Madras High Court
Indira vs State Rep By Its on 28 September, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.336 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.09.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.336 of 2018
Indira ... Appellant
Vs.
State rep by its
The Public Prosecutor,
The Inspector of Police,
All Women Police Station North,
Tiruppur City
in crime No.3 of 2015
Tiruppur District ... Respondent
PRAYER: Criminal Appeal filed under Section 374 (2) of Code of
Criminal Procedure, to set aside the judgment passed in Spl.SC.No.30 of
2015 on 31.01.2017 by the Sessions Judge, Magalir Neethimandram
(FTMC) of Tiruppur.
For Appellant : Mr.P.Kalimuthu
For Respondent : Mr.A.Gopinath,
Government Advocate(crl.side)
JUDGMENT
This criminal appeal is directed as against the judgment passed in Spl.SC.No.30 of 2015 on 31.01.2017 by the Sessions Judge, Magalir Neethimandram (FTMC) of Tiruppur.
2. The case of the prosecution is that the victim aged about 8 https://www.mhc.tn.gov.in/judis 1/8 Crl.A.No.336 of 2018 years, was born to A1 and A2. While being so, on 26.01.2015 the first accused committed penetrative sexual assault on her. Even after seeing the same, the second accused failed to question the same and she laughed at the occurrence. The victim informed to her headmistress and the same was informed to a member of the Child Welfare Committee and lodged complaint. On receipt of the complaint, the respondent registered FIR in crime No.3 of 2015 for the offence under Sections 5(1)(m)(n), 6, 16 of POCSO Act. After completion of investigation, the respondent filed final report for the offence under Sections 5(1)(m)(n) read with Section 6 of POCSO Act against the first accused and Section 16 r/w 17 of POCSO Act as against the second accused. The prosecution examined PW1 to PW14 and marked Ex.P1 to Ex.P10. No one was examined and no documents were marked on the side of the appellant. On perusal of oral and documentary evidence, the trial court convicted the first accused under Section 5(1)(m)(n) r/w Section 6 of POCSO Act sentencing to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment and convicted the second accused sentencing to undergo 10 years rigorous imprisonment with a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months for the alleged offence under Sections 16 https://www.mhc.tn.gov.in/judis 2/8 Crl.A.No.336 of 2018 & 17 of POCSO Act and they have been convicted and sentenced to undergo rigorous imprisonment for six months with a fine of Rs.500/-, in default to undergo one month rigorous imprisonment. The second accused preferred this criminal appeal.
3. The learned counsel for the appellant would submit that the appellant happens to be the mother of the victim girl failed to question the act committed by the first accused i.e. her husband. The victims's grandmother compelled the victim to beg at Darga. When it was questioned by the appellant, she has been falsely implicated in this case. The appellant failed to question the same and now from the date of her arrest i.e. 31.01.2015, she is incarcerating imprisonment for the charge of abetment. Even according to the case of the prosecution, the appellant failed to question the act committed by the first accused and it would not amount to abetment at any cost.
4. The learned Government Advocate(crl.side) submitted that there are totally two accused, in which the petitioner is arrayed as A2. They had been charged for the offences under Sections 5(1)(m)(n), 6, 16 of POCSO Act. The prosecution had examined PW1 to PW14 and https://www.mhc.tn.gov.in/judis 3/8 Crl.A.No.336 of 2018 marked Ex.P1 to Ex.P10 and proved the case beyond doubt. Therefore, the trial court rightly sentenced the appellant for 10 years imprisonment.
5. Heard, the learned counsel for the appellant and the learned Government Advocate(crl.side) appearing for the respondent.
6. The case of the prosecution is that the victim girl aged about eight years, was born to A1 to A2. She was residing with her parents. The first accused on 26.01.2015, tied the eyes and hands of the victim and forcibly had penetrative sexual assault on his own daughter. The second accused who is being the mother of the victim girl, even after knowing of the above facts, she did not take any action against the first accused and also failed to question the activities. On perusal of the evidence of PW1, revealed that when the first accused had committed penetrative sexual assault on the victim girl, the appellant laughed at him and she failed to question the same. The relevant portion of the evidence is as follows:
vd;Dila mg;ghtpd; mg;gh bgah; bghparhkp. vd; mk;khtpd; mg;gh bgah; rk;gj;/ vd; mk;khtpd; mg;gh kPJ vd; mg;gh fl;ilia nghl;L moj;Jtpl;lhh; vd; mg;ghtpd; mg;ghit gw;wp ngrpdhy; vd; mg;gh vd;id https://www.mhc.tn.gov.in/judis 4/8 Crl.A.No.336 of 2018 mog;ghh;/ vd; mg;gh mtUila ghj;U:k; nghFk; cWg;ig vd;Dila ghj;U:k; nghFk; ,lj;jpy; itg;ghh;/ vd; mg;gh mt;thW bra;a[kb; ghGJ vd; mk;kh mij;g; ghh;j;J rphpg;ghh;/
7. Thus it is clear that the appellant had seen the occurrence and failed to question the same. Even according to the victim girl, she never encouraged the first accused to do so. Further, there is no evidence to show that the appellant abetted the first accused to commit the offence. Thereafter, the victim girl did not whisper to anybody. However, the next day she went to school and she informed to her headmistress. Though she was examined as PW10, she never whispered about the same. She deposed about the age of the victim girl and the certificate was marked as Ex.P7 to prove the age of the victim. On the information received from the headmistress, a member of the Child Welfare Committee lodged complaint, who was examined as PW12. He deposed that the first accused had penetrative sexual assault on the victim girl. The second accused used to laugh at them and also she encouraged the first accused to do the said crime.
https://www.mhc.tn.gov.in/judis 5/8 Crl.A.No.336 of 2018
8. On perusal of the statement recorded under Section 164 of Cr.P.C., which was marked as Ex.P9, revealed that the first accused had penetrative sexual assault on the victim girl. But the second accused failed to question the same. However, she ill treated the victim all along. It is relevant to extract provision under Section 16 of POCSO Act as follows:
16.Abetment of an offfence:
A person abets an offence, who-
First -Instigates any person to do that offence; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or Thirdly -Intentionally aids, by any act or illegal omission, the doing of that offence.
Explanation II would attract offence under Section 16 of POCSO Act against the appellant herein. Accordingly, a person whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Thus, it is clear that the appellant aided the act of the first accused when he committed offence of penetrative sexual assault on the victim. https://www.mhc.tn.gov.in/judis 6/8 Crl.A.No.336 of 2018
9. That apart, on perusal of the materials would show that the first accused not only committed offence on 26.01.2015, he continuously had committed penetrative sexual assault on the victim girl and Section 164 of Cr.P.C. statement revealed the same. Therefore, the court below rightly convicted the appellant and this Court finds no infirmity or illegality in the judgment passed by the trial court.
10. Accordingly, this criminal appeal is dismissed.
28.09.2022
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Crl.A.No.336 of 2018
G.K.ILANTHIRAIYAN, J.
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To
1.The Sessions Judge,
Magalir Neethimandram (FTMC) of Tiruppur.
2.The Inspector of Police,
All Women Police Station North,
Tiruppur City
Tiruppur District
3.The Public Prosecutor,
High Court of Madras
Crl.A.No.336 of 2018
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