Madras High Court
James vs State Rep. By on 1 April, 2021
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.95 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 22.03.2021
PRONOUNCED ON : 01.04.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.95 of 2021
James,
S/o.Mathiyalagan. ... Appellant
Vs.
State rep. by,
The Inspector of Police,
Annadhanapatty Police Station,
Salem.
(Cr.No.12/2015) ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure, to set aside the judgment and sentence passed in Old
S.C.No.10 of 2018 New S.C.No.71 of 2019, dated 01.09.2020 by the
Special Court of The Protection of Children from Sexual Offences Act
(POCSO Act) 2012, Salem.
For Appellant : Mrs.Reshmi Christy
For Respondent : Mrs.T.P.Savitha,
Government Advocate [Crl. Side]
*****
JUDGMENT
This Criminal Appeal has been filed against the Judgment of conviction and sentence imposed by the learned Sessions Judge, Special Page No.1 of 22 Crl.A.No.95 of 2021 Court for trial of cases under the Protection of Children from Sexual Offence Act, 2012, Salem in Old Special S.C.No.10 of 2018 and New Special S.C.No.71 of 2019.
2.The respondent Police have registered a case in Crime No.12 of 2015, for offence under Sections 7 and 8 of Protection of Children from Sexual Offence Act, 2012 (Hereinafter referred to as 'POCSO Act') against the appellant on the complaint (Ex.P1) given by the mother (PW.1) of the victim child (PW.2). After completing investigation, the respondent Police laid a charge sheet before the learned Sessions Judge, Magalir Neethimandram, Salem and same was taken on file as Special S.C.No.10 of 2018.
3.After completing the formalities under Section 207 Cr.P.C., since there was a prima facie material to frame charges against the appellant, the Sessions Judge farmed charges under Sections 10 and 8 of the Protection of Children from Sexual Offence Act, 2012. Since the Special Court was established to try the case for the offence under the Protection of Children from Sexual Offence Act, 2012 and the offence Page No.2 of 22 Crl.A.No.95 of 2021 committed by the accused against the child, the case was transferred to the file of the Sessions Judge, Special Court for trial of cases under the Protection of Children from Sexual Offence Act, 2012, Salem and the same was renumbered as Special S.C.No.71 of 2019.
4.After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the Sessions Judge found guilty of the appellant for offence punishable under Sections 8 r/w 7 and 10 r/w 9(i), 9(m) and 9(n) of POCSO Act and convicted and sentenced him as follows:-
● For offence punishable under Section 8 r/w 7 of POCSO Act, 2012, the appellant was sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.25,000/-, in default to undergo six months Simple Imprisonment.
● For offence punishable under Section 10 r/w 9(i), 9(m) and 9(n) of POCSO Act, 2012, the appellant was sentenced to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.50,000/-, in default, to undergo one year Simple Imprisonment. Both the sentences were ordered to run consecutively.
5.Challenging the above said Judgment of conviction and sentence, the appellant has filed the present appeal before this Court. Page No.3 of 22 Crl.A.No.95 of 2021
6.The learned counsel for the appellant would submit that there is no eye witness in this case and no independent witness was examined by the prosecution to prove the guilt of the appellant. The mother of the victim child/defacto complainant (PW.1) and the appellant are husband and wife and the victim child (PW.2) is their daughter. During trial, both the wife and daughter of the appellant (PW.1 and PW.2) turned hostile and they did not support the case of the prosecution and also the medical evidence not supported the case of the prosecution. The learned counsel would further submit that due to family dispute, the mother of the victim child (PW.1) made a complaint against her husband/appellant, but the respondent Police have written the complaint to suit their convenience and the appellant did not commit any offence as alleged by the prosecution. The mother of the victim child has clearly stated that she and the appellant are living together and since his husband beaten her, she gave oral complaint against her husband to the respondent Police and she did not know the contents in the First Information Report registered against her husband. Further, there is no substantive evidence to convict the appellant and no father would do such kind of act on her own daughter.
Page No.4 of 22 Crl.A.No.95 of 2021
7.The learned counsel for the appellant would further submit that since there was a family dispute between the appellant and the mother of the victim child (PW.1), PW.1 went to the respondent Police Station and informed about the harassment made by the appellant, but the respondent Police put up a false case against the appellant. The trial Court failed to appreciate the same and also the evidence of the wife and daughter of the appellant (PW.1 and PW.2) and convicted and sentenced the appellant to undergo Rigorous Imprisonment as stated above. Therefore, the judgment of the trial Court is liable to be set aside and the appellant is to be acquitted.
8.Ms.T.P.Savitha, Government Advocate (Crl. Side) appearing on behalf of the respondent Police would submit that at the time of occurrence, the victim child (PW.2) was only 9 years old. Prior to the occurrence, when the mother of the victim child (PW.1) and her two daughters were watching TV, the appellant, who is the father of the victim child (PW.2), took the hand of the victim child (PW.2) and put on his private part. The mother of the victim child (PW.1) noticed the same and scolded her husband and sent her children to her mother's house Page No.5 of 22 Crl.A.No.95 of 2021 (PW.3). Subsequently, the appellant had a fight with his wife (PW.1) and also asked her to bring the victim child (PW.2). Thereafter, the mother of the victim child brought her daughters to matrimonial home. On 01.01.2015, at about 11.30 p.m., when the victim child (PW.2) was sleeping, her father/appellant pressed her breast and also put his finger in her vagina and due to which, she sustained injury on her private part. The mother of the victim child (PW.1) noticed the same and scolded her husband/appellant. Therefore, the mother of the victim child (PW.1) has given the complaint (Ex.P1) to the respondent Police and after investigation, the respondent Police laid a charge sheet before the trial Court. On completion of trial, the learned trial Judge rightly convicted the appellant as stated above.
9.The learned Government Advocate (Crl. Side) would further submit that though the wife of the appellant (PW.1) lodged the complaint (Ex.P1) to the respondent Police, the appellant subsequently convinced his wife and his daughter (PW.1 & PW.2). Therefore, during trial, they turned hostile and not supported the case of the prosecution. However, the fact remain that soon after the occurrence, the victim child was Page No.6 of 22 Crl.A.No.95 of 2021 produced before the Doctor (PW.6) and she examined the victim child and opined that the age of the victim child is 8 to 10 years at the time examination and issued the Age Certificate (Ex.P6) to that effect. Subsequently, the victim child was produced before the Doctor (PW.7). The Doctor (PW.7) examined the victim child (PW.2) and gave opinion that there was an injury in the vagina about 0.5 c.m., and the hymen was not intact and there is a possibility of penetrative sexual intercourse and issued the Examination Report (Ex.P7), the Wound Certificate (Exs.P8 & P9) to that effect. Further, the victim child (PW.2) was produced before the learned Judicial Magistrate for recording the statement under Section 164 Cr.P.C. The victim child (PW.2) has also narrated the entire incident before the learned Judicial Magistrate and the same was marked as Ex.P2.
10.The learned Government Advocate would further submit that in order to safeguard the appellant and since he is the husband of PW.1 and father of the victim child (PW.2), they have not stated anything against the appellant during trial. However, the trial Court rightly appreciated the entire evidence coupled with the statement recorded under Section Page No.7 of 22 Crl.A.No.95 of 2021 164 Cr.P.C., (Ex.P2) and medical evidence (PW.9 & PW.7) and also medical records (Exs.P6 to P9) and rightly convicted the appellant, which does not require interference of this Court and no merit in the appeal and the appeal is liable to be dismissed.
11.Heard the learned counsel appearing for the appellant and the learned Government Advocate [Crl. Side] appearing for the respondent and also perused the materials available on record.
12.The case of the prosecution is that at the time of occurrence, the age of the victim child (PW.2) is only 9 years and she was studying 4 th std. Prior to the date of the occurrence, one day when the appellant, the mother of the victim child (PW.1) and her daughter PW.2, the victim child were watching TV, the appellant, who is the father of the victim child (PW.2), took the hand of the victim child (PW.2) and put on his private part. The mother of the victim child (PW.1) noticed the same and scolded her husband and sent her children to her mother's house (PW.3). Subsequently, the appellant had a fight with his wife (PW.1) and also asked her to bring the victim child (PW.2). Thereafter, the mother of the Page No.8 of 22 Crl.A.No.95 of 2021 victim child brought her daughters to matrimonial home. On 01.01.2015, at about 11.30 p.m., when the victim child (PW.2) was sleeping, her father/appellant pressed her breast and also put his finger in her vagina and due to which, she sustained injury on the private part. The mother of the victim child (PW.1) noticed the same and scolded her husband/appellant. Therefore, the mother of the victim child (PW.1) has given complaint (Ex.P1) to the respondent Police.
13.Based on the complaint (Ex.P1) given by PW1, an First Information Report [Ex.P10] in Crime No.12 of 2015 was registered, for offence under Sections 7 and 8 of Protection of Children from Sexual Offence Act, 2012. After completing investigation, the respondent Police laid a charge sheet before the learned Sessions Judge, Magalir Neethimandram, Salem and same was taken on file as Special S.C.No.10 of 2018 and framed charges against the appellant. Subsequently, the case was transferred to the file of the Sessions Judge, Special Court for trial of cases under the Protection of Children from Sexual Offence Act, 2012 and the same was renumbered as Special S.C.No.71 of 2019. Page No.9 of 22 Crl.A.No.95 of 2021
14.During the trial, on the side of the prosecution, as many as 9 witnesses were examined as PW1 to PW9 and 14 documents were marked as Exs.P1 to P14 and no material object was exhibited. After completing the examination of prosecution witnesses, when incriminating circumstances were culled out from the evidence of prosecution witnesses put before the appellant, he had denied the same as false. On the side of the defence, no oral and documentary evidence was produced.
15.After completing trial and hearing arguments advanced on either side, the learned Sessions Judge, by judgment, dated 01.09.2020 in New S.C.No.71 of 2019 convicted and sentenced the appellant as stated above.
16.This Court, being an Appellate Court, is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give an independent finding and accordingly, this Court has appreciated the entire oral and documentary evidence produced before this Court. Page No.10 of 22 Crl.A.No.95 of 2021
17.In this case, at the time of occurrence, the victim child (PW.2) was aged about 9 years and she was studying 4th std. The victim child (PW.2) is the elder daughter of the appellant and PW.1 is the wife of the appellant. Six months prior to date of giving the complaint (Ex.P1), one day the appellant, the mother of the victim child (PW.1) and the victim child (PW.2) were watching TV, at that time, the appellant took the hand of the victim child (PW.2) and put the same in his private part. The mother of the victim child (PW.1) noticed the same and scolded her husband/appellant. Subsequently, the mother of the victim child (PW.1) had a fight with the appellant and due to fear, she sent her two daughters to her mother's house (PW.3). Thereafter, the appellant pacified his wife and asked her to bring back their children. Believing the same, the mother of the victim child took her daughters to the matrimonial home. On 01.01.2015, the mother of the victim child (PW.1) brought her two daughters to the matrimonial house. At about 11.30 p.m., while the victim child (PW.2) was sleeping, the appellant touched the breast of the victim child (PW.2) and put his finger in her private part. Immediately, she raised alarm and informed the same to her mother and thereafter, her mother (PW.1) lodged a complaint (Ex.P1) to the respondent Police. Page No.11 of 22 Crl.A.No.95 of 2021
18.The wife of the appellant gave a complaint (Ex.P1) on 06.01.2015 and after making complaint, the victim child (PW.2) was produced before the Doctor (PW.6). The Doctor (PW.6) has stated that while she was on duty on 07.01.2015, the victim child (PW.2) was brought to the hospital for Medical Examination. PW.6 assessed the age of the victim child (PW.2) by taking X ray and found that the age of the victim child (PW.2) is 8 to 10 years. Subsequently, the victim child (PW.2) was further examined by the another Doctor (PW.7). PW.7 has deposed that at the time of examination, there was an injury in the private part of the victim child (PW.2) measuring about 0.5 c.m., and the hymen was not intact and she opined that at the time of occurrence, the age of the victim child (PW.2) was about 9 years and also opined that if put a finger in the private part of a girl, the hymen of the girl would tear and also gave an opinion that the victim child (PW.2) was subjected to aggravated penetrative sexual assault. Therefore, from the complaint (Ex.P1) given by the wife of the appellant (PW.1) and the previous statement (Ex.P2) made by the victim child, which was recorded by the learned Judicial Magistrate under Section 164(5) Cr.P.C., and from the evidence of the Doctors (PW.6 & PW.7) and Medical Records (Exs.P6 to Page No.12 of 22 Crl.A.No.95 of 2021 P9), it is clearly proved that the victim child (PW.2) was subjected to aggravated penetrative sexual assault by the appellant.
19.During trial, the victim child was examined as PW.2 and her mother was examined as PW.1 and the grandmother of the victim child was examined as PW.3. PW.1 and PW.2 did not support the case of the prosecution and turned hostile. Though PW.3 admitted that her daughter (PW.1) gave a complaint (Ex.P1) to the respondent Police, she has not known what was written in the complaint. PW4 is the Doctor, who has conducted potency test on the appellant and issued report Ex.P4. In order to safeguard the appellant, PW.1 to PW.3 have not supported the case of the prosecution, since the PW.1 to PW.3 are his wife, daughter and mother-in-law respectively. However, when the victim child (PW.2) was admitted in the hospital, before the Doctor (PW.7), the mother of the victim child (PW.1) informed that the sexual assault made by his husband/appellant. The Doctor (PW.7) is the government servant and he would not have any motive against the appellant to made a false entry in the government record. Therefore, the Doctor (PW.7) gave his opinion that the victim child (PW.2) was subjected to penetrative sexual assault, Page No.13 of 22 Crl.A.No.95 of 2021 without any motive and it could be reliable.
20.It is well settled proposition of law that when the victim child made the previous statement before the learned Judicial Magistrate and subsequently during trial, if she has not supported the case of the prosecution and turned hostile, the trial Court cannot record the judgment of acquittal on that sole ground. The Court has to see the entire oral and documentary evidence with other circumstances and the relationship between the parties. The Court cannot ignore the case on the sole ground that the previous statement made by the victim child (PW.2) are contrary to the deposition made before the trial Court. In this case, the appellant has not proved that the entry made in the medical records and also the statement recorded by the learned Judicial Magistrate are false. Though the opinion of the Doctor is not a conclusive proof, it has to be corroborated with the other material evidence. In this case, the injured witness/victim child (PW.2) has not supported the case of the prosecution during trial, but in previous statement made by her before the learned Judicial Magistrate on earlier occasion, she has revealed the occurrence and the mother of the victim child (PW.1) also revealed the Page No.14 of 22 Crl.A.No.95 of 2021 occurrence before the Doctor (PW.7). In the case of rape, particularly the sexual assault on the children, it is the psychology of the child to obey the orders of the rapists if he is her custodian, may be father, uncle, teacher or warden of the hostel. It is also seen that most of such children who are dependent on abusers abide by their orders. There are many reasons for children not disclosing the fact of sexual abuse to their relatives or friends. One of the reason is that they are threatened by the abusers. The other reason is that in many cases, they are depended on the persons who has sexually abused them. It is also seen that there is threat from the abusers to the near and dear ones of the sexually abused child. Due to relationship, the appellant convinced his wife (PW.1) and also his daughter (victim child/PW2) and hence, during trial, they did not support the case of the prosecution and did not state anything against the appellant and turned hostile.
21.It is a settled legal proposition that evidence of a prosecution witnesses cannot be taken into isolated and it can be taken in toto with other circumstances. Therefore, on a perusal and consideration of the evidence of the Doctors (PW.6 & PW.7), the complaint (Ex.P1), the Page No.15 of 22 Crl.A.No.95 of 2021 statement of the victim child (Ex.P2) recorded under Section 164 Cr.P.C., (Ex.P2) and the Medical Reports (Exs.P6 to P9), which shows that at the time of the occurrence, the victim child was only 9 years old, and all other oral and documentary evidence on record, this Court finds that the prosecution has proved the case beyond reasonable doubt that the appellant has committed aggravated penetrative sexual assault on the victim child (PW.2) by using his finger and therefore, the POCSO Act would attract against the appellant.
22.The relevant provisions of POCSO Act, 2012 reads as follows:-
“3.Penetrative sexual assault.—A person is said to commit "penetrative sexual assault" if—
(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.
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 Page No.16 of 22 Crl.A.No.95 of 2021 fine.
5.Aggravated penetrative sexual assault.—
(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child.
(m) whoever commits penetrative sexual assault on a child below twelve years.
(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.
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 also be liable to fine.”
23.In this case, from the previous statement given by the victim child (PW2) before the learned Judicial Magistrate under Section 164(5) Cr.P.C., and from the evidence of the Doctor (PW7), who opined that there was an injury in the private part of the victim child (PW2) and the Page No.17 of 22 Crl.A.No.95 of 2021 hymen was not intact, the appellant has committed the offence under Section 3(b) of POCSO Act. Since the victim child is below 12 years and the offence was committed by her father and she sustained injury, the commission of offence falls under Section 5(i), 5(m), 5(n) of POCSO Act, the learned trial Judge should have framed the charge and punished the appellant under Section 6 of POCSO Act. But the learned trial Judge has framed the charges only under Sections 8 and 10 of POCSO Act, 2012. For better appreciation Sections 7, 8, 9 and 10 of POCSO Act is extracted 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.
8.Punishment for sexual assault.—Whoever,
commits sexual assault, shall be punished with
imprisonment of either description for a term which shall not be less than three years but which may extend to five Page No.18 of 22 Crl.A.No.95 of 2021 years, and shall also be liable to fine.
9.Aggravated sexual assault.—
(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child.
(m) whoever commits sexual assault on a child below twelve years.
(n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child.
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.”
24.However, the State has not filed any appeal with regard to the same. Therefore, this Court is not inclined to interfere with the same. Page No.19 of 22 Crl.A.No.95 of 2021
25.When the father himself has committed these type of offences, where the child will go. If the appellant is acquitted from the case and set him at liberty, the future of the victim child (PW.2) will affect. Therefore, the entire materials clearly show that the appellant one who has committed the offences and it is not out of place to mention here that it is inhuman activity and therefore, the appellant deserves no sympathy and there is no mitigating circumstances to reduce the quantum of sentence imposed by the learned trial Judge.
26.Hence, this Court can safely come to the conclusion that the appellant has committed aggravated penetrative sexual assault on the victim child by using his finger and therefore, the prosecution has established its case beyond reasonable doubt. In the light of the above discussion, this Court does not find any merit in this appeal and the appeal is liable to be dismissed.
27.In view of Section 42(A) of the POCSO Act, Section 31 of Cr.P.C., need not be strictly followed while awarding the punishment of imprisonment for offence under the POCSO Act.
Page No.20 of 22 Crl.A.No.95 of 2021
28.The appeal lacks merit and is, accordingly, dismissed and the judgment of conviction and sentence passed by the trial Court is confirmed. The trial Court is directed to secure the appellant for sufferance of the sentence if he is outside.
01.04.2021 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 To
1.The Sessions Judge, Special Court for trial of cases under the Protection of Children from Sexual Offence Act, 2012, Salem.
2.The Inspector of Police, Annadhanapatty Police Station, Salem.
3.The Public Prosecutor, High Court, Madras.
Page No.21 of 22 Crl.A.No.95 of 2021
P.VELMURUGAN, J.
vv2 PRE-DELIVERY JUDGEMENT IN Crl.A.No.95 of 2021 01.04.2021 Page No.22 of 22