Madras High Court
Jeyabalan vs State on 12 February, 2020
Author: T.Raja
Bench: T.Raja
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :12.02.2020
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRL.A (MD)No.274 of 2019
Jeyabalan .. Appellant
vs.
State
the Inspector of Police
All Women Police Station
Karur District
Crime No.1/2018 .. Respondent
PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal
Procedure against the judgment passed by the Additional District and
Sessions Judge, (Mahila Court), Karur, in Spl.S.C.No.15 of 2018 dated
20.12.2018.
For Appellant :Mr.S.Deenadayalan
Legal Aid counsel appointed by Court
assisted by Mr.V.Lakshmanan
For Respondents :Mr.R.Anandharaj
Additional Public Prosecutor
http://www.judis.nic.in
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JUDGMENT
(JUDGMENT OF THE COURT WAS DELIVERED BY T.RAJA, J.) Appellant is the father of the victim girl and sole accused in Spl.S.C.No. 15 of 2018 on the file of the Additional District and Sessions Judge, Mahila Court, Karur. He stood charged for offences under Section 5(l)(m)(n) and 6 r/w 9(l)(m)(n) and 10 of Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act). By judgment dated 20.12.2018, the trial Court convicted him under Section 5(l)(m)(n) and 9(l)(m)(n) of the POCSO Act and sentenced him to undergo imprisonment for the remainder of natural life and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for one month under Section 5(l)(m)(n) of POCSO Act and to undergo imprisonment for the remainder of natural life under Section 9(l)(m)(n) of POCSO Act and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for one month. Challenging the said conviction and sentence, the appellant, father of victim girl, is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
P.W.2 is a girl child aged about 14 years. She is the daughter of P.W.-1 and the accused. P.W.2 was studying 8th standard in a local School. The accused is her own father. Due to misunderstanding, P.W.-1(mother) and http://www.judis.nic.in 3 father/accused were living separately for the past one and a half years. Before the period of separation, it is alleged that whenever the mother (P.W.-1) went for work, victim girl (P.W.-2) and her father (accused) were alone in the house and during that time, the accused/father committed sexual assault on his own child and it is alleged that the accused frequently committed the offence in the absence of P.W.-1. Since the accused threatened the victim not to disclose it to anybody, out of fear, his daughter (P.W.2) did not disclose the occurrence to anybody. However, due to difference of opinion, after P.W.-1 and the accused were living separately, P.W.-1 noticed that P.W.2 was inconsolable for a period of ten days and on seeing her unnatural behaviour, P.W.-1 consoled the victim as to what had happened to her. However, initially, P.W.-2 was very hesitant to disclose the alleged sexual assault and on compulsion, she disclosed it to her mother that it was her father, who committed sexual assault on her taking advantage of the absence of P.W.-1/mother. Only thereafter, P.W.1 decided to make a complaint to the police. Accordingly, she made a complaint on 07.02.2018 to the Inspector of Police, All Women Police Station, Karur.
2.1. P.W.16 the then Inspector of Police, on receipt of the said complaint, registered a case in Crime No.01/2018 under Section 5(l)(m)(n), 6 r/w 9(l)(m)
(n) of the Protection of Children from Sexual Offences Act, 2012. Ex.P1 is the http://www.judis.nic.in 4 complaint and Ex.P9 is the FIR. She forwarded both the documents to the Court and handed over the case diary to the Inspector of Police (P.W.-17).
2.2. Taking up the case for investigation, on the direction of P.W.-17, P.W.-16 prepared an observation mahazar (Ex-P.-2) and a rough sketch (Ex.P.-10) in the presence of witnesses. She examined the victim girl and recorded her statement. On 07.02.2018, at about 03.10 p.m., she forwarded the victim/P.W.2 to the Doctor for medical examination.
2.2. P.W.11 – Dr.Sujatha conducted medical examination on P.W.2 on 07.02.2018. She gave a wound certificate (Ex.P-7) and opined that P.W.2 had completed 14 years of age. She found no external injuries on the body of P.W.2 including her private parts. She found rupture of hymen in her vaginal cavity.
2.3. P.W.17 arrested the accused on the same day at 5.40 p.m. and remanded to judicial custody and thereafter forwarded him for medical examination. On 13.02.2018, P.W.10 – Dr.Shankar examined him and found that he was sexually potential. Ex.P6 is the certificate issued by him. According to his opinion, the accused was capable of performing sexual intercourse with a woman.
http://www.judis.nic.in 5 2.4. P.W.17 collected the medical records and examined the Doctors. Continuing his investigation, he has sent the victim girl to the learned jurisdictional Magistrate (P.W.-13) to record her statement under Section 164 Cr.P.C., which is marked as Ex.P-8. Thereafter, he handed over the case diary to P.W.-18, Inspector of Police.
2.5. Subsequently, Inspector of Police, (P.W.-18) continued the investigation and enquired P.W.-14, who is the house owner of the accused and enquired and recorded the statement of P.W.-6, Child Welfare Officer. Finally, she laid chargesheet against the accused.
2.6. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 18 witnesses were examined, 10 documents were marked. On the side of the accused, no witnesses were examined, however, Ex.D-1 to Ex.D-7 were marked.
2.7. Out of the said witnesses, P.W.1 is the mother of P.W.2. She has stated that since there was misunderstanding between herself and her http://www.judis.nic.in 6 husband (Accused), she was staying away from the matrimonial home. According to her, on seeing the unnatural behaviour of her daughter, she enquired her daughter as to what happened to her. The victim girl stated that in the absence of her mother (P.W.-1), her father (accused) sexually assaulted her for about considerable years. Out of fear, she did not disclose it to her. She has further spoken about the complaint made by her to the police. P.W.2 is the victim girl. She has vividly stated that whenever she was at her house in the absence of her mother, her father (accused), spoiled her. P.W.3 is the father of P.W.-1. P.W.4 is the mother of P.W.1. Both have narrated about the conduct of the accused with another woman, as a result, P.W.-1 got separated and living along with them for two years. They have also stated that they heard about the occurrence from their daughter (P.W.1) and the complaint given by P.W.-1. P.W.5 is a witness to the arrest of the accused by the Investigating Officer. P.W.6 is the Child Welfare Officer. She has spoken about the earlier petition dated 06.11.2017 given to the District Collector under the Domestic Violence Act and the enquiry conducted by her on 07.11.2017. She has further spoken about the petition given by P.W.1 to the National Child Welfare Commission and pursuant to the order of the District Collector on 24.11.2017, she enquired P.W.-1, P.W.-2, accused and P.W.-3 and P.W.-4 and the Headmistress of the School, where P.W.-2 was studying. In conclusion of the http://www.judis.nic.in 7 enquiry, she has submitted a report (Ex.P-3) dated 19.03.2018 to the District Collector for further investigation. P.W.-7 is the Principal of the School, where the victim girl (P.W.-2) is studying. He has spoken about the date of birth of the victim girl as 10.12.2004. P.W.-8 and P.W.-9 are the Police Constables, who had spoken about the medical examination conducted on the victim girl and the accused. P.W.-10 is the Doctor, who had examined the accused and the report given by him is marked as Ex.P-6. P.W.-11 is the Doctor, who examined the victim girl. She has spoken about the fact that hymen was ruptured and the victim girl was subjected to sexual assault and the report (Accident Register) given by her is marked as Ex.P-7. P.W.-13 is the Judicial Magistrate, who examined the victim girl and the report is marked is Ex.P-8. P.W.-14 is the house owner of the accused and P.W.-1. She has spoken about the quarrel that has taken place between the accused and P.W.-1. P.W.-15 is the Photographer. P.W.-16 is the Sub Inspector of Police, who registered the complaint (Ex.P-1). P.W.-17 and P.W.-18 are the Investigating Officers, who have spoken about the investigation and filing of the final report.
3. When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as utter falsehood and to substantiate his denial, as per Section 29 of the POCSO Act, he has marked 7 http://www.judis.nic.in 8 documents, namely, Exs.D1 to D7. Section 29 of the POCSO Act states that where a person is prosecuted for violating any of the provisions under clauses 3, 5, 7 and 9, and where the victim is a child below the age of 16 years, the Special Court shall presume that such person committed the offence unless the contrary is proved. It is also his further case that learned trial Court has considered only the oral evidence of PW1 and PW2 without there-being any corroborating evidence and on the contrary, it has not considered either the oral evidences, namely, DW1 and DW2, nor the documentary evidences, namely, Exs.D1 to D7 to substantiate as to what had actually happened between PW1 and the accused. Aggrieved by the impugned judgment, the appellant, father of the victim girl, has filed the present appeal.
4. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent and we have also perused the records.
5. Mr.S.Deenadayalan, learned legal aid counsel, appointed by this Court for the appellant/accused argued that under Section 29 of the POCSO Act, if a person is prosecuted for committing any offence under clauses 3, 5, 7 and 9, and wherein the victim child is below the age of 16 years, the Special http://www.judis.nic.in 9 Court shall presume that such person has committed the offence unless the contrary is proved. To prove the allegations levelled against him as a false and concocted one, learned amicus curie argued that two defence witnesses, namely, DW1- and DW2 were examined and Exs.D1 to D7 were marked. But, the learned trial Court has neither discussed/considered the oral evidence of DW1 and DW1 nor the documentary evidences, namely, Exs.D1 to D7.
6. Explaining further as to how the learned trial Court has completely ignored the legal duty cast upon it to consider the evidence produced by the appellant, learned amicus curie argued that the accused's wife (PW-1) left the matrimonial home along with her child to live with one paramour Vijayaraghavan, who is also a police officer. Thereafter, PW-4 (Chinnathai), mother of PW1, had written a complaint dated 28.07.2017 to the Superintendent of Police, Karur, and the Inspector of Police, Karur, requesting them to recover PW1 and PW2 from the illegal custody of one Vijayaraghavan, who is none-other than the paramour of PW1. The above said complaint dated 28.07.2017 was preferred by the PW-1's mother only to get back PW-1 and PW-2 from the illegal custody of said Vijayaraghavan. In the said complaint, when the enquiry was conducted, PW-1, wife of the accused/appellant, has given a written undertaking before the police authority http://www.judis.nic.in 10 stating that she (PW-1), along with her daughter (PW-2) would live only with the said Vijayaraghavan, police officer and that they would not either go to the appellant or to her father and mother (PW-3 and PW-4). This has been proved through the oral evidence given by DW-2 (Selvi, Inspector of Police). The deposition of the wife before the police authority would go to show that there was a stained relationship between PW1-wife and the appellant/husband and in view of that, only at the instigation of paramour Vijayaraghavan, who is a police officer, a false complaint has been given by PW-1 so as to facilitate their continuous live-in relationship and to achieve this illegal object, PW-1 and her paramour Vijayaraghavan have jointly used PW-2 (victim girl) as their instrument and thereby innocent PW2 had also acted like a puppet and parrot in this case. Thus, it goes without saying that the appellant-accused has discharged his burden of proof, hence, he pleaded, the presumption as to the alleged offence has been disproved. Therefore, the conviction and sentence imposed by the learned trial Court based on the presumption and assumption is liable to be set aside.
7. Secondly, he argued, when PW1, wife of the accused, taking away her child-PW2, having lived separately with Vijayaraghavan for about 1 ½ years, only to avoid further complaint either from the accused or from her http://www.judis.nic.in 11 own father-PW3 and mother-PW4, alleged FIR dated 07.02.2018 was filed after 1 ½ yeas from the date of separation. It is further submitted that even before the filing of criminal case on 07.02.2018, PW1 has already filed a petition dated 18.07.2016 before the District Welfare Officer, Karur, under the Domestic Violence Act, against her husband/appellant claiming Rs.25,000/- towards maintenance, Rs.5000/- towards House Rent Allowance and compensation amount of Rs.30 lakhs. After the enquiry, the District Welfare Officer, Karur, forwarded the same to the learned Judicial Magistrate-I, Karur, for taking appropriate action and thereafter, the said case was taken on file in D.V.Case No.29 of 2016 and it is still pending on the file of learned Judicial Magistrate-I, Karur. In the above said petition dated 18.07.2016, PW-1 has not stated anything about the sexual harassment committed by her husband/appellant/accused herein on her daughter-PW2. Therefore, it can be presumed that this case was given by PW1 against her husband only on the basis of afterthought and only for taking vengeance against her husband/appellant herein so as to permanently reside with the paramour Vijayaraghavan, for, once the husband is punished, he will not pursue for reunion. This crucial aspect has been completely overlooked by the learned trial Court.
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8. Thirdly, it is contended by the learned amicus curie for the appellant that after the filing of domestic violence case in D.V.Case No.29 of 2016 against the appellant at the instigation of paramour Vijayaraghavan, the said Vijayaraghavan went to the house of Advocate Mr.Raja at Karur on 27.09.2017, who has been appearing for the accused, and asked him not to appear. When said Advocate Mr.Raja refused for the same, the said Vijayaraghavan not only abused the said Advocate but also attacked him with criminal intimidation. Resultantly, the said Advocate Mr.Raja has lodged a police complaint before Pasubathipalayam Police Station, Karur, in Crime No. 741/2017 under Sections 294(b), 323 & 506(ii) IPC, which is pending before the learned Judicial Magistrate No.I, Karur, in C.C.No.26 of 2018. This proceeding was also marked as Ex.D3 before the learned trial Court to substantiate that both PW1, wife of the accused, and the paramour Vijayaraghavan are resorting to illegal and extra-judicial method to eliminate not only the appellant, but also his lawyer. Unfortunately, when this proceeding was marked as Ex.D3, learned trial Court, for the reasons best known to it, refused to rely upon the same.
9. In addition thereto, he argued that even before the filing of FIR in Cr.No.1 of 2018, dated 07.02.2018 against the accused, the accused/appellant http://www.judis.nic.in 13 herein has made a petition dated 04.10.2017 before the Superintendent of Police, Karur, Inspector of Police, Karur Town, All Women Police, Karur Town, seeking to recover his wife-PW1 and his daughter-PW2 from the illegal custody of paramour Vijayaraghavan. This document was also marked as Ex.D5, but, unfortunately, again, this document was also not properly considered by the learned trial Court, he pleaded.
10. Finally, it was argued that oral evidence given by PW-11 (Dr.Sujatha), who examined PW2 (victim girl), has also not been considered by the learned trial Court. PW-11 deposed that after the examination of PW2, it is revealed that there was no injury either on her breast or on her private part and that although there was a symptom that she had a sexual intercourse, whether it has happened recently or long time ago cannot be precisely mentioned and that she found rupture of hymen in her vaginal cavity. By relying this evidence of PW-11(Dr.Sujatha), he argued that during the period of separation of 1 ½ years, there is every possibility of Vijayaraghavan having a sexual intercourse with PW-2, victim girl. Thus, in view of not adverting to any of the documents adduced by the appellant, the impugned conviction and sentence imposed by the learned trial Court is nothing but a perverse one, hence, the same is liable to be set aside, in the http://www.judis.nic.in 14 light of the judgment of the Hon'ble Apex Court in the case of State of Haryana Vs. Ramsingh (AIR 2002 SC 620) holding that defence witness entitled to equal treatment as that of prosecution.
11. Learned Additional Public Prosecutor, opposing this appeal, submitted that when the medical evidence corroborates the evidence of the victim girl (P.W.-2), the prosecution has proved its case beyond reasonable doubts. He would further submit that though there is a delay in preferring the complaint, it will not affect the root of the prosecution case. Since the victim girl herself has categorically and consistently deposed before the Judicial Magistrate, the Investigating Officer, the Social Welfare Officer and also before the trial Court, it is proved that it was this accused, who committed the alleged offence and the prosecution has also proved the same by adducing evidence and hence, no interference is warranted. He would conclude his argument by submitting that non-examination of Vijayaraghavan is no way affect the core of the prosecution case. Hence, the appeal is liable to be rejected, he contended.
12. We have considered the submissions of the learned counsel appearing on either side.
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13. Given the facts and circumstances of the case, one of the prime question needs adjudication by this Court is whether the presumption provided under Section 29 of the POCSO Act has been disproved or not. When the appellant/accused had produced two oral evidences, namely, DW1 and DW2 along with seven other documentary evidences, namely, Exs.D1 to D7, neither the oral evidence of DW1 and DW2 nor the documentary evidences marked by the appellant as Exs.D1 to D7 have been considered by the learned trial Court, which is against the ruling of the Hon'ble Apex Court in the case of State of Haryana Vs. Ramsingh (AIR 2002 SC 620) holding that defence witness entitled to equal treatment as that of prosecution.
14. PW-1 is the wife of accused/appellant and PW-2 is the victim daughter of PW-1 and the accused/appellant. Since the PW1, wife of the accused, was working in a Health Nutrition Centre at Karur run by Vijayaraghavan, Police Officer, the same was objected by the husband/accused, who was running a tailoring shop. In view of the objection raised by the husband, both the husband and wife were fighting with each other in the rented house belonging to PW-14 (Revathy). During examination, PW-14 deposed that there was a frequent quarrel between the husband and wife, since the accused/husband did not want his wife to go to the Health http://www.judis.nic.in 16 Nutrition Centre run by Vijayaraghavan and therefore, in view of frequent fight, PW14 told them to vacate the house, as a result, they have also vacated. Thereafter, PW1 and PW2 left the accused and started living in an undisclosed place along with paramour Vijayaraghavan. Subsequently, PW3 and PW4, father and mother of PW1, have jointly made a complaint dated 28.07.2017 to the Inspector of Police, Karur, and the Superintendent of Police, Karur, praying them to recover PW1 and PW2 from the illegal custody of Vijayaraghavan. Therefore, when PW3 and PW4 have jointly given a complaint to get back their daughter and grand-daughter, enquriy was conducted by the Karur Police Authorities and during the enquiry, PW1, wife of accused, given a written undertaking stating that she and her daughter(PW2) would only stay with the paramour Vijayaraghavan. Although the said proceeding was marked as Ex.D7 to show that very FIR itself has been filed at the instigation of paramour Vijayaraghavan using the innocent victim girl-PW2 against the appellant, learned trial Court has not even mentioned any word about the said proceeding in the impugned judgment, that shows that the appellant has discharged his burden of proof so as to dispel the presumption under Section 29 of the POCSO Act, but, the learned trial Court has committed a grave error in not only found him guilty ignoring the evidence placed before it, but also convicted him unreasonably to http://www.judis.nic.in 17 undergo life imprisonment till his death.
15. Secondly, when the accused/appellant has projected that only with the connivance of paramour Vijayaraghavan, Police Officer, with whom PW1 and PW2 were living together, PW1 has implicated her husband/appellant so as to get away from him once and for all as this would ultimately facilitate hassle free live-in relationship between them, the prosecution ought to have examined paramour Vijayaraghavan as well, for one good reason that the complaint dated 28.07.2017 given by PW4(Chinnathai), mother of PW1, to the Superintendent of Police, Karur, and the Inspector of Police, Karur, shows that even before 1 ½ years from the date of registering the criminal case against the appellant by PW1, both PW1 and PW2 were living together illegally with paramour Vijayaraghavan and hence, the custody of PW1 and PW2 should be restored back to the appellant/husband. During the enquiry in the above said petition, PW1 has given an undertaking before the police authorities stating that she and her daughter (PW2) would stay only with Vijayaraghavan. While that being the case, the prosecution ought to have examined paramour Vijayaraghavan and the learned trial Court also has not discussed anywhere about the failure to produce Vijayaraghavan for examination in the impugned judgment.
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16. Thirdly, PW1 has also given a complaint dated 18.07.2016 before the District Welfare Officer, Karur, under the Domestic Violence Act, against her husband/accused claiming a sum of Rs.25,000/- towards maintenance, Rs. 5,000/- towards House Rent Allowance and Rs.30 lakhs towards total compensation, and after the enquiry, the District Welfare Officer, Karur, has forwarded the same to the learned Judicial Magistrate-I, Karur. Accordingly, learned Judicial Magistrate-I, Karur, has taken it on file in D.V.Case No.29 of 2016. In the said petition dated 18.07.2016 and in the DV case pending before the learned Judicial Magistrate-I, Karur, PW1, wife of accused/appellant has not stated anything about the sexual harassment committed by her husband on her daughter-PW2. This document was also marked by the accused/appellant to show that he was falsely implicated only for taking vengeance against him. Sadly, learned trial Court has not even looked into this aspect as there was no reference made in the impugned judgment.
17. Lastly, it is also vital to state that in DV.Case.No.29 of 2016, one Mr.Raja, Advocate, appeared on behalf of the accused/appellant and during the pendency of the said DV case, the said Vijayaraghavan, paramour of PW1, alleged to have assaulted Advocate Mr.Raja at Karur on 27.09.2017 asking him not to appear in the said case. In view of assault committed on the said http://www.judis.nic.in 19 Advocate Mr.Raja by paramour Vijayaraghavan, Karur Advocate Bar Association has given a complaint before Pasupathipalayam Police Station, Karur, in Crime No.741/2017 under Sections 294(b), 323 & 506(ii) IPC and it is still pending in C.C.No.26 of 2018 before the learned Judicial Magistrate-I, Karur. Although this proceeding was marked as Ex.D3 before the learned trial Court, it is not known why the learned trial Court has not even looked into this document. When the said document has been filed to explain as to how far the said paramour Vijayaraghavan has acted as a backbone of PW1 to initiate the false criminal cases against the accused with an ulterior intention and motive, in all fairness, learned trial court ought to have referred to the same. But, unfortunately, without touching any of the aforesaid documentary evidences to disprove the plea of presumption against the accused/appellant, learned trial Court has committed a grave error by convicting the appellant.
18. It is settled proposition that the application of the presumption, without adverting to essential facts, shall not lead to any injustice. The presumption under Section 29 of the POCSO Act is not absolute. If the accused is able to create serious doubt on the veracity of the prosecution case or the accused brings on record materials, namely, Exs.D1 to D7, which would render the prosecution version highly improbable, the presumption would get http://www.judis.nic.in 20 weakened. Therefore, without discussing any of the documentary evidences produced by the appellant as stated supra to dispel the presumption under Section 29 of the POCSO Act, the impugned conviction and sentence awarded by the learned trial Court cannot be sustained and this Court safely comes to the conclusion that the accused has been made as a mere victim at the hands of PW1 and Vijayaraghavan, Police Officer.
19. Thus, for all the reasons stated above, the criminal appeal is allowed and the impugned judgment of the learned trial Court is set aside and consequently, the appellant is acquitted of all the charges levelled against him. The fine amount, if any, paid by him shall be refunded to him.
20. We place our appreciation on the assistance rendered by Mr.S.Deenadayalan. Accordingly, the Legal Services Authority attached to this Bench is directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) as honorarium.
[T.R.J.,] & [B.P.,J]
12.02.2020
Index : Yes/No
Internet : Yes
rr/rkm
http://www.judis.nic.in
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To
1.Addl. District and Sessions Judge
(Mahila Court),
Karur.
2.The Inspector of Police
All Women Police Station
Karur.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
22
T.RAJA, J.
and
B.PUGALENDHI, J.
rr/rkm
JUDGMENT MADE
CRIMINAL APPEAL No. (MD).No.274 of 2019
12.02.2020
http://www.judis.nic.in