Madras High Court
Unknown vs Siva Kumar on 27 October, 2021
Author: P.Velmurugan
Bench: P.Velmurugan
Crl. A.No. 363 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.09.2021
Pronounced on : 27.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl. A.No. 363 of 2021
State rep. by
The Inspector of Police,
All Woman Police Station,
Kangeyam,
Tiruppur District.
(Crime No.5 of 2018) ... Appellant/Complainant
-Vs-
Siva Kumar ... Respondent/Accused
PRAYER: Criminal Appeal is filed under Section 378(i) of the Code of Criminal
Procedure, to set aside the judgment of acquittal passed by the learned Sessions
Judge, Mahalir Neethimandram (Fast Track Mahila Court), Tiruppur, in Special
S.C.No.8 of 2019 dated 15.10.2019.
For Appellant : Mr.S.Sugendran
Government Advocate (Crl. Side)
For Respondent : Mr.N.Manokaran
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Crl. A.No. 363 of 2021
JUDGMENT
This Criminal Appeal has been filed against the judgment of acquittal passed by the learned Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Tiruppur, made in Special S.C.No.8 of 2019 dated 15.10.2019.
2. The appellant police registered a case against the respondent/accused in Crime No.5 of 2018 for the offence under Sections 5(j)(ii), 5(l) and 5(n) punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') and after completing the investigation, laid a charge sheet before the Magalir Neethimandram (Fast Track Mahila Court), Tiruppur. Since the offence alleged in this case was against a child, the learned Sessions Judge, after completing the formalities, framed the charges against the respondent for the offence under Sections 5(j)(ii), 5(l) and 5(n) punishable under Section 6 of POCSO Act.
3. Before the trial Court, in order to prove the case of the prosecution, as many as 8 witnesses were examined as P.W.1 to P.W.8 and 14 documents were 2/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 marked as Ex.P1 to Ex.P14. Besides, 2 material objects were exhibited as M.O.1 and M.O.2. After completing the examination of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses, were put before the respondent by questioning under Section 313(1)(b) Cr.P.C., and he denied the same as false and pleaded not guilty. On the side of the defence, one witness was examined as D.W.1 and two material objects were exhibited.
4. On completion of trial, after hearing the arguments advanced on either side and also considering the material facts, the trial Court held that the prosecution has not proved the case beyond all reasonable doubt and the benefit of doubt was extended in favour of the respondent/accused and therefore the respondent was found not guilty and acquitted him from the above said charged offences. Challenging the said judgment of acquittal passed by the learned Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Tiruppur, the State has filed the present appeal before this Court.
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5. The learned Government Advocate (Crl. Side), who is appearing for the appellant submitted that the prosecution has proved its case beyond all reasonable doubt against the respondent, however, the trial Court has completely ignored the evidence of the witnesses, viz, P.W.1, P.W.3, P.W.4, P.W.5 and P.W.6. He would further submit that the trial Court did not appreciate the evidence of the prosecution, particularly the evidence of P.W.1/the victim child, who has spoken about the entire occurrence and the offence committed by the respondent and the same was corroborated by P.W.2 and P.W. 6.
6. P.W.1, who is the victim, categorically stated that the respondent has committed the penetrative sexual assault, but the same was ignored by the trial Court and the trial Court failed to invoke the presumption under Section 29 of the POCSO Act. The age of the victim child was 16 years at the time of the occurrence and she has narrated the entire facts which were corroborated by the medical evidence, scientific evidence and the report of DNA Test. Even in the previous statement of the victim girl recorded by the Judicial Magistrate, she has clearly mentioned the name of the respondent, however, the trial Court failed to 4/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 appreciate the same. The trial Court failed to appreciate the evidence of P.W.5-Mahalakshmi, the Deputy Director of the Forensic Science Laboratory, Chennai, who examined the fetus of victim and submitted DNA analysis report by fixing the accused as biological father of the fetus of the victim. The DNA Test report was marked as Ex.P.7 through P.W.5, which clearly shows that the respondent/accused is the biological father. But, the respondent submitted that the victim is a consent party. Even assuming that the victim has given consent for having sexual intercourse, since the age of the victim is 16 years, she is a child under the definition of Section 2(l)(d) of the POCSO Act and therefore her consent is immaterial. The respondent has not rebutted the presumption under Section 29 of the POCSO Act, which stood against him and has not examined any witness to rebut the presumption except some bald suggestions. The reasons for not considering the evidence of P.W.1, P.W.3 and P.W.5 have not been furnished by the trial court.
7. Further, the trial Court has not furnished any reason as to how the presumption was rebutted by the respondent and as to why such a false case has been foisted against the accused and why the child has given evidence against the 5/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 accused. In cases of this nature, there cannot be any direct independent witness for penetrative sexual assault. The evidence of the victim child is very clear that the accused has committed penetrative sexual assault, due to which, she became pregnant. Due to some medical reasons, the fetus was aborted. The fetus of P.W.1 was also sent to Forensic Lab for Chemical Analysis and DNA sample was collected from the respondent and the victim child and were sent for medical examination. Subsequently, the report shows that the respondent/accused is the biological father of the fetus collected from the victim child.
8. Once the prosecution proved that the respondent/accused has committed penetrative sexual assault, there is a presumption under Section 29 of the POCSO Act. It is for the accused to rebut the presumption. But, in this case, the accused failed to rebut the presumption. The trial Court failed to consider the same and by taking note of some contradictions, came to the conclusion that the prosecution failed to prove its case beyond all reasonable doubt and acquitted the accused. The reason assigned by the trial court for acquittal is erroneous and no sound reason has been given by the trial court. Though the appellate Court is a final Court of fact finding, normally it will not interfere with the judgment of 6/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 conviction. If the appellate Court finds compelled reason and perversity in appreciation of evidence by the trial Court, it can always interfere with the finding of the trial Court.
9. In this case, the trial Court failed to appreciate the evidence, especially, the medical evidence and Forensic Lab report. The DNA Test Report clearly shows that the respondent is the biological father. The respondent/accused has not rebutted the said presumption in the manner known to law. Therefore the judgment of the trial court is liable to be set aside.
10. The learned counsel appearing for the respondent/accused would submit that there are material contradictions in the evidence of the victim. The victim has stated in her previous statement recorded by the Judicial Magistrate under Section 164 Cr.P.C., that when she was unconscious after taking food, the respondent has committed the offence, due to which, she became pregnant and only she came to know the same after three months, whereas, she has given evidence before the trial Court that the respondent has committed penetrative sexual assault on several occasions. Therefore there are contradictions in the 7/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 evidence of the victim and there is improvement and hence the evidence of the victim child is not cogent, consistent and not trustworthy. Therefore the trial Court rightly appreciated the evidence and came to the conclusion that the prosecution failed to prove the case beyond all reasonable doubt. The medical evidence is not a conclusive proof, which is only an opinion of the expert. In the absence of any other corroborative evidence of eyewitnesses, based on medical evidence alone, the conviction cannot be recorded. Even otherwise, the Forensic Report does not disclose that 100% the accused was the biological father of the fetus of the victim/P.W.1. As per the settled proposition, when two views are possible, the benefit of doubt should be extended to the accused. According to the learned counsel appearing for the respondent, the accused can be acquitted on that sole ground.
11. It is the further submission of the learned counsel appearing for the respondent that even the victim was given in marriage to some other person and in order to escape from the clutches of law from the prevention of the Child Marriage Act, a false case has been foisted against the respondent/accused. Even the respondent/accused is a brother in relationship of the victim and therefore he 8/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 cannot marry her and there is no corroborative evidence and hence the trial Court appreciated the available evidence and pointed out the contradictions and acquitted the accused. In the appeal against acquittal, the appellate Court can not interfere, unless any compelled circumstance warrants. In this case, the prosecution has not canvassed such compelled circumstances to reverse the findings of the trial Court and convict the respondent/accused. There is no perversity in appreciation of evidence and no merit in this appeal and the same has to be dismissed.
12. Heard the learned counsel appearing on either side and perused the materials available on record.
13. The case of the prosecution is that the victim child is aged about 14 years and at the time of occurrence, she studied 10th standard and was residing with her parents. The respondent is the younger brother of the wife of the victim's uncle. Prior to the occurrence, the respondent used to come to the victim's house often. At that time, the accused/respondent used to say to the victim child that both can get married, but the victim child refused. On 04.01.2018, the victim 9/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 child's parents went out to attend their work and the victim child was alone at her home. At that time, the respondent/accused went to the victim's house and made a false promise that he would marry the victim and knowing very well that the victim was a child, pushed the victim forcibly and had sexual intercourse with her. Later, when the victim was alone at home, the accused forcibly had sexual intercourse with P.W.1 for several times, due to which, the victim child became pregnant and thereby, committed the offences under Sections 5(j)(ii) , 5(l) and 5(n) which are punishable under Section 6 of the POCSO Act. The appellant/police has filed a charge sheet before the Special Court and after trial, the accused was acquitted. Therefore, the State has filed the present appeal before this Court.
14. This Court, being the appellate Court as a final Court of fact finding, has to independently re-appreciate the entire evidence and give an independent finding.
15.The trial Court framed the charges as stated above against the respondent/accused. In order to substantiate the above said charges, on the side of the prosecution, totally 8 witnesses were examined, 14 documents and 2 material 10/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 objects were exhibited.
16. The victim was examined as P.W.1 and she is also the defacto complainant in this case. After registering the case, the victim was also produced before the Judicial Magistrate to record the statement under Section 164 Cr.P.C., in which, she has stated that since she was unconscious after taking food, she did not know anything and later she came to know that during that time, the respondent committed penetrative sexual assault, due to which, she has become pregnant. During the trial, while she was examining as P.W.1, she has stated that the respondent is the brother of her aunt and he came to her house in the absence of her family members and by taking advantage of the aloofness of the victim child, he had committed penetrative sexual assault on her on several occasions, due to which, she became pregnant and subsequently, after coming to know that the respondent refused to marry her, she gave a complaint. Due to some medical ground, the fetus was aborted and the same was also sent to the Forensic Lab and DNA samples were also taken from the respondent and the victim child for DNA test and the same were sent to the lab for obtaining forensic opinion that the respondent is the biological father of the fetus of the victim child. P.W.5, who 11/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 gave the opinion, was also examined. Though there are contradictions between the previous statement given by the victim child and the evidence given by the victim before the trial Court, the victim child has clearly stated that due to some fear, she did not disclose the same.
17. In cases of this nature, normally, an Indian woman will not disclose the fact that she lost her virginity. In this case, since the victim child became pregnant and the respondent/accused refused to marry her, left with no other option, she gave the complaint. Initially, she hesitated to disclose the entire fact while giving previous statement under Section 164 Cr.P.C. before the learned Judicial Magistrate. Subsequently, before the trial Court while examining the victim girl, as a witness, she has narrated the entire occurrence, which was corroborated by the evidence of P.W.4 the Doctor and P.W.5, Deputy Director, Forensic Lab. The opinion given by P.W.5 was marked as Ex.P7 and he also clearly deposed that out of the alleles accounted, they would either in the biological mother or in the alleged accused/respondent and no other unaccounted allele is present in the fetus and P.W.5 has also deposed that on examination, it was found that there is a cumulative probability of paternity of the respondent for being the father of the 12/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 fetus.
18. It is seen that P.W.5 has further deposed that from the DNA samples of the respondent and the fetus, it was found that the gender of the fetus is female and the respondent is the biological father of the female fetus. Hence, it was concluded that as per DNA examination, the respondent is the biological father of the female fetus and the DNA report, which was sent to the Court was also marked as Ex.P.7.
19. A combined reading of the evidence of P.W.1 victim, P.W.4 Doctor and P.W.5 the Deputy Director of Forensic Science Laboratory, Chennai, and the DNA Report Ex.P.7, it is proved by the prosecution that the victim subjected to penetrative sexual assault. As per Ex.P1, date of birth of the victim is 13.03.2003 and the date of occurrence is 04.01.2018, the age of the victim was only 15 years at the time of occurrence and hence she is a child under the definition of Section 2(l)(d) of the POCSO Act. Therefore consent of the victim is immaterial and the DNA Report would clearly show that the respondent is the biological father of the victim's fetus and unless he had penetrative sexual assault on the victim, it is not 13/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 possible for the victim to become pregnant and it is proved that the respondent is the biological father of the victim's fetus. Therefore, he has committed penetrative sexual assault on the victim. The trial Court failed to appreciate the evidence of the victim and gave much importance to immaterial contradictions since there are some contradictions between the evidence of P.W.1/victim child and her previous statement. The trial Court observed that the report of the forensic lab is not a conclusive proof and therefore disbelieved the case of the prosecution by discarding the evidence of the victim, which resulted in acquittal of the respondent/accused.
20. Normally, in the cases of this nature, no corroborative independent evidence can be expected. The culprits would always take advantage of the aloofness of the children and taking advantage of their age and by making a false promise, satisfied their flesh thirst and subsequently, they would breach the promise and they fled away from the clutches of law. In this case, the victim child has clearly stated before the Court that the respondent committed the penetrative sexual assault on her. Even though in the previous statement, she has stated that she was unconscious at the time of the occurrence, as already stated, Indian 14/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 women would always be reluctant to disclose this type of offence openly either before the parents or before any other persons. Like that, in this case also the victim did not disclose the fact at earlier stage before the learned Judicial Magistrate, while recording statement under Section 164 Cr.P.C, in which she has stated that without her knowledge, the appellant had committed the offence and during unconscious stage, something had happened to her and subsequently, she came to know that the respondent has committed penetrative sexual assault on her. However, before the trial Court, while examining as a witness, she has stated that when she was alone in the house in the absence of any family members, the respondent/accused frequently came to her house and had penetrative sexual assault on her, due to which, she became pregnant. The victim/P.W.1 might have felt that if she reveals the fact that with her knowledge and consent only the respondent had intercourse with her, it would be ashame for her in the public view and hence she shown hesitation to reveal the fact at the earlier state i.e. during recording of statement under Section 164 Cr.P.C. before the Magistrate. 15/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021
21. Though on the side of the respondent/accused, one witness was examined as D.W.1 and produced two Material Objects as M.Os 1 and 2, that may not be a sole reason to discard the evidence of the victim, particularly, the respondent is a relative and known person to the victim and the respondent has not denied the fact of visiting the house of the victim. Further the Forensic Report, especially, the DNA Report clearly proved the fact that the respondent is the biological father of the fetus of the victim child.
22. As far as the contradictions pointed out by the learned counsel for the respondent and also by the trial Court is concerned, in the cases of this nature, they are not material contradictions and the same will not affect the case of the prosecution. The fact remains that the respondent is the relative of the victim and in the absence of family members, he used to visit the house of the victim and made a false promise that he would marry her and had sexual intercourse with her, due to which, the victim girl became pregnant. The medical evidence also proved that the victim got pregnant and due to some medical reason, she aborted the fetus and the same was sent to Forensic Lab for examination and DNA profile also collected from the respondent and the victim child, which was compared 16/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 with the DNA of the fetus.
23. P.W.5, the Deputy Director of Forensic Science Lab, after examination of the fetus, came to the conclusion that the respondent is the biological father of the fetus of the victim. Therefore the evidence of the victim cannot be thrown away and rejected totally. Since there are some contradictions, the evidence of the prosecution witnesses cannot be thrown away, when it has some significance. As already stated, in the cases of this nature, the victim child usually hesitate to disclose the intercourse to the parents or kith and kins. Like that, she did not disclose the fact initially and only after the knowledge of her pregnancy she revealed the same and fortunately, in this case, the fetus was collected from the victim child and sent it to Forensic Lab and subsequently, samples from the respondent and the victim were also collected for DNA test and they were compared and got the opinion, which proved that the respondent/accused is the biological father of fetus. Therefore once the prosecution proved that the accused committed penetrative sexual assault, the Court has to draw the presumption under Section 29 of the POCSO Act and it is for the accused to rebut presumption in the manner known to law.
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24. In this case, the accused made an attempt to rebut the presumption and he failed to rebut the same in the manner known to law. As an Appellate Court, this Court can re-appreciate the entire evidence independently and give a finding accordingly. This Court re-appreciated the entire materials and found that the prosecution has proved its case beyond all reasonable doubts. No doubt, normally in the appeal against acquittal, the Appellate Court will not interfere with the findings of the trial Court. However, if the appellate Court finds that there are compelled circumstances and there is perversity in appreciation of evidence by the trial Court, it can very well re-appreciate and give an independent finding. Accordingly, this Court re-appreciated the entire evidence and finds that there is perversity in appreciation of evidence and therefore there is a compelled circumstances to reverse the findings of the trial Court.
25. Since the case is filed for the offence under POCSO Act, this Court has to consider the age of the victim. According to the case of the prosecution, the victim is a child aged about 15 years at the time of occurrence. The prosecution proved the age of the prosecutrix through Ex.P1 Birth Certificate and also Ex.P14 18/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 School Certificate issued to the victim, in both of the documents, date of birth of the victim is mentioned as 13.03.2003 and the date of occurrence is 04.01.2018 and therefore, this Court finds that the prosecution proved the age of the prosecutrix and she is a child under the definition of Section 2(1)(d) of the POCSO Act. It is also to be noted that the Birth Certificate and School Certificate were not challenged by the respondent/accused and hence the age of the victim is only 15 years at the time of occurrence. It is settled proposition of law that any entry made in the public records are said to be genuine, unless the contrary is proved.
26. Further, from the evidence of P.W.1, P.W.3 and P.W.4 Doctor, who gave an opinion that the victim was pregnant and the evidence of P.W.5, the Deputy Director of Forensic Laboratory, Chennai, and Ex.P7 Series- the DNA report, this Court finds that the prosecution has proved its case beyond all reasonable doubts that the appellant has committed penetrative sexual assault on the victim and thereby he has committed the offence under Sections 5(j)(ii), 5(l) and 5(n), which are punishable under Section 6 of the POCSO Act.
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27. This Court finds that there is a perversity in appreciation of evidence by the trial Court and there are compelled circumstances to reverse the judgment of acquittal passed by the trial Court, since it is proved that the respondent has committed the offence punishable under Section 6 of the POCSO Act. This Court is of the considered view that the trial Court has erroneously given a finding that the prosecution has failed to prove its case beyond all reasonable doubt and as the appellate Court, this Court finds that the prosecution has proved its case beyond all reasonable doubt. The trial Court has failed to invoke presumption under Section 29 of POCSO Act and in this case the respondent/accused has not rebutted the presumption under Section 29 of the POCSO Act and hence this Court finds that the respondent has committed the offence as stated supra.
28. In the result, this Criminal Appeal is allowed and the judgment of acquittal passed by the learned Sessions Judge, Mahalir Neethimandram (Fast Track Mahila Court), Tiruppur, in Special S.C.No.8 of 2019 dated 15.10.2019, is hereby set aside. The respondent/accused is convicted for the offences under Sections 5(j)(ii), 5(l) and 5(n) which are punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012.
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29. Since it is found that the respondent is guilty for the offences under Sections 5(j)(ii), 5(l) and 5(n) punishable under Section 6 of Protection of Children from Sexual Offences Act 2012 and reversed the judgment of acquittal passed by the trial Court, for questioning of sentence, post this appeal on 29.10.2021 for appearance of the respondent/accused and questioning of sentence.
27.10.2021
Internet : Yes / No
Index : Yes / No
CM/csm
To:
1.The Sessions Judge, Mahalir Neethimandram
(Fast Track Mahila Court), Tiruppur,
2. The Inspector of Police,
All Woman Police Station,
Kangeyam,
Tiruppur District.
3. The Public Prosecutor
High Court, Madras
4. The Superintendent of Jail,
Central Prison, Coimbatore.
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Crl. A.No. 363 of 2021
P.VELMURUGAN, J.
CM/CSM
Pre-Delivery Judgment in
Crl. A.No. 363 of 2021
27.10.2021
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Crl. A.No. 363 of 2021
Crl.A.No.363 of 2021
P.VELMURUGAN, J.
Today, in compliance with the order of this Court dated 27.10.2021, the respondent/accused appeared before this Court and he has been questioned regarding the sentence to be imposed on him.
2 The respondent/accused accepted that he has committed the offence and further stated that his family members accepted to marry the victim and the family members of the victim only not accepted for the marriage. The respondent further prayed to show mercy and leniency in awarding sentence.
3 Considering the representations made by the respondent/accused and the age of the victim and the offence committed, which is grave in nature and since for the above offence under the POCSO Act, minimum punishment is imprisonment of 10 years, the respondent/accused is convicted for the offence under Sections 5(j)(ii), 5(l) and 5(n) punishable under Section 6 the POCSO Act 23/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 and the respondent/accused is sentenced to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs.5,000/- (Rupees Five thousand only), in default, to undergo rigorous imprisonment for a further period of one year.
29.10.2021 Note :
(i) Registry is directed to issue copy of the judgment by today itself (i.e, on 29.10.2021).
(ii) Appellant/Police is directed to secure the custody of the respondent/accused to execute the period of imprisonment.
Copy to: The Superintendent of Jail, Central Prison, Coimbatore. 24/25 https://www.mhc.tn.gov.in/judis/ Crl. A.No. 363 of 2021 P.VELMURUGAN, J.
cgi Crl.A.No.363 of 2021 29.10.2021 25/25 https://www.mhc.tn.gov.in/judis/