Madras High Court
M.Saravanan vs The State Rep. By on 21 November, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.713 0f 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.11.2022
CORAM:
THE HON'BLE Mr. JUSTICE P.VELMURUGAN
Crl.A.No.713 of 2021
M.Saravanan ... Appellant
Vs.
The State Rep. By
The Inspector of Police,
All Women Police Station,
Virudhachallam. ... Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., against the
judgment dated 01.09.2021 made in Spl.S.C.No.131 of 2019 on the file of
the learned Sessions Judge of Special Court for Exclusive Trial of Cases
under POCSO Act, Cuddalore.
For Appellant : Mr.D.Murugan
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
*****
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https://www.mhc.tn.gov.in/judis
Crl.A.No.713 0f 2021
JUDGEMENT
This Criminal Appeal has been filed to set aside the order dated 01.09.2021 passed in Spl.S.C.No.131 of 2019 on the file of the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore.
2. The respondent police registered a case against the appellant in Crime No.23 of 2019 for the offence under Sections 3, 4 of POCSO Act and also for the offence under Section 506(i) IPC., The respondent police after completing the investigation, laid a charge sheet before the Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore, since the offence is against child. The learned Special Judge, after completing the formalities, taken the case on file in Spl.S.C.No.131 of 2019 and framed the charge against the appellant for the offence under Section 506(i) IPC., and also for the offence under Section 3(a) which is punishable under Section 4 of POCSO Act. During trial, on the side of prosecution, in order to substantiate the charges, on the side of the prosecution, eight witnesses were examined as P.Ws.1 to P.W.8 and 10 documents were marked as Exs.P1 to 2/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 P10. Besides, one material object was also exhibited. After completing the examination of the prosecution witnesses, incriminating circumstances were culled out from the evidence of prosecution witnesses, put before the accused, by questioning under Section 313 Cr.P.C., and the same was denied by the accused as false and pleaded not guilty. On the side of the defence, no oral and documentary evidence was produced.
3. On completion of trial and hearing the arguments advanced on either side, the Special Court found the accused guilty for the offence under Section 506(i) IPC., and also for the offence under Section 3(a) which is punishable under Section 4 of POCSO Act and convicted and sentenced him to undergo two years rigorous imprisonment and to pay fine of Rs.1,000/- in default to undergo three months simple imprisonment for the offence under Section 506(i) IPC and convicted and sentenced to undergo seven years rigorous imprisonment and to pay fine of Rs.2,000/- in default to undergo three months simple imprisonment for the offence under Section 3(a) of POCSO Act, which is punishable under Section 4 of POCSO Act. Aggrieved over the said judgment of conviction and sentence, the accused has filed the present appeal before this Court.
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4. Learned counsel for the appellant would submit that there was no such occurrence had happened as alleged by the prosecution. There are material contradictions between the evidence of prosecution witnesses. Mother of the victim girl was in Kerala at the time of occurrence and she was examined as P.W.6, has stated that P.W.2 informed her about the sexual assault said to have been committed by the appellant to the victim girl, whereas, P.W.2, who has the custody of the child at the time of occurrence has deposed that she informed to the mother of the victim girl regarding the sexual assault said to have been committed by the appellant to the victim girl and also she has stated that the victim girl has not informed her about the sexual assault committed by the appellant to her at the first instance, and also she informed to her mother about the same. During cross examination, P.W.2 has deposed that through the victim girl's mother only, she came to know about the occurrence. Though the victim girl has stated that the parents of the appellant are well known about the incident and also they threatened her and if she would tell the same, they will scold and also beat her, parents of the appellant were not examined as witnesses. Further sister of P.W.6 and father of the victim girl were also not examined by the 4/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 prosecution in this case. Therefore, non-examination of these vital witnesses are fatal to the case of the prosecution. There are material contradictions even regarding the date and place of occurrence and the manner of occurrence as projected by the prosecution. It has been stated that the date of occurrence is 17.08.2019 in one place, where as the date of occurrence is stated as 24.09.2019 in another place. Prosecution has not clear about the exact date of occurrence. Victim girl's brothers, who were staying along with the victim girl were not examined in this case. There are material contradictions between the statement recorded under Section 164 Cr.P.C., and the deposition made by the victim girl during examination as P.W.1. While recording previous statement, she has stated that the appellant closed his mouth by his hand, whereas, during evidence, she has stated that the appellant closed his mouth by using cloth. The medical evidence has not corroborated with the evidence of the victim girl. Though there are penetrative sexual allegations levelled against the appellant, where as the medical evidence does not corroborate the same. The doctor has opined that there was no symptom for penetrative sexual assault and the victim girl's hymen was intact. Therefore, there is no penetrative sexual assault has 5/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 been made out by the appellant as projected by the prosecution. Based on untrustworthy evidence of the prosecutrix, the accused cannot be convicted.
5. Further, learned counsel appearing for the appellant would submit that the age of the victim has not been proved. P.W.7 who is said to have been the Headmaster of the school, who issued the school certificate Ex.P2, where in the date of birth of the victim girl is mentioned as 30.06.2007, however, Ex.P2 was not issued by the Headmaster of the school in which the victim girl was studied. P.W.7, B.T.Assistant, who is not a competent person to issue the certificate. Therefore, the school certificate Ex.P2 is not an admissible document. Therefore, prosecution has not proved the age of the victim as she is a minor and she is a child under the definition of POCSO Act. The Investigating Officer has clearly admitted that he has not examined the vital witnesses namely brothers, father of the victim girl and the parents of the appellant and also he has not collected the material object which is required in this case. As per Rule 6 of POCSO Act, the victim should have been subjected to medical examination within 24 hours from the time of occurrence, whereas in this case, admittedly the victim was not 6/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 produced before the doctor and she was not subjected to medical examination as contemplated under the said rule. The Investigating Officer has not followed the mandatory provisions, which also vitiates the case of the prosecution. The prosecution has failed to prove its case beyond all reasonable doubt. Since the case was registered against the appellant under POCSO Act, without any material and without any corroborative evidence, the innocent person cannot be convicted under POCSO Act. The trial court failed to appreciate the evidence in the right perspective and erroneously convicted the appellant for the offence under Section 506(i) IPC and also Section 4 of POCSO Act, which warrants interference.
6. Learned Additional Public Prosecutor appearing for the respondent would submit that age of the victim is only 12 years at the time of occurrence. In order to prove the age of the victim, school certificate has been marked as Ex.P2 through the Assistant Headmaster P.W.7. Evidence of P.W.7 itself shows that since the Headmaster was on leave, he was incharge of the school, has issued the school certificate Ex.P2. From Ex.P2, it is found that the date of birth of the victim girl is 30.06.2007. The date of 7/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 occurrence is 17.08.2019. Therefore, age of the victim girl is only 12 years at the time of occurrence, who was not completed the age of 18 years and she is a child under the definition of Section 2(i)(d) of POCSO Act. Defence has also substantiated that date of birth of the victim is not that on 30.06.2007, but they have not proved their defence. The Court has also drawn the presumption under Section 94(2) of Juvenile Justice Act and no doubt, it is a rebuttable presumption and the defence has not rebutted the presumption in the manner known to law by producing actual birth certificate to show that the date of birth of the victim as in Ex.P2 is not that of the victim. Therefore, prosecution has proved the age of the victim girl and she is a child under the definition of POCSO Act. Further, he would submit that the victim was examined as P.W.1 and also she was previously produced before the Judicial Magistrate, to record statement under Section 164 Cr.P.C., which has also been marked as Ex.P1. From the evidence of P.W.1-victim girl and Ex.P1-previous statement, the victim girl has clearly narrated that the first occurrence took place on 17.08.2019, and on that date, while she was sleeping in the corridor of the appellant's house, while she was in deep sleep, she felt that somebody was lying on her and all of a 8/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 sudden when she woke up, she saw that the appellant was lying on her. Immediately, she pushed him. The appellant also threatened her and initially he closed her mouth with cloths and when she pushed him and started to shout, at the time, he closed her mouth by his hand. Subsequently on 25.09.2019 while she was sleeping, once again, the appellant misbehaved with her. Therefore, she informed to P.W.1, in turn, she informed to her mother. Her mother come from Kerala and filed a complaint. Further he would submit that even though medical evidence has not corroborated, however, it is not the case of the defence that there was a penetrative sexual assault, victim girl also stated that on seeing the appellant was lying on her, immediately she pushed him. P.W.2, who is care taker of the victim girl has deposed that the victim girl asked her to call her mother to come to their house. Therefore, she informed to her mother. In this case, no eye witness have witnessed the occurrence. Victim only saw the appellant who had committed the said offence. Therefore, non-examination of the brother and father of the victim girl and sister of the mother of the victim girl are not fatal to the case of the prosecution. Therefore, from the evidence of P.W.1, P.W.2, P.W.6 P.W.7 and Exs.P1, P2, P4, prosecution 9/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 proved its case beyond all reasonable doubt. The Trial Court rightly appreciated all the evidence and convicted the appellant for the abovesaid charges and there is no merit in the appeal and the same is liable to be dismissed.
7. Heard learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent and perused the materials available on record.
8. Admittedly, case was registered against the appellant for the offence under Section 506(i) IPC and also for the offence under Section 4 of POCSO Act. In order to substantiate the prosecution case, totally eight witnesses were examined and ten documents were marked. Out of eight witnesses, the victim was examined as P.W.1. During investigation, the victim was produced before the Judicial Magistrate to record statement under Section 164 Cr.P.C., and the same was marked as Ex.P1. A combined reading of the evidence of P.W.1 and Ex.P1, the victim girl has clearly narrated that the incident had happened on two occasions ie., on 17.08.2019 10/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 and 25.09.2019. Evidence of P.W.1 has clearly shows that the appellant is a known person who is also a relative, at the time of occurrence, the victim and her brothers were staying with P.W.2, they used to sleep in the corridor of the appellant's house. While she was in deep sleep, she felt that someone lying on her and immediately when she wake up, she saw that the appellant who was lying on the victim girl and immediately she pushed him. The appellant threatened her by closing her mouth. Since the mother of the victim was not in the village and she was in Kerala for her livelihood, the victim girl and her brothers are under the care of P.W.2. Though she informed the abovesaid sexual act of the appellant to their relative, nobody was believed the same. On 25.09.2019, also while she was sleeping at the same place, the appellant once against try to misbehave and in order to avoid the same, she asked P.W.2 to ask her mother to come to village, since the other persons did not believe the words of the victim and her mother was also not in the village. Then she informed to her mother, who sets the law into motion by filing a complaint. Though there is a delay in filing the complaint, cases of this nature, mere delay in filing the complaint is not fatal to the case of the prosecution. Normally, information would be 11/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 brought to the knowledge of the police, immediately soon after the occurrence, where as in cases of this nature, it is very difficult to speak out their grievances even to reveal before their own kith and kin. Therefore, under these circumstances, mere delay in filing the complaint is not the sole ground to disbelieve the evidence of the victim girl. The Court immediately cannot come to the conclusion that the evidence of the victim girl is untrustworthy. As far as the age of the victim girl is concerned, the school certificate of the victim girl was secured by prosecution and marked as Ex.P2. P.W.7 is the Assistant Head Master, who was incharge of the said school in which the victim girl was studied. As per Ex.P2, the date of birth of the victim girl is 30.06.2007 and the date of the alleged occurrence is 17.08.2019, therefore, age of the victim girl is 12 years. Though the birth certificate of the victim girl has not been produced, however, Ex.P2- school certificate is an authenticated one.
9. Section 34 of POCSO Act which clearly shows that how the age of victim has to be determined and when the Court can draw the presumption regarding the proof of birth and age of the victim. Section 34(i) of POCSO 12/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 Act reads as follows:
Procedure in case of commission of offence by child and determination of age of Special Court-
(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of [the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)].
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
(2) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.
Section 94 (ii) of Juvenile Justice Act which reads as follows:
The Officer-in-Charge of the home shall encourage active involvement of local community in improving the conditions in the homes, if, the members of the community want to serve the institution or want to contribute through their expertise.
In this case, Ex.P2 issued by the School in which the victim girl was 13/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 studied. This Court is the Appellate Court and final Court of fact finding, while re-appreciating the entire evidence, arrived at an independent conclusion and draw the presumption under Section 94(ii) of Juvenile Justice Act. Therefore, this Court presumed that Ex.P2 is a genuine one. This Court draw the presumption under Section 94 of Juvenile Justice Act read with Section 34 of POCSO Act. This Court finds that the age of the victim is 12 years. But contra to that or in order to rebut the presumption, no contra evidence has been let in by the defence. Therefore, this Court finds that the age of the victim is 12 years and she is a child under the definition of Section 2(i)(d) of POCSO Act. For the purpose of determining the age of the victim, the abovesaid provisions can be taken into consideration.
10. As far as the commission of offence is concerned, in order to substantiate the charges framed by the trial court, totally eight witnesses were examined. Out of which, the victim was examined as P.W.1 and the previous statement of the victim has been marked as Ex.P1. Combined reading of the evidence of P.W.1, the victim girl, and previous statement 14/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 recorded under Section 164 Cr.P.C., Ex.P1, the victim girl has clearly narrated the incident and also the date of first occurrence is on 17.08.2019 and the second occurrence on 25.09.2019. Though the learned counsel for the appellant vehemently contended that even the date of occurrence itself has not been substantiated by the prosecution and there are material contradictions even regarding the date and place of occurrence and the manner of occurrence, cases of this nature, no independent witness /eye witness can be expected to be available.
11. In this case, sole witness is P.W.1- the prosecutrix who deposed that during night hours, while she was in deep sleep, the occurrence is said to have taken place. It is not the evidence of P.W.1 or the case of the prosecution that some other witness have noticed the incident and they secured the victim. It is the case of the prosecution that while the victim girl was sleeping, the appellant one who was lying on her committed sexual assault. As per Section 3(a) of POCSO Act, touching the private part of the man with the private part of the victim itself falls under the definition of 3(a) of POCSO Act, which is punishable under Section 4 of POCSO Act. 15/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 Evidence of the victim girl is very clear that while she was in deep sleep, she felt that someone was lying on her and when she woke up, she found that the appellant who was lying on her. Immediately, she pushed him. The doctor P.W.3 has categorically stated that there was no symptom regarding penetrative sexual assault made on the victim girl and the victim girl's hymen was intact. That may not be the sole ground to disbelieve the evidence of the victim girl. Mere touching the private part itself falls under the offence under Section 3(a) of POCSO Act. Therefore, this Court finds that there is no reason to disbelieve the evidence of the victim. Therefore, under these circumstances, this Court finds that in this case, prosecutrix is the sole witness for the commission of offence committed by the appellant, therefore, mere non examination of other witnesses and mere non- corroboration of the said evidence may not be the sole ground to discard the evidence of the victim girl. Cases of this nature, evidence of the prosecutrix natural, cogent and consistent and if the evidence of the prosecutrix inspires the confidence of the Court, conviction can be recorded. The Court need not search for corroborative evidence. In the absence of any other witnesses, where as in this case, the victim/prosecutrix alone is the witness for the 16/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 commission of offence by the appellant and other witnesses are only circumstantial witnesses and they are not eye witnesses for the sexual act said to have been committed by the appellant.
12. Therefore, under these circumstances, this Court finds that the evidence of prosecutrix alone is sufficient to convict the appellant and there is no reason to disbelieve the evidence of victim or discard the evidence of the prosecutrix. This Court is the appellate court, final court of fact finding, carefully re-appreciated the entire evidence. This court do not find any perversity or any reason to interfere with the judgment of the trial court. There is no merit in the appeal and the appeal is liable to be dismissed. Accordingly the Criminal appeal is dismissed. Consequently, connected miscellaneous petition, if any, is closed.
21.11.2022 mfa Index:yes/No Internet:yes/No 17/18 https://www.mhc.tn.gov.in/judis Crl.A.No.713 0f 2021 P.VELMURUGAN, J.
mfa To
1. The Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore.
2. The Inspector of Police, All Women Police Station, Virudhachallam.
3. The Public Prosecutor, High Court, Madras.
Crl.A.No.713 of 2021
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