Madras High Court
Udhyanithi vs State Through on 12 June, 2016
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
Crl.A.(MD) No.181 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 05.11.2019
DELIVERED ON 12.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
Crl.A.(MD)No.181 of 2018
Udhyanithi ... Appellant/ Sole Accused
Vs.
State through
The Inspector of Police
Budalur Police Station
Thanjavur District.
(In Crime No.117/2015) ... Respondent/ Complainant
PRAYER: Criminal Appeal is filed under Section 374(2) of the Code of
Criminal Procedure to set aside the judgment and conviction dated
12.06.2016, by the learned Sessions Judge, Mahalir Neethimandram (Fast
Track Mahila Court), Thanjavur in Spl.S.C.No.20 of 2016 and acquit the
appellant.
For Appellant : Mr.K.Karunanithi
For Respondent : Mr.M.Chandrasekaran,
Additional Public Prosecutor
******
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Crl.A.(MD) No.181 of 2018
JUDGMENT
S.VAIDYANATHAN, J.
AND N.ANAND VENKATESH, J.
The sole accused, aggrieved by the judgment passed by the Mahila Court (Fast Track Mahilla Court), Tanjore made in Spl.S.C.No.20 of 2016 dated 12.06.2017, convicting the appellant for the offense under Section 6 read with 5(m) of the POCSO Act and sentencing him to undergo life imprisonment and to pay a fine of Rs.1,000/- and in default to undergo three months simple imprisonment and to further pay a compensation of a sum of Rs.2,00,000/-(Rupees Two lakhs only), has preferred this Criminal Appeal before this Court.
2. The case of the prosecution is that on 05.06.2015, at about 4:00 p.m., the appellant had sexually assaulted the victim girl (P.W.2) at the back side of the house of one Gunasekaran at Rayandur Kaliyamman Koil street. The mother of the victim girl (P.W.1) was informed about this incident by the victim girl (P.W.2) and when P.W.1 attempted to question the appellant, he quickly moved out of the place. Thereafter, she went to the Police Station and the Sub Inspector of Police (P.W.14) received the complaint from P.W.1 and registered an F.I.R.(Ex.P.19) in Crime No.117 of 2/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 2015, for an offence under Section 4 of POCSO Act. The express F.I.R. was immediately sent to the learned Judicial Magistrate, Thiruvaiyaru and it was also forwarded to the Inspector of Police (P.W.16).
3. The Investigation Officer (P.W.16) went to the scene of crime at about 7:30 p.m. and prepared the observation mahazar (Ex.P.20) and the rough sketch (Ex.P.21). He also recovered the clothes from the victim girl under seizure mahazar and he recorded the statements of P.W.1, P.W.6, P.W.7, P.W.8 and P.W.5 under Section 161(3) of Cr.P.C.
4. The Investigation Officer received an information about the appellant and on 06.06.2015, at about 1:00 p.m., the appellant was arrested near the Akilandeshwari Nagar bus stop. He was brought to the police station and the clothes which he was wearing was recovered in the presence of the witness under mahazar. Thereafter, he was produced before the Court and the appellant was remanded to judicial custody.
5. The Investigation Officer, thereafter gave a requisition to send all the recovered materials to the forensic laboratory. Since the Investigation Officer was transferred, the investigation was thereafter handed over to P.W.18. The new Investigation Officer, who took charge of the case, 3/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 recorded the statements of the other witnesses. He gave a requisition to the Court through the Head Constable (P.W.15) to take the statements of the victim girl and her mother under Section 164 of Cr.P.C. The 164 statements of the victim girl and her mother were recorded. The appellant was examined by the Doctor (P.W.12) and the age certificate (Ex.P.15) was given and the potency test was taken by the Doctor (P.W.13) and certificate (Ex.P.17) was issued. Similarly, the victim girl was also examined by Doctor (P.W.12) and her age was assessed and certificate (Ex.P.16) was given. The victim girl was also examined by the doctor (P.W.10) and it was recorded in the Accident Register (Ex.P.11) and the medical examination report and final opinion (Ex.P.12) was also given.
6. The Investigation Officer completed the investigation and filed the final report before the Special Court on 19.04.2016. The trial Court framed charges against the appellant for an offense under Section 5(m) read with Section 6 of POCSO Act. The prosecution examined witnesses P.W.1 to P.W.18 and marked exhibits Ex.P1 to Ex.P.25 and exhibited M.O.1 to M.O.3.
7. The trial Court questioned the appellant under Section 313 (1)(b) of Cr.P.C. and had put all the incriminating materials collected during the course of trial and the same was denied as false by the appellant. 4/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018
8. The trial Court, on considering the facts and circumstances of the case and after analyzing the oral and documentary evidence came to a conclusion that the prosecution has established the case beyond reasonable doubts and proceeded to convict and sentence the appellant in the manner stated supra.
9. Mr.M.Karunanithi, learned counsel for the appellant made the following submissions:
➢ All the material witnesses in this case, including the victim girl, have turned hostile and they did not support the case of the prosecution;
➢ The victim girl had specifically stated before the trial Court that, she does not know the appellant and therefore, the appellant was not even identified before the Court below and on this simple ground, the judgment of the trial Court is liable to be set aside;
➢ The Court below has proceeded to deal with the case as if the prosecution is trying to establish the case through circumstantial evidence and in which case, it is the duty of the prosecution to prove every link in the chain of circumstances. However, in this case, the prosecution has miserably failed to prove the material facts ;
➢ The trial Court had erroneously placed reliance on the entries made in the Accident Register without any corroboration since the victim 5/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 girl and her mother have not supported the case of the prosecution;
➢ P.W.1 had admitted only the signature that was found in the complaint and she did not own-up the contents of the complaint and therefore, the Court below ought not to have placed reliance on the contents of the complaint;
➢ All the material documents have been sent to the Court belatedly and no explanation has been offered and the same is fatal to the case of the prosecution;
➢ As per the evidence of Doctor (P.W.12), by whom the age of the appellant was assessed as 14-18 years, the appellant ought not to have been tried before the Court below and therefore, he should have been sent to the Juvenile Board; and ➢ In the alternative, if this Court comes to a conclusion that the offense has been made out, this Court may take into consideration the age of the appellant and modify the sentence.
10. Per contra, Mr.M.Chandrasekaran, learned Additional Public Prosecutor appearing on behalf of the respondent Police made the following submissions:
➢ The victim girl had categorically stated in her evidence that she went to give tea to her uncle and she found the appellant there, wherein 6/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 the appellant asked her to kiss him and she also kissed him and he in turn started kissing the victim girl. Thereafter, he had poked his finger in the private part of the victim girl. This statement made by a five-year old victim girl is enough to convict the appellant for the offence under Section 5(m) of POCSO Act;
➢ It is clear from Ex.P.12, which is the medical report given by P.W.10, where the mother of the victim girl(P.W.1) has clearly stated about the entire incident and the injuries, as recorded by the doctor, clearly corroborates the version given by the victim girl;
➢ The mother of the victim girl (P.W.1) was produced before the learned Judicial Magistrate No.II, Kumbakonam and her 164 statement (Ex.P.2) was recorded and she had clearly explained the entire incident as complained by her daughter and thereafter, when she appeared before the Court as witness, she did not support the case of the prosecution and she has been won over; and ➢ The prosecution has established the case beyond reasonable doubts and the charges have been clearly proved and there is absolutely no ground to interfere with the judgment of the trial Court .
11. This Court has carefully considered the submissions made on either side and also analyzed the oral and documentary evidence that have been placed before this Court.
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12. This case is a standing example to understand the state of affairs that is prevailing in the society. When an offence/ sexual assault is committed to a child/ minor girl, her own parents for some reason, come before the Court and completely disown about the entire incident. In most of the cases, this is done fearing future consequences and societal pressure. It becomes the duty of the Courts to come to the aid of the victim girl, who has been sexually assaulted, in order to find out the actual truth by removing the chaff from the grain and proceed against the accused.
13. In the present case, the victim girl was hardly aged about four years when the incident took place. As per the F.I.R. (Ex.P.19), the mother of the victim girl (P.W.1) had given a complaint on 05.06.2015 at about 6:00 p.m. to the effect that her daughter, who was aged about four years was playing at the backside of one Gunasekaran's house, came crying and when she was enquired, she lifted her dress and showed blood oozing out of her private part. When she was enquired, she had said that the appellant had attempted to sexually assault the victim girl. P.W.1 immediately went to question the appellant and on seeing her, he quickly went away from the place. These facts are clearly stated in the F.I.R. 8/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018
14. Thereafter, the mother of the victim girl had taken her to the doctor (P.W.10) and this has been clearly spoken by the doctor and the name of P.W.1 is also found in the Accident Register (Ex.P.11) and the medical examination report (Ex.P.12). It is also seen that P.W.1 had also given the 164 statement (Ex.P.2) before the learned Judicial Magistrate, No.II, Kumbakonam and she has explained about the entire incident before the learned Judicial Magistrate.
15. Unfortunately, when the mother of the victim girl (P.W.1) was examined before the Court on 23.02.2017, she disowned her earlier statement and has stated before the trial Court that she does not know the appellant. Except admitting the signature (Ex.P.1) found in the complaint, she disowned all the other statements. She further stated that the victim girl got injured while she was playing and therefore, she was taken to the doctor and the hospital insisted for a police complaint and therefore, she had signed in a blank paper and she does not know about the contents of the complaint.
16. It is unfortunate that the learned Public Prosecutor, who conducted the case did not even confront her by showing the 164 statement made by her before the Court and question her regarding the 9/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 contents found in the 164 statement. It must be borne in mind that the 164 statement is in the nature of a former statement and it cannot be taken as a substantive piece of evidence.
17. It will be relevant to take note of the judgment of this Court made in R.Murugesan Vs. State reported in 2014 (2) MWN (cr.)290 (DB). The relevant portions of the judgment are extracted hereunder:-
“12. A statement u/s 164 Cr.P.C.1973 is recorded by a Magistrate during the investigation of a case under Chapter XII of the Code of Criminal Procedure. The Magistrate is not conducting an inquiry in relation to matters of fact like a trial Court. He merely records the statement of the persons on a request made by the Investigating Officer.
13. The witness who gave the statement under Section 164 Cr.P.C., should tell the facts known to him again as evidence before the trial Court. After narrating the facts, he should depose that he had already stated the same thing earlier before the Magistrate. Then the trial Court Prosecutor should show him the 164 statement and prove it as an exhibit through him.
14. The narration of the events by the witness in the trial Court is Substantive evidence. Then his further statement before the trial Court that he told the same facts 10/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 earlier to the Magistrate is also a Substantive piece of evidence. To corroborate and prove that he in fact gave a statement to the Magistrate, his 164 statement should be shown and marked and proved through him. Why should it be shown and marked through him? Because Section 157 Evidence Act states:
"157. Former statements of witness may be proved to corroborate later testimony as to same fact.-- In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."
15. A statement recorded under Section 164 Cr.P.C.'73 is a former statement given before an authority, namely a Magistrate who is legally competent to record the statement by virtue of the power conferred upon him by Section 164 Cr.P.C. 1973 in order to aid the investigation conducted under Chapter XII of the Code. Section 157 Evidence Act says that the former statement must be proved. Therefore the witness who gave the 164 statement should be made to prove it while marking the statement through him. If the witness admits in his evidence before the Court that he gave a former statement to the Magistrate and the statement shown to him is that, then the 164 statement stands proved. In that case the Magistrate who recorded the 164 statement need not be examined.
16. If the witness completely denies that he gave a former statement before the Magistrate, then the 11/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 Prosecutor should dispute it and suggestions should be put to him that he did give a statement and his signature in the statement should be marked. If he denies the signature also, then that also should be disputed and suggestions that the signature found in the 164 statement is that of his should be put to him. Thereafter the Magistrate should be examined and the 164 statement should be marked and proved. The Investigating Officer should also say that on his request the Magistrate recorded the statement of that witness on such and such date. Only this will complete the circle in a case where the witness denies everything. Even if this process is completed and the 164 statement is proved, then also the 164 statement cannot be treated as substantive evidence and the accused be convicted based on it. The Court can only give a finding that the witness who gave the 164 statement is a liar and take action against him for giving false evidence. In State of Delhi vs. Shri Ram [AIR 1960 SC 490] it has been held:
"Statements recorded under S.164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S.164 of the Code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case. A Judge commits an error of law in using the statement of a witness under S.164 as a substantive evidence in coming to the conclusion that he had been won over."12/31
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17. A statement u/s 164 is a corroborative piece of evidence. It corroborates a substantive piece of evidence in the Court, namely the evidence of the witness that he told the same facts earlier to a Magistrate. A corroborative piece of evidence can only corroborate a substantive piece of evidence and not another corroborative piece of evidence. In other words the 164 statement of 'A' cannot corroborate the complaint given by 'A' to the Police that formed the basis for registering the FIR.
18. The credit of a witness can be impeached under Section 155(3) of the Evidence Act by proof of former statements which are inconsistent with any part of his evidence. The procedure to bring on record the contradictions is provided by Section 145 of the Evidence Act.
"145. Cross-examination as to previous statements in writing---A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
19. For example, if the witness has stated in the complaint and 164 statement that 'A' gave the lethal blow on the head but in the witness box, if he says that 'B' gave the lethal blow on the head, then there is contradiction between the complaint and 164 statement on one hand and the 13/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 substantive evidence in the witness stand on the other hand. Many a time defence counsels remain silent in the fond hope that they can highlight the contradiction by simply reading to the Judge and comparing the former statements [Complaint and 164 statement] and the deposition of the witness. This is impermissible. The corroborative evidence namely the former statement should be put to him and his attention should be drawn to the contradiction between what he stated in the former statement and the substantive evidence. In the above example he should be asked, you have stated in the Court that B inflicted the lethal blow, but in your complaint and 164 statement you have stated A has inflicted the lethal blow, is it not? Defence counsels will get scared to ask this question because of fear that he may explain away. For that sake mandates of Section 145 Evidence Act cannot be jettisoned. If it wants to contradict the witness with a former statement there is no escape route other than Section 145 of the Evidence Act. Only contradictions between two substantive evidences can be read out to the judge. For example, in a case, if P.W.1 says in his evidence that 'A' gave the lethal blow and P.W.2 says that 'B' gave the lethal blow, then there are two contradictory substantive pieces of evidences. Then the defence counsel can read P.W.1 and P.W.2's evidence and show the contradictions.
20. In some Courts, the Prosecution, at the commencement of the examination itself would show the 164 statement to the witness and ask him;
14/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 “Is this your statement”?; Answer : “Yes”;
Then mark it through him without anything more and argue that the prosecution has proved the facts stated in the 164 statement. This procedure is incorrect because Section 164 statement is not substantive evidence. Proving the factum of having given a statement to the Magistrate is different from proving the facts contained in the statement.
21. Why do Police have the statement of a witness recorded under Section 164? A Full Bench of this Court in State of Madras vs. G.Krishnan [AIR 1961 Mad 92] has succinctly answered this question in the following words:
18. .........The object of recording a statement under Sec.164 Crl.P.C. Are: (1) to use them as confession in case the person making them is ultimately charged with an offence, and (2) to deter a witness from changing his version later by succumbing to temptations, influences, or blandishments." In the same judgment the Full Bench has held that a 164 statement is a Public Document within the meaning of Section 74(iii) of the Evidence Act. Section 80 of the Evidence Act raises a presumption that a Statement or Confession by any prisoner or accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate is genuine. A confession duly recorded by a Magistrate in accordance with Section 164 Cr.P.C. will come under the protective umbrella of the presumption under Section 80 of the Evidence Act. We see no reason as to why the protection of Section 80 Evidence Act be denied to a statement of a witness recorded under Section 164 Cr.P.C. The presumption under Section 80 Evidence Act can 15/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 by no stretch of imagination extend to the statement of facts contained in the 164 statement. Presumption under Section 80 is only for the genuineness of the document and not to its contents.”
18. It is clear from the above judgment that a statement given under Section 164 Cr.P.C. can only be used to contradict or/and corroborate the substantive piece of evidence. Even a 164 statement must be proved, since it is a requirement under Section 157 of the Indian Evidence Act. Proving the factum of having given a statement to the Magistrate is different from proving the facts contained in the statement. The object of recording a statement under Section 164 of Cr.P.C. is, to use it to deter the witness from changing his or her version later by succumbing to temptations, influences, or blandishments. Therefore, the witness has to specifically admit in the evidence before the Court that he or she has only given the former statement to the Magistrate and only then, the statement recorded under Section 164 of Cr.P.C stands proved. If the witness denies the 164 statement, it is the duty of the prosecutor to put suggestions by showing the statement and by asking that it was he or she who gave the statement and also signed the same. If the signature is admitted, it must be marked.
In this case, the learned Public Prosecutor has failed to even put any suggestions by showing the 164 statement to P.W.1 and this could have atleast deterred P.W.1 to tell the truth before the Court. Atleast it would 16/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 have helped the Court to come to a conclusion that P.W.1 is a liar and action could have been taken against her for giving false evidence.
19. The credibility of the witness could have been impeached under Section 155(3) of the Indian Evidence Act by putting it to P.W.1 and contradicting her under section 145 of the Indian Evidence Act. The learned Public Prosecutor has failed to do his duty and it is unfortunate that he was not even aware of these fundamental procedures which he must follow while marking a 164 statement.
20. In view of the above finding, the 164 statement that was recorded before the learned Magistrate and marked as Ex.P.2 cannot be relied upon for the purpose of ascertaining the facts that have been stated in the 164 statement. At the best, it can only be relied upon to show that P.W.1 had in fact given a statement to the Magistrate and nothing more.
21. The cumulative assessment of the conduct of P.W.1 shows that she had gone before the police station and signed a complaint and then she had taken the victim girl to the doctor and told him about the incident and she had also gone before the Magistrate to give a 164 statement. Unfortunately, when she was examined in Court, she has disowned her 17/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 earlier statements and has turned hostile. P.W.1 was examined before the Court nearly after one and a half years after the incident and during the interregnum, she has been definitely bought over and she has succumbed to pressure and failed in her duty to safeguard and support her own daughter.
22. In cases of this nature, it is very important to see the evidence given by the victim girl before the Court. It is rather unfortunate that the victim girl had given a statement under Section 164 of Cr.P.C. before the learned Magistrate and this was not even marked during the course of the trial and it was safely kept by the police in the case diary. This Court also had an occasion to look into the case diary and the statement recorded from the victim girl under Section 164 of Cr.P.C which was very much available in the case diary. Again the Public Prosecutor failed in his duty in not marking the 164 statement and by putting suggestions to the victim girl. It is not known whether all this were done by the Public Prosecutor out of ignorance or intentionally.
23. It is relevant to extract the statement made by the victim girl before the trial Court.
“m.rh.1 thRfp vdJ mk;kh. Vjphpia njhpahJ. tpIa; khkh Ngid cilj;Jtpl;lhh;. ehd; tpIa; khkhTf;F B nfhLf;f NghNdd;. 18/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 mq;f cjaepjp ,Ue;jhq;f. mth; vdf;F Kj;jk; nfhLf;f nrhd;dhq;f. ehDk; nfhLj;Njd;. mTq;fSk; nfhLj;jhq;f. mg;gwk; ifia itj;J cr;rh ,Uf;Fk; ,lj;jpy; Fj;Jdhq;f. M];gj;jphpf;F NghNdhk;. vOjpf;fpl;L tur;nrhd;dhq;f. M];gj;jphpapy; vdf;F Mg;gNurd; gd;Ddhq;f.”
24. It is clear from the above statement that the child, who has been tutored to utter lies before the Court, has spoken the truth due to innocence. She was made to say that she did not know the appellant and she started giving the evidence in that manner. However, she immediately states the name of the appellant and explains as to what the appellant did to her on the day of the incident. She also speaks about going to the hospital and the treatment given to her. Fortunately, the innocence in the child has made her speak the truth before the Court.
25. It will be relevant to take note of the evidence of P.W.10, who is the doctor to whom the victim girl was taken. The relevant portion in the evidence is extracted hereunder:
“fle;j 5.6.2015k; Njjp ,uT 9 kzpastpy; gzpapypUe;jNghJ 4 taJ ngz; Foe;ij uhftp vd;gtiu mtuJ jhahh; kw;Wk; G+jY}h; fhty; epiyak; rpwg;G cjtp Ma;thsh; NrJ MfpNahh; %yk; kUj;Jt ekdh %yk; kUj;Jt ghpNrhjidf;F vd;dplk; mioj;Jtug;gl;lhh;. ghpNrhjid kw;Wk; tprhhpj;jjpy; me;j Foe;ij jd;id njhpe;j egh;19/31
http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 J}f;fp nrd;wjhfTk; jd;id fl;bg;gpbj;jjhfTk; khh;gfk; kw;Wk; gpwg;GWg;Gfs; Mfpatw;iw njhl;ljhfTk; efj;ij itj;J fhag;gLj;jpajhfTk; Kj;jk; nfhLj;jjhfTk; mOJnfhz;Nl $wpdhh;. mjw;F Nky; mtiu tprhuiz nra;a Kbatpy;iy. MtuJ jhahh; Foe;ij mOJnfhz;Nl Xbte;jjhfTk; gpwg;GWg;gpypUe;J njhlh;e;J 10 epkplj;jpw;F ,uj;jk; frpe;Jnfhz;bUe;jjhfTk; mtuJ cs; rl;il> ghthil eide;jpUe;jjhfTk; Jzpfis khw;wp mtis Fspg;ghl;b jhd; fhty; epiyaj;jpw;F mioj;J nrd;W Gfhh; nra;jjhf $wpdhh;. Foe;ijia ghpNrhjpj;jjpy; gae;j epiyapy; fhzg;gl;lhh;. ntspg;Gw fhaq;fs; mtUila Nahdpapd; EioT gFjpapy; rpuha;G fhak; ,uj;jf;frpTld; fhzg;gl;lJ. NkYk; ,lJ gf;f ntspAWg;gpy; nky;ypa rpuha;G fhak; fhzg;gl;lJ. NkYk; fhypd; ,lJ gf;fj;jpd; fPo;Gwk;3 ,d;l;2 nr.kP mstpy; rpuha;G fhak; fhzg;gl;lJ. njhilapd; cl;Gwk; 3 ,d;l; 2 kp.kP mstpy; fd;dpg;NghapUe;j ,uj;jf;fl;L fhzg;gl;lJ. jw;NghJ ,uj;jf;frpT ,y;iy. Kjy; cjtp nra;ag;gl;lJ. khh;gf gFjpapy; fhaq;fs; vJTk; ,y;iy. Kfk; kw;Wk; ntspaplq;fspy; fhaq;fs; vJTk; ,y;iy. jla mwptpay; ghpNrhjidf;F NahdpypUe;Jk; ntspAWg;gpypUe;Jk; ];thg; vLj;J ghpNrhjidf;F mDg;gpNdd;. mjd; Kbtpy; tpe;jZ vJTk; fz;lwpag;gltpy;iy vd;W KbT njhptpf;fg;gl;lJ. ghpNrhjidapd; Kbtpy; Foe;ij ghypay; njhe;jutpw;F cl;gLj;jg;gl;bUf;fyhk; vd;Wk; tpe;jZ vJTk; fz;lwpag;gltpy;iy vd;W fUj;J $wp ehd; toq;fpa tpgj;J gjpNtL m.rh.M.11> kUj;Jt mwpf;if m.rh.M.12.”
26. It will also be relevant to extract the injuries that have been noted in the Accident Register (Ex.P.11).
20/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 “Injuries:
1. Abrasion of size 2 X 1 mm in the vaginal introitus near the posterior fourchette at 5'o clock point bleeding spot;
2. Linear abrasion in left labia minora;
3. Abrasion 3 X 2 mm at left inner foot;
4. Bruise of size 3 X 2 mm and inner side of thigh; hymen torn.
No active bleeding at present. Breast soft. No injuries. No other external injuries over face. Vulva swab & vaginal swab taken and sent.”
27. It is also clear from the medical examination report (Ex.P.12) that it was the mother of the victim girl, who had taken her to the doctor and had explained the entire incident. The final opinion given by the doctor shows that there were abrasion injuries over the external genitalia. The evidence of the doctor and the Accident Register and the medical examination report clearly corroborates the evidence of the victim girl (P.W.2). It was pursuant to the complaint given to the police by P.W.1 that an F.I.R. came to be registered and the victim girl was also sent to the Doctor (P.W.12) to ascertain her age.
28. In the considered view of this Court, the evidence of victim girl (P.W.2) is clear and it inspires the confidence of this Court and therefore, 21/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 there is no requirement for this Court to look for any corroboration. The mother of the victim girl (P.W.1), who turned hostile does not in any way impact the case of the prosecution.
29. The next question that requires consideration is whether the act committed by the appellant will fall within the definition of 'penetrative sexual assault'. It is important to note down the definition of penetrative sexual assault under Section 3 of the POCSO Act. Section 3(a) & (b) are extracted hereunder:-
“Chapter II Sexual Offences Against Children A-Penetrative Sexual Assault and Punishment Therefor
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 of the child or makes the child to do so with him or any other person;”
30. It is clear from the above definition that insertion of any part of the body is enough to attract the offence of penetrative sexual assault. In 22/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 the present case, since the appellant was not able to penetrate his penis, he had attempted to use his fingers in the private part of the victim girl and therefore, it clearly attracts Section 3(b) of the POCSO Act.
31. The appellant has been charged for Section 5(m) of the POCSO Act. For the sake of reference, Section 5(m) of the POCSO Act reads as under:
“B. Aggravated Penetrative Sexual Assault and Punishment therefor:
5. Aggravated penetrative sexual assault:
.....
(m) whoever commits penetrative sexual assault on a child below twelve years;”
32. In view of the fact that this Court has given a categorical finding that the act of the appellant clearly falls under Section 3(b) of the POCSO Act, it also falls under Section 5(m) of the POCSO Act, as it is clearly proved that the victim girl was only four years old at the time of the incident.
33. At this juncture, it is important to notice the scope of Section 29 of POCSO Act and the same is extracted hereunder:-
“29. Presumption as to certain offences:23/31
http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.”
34. This special provision has been enacted under the POCSO Act and a duty has been cast upon the Special Court to presume that an offence has been committed where the accused person is prosecuted for the certain offences and in this case, the appellant was prosecuted for the offence under Section 5(m) of the POCSO Act. In order to understand the term “shall presume”, it will be beneficial to take cue from Section 4 of the Indian Evidence Act, 1872. The term “shall presume” has been defined as follows:-
"Shall presume" – Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved;
It is clear from the above definition that wherever any enactment provides that an offence shall be presumed, the Court shall regard such offence to have been proved, unless and until it is disproved.24/31
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35. In the present case, the prosecution has placed sufficient materials to make out a case for an offence under Section 5(m) of the POCSO Act. The presumption under Section 29 of the POCSO Act starts from the date when the prosecution for the offence under Section 5(m) of the POCSO Act commenced. Therefore, it is the duty of the appellant to discharge this burden, failing which, the Special Court has to necessarily presume that the offence has been made out. The appellant has not discharged the burden that has been cast upon him under Section 29 of the POCSO Act.
36. In view of the above discussion, there is no doubt in the mind of this Court that, the prosecution has proved the case beyond reasonable doubts and the appellant has failed to discharge the burden cast upon him under Section 29 of the POCSO Act.
37. The next issue that requires consideration in this case is the punishment that has to be imposed on the appellant. Section 6 of the POCSO Act stipulates the punishment and it reads as follows:-
“6. Punishment for aggravated penetrative sexual assault:
Whoever, commits aggravated penetrative sexual 25/31 http://www.judis.nic.in Crl.A.(MD) No.181 of 2018 assault, shall be punished with rigorous imprisonment 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.”
38. It is clear from the above provision that the minimum punishment that should be given is 10 years Rigorous Imprisonment and which may extend to life imprisonment. Therefore, the Court cannot give any punishment below 10 years. Taking into consideration the age of the appellant, this Court deems it fit to modify the sentence imposed against the appellant.
39. A faint attempt was made by the learned counsel for the appellant to contend that the appellant was below 18 years as on the date when the alleged offence was committed and for that purpose, he relied upon the evidence of the doctor (P.W.12) and the age certificate marked as Ex.P.15. This plea raised by the learned counsel for the appellant is liable to be rejected for the simple reason that the age of the appellant was never raised as an issue before the trial Court and for the first time, it is raised before this Court. Merely with the certificate of the doctor, this Court cannot come to a conclusion that the appellant was aged below 18 years on the date of the commission of the offence.
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40. This Court has already held in Subramaniam vs. The State reported in 2016 (4) MLJ (Crl) 385, that for determining the age of a minor, the procedure as prescribed under Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 must be followed. The rule reads as under:
"12. Procedure to be followed in determination of Age-
(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the Application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the Observation Home or in Jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining:
(a) (i) the matriculation or Equivalent Certificates, if available; and in the absence whereof;27/31
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(ii) the date of Birth Certificate from the School (other than a Play School) first attended; and in the absence whereof;
(iii) the Birth Certificate given by a corporation or a Municipal Authority or a Panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of Clause (a) above, the Medical Opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing Orders in such case shall, after taking into consideration such evidence as may be available, or the Medical Opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the Clauses (a)(i), (ii), (iii) or in the absence whereof, Clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
Unless and otherwise the age is determined as per the said procedure, this Court cannot assume the age of the appellant. That apart, no attempt has been made to establish the age of the appellant even in this appeal. Therefore, this plea raised by the learned counsel for the appellant is hereby rejected.
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41. In the result, the conviction imposed by the trial Court is hereby confirmed and the sentence is modified from life imprisonment to ten years Rigorous Imprisonment and a fine of Rs.1,000/- and in default to undergo three months Simple Imprisonment and also to pay a compensation of Rs. 2,00,000/- (Rupees Two Lakhs only) which shall be deposited before the Court below and which shall be permitted to be withdrawn by the victim girl after she completes 21 years of age. The compensation amount shall be put in a fixed deposit, renewable once in three years and the interest shall also be accumulated so that at the time when it is withdrawn by the victim girl after she completes 21 years of age, she will get the amount along with accumulated interest.
41. Accordingly, this Criminal Appeal is allowed in part.
[S.V.N., J.] & [N.A.V., J.]
12.11.2019
Index : Yes/ No
Internet : Yes
sts
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Crl.A.(MD) No.181 of 2018
To
1.The Sessions Judge,
Mahalir Neethimandram
(Fast Track Mahila Court),
Thanjavur
2. The Inspector of Police
Budalur Police Station
Thanjavur District.
(In Crime No.117/2015)
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD) No.181 of 2018
S.VAIDYANATHAN, J.
AND
N.ANAND VENKATESH, J.
sts
Pre-Delivery of Judgment made in
Crl.A.(MD)No.181 of 2018
Dated:
12.11.2019
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