhq;f. vjphp vd; mk;khit
nghyp!;fpl;l ngha; mbj;J tpl;lhh;. mjd; gpwF vd; mk;kh Nghyprpy;
brhy;ypLnthk;D brhd;dh';f/ Ngha; Gfhh; nfhLj;jhh;. Nghyprhh; vd;id
mg;gw [ k; mk;khl;l brhy;ypl;nld;/ tprhhpj;jhh;fs;. vd;id Nghyprhh; kJiu [p.vr;w;F
mt;tst[ jhd; fd;dj;jpy; $l;bf;nfhz;L Nghdhh;fs;. vd;id NtW xU
for;R tr;rpUe;jh';f/ (,uz;L ePjpkd;wj;jpw;F mioj;J nrd;W thf;F%yk;
fd;d';fisa[k; bjhl;L
ngw;whh;fs;. fhz;gpf;fg;gLk; 164 F.tp.K.r thf;F
fhz;gpf;fpwhh;) fd;dk;
tP';fpUr;R/ mk;kh vd;d
%yj;jpy; cs;s ifnaOj;J vd;DilaJ jhd;.
fd;dk; tP';fpUf;F vd;W me;j 164 F.tp.K.r thf;F%yk; m.rh.M3 MFk;.
nfl;ljhy; brhd;ndd;/ mt;tst[ vd;Dila gpwe;j Njjp 04.04.2009 MFk;.
jhd;/ Nghyprhh; vd;id tprhhpj;jhh;fs;.
15.Considering the different versions and also from the suppression
of the material fact that the appellant was attacked by the second husband
of P.W.1, the evidence of P.W.1 and P.W.2 do not inspire confidence of this
Court. From the above different stand on different on occasions and the
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material suppression of the injury on P.W.1 and the appellant and
considering that the allegation has not been corroborated by medical
evidence, this Court finds no truth in the prosecution case of sexual assault
alleged to have been committed by the appellant and the prosecution
miserably failed to prove the case beyond reasonable doubt.
16. From the record and above appreciation of the evidence and the
overall assessment of the circumstances, it is clear that P.W.1 and her
second husband in order to escape from their legitimate prosecution for the
assault made upon the appellant, used P.W.2 as a tool and made false
allegations as if the appellant committed sexual assault. P.W.2 also made
false accusation against the appellant without knowing the implication and
also against the natural impression that the child will never speak
falsehood. The investigating officer also fabricated the records without
conducting the fair investigation. As per the evidence of P.W.6 and P.W.7,
they are not the residents of the occurrence place and they specifically
deposed that they put their signature on the blank paper. The investigating
officer also admitted that she not even noted the place of the corporation
pump and also there is a omission to mention the date and preparation of
the observation mahazar. In all circumstances, the investigating agency is
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also the party to the said false prosecution.
17.In view of the above discussion, P.W.1, P.W.2 and P.W.8
intentionally misused the provision of the POCSO Act, and false case was
registered against the appellant. This Court therefore, holds that the
appellant is entitled to get Hon'ble acquittal.
18.This Court aptly extract the following words of the Hon'ble
Mr.Justice.Krishna Iyer, to redress the further grievance of the appellant:
“Litigants are legal patients suffering
from injustices seeking healing for their
wounds”.
18.1.“The criminal trials lead to immense sufferings for all
concerned. Even ultimate acquittal in the trial may also not be able to
wipe out the deep scars of suffering of ignominy1”[1].Under Section 22 of
POCSO Act, false prosecution is an offence. Hence, P.W.1 is liable to be
prosecuted under Section 22 of the POCSO Act. Hence, this Court issues
direction to the Commissioner of police to register a case under Section 22
of the POCSO Act against P.W.1. Duty of this Court does not end with
passing judgment of Hon'ble acquittal and it has a duty to compensate the
12010 crl LJ 4303 Preeti Gupta Vs. State of Jharkhand.
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illegitimate a incarceration suffered by the appellant and the humiliation
and disgrace and the loss of reputation incurred by him ever since he was
booked. This Court also perused the answer given by the appellant during
the question of sentence, which reads as follows:
ehd; ve;j jg;Gk; gz;ztp;y;iy. vd;
kidtp Gw;WNeha; Nehahsp. vdJ kfSf;F
%is tsh;r;rp FiwT. ehd; jhd; mth;fis
ghh;f;f Ntz;Lk;. Fiwe;jgl;r jz;lid
toq;f Ntz;Lk;.
19.From the above, this Court decides to give an adequate
compensation of Rs.5,00,000/- payable by the District Legal Service
Authority under the victim compensation scheme. The appellant, who has
been suffering incarceration for the past number of years also would come
under the definition of the victim and hence, he is entitled to receive the
compensation.
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20.The learned trial Judge granted compensation of Rs.2,00,000/- to
P.W.2. This Court categorically finds that she made false accusation against
the appellant. Therefore, she is not entitled for any compensation. Hence,
the authorities are directed to recover the same from P.W.1.
21.This Court perused the entire records. The appellant due to his
family condition ie., his wife being a patient and his child being mentally
retarded sought for legal assistance. The District Legal Aid Authority
appointed Thiru.P.Prasath as a legal-Aid-Counsel. The learned counsel has
made his full efforts to find out the truth in the case and also achieved the
same by making an effective cross examination. Without his deft cross
examination, this Court could not have arrived at the above conclusion of
the false implication. Therefore, this Court records its appreciation to the
said legal-aid-counsel Thiru.P.Prasath.
22.In result, this Criminal Appeal Stands allowed. The judgment
passed by the learned Sessions Judge, Principal Special Court for
Exclusive Trial of Cases under POCSO Act, Madurai, in Spl.S.C.No.135 of
2019, dated 17.07.2023 is hereby set aside. Bail bond if any executed by
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him, shall stand cancelled. Fine amount if any paid by him, shall be
refunded forthwith. The appellant is at liberty, unless his presence is
required in any other case. Consequently, connected Criminal
Miscellaneous Petition is closed.
25.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sbn
Note:Issue Order Copy on 28.10.2024.
To
1. The Sessions Judge,
Principal Special Court for Exclusive Trial of Cases
under POCSO Act,
Madurai,
2. The Inspector of Police,
All Women Police Station,
Thallakulam, Madurai City.
3. The Superintendent,
Central Prison, Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
5. The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN,J.
sbn
and
Crl.M.P(MD).No.11379 of 2023
25.10.2024
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