Madras High Court
Jegan vs The State Represented By on 29 September, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.529 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.09.2022
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.529 of 2021
Jegan .. Appellant
.Vs.
The State represented by:
The Inspector of Police,
Erode Railway Police Station,
Erode District,
Crime No.5 of 2018. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to set aside the judgment and conviction passed in
Spl.S.C.No.15 of 2018 dated 16.4.2021 on the file of the learned
Sessions Judge, Magalir Neethi Mandram, Fast Track Mahila Court,
Erode.
For Appellant : Mr.B.Mohan
Counsel on record
Mr.T.Saravanan
Legal Aid Counsel
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed against the judgment dated 16.4.2021 passed in Spl.S.C.No.15 of 2018 by the learned Sessions Judge, Magalir Neethi Mandram, Fast Track Mahila Court, Erode. https://www.mhc.tn.gov.in/judis Page No.1/19 Crl.A.No.529 of 2021
2. The case of the prosecution is that the de-facto complainant one Amit Kumar working as a Scientist in IRDO, Dehradun, Uttarkhand State was on a holiday trip to Ooty, Tamil Nadu with his wife and two daughters. On 06.01.2018 he travelled in the Nilgiris Express train from Chennai to Mettupalayam and he was allotted berth numbers 57, 58, 59 and 61 in coach B3 and his elder daughter/victim child occupied berth number 58. During night hours, the accused Jegan, who was travelling in the same coach in berth number 63 had committed sexual assault by pressing the victim child's breast which is punishable under Section 9(m) read with Section 10 of 'Protection of Children from Sexual Offences Act, 2012' [hereinafter referred to as 'POCSO Act' for the sake of convenience].
3.On the complaint given by the de-facto complainant the respondent-Police registered a case in Crime No.5 of 2018 against the appellant for the offence under Sections 9(m) read with Section 10 of POCSO Act. The respondent/Police on completion of the investigation, filed a final report before the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Erode. When questioned, the https://www.mhc.tn.gov.in/judis Page No.2/19 Crl.A.No.529 of 2021 accused denied the allegation. However, based on the materials, the trial Court found that the accused was guilty of the above offence and framed charges for the offence under Sections 9(m) r/w 10 of POCSO Act.
4.In order to prove the case of the prosecution before the trial Court, on the side of the prosecution as many as 14 witnesses were examined as P.W.1 to P.W.14, marked 16 documents as Exs.P1 to P16 and three material objects were marked as P.M.O.1 to P.M.O.3. On the side of the defence, one witness was examined as D.W.1 and marked one document as Ex.D.1.
5. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant/accused and was questioned under Section 313 Cr.P.C., wherein he denied all the incriminating circumstances as false and pleaded not guilty.
6. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the https://www.mhc.tn.gov.in/judis Page No.3/19 Crl.A.No.529 of 2021 appellant is guilty of the offence under Section 9(m) read with Section 10 of POCSO Act and convicted and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of three months.
7. Challenging the said conviction and sentence, the appellant is before this Court.
8.1 The learned counsel for the appellant/accused submitted that due to previous enmity and difference of opinion between the victim child's family and the appellant, a false case has been foisted against the appellant. The case of the prosecution is that the accused/appellant committed sexual assault on the elder daughter/P.W.7 of the de-facto complainant, however, the complaint/Ex.P2 shows that sexual assault was committed on both the daughters and the same was admitted by P.W.1 and P.W.9, who are the parents of the victim child. In the absence of explanation for the same on the side of the prosecution, the genesis of the case is doubtful.
8.2 The learned counsel for the appellant further submitted that the https://www.mhc.tn.gov.in/judis Page No.4/19 Crl.A.No.529 of 2021 allegations made in the First Information Report was not proved beyond all reasonable doubt as the evidences adduced on the side of the prosecution are contradictory. The evidence of P.W.11/Head Constable would establish that the mandate in POCSO Act was not followed. Further, the manner in which FIR is lodged is unknown to law and the evidence of P.W.12/Chinnathangam-Inspector of Police would show that the case was foisted at the behest of IG of Railway Police and the case is only out of mere surmises and conjectures. Further, the reasons as to why the complaint was not lodged in Salem Junction is not explained by the prosecution. Though the complaints marked as Exs.P1 and P2 were prepared in Salem Junction, the same was submitted to Erode Police, which casts a doubt on the case of the prosecution. Hence, the genesis of the case is doubtful. The appellant is entitled for benefit of doubt as per the law down by Apex Court in Bhagawan Sanghai Vs. State of Rajasthan reported in [Crl.A.No.416 of 2016 @ SLP (Crl).No.2301/2016 dated 03.06.2016].
8.3 The learned counsel for the appellant further submitted that there is no eye witness to the alleged sexual assault. P.Ws.1, 3 and 9 did https://www.mhc.tn.gov.in/judis Page No.5/19 Crl.A.No.529 of 2021 not witness the alleged occurrence directly, but, they deposed that they saw the accused after pointing out by the prosecutrix. Therefore, P.Ws.1, 3 and 9 are eye witnesses, but as per Section 6 of the Indian Evidence Act, 1872, the evidences given by them can be taken into consideration based on the relevancy that forms part of the said incident. The evidence of P.W.7 is based on the tutoring by P.W.1/father of the victim child. Further, P.W.7 did not speak anything about identification in her previous statement recorded under Section 164 Cr.P.C., but, the victim named the accused shown to her and admitted that the details was fed to her by her father. The statement recorded under Section 164 Cr.P.C is not proved as contemplated under Section 145 of the Indian Evidence Act, 1872. Once the statement recorded under Section 164 Cr.P.C is the substantive piece of evidence, if any contradictory statements are made before the Police officials and the statement recorded under Section 164 Cr.P.C is contrary and inconsistence of the evidence of P.W.7 in identifying the appellant has to be discredited and shall not be believed. The inconsistency and contradiction in this case is fatal to the case of the prosecution. The evidence of P.Ws.1, 4, 7 and 9 are contradictory to each other as to how the child cried for help. The documents Exs.P2, P13 and https://www.mhc.tn.gov.in/judis Page No.6/19 Crl.A.No.529 of 2021 P14 are secondary evidence and said to have been attested by P.W.14. The documents are not proved as contemplated under the Indian Evidence Act, 1872. Ex.P2 was attested ante-dated and there is no explanation on behalf of the prosecution. No explanation is forthcoming as to why Ex.P1 given in Salem Junction is transferred to the other police station at Erode. Therefore, the same is fabricated and an afterthought. The trial Court erred in appreciating the evidence and shifted the burden of presumption under Section 29 of POCSO Act. The presumption under Sections 29 and 30 of POCSO Act is rebuttable presumption. The admission made by the witnesses is sufficient enough to prove the rebuttal. The presumption is drawn only if the prosecution establishes the prima facie case. In the present case, it is not done so, therefore, no presumption can be drawn. There is no corroborative and cogent evidence to substantiate the case of the prosecution. The trial Court failed to appreciate the material contradictions and wrongly convicted and sentenced the appellant.
9.1 The learned Additional Public Prosecutor appearing for the respondent/Police submitted that P.W.1/de-facto complainant was https://www.mhc.tn.gov.in/judis Page No.7/19 Crl.A.No.529 of 2021 working as a Scientist in IRDE, DRDO, Dehradun, Uttarkhand State was on a holiday trip to Ooty, Tamil Nadu with his wife and two daughters. On 06.01.2018 while travelling in the Nilgiris Express train from Chennai to Mettupalayam they were boarded in B3 coach berth numbers 57, 58, 59 and 61. After finishing their dinner, the wife of P.W.1 occupied the berth No.57, the victim child/P.W.7 occupied middle berth No.58, another child occupied just opposite berth No.61 and P.W.1 occupied upper berth No.59. At about 11.00 to 11.30 p.m when the train was moving fastly, the victim child pulled P.W.1's bedspread and showed a person in berth number 63 and told that the said person has done bad touch on her. When P.W.1 questioned the accused about the said incident, the accused who was in drunken mood said something in Tamil that he is police. After some conversation, P.W.1 preferred a complaint against appellant to the Traveling Ticket Examiner. Thereafter, P.W.1's wife asked the victim child what had happened and the victim child told that the appellant pressed her chest and showed torch on her face. When P.W.1 wrote the complaint, the accused requested to forgive him and he showed his wife and son photo in his mobile. The Travelling Ticket Examiner informed the said incident to Salem local Police. The de-facto https://www.mhc.tn.gov.in/judis Page No.8/19 Crl.A.No.529 of 2021 complainant filed a complaint against the accused before the Railway Police, which was marked as Ex.P1. The complaint written in the complaint book was marked as Ex.P2. Thereafter, Erode Police took the accused with them and advised P.W.1 and his family to proceed with their trip and hence, they proceeded to Mettupalayam.
9.2 He further submitted that in order to substantiate the case of the prosecution, totally 14 witnesses were examined. From the evidence of P.W.1/father of the victim child, P.W.3/retired Chief Ticket Inspector, P.W.4/co-passenger, P.W.7/victim child and P.W.9/mother of the victim child the prosecution has proved its case beyond all reasonable doubt and also proved the charges with cogent evidence. The victim child has clearly narrated the assault happened to her and she has also identified the appellant as the one who committed assault on her. There is no previous enmity between the appellant and the victim child's family as stated by the appellant. Therefore, the trial Court has rightly appreciated the entire oral and documentary evidence and convicted and sentenced the appellant as above and there is no ground to interfere with the judgment of the Court below.
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10. When the matter was taken up for hearing on 22.09.2022, as there was no representation for the appellant, this Court directed the Registry to appoint a Legal Aid Counsel to argue the matter on behalf of the appellant.
11. Today, when the matter is taken up for hearing, the learned counsel on record for the appellant tendered apology for his absence in the previous hearing and made a request to appear on behalf of the appellant and this Court acceded to his request allowed both counsel on record and the legal aid counsel to argue the matter.
12. Heard the learned counsel on either side and perused the materials available on record.
13. This Court, being an Appellate Court, is a final Court of fact finding Court, which has to necessarily re-appreciate the entire evidence and give an independent finding.
14. Admittedly there is no dispute that on 06.01.2018 the victim https://www.mhc.tn.gov.in/judis Page No.10/19 Crl.A.No.529 of 2021 child's family and the appellant travelled in the Nilgiris Express in B3 coach in their allotted berths. The prosecution has established that during night hours there was a problem arose in the train in which the victim child's family and appellant travelled. According to the prosecution, the allegation against the appellant is that victim child/P.W7 was sleeping in the middle berth and suddenly, she felt that someone touched her breast and immediately, she informed the same to her parents and thereafter, the parents of the victim questioned the appellant and after some conversation, they preferred a complaint against the appellant before the Chief Ticket Inspector.
15. The main defence taken by the learned counsel for the appellant is that there is a lack of jurisdiction of the respondent police, as per the evidence of witness, since the complaint was given at Salem Junction, however, the said complaint was registered only at Erode. Admittedly, the occurrence is said to have taken place in the running train during night hours, P.W.3/Chief Ticket Inspector has clearly states that he has not prepared the handing over memo before the Railway Police, Salem, but after completion of the contemplated procedure, he handed over the https://www.mhc.tn.gov.in/judis Page No.11/19 Crl.A.No.529 of 2021 accused and complaint to Erode Police Station and the Erode Police took cognizance. The contradictions and discrepancies pointed out by the learned counsel for the appellant is not material contradictions, it is only minor contradictions and it will not affect the case of the prosecution.
16. Further, the father of the victim child was examined as P.W.1 and in his evidence he has clearly deposed that on 06.01.2018, while travelling in the Nilgiris Express with his wife and two daughters, during night hours the accused, who was travelling in the same coach misbehaved with the elder daughter of P.W.1 and hence, a complaint was preferred against the accused. The occurrence took place in the running train during night hours and the victim immediately called her parents and informed about the incident. Subsequently, after some conversation P.W.1 preferred the complaint to the Travelling Ticket Examiner and thereafter, P.W.1 preferred another complaint addressing Railway Police and then P.W.3 had prepared a handing over memo and handed over the complaint and the accused to Erode Railway Police.
17. The fact remains that the appellant and the victim child's family https://www.mhc.tn.gov.in/judis Page No.12/19 Crl.A.No.529 of 2021 travelled in the same train and coach in adjacent berths and the accused was identified by the victim though both the appellant and victim child's family were not known to each other before the said incident. The evidence of the victim child is the direct evidence. Her evidence is corroborated by the evidence of P.W.1 and P.W.4.
18. P.W.4 is an independent witness, who was travelling as a co- passenger in coach B3 (berth No.63) has clearly spoken that after hearing the screaming of the child he woke up and saw the accused who was standing there and the victim child's father enquired the victim child what had happened and then he shouted at the accused. Therefore, the evidence of P.W.4 is corroborated with the evidence of the victim child.
19. The statement of the victim child is recorded under Section 164 Cr.P.C by the learned Magistrate. Since the victim child family are different linguistic persons and they did not know Tamil, the statement of the victim child in Hindi was translated in English. Therefore, certain discrepancies would arise that might not to be fatal to the case of the prosecution. Through the evidence of P.W.1/father of the victim, https://www.mhc.tn.gov.in/judis Page No.13/19 Crl.A.No.529 of 2021 P.W.3/Travelling Ticket Examiner and P.W.4/Co-passenger the prosecution has clearly established that the appellant travelled on the date of occurrence.
20. Ex.P.6 and Ex.P8 are Birth certificate and Bonafide certificate of the victim child, which would show that the date of birth of the victim child is 04.10.2009 and the date of of occurrence is 06.01.2018 and hence, at the time of occurrence, the victim was a child and it comes under the definition of 2(1)(d) of POCSO Act. Therefore, this Court finds that the prosecution has proved the age of the victim child is below 12 years.
21.Therefore, from the combined reading of the evidence of P.W.7/victim child, Ex.P6/Birth Certificate and Ex.P7/Statement of victim child recorded under Section 164 Cr.P.C., the prosecution has proved the commission of offence and also the evidence of the victim child is corroborated with the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.9 and this Court finds that the prosecution has proved that the victim child was subjected to sexual assault by the appellant. Taking into https://www.mhc.tn.gov.in/judis Page No.14/19 Crl.A.No.529 of 2021 consideration the place of occurrence, time of occurrence and age of the victim, this Court finds that the prosecution has proved its case beyond reasonable doubt. Whatever the discrepancies pointed out by the learned counsel for the appellant are not material contradictions and the same will not affect the root of the case of the prosecution. Therefore, this Court finds that the appellant has committed the offence under Section 9(m) r/w 10 of POCSO Act and the trial Court has rightly appreciated the entire materials and convicted and sentenced the appellant.
22.1 Having observed as above, this Court is conscious of the fact that the charge framed against the accused in this case is under Sections 9(m) punishable under Section 10 of the POCSO Act. Sections 29 and 30 of POCSO Act permits the Court to draw rebuttable presumption as to the culpability of an accused being prosecuted under the provisions of the Act.
22.2 In an Indian Penal Code offence a trial conducted under the Criminal Procedure Code the accused can remain silent and the burden would be upon the prosecution to prove the charge beyond all reasonable https://www.mhc.tn.gov.in/judis Page No.15/19 Crl.A.No.529 of 2021 doubt by leading cogent evidence. However, an exception to this general rule the doctrine of reverse burden has been introduced in the case of prosecution under the POCSO Act. In view of Section 29 and 30 of the POCSO Act there would be reverse onus upon the accused to displace any presumption of guilt.
22.3 Therefore, in the POCSO cases prosecution has to prove the fundamental facts of the offences charged against the accused, not based on proof beyond all reasonable doubt, but on the basis of preponderance of probabilities. In this case prosecution has proved its case on the basis of preponderance of probability and the defence taken by the appellant is only in order to escape from the clutches of law and he has not rebutted the presumption in the manner known to law.
23. Under these circumstances, this Court, being an Appellant Court as a fact finding Court re-appreciated the entire evidence independently and arrived at just conclusion that the appellant has committed sexual assault on the victim child and the trial Court has rightly convicted and awarded minimum sentence of five years and this Court does not find https://www.mhc.tn.gov.in/judis Page No.16/19 Crl.A.No.529 of 2021 any mitigating circumstances to reduce the sentence imposed by the trial Court.
24. 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. Accordingly, this Criminal Appeal is dismissed and the judgment of conviction and sentence passed in Spl.S.C.No.15 of 2018 by the learned Session Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Erode is hereby, confirmed.
25.The Legal Aid counsel appointed by this Court is entitled to remuneration as per Rules.
29.09.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms https://www.mhc.tn.gov.in/judis Page No.17/19 Crl.A.No.529 of 2021 To
1.The Sessions Judge, Magalir Neethi Mandram, Fast Track Mahila Court, Erode.
2.The Inspector of Police, Erode Railway Police Station, Erode District.
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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P.VELMURUGAN, J.
ms
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