Madras High Court
C.Selvaraj vs The State Represented By on 11 October, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.202 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.10.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.202 of 2018 and
Crl.MP.No.4853 of 2018
C.Selvaraj ... Appellant
Vs.
The State represented by
The Inspector of Police,
All Women Police Station,
Thiruvarur ... Respondent
PRAYER:
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure, to set aside the judgment passed by the Special Sessions Judge,
Magalir Neethimandram, Thiruvarur in Spl.SC.No.4 of 2013 dated 31.12.2015.
For Appellant : Mr.G.Murugendran
for Mr.M.Senthil
For Respondent : Mr.A.Gopinath,
Government Advocate(crl.side)
JUDGMENT
https://www.mhc.tn.gov.in/judis 1/12 Crl.A.No.202 of 2018 This criminal appeal is directed as against the judgment passed by the Special Sessions Judge, Magalir Neethimandram, Thiruvarur in Spl.SC.No.4 of 2013 dated 31.12.2015, thereby convicted the appellant for the offence punishable under Sections 6 r/w 5(m) and 10 r/w 9(m) of Protection of Children from Sexual Offences Act, 2012.
2. The case of the prosecution is that the victim girl was aged about 2 ½ years and the appellant is a neighbour. While being so, on 11.01.2013 at about 04.30 p.m., when the victim went to play at the accused's house, the accused had taken the victim and inserted his finger in to her vagina and due to which she sustained injury with bleeding. While it was questioned to the accused, he replied that stick may have pierced. Believing the version of the accused, the mother of the victim brough the child to the hospital for treatment. After treatment they returned to home. However, on subsequent enquiry of the victim child, the mother of the victim came to understand that the accused committed sexual assault on her. Hence, the respondent registered FIR in crime No.2 of 2013 for the offence under Sections 7 and 8 of the POCSO Act, 2012 r/w Section 4 of Tamilnadu Prohibition of Harassment of Women Act. After completion of investigation, the respondent filed final report and the same has https://www.mhc.tn.gov.in/judis 2/12 Crl.A.No.202 of 2018 been taken cognizance by the trial court for the offence under Sections 4 and 8 of POCSO Act, 2012.
3. The prosecution examined PW1 to PW14 and marked Ex.P1 to Ex.P9. On the side of the appellant, DW1 to DW3 were examined and no documents were marked. On perusal of oral and documentary evidence, the trial court found him guilty and convicted for the offence punishable under Section 6 r/w 5(m) of POCSO Act and sentenced him to undergo 10 years rigorous imprisonment with fine of Rs.10,000/-, in default to undergo one year rigorous imprisonment. He was also found guilty for the offence under Section 10 r/w 9(m) of POCSO Act. However, since the punishment imposed for major offence, no separate sentence imposed for this conviction under Section 10 r/w 9(m) of POCSO Act.
4. The learned counsel for the appellant would submit that there was previous enmity between the accused family and the victim family. Therefore, the false complaint foisted as against the accused. Even according to the PW1 who lodged complaint alleging that the victim girl aged about 2 ½ years sustained injury on her private parts due to stick and later, they changed their own version and alleged that the appellant sexually assaulted on the victim by https://www.mhc.tn.gov.in/judis 3/12 Crl.A.No.202 of 2018 his finger so as to attract the offence under POCSO Act. He further submitted that the victim girl was examined as PW12. She categorically deposed that only as tutored by her parents, she deposed before the court. The doctor who treated the victim was examined as PW9 and she deposed that the victim was admitted alleging that injury on her private parts herself with stick and she was immediately discharged on 12.01.2013. Again, the victim girl was admitted at hospital alleging that the injury was caused by the sexual assault made by one known person. Therefore, it is clear that the entire allegations are only after thought and only to wreak vengeance against the appellant due to previous enmity.
4.1 He further submitted that in order to disprove the case of the prosecution, the appellant had examined DW1 to DW3. They deposed that the appellant was running a brick kiln. While being so, the goat belongs to PW1 damaged the brick of the appellant. Therefore, there was a quarrel. However, thereafter they compromised the issue. It happened three to five years before the occurrence and due to which the false complaint has been foisted as against the appellant. He further submitted that the appellant is so far incarcerating https://www.mhc.tn.gov.in/judis 4/12 Crl.A.No.202 of 2018 imprisonment more than seven years and the maximum punishment for the alleged offence is only 10 years. Therefore, he prayed to reduce the sentence.
5. The learned Government Advocate(crl.side) appearing for the respondent / police submitted that to bring the charge for the offences under Sections 6 r/w 5(m) and 10 r/w 9(m) of Protection of Children from Sexual Offences Act, 2012, the prosecution had examined PW1 to PW14 and marked Ex.P1 to Ex.P9. PW1 is the mother of the victim who deposed categorically that the victim aged about 2 ½ years was sexually assaulted by the appellant herein by his hand, due to which she sustained injuries on private part and immediately admitted in the hospital. Initially, she believed the words of the appellant that the injury happened on her own by stick. Later, she came to understand that the victim was sexually assaulted by the appellant and as such she lodged complaint. It is not an after thought since the appellant committed very serious and heinous offence as against the minor girl aged about 2 ½ years. In fact, the minor girl was examined as PW12 and she categorically deposed that only the appellant caused sexual assault on her and due to which she sustained injuries. She got admitted as in-patient for three days and she had treatment. The doctor who treated the victim was examined as PW9 who https://www.mhc.tn.gov.in/judis 5/12 Crl.A.No.202 of 2018 categorically deposed that she found the superficial mucosal abrasion nearly posterior fourchette with no active bleeding. However, she got admitted for two days and had given treatment to her. Therefore, the trial court rightly convicted the appellant and the judgment of the trial court does not require any interference of this Court.
6. Heard, Mr.G.Murugendran, the learned counsel for the appellant and Mr.A.Gopinath, learned Government Advocate(crl.side) appearing for the respondent / police.
7. On perusal of records revealed that the petitioner was arrested on 13.01.2013 and due to his arrest, he was incarcerating imprisonment from 13.01.2013 to 27.03.2013 and 18.06.2014 to 24.06.2014 and 30.12.2015. After conviction i.e. on 31.12.2015, he was again remanded to judicial custody and he is incarcerating imprisonment till today.
8. Admittedly the victim was aged about 2 ½ years at the time of occurrence on 11.01.2013 and the appellant was aged about 45 years. He is a neighbour to the victim. On the date of occurrence, when the victim went to the https://www.mhc.tn.gov.in/judis 6/12 Crl.A.No.202 of 2018 house of the appellant for playing, while being so the appellant had sexually assaulted on her by his finger. Therefore, she got heavy bleeding. It was questioned by PW1 who is the mother of the victim to the appellant and he stated that the injury was happened on her own by stick and it may have pierced. On believing the version of the appellant, PW1 informed the doctor to treat her. Thereafter, she found that the appellant sexually assaulted the victim by his finger due to which the victim sustained heavy bleeding on her private part. It is also evident from the deposition of PW9 who treated the victim girl. Though there was no active bleeding immediately after the occurrence, there was a bleeding and immediately she had been taken to hospital for treatment. It is unfortunate to state that the victim was aged about 2 ½ years and the appellant was aged about 45 years at the time of occurrence. When the victim went to his house for playing, he sexually assaulted the victim girl by his finger. In fact, she sustained bleeding on her skirt. The victim girl was examined as PW12 and she deposed as follows:
v';fs; tPlL ; f;F gf;fj;jpy; nfrtd; khkh kw;Wk;
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9. Thus, it is clear that at the time of her deposition, she was aged about nearly 5 years. However, she categorically deposed. Thus it is clear that the appellant committed very serious and heinous offence as against the minor girl. Therefore, the trial court rightly convicted the appellant for the offence punishable under Sections 6 r/w 5(m) and 10 r/w 9(m) of Protection of Children https://www.mhc.tn.gov.in/judis 8/12 Crl.A.No.202 of 2018 from Sexual Offences Act, 2012 and this Court finds no infirmity or illegality in the conviction rendered by the court below. However, this Court felt that it would be appropriate to reduce the sentence considering the age of the appellant. As such, the judgment passed by the learned Special Sessions Judge, Magalir Neethimandram, Thiruvarur in Spl.SC.No.4 of 2013 dated 31.12.2015 is modified as follows:
(i) The conviction rendered by the trial court for the offence under Sections 6 r/w 5(m) and 10 r/w 9(m) of POCSO Act, 2012 is confirmed.
(ii) The sentence of imprisonment imposed by the trial court is reduced to the period already undergone by the appellant (the period of imprisonment already undergone by the appellant is to be given set off under Section 428 of Cr.P.C.)
(iii) The trial court imposed fine of Rs.10,000/- payable by the accused, which was ordered to be awarded to the victim gril as compensation, is hereby confirmed.
(iv) The appellant is directed to be set at liberty forthwith, unless his custody is required in connection with any other case. The bail bond, if any executed by the accused, shall stand cancelled.
10. Accordingly, this criminal appeal is partly allowed. Consequently, connected miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis 9/12 Crl.A.No.202 of 2018 11.10.2022 Speaking/non-speaking Index : Yes/No Internet : Yes lok https://www.mhc.tn.gov.in/judis 10/12 Crl.A.No.202 of 2018 https://www.mhc.tn.gov.in/judis 11/12 Crl.A.No.202 of 2018 G.K.ILANTHIRAIYAN, J.
lok To
1.The learned Special Sessions Judge, Magalir Neethimandram, Thiruvarur
2.The State represented by The Inspector of Police, All Women Police Station, Thiruvarur
3.The Public Prosecutor, High Court of Madras Crl.A.No.202 of 2018 11.10.2022 https://www.mhc.tn.gov.in/judis 12/12