Madras High Court
Venkatesh vs The State Represented By on 24 November, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.503 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.503 of 2018
Venkatesh ... Appellant
Vs
The State represented by
The Inspector of Police,
Denkanikottai Police Station,
Denkanikottai,
Krishnagiri District. ...Respondent
PRAYER : Criminal Appeal has been filed under Section 374(2) of Criminal
Procedure Code, to call for the records pertaining to the Judgment in the case in
Special S.C.No.26 of 2016 on the file of the learned Sessions Judge, Fast Track
Mahila Court, Krishnagiri, dated 12.07.2018, set-aside the same.
For Appellant : Mr.R.Diwakaran
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
JUDGMENT
This Criminal Appeal has been filed as against the Judgment passed in Special S.C.No.26 of 2016 dated 12.07.2018, on the file of the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, thereby convicted the https://www.mhc.tn.gov.in/judis Page 1 of 14 Crl.A.No.503 of 2018 appellant for the offence punishable under Section 366 of IPC and Sections 3 r/w 4 of POCSO Act, 2012.
2. The case of the prosecution is that the minor victim girl fell in love with the accused. On the instigation of the accused, she eloped with the accused to Denkanikottai on 25.01.2016. They stayed in a friend's house for three days. Thereafter, the father of the victim girl lodged a complaint.
3. On receipt of the complaint, the respondent registered an FIR in Crime No.55 of 2016 under “Girl Missing”. Thereafter, the respondent secured the victim and subjected to medical examination. Thereafter, her statement was recorded under Section 164 Cr.P.C. The respondent filed an alteration report and altered the offences into Section 366A of IPC and Sections 3 r/w 4 of POCSO Act, 2012. After completion of investigation, the respondent filed a final report and the same has been taken cognizance, in Special S.C.No.26 of 2016 on the file of the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri.
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4. In order to bring home the charges, the prosecution had examined P.Ws.1 to 20 and marked Exs.P1 to 22. The prosecution had also produced M.O.1. On the side of the accused, no one was examined and no document was marked. On a perusal of oral and documentary evidences, the Trial Court found the appellant guilty for the offence punishable under Section 366 of IPC and sentenced him to undergo five years rigorous imprisonment with a fine of Rs.2500/-, in default to undergo six months rigorous imprisonment. The appellant was also found guilty for the offence under Sections 3 r/w 4 of POCSO Act, 2012 and sentenced him to undergo seven years rigorous imprisonment with a fine of Rs.2500/-, in default to undergo six months rigorous imprisonment. Aggrieved by the same, the appellant preferred this present appeal.
5. The learned counsel for the appellant would submit that the victim girl was examined as P.W.3. P.W.3 deposed that on her own she eloped with the accused on 25.01.2016 for the reason that her parents arranged marriage with her maternal uncle. Therefore, the accused insisted her to elope somewhere to marry her. After her consent, the accused picked her in a two wheeler and went to Denkanikottai. Thereafter, they went to Hosur. From https://www.mhc.tn.gov.in/judis Page 3 of 14 Crl.A.No.503 of 2018 Hosur, they travelled to Malur and stayed in the house of a friend of the accused for three days in a same room. After the complaint, the accused insisted the victim girl to have physical relationship, so that their parents will leave them as they are husband and wife. Therefore, they had physical relationship. Thereafter, on 30.01.2016, the accused left her in Denkanikottai check post.
6. After securing the victim girl, the victim girl was subjected to medical examination and her statement was recorded under Section 164 Cr.P.C. In such statement, revealed that she never had any sexual intercourse with the accused though they stayed for three days in a same room. She further stated that on her own she eloped with the accused. She was never kidnapped by the accused. Whereas, in her evidence before the Court, she categorically deposed that she along with the accused stayed in the house of a friend of the accused for three days and initially for first two days, he did not commit any sexual assault on her. Only on the final day, he had physical relationship with the victim, that too with her consent. In fact, she was subjected to medical examination and the Accident Register was recorded by P.W.10. The Accident Register was marked as Ex.P7. Ex.P7 also revealed that the victim eloped with one known person and there was no sexual assault by the accused. Thereafter, https://www.mhc.tn.gov.in/judis Page 4 of 14 Crl.A.No.503 of 2018 she was subjected to medical examination.
7. The Doctor who examined the victim was examined as P.W.13. She deposed that minimal congestion present around the 4'o clock to 5'o clock position of hymen with minimal superficial there present. No other external injuries were marked. Vaginal smear two slides, vaginal wash two container, public hair clippings collected and sent for lab through proper channel, urine pregnancy test is negative. Therefore, there was no evidence to show that they had physical relationship. However, the Trail Court without considering the above facts and circumstances of the case, unfortunately convicted the appellant.
8. Per contra, the learned Government Advocate (Crl. Side) submitted that though, the victim stated in her statement recorded under Section 164 Cr.P.C, there was no physical relationship, she categorically deposed before the Trial Court that the accused committed penetrative sexual assault on her on the pretext of marriage. P.W.13 also categorically opined that the possibility of penetrative sexual assault cannot be ruled out. She issued medical report, which was marked as Ex.P11. Admittedly, the victim was minor at the time of https://www.mhc.tn.gov.in/judis Page 5 of 14 Crl.A.No.503 of 2018 occurrence. Though, she eloped on her own, the evidence under Section 366 of IPC is clearly made out since, she has completed 16 years and not crossed 18 years. Therefore, the Trial Court rightly convicted the appellant and it does not warrant any interference by this Court.
9. Heard Mr.R.Diwakaran, learned counsel appearing for the appellant and Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing for the respondent.
10. Admittedly, the victim fell in love with the accused. She was aged about 16 years. There was an arrangement of her marriage with her maternal uncle. Due to which, the accused insisted the victim to elope. On the compulsion of the accused, the minor victim girl eloped with the accused on 25.01.2016. The accused picked her in a two wheeler and went to Denkanikottai and thereafter to Hosur. From Hosur, they travelled to Malur and they stayed in the house of a friend of the accused for three days. On the complaint, she was secured by the respondent and subjected for medical examination. The Accident Register was recorded by P.W.10. The Accident Register was marked as Ex.P7. It revealed that the victim eloped from her home https://www.mhc.tn.gov.in/judis Page 6 of 14 Crl.A.No.503 of 2018 on 25.01.2016 at about 03.00 p.m, with one known person on her own will and returned on 30.01.2016. She was conscious. (i) Breast- no injuries, (ii) External genetalia- no injuries and (iii) No other external injuries. The victim was directed to get Gynaecologist opinion. Thereafter, she was subjected for medical examination.
11. P.W.13 examined the victim and issued medical report which was marked as Ex.P11. It revealed as follows, “ 1) ghjpf;fg;gl;Ls;s bgz; fw;gHpf;fg;gl;Ls;shuh> The above said patient has been examined minimal congestion present around the 4'o clock to 5'o clock position of hymen with minimal superficial there present around the 4'o clock to 5'o clock position.
2) ghjpf;fg;gl;Ls;s rpWkpapd; clypy; fPwy;fs; (m) fha';fs;
cs;sdth>
● The above said patient has been examined
no external injuries seen.
● There is minimal superficial tear around 4'o clock to 5'o
clock position around the 4'o clock to 5'o clock position of hymen with minimal superficial there present around the 4'o clock to 5'o clock position.
3) ghjpf;fg;gl;Ls;s rpWkpapd; Vaginal smear nrfuk; bra;at[k;> ● The above said patient has been examined ● vaginal smear 2 slides ● vaginal wash 2 container ● hair clipping (patricia) collected and sent ● to forensic analysis through proper channel”. https://www.mhc.tn.gov.in/judis Page 7 of 14 Crl.A.No.503 of 2018 Finally, she opined that the possibility of penetrative sexual assault cannot be ruled out. In her cross examination, she also deposed that there is possibility for minimal superficial of hymen, due to cycling, high jump and long jump.
12. Thereafter, the victim's statement was recorded under Section 164 Cr.P.C and marked as Ex.P14. The relevant portion of her deposition is as follows, “ehd; jpd;D}hpy; FoapUf;fpnwd;/ vdJ jhj;jh kw;Wk; bgw;nwhh; cld; trpj;J tUfpnwd;/ vd;Dld; gpwe;jth;fs; xU mf;fh. XU j';if ehd; 11k; tFg;g[ goj;Jf;bfhz;oUf;fpnwd;/ vdJ mg;gh tptrhak; bra;fpwhh;/ khure;jpuj;ij nrh;e;j bt';fnlc&; vd;gtu; vdJ khkh vdf;F th';fp bfhLj;j bry;nghDf;F mof;fo mtid fhjypf;FkhWk; vd;id fhjypg;gjhft[k; nknr$; mDg;gp bfhz;oUg;ghh;/ vd;Dila ez;gh;fs;,lKk; bt';fnlir fhjypf;FkhW vd;dplk; brhy;y brhy;yp brhy;Ythh;/ vdnt ehDk; bt';fnlc&;ir fhjypj;njd; ,uz;L khj';fshf fhjypj;J te;njd;/ vdJ khkhtpw;F vd;id jpUkzk; bra;J jUtjhf Chpy; ngrp bfhz;ljhft[k; vd;id tplL ; tpl;L vd;J khkhtpw;F cd;id jpUkzk; bra;J itj;JtpLthh;fs; vd;dplk; te;J tpL vd;W bt';fnlc&; vd;dplk; Twpdhh;/ bt';fnlc&; mk;kh. kw;Wk; j';if vd;dplk; nghd; bra;J ePjhd; v';fs; tpl;ow;F kUkfshf tuntz;Lk; vd;W Twpdhh;fs;/ ehd; bt';fnlc&;aplk; vdf;F ,d;Dk; jpUkzk; tajhftpy;iy. Ehd; nkYk; gof;f ntz;Lk; vd;W Twpndd;/ bt';fnlc&; cdJ khkhtpw;F jpUkzk; bra;J itj;J tpLthh;fs; nkYk; gs;spf;F bry;Yk;nghJ gr';f bjhe;jut[ bra;tjhft[k; mjdhy; vd;Dld; te;JtpL vd;W https://www.mhc.tn.gov.in/judis Page 8 of 14 Crl.A.No.503 of 2018 Twpdhh;/ vdnt ehd; bt';fnlir ek;gp 24/1/2016 md;W es;sput[ 12/30 kzpf;F ahh; ,lKk; brhy;yhky; bt';fnlc&; tplhky; nghd; bra;J bjhe;jut[ bra;jjhy; mtDld; brd;W tpl;nld;/ eh';fs; ,UtUk; khY}Uf;F bt';fnlc&pd; ez;gh; tPlo; w;F brd;W tpl;nlhk;/ K:dW ; ehl;fs; m';F ,Ue;njhk;/ bt';fnlc&;d; rnfhjuhh;fs; ehd;F ehl;fs; fHpj;J khY}Uf;F te;J vdJ bgw;nwhh; vd;id flj;jpbrd;W tpll; jhf g[fhh; bfhLj;J fhty; epiyaj;jpy; bt';fnlc&;d; bgw;nwhh;fis cl;fhu itj;jpUg;gjhft[k; Vd; ,t;thW bra;jha; vd;W Twp 29/1/2016 md;W khure;jpuj;jpw;F ft[dr; pyh; ehnfic&;ia ghh;f;f te;njhk; mth; ,y;yhjjhy; md;W KGtJk; mnj Chpnyna Rw;wp tpl;L fhh;j;jpf; vd;gth; tPlo; y; kWehs; 30/1/2016 md;W fhty; epiyak; brd;nwhk;”/
13. Thus, it is clear that she was not subjected to any penetrative sexual assault by the accused. However, she deposed before the Trial Court as follows, “khY}upy; cs;s mtuJ ez;gh; Fkhh; vd;gtupd; tPlo; y; K:dW; ehs; j';fp ,Ue;njhk;/ ehDk; M$h; vjphpa[k; xnu miwapy; j';fp ,Ue;njhk;/ M$h; vjpup m';F vd;id vJt[k; bra;atpy;iy/ bt';fnlrd; rnfhjuu;fs; bt';fnlc&; kPJ fpl;dhg; tHf;F bfhLj;jpUg;gjhf brhy;yp khY}Uf;F te;jhh;fs;/ bt';fnlrd; mg;gh mk;khit nghyP!; !;nlrdpy; nghl;oUg;ghjhf brhy;yp v';fis Tl;of;bfhz;L khure;jpuj;jpy; cs;s vjphpapd; ez;gu; tPlo; w;F Tl;of; bfhz;L brd;whh;fs;/ m';F ek;gis nghyPrhh; gpupj;JtpLthu;fs; vd;Wk; fztd; kidtpahf thHyhk; vd;W vjphp brhd;dhh;/ ehd; ntz;lhk; vd;W brhd;ndd;/ mg;nghJk; mij nfl;fhky; vjpup vd;ndhL clYWt[ itj;Jf; bfhz;lhh;/ gpd;g[ 30/01/2016k; njjp vjphpapd; mz;zd;fs; vd;ida[k; vjphpiaa[k; fhiy 7/00 kzpastpy; Tl;of;bfhz;L ngha; njd;fdpf;nfhl;il brf; ngh!;lo; y; tpl;Ltpl;lhh;fs;/ gpd;dh; nghyPrhh; te;J tprhhpj;jhh;fs; vd;id njd;fdpf;nfhl;il muR https://www.mhc.tn.gov.in/judis Page 9 of 14 Crl.A.No.503 of 2018 kUj;Jtkidapy; itj;J ghpnrhjpj;jhh;fs;”/
14. She deposed that for three days they stayed together in a same room and the accused did not do anything. However, after knowing the complaint, the accused insisted the victim girl to have sexual intercourse, so that, the Police officials will have an opinion that they are husband and wife. Though, she deposed that she had sexual intercourse with the accused, it is not corroborated by the medical report, since P.W.13 categorically stated as follows, “ Minimal congestion present around the 4'o clock to 5'o clock position of hymen with minimal superficial there present 4'o clock to 5'o clock position. No other external injuries noted. Vaginal smear two slides, vaginal wash two container, public hair clippings collected and sent for lab through proper channel, urine pregnancy test is negative last menstrual period is 17.10.2016”.
15. Therefore, there is no clinching evidence to show that the accused had penetrative sexual assault on the victim. It seems she deposed before the Court on instructions of her parents. In fact, now she got married and she is living with her husband. Therefore, the prosecution failed to prove the charge under Sections 3 r/w 4 of POCSO Act, 2012 beyond any doubt. https://www.mhc.tn.gov.in/judis Page 10 of 14 Crl.A.No.503 of 2018
16. Insofar as the charge under Section 366 of IPC is concerned, admittedly the victim was a minor at the time of occurrence. On 25.01.2016, on the instigation of the accused and on the compulsion of the accused, she eloped with the accused. Though, she was consented to elope with the accused, she was minor. Thereafter, they went to Malur and stayed in a house of a friend of the accused for three days. Therefore, the prosecution proved the charge under Section 366 of IPC and it does not warrant any interference by this Court.
17. However, the learned counsel for the appellant submitted that the appellant had already undergone incarceration for a period of more than five months and as such he prayed for reduction of sentence.
18. In view of the above, the conviction and sentence imposed on the appellant for the offence punishable under Sections 3 r/w 4 of POCSO Act, 2012 is hereby set aside. Insofar as the offence under Section 366 of IPC is concerned, while confirming the conviction, the sentence imposed on the appellant alone is reduced to the period which was already undergone by the appellant.
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19. Accordingly, this Criminal Appeal is partly allowed.
24.11.2022 Speaking order/Non-speaking order Index :Yes/No Internet :Yes/No mn https://www.mhc.tn.gov.in/judis Page 12 of 14 Crl.A.No.503 of 2018 To
1. The Sessions Judge, Fast Track Mahila Court, Krishnagiri,
2. The Inspector of Police, Denkanikottai Police Station, Denkanikottai, Krishnagiri District.
3. The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis Page 13 of 14 Crl.A.No.503 of 2018 G.K.ILANTHIRAIYAN, J.
mn Crl.A.No.503 of 2018 24.11.2022 https://www.mhc.tn.gov.in/judis Page 14 of 14