Madras High Court
Rajendran vs State on 12 March, 2024
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 20.12.2023
Pronounced On : 12.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A(MD)No.784 of 2022
Rajendran .. Appellant/Sole Accused
Vs.
State, rep. by
The Inspector of Police,
Fort All Women Police Station,
Trichy District.
(Crime No.07/2020) .. Respondent/Complainant
Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C. to
call for the records and set aside the conviction and sentence imposed by
the learned Sessions Judge, Mahila Court, Thiruchirapalli, vide his
judgement dated in Spl.S.C.No.47 of 2020 dated 15.09.2022, acquit the
appellant.
For Appellant : Mr.Karthik Kanna
For Respondent : Mr.M.Muthumanikkam
Government Advocate (Crl. Side)
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The appellant, who is the sole accused in Spl.S.C.No.47 of 2020 on the file of the learned Sessions Judge, Mahila Court, Thiruchirapalli, filed this criminal appeal challenging the conviction and sentence imposed against him by the learned Sessions Judge, Mahila Court, Thiruchirapalli,. The learned trial Judge vide the impugned judgment dated 15.09.2022 held the Appellant guilty, convicted and sentenced him as detailed below:-
Accused Convicted under Sentence of
Section Imprisonment/
fine imposed
https://www.mhc.tn.gov.in/judis
3
Sole Accused 366 of IPC Rigorous
Imprisonment of five
years and to pay a fine
of Rs.2,000/-, in
default to undergo
Simple Imprisonment
for six months.
Rigorous
Imprisonment of five
years and to pay a fine
Section 9 (m) r/w 10 of of Rs.3,000/-, in
POCSO Act default to undergo
Simple Imprisonment
for six months.
Run concurrently
2. The brief facts of the case is as follows:
The defacto complainant is the father of the victim child, who is aged about 8 years. She was studying 3rd standard, in Alangavilas Middle School, Tharanallur. The appellant/accused is residing in the Velupillai Thoppu, Tharanallur North, Trichy. The date of birth of the victim child is 30.06.2012. On 29.03.2020, at 08.00 p.m. the victim child and her brother went to the shop to purchase Mosquito coil. After purchasing the Mosquito coil, the brother alone went to his house and on the day, the appellant had kidnapped the victim child behind Vasanth Nagar Ration Shop and committed sexual assault by removing her inner wear and rubbing his hand on her private part (Vagina). At that time, the https://www.mhc.tn.gov.in/judis 4 victim child made a loud cry. Hence, P.W.4 and P.W.5 visited the scene of occurrence and on seeing their arrival, the appellant fled away from the scene of occurrence. Thereafter, the said P.W.4 and P.W.5 took the child from the occurrence place and left her near her house. The victim child reached the house crying and on enquiry, she disclosed the above act of the sexual assault committed by the appellant. Hence, complaint was made by P.W.1 under Ex.P.1 to P.W.10. P.W.10 received the complaint and registered the case in Crime No.07 of 2020 for the offences under Section 366 of IPC and Section 9(m) r/w 10 of the Prevention of Children from Sexual Offences Act, 2012, (hereinafter, for the sake of brevity, referred to as “POCSO Act”), under Ex.P.8. After the receipt of the FIR from P.W.11, investigation was commenced by examining the victim child and other witnesses. Observation mahazar was prepared. The accused was arrested, medical tests were conducted and steps to record the statement under Section 164 of Cr.P.C. was taken. After conducting the investigation and examining further witnesses, the respondent police filed the final report before the learned Sessions Judge, Mahila Court, Thiruchirapalli. The same was taken on file in Spl.S.C.No.47 of 2020 by the learned Sessions Judge, Mahila Court, Thiruchirapalli. The learned trial Judge issued summons to the accused and after his appearance, https://www.mhc.tn.gov.in/judis 5 served the copies under Section 207 Cr.P.C. Thereafter, he framed necessary charges and questioned the accused. The accused pleaded not guilty and hence the trial commenced against the accused.
3. To prove the case, the prosecution examined PW.1 to PW.12 and exhibited 12 documents as Ex.P1 to Ex.P12. The learned trial Judge thereafter questioned the accused under Section 313 Cr.P.C by putting the relevant questions, the accused denied the same as false and thereafter, the case was posted for examination of the witnesses on the side of the accused. The accused neither produced any documents nor examined any witness on his side.
4. The learned trial Judge, on considering the evidences and witnesses, convicted and sentenced the appellant for the offence as stated supra. Aggrieved over the same, the appellant preferred this appeal.
5. The learned counsel appearing for the appellant made the following submission:
5.1. The alleged occurrence took place on 29.03.2020 at 08.00 https://www.mhc.tn.gov.in/judis 6 p.m. On that date, there was COVID-2019 lock down. The case of the prosecution witness that the victim child went to the shop to purchase the Mosquito coil is unbelievable one.
5.2. The victim child deposed before the Court and specifically stated that she deposed as per the instructions given by her parents and the Police Officers. Hence, the witness was fully tutored and hence, the evidence is liable to be rejected.
5.3. P.W.4 and P.W.5 deposed that they never saw the accused escaping from the scene of occurrence. Both are from the same village and hence, if the evidence of the P.W.4 and P.W.5 are true, they must have identified the appellant at the instance. The said unusual conduct of P.W.4 and P.W.5 clearly shows that their presence in the scene of occurrence is doubtful. The doctor, who examined the victim child deposed that there was no injury and also there was no trace of the sexual assault. In the said circumstances, the evidence of the P.W.1 is not corroborated with the material particulars.
5.4. The learned counsel further submitted that the evidence of https://www.mhc.tn.gov.in/judis 7 victim girl is to be considered carefully and as it is a case based on the deposition of a child witness, the court below has bounden duty to see whether her evidence is cogent and trust-worthy and whether she has been tutored or not.
5.5.In this aspect, it is relevant to note the following Judgments of the Honourable Supreme Court:
5.5(i). In the case of Digamber Vaishnav And another, Vs. State of Chhattisgarh, reported in (2019) 4 SCC 522, the paragraph Nos.21 and 22 are extracted hereunder:
21.The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW 8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to https://www.mhc.tn.gov.in/judis 8 such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.
22.This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law.
5.5(ii). The case of State of Madhya Pradesh Vs. Ramesh and Another reported in (2011) 4 SCC 786, the paragraph No.14 is extracted hereunder:
14.In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring.
Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child https://www.mhc.tn.gov.in/judis 9 has been tutored or not, can be drawn from the contents of his deposition.
5.5(iii). The case of K.Venateshwarlu Vs. State of Andhra Pradesh reported in (2012) 8 SCC 73, the paragraph No.9 is extracted hereunder:
9.Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not https://www.mhc.tn.gov.in/judis 10 tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.
5.5(iv). The case of Bhagwan Singh and others Vs. State of Mathyapradesh reported in (2003) 3 SCC 21, the paragraph Nos.19 and 22 are extracted hereunder:
19.The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony.
22.It is hazardous to rely on the sole testimony of the child witness as it is not available immediately after the occurrence of the incident and before there were any possibility of coaching and tutoring him. In that case evidence of a child witness was appreciated and held unreliable thus:
https://www.mhc.tn.gov.in/judis 11 “14. The other direct evidence is the deposition of PW 7, the son of the deceased, a lad of 7 years. The High Court has observed in its judgment: ‘… the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring.’
15. A bare perusal of the deposition of PW 7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his nana or by his own uncle. It is true that we cannot expect much consistency in the deposition of this witness who was only a lad of 7 years. But from the tenor of his deposition it is evident that he was not a free agent and has been tutored at all stages by someone or the other.” 5.5(v). Paragraph Nos.15 and 16 of the Divion bench judgment of the Tripura High Court in the case of Sri Joubansen Tripura Vs. the State of Tripura passed in Crl.A.(J).No.30 of 2018, are extracted hereunder:
15. If an accused is convicted only on the basis of presumption as contemplated in Sections 29 and 30 of the POCSO Act, then, it would definitely offend Articles 20(3) and 21 of the Constitution of India. In my opinion, it was not the object of the legislature. Presumption of https://www.mhc.tn.gov.in/judis 12 innocence is a human right and cannot per se be equated with the fundamental right under Article 21of the Constitution of India. The Supreme Court in various decisions has held that, provisions imposing reverse burden must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the Statute.
16. It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations. Parliament is competent to place burden on certain aspects on the accused especially those which are within his exclusive knowledge. It is justified on the ground that, prosecution cannot, in the very nature of things be expected to know the affairs of the accused. This is specifically so in the case of sexual offences, where there may not be any eye witness to the incident. Even the burden on accused is also a partial one and is justifiable on larger public interest.
5.5(vi). Paragraph No.22 of the single bench of Karnataka at Bengaluru High Court in the case of Anthoni Vs. The State of Karnataka passed in Crl.A.No.27 of 2017, reads as follows:
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22. Another aspect which throws doubt on the case of the prosecution is that according to the prosecution, during the occurrence, the accused removed the 'top' of the victim and thereafter removed her pant.
The investigating agency has not made any attempts to seize those clothes which would have corroborated the say of the victim that she was wearing clothes as stated by her before the Court. In the absence of any such evidence, it is not safe to rely on the testimony of PW-4, that too, on account of the inconsistencies and contradictions discussed above.
5.5(vii). The Division bench of Bombay High Court in the case of State of Maharashtra Vs. Gajanan Baburao Phakatkar reported in I (2005) DMC 511, as held at paragraph Nos.15 and 16 as follows:
15. Insofar as the child witness is concerned, the Privy Council, in the judgment reported in AIR 1946 Privy Council Page 3 Mohammed Sugal Esa Mamasan Rer Alalah v. The King, held that the, evidence of a child witness is admissible in evidence whether corroborated or not. However, the Privy Council, held that it is a sound Rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn. The Privy Council further held that this is a Rule of prudence and not of law. The Division Bench of our Court in the case of State v. Sharanappa (supra) held that:
https://www.mhc.tn.gov.in/judis 14 "Another Rule of caution which has been time and again given by the. various High Courts is that although the child witness is competent to testify, it is notoriously dangerous unless her statement is recorded immediately and before she comes in contact with others and in particular her close relatives."
The Apex Court in the judgment reported in VII (1998) SLT 41-III (1998) CCR 213 (SC)=(1998) 7 S.C.C. page 17, Panchhi and Ors. v. State of U.P., had occasion to consider the evidentiary value of the evidence of a child witness. In paragraphs 11 and 12 the Apex Court held as under:
"11. ...The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy pray to tutoring.
12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on, It is more a Rule of practical wisdom than of law vide Prakash v. State of M.P., Baby Kandayanathil v.
State of Kerala, Raja Ram Yadav v. State of Bihar, and Dattu. Ramrao Sakhare v. State of Maharashtra." In the light of the position of law which emerges from the aforesaid decisions, the evidence of the minor witness Chetan will have to be appreciated. In the evidence of P.W. 2 Pandurang he has stated that both the minor, sons of his daughter were brought to his house on 8th May, 1987. From that day till the date on which https://www.mhc.tn.gov.in/judis 15 statement of Chetan was recorded i.e., on 14th May, 1987 he was residing in the house of the father of the deceased. Moreover, father of the deceased accompanied the Child witness when his statement was recorded by the Police. A child witness can be easily tutored and, therefore, delay in recording of statement of such child witness is very material. The English deposition of the child witness and the Marathi version thereof do not show that any preliminary questions were asked by the learned Sessions Judge to the child witness for ascertaining whether the witness understands the implication of administering oath. No questions are asked even to ascertain whether the witness was in a position to understand the questions and answer the same. Without taking the said precautions, oath was administered to the child witness, As stated by the Supreme Court in the case of Rameshwar (supra) satisfaction of the Judge that the child understands the duty of speaking truth is very important and such satisfaction can be gathered from the circumstances when there is no formal certificate recorded by the learned Judge. In the facts, of the case before us, there is nothing on record to' indicate that the learned Judge satisfied himself about the capacity of the child witness to understand the nature of the questions. There is nothing on record to show that the learned Sessions Judge before proceeding to record the evidence formed an opinion that the child was in a position to understand the duty of speaking truth. We are of the opinion that it is https://www.mhc.tn.gov.in/judis 16 desirable that the learned Magistrates and the learned Session Judges should normally follow the procedure which is laid down in the judgment of the Division Bench of this Court in the case of State v. Sharanppa.
16. The credibility of the child witness appears to be doubtful. His statement has been recorded belatedly. In his deposition, he has stated that he does not like his father. So far as the incident is concerned, he admitted in cross-examination that he was sleeping on the bed and he was awakened by the shouts of his mother and when he heard the shouts, door of the room in which his mother was there was closed. Evidence of the child witness has been recorded after about a year after the incident. Considering all these aspects, it is very unsafe to rely upon the evidence of the child witness. 5.6. As per the precedents cited above, the evidence of the child witness can be relied upon, if the Court after evaluvation comes to a conclusion that the child is not tutored and his evidence has a ring of truth. It is also safe and pertinent to look for the corroboration for the evidence of the child witness from the other evidence on record. In this case, the prosecution miserably failed to prove the case in accordance with the above principle in view of the statement of the victim child before the Court that she deposed before the Court as tutored by the https://www.mhc.tn.gov.in/judis 17 parents and Police Officer. The shop owner P.W.4 and 5 also deposed that they did not see the presence of the accused at the time of occurrence. Hence, the evidence of the child witness itself has inherent improbabilities and infirmities. Apart from that, there is no corroboration of evidence.
5.7. The learned counsel appearing for the appellant further submitted that there is a contradiction regarding the number of persons who arrived at the scene of occurrence. Further, the names of P.W.4 and P.W.5 have not been mentioned in the FIR and the complaint. Hence, P.W.4 and 5 are witnesses put up by the prosecution to substantiate their case. In the said circumstance, he seeks for acquittal.
6. The learned Additional Public Prosecutor appearing for the respondent Police submitted that even though P.W.4 and P.W.5 stated that they did not see the accused, they stated that one person fled away from the scene of occurrence. They identified the accused/appellant before the Court. The case of the prosecution is that the appellant kidnapped the victim girl behind Vasanth Nagar Ration Shop and removed her underwear and rubbed her private parts. In the said circumstances, the https://www.mhc.tn.gov.in/judis 18 absence of injuries is not material one.
6.1. The learned Additional Public Prosecutor submitted that mere non-mentioning of the appellant's name in the FIR and the complaint is not a ground to disbelieve the evidence of P.Ws.2, 4 and 5. In the said circumstances, the learned trial Judge correctly appreciated the evidence and convicted the appellant for the above said offences.
7. This Court has considered the rival submissions made by either side and perused the records and also the precedents relied upon by them and impugned judgment.
8. Now, the question is whether the conviction and sentence imposed against the appellant for the offences under Section 366 of IPC and Section 9 (m) r/w 10 of POCSO Act, can be sustained on the basis of the evidence of the prosecution witness.
8.1.It is the duty of the prosecution to prove the case beyond reasonable doubt. Even in this type of the POCSO case also, it is the duty of the prosecution to prove the foundational facts beyond reasonable https://www.mhc.tn.gov.in/judis 19 doubt. In this case, the following are the foundational facts:
8(i). On 29.03.2020 at 08.00 p.m, the victim girl and her brother went to the shop of the P.W.6.
8(ii). From that place, the appellant kidnapped the victim girl near the Vasantha Nagar Ration Shop and committed sexual assault on her.
8(iii). The victim girl made a loud cry and P.W.4 and P.W.5 visited the scene of occurrence and they found the appellant and one person fleeing away from the scene of occurrence. After rescuing the victim girl, P.W.4 and P.W.5 left the victim girl near her house. The entry of the child in the house crying and registration of the case and enquiry of the said child relating to the sexual assault committed by the appellant in the said case.
9. Admittedly, on 29.03.2020, there was a complete COVID-19 lock down. More particularly, there was no movement at night during the first period of COVID-19 lock down. For the first 15 days, there was total restriction of movements at night. In the said circumstances, the case of the prosecution that on 29.03.2020, at 08.00 p.m. the two small children went to the shop of P.W.6 to purchase Mosquito coil is unbelievable one. The evidence of P.W.3 is that “yhf; lTz; Neuj;jpy; filia jpwf;f Nghyp]hu; mDkjpg;gjpy;iy vd;why; rupjhd;”. The https://www.mhc.tn.gov.in/judis 20 same was corroborated by the evidence of P.W.1, i.e., 'rk;gtk; ele;jjhf nrhy;yg;gLk; jpdk; nfhNuhdh ehl;fspy; filailg;G nra;j ehd; vd;why; rupjhd;. Mdhy; ngUk;ghYk; ,uT Neuk; me;j rkaj;jpy; filfs; KotJk; nfhNuhdh tpjpfspd;gb milf;fg;gl;bUf;Fk; vd;why; rupjhd;'. Hence, the opening of the shop and the claim that the parents instructed the two small children during the COVID-19 lock down period to purchase the Mosquito Coil, seems to be unbelievable and unnatural conduct of the parents. The parents are concerned about the safety of the children. In the said COVID-19 lock down season, all the parents were more concerned about their wards. So sending the children to purchase the Mosquito coil is not possible. Hence, this Court has every reason to disbelieve the prosecution witness that both the children went to the shop to purchase Mosquito Coil. Furthermore, the brother of the victim girl has not been examined, who according to this Court, is a material witness. The said non-examination of the witness has only paved way to take adverse inference against the prosecution and also to justify the conclusion that the children would not have visited the shop.
10. The evidence of P.W.2 as follows:
https://www.mhc.tn.gov.in/judis 21 “mg;gh mk;kh nrhd;dgpufhuk; Nghyprhu; nrhd;dgb rhl;rp nrhy;yNtz;Lk; vd;W $l;b te;jhu;fs; vd;why; rupjhd;.'
11. From the above evidence, it is clear that the victim girl was subjected to tutoring.
12. Considering the evidence, this Courts feels that the evidence of the victim child has been tutored by the Police Officers and her parents. Apart from that, the statement under Section 164 Cr.P.C., was recorded after the number of months i.e., the occurrence took place on 29.03.2020, at 08.00 p.m, and the complaint was made early morning, but the statement under Section 164 of Cr.P.C., was recorded only on 24.06.2020. Even in the said belated statement, there is some material contradiction between the evidence and the 164 statement. In the belated 164 statement also, she has not disclosed about P.W.4 and P.W.5. In the FIR also, there was no disclosure about the P.W.4 and P.W.5. Hence, the case of the appellant that the victim was subjected to the tutoring is acceptable. P.W.4 and P.W.5, in their evidence clearly stated that one unidentified person fled from the scene of the occurrence. One shop, that too, in night hours was open, is unbelievable one. The appellant and https://www.mhc.tn.gov.in/judis 22 P.W.4 and P.W.5 are from the same village. In the said circumstances, the claim that one person fled from the scene of occurrence, and not identifying the person who had fled, has its significance and leads only to disbelieve the evidence of P.W.4 and P.W.5. Further, their name, as stated above, was not mentioned in the FIR. In addition to that, the conduct of P.W.4 and P.W.5 in leaving the victim girl near her house even after she was found crying after being sexually assaulted is unnatural one. In the said circumstances, they are legitimately expected to hand over the child to the custody of the parents of the victim girl explaining what happened and making a complaint to the jurisdictional Police Station. In the absence of the such a conduct above fact, on the part of P.W.4 and P.W.5, this Court disbelieve their evidence and every reason is there to accept the version of the defence that they were not present in the scene of the occurrence. Even the shop owner has also not deposed about the appellant's presence in front of the shop. Further, the Court before recording the evidence of the victim child is to ascertain some facts as to her capability to depose the truth before the Court. In this case, from the question and answer, the following question disturbed this Court:
“Nfs;tp: ehd; ahu; vjpNu epw;gtu; ahu; ,J ve;j ,lk; njupAkh?
https://www.mhc.tn.gov.in/judis 23 gjpy;: vdf;F njupahJ.
13. The recording of the evidence itself is not in accordance with law. The Honourable Supreme Court has held in many judgments that before examining the witnesses, the Court has to verify whether the child can understand and give rational answers. In this aspect, it is relevant to rely upon the following judgments of the Honourable Supreme Court:
13.1.In Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat reported in 2004 1 SCC 64 paragraph 7:
whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe.
13.2.In Pradeep v. State of Haryana, 2023 SCC OnLine SC 777
10. Before recording evidence of a minor, it is the duty https://www.mhc.tn.gov.in/judis 24 of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial.
He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.
14. It is the specific case of the victim girl that the appellant forcibly removed her underwear and rubbed her private parts. Further, in the 164 statement, the victim girl stated that the appellant lay on her private parts. In the said circumstances, the absence of the sexual assault as per the evidence of the Doctor is material bearing. The Doctor categorically stated that there was no trace of the sexual assault. Apart from that, the investigating agency failed to collect the materials of the https://www.mhc.tn.gov.in/judis 25 child and also the appellant. Hence, there is no material corroboration relating to the sexual assault committed by the appellant. From the above discussion, this Court comes to the conclusion that the prosecution miserably failed to prove the case against the appellant. The evidence of prosecution witnesses and documents have inherent infirmities.
15. In the said circumstances, this Court finds that the prosecution miserably failed to prove the charges against the appellant. Hence, this Court is inclined to interfere with the finding of the learned trial Judge in convicting the appellant under Section 366 IPC and Section 9 (m) r/w 10 of POCSO Act, and acquits the appellant for the above stated reasons.
16. In the result, this Criminal Appeal stands allowed. The conviction and sentence dated 15.09.2022, passed by the learned Sessions Judge, Mahila Court, Thiruchirapalli, in Spl.S.C.No.47 of 2020 is hereby set aside. The learned trial Judge granted compensation to the victim girl. Even though this Court acquitted the appellant from all the charges, the order of compensation granted to the victim girl is not disturbed. The fine amount, if any, paid by the appellant/sole accused shall be refunded to him. The bail bond, if any, executed by the https://www.mhc.tn.gov.in/judis 26 appellant/sole accused shall stand cancelled. The appellant is set liberty unless his presence is required in any other case.
12.03.2024 NCC : Yes/No Index : Yes / No Internet : Yes / No vsg To
1.The learned Sessions Judge, Mahila Court, Thiruchirapalli.
2.The Inspector of Police, Fort All Women Police Station, Trichy District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 27 K.K.RAMAKRISHNAN,J.
vsg Pre delivery Judgment made in CRL.A(MD).No.784 of 2022 12.03.2024 https://www.mhc.tn.gov.in/judis