Madras High Court
Bharanitharan vs The State Rep. By on 17 April, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A. No.177 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.04.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No.177 of 2017
---
Bharanitharan .. Appellant
Versus
The State Rep. By
The Inspector of Police,
Pallapatty Police Station,
Salem District.
Crime No.372 of 2014 .. Respondent
Criminal Appeal filed under Section 374 (2) of Cr.P.C., praying to set
aside the Order dated 03.03.2017 made in Spl.S.C. No. 8 of 2015 on the file of
the learned Sessions Judge, Mahila Court, Salem.
For Appellant/Accused : Mr. B. Kumarasamy
For Respondent : Mrs. G.V. Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal had been filed to set aside the Judgment dated
03.03.2017 passed by the learned Sessions Judge, Mahila Court, Salem in Spl.
S.C. No. 8 of 2015.
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2. The brief facts, which are necessary for the disposal of this
Criminal Appeal, are as follows:-
2.1. The De-facto Complainant was a student of St. Mary's High
School, Arisipalayam, Salem. She is studying in IX Standard. She is residing
along with her grandmother. Her father died when she was a child and her
mother was working in Tiruppur. Her mother used to visit them once in a
month. According to the De-facto Complainant during March 2014, in
connection with her School project, she went to the Computer Centre run by
the Accused. It was stated that the Accused used to converse with the De-
facto Complainant very often. While so, on 02.04.2014 in the afternoon, when
everyone left the browsing centre, the Accused locked the door, went near to
the De-facto Complainant and pinched her hip. Even though it was resisted by
the De-facto Complainant, the Accused promised her to marry. Under such
pretext, the Accused removed the dress of the De-facto Complainant and
indulged in sexual intercourse. In similar fashion, the Accused had sexual
intercourse with the De-facto Complainant on two or three occasions in the
browsing centre. Subsequently, on 16.07.2014, the Accused called the De-
facto Complainant for an outing. Accordingly, on that day, under the pretext
of attending the School, the De-facto Complainant went to Salem Bus Stand at
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9.30 am from where the Accused picked her up on his two wheeler. They went
to a lakeside abutting Kalipatty to Vaikuntam Road, where they had sexual
intercourse. Thereafter, the Accused left the De-facto Complainant back in
Salem at about 4.30 p.m. It was stated that the mother of the De-facto
Complainant came to know that she did not attend the School on that day.
Therefore, the mother of the De-facto Complainant came to Salem from
Tiruppur and questioned her. When questioned, the De-facto Complainant
informed her that the Accused promised to marry her and under such pretext
he had sexual intercourse. Therefore, the complaint was given by the De-facto
Complainant based on which the case in Crime No. 372 of 2014 came to be
registered for the offences under Sections 363 of Indian Penal Code and
Sections 3 and 4 of The Protection of Children from Sexual Offences Act,
2012. Ex.P-15 is the copy of the First Information Report which was sent by
P.W-12, Sub-Inspector of Police to the concerned Court as also the higher
Police Officials, including P.W-13, Inspector of Police.
2.2. On receipt of a copy of Ex.P-15, P.W-13 took up investigation and
proceeded to R.S. Browsing Centre at 17.00 hours where he recorded the
statement of Anand-P.W-4 and Rajammal. He also prepared an Observation
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Mahazar under Ex.P-16 and Rough sketch under Ex.P-17. Subsequently, P.W-
13, accompanied by Mrs.Santhi, Inspector of Police, All Women Police
Station, Suramangalam enquired the De-facto Complainant, Valli-P.W-2, Absal
Khan-P.W-3, Umarkabar, Muniyasamy, Anand-P.W-4 and Rajammal and
recorded their statements. On 20.07.2014, P.W-13 arrested the Accused and
recorded his voluntary statement. Thereafter, the Accused identified the two
wheeler – Bajaj Pulsar black colour bearing Registration No. TN-30-BA-1953
which was used by him for commission of offence and it was recovered in the
presence of the witnesses through seizure mahazar. On the same day, the
Accused was sent to remand. On the next day viz., 21.07.2014, P.W-13 has
given a requisition letter, Ex.P-21 to the Government Mohan
Kuramamangalam Hospital for examining the victim girl. On the basis of the
investigation conducted by P.W-13, the offence for which the First Information
Report was altered into one under Section 363 of IPC, Section 3 and 4 of
Protection of Children from Sexual Offences Act, 2012 and Section 376 (i) (ii)
(n) of Indian Penal Code. Ex.P-22 is the alteration report. Similarly, P.W-13
had given a requisition letter under Ex.P-23 to carry out potency test on the
Accused. Accordingly, potency test was conducted. P.W-13 also given a
requisition letter under Ex.P-25, addressed to the Chief Judicial Magistrate for
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recording the statement of the victim under Section 164 of the Code of
Criminal Procedure. Based on the said letter, the Chief Judicial Magistrate had
nominated the Judicial Magistrate No.IV, Salem to record the statement of the
victim girl. The statement so recorded was marked as Ex.P-17. During the
course of investigation, P.W-13 was transferred and therefore, he had handed
over the case records to his successor, P.W-14. P.W-14 took up the
investigation on 08.08.2024 and went to the place of occurrence and examined
the witness in this case. He also met the Head Master of St. Mary's High
School where the victim studied and recorded his statement. He also collected
the copies of School records such as Transfer Certificate etc., He, thereafter,
recorded the statement of Dr.Sangeetha, who had medically examined the De-
facto Complainant. After concluding his investigation, P.W-14, the
Investigation Officer, had filed his final report on 08.12.2014 against the
Accused for the offences punishable under Sections 363 and 366 and Section 6
read with Section 5 (l) of Protection of Children from Sexual Offences Act,
2012.
2.3. When the Accused appeared before the learned Sessions Judge,
Mahila Court, Salem, the copies of the prosecution documents and statement
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of the witnesses have been furnished to him under Section 207 of the Code of
Criminal Procedure. Thereafter, arguments of Counsel for both sides were
heard and charges were framed against the Accused on 07.09.2015. Since the
Accused denied the charges and claimed to be tried, trial was ordered. During
trial, the Prosecution had examined 14 witnesses as P.W-1 to P.W-14 and
marked 29 documents under Ex.P-1 to Ex.P-29. The two wheeler used by the
Accused for commission of the offence was marked as M.O-1. On behalf of
the defence, neither any witness was examined nor any document marked.
2.4. Among the Prosecution witnesses P.W-1 is the victim. P.W-2 is the
maternal grandmother of the victim. P.W-3 is the owner of the building in
which the Accused was alleged to have been running a Browsing centre under
the name of Sara Browsing center. P.W-4 is the owner of a Provision Store
near the browsing center. P.W-5 is an attesting witness to the confession
statement of the Accused during arrest. P.W-6 is the woman Head Constable
who accompanied the victim to subject her to medical examination. P.W-7 is
the Special Sub Inspector of Police, Pallapatty Police Station who
accompanied the Accused to subject him to medical examination and his age.
P.W-8 is the Headmistress of the School where the victim studied during the
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relevant period. P.W-9 is the Scientific Officer in the Forensic Lab, Salem who
conducted the forensic examination of the vaginal swab of victim and sent a
report to the Court under Ex.P-7. P.W-10 is the Assistant Professor,
Government Mohan Kumaramangalam Medical College Hospital, Salem who
examined the Accused and issued potency certificate under Ex.P-9. P.W-11-
Assistant Professor of Forensic Examination/Women Doctor, Government
Mohan Kumaramangalam Medical College Hospital, Salem who subjected the
victim/P.W-1 to the medical examination and issued certificate of medical
examination for sexual offences under Ex.P-12 and final opinion under Ex.P-
13 and age certificate based on the Radiological examination for victim. As
per the age certificate of victim issued by P.W-11, the victim was aged above
16 and below 18. P.W-12 is the Sub Inspector of Police who received the
Complaint from P.W-1 and registered the FIR under Ex.P-15. P.W-13 is the
Inspector of Police, Fairlands Police Station, is the Investigation Officer and
P.W-14 is the successor of P.W-13.
2.5. After hearing the argument of the Prosecution and the learned
Counsel for defence, the learned Sessions Judge, Fast Track Mahila Court by
Judgment dated 03.03.2017 in Spl.S.C.No.8 of 2015 convicted the Accused for
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the offence under Section 363 of IPC and sentenced him to undergo seven
years of Rigorous Imprisonment and to pay a fine of Rs.2,000/-, in default, to
undergo six months of Simple Imprisonment. For the offence under Section
366 of IPC, the Accused was sentenced to undergo 10 years of Rigorous
Imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo six
months of Simple Imprisonment. For the offence under Section 6 r/w. 5 (i) of
Protection of Children from Sexual Offencs Act, 2012, he was sentenced to
undergo 10 years of Rigorous Imprisonment and to pay a fine of Rs.10,000/-,
in default, to undergo six months of Simple Imprisonment. Out of total fine of
Rs.20,000/-, Rs.10,000/- was ordered as compensation under Section 357(1) of
Cr.P.C. All the sentences were ordered to run concurrently and the period of
sentence already undergone was ordered to be set off under Section 428 of the
Code.
2.6. Aggrieved by the Judgment of conviction and sentence dated
03.03.2017 made in Special Sessions Case No. 8 of 2015 by the learned
Sessions Judge, Mahila Court, Salem, this Appeal had been preferred by the
Accused.
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3. The learned Counsel for the Appellant/Accused/Accused
submitted that a false case had been foisted against the Accused and he was
fixed based on the Complaint of P.W-1. P.W-1, victim had given the
complaint, based on the insistence of her mother. According to the learned
Counsel, the mother and paternal aunt of the victim girl are Members of
Democratic Youth Federation of India and they have wielded their influence to
register the case against the Accused. P.W-5 is also Office bearer of
Democratic Youth Federation of India who stood as witness for arrest and
confession of the Accused.
4. According to the learned Counsel for the Appellant/Accused, it
was a love affair between the Accused and the victim. It was a case of
elopement by the victim with the Accused on the insistence of the victim.
However, the case was foisted as though the victim is a child under Protection
of Children from Sexual Offences Act, 2012. The Prosecution documents have
been procured to project as though the victim was a child. P.W-8,
Headmistress was examined by the Prosecution, but she had not produced any
document from School. She had issued only “Bonafide Certificate” under
Ex.P-6, based on which, the entire case had been neatly stitched against the
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Accused. As per the Radiology report, the victim is aged between 16 and 18.
It is a consensual relationship between the Accused and the victim which was
not considered by the learned Sessions Judge while recording a conviction
against the Accused.
5. The learned Counsel for the Appellant/Accused submitted that
P.W-11/Doctor who had subjected the victim/P.W-1 to medical examination,
admitted in her cross-examination that children of the age of the victim, who
are active in sports, will get their hymen ruptured and it is a natural
phenomenon. However, she had wantonly denied cross-examination by partly
admitting that the hymen will be torn but adding that it is not one such case.
There are materials in the Medico-Legal Jurisprudence that the girl of the age
of the victim who is active in sports will suffer hymen torn and such a rupture
cannot be presumed only when the girls are subjected to sexual intercourse.
P.W-1/victim admitted that she was a hockey player in her School representing
the State Level Team. She had admitted in cross-examination that she had
been taking strenuous practice and physical exercise for the game. This part of
evidence was omitted to be considered by the learned Sessions Judge and she
had mechanically convicted the Accused on the basis of Section 29 of
Protection of Children from Sexual Offences Act, 2012 by drawing
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presumption against him.
6. The learned Counsel for the Appellant/Accused further submitted
that the case was foisted against the Appellant/Accused by the mother of the
victim, however, she was not at all examined as a witness before the trial
Court. There is no explanation forthcoming from the Prosecution as to why
she was not examined before the trial Court. P.W-2 is the paternal
grandmother of the victim. The mother of the victim was instrumental in
registering the FIR and it is she who has forced the victim to give a complaint.
Even the victim, in her deposition, had stated that her mother unearthed the
relationship between her and Accused. Even the victim had stated in her
deposition that she, on her own, accompanied the Accused. However, the
complaint, based on which the First Information Report was registered, was
given with a different version at the instance of the mother and aunt of the
victim. According to the learned Counsel for the Appellant/Accused, P.W-
1/victim proposed love to the Accused and when he refused, she had even
committed self-inflicted injuries in her hands. Thus, only at the instance of the
De-facto Complainant, the Accused developed a relationship with her, which
was objected to by the mother of the victim. P.W-1 in her evidence also stated
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that she was slapped by her mother for coming late on a particular day and
based on her insistence only, the Complaint under Ex.P-1 was lodged by
her/P.W-1. Therefore, the Prosecution ought to have examined the mother of
P.W-1 and it is fatal to the case. The learned Sessions Judge, Mahila Court,
Salem, failed to appreciate the circumstances under which Ex.P-1 was lodged
and ought to have drawn an adverse inference against the Prosecution case for
not examining the mother of the victim. Thus, a case of consensual sex was
converted into one of penetrative sexual assault falling within the provisions
of the Protection of Children from Sexual Offences Act, 2012 on the insistence
of Office bearers of Democratic Youth Federation of India, which is legally not
sustainable.
7. The learned Counsel for the Appellant/Accused proceeded to
contend that P.W-5 is an active member of Democratic Youth Federation of
India, Salem and he is a familiar personality in the locality. His evidence is
unbelievable as he is a chance witness. In his cross-examination, he had stated
that he heard from those residing in the vicinity about the sexual assault made
by the Accused. He had also stated that on 20.07.2014, when he went near
Gokulam Hospital for purchasing spare parts, the Pallapatti Police officials
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asked him and one Murugan to sign the statement recorded by him. Therefore,
his statement will have no evidentiary value. He admitted in cross-examination
that he knew the family of the victim and Accused. He rejected the suggestion
of the learned Counsel for the defence that there is animosity between him and
the Accused regarding fund raising by P.W-5. P.W-5 is a Ward Secretary of
Democratic Youth Federation of India. According to the learned Counsel,
when P.W-5 asked the Accused to donate funds, he refused and therefore, he
was cornered by P.W-5 to wreck vengeance. The case is a foisted based on
discussion among the Democratic Youth Federation of India activists of Salem
City. Even the victim in her evidence had stated that her paternal aunt is an
office bearer in Democratic Youth Federation of India, Salem and they had
accompanied P.W-1 to ensure that a case is registered against the Accused.
8. The learned Counsel for the Appellant/Accused also submitted
that the Inspector of Police/P.W-13 in his evidence denied the suggestions that
the case was foisted on the basis of pressure exerted by Democratic Youth
Federation of India, Salem. It is through P.W-13 the photostat copy of the
birth certificate of the victim was marked, which is inadmissible in evidence.
Had it been true, he ought to have produced the original birth certificate of the
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victim but only a photostat copy was marked. Therefore, the learned Counsel
for the defence, during trial, objected to marking Ex.P-24. Further, the owner
of the building/P.W-3 had not supported the case of the Prosecution.
Therefore, he was treated as hostile.
9. It is further submitted by the learned Counsel for the
Appellant/Accused that P.W-8 is the Headmistress of the School where P.W-1
studied. P.W-8 did not furnish the original School Certificate or copy of the
register maintained by the School. Therefore, Ex.P-6 issued by P.W-8 had no
evidentiary value. The Prosecution had not produced original birth certificate
in this case for reasons best known to the Investigation Officer. Above all, the
alleged occurrence is on 02.04.2014 whereas the Complaint was given on
20.07.2014. However, the Prosecution did not explain the delay in preferring
the Complaint. Therefore, it is submitted that the Complaint was given after
much discussion and deliberation among the Office bearers of Democratic
Youth Federation of India, Salem with a clever drafting to attract the
Protection of Children from Sexual Offences Act, 2012, to wreck vengeance
on the Accused who refused to provide funds to Democratic Youth Federation
of India. It is also an admitted fact that the paternal aunt of the prosecutrix is
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an active member of Democratic Youth Federation of India.
10. The learned Counsel for the Appellant/Accused further stated that
the suggestion put to the Investigation Officer that the two wheeler of the
Accused was seized from the house of the Accused and not while the Accused
was proceeding on his motorcycle near the Gokulam Hospital was denied by
P.W-13. The suggestion that all the records were prepared in the Pallapatty
Police Station by the subordinates of P.W-13 was also denied by him. It is to
be noted that P.W-13 in his cross-examination had stated that the victim had in
her statement mentioned about the sexual intercourse taken place near Erikarai
@ Kalipatti Vaigundam Road, but no rough sketch had been prepared about
the geographical location of the said place and was admitted by him.
11. The learned Counsel for the Appellant/Accused invited the
attention of this Court to the subsequent improvements of the Prosecutrix in
her examination-in-chief by introducing new facts which she had not
mentioned in her Section 164 Cr.P.C. statement before the Investigation
Officer. Those statements had been admitted by P.W-13 in his cross-
examination. The evidence of the prosecutrix is not a sterling quality to
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invoke Section 29 of the Protection of Children from Sexual Offences Act,
2012. Only if the Court arrives at a conclusion that the prosecutrix evidence
inspires confidence, the Court can convict the Accused. The evidence of
prosecutrix and her maternal grandmother are not of sterling quality. A birth
certificate had been procured by the Investigation Officer as a photostat copy
and it was marked whereas the original birth certificate had not been produced.
The School Headmistress had not produced the register maintained in the
School to furnish the correct date of birth of the prosecutrix. Therefore, the
Judgment of conviction recorded by the learned Sessions Judge, Mahila Court
is perverse and is to be set aside.
12. In support of his contention, the learned Counsel for the
Appellant/Accused relied on the unreported ruling in Crl.A.No.1053 of 2009
in the case of Alamelu and another Vs. State represented by the Inspector of
Police which is based on the ruling of the Hon'ble Supreme Court in the case
of Birad Mal Singhvi Vs. Anand Purohit [1988 AIR 1796], wherein it was
observed as follows:-
“The date of birth mentioned in the scholars' register
has not evidentiary value unless the person who made the
entry or who gave the date of birth is
examined...........................”
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13. The learned Counsel for the Appellant/Accused also submitted
that a person who had given or furnished the date of birth of the child during
the admission of the child in the School is competent to depose in this case. If
that person is not examined, the date of birth mentioned by the Prosecution has
to be treated as one without any supportive evidence. The parents who
provided the date of birth at the time of admission ought to have been
examined in this case. As mentioned above, the mother of the victim was not
at all examined for the reasons best known to the Prosecution. Here, the
mother of the victim is alive. As per the evidence of the victim, her father died
when she was a child and she is staying with her grandmother. While so, the
mother of the victim is a competent person to depose about the age of the
victim. She could have provided the date of birth of the victim when she was
admitted in School. As per the evidence of the Headmistress/P.W-8, the date of
birth of the victim, as per the register, is 1999. In her cross-examination, she
had stated that the date of birth entered in the School register is based on the
date of birth provided in the transfer certificate from the earlier School where
the student studied upto 5th standard. Thus, in the absence of furnishing the
complete School records maintained by the Headmistress/P.W-8, the
determination of age of the victim is not proper. Therefore, based on the
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ruling reported in Birad Mal Singhvi Vs. Anand Purohit [1988 AIR 1796],
the Judgment dated 03.03.2017 of the learned Sessions Judge, Salem in
Spl.S.C.No.8 of 2015 is liable to be set aside.
14. Opposing the submissions made by the learned Counsel for the
Appellant/Accused, the learned Additional Public Prosecutor submitted that
the evidence of P.W-1 and P.W-2 paternal grandmother is of a sterling quality.
The victim had clearly narrated the facts that when she was studying 9th
standard, she had gone to the nearby browsing center, which is nearer to her
place of residence, to complete her project work. She also deposed that after
one or two acquaintances, the Accused made advances as though he is in love
with her. Even though she refused, he teased her when going to School and on
returning to School and stalked her. Subsequently, he convinced that he will
marry her. On a particular day, when she had gone for project work after
sending away everyone from the browsing centre, under the pretext of lunch
and that he is going to close down the browsing center, he forcibly undressed
the victim girl and had sexual intercourse with her. Subsequently, he had
asked the victim to come to the Bus Stand at Pallapatty and from there
accompanied her in his motorcycle to a temple. After worshiping in the
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temple, enroute, he had stopped the vehicle near a lake, where, near a bush, he
had sexual intercourse with the prosecutrix. On that day, the victim did not go
to School and the teachers of the School contacted the mother of the
prosecutrix who is working in Tiruppur. Therefore, when the victim reached
home late, she was questioned by her grandmother and also by her mother.
Subsequently, the mother of the victim came from Tiruppur and questioned
her. P.W-1 also in her deposition clearly stated that when she returned home
from School hours on a regular School time, she was surprised to find her
mother at home in Salem. When her mother questioned as to why she came
late two days back, she gave evasive reply, which was not accepted by the
mother. When the victim was slapped by her mother, she had spilled the beans.
The mother of the De-facto Complainant immediately asked the victim to give
a complaint to the Police. According to the learned Additional Public
Prosecutor, by the time when the case was taken up for trial, the mother of the
victim girl was employed in Dubai and she could not travel all the way from
her place of employment to Salem, India. She was working as a housemaid in
Dubai to support the victim girl for her bright future. The victim was an active
hockey player. It is in evidence that her sports dress was removed by the
Accused at the browsing center.
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15. The learned Additional Public Prosecutor also submitted that the
Headmistress of the School had furnished the School records maintained by
her. The Headmistress of the Government Aided School is an official of the
Government. Her statement has evidentiary value. She is leading evidence
based on records. As per Section 114 of Indian Evidence Act, the Government
Official in due course of his/her official work is presumed that they are
executing their official work. There is no intention on the part of the
Headmistress to give a false date of birth certificate while deposing evidence.
She is aware of the risk involved in giving false evidence before the Court. If
the evidence of P.W-8 is false, the Accused should have summoned the
documents from the School where the prosecutrix studied at the relevant point
of time. The medical evidence of P.W-11 under Ex.P-14 disclose the age of
the victim given as 16 to 18. It is well settled that the probable age disclosed
by the medical experts can be more or less. If that is taken into consideration,
the radiological report differs from individual to individual based on the food
habits, heredity of individual etc., Therefore, +/-2 is added to the range 16 to
18. Here, there is clear evidence by P.W-8 that the date of birth as recorded in
the School is 16.03.1999. The prosecutrix was admitted in 6th standard in the
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year 2011 in St.Marry's School and she was studying IX standard during the
year 2014. In her cross-examination, P.W-8 had clearly stated that the School
records are maintained based on the caste certificate and date of birth
certificate furnished by the parents of the children. Therefore, the evidence of
P.W-8 has evidentiary value and it is admissible in evidence and therefore, the
ruling of Hon'ble Supreme Court in the case of Birad Mal Singhvi Vs. Anand
Purohit [1988 AIR 1796] cannot be made applicable to the facts of the present
case. Further, the Inspector of Police had furnished the date of birth
certificate, Ex.P-24, attested photostat and it also corroborates the evidence of
P.W-8. If that was disputed by the Accused, the Accused should have
summoned the officials of the Salem Municipal Corporation from where birth
certificate had been issued under Ex.P-24. He had not discharged the reverse
burden to dispute the presumption under Section 29 of the Protection of
Children from Sexual Offences Act, 2012. Therefore, the victim is a child
attracting the provisions of the Protection of Children from Sexual Offences
Act, 2012. The Judgment of the Trial Court is found acceptable and well
reasoned Judgment. The learned Judge had discussed those circumstances in
Paragraph No.28 of the Judgment and rejected the claim of the defence
Counsel that the medical report furnished by P.W-11 and P.W-9 against the
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Accused does not contain injury on the genital of the Accused and victim.
16. The learned Additional Public Prosecutor also pointed out the
cross-examination of P.W-11, wherein she had clearly denied the suggestion
that the injury or tear caused on the hymen of a girl, similar to the age of the
victim, who is active in sports, will not be as in the case of the victim and this
is a clear case of sexual assault. If what had been stated by the learned Counsel
for the Accused had been true that the girls of the age of the victim who are
active in sports suffer hymen tear based on the medico-legal cases, they should
have furnished those records or books regarding Medico-Legal cases but it
was not done. A theoretical question was put to P.W-11 and she refused and
denied it based on her experience in the field. The arguments of the learned
Counsel for the Accused before the trial Court that the genitals of the victim as
well as the Accused did not have injuries indicates it was a consensual sex was
also rejected by the learned Sessions Judge, Mahila Court on the ground. The
learned Judge had clearly discussed the emotional circumstances of a teenage
girl who had been exploited by the Accused. The same had been discussed by
the learned Judge in Paragraph Nos. 28 and 29. In Paragraph Nos.32 and 33,
the learned Judge observed that “What dress she wear is not important to
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decide the case. What act committed by the Accused is more important to
decide the case. The victim girl clearly deposed in her evidence that the
Accused removed her dress and committed penetrative sexual assault, at his
browsing center on 02.04.2014, again on 16.07.2014 at Attayampatty Erikarai
Karadu Accused had committed penetrative sexual assault. Even though she
gave consent to the sexual act of the Accused it is not at all considered due to
the age of the victim girl. And the Medical Officer who conducted the medical
examination of the victim girl clearly deposed that her hymen is not intact and
she shows signs of defloration. The victim girl sent for medical examination
only on 21.07.2014. After 5 days from the date of occurrence. Hence there is
no possibility of spermatozoa in the vaginal smear of the victim girl.”
17. The learned Additional Public Prosecutor also contends that the
claim of the defence that the case was foisted based on the influence exerted
by P.W-5 was rejected. The delay in lodging a case had been explained by the
Investigation Officer claiming that the delay is due to the complainant. The
learned Judge had discussed that the delay in lodging case is not vitiated. In
Paragraph No.35 of Judgment, based on the ruling of the Hon'ble Supreme
Court, the learned Judge had discussed that it is a settled law that the victim of
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sexual assault is not treated as an accomplice, as such her evidence need not be
corroborated by any other evidence including Doctor. In the normal course,
victim of child sexual assault does not like to disclose such offence even
before family members, much less before public or Police. The Indian women
has a tendency to conceal such offence, because it involves her prestige and
reputation of her family. The victim girl had deposed that her ambition is to
become a hockey player, due to this incident, she had to leave the St. Marry's
School and had to get admission in St. Dominic Higher Secondary School,
Trichy where she did not have facility to practice hockey. Also, the learned
Judge had stated that in the statement under Section 164 of Cr.P.C. the victim
had narrated the incident to the learned Judicial Magistrate. The statement
under Section 164 of Cr.P.C. does not have evidentiary value, it is only a
formality and a mandatory provision to inspire confidence of the Investigation
Officer that the investigation is on the right track. After 16.07.2014, after the
involvement of the Accused with the victim at Tathiyampatti Erikkarai, the
incident came to light due to the absence of the victim from the School which
was informed to her mother. Therefore, her mother, working at Tiruppur, came
down to Salem and questioned the victim when she returned from School after
her regular School time. The learned Judge had also discussed about the age
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of the victim and the certificate by P.W-8 in paragraph No.40 and considered
that the date of birth is 16.03.1999 as per Ex.P-24. If Ex.P-24 is objected by
the Accused, the Accused should have summoned competent officials of
corporation of Salem from where Ex.P-24 has been issued and marked the
same. Also, they should have summoned the original register maintained by
the School but they did not do so. Therefore, the Court can draw adverse
inference from the conduct of the Accused in not summoning the documents.
The learned Trial Judge is, therefore, justified in rejecting the arguments of the
Accused on the ground that (i) the case was foisted; (ii) There is delay in
lodging the FIR by three months after the alleged date of occurrence; (iii) On
the instigation of P.W-5 only, the FIR was registered by the mother insisting
the victim to register the complaint under Ex.P-1 after discussion among them
and (iv) there is consensual sex between victim and the Accused as the
Doctor's evidence under Ex.P-9 to Ex.P-13 did not indicate any injuries on the
genitals of the Accused and the victim. The plea on behalf of the Accused that
when there is no injury, it is a consensual sex was rejected by the learned
Sessions Judge on the ground that the victim of the sex is not accomplished
considering her age to be 15 on the relevant point of time. Therefore, the
learned Judge is well within her discretion to invoke Section 29 of the
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Protection of Children from Sexual Offences Act, 2012 by drawing
presumption that the evidence of the victim/P.W-1 is true and rejecting the
defence laid by the Accused that (i) age of the victim is not proved; (ii) it is a
consensual sex, where the victim only eloped with the Accused; (iii) delayed
First Information Report and (iv) foisted case. The logical conclusion arrived
by the learned Sessions Judge, Salem in convicting the Accused for the offence
under Section 6 r/w. 5 (i) of the Protection of Children from Sexual Offences
Act, 2012 is well-reasoned and it does not warrant any interference by this
Court.
18. Even for the argument sake that there are lapses on the part of the
Investigation Officer in conducting the case, considering the nature of the
offence committed on the helpless teenager, aged 15 at the relevant point of
time, the Court shall convict the Accused based on the evidence of the
prosecutrix alone, if it inspires confidence. It is not for the Accused to claim
that it does not inspires confidence. It is the discretion of the Trial Judge who
presides the Court and who records the evidence to appreciate the evidence to
decide whether the statement of the victim inspires confidence of the Court.
The learned Additional Public Prosecutor also relied on the following rulings:-
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(i) (2010) 8 SCC 191 in the case of Vijay alias Chinee Vs. State of
Madhya Pradesh wherein the Hon'ble Supreme Court had held as follows:-
“A. Penal Code, 1860 – S. 376 (2) (g) r/w S.34 and S.114-A,
Evidence Act, 1872 – Gang rape – Presumption of non-consensual
intercourse – Prosecutrix consistently stating that she had never
consented to intercourse and that she was forcibly caught, threatened at
knife-point and thereafter subjected to gang rape – No dispute regarding
place or alleged occurrence – FIR lodged promptly and Accused arrested
immediately – No evidence of false implication since Accused were
unknown to prosecutrix – Discrepancies found in her testimony
insignificant considering that she was illiterate rustic village girl – Non-
resistance because of fear, held, not unnatural – Consent by prosecutrix,
even if assumed she was a major, not established – Hence, conviction of
Appellant/Accused under Ss.376/34 and sentence of 10 years' RI along
with fine of Rs.500, held proper – Evidence Act, 1872 – S.114-A –
Applicability.”
19. It is settled legal proposition that while appreciating the
evidence of a witness, minor discrepancies on trivial matters, which do
not affect the core of the prosecution case, may not prompt the Court to
reject the evidence in its entirety.
20. In State of Rajasthan Vs. Om Prakash AIR 2007 SC 2257, while
dealing with a similar issue, this Court held that "irrelevant details which
do not in any way corrode the credibility of a witness cannot be levelled
as omissions or contradictions."
21. In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, this Court
laid down certain guidelines in this regard, which require to be followed
by the courts in such cases. The Court observed as under :-
"While appreciating the evidence of a witness, the approach must be
whether the evidence of the witness read as a whole appears to have a
ring of truth. Once that impression is formed, it is undoubtedly necessary
for the court to scrutinise the evidence more particularly keeping in view
the deficiencies, draw- backs and infirmities pointed out in the evidence as
a whole and evaluate them to find out whether it is against the general
tenor of the evidence given by the witness and whether the earlier
evaluation of the evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching the core of the case,
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hyper- technical approach by taking sentences torn out of context here or
there from the evidence, attaching importance to some technical error
committed by the investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence as a whole. If the
court before whom the witness gives evidence had the opportunity to form
the opinion about the general tenor of evidence given by the witness, the
appellate court which had not this benefit will have to attach due weight
to the appreciation of evidence by the trial court and unless there are
reasons weighty and formidable it would not be proper to reject the
evidence on the ground of minor variations or infirmities in the matter of
trivial details. Even honest and truthful witnesses may differ in some
details unrelated to the main incident because power of observation,
retention and reproduction differ with individuals. Cross examination is an
unequal duel between a rustic and refined lawyer."
22. In State Vs. Saravanan & Anr. AIR 2009 SC 152, while dealing
with a similar issue, this Court observed as under :-
".....while appreciating the evidence of a witness, minor discrepancies on
trivial matters without affecting the core of the prosecution case, ought not
to prompt the court to reject evidence in its entirety. Further, on the
general tenor of the evidence given by the witness, the trial court upon
appreciation of evidence forms an opinion about the credibility thereof, in
the normal circumstances the appellate court would not be justified to
review it once again without justifiable reasons. It is the totality of the
situation, which has to be taken note of. Difference in some minor detail,
which does not otherwise affect the core of the prosecution case, even if
present, that itself would not prompt the court to reject the evidence on
minor variations and discrepancies."
23. It is settled proposition of law that even if there are some
omissions, contradictions and discrepancies, the entire evidence cannot be
disregarded. After exercising care and caution and sifting the evidence to
separate truth from untruth, exaggeration and improvements, the court
comes to a conclusion as to whether the residuary evidence is sufficient to
convict the Accused. Thus, an undue importance should not be attached to
omissions, contradictions and discrepancies which do not go to the heart
of the matter and shake the basic version of the prosecution witness. As
the mental capabilities of a human being cannot be expected to be attuned
to absorb all the details, minor discrepancies are bound to occur in the
statements of witnesses (vide Sohrab & Anr. Vs. The State of M.P. AIR
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1972 SC 2020; Bharwada Bhogini Bhai Hirji Bhai Vs. State of Gujarat
AIR 1983 SC 753; Prithu @ Prithi Chand & Anr. Vs. State of Himachal
Pradesh (2009) 11 SCC 588; and State of U.P. Vs. Santosh Kumar & Ors.
(2009) 9 SCC 626).
24. Thus, in view of the above, the law on the point can be
summarised to be that the evidence of the witnesses must be read as a
whole and the cases are to be considered in totality of the circumstances
and while appreciating the evidence of a witness, minor discrepancies on
trivial matters, which do not affect the core of the prosecution case, should
not be taken into consideration as they cannot form grounds to reject the
evidence as a whole.”
(ii) (2020) 10 SCC 573 in the case of Ganesan Vs. State wherein the
Hon'ble Supreme Court had held as follows:-
“A. Crimes against Women and Children – Protection of Children
from Sexual Offences Act, 2012 – S.7 r/w. S.8 – Conviction on sole
testimony of victim – Permissibility of – Where testimony of victim is found
reliable and trustworthy, reiterated, conviction on basis of her sole
testimony is permissible- In instant case, victim P.W-13 aged 15 yrs at
time of deposition was matured and her testimony was found trustworthy,
unblemished and her evidence was of sterling quality – Hence, conviction
on basis of her testimony was justified – Criminal Trial – Witnesses –
Sole/Solitary Witness.”
19. In this case, the learned Judge observed that the mother of the
victim girl had gone to Dubhai for job and hence, she was not examined. At
the time of occurrence P.W-1 was residing at her grandmother's house. The
victim girl had not stated to her mother that the incident happened on
02.04.2014. On 16.07.2014 only she reported everything to her mother.
Thereafter, the Complaint was given to Pallapatty Police Station. The
suggestion put to P.W-5 that he was instrumental in lodging the complaint was
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denied by him. He admitted that he was a member of Democratic Youth
Federation of India. When the learned Counsel for the Accused put a question
that the Accused did not contribute to the funds of Democratic Youth
Federation of India and therefore, there was an enmity between the Accused
and P.W-5 and only to wreck vengeance, P.W-5 had instigated the Complaint
against the Accused, was denied by him. The Accused also is a member of
Democratic Youth Federation of India and after this incident, he was removed
from Democratic Youth Federation of India for his misconduct. The nature of
the offence committed by the Accused was considered in detail by the learned
Trial Judge and he was sentenced to undergo 10 years of Imprisonment. Such
a well considered Judgment need not be interfered with by this Court.
Accordingly, the learned Additional Public Prosecutor prayed for dismissal of
this Appeal.
Point for consideration:-
Whether the Judgment dated 03.03.2017 passed
in Spl. S.C. No.8 of 2015 by the learned Sessions Judge,
Mahila Court, Salem, recording conviction under Section 6
r/w. 5 (i) of IPC and Sections 363 and 366 of IPC is to be set
aside as perverse?
20. Heard the learned Counsel for the Appellant/Accused and the
learned Additional Public Prosecutor. Perused the evidence of the Prosecution
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viz., P.W-1 to P.W-14 and documents under Ex.P-1 to Ex.P-29 and also the
Judgment dated 03.03.2017 passed in Spl. S.C. No.8 of 2015 by the learned
Sessions Judge, Mahila Court, Salem.
21. From the records, it is found that the case was registered by P.W-
12 Sub Inspector of Police, Pallapatty Police Station based on the complaint
under Ex.P-1 given by the De-facto Complainant for the offence under Section
363 of Indian Penal Code and Sections 3 and 4 of the Protection of Children
from Sexual Offences Act, 2012. After completion of investigation, the
Investigation Officer laid the final report altering the charges and by including
Section 376 (2) (i) (n) of IPC. The learned Session Judge, Mahila Court
framed the charges for the offence under Sections 363, 366 and Section 6 r/w.
5 (l) of the Protection of Children from Sexual Offences Act, 2012. The
difference between Sections 3 and 5 are Section 3 defines penetrative sexual
assault whereas Section 5 explains penetrative sexual assault committed by
Police Officials or Officials in Armed Force who has control over his
subordinates. For the aggravated penetrative sexual assault committed by the
Members of Police Force or Armed Forces, the punishment is mentioned in
Section 6 which is not less than 20 years and which may extend to life or the
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reminder of natural life of person. But for the offence of penetrative sexual
assault under Section 3, the minimum punishment as per Section 4 is 10 years.
Subsequent to the amendment in the year 2019, instead of 7 years, it was
amended as 10 years and then it was enhanced to minimum 20 years. The
incident reported by the prosecutrix in this case took place in the year 2014
viz., prior to 2019. Therefore, the sentence imposed by the learned Sessions
Judge is not as per Section 5 of the Act and it only attract punishment under
Section 3 r/w. 4 of the Protection of Children from Sexual Offences Act, 2012
as its exists on the date of commission of the offence. The framing of charge
by the then learned Sessions Judge is found faulty. However, the learned
Counsel for the Appellant/Accused did not point out the same for reasons best
known to him. Even though the learned Additional Public Prosecutor objected
to the argument of the learned Counsel for the Appellant/Accused and
supported the Judgment of the learned Sessions Judge recording the
conviction, she also did not point out the same. Section 3 to 6 of the Protection
of Children from Sexual Offences Act, 2012 are to be extracted hereunder:-
“3. Penetrative sexual assault.—A person is said to commit "penetrative
sexual assault" if—
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra
or anus of a child or makes the child to do so with him or any other
person; or
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(b) he inserts, to any extent, any object or a part of the body, not being
the penis, into the vagina, the urethra or anus of the child or makes the
child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause
penetration into the vagina, urethra, anus or any part of body of the child
or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or
makes the child to do so to such person or any other person.
4. Punishment for penetrative sexual assault.—Whoever commits
penetrative sexual assault shall be punished with imprisonment of either
description for a term which shall not be less than seven years but which
may extend to imprisonment for life, and shall also be liable to fine.
B.—AGGRAVATED PENETRATIVE SEXUAL ASSAULT AND
PUNISHMENT THEREFOR
5. Aggravated penetrative sexual assault.—
(a) Whoever, being a police officer, commits penetrative sexual assault on
a child — (i) within the limits of the police station or premises at which he
is appointed; or (ii) in the premises of any station house, whether or not
situated in the police station, to which he is appointed; or (iii) in the
course of his duties or otherwise; or (iv) where he is known as, or
identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces
commits penetrative sexual assault on a child—
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the
security or armed forces; or
(c) whoever being a public servant commits penetrative sexual assault on
a child; or
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(d) whoever being on the management or on the staff of a jail, remand
home, protection home, observation home, or other place of custody or
care and protection established by or under any law for the time being in
force, commits penetrative sexual assault on a child, being inmate of such
jail, remand home, protection home, observation home, or other place of
custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether
Government or private, commits penetrative sexual assault on a child in
that hospital; or
(f) whoever being on the management or staff of an educational institution
or religious institution, commits penetrative sexual assault on a child in
that institution; or
(g) whoever commits gang penetrative sexual assault on a child.
Explanation.—When a child is subjected to sexual assault by one or more
persons of a group in furtherance of their common intention, each of such
persons shall be deemed to have committed gang penetrative sexual
assault within the meaning of this clause and each of such person shall be
liable for that act in the same manner as if it were done by him alone; or
(h) whoever commits penetrative sexual assault on a child using deadly
weapons, fire, heated substance or corrosive substance; or
(i) whoever commits penetrative sexual assault causing grievous hurt or
causing bodily harm and injury or injury to the sexual organs of the child;
or
(j) whoever commits penetrative sexual assault on a child, which— (i)
physically incapacitates the child or causes the child to become mentally
ill as defined under clause (b) of section 2 of the Mental Health Act, 1987
(14 of 1987) or causes impairment of any kind so as to render the child
unable to perform regular tasks, temporarily or permanently; or (ii) in the
case of female child, makes the child pregnant as a consequence of sexual
assault; (iii) inflicts the child with Human Immunodeficiency Virus or any
other life threatening disease or Infection which may either temporarily or
permanently impair the child by rendering him physically incapacitated,
or mentally ill to perform regular tasks; or
(k) whoever, taking advantage of a child's mental or r physical disability,
commits penetrative sexual assault on the child; or
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(l) whoever commits penetrative sexual assault on the child more than
once or repeatedly; or
(m) whoever commits penetrative sexual assault on a child below twelve
years; or
(n) whoever being a relative of the child through blood or adoption or
marriage or guardianship or in foster care or having a domestic
relationship with a parent of the child or who is living in the same or
shared household with the child, commits penetrative sexual assault on
such child; or
(o) whoever being, in the ownership, or management, or staff, of any
institution providing services to the child, commits penetrative sexual
assault on the child; or
(p) whoever being in a position of trust or authority of a child commits
penetrative sexual assault on the child in an institution or home of the
child or anywhere else; or
(q) whoever commits penetrative sexual assault on a child knowing the
child is pregnant; or
(r) whoever commits penetrative sexual assault on a child and attempts to
murder the child; or
(s) whoever commits penetrative sexual assault on a child in the course of
communal or sectarian violence; or
(t) whoever commits penetrative sexual assault on a child and who has
been previously convicted of having committed any offence under this Act
or any sexual offence punishable under any other law for time being in
force; or
(u) whoever commits penetrative sexual assault on a child and makes the
child to strip or parade naked in public, is said to commit aggravated
penetrative sexual assault.
6. Punishment for aggravated penetrative sexual assault.—
Whoever, commits aggravated penetrative sexual assault, shall be
punished with rigorous imprisonment for a term which shall not be less
than ten years but which may extend to imprisonment for life and shall
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also be liable to fine.”
22. The sentence imposed by the learned Sessions Judge is therefore
found proper. As per Section 3 and 4 of the Protection of Children from
Sexual Offences Act, 2012, by inadvertence, the charge framed at the initial
stage as penetrative sexual assault or aggravated penetrative sexual assault
under Section 5 of Act. Therefore, the sentence imposed by the learned
Sessions Judge is justified. That part of the Judgment is found not as per the
act committed by the Accused but as per the evidence of the victim.
Therefore, the sentence imposed under Section 5 r/w. 6 of the Protection of
Children from Sexual Offences Act, 2012 is altered by this Court as offence
under Section 3 r/w. 4 of Act even though the Investigation Officer P.W-14 had
laid the final report under Section 376 (2) (i) (n) of IPC. The learned Judge had
not considered the same as it was found proper that under Section 5 and 6 of
the Protection of Children from Sexual Offences Act, 2012 alone is attracted.
That is a flaw committed by the learned Sessions Judge who was the then
presiding Judge, Mahila Court, Salem. The learned Judge conducted trial and
the Judge who convicted the Accused are different individuals. She had
imposed sentence as per the charge framed by the learned Sessions Judge who
had framed charges under Sections 363, 366 of IPC and Section 6 r/w. 5 (i) of
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the Protection of Children from Sexual Offences Act, 2012.
23. On assessment of evidence of the Prosecution witnesses, it is seen
that P.W-3 was the owner of the building where the Accused was running his
browsing center and P.W-4 is the provision shop owner on the adjacent shop
adjoining the browsing center within the same building belonging to PW-3.
Both had not supported the Prosecution regarding observation mahazar and
they were cited as witnesses to the observation mahazar. Invariably in cases of
this nature, the witnesses other than the victims of crime turn hostile. That will
not weaken the case of the Prosecution. In Sessions case, the offences are in
grave nature and if the evidence of the victim inspires confidence, the Court is
justified in convicting the Accused. Here, as pointed out by the learned
Counsel for the Appellant/Accused, the mother of the victim had not been
examined. The learned Sessions Judge had given out the reasons for
dispensing with the evidence of the mother of the victim. By the time when
trial commenced, the mother of the victim was employed in Dubhai. The
grandmother of the victim/P.W-2 had mentioned that the mother of the victim
was employed as housemaid in Dubhai. Earlier, she was working as a tailor in
Tiruppur Banian Factory. At the time of lodging of complaint, she was eking
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her livelihood to bring up her children who lost their father without much
difficulty to make them successful in their life by providing them good
education. The grandmother with whom the victim and the elder sister were
living was also eking her livelihood by working as a maid in a hospital. In the
course of the evidence, P.W-2 had expressed her agony by her uncontrollable
cry for help before the Court which was recorded by the learned Sessions
Judge. This was also pointed out by the learned Additional Public Prosecutor
during the course of argument. The learned Additional Public Prosecutor
pointed out that P.W-2 broke down while deposing evidence because of the
sexual exploitation of her minor grandchild by the Accused. The learned Trial
Judge had recorded the demeanour of witnesses.
24. The learned Judge relied heavily on the evidence of P.W-1. As a
trial Court, it need not consider the statement which was recorded by the
Police under Section 161 Cr.P.C. or the statement under Section 164 of Cr.P.C.,
before the learned Judicial Magistrate – IV. The trial Court is conducting the
trial to know the truth. Therefore, what is deposed as evidence by the
witnesses before the trial Court will have more weightage. It is for the
respective trial Judges to reject a part of evidence and to accept another part of
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evidence. As rightly pointed out by the learned Additional Public Prosecutor,
the learned Judge had ignored the minor discrepancies which she had clearly
discussed in Paragraph Nos.21 to 33. The learned Judge had also discussed
the defence of the Accused and rejected it in Paragraph Nos.26, 31 and 33. In
Paragraph No.33, the learned Judge had observed that what dress she wear is
not important to decide the case. What act committed by the Accused is more
important to decide the case. The victim clearly deposed that the Accused
removed her dress and committed penetrative sexual assault at his browsing
center on 02.04.2014 and again on 16.07.2014 at Attayampatty Erikarai
Karadu. Even though she gave consent to sexual act of the Accused, it is not
at all considered as a consent, as she is incompetent to give consent due to her
age.
25. The Medical Officer P.W-11 Dr.Sangeetha had clearly deposed
that hymen is not intact. The victim girl was subjected to medical examination
on 21.07.2014, after 5 days from the date of occurrence. Therefore, there is no
possibility of spermatozoa in the vaginal smear of the victim. Taking note of
this, the learned Judge discussed the defence of the Accused in Paragraph
Nos.34 and 35 and rejected the defence of the Accused. As the trial Judge had
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the benefit of observing the demeanour of the witnesses and the Accused, the
Appellate Court only can peruse the depositions recorded by the trial Judge
and documents marked before the trial Court to conclude whether the evidence
so recorded have been properly assessed.
26. As rightly pointed out by the learned Additional Public
Prosecutor, the Headmistress of School P.W-8 where the victim studied at the
relevant point of time in the year 2014 in 9th standard furnished the certificate
issued by her and authenticated by her from the School records. As per the
ruling cited by the learned Counsel for the Appellant/Accused in the case of
Birad Mal Singhvi Vs. Anand Purohit [1988 AIR 1796] that part of evidence
cannot be considered. At the same time, P.W-8 had clearly stated in her cross-
examination that in the School register, the date of birth of the student is
recorded as 16.03.1999. That part of evidence of P.W-8 has weightage
because she does not have any cause to take sides against the Accused. Also,
Headmistress of Government Aided School where the victim is a student in 9th
standard was summoned by the Court to give particulars about the date of birth
registered in the School. The Investigation Officer at the initial stage of
investigation had obtained relevant details by examining her and obtained the
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records from the School. Therefore, she had given a School certificate signed
by her which attracts the provisions of Section 114 of Indian Evidence Act. As
per Section 114 of Evidence Act, Government Officials are presumed to act
lawfully in discharge of their duty. There is no necessity for P.W-8 to give
false evidence before the Court to see to it that the Accused is punished.
27. The Investigation Officer in this case P.W-13 had collected the
photostat copy of the date of birth certificate under Ex.P-24 issued to the
victim when she was born. It contains the name of the father of the
victim/Pandian and mother of the victim/Poongodi. If what is furnished as
Ex.P-24 is disputed by the Accused, the Accused should have let in evidence
to discharge the reverse burden and disprove Ex.P-24 and Ex.P-6 by
summoning documents from the School. Since the Accused had not let in
evidence, this Court accept the evidence marked through P.W-13 with
objection of the Accused. The objection was over-ruled by the learned
Sessions Judge by relying on the birth certificate marked as Ex.P-24. It is to
be noted that it is a prime document issued by the competent authorities
concerned. Therefore, the rejection of the objection by the learned Sessions
Judge regarding Ex.P-24 is justified. If Ex.P-24 is rejected by the learned
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Sessions Judge, it will result in rejecting the most important evidence before
the trial Court which will help the Accused to wriggle out of the case.
Therefore, the objection of the learned Counsel for the Accused before the trial
Court regarding marking of Ex.P-24 on the pretext it is only a photostat copy
is considered a ploy to derail the trial. When a document is marked before the
trial Court, it forms part of the trial records and it is retained in the Court till
the final stage of Appeal before the highest Court of the land either the High
Court or Supreme Court in which case the valuable document available with
the family of the victim for very many reasons in future required for the
education and job opportunities. The Investigation Officer had done a right
job by furnishing photostat copy for his file as material evidence in the
investigation of the case and the same had been marked in the Court.
28. The victim P.W-1 is a student of St. Mary's School, Salem wherein
P.W-8 was the Headmistress from 2011. In the year 2014, the victim was a
student of 9th Standard in St.Marry's School. Therefore, the evidence of P.W-8
supports Ex.P-24 based on which, the age of the victim as on the date of
occurrence is recorded as 16.07.2014. In this case, the FIR was registered on
20.07.2014. At that time, the victim was aged 15, attracting the Provisions of
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the Protection of Children from Sexual Offences Act, 2012. The trial
Court/Special Court for the Protection of Children from Sexual Offences Act,
2012 shall presume that such person has committed the offence. Therefore,
the assessment of evidence by the learned Sessions Judge based on the
evidence of P.W-1 victim and P.W-2 grandmother of the victim is justified.
The non-examination of mother of the victim regarding the date of birth of
victim P.W-1 as per the reported ruling in Birad Mal Singhvi Vs. Anand
Purohit [1988 AIR 1796] relied by the learned Counsel for the
Appellant/Accused is rejected by this Court .
29. The ruling relied on by the learned Counsel for the
Appellant/Accused will not hold good in the facts and circumstances available
under Ex.P-1 to Ex.P-29 and the evidence available through P.W-1 and P.W-2.
The evidence of P.W-11 is also challenged by the Appellant/Accused on the
ground that she had wantonly denied the suggestion of the learned Counsel for
the defence before the trial Court that the child victim/Prosecutrix had
admitted that she was a Hockey player in School at the State Level and
undergoing strenuous exercise daily. She had by her sports activities suffered
rupture of the hymen which was noted by P.W-11 as rupture of the hymen. It
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was only a suggestion of the defence to which P.W-11 answered. The opinion
of P.W-11 is very clear that the tear of hymen is due to a sexual activity to
which the victim was subjected to.
30. The attack on the evidence of P.W-1 and P.W-2 that they are not
sterling quality cannot be countenanced. The learned trial Judge had the
advantage of observing the demeanour of witness which is not available to this
Court. The Investigation Officer had recorded the statement under Section
164 Cr.P.C., by addressing the learned Chief Judicial Magistrate and the
learned Chief Judicial Magistrate had nominated the learned Judicial
Magistrate-IV, Salem to record the statement. In the statement, the victim had
narrated the entire incident. Therefore, the evidence of P.W-1 has more
weightage under the Provision of the Protection of Children from Sexual
Offences Act, 2012. The deposition of P.W-1 is a sterling quality and
therefore, the learned Trial Judge placing reliance on evidence of P.W-1 is
justified.
31. As rightly pointed out by the learned Additional Public
Prosecutor, minor discrepancies has to be ignored in the light of the reported
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ruling in Vijay alias Chinee Vs. State of Madhya Pradesh [(2010) 8 SCC
191]. As per the ratio laid down in the said Judgment, the learned Judge had
ignored the minor discrepancies in the case. The learned Counsel for the
Appellant/Accused before the trial Court had pointed out the discrepancies of
the evidence of the prosecutrix regarding the dress worn by her as per her
statement before the Police and a different version in her statement under 164
Cr.P.C., It was also pointed out that there is discrepancy in the evidence before
the trial Court regarding the dress worn by her at the time of alleged
occurrence. Such discrepancies had been rejected as minor and ignored by the
learned Sessions Judge by observing that the dress worn by the victim is not
important. The act committed by the Accused against the victim is more
important. The learned Trial Judge had rightly rejected the chaff from the
grain and based on the sterling quality of evidence arrived at a logical
conclusion to convict the Accused for the offence under Sections 363, 366 of
IPC and Section 6 r/w. 5 (i) of the Protection of Children from Sexual
Offences Act, 2012.
32. On perusal of the evidence and on assessment of evidence of the
Prosecution Witnesses, P.W-5 had admitted in his cross-examination that he
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had accompanied the victim along with family to the Police Station. Just
because P.W-5/Member of Democratic Youth Federation of India and the
paternal aunt of victim happens to be Member of Democratic Youth Federation
of India, the claim of the Accused that he was framed cannot be accepted. The
contention of the Accused that he was targeted for not co-operating with the
Democratic Youth Federation of India in their fund raising will not be a ground
to wriggle out of this case. The evidence of P.W-5 in cross-examination that
the Accused was also a Member of Democratic Youth Federation of India and
he was removed after this incident also had to be considered.
33. The widowed mother of victim was working in Tiruppur and
maintaining her family at Salem which is roughly 120 kms away. The victim
and her sister are left in the care of paternal grandmother. Only female elders
are at home. Therefore, it is justified that they sought help of an acquaintance
who is also Member of Democratic Youth Federation of India to visit the
Police Station to lodge the complaint and it cannot be treated as a discussion in
the family to lodge a false Complaint against the Accused. Therefore, the
defence of the Accused is rejected by this Court on independent assessment of
evidence.
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34. In the light of the above discussion, the argument of the learned
Counsel for the Appellant/Accused placing reliance on the unreported ruling in
Crl.A.No.1053 of 2009 in the case of Alamelu & Another Vs. State which is
based on reported ruling in the case of Birad Mal Singhvi Vs. Anand Purohit
[1988 AIR 1796] regarding the evidence of P.W-8 and document under Ex.P-6
and Ex.P-24 is rejected. As already discussed above, the original birth
certificate was not parted by the victim as she requires the same for very many
purpose in future. Therefore, the family of victim had given photostat copy of
the same which was attested by the Investigation Officer P.W-13 as true copy
after comparison with the original. If what is claimed by the learned Counsel
for the Appellant/Accused is bona fide nothing prevented the Accused from
summoning the original document. Therefore, the Court draws adverse
inference against the Accused for not summoning the original documents and
discharging the reverse burden to disprove Ex.P-6 and Ex.P-24. The reasons
given by the learned trial Judge in accepting Ex.P-6 and Ex.P-24 is found
acceptable by this Court for the reasons mentioned above. Therefore, invoking
Section 29 of the Protection of Children from Sexual Offences Act, 2012 and
considering evidence of P.W-1 as sterling quality by the Trial Court is accepted
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by this Court. Accordingly, the point for consideration is answered in favour
of the Prosecution and against the Appellant/Accused. The Judgment dated
03.03.2017 passed in Spl. S.C. No.8 of 2015 by the learned Sessions Judge,
Mahila Court, Salem, recording conviction under Section 6 r/w. 5 (i) of IPC
and Sections 363 and 366 of IPC is found proper which does not warrant any
interference by this Court.
In the result, this Criminal Appeal is dismissed. The Judgment passed
by the learned Sessions Judge, Mahila Court, Salem in Spl.S.C.No.8 of 2015
dated 03.03.2017 is confirmed.
The Chairman, District Legal Services Authority/Principal District
Judge, Salem shall order enquiry by summoning the victim, the Investigation
Officer in this case/the Inspector of Police, Pallapatty Police Station with
relevant records and after holding enquiry shall grant appropriate
compensation as per the Victim Compensation Act within a reasonable period
of three months from the date of receipt of a copy of this order.
The learned Sessions Judge, Mahila Court, Salem is directed to issue
Warrant in continuation of the Judgment of Conviction recorded in the
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Judgment dated 03.03.2017 in Spl.S.C.No. 8 of 2015 to undergo the remaining
period of sentence of imprisonment by the Accused.
The Commissioner of Police, Salem City is directed to execute the
warrant through his sub-ordinates and produce the Accused before the Court
through the Inspector of Police, Pallapatty Police Station and report
compliance to the High Court.
17.04.2025
dh
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1.The Sessions Judge,
Mahila Court, Salem.
2.The Inspector of Police,
Pallapatty Police Station,
Salem District.
3. The Public Prosecutor,
High Court, Madras.
4.The Section Officer,
Criminal Section,
High Court Madras,
Chennai – 600 104.
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SATHI KUMAR SUKUMARA KURUP, J
5.The Chairman, District Legal Services Authority/
Principal District Judge, Salem.
6.The Commissioner of Police,
Salem City, Salem.
7.The Superintendent,
Central Prison,
Salem.
dh
Judgment in
Criminal Appeal No.177 of 2017
17.04.2025
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