Madras High Court
Mohanavel vs State Rep. By on 20 September, 2021
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.364 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.09.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.364 of 2020
Mohanavel .. Appellant
.Vs.
State rep. by
Inspector of Police,
All Women Police Station,
Sankagiri, Salem District,
Crime No.21 of 2018. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to set aside the judgment dated 17.08.2020, passed in New
Spl.S.C.No.161 of 2019 (Old Spl.S.C.122 of 2018) by learned Sessions
Judge, Special Court for Exclusive Trial of cases under POCSO Act,
Salem.
For Appellant : Mr.S.N.Arunkumar
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
JUDGMENT
This Criminal Appeal has been filed against the judgment dated 17.08.2020 passed in Spl.S.C.No.161 of 2019 by the learned Sessions Judge, Special Court for Exclusive Trial of cases under POCSO Act, Salem.
https://www.mhc.tn.gov.in/judis Page No.1/14 Crl.A.No.364 of 2020
2.The case of the prosecution is that at the time of occurrence, the victim, who was aged about 15 years was studying 9th standard. The accused was working in a factory, which is situated nearby the house of the victim child. Whenever the victim child go to school, the appellant with sexual intention used to follow her regularly in person and expressed his love and when the victim child refused, he compelled her to love him and thereby, he has committed an offence under Section 11(iv) punishable under Section 12 of POCSO Act. On 31.05.2018 at about 5.00 p.m the appellant abducted the victim child under the guise of love and promise to marry her and removed the custody of the minor child from lawful guardians, with an intent to have illicit intercourse and took her to Magudanchavadi. Thereafter, the appellant took the victim child to his relative house, which is situated at Rasipuram and when his relative refused to allow them to stay in their house, the appellant and the victim child spent the day time at Rasipuram Bus Stand, thereafter, they went to their respective home. Thereby, the appellant has committed the offence under Sections 363 and 366 IPC. Hence, P.W.1/father of the victim child preferred a complaint/Ex.P1 against the accused/appellant.
3.The respondent police, originally registered a case in Crime https://www.mhc.tn.gov.in/judis Page No.2/14 Crl.A.No.364 of 2020 No.21 of 2018 against the appellant for the offence under Sections 363 and 366 IPC, subsequently, altered into Sections 363 and 366 IPC and Section 11(4) which is punishable under Section 12 of The Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO Act' for the sake of convenience]. After investigation, they have laid a charge sheet before the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Salem. The offence is against a child which falls under the definition of Section 2(1)(d) of POCSO Act and the learned Sessions Judge, taken cognizance of the case originally in Spl.S.C.No.122 of 2018, subsequently, renumbered as Spl.S.C.No.161 of 2019. On completion of the formalities, the Sessions Judge framed charges against the appellant for the offences punishable under Sections 12 of POCSO Act and 363 and 366 of IPC.
4.In order to prove the case of the prosecution before the trial Court, on the side of the prosecution as many as 10 witnesses were examined as P.W.1 to P.W.10 and marked 11 documents as Ex.P1 to Ex.P11. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses https://www.mhc.tn.gov.in/judis Page No.3/14 Crl.A.No.364 of 2020 were put before the accused/ appellant and questioned under Section 313 of Cr.P.C and he denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, no oral and documentary evidence was produced.
5.The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the accused/appellant is guilty for the following offences :
(i) Under Section 363 IPC, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of one month.
(ii) Under Section 366 IPC, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of three months.
(iii) Under Section 11(iv) which is punishable under Section 12 of POCSO Act, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of https://www.mhc.tn.gov.in/judis Page No.4/14 Crl.A.No.364 of 2020 Rs.10,000/-, in default, to undergo simple imprisonment for a period of three months. Challenging the said conviction and sentences the appellant is before this Court.
6.The learned counsel for the appellant would submit that there is no specific allegation made against the appellant. P.W.1/father of the victim child has given a false complaint against the appellant. The Investigating Officer had not conducted fair investigation and registered the case against the appellant and also laid the charge sheet before the trial Court. The trial Court also failed to appreciate the entire materials and wrongly convicted and sentenced the appellant. When the victim child was produced before the learned Judicial Magistrate for recording her statement under Section 164 Cr.P.C., she stated that she voluntarily went with the appellant to Rasipuram, thereafter, on 01.06.2018, the respondent police secured her based on the complaint given by P.W.1. The statement of the victim child is corroborated with her evidence as P.W.2 during trial. Therefore, the prosecution has not established that without the consent of the victim child, her custody was removed by the appellant from her lawful guardians. Since there was no forceful sexual https://www.mhc.tn.gov.in/judis Page No.5/14 Crl.A.No.364 of 2020 intercourse, POCSO Act would not attract. The eye witnesses, who were examined by the prosecution are interested witnesses and none of them spoken about kidnapping and sexual assault made by the appellant. Therefore, the prosecution has failed to prove its case beyond all reasonable doubts. The trial Court, erroneously appreciated the iota of evidence and convicted and sentenced the appellant only on the ground of assumption and sympathy. Therefore, the conviction and sentence passed by the trial Court is liable to be set aside. In support of his contention, the learned counsel for the appellant relied upon the judgment in Varadharajan Vs. State of Madras reported in [1965 AIR (SC) 942].
7. The learned Government Advocate (Crl.Side) for the respondent would submit that the age of the victim child was 15 years, at the time of the occurrence and she was studying 10th standard. The appellant followed and expressed his love and when the victim child refused the same, he compelled her to accept his love proposal. Subsequently, the appellant took the victim child from the lawful guardians of her parents without their consent and went to Rasipuram to his relative house. Since https://www.mhc.tn.gov.in/judis Page No.6/14 Crl.A.No.364 of 2020 the victim child is a minor, the relatives did not provide accommodation to them. Thereafter, both the appellant and the victim child stayed in Rasipuram Bus Stand and went to their respective homes. He would further submit that at the beginning, the victim child refused to accept his love proposal, however, the appellant frequently followed her and compelled her to accept his love and hence, Section 11(iv) which is punishable under Section 12 of POCSO Act would attract. Since the age of the victim child was 15 years and the appellant had taken the victim child from the custody of her lawful guardians without their consent and hence, Section 361 which is punishable under Section 363 IPC would attract. Since the appellant forcefully abducted the victim child from the custody of her lawful guardians, under the guise of love and promise to marry her, with an intent to have illicit intercourse and took her to Rasipuram, he has committed the offence under Section 366 IPC. The trial Court rightly appreciated the entire evidence, convicted and sentenced the appellant for the charged offence and hence, there is no merit in this appeal and the same is liable to be dismissed.
8.Heard the learned counsel for the appellant and the learned https://www.mhc.tn.gov.in/judis Page No.7/14 Crl.A.No.364 of 2020 Government Advocate (Crl.Side) for the respondent and also perused the materials available on record.
9.This Court, being an Appellate Court, is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give an independent finding.
10.In order to substantiate the charges against the appellant on the side of the prosecution totally 10 witnesses were examined and 11 documents were marked. Out of 10 witnesses, the victim child was examined as P.W.2 and she has clearly stated that she voluntarily went along with the appellant to Rasipuram. Though the learned counsel for the appellant would submit that there is a contradiction between the evidence of the victim child during trial and her statement recorded under Section 164 Cr.P.C and she has not stated that the appellant forcefully taken her to Rasipuram. Therefore, none of the charges could be made out against the appellant. A reading of the entire materials, it reveals that in order to prove the age of the victim child, the prosecution exhibited Ex.P5/School Certificate of the victim child, which clearly shows that the https://www.mhc.tn.gov.in/judis Page No.8/14 Crl.A.No.364 of 2020 date of birth of the victim child is 15.12.2003, whereas, the date of occurrence is 31.05.2018. Therefore, at the time of occurrence, the age of the victim child was 14 years.
11.From the evidence of the victim child/P.W.2, during trial as well as her statement recorded under Section 164 Cr.P.C/Ex.P2 clearly show that at the time of occurrence, the victim child was a minor and not completed the age of 18 years. In order to prove the age of the victim child the prosecution exhibited Ex.P5/School Certificate and the Headmistress of the School, in which, the victim child studied was examined as P.W.8.
12.On a combined reading of the evidence of P.W.1/father of the victim child, P.W.3/Aunt of the victim child, P.W.8/Headmistress and Ex.P5/School Certificate, it reveal that the age of the victim was only 14 years, at the time of occurrence, therefore, the victim is a child and it falls under the definition of 2(1)(d) of POCSO Act. This Court finds that the prosecution has proved the age of the prosecutrix at the time of occurrence was 14 years.
https://www.mhc.tn.gov.in/judis Page No.9/14 Crl.A.No.364 of 2020
13.As far as charges under Section 363 IPC is concerned, the victim child, while recording her statement under Section 164 Cr.P.C has clearly stated that the appellant regularly followed her and also expressed his love. Since the other persons doubted the relationship, the appellant took the victim child to Rasipuram, which clearly shows that the appellant took custody of the victim child from her lawful guardians without their consent and hence, the offence committed by the appellant falls under Section 361 which is punishable under Section 363 IPC.
14.As far as the offence under Section 366 IPC is concerned, the victim child has clearly deposed that she was not forcibly taken by the appellant for the purpose of marriage or for any intention of sexual intercourse and hence, this Court finds that Section 366 would not attract.
15.As far as the offence under Section 11(iv) which is punishable under Section 12 of POCSO Act is concerned, the victim child has clearly deposed that while she was going to school, the appellant regularly followed her and expressed his love and when she refused the https://www.mhc.tn.gov.in/judis Page No.10/14 Crl.A.No.364 of 2020 same, the appellant compelled her to accept his love proposal and hence, Section 11(iv) which is punishable under Section 12 of POCSO Act would attract.
16.Considering the facts and circumstances, this Court is of the view that the judgment cited by the learned counsel for the appellant is not applicable to the case on hand. In the present case, the victim child has clearly stated during trial and in her statement recorded under Section 164 Cr.P.C that she was 14 years at the time of occurrence and the appellant took her from the lawful custody of her parents, without their consent to Rasipuram.
17.Under these circumstances, this Court, being an Appellate Court as a fact finding Court re-appreciated the entire evidence independently, especially P.W.2/victim child and arrived at just conclusion that the prosecution has proved its case for the offences punichable under Section 363 IPC and Section 11(iv) which is punishable under Section 12 of POCSO Act, however, failed to prove the offence under Section 366 IPC.
https://www.mhc.tn.gov.in/judis Page No.11/14 Crl.A.No.364 of 2020
18.In the light of the above, this Court is of the considered view that the conviction and sentence imposed on the appellant for the offence under Section 366 IPC is set aside and the conviction and sentence imposed on the appellant for the offences punishable under Section 363 IPC and Section 11(iv) punishable under Section 12 of POCSO Act are hereby confirmed.
19.With the above modification, this Criminal Appeal is partly allowed.
20.09.2021 ms Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order https://www.mhc.tn.gov.in/judis Page No.12/14 Crl.A.No.364 of 2020 To
1.The Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Salem.
2.The Superintendent, Central Prison, Salem.
3.The Inspector of Police, All Women Police Station, Sankagiri, Salem District.
4.The Public Prosecutor, High Court, Madras.
5.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
https://www.mhc.tn.gov.in/judis
Page No.13/14
Crl.A.No.364 of 2020
P.VELMURUGAN, J.
ms
CRL.A.No.364 of 2020
20.09.2021
https://www.mhc.tn.gov.in/judis
Page No.14/14