Madras High Court
Sathaiya vs State Represented By on 4 October, 2019
Author: R.Hemalatha
Bench: P.N.Prakash, R.Hemalatha
Crl.A(MD)No.578 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.07.2022
DELIVERED ON : 10.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
Crl.A(MD)No.578 of 2019
Sathaiya .. Appellant/Sole Accused
Vs.
State represented by
The Inspector of Police,
All Women Police Station,
Ramanathapuram District.
(Crime No.14/2015) .. Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of Criminal
Procedure Code, 1973, praying to set aside the conviction and sentence
passed by the learned Sessions Judge, Fast Track Mahila Court,
Ramanathapuram, in Spl.S.C.No.12 of 2016 dated 04.10.2019.
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Crl.A(MD)No.578 of 2019
For Appellant : Mr.M.Subash Babu
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
JUDGMENT
[Judgment of the Court was delivered by R.HEMALATHA, J.] The present appeal is filed against the judgment and order, dated 04.10.2019, passed by the learned Sessions Judge, Fast Track Mahila Court, Ramanathapuram, in Spl.S.C.No.12 of 2016 in and by which the Appellant was convicted for the offences punishable under Sections 6 (2counts) and 12 of the Protection of Children from Sexual Offences Act and Section 506 part I IPC and sentenced as under:
Sl. Conviction Sentence
No.
1. U/s.6(2 counts) and 12 of Life Imprisonment and a fine of Rs.
POCSO Act 3,000/-, in default, to undergo Simple
Imprisonment for three months.
2 U/s.506 part I IPC Rigorous Imprisonment for two years
.
The trial court further directed that the sentences shall run concurrently. _______________ Page No.2 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019
2. The necessary facts of the prosecution case as put forth by them are as follows:
i. Visalakshi (P.W-1) is the mother of the victim child 'x'. According to P.W-1, on 22.08.2015, which was a holiday, the victim girl aged 9 years and who was studying 4th standard in a nearby school and her brother, who was a toddler were in the house when she (P.W-1) went to fetch water from a water tanker parked in the village. When she returned in half-an-hour, she found the appellant her neighbour holding her son Yogeswaran and when asked about the same, the appellant explained that her son had woken up and therefore, he was carrying him. Three days later, her daughter 'x' was found tired and dull and when P.W-1 questioned her further, she revealed that during her half-an-hour absence, the appellant had taken both the children to his house, closed the windows and doors, kept the television volume louder and attempted penetrative sex on the child victim by showing videos on his mobile. The _______________ Page No.3 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 victim child, who was taken by surprise by the act of the appellant pushed him away when she was threatened not to reveal the same to any one.
ii. Thiru. Bharathi (P.W-2), husband of P.W-1 and father of 'x' was employed in Chennai. He was informed about the incident on 27.08.2015 at about 8.00 p.m., and on 29.08.2015, he returned home. However, both P.W-1 and P.W-2 approached the matter cautiously and after consulting their close relatives went to the office of the District Superintendent of Police, Ramanathapuram, on 03.09.2015 where a complaint (Ex.P1) was lodged by P.W-1.
iii. Tmt.Helen Rani (P.W-18), the then Special Sub Inspector of Police, All Women Police Station, Ramanathapuram, on receipt of the complaint from the office of the District Superintendent of Police, Ramanathapuram, enquired the complainant and _______________ Page No.4 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 registered an FIR in Crime No.14/15 (Ex.P7) for an offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012, against the appellant. She then sent the FIR to the concerned jurisdictional Magistrate Court, which was received by the Magistrate on 04.09.2015 at about 3.30 p.m. Thereafter, she placed the records before the Inspector of Police for investigation.
iv. Tmt. Josephin Amalraj (P.W-16), the Inspector of Police, Ramanathapuram, All Women Police Station took up investigation in Crime No.14 of 2015, went to the scene of occurrence on 04.09.2015 at about 6.00 a.m., and prepared an observation mahazar and a rough sketch (Ex.P8) in the presence of Nathiya (P.W-6) and Nagammal (P.W-4). The signatures of Nagammal and Nathiya on the observation mahazar were marked as Ex.P2 and Ex.P4 respectively. Thereafter, P.W-16 sent the victim child for medical _______________ Page No.5 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 examination to the Government Hospital, Ramanathapuram through Tmt.Dhroupathai(P.W-10) and Valarmathi (P.W-11) Police Constable attached to the All Women Police Station, Ramanathapuram v. Dr.Manimozhi (P.W-14) examined the victim child and took vaginal smear/swab and sent the same for analysis. She had opined that the victim child could have been subjected to sexual assault. A copy of the final opinion of Dr.Manimozhi (P.W-14) was marked as Ex.P6.
vi. The victim was produced before the Judicial Magistrate, Tiruvadanai, on 07.09.2015 through Tmt.Maharani, Head Constable of Police, All Women Police Station, Ramanathapuram for recording her statement under Section 164 Cr.P.C. The 164 Cr.P.C., statement of the victim and CD were marked as Ex.P12. The signature of the victim child in _______________ Page No.6 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 164 Cr.P.C., statement was marked as Ex.P3.
vii. On 11.09.2015, the appellant Sathaiya surrendered before the All Women Police Station and was arrested by P.W-16. He was then sent to concerned Judicial Magistrate for remand. On 21.09.2015, the appellant was subjected to medical examination in the Government Hospital, Ramanathapuram. viii.P.W-16 obtained the birth certificate of the victim from the Headmistress(P.W-7), Schwartz Matriculation Higher Secondary School, Ramanathapuram. According to P.W-7, the date of birth of the victim was 27.09.2006 as per the school records. The Transfer Certificate was marked as Ex.P5. ix. P.W-16 recorded the statements of all the witnesses. In the meanwhile, she was transferred and Tmt.Parameswari(P.W-19), the successor of P.W-16 took up investigation in Crime No. _______________ Page No.7 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 14/15 of the All Women Police Station, Ramanathapuram. According to her, since the witnesses stated the same versions which they had already stated before P.W-16, she did not record any statement separately. After collecting reports from the experts, P.W-16 altered the sections of law to Sections 6 and 12 of the Protection of Children from Sexual Offences Act and Section 506 part I IPC., and sent the alteration report (Ex.P11) to the concerned Court. Thereafter P.W-19 completed the investigation and filed the final report on 20.04.2016 against the appellant for the offences punishable under Sections 6 and 12 of the POCSO Act and Section 506 part I IPC before the learned Sessions Judge, Fast Track Mahila Court, Ramanathapuram.
x. The learned Sessions Judge, Fast Track Mahila Court, Ramanathapuram, took up the case on file in Spl.S.C.No. 12/2016 and framed charges under Sections 6 (2 counts) and 12 _______________ Page No.8 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 of POCSO Act and Section 506 part I IPC against the appellant. Since the appellant pleaded not guilty, the case was posted for trial.
xi. In order to establish the guilt of the appellant, the prosecution examined 19 witnesses and marked 12 documents. xii.When the appellant was questioned with regard to the circumstances appearing in evidence against him under Section 313 of the Code of Criminal Procedure, he simply denied of having committed any offence. However, he did not examine any witness on his side.
3.This is yet another case of sexual assault on a minor child, who is less than 12 years of age. Before we go into the merits of this appeal, let us quickly go into the specific object of Protection of Children from Sexual Offences Act. It states that the law should operate in a manner _______________ Page No.9 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 that the best interest and well being of a child are regarded as being of paramount importance at every stage to ensure the physical, emotional, intellectual and social development of the child. The provisions are made to bring such instances of sexual assault on the child in the light by protecting the victim. The object is also that the person of culpable state of mind should be punished for harassing the child and thereby keeping the society child friendly.
4. In the instant case, the family of the victim is an ordinary family where the father is out of station in Chennai as the breadwinner and the mother taking care of their two small children in the village. The case of the prosecution is that the incident of sexual assault took place on a Saturday, which is a holiday for the children too. The elder one, who is the victim, was studying in IV standard in Schwartz Matriculation School and both the children were at home on the day of the incident. The younger one was then a toddler. The mother P.W-1 left the children at home after making the younger son to sleep and leaving the victim to _______________ Page No.10 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 study or do some school work. It appears that the appellant, who was also a neighbour of P.W-1, was waiting for an opportunity for the children to be left unprotected. He had taken away both the children to his house and made the small boy sit on the floor and shut the doors and windows and also raised the volume of the television. Later on, he made the victim lie on the cot and stripped himself naked to commit penetrative sex on the victim and when it was painful, the child started crying. He threatened her not to reveal the incident to any one including her mother. The victim girl managed to come out of the place and it was then the appellant was compelled to carry the toddler (brother of the victim) and was confronted by P.W-1, who had questioned as to why the appellant was carrying her son. The unusual behaviour of tiredness and dullness in the victim child was noticed by her mother P.W-1 only a couple of days later. The victim child spilled the beans when grilled by her mother and it was only then the seriousness of the issue struck upon P.W-1, who contacted P.W-2, her husband asking him to come home to decide upon the future course of action. The victim child was too young and naive to understand the _______________ Page No.11 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 gravity of the situation. P.W-2, who had come back home on 29.08.2015 heard the narration of his daughter as well as his wife and had to weigh the options as to whether to approach the police or to protect the child's and family's reputation thinking about the tremors, it may cause in the village. This could happen to any one in any family whether educated or not. Understandably P.W-2, finally took the right decision of going to the police on 03.09.2015 only to prevent the recurrence of such incidents by the same person or any other person in the village. We are convinced that in such sensitive issues involving a minor female child, decisions do take time and no knee jerk reaction takes place.
5.The victim child was subjected to medical examination by Dr.Manimozhi (P.W-14), who had opined that the possibility of sexual assault cannot be ruled out. The appellant was also subjected to potency test.
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6. In the instant case, the child victim, who had initially disclosed to her mother about the commission of the crime was arrayed as P.W-5 and during her examination in chief, she became emotional and did not elaborate upon the incident one another time. She had not turned hostile to the prosecution and her demeanor as a victim was not missed to be noticed by the learned trial judge. It can be easily understood that the victim child chose to not to repeat whatever she had told formally and informally many times right from her mother, to her father, to close relatives, to the police, to the doctor and to the Magistrate under Section 164 Cr.P.C., and thereafter, during trial. Such requirement to relive the sexual assault while deposing before the Court 3 years after the date of incident definitely would have had a telling effect on any witness much less a child victim, who was hardly 9 years of age and was also the victim.
7. In Section 29 of the Protection of Children from Sexual Offences Act, there is also a presumption of the guilt of an accused. As a _______________ Page No.13 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 result, the prosecution has to lay down to prove the fundamental facts regarding the guilt of the accused, but the burden of proof on the prosecution is not, of 'beyond reasonable doubt'. Once the fact is proved the onus is on the accused to lead evidence to rebut the presumption raised under Section 29 of the Protection of Children from Sexual Offences Act.
8. In the instant case, whether the appellant has made any attempt to rebut the presumption enunciated under Section 29 of the Protection of Children from Sexual Offences Act is a big question mark.
9. However, going through the following contentions of Mr.M.Subash Babu, learned counsel for the appellant, it is to be analyzed whether these contentions hold good and really help the appellant to prove his innocence.
1. Delay in lodging the police complaint: This aspect has already been dealt with earlier and under the Protection of Children from _______________ Page No.14 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 Sexual Offences Act, where the victim fortunately is not killed the dilemma whether to approach the police and also the ignorance of the various provisions of the Protection of Children from Sexual Offences Act are all factors which could be attributed to the inevitable delay.
2. The deposition of the victim on which the entire prosecution case rested turned out to be a damp squib and therefore the prosecution case failed.
This contention has also been dealt with elaborately. There was also a suggestion to P.W-2 during the course of cross- examination that the crime was committed by an elderly person and the appellant was falsely implicated by both P.W-1 and P.W-2 for other extraneous reasons, which included petty civil disputes. Interestingly, this suggestion was made by the defense counsel to P.W-2 on a subsequent day after hearing the child victim depose that she was troubled by an elderly person. To _______________ Page No.15 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 elaborate, this cross-examination of P.W-2 was on 20.05.2019 and P.W-5 (victim child) was examined on 20.06.2018. Notwithstanding these suggestions, P.W-2 and P.W-3 could withstand the testimony of cross-examination. Pertinent it is to point out that P.W-1 and P.W-2 though were examined in chief on 12.12.2017 and 06.03.2018 respectively were cross examined only on 01.07.2019 and 20.05.2019 respectively. Despite this, their narration of facts was clear and cogent. The reasons attributed to P.W-1 and P.W-2 for falsely implicating the appellant are very trivial in nature and no parents would go to that extent to wreak vengeance on anyone using their own 9 year old girl child. The trial Court relied on the demeanor of the victim child, who had turned emotional and could not or did not want to recount or recall the entire incident, which she would have wanted to forget as a bad dream. The trial Court judge in paragraph No.39 of her judgment has observed that though the prosecution filed a petition to recall her for examination, the _______________ Page No.16 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 child refused to come to Court and this clearly explains the mental agony undergone by the child. The learned trial Judge has further observed in paragraph No.41 of her judgment that, “ ghjpf;fg;gl;l rpWkp 9 tajhdth;. tpisahl;L gUtk; mtUf;F ghypay; bjhlh;ghd tpgu';fs;
bjhpa tha;g;gpy;iy/ mth; FtpKr 164
thf;FK:yj;jpy; vjphp jd; F";r vd; K:r;rht[y
tr;rhd; vd;W TwpanjhL kl;Lky;yhky; vjphp
mtUila Mz; cWg;ig jd;Dila thapy;
itj;jjhft[k; Twpa[s;shh;/ bry;nghdpy; glk;
nghl;L fhl;oajhft[k; Twpa[s;shh;/ ,Jnghd;w
bray;fis vjphp bra;jpUe;jhy; kl;Lnk xU
rpWkpahy; mitfisg; gw;wpf; TwKoa[k;/ 9 taJ rpWkp vjphpkPJ ntz;Lbkd;nw gHp Rkj;j nkw;brhd;dthW fw;gid bra;J TwKoahJ/ vjphpapd; ghypay; gyhj;fhuk; rpWkpia kpFe;j kd ghjpg;g[f;Fs;shf;fp cs;sJ/ mtUila _______________ Page No.17 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019 kdghjpg;g[ Kjy; tprhuizapypUe;J bjhpatUfpwJ/ xU rpWkpf;F rhjhuzkhf ,Jnghd;W Vw;gl tha;g;gpy;iy/ mth; ghypay; bjhe;jut[f;F Mshf;fg;gl;Ls;shh;
vd;gJ ,jpypUe;J bjspthf bjhpatUfpwJ/ vjphp 52 tajhdth; jd; ngj;jp tajpy; cs;s rpWkpf;F ghypay; bjhe;jut[ bfhLj;Js;shh;/ ,Jnghd;w Fw;w bray;fSf;F mjpf gl;r jz;lid tH';Ftnj ePjpapd; ghy; cfe;jJ vd ,e;ePjpkd;wk;
jPh;khdpf;fpwJ/”
10.The trial Court accepted the case of the prosecution after conclusion of the trial and rejected the contentions urged on behalf of the appellant. The chain of circumstances established by the prosecution was cogent bringing home the guilt of the appellant, who had not been able to rebut the presumption under Section 29 of the Protection of Children from Sexual Offences Act.
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11. In the instant case, to summarise at the cost of repetition, the parents of the victim child had clearly narrated the incident as they could gather it from their child and their evidence assumes importance, especially, when the victim child was just 9 years old. The trial Court judge had the opportunity to note down the demeanor of the witness. The learned Sessions Judge even on the date of examination of the child, had observed and noted the body language of the child and her emotions. Though it was contended by the defense that there was a dispute between the two parties regarding trashing the waste materials, the same was not substantiated. Even assuming that there was an issue, no parents would give a false complaint of sexual harassment using their child, who was just 9 years old to settle their personal score. Hence, we do not see any reason to interfere with the conviction and sentence passed by the trial Court and accordingly, this appeal deserves to be dismissed. _______________ Page No.19 of 22 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.578 of 2019
12.In the result,
(i) This Criminal Appeal stands dismissed.
(ii) The conviction and sentence passed by the learned Sessions Judge, Fast Track Mahila Court, Ramanathapuram, against the appellant in Spl.S.C.No.12 of 2016 dated 04.10.2019, is hereby confirmed.
[P.N.P., J.] & [R.H., J.]
10.08.2022
Index : Yes/No
Internet : Yes/No
PJL
To
1. The Sessions Judge,
Fast Track Mahila Court,
Ramanathapuram.
2. The Inspector of Police,
All Women Police Station,
Ramanathapuram District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.578 of 2019
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Crl.A(MD)No.578 of 2019
P.N.PRAKASH, J
AND
R.HEMALATHA, J
PJL
Pre-delivery Judgment made in
Crl.A.(MD)No.578 of 2019
10.08.2022
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