Madras High Court

Elangovan vs The State Represented By on 6 January, 2025

                                                                                   Crl.A.No.204 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 06.01.2025

                                                         CORAM :

                                   THE HON'BLE MR. JUSTICE SUNDER MOHAN
                                                    Crl.A.No.204 of 2023


                     Elangovan                                     ...Appellant/Sole Accused

                                                            vs.

                     The State represented by
                     The Inspector of Police,
                     All Women Police Station,
                     Jeyamkodam, Ariyalur District
                     (Crime No.3 of 2022)                          ...Respondent/Complainant



                     Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure
                     Code, 1973, to call for the records pertaining to the Judgment passed in
                     Special S.C.No.42 of 2022 dated 11.01.2023 by the Fast Track Mahila
                     Neethimandram, Ariyalur, set aside the same.


                                    For Appellant      : Mr.A.Balamurugan

                                    For Respondent     : Mr.C.E.Pratap
                                                         Government Advocate (Crl.Side)




                                                             1

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                                                                                         Crl.A.No.204 of 2023

                                                           JUDGMENT

This Criminal Appeal has been filed by the sole accused, challenging

the conviction and sentence imposed upon him, vide judgment dated

11.01.2023 in Spl.S.C.No.42 of 2022, on the file of the learned Sessions

Judge, Fast Track Mahila Neethimandram, Ariyalur.

2(a). It is the case of the prosecution that the appellant/sole accused

was a neighbour of the victim aged eight years at the time of occurrence;

that there were jujube fruit trees in the house of the appellant; that on

11.01.2022, at about 8:00 a.m., the appellant lured the victim go to his

house to pick up the jujube fruits and thereafter took her to the bedroom,

hugged her and made her lie on the bed and thereby committed sexual

assault on the victim.

(b) Since the appellant called the victim/P.W.1 once again to his

house and the victim refused, P.W.2, the mother of the victim, questioned

the victim and the victim is said to have stated about the alleged sexual

assault committed by the appellant and thereafter, a complaint/Ex.P1 was

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lodged on the same day at about 6.00 p.m. An FIR was registered for the

offences under Sections 366 and 354A(1)(i) of the Indian Penal Code, 1860,

and Section 9(m) r/w 10 of the Protection of Children from the Sexual

Offences Act, 2012, by P.W.13/Sub Inspector of Police in Crime No.3 of

2022 marked as Ex.P8. P.W.14/Inspector of Police took up the

investigation. After examination of the witnesses and after obtaining the

164(5) Cr.P.C. statement made by the victim/P.W.1, before the learned

Sessions Judge, Fast Track Mahila Court, Ariyalur, had filed the Final

Report for the offences under Sections 366 and 354A(1)(i) of the Indian

Penal Code, 1860, and Section 9(m) r/w 10 of the Protection of Children

from the Sexual Offences Act, 2012.

(c). 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 under Section 10 of the POCSO Act, 2012 and 354A(2), 366 of

the IPC and when questioned, the appellant pleaded 'not guilty.'

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(d) During the trial, the prosecution examined fourteen witnesses as

P.W.1 to P.W.14 and marked ten documents as Exs.P1 to P10; the 164(5)

Cr.P.C. statement of the victim was marked as a Court document, i.e.,

Ex.C1. 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 mother of the appellant was examined as D.W.1. The appellant

did not mark any documents.

(e) The trial Court, after considering the oral and documentary

evidence, found the appellant guilty of the offences under Sections 354A(2)

and 366 of the IPC and Section 10 of the POCSO Act, 2012. The appellant

was sentenced as follows:

Offence under Sentence imposed To undergo rigorous imprisonment for seven years and Section 10 of the to pay a fine of Rs.50,000/-, in default to undergo simple POCSO Act, 2012 imprisonment for six months.

To undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/-, in default to undergo simple Section 366 of the IPC imprisonment for one year.

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Offence under Sentence imposed To undergo rigorous imprisonment for seven years and Section 354A(2) of the to pay a fine of Rs.50,000/-, in default to undergo simple IPC imprisonment for six months.

Sentences were ordered to run concurrently.

Hence, the accused has preferred the appeal challenging the said conviction and sentence.

3. Heard, Mr. A. Balamurugan, learned counsel appearing for the

appellant and Mr.C.E.Pratap, learned Government Advocate (Crl.Side),

appearing for the respondent/State.

4. Mr.A.Balamurugan, the learned counsel for the appellant/sole

accused would submit that one Revathy, the landlord of the house, in which

P.W.2 (mother of the victim) was a tenant had authorised the appellant to

collect rent; that there was a dispute and due to that the appellant was beaten

up by P.W.3/uncle of the victim and in order to avoid prosecution, P.W.2

had lodged this false complaint against the appellant; that in any case, the

conviction cannot be sustained on the sole testimony of the victim since her

earliest version before the Doctor is contrary to her evidence on record; and

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that in the absence of corroboration, it would be highly unsafe to convict

the appellant and prayed for acquittal.

5. Mr.C.E.Pratap, the learned Government Advocate (Crl.Side) for the

respondent, per contra, submitted that the victim had consistently stated

about the occurrence both in her 164(5) Cr.P.C. statement and in her

deposition; that nothing has been elicited in her cross-examination to

discredit her testimony; that minor contradictions would not render her

evidence unreliable; and therefore, submitted that the instance appeal is

devoid of merits and prayed for dismissal.

6. This Court carefully considered the submissions made on either

side and perused the materials available on record.

7. As stated earlier, the prosecution examined fourteen witnesses and

marked ten documents. P.W.1 is the victim. P.W.2 is the mother of the

victim. P.W.3 is the maternal uncle of the victim. P.W.4 is the sister of the

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victim and P.W.5 is the child helpline member and would speak about the

information received by him as regards the alleged sexual assault. P.W.6,

P.W.7, P.W.9, and P.W.10 are residents of the same village who turned

hostile. P.W.8 and P.W.10 are the Observation Mahazar witnesses, who

turned hostile. P.W.11 is the doctor who examined the victim and who had

made entries in the accident register/Ex.P4 and entries in the Out Patient

victim studied and had marked the school certificate/Ex.P6 and the

admission register/Ex.P7 to prove the date of birth of the victim as

02.11.2013. P.W.13 is the sub-inspector of police who registered the FIR.

P.W.14 is the investigating officer.

8. The evidence of P.W.2, P.W.3 and P.W.4, namely the mother,

uncle, and the younger sister of the victim is to the effect that they came to

know of the occurrence from the victim. According to P.W.2, the victim

refused to go to the house of the appellant, and when she questioned the

victim, the victim had narrated the incident. Similarly, P.W.3, who is the

uncle of the victim, had stated that he heard from his sister/P.W.2 as to what

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happened on the date of occurrence, and thereafter, he questioned the

appellant and had beaten him up. P.W.4 is the younger sister of the victim,

who states that she, along with P.W.1/victim, went to the house of the

appellant to pick up jujube fruits and also about the fact that the victim cried

after the occurrence.

9. As stated earlier, the remaining witnesses turned hostile. From the

above narration, it would be clear that the prosecution case entirely rests on

the evidence of the victim. The evidence of P.W.2, P.W.3 and P.W.4 would

be of no avail to establish the exact overt act committed by the appellant. It

is the victim's version that the appellant called both the victim/P.W.1 and

her sister/P.W.4 to his house to pick up the fruits and thereafter, sent P.W.4

away and called P.W.1/victim to his bedroom, hugged her and made her lie

on the bed. Though it is the prosecution case that the appellant did not do

anything else since P.W.4 returned to the house of the appellant, neither

P.W.1 nor P.W.4 would state about P.W.4 returning to the house which

stopped the appellant from committing any other sexual assault.

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10. Be that as it may. The victim had narrated the incident to the

doctor/P.W.11 in Ex.P4/Accident Register. The Doctor had observed as

follows:

“XXX (victim) is in sound knowledge & mind. She has come with mother XXX. According to her own statement, she was called by known person to his house, he made XXX(victim) to lie in bed, she ran away from him.”

The above portion would show that the victim/P.W.1 had not stated before

the doctor about the alleged hugging by the appellant. P.W.11, the doctor, in

fact, had confirmed this fact in her cross-examination. The relevant portion

of which reads as follows:

“rpWkp vd;dplk; vjphp fl;og;gpoj;jjhf brhy;ytpy;iy/”

The final opinion recorded in the Accident Register/Ex.P4 reads as follows:

“1.rpWkp ghypay; gyhj;fhuk; bra;ag;gl;ljw;fhd tha;g;g[fs; ,y;iy/ 2/ rpWkpfF ; gpwg;gU [ g;g[nyh. clypnyh fha';fs; VJk; ,y;iy/”

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The above would also show that the victim/P.W.1 was not subjected to any

assault and there were no injuries on her genital part or any other part of her

body. At this juncture, it is relevant to point out that it is the case of the

defence that one Revathy had authorised the appellant/accused on her behalf

to collect rent from P.W.2/mother of the victim, who was a tenant, and there

was a quarrel between the appellant and P.W.2 in this regard. Though this

suggestion was denied, the appellant had examined D.W.1, his mother, who

was aged 95 years at the time of her deposition. She had stated that the

appellant was beaten up by P.W.2 and her relatives, since there was a

dispute with regard to rent collection. Except for suggesting that she had

deposed to support her son, nothing has been elicited to disbelieve her

testimony.