Madras High Court
Govindakumar vs State Rep By on 1 November, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.921 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.11.2022
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.921 of 2022
Govindakumar .. Appellant
.Vs.
State rep by:
The Inspector of Police,
P-5, M.K.B.Nagar Police Station,
W-18, All Women Police Station,
M.K.B.Nagar, Chennai,
Crime No.8 of 2018. ..
Respondent
Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure to call for the records in S.C.No.476 of 2018 on the file of the
Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO
Act, Chennai and set aside the judgment dated 30.03.2022.
For Appellant : Mr.S.Ashok Kumar
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed against the judgment dated 30.03.2022 passed in S.C.No.476 of 2018 by the learned Sessions Judge, https://www.mhc.tn.gov.in/judis Page No.1/19 Crl.A.No.921 of 2022 Special Court for Exclusive Trial of Cases under POCSO Act, Chennai.
2. The case of the prosecution is that on 22.07.2018 at about 11.30 a.m when the de-facto complainant return from the shop along with her two daughter i.e the victim child and another daughter, near Vinayagar Temple at Kannadasan Nagar EB, by walking, the accused, who belongs to Bihar State working in an Iron shop viz., SGS Agency had banged the left side chest of the victim child with his right elbow in a public place and he also raised his thumb finger and stated super with laugh to his friend. Thereby, the accused has committed the offence of sexual assault against the victim child aged about 12 years, which is an aggravated one.
3.On the complaint given by the mother of the victim child/P.W.2 the respondent/Police registered a case in Crime No.8 of 2018 against the appellant for the offence under Section 8 of 'Protection of Children from Sexual Offences Act, 2012' [hereinafter referred to as 'POCSO Act' for the sake of convenience]. The respondent/Police on completion of the investigation, filed a final report before the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai for the offence under Section 10 of POCSO Act and the same was taken on file in https://www.mhc.tn.gov.in/judis Page No.2/19 Crl.A.No.921 of 2022 S.C.No.476 of 2018. When questioned, the accused denied the allegation, however, based on the materials available on record, the trial Court found that the accused was guilty for the offence under Section 10 of POCSO Act.
4.In order to prove the case before the trial Court, on the side of the prosecution, as many as 6 witnesses were examined as P.W.1 to P.W.6 and 6 documents were marked as Exs.P1 to P6 and no material objects were marked.
5. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant/accused and was questioned under Section 313 Cr.P.C., wherein he denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, 5 witnesses were marked as D.W.1 to D.W.5 and 2 documents were marked as Ex.D1 and Ex.D2.
6. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the https://www.mhc.tn.gov.in/judis Page No.3/19 Crl.A.No.921 of 2022 appellant is guilty for the offence under Section 10 of POCSO Act and convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of one month. Besides that the trial Court recommended the Government of Tamil Nadu to compensate a sum of Rs.2,00,000/- to the victim girl from the victim compensation. Challenging the said conviction and sentences, the appellant is before this Court.
7.1 The learned counsel for the appellant submitted that a false case has been foisted against the appellant. The date and time of occurrence are not proved. In the complaint and the final report it was mentioned that the said occurrence has taken place on 22.07.2018 at 11.30 a.m, however, the trial Court has given a finding that the occurrence had taken place only on 21.07.2018. The foundational fact as projected by the prosecution was not proved. Therefore, once the charge framed as against the appellant has not been proved by the prosecution, the trial Court should have acquitted the appellant. However, against law, the appellant was convicted for the charged offence.
7.2 The learned counsel for the appellant further submitted that on https://www.mhc.tn.gov.in/judis Page No.4/19 Crl.A.No.921 of 2022 21.07.2018, the mother of the victim child went to the shop, in which the appellant was working and demanded money from the owner of the shop. Since he refused to give money, P.W.2/mother of the victim child foisted a false case against the appellant as he had misbehaved with her daughter. Even the mahazar witnesses have turned hostile and they have not supported the case of the prosecution, therefore, the investigation on the part of the investigating officer has not been substantiated. Further, the arrest is a doubtful one as the witnesses to the arrest memo also not supported the case of the prosecution. In the case on hand, arrest was not proved and mahazar witnesses have not supported the case of the prosecution and thus, the fair investigation itself is in doubtful. Unfortunately, the trial Court failed to consider the entire facts wrongly convicted the appellant.
7.3 The learned counsel for the appellant further submitted that on the side of the defence five witnesses were examined and they have categorically stated that on 21.07.2018 at about 7.00 to 7.15 p.m the mother of the victim child, who is the de-facto complainant went to the shop, in which the appellant was working and demanded money from the owner of the shop, since the owner refused to give the money, she lodged https://www.mhc.tn.gov.in/judis Page No.5/19 Crl.A.No.921 of 2022 a complaint against the appellant. All the defence witnesses have corroborated the said incident and also produced Ex.D1/arrest card and Ex.D2/Pen drive. Therefore, the prosecution has miserably failed to prove the charges framed against the appellant, whereas, the appellant has proved his defence. Though the trial Court admitted that the occurrence had not taken place as stated in the final report ie. on 22.07.2018, the trial Court wrongly convicted the appellant by stating that mere wrong mentioning of date of occurrence, will not vitiate the case of the prosecution. The trial Court failed to appreciate the evidence of the prosecution witnesses as well as the defence and wrongly convicted the appellant. The learned counsel for the appellant further stated that most of the POCSO Act cases are filed only based on a false complaint and this case is one of the best examples for the same. Further, investigation and trial has not been conducted in a fair manner. In the case on hand, the appellant has put forth his defence and has also substantiated his defence, however, the trial Court failed to appreciate the entire oral and documentary evidence wrongly convicted the appellant, which warrants interference of this Court.
8. The learned Additional Public Prosecutor appearing for the https://www.mhc.tn.gov.in/judis Page No.6/19 Crl.A.No.921 of 2022 respondent submitted that the prosecution has proved that the age of the victim child is below 12 years by marking the Birth Certificate of the victim child as Ex.P1. After registering the complaint, the victim child was produced before the learned Judicial Magistrate for recording her statement under Section 164 Cr.P.C. wherein she clearly stated that the appellant had committed the charged offence. In order to substantiate the charges, the victim was examined as P.W.1 and she had clearly narrated the said incident and her evidence was corroborated with her previous statement/Ex.P2 and the evidence of P.W.2/mother of the victim and P.W.3/sister of the victim. Since in this case there is no penetrative sexual assault, medical evidence has not been sought for. The mahazar witnesses and arrest witnesses have turned hostile, however, from the evidence of P.W.1 and the eye witnesses P.W.2, P.W.3 the prosecution has proved its case beyond reasonable doubt. In the charge sheet, the date of occurrence was wrongly mentioned as 22.07.2018 instead of 21.07.2018, and after trial, the trial Court came to the conclusion that though the date of occurrence is wrongly mentioned in contra to the case of the prosecution and the investigation is defective in that material fact, the said defect in investigation would not affect the case of the prosecution. Therefore, from https://www.mhc.tn.gov.in/judis Page No.7/19 Crl.A.No.921 of 2022 the evidence of P.Ws.1 to 3, Ex.P1, Ex.P2 the prosecution has proved that at the time of occurrence, the victim is a child under the definition of 2(1)(d) of the POCSO Act and she was subjected to sexual assault by the appellant. The trial Court has rightly convicted and sentenced the appellant for the charged offences and there is no merit in the appeal and the same is liable to be dismissed.
9. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent and also perused the materials available on record.
10.This Court, being an Appellate Court, is a final Court of fact finding, which has to necessarily re-appreciate the entire evidence and give an independent finding. Accordingly, this Court has re-appreciated the entire oral and documentary evidence produced before this Court.
11.Admittedly, P.W.2/mother of the victim child lodged a complaint/Ex.P3 before the respondent/Police in Crime No.8 of 2018. The respondent/Police after investigation laid a charge sheet before the Special Court and charges were framed against the appellant for the offence https://www.mhc.tn.gov.in/judis Page No.8/19 Crl.A.No.921 of 2022 punishable under Section 10 of POCSO Act. In order to substantiate the case of the prosecution, on the side of the prosecution, totally 6 witnesses were examined, out of which, the victim was examined as P.W.1.
12.P.W.1/victim child deposed that on the date of occurrence, she went to the market in the morning and returned by Auto along with her mother and sister and got down from the Auto near Vinayagar Temple and returned to their house by walking. While they were walking near a wall, the accused and another came in their opposite side and all of a sudden, the accused came in front of them and banged against the left side of her chest with his right elbow and also raised his thumb finger to his friend, who came behind him. Thereafter, she cried with pain, her mother went fast and caught the accused and beaten him. Thereafter, her mother lodged a complaint against him. The act committed by the appellant clearly shows that the incident has not taken place accidentally and he did with intention.
13.On a reading of Ex.P2/statement of the victim child recorded under Section 164 Cr.P.C., would reveal that the victim was not tutored by any one to give evidence and she was not forcefully produced before the learned Judicial Magistrate for recording her statement under Section 164 https://www.mhc.tn.gov.in/judis Page No.9/19 Crl.A.No.921 of 2022 Cr.P.C. The relevant portion of the statement of the victim child is extracted here under:
''me;j nfhtpe;jd; m';fps;
vd;Dila ,lJ gf;fk; khu;gpy;
mtUila if Kl;oahy; vd;id
,oj;Jtpl;lhu;/ ,oj;Jtpl;L bfh";rJ}uk;
brd;W mtu;fSf;F gpd;dhy;
te;Jbfhz;oUe;j kw;bwhU m';fpsplk;
jdJ tyJ if (rhg;gpLk; if) fl;il
tpuiy J}f;fp fhz;gpj;J nryd;";
fhz;gpj;jhu;@
14.The evidence of P.W.1 is corroborated with the evidence of P.W.2. The other witnesses have turned hostile and they have not supported the case of the prosecution. In a case of this nature, the Court has to see whether the evidence of the victim inspires the confidence of the Court or there is any reason to disbelieve or discard the evidence of the victim.
15.On a reading of the statement of the victim child recorded under Section 164 Cr.P.C this Court finds that the victim child has clearly narrated the said incident and her statement is subsequently substantiated during trial. Hence, the evidence of the victim is cogent and there is no https://www.mhc.tn.gov.in/judis Page No.10/19 Crl.A.No.921 of 2022 reason to disbelieve the evidence of the victim/P.W.1.
16. The contention raised by the learned counsel for the appellant is that the victim child was tutored by her mother and gave a false statement before the Magistrate. However, on a perusal of the statement under Section 164 Cr.P.C, it is clear that when the Magistrate asked all questions from the victim, she had clearly narrated the said incident. Even assuming that if the mother of the victim tutored her to give false statement, then the statement would not be given in this way. Therefore, the contention raised by the learned counsel for the appellant is not sustainable.
17. Further contention raised by learned counsel for the appellant is that, on 21.07.2018, the mother of the victim went to the shop, in which the appellant was working and demanded money from the owner of the shop, since he refused to give money, P.W.2/mother of the victim foisted a false case against the appellant as the appellant has misbehaved with her daughter/P.W.1. Even, on a careful perusal of cross examination of the defence, the defence side counsel did not put any suggestion before the victim that her mother demanded money from the owner of the https://www.mhc.tn.gov.in/judis Page No.11/19 Crl.A.No.921 of 2022 appellant and foisted a false complaint, and hence, it is clear that at the instigation of the mother of the victim, P.W.1/victim has not given statement under Section 164 Cr.P.C and subsequently, given her evidence. Even during cross examination, P.W.2 has not stated that immediately after the occurrence, the respondent/police arrested the accused. However, she has stated that after the said occurrence, the owner of the shop, in which the appellant working had called her and that she went to the shop between 6.00 p.m to 7.00 p.m. Therefore, mere presence of the mother of the victim in the shop in which the appellant was working does not mean that she went only for demanding money. Though the appellant produced Ex.D2/Pen drive and the same does not disclose any conversation and therefore, the defence has not proved that P.W.2 come forward with this complaint only because of demanding money from the owner of the appellant's shop.
18. The evidence of the victim during trial as well as her statement recored under Section 164 Cr.P.C clearly shows that the appellant has banged the left side of the chest of the victim and in order to prove the sexual intent, the victim child has stated that after the incident the https://www.mhc.tn.gov.in/judis Page No.12/19 Crl.A.No.921 of 2022 appellant showed his thumb finger to his friends. Therefore, the prosecution has proved the sexual intent of the appellant.
19.For better appreciation, it is appropriate to extract Sections 7, 9(m) and 10 of POCSO Act, which read as follows:
''7.Sexual assault : Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
''9 Aggravated sexual assault :
(m) whoever commits sexual assault on a child below twelve years, or ......
10.Punishment for aggravated sexual assault – Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.''
20. Therefore, this Court finds that from the evidence of P.W.1/victim, P.W.2/mother of the victim, Ex.P1/Birth Certificate of the victim, Ex.P2/Statement recorded under Section 164 Cr.P.C of the victim, the prosecution has proved its case beyond reasonable doubt. https://www.mhc.tn.gov.in/judis Page No.13/19 Crl.A.No.921 of 2022
21.As per Ex.P1/Birth Certificate of the victim, the date of birth of the victim is 08.06.2007. According to the case of the prosecution, the occurrence had taken place on 22.07.2018. Hence, the age of the victim child on the date of occurrence is 11 years 1 month and hence, she is a child comes under the definition of 2(1)(d) of the POCSO Act. As per Section 94(2)(ii) of Juvenile Justice Act any records issued by the Corporation or Municipal Authority or Panchayat is to be treated as a genuine one. Since in the case on hand, the prosecution has produced the Birth Certificate/Ex.P1 issued by the Chennai Corporation the same to be presumed as a genuine one. Therefore, the prosecution has proved that at the time of occurrence the age of the victim is only 11 years and therefore, the offence committed by the appellant falls under Section 9(m) which is punishable under Section 10 of POCSO Act.
22.On 14.06.2019, when the chief and cross examination of the victim was done, the defence has not put any suggestion before the victim that whether her mother demanded money from the owner of the appellant. Thereafter, on 04.03.2020 i.e. after ten months of the occurrence and after examination of the victim, the chief and cross examination of the mother of the victim was done, the defence counsel simply put a suggestion that the https://www.mhc.tn.gov.in/judis Page No.14/19 Crl.A.No.921 of 2022 mother of the victim demanded money. However, P.W.2 clearly stated that after the occurrence, only the owner of the appellant asked her to come to his shop. Even though they have not put any suggestion before P.W.4/owner of the shop, whether he asked her to come to her shop or not, on a reading of the suggestions from the defence side, it is clear that the appellant has solely improved his defence. The defence side has taken much efforts to disprove the case of the prosecution and tried to establish the defence which is only an afterthought. The cross examination of PW.1 and PW.2 clearly shows that the defence taken by the appellant is not genuine, which is only an afterthought.
23. It is settled proposition of law that in the criminal cases especially the offence under Indian Penal Code the accused need not go to the witness box and put forth is defence. Even though the accused had not expressed his defence, it is the bounden duty of the prosecution to prove the case beyond reasonable doubt. Further, the accused presumed to be innocent throughout, it is the duty of the prosecution to prove the case beyond reasonable doubt. However, in POCSO Act cases there is a reversal onus incorporated under Sections 29 and 30 of POCSO Act. If the prosecution has proved foundational facts by preponderance of https://www.mhc.tn.gov.in/judis Page No.15/19 Crl.A.No.921 of 2022 probabilities through witnesses, it can be presumed that the prosecution has proved its case beyond reasonable doubt, however, it is for the accused to rebut the presumption that he has no sexual intent. Therefore, intention of the accused has to be rebutted by the accused. In the case on hand, P.W.1 has clearly stated that on sexual intent, the appellant banged her chest by his right elbow. Soon after the incident, he also showed his thumb to his friends, which clearly shows that the appellant with a sexual intent has committed the act. Therefore, the prosecution has proved the foundational fact that with sexual intent the appellant had committed the offence.
24. This Court, being an Appellate Court, is a final Court of fact finding and re-appreciated the entire evidence and found that the evidence of the victim child inspires confidence of this Court and her evidence is cogent and consistence and there is no reason to disbelieve the evidence the victim child. Hence, it is clear that the appellant has committed the offence under Section 7 of POCSO Act. Since the victim child is below 12 years, this Court is of the view that the appellant has committed aggravated sexual assault, which falls under Section 9(m) of POCSO Act and hence, he is punishable under Section 10 of POCSO Act. https://www.mhc.tn.gov.in/judis Page No.16/19 Crl.A.No.921 of 2022
25. In fine, this Criminal Appeal deserves to be dismissed and accordingly, the same is dismissed. The conviction and sentences passed in S.C.No.476 of 2018 by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai is confirmed.
01.11.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms https://www.mhc.tn.gov.in/judis Page No.17/19 Crl.A.No.921 of 2022 To
1.The Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai.
2.The Superintendent, Central Prison, Puzhal, Chennai.
3.The Inspector of Police, P-5, M.K.B.Nagar Police Station, W-18, All Women Police Station, M.K.B.Nagar, Chennai.
4.The Public Prosecutor, High Court, Madras.
5.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
https://www.mhc.tn.gov.in/judis
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