Madras High Court
Kaliaperumal vs / on 12 September, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A.No.616 of 2014
and
M.P.No.1 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :06.09.2022
Pronounced on :12.09.2022
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.A.No.616 of 2014
and
M.P.No.1 of 2014
Kaliaperumal .. Appellant
/versus/
State rep.by Inspector of Police,
All Women Police Station,
Cuddalore District,
Crime No.180 of 2013. .. Respondent
Prayer: Criminal Appeal has been filed under Section 374(2) of the
Criminal Procedure Code to set aside the order of conviction dated
09.09.2014 passed in Spl.S.C.No.2 of 2013 on the file of the learned District
Mahila Sessions Judge, Cuddalore and acquit the appellant.
Page No.1/12
https://www.mhc.tn.gov.in/judis
Crl.A.No.616 of 2014
and
M.P.No.1 of 2014
For Appellant :Mr.B.Jawahar
For Respondent :Mr.R.Kishore Kumar,
Government Advocate (Crl.Side)
-----
JUDGMENT
The case of the prosecution as deposed by the witnesses reveals that on the date of occurrence (06/04/2013), the appellant (A-1) was the driver of the Mini Bus, which passes through the Village of the defacto complainant (PW-1). His minor daughter PW-2 and her classmate PW-3 used to travel in the said bus daily for their school. On 06/04/2013, at about 9.15 p.m, when PW-1 was in his farm, his relative informed him over phone that his daughter is missing. PW-1 and the villagers searched for them throughout the night, but they could not find them. On the next day morning at about 6.00 am, PW-2 and PW-3 were found near Balawadi. They told PW-1/defacto complainant that A-1 kidnapped them in his two wheeler and took them to the Eucalyptus grove near New Town Lake. A-1 repeatedly raped PW-3 and PW-2 was raped by A-2 and A-3. Hence, he gave the complaint (Ex.P-1). The evidence of PW-1 is corroborated by PW-4, the Page No.2/12 https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014 villager who went along with PW-1 in search of the missing girls. Their evidence is corroborated by PW-6, the father of the victim minor girl (PW-3).
2. PW-2 and PW-3 had deposed that, when PW-3 was talking with PW-2 in front of PW-2 house at about 9.00 pm, the appellant came in his two wheeler and called them. When they refused to go, he threatened them that he will not allow them to board his bus. Fearing that their studies will get spoiled if he refuse to take them to school in his bus, under threat they went along with A-1. He took them in his two wheeler to the Eucalyptus grove near New Town lake. The other two accused (A-2 and A-3), who were present in the grove, took PW-2 away and had sexual intercourse with PW-2 by force. A-1 attempted to rape PW-3 and mounted on her four or five times. She forcible pushed him and kept crying whole night. All the three accused had discussion among themselves and left them to go the next day morning. PW-5 is the witness to the confession Page No.3/12 https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014 statement of A-1 leading to the recovery of dress material marked as M.O. 1 to M.O. 3. He also witnessed the confession of A-2 and A-3 leading to recovery of M.O 4 to M.O. 9. The admissible portion of the confessions of A-1 and A-3 are marked as Ex.P-3 and Ex.P-4 respectively. The mahazars are marked as Ex.P-5 and Ex.P-6.
3. PW-7- the Scientific Officer of Tamilnadu State Forensic Laboratory had examined the dress materials recovered from the accused persons and the victim girls. As per her report Ex.P-9 (2 in numbers) sperms were deducted in items 1,4,12 and 15. The description of those items and the respective material object numbers are as below:-
Item No.1 A torn faded orange four cubit dhoti M.O.2 recovered from with pink border A1 Item No.4 A lungi with blue, black and white cross M.O.4 recovered from stripes A3 Item No.12 A dark green chudithar shawl M.O.12 belongs to PW.2 Item No.15 A pale yellow skirt with floral designs M.O.15 belongs to PW.3 and zari work.Page No.4/12
https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014
4. The appellant and the other accused were medically examined by PW-9. The medical report for this appellant is marked as Ex.P-11. The Doctor has opined that he is a potent and capable of having intercourse. The victim minor girls were medically examined by PW-10 and she has deposed that a lacerated wound on the left thigh of PW-3. Ex.P-14, the medical report discloses, the hymen of PW-3 not intact. Her vagina admits two fingers freely and she might have had sexual intercourse.
5. The trial Court, after appreciating the evidence had convicted the appellant/A-1 for the offences under Section 366 A IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012(in short “POCSO Act). The trial Court had sentenced him to undergo 7 years RI and to pay a fine Rs.3,000/-, in default to undergo 1 year RI for kidnapping the minor girls for the offence under Section 366A IPC; and sentenced to undergo 10 years RI and to pay a fine of Rs.5,000/-, in default, to undergo 1 Page No.5/12 https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014 year RI for the offence of penetrative sexual assault under Section 4 of POCSO Act. The period of sentence ordered to run concurrently.
6. The learned counsel appearing for the appellant submitted that, the Court below erred in not appreciating the evidence of PW-3, who has categorically stated that there was no penetration. A-1 did not commit the act of penetration. PW-10-Doctor, who examined PW-3 has admitted the possibility of lacerated injury found on the left thigh of PW-3 might have caused accidentally and it is two to three days old injury. The vaginal smear test and the pubic hair test does not support the case of the prosecution. The minor girls went with A-1 and their own and PW-3 admits in the cross examination that she had her mobile phone with her. The prosecution failed to recover the two wheeler in which the appellant alleged to have kidnapped the minor girls. Thus, the prosecution case spin on imaginary allegation is well established. The appellant cannot be held guilty of offence under Section 366A IPC or Section 4 of the POCSO Act. However, the trial Court, Page No.6/12 https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014 without proper appreciation of the evidence had convicted the appellant/A1. Hence, the appeal has to be allowed.
7. Per contra, the Learned Government Advocate(Crl.Side) submitted that the act of kidnapping the minor girls in his two wheeler is spoken by both PW-2 and PW-3, who are minor girls and victim of crime. The act of the appellant as narrated by PW-3 clearly falls within the definition of penetrative sexual assault. Further, the presence of semen in M.O.12 the dress worn by PW-3 and in M.O.2 the dhoti of the appellant also substantiate the case of the prosecution as against this appellant.
8. The case of the prosecution that PW-2 and PW-3 were minors at the relevant point of time is proved through Ex.P-18 and Ex.P-19. The allegation that on 06/04/2013 at about 9.00 p.m. They were taken in the two wheeler by this appellant is proved through the evidence of PW-2 and PW-3. In the cross examination of these witnesses, it is suggested that they Page No.7/12 https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014 were in love and therefore, they went with the appellant on their own. This suggestion is denied. The further evidence of these two victim girls also reveals that accused A-2 and A-3 had illicit intercourse with PW-2. Thus, the act of the appellant taking P.W.2 to the grove and seduced have intercourse to have intercourse with A2 and A3 make out the ingredient required for punishing under Section 366A IPC.
9. As far as charge under Section 4 of the POCSO Act against this appellant, PW-3 is the victim. She has deposed that the appellant tried to have penetrative sex with her repeatedly but she resisted and pushed him away. The dress materials of the appellant as well as the victim (PW-3) detected the presence of semen, as per the Lab Report.
10. Section 4 of the POCSO Act reads as below:-
“Section 4 Punishment for penetrative sexual assault.
(1) Whoever commits penetrative sexual assault Page No.8/12 https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014 shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(2)Whoever commits penetrative sexual assault on a child below sixteen yars of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.
(3)The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”
11. Section 3 of the Protection of Children from Sexual Offences Act, 2012 defines penetrative sexual assault as :--
“3.Penetrative Sexual Assault-- A person is said to commit “penetrative sexual assault” if -
(a)he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b)he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus Page No.9/12 https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014 of the child or makes the child to do so with him or any other person; or
(c)he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d)he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”
12. There can be no second opinion from the evidence of PW-3 that the appellant had manipulated her body so as to cause penetration and committed the offence under Section 4 of the POCSO Act.
13. Therefore, this Court finds no error or omission in appreciation of evidence by the trial Court. The judgment of conviction and sentence is appropriated and proportionated to the crime, which is proved beyond doubt.
Page No.10/12 https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014
14. In the result, the Criminal Appeal is dismissed. The judgment of the trial Court viz., the District Mahila Sessions Court, Cuddalore made in Spl.S.C.No.2 of 2013 dated 09.09.2014 is confirmed. The trial Court is directed to secure the appellant/A-1 and commit him to the Prision to undergo the balance period of sentence. Consequently, connected Miscellaneous Petition is closed.
12.09.2022 Index:yes speaking order/non speaking order ari To :
1.The District Mahila Sessions Judge, Cuddalore.
2.The Inspector of Police,All Women Police Station, Cuddalore District.
3.The Public Prosecutor, High Court, Madras.Page No.11/12
https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2014 and M.P.No.1 of 2014 DR.G.JAYACHANDRAN,J.
ari Delivery Order made in Crl.A.No.616 of 2014 and M.P.No.1 of 2014 12.09.2022 Page No.12/12 https://www.mhc.tn.gov.in/judis