Madras High Court
P.Prakash vs The State By
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
Crl.A.No.858 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
28.09.2019 19.10.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
Crl.A.No.858 of 2016
and Crl.M.P.No.14012 of 2016
P.Prakash ... Appellant / Accused
-vs-
The State by
Inspector of Police,
All Women Police Station,
Gobichettipalayam,
Erode District.
(Crime No. 4 of 2016) ... Respondent / Complainant
Prayer: Petition filed under Section 374 of Cr.P.C, seeking to set aside the
conviction and sentence imposed on the Appellant by the judgment dated
17.11.2016 passed in Special S.C.No.13 of 2016 on the file of the Sessions
Court, Mahalir Court, Mahalir Fast Track Court, Erode and thus render justice.
For Petitioner : Mr.I.C.Vasudevan
For Respondent : Mr.C.Raghavan
Govt. Advocate (Crl.Side)
*****
JUDGMENT
The Appellant herein, who is the Sole Accused in Special S.C. No. 13 of 2016 on the file of the Sessions Court (Mahalir Fast Track Court), Erode, stands convicted by the Trial Court for offences under Section 366 IPC and Sections 6 1/14 http://www.judis.nic.in Crl.A.No.858 of 2016 r/w 18 of The Protection of Children from Sexual Offences Act, 2012 (in short 'the POCSO Act, 2012) as follows:
Sl.No. Offence Conviction and Sentence
1. Section 366 IPC To undergo Ten Years Rigorous Imprisonment with fine of Rs.2,000/- in default to pay fine to undergo Simple Imprisonment for Two Years.
2. Sections 6 r/w 18 of the Act, To undergo Seven Years Rigorous Imprisonment 2012 with fine of Rs.2,000/- in default to pay fine to undergo Simple Imprisonment for One Year.
Aggrieved by the order of the the Sessions Court (Mahalir Fast Track Court), Erode, the Appellant has preferred the present Criminal Appeal before this Court.
2. The case of the prosecution in brief is that P.W.1, who is the mother of the victim minor girl by name Revathy (name changed) (hereinafter referred to as 'the Victim Minor Girl', had lodged a complaint on 27.05.2016 against the accused / Appellant herein, stating that on 27.05.2016 at about 17:00 hours, while her 2nd daughter / P.W.2 aged about 12 years, was playing hide and seek game with her friends, the accused forcibly took her to his house and committed a sexual assault on the Victim Minor Girl, which resulted in registration of a case in Crime No.4 of 2016 on the file of the Inspector of Police, All Women Police Station, Gobichettipalayam, Erode District for the 2/14 http://www.judis.nic.in Crl.A.No.858 of 2016 offences afore-stated.
3. After investigation, a charge sheet was laid before the concerned Court and the prosecution, in order to substantiate the offences against the accused person, has examined 18 witnesses, marked 26 documents and exhibited one Material Object and on the side of the accused, neither witnesses were examined nor documents marked. The accused was questioned under Section 313 Cr.P.C. and he denied the charges levelled against him. The Trial Court, after analyzing the evidence let in by the prosecution, found him guilty and convicted the Appellant as stated supra.
4. The learned counsel appearing for the Appellant / accused has submitted that the version of the victim minor girl is a tutored one and the complaint had been lodged with a delay of five hours, especially when the place of occurrence was just at the distance of 15 kms and the reason for such delay has not been explained properly. The main allegation against the Appellant was that he had sexually abused the victim minor girl, but, however, the victim girl, in her deposition, had not stated that the Appellant committed forcible sexual intercourse with her and therefore, there is no prima facie case made out in respect of the offences under Section 6 r/w 18 of the Act, 2012. 3/14 http://www.judis.nic.in Crl.A.No.858 of 2016
5. The learned counsel appearing for the Appellant / accused has further submitted that the actual age of the victim minor girl has been suppressed, as she is fully a grown-up girl and therefore, the provisions of the POCSO Act, 2012 itself will not get attracted in the present case. Even if it is taken that the Appellant had attempted to commit rape upon the victim minor girl, there was no medical evidence to the effect that the victim minor girl sustained any bodily injury, while protecting her from such mishap. In support of his submission, he strongly relied upon the Cross Examination of P.W.4 / Dr.Malarvizhi and therefore, it was submitted that there is no attempt of abduction of the victim minor girl.
6. The learned Government Advocate (Crl.Side) has strenuously contended that the guilt of the accused / appellant has been proved by the prosecution through oral and documentary evidence without any room for doubt. The Investigating Officer had rightly registered a case under the provisions of the POCSO Act, 2012, as the Doctor, who was examined as P.W.5 had clearly deposed that the age of the victim minor girl would be between 15 and 17, which was corroborated with the deposition of P.W.8 / Tmt.Vasanthamani, Headmistress of the school and thus, it was proved by the prosecution beyond doubt that the victim minor girl was a minor at the time of 4/14 http://www.judis.nic.in Crl.A.No.858 of 2016 occurrence.
7. The learned Government Advocate (Crl.Side), by drawing the attention of this Court to the report dated 08.06.2016 of the Forensic Sciences Department, opined by P.W.9, has further contended that the prosecution version of the offence of sexual abuse committed on the Victim Minor Girl has been duly supported by the report of P.W.9, inasmuch as the semen of the accused was detected on the churidhar of the Victim Minor Girl and had the accused not attempted to commit the offence of sexual assault, there is no possibility of his semen being found on the said material object. Hence, it was prayed by the learned Government Advocate (Crl.Side) that the judgment of the Mahila Court does not warrant any interference by this Court and the same has to be upheld at the threshold.
8. This Court has carefully considered the submissions made on either side and perused the materials available on record.
9. The foremost attack on the judgment of the Trial Court by the accused was that the delay of about 5 hours in respect of lodgment of complaint had not been duly taken into account by the Trial Court. The offence of this nature involving the life of a minor girl cannot be slightly taken, 5/14 http://www.judis.nic.in Crl.A.No.858 of 2016 as in the case of other offences, like murder, attempt to murder, robbery, etc and moreover, the Victim Girl had reported the misbehaviour of the accused to her mother / P.W.1 and she had to consult her husband and other relatives with a view to safeguard the interest of her daughter, before taking any decision in this regard, as any wrong decision would spoil the future of her daughter. The delay in lodging the FIR, which is not so inordinate, has been satisfactorily explained by P.W.1 and therefore, there is no force in the submission of the learned counsel for the accused that the F.I.R. in this case is either ante-timed or the prosecution has failed to explain the delay in lodging the F.I.R.
10. The Hon'ble Supreme Court, in the case of State of Himachal Pradesh Vs. Prem Singh, reported in AIR 2009 SC 1010, had considered the issue of delay in respect of offences involving sexual assault at length and observed as under:-
"So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR."6/14
http://www.judis.nic.in Crl.A.No.858 of 2016
11. In this regard, it is worthwhile to refer to the deposition given by her mother / P.W.1, who, in her chief examination had categorically stated as follows:
“///////ehd; vd; fzth; khhpag;gDf;F nghd; bra;J brhd;ndd;/ vd; fzth; te;jt[ld; vd; kfs; vd;dplk; brhd;d tpgu';fis ehd; brhd;ndd;/ mjd; gpwF ehd; tPl;oy; g[fhh; vGjpf;bfhz;L ehd;. vd; fzth;. vd; kr;rhz;lhh; kidtp njd;bkhHp. vd; kfs; U:gpzp Mfpnahh; nfhgp midj;J kfsph; fhty; epiyak; brd;nwhk;/ ehd; g[fhh; bfhLj;njd;.....” It was further deposed by P.W.1 in her cross examination as under:
“///////bghJkf;fs; epiwa ngh; te;jhh;fs;/ ngrp. Tl;lk; To KobtLj;j gpwF fhty; epiyaj;jpw;F brd;wjhy; fhyjhkjk; Vw;gl;lJ///////” A reading of the depositions given by P.W.1 unearths the fact that the delay in lodging the complaint has been satisfactorily explained by P.W.1, even though such delay need not be taken into account by this Court in a case of this nature in the light of the judgment of the Apex Court (stated supra).
Hence, the submission made in respect of delay stands rejected by this Court.
12. Secondly, it was stated by the accused that the victim minor girl was a grown up girl at the time of occurrence and her actual date of birth was suppressed with a view to book the accused under the POCSO Act, 2012. In 7/14 http://www.judis.nic.in Crl.A.No.858 of 2016 order to ascertain the veracity of the said submission, this Court has carefully gone through the report dated 28.05.2016 exhibited as Ex.P.8, given by P.W.5/ Dr.Sivakumar in respect of his radiological assessment of age, in which it has been stated as follows:
"The bone age of the above mentioned person is likely to be above 15 and below 17 years based on the findings observed in the bones were radiographed.” The Trial Court, in order to corroborate the above report, had rightly examined the said Doctor as P.W.5, who, in his chief examination, had stated as follows:
“///////nkw;fz;l vYk;gf [ spd; tsh;r;rpapid bghWj;J mtUf;F taJ 15f;F nky; vd;Wk; 17f;F fPH; vd;Wk; fUj;Jiu tH';fp rhd;W tH';fpa[s;nsd;/ ehd; tH';fpa taJ eph;zar; rhd;W m/j/rh/M/8 MFk;/ mtUf;F vLf;fg;gl;l Ez;fjph; gl';fs; (5 vz;zpf;if) m/j/rh/M/9 thpir MFk;/ fhty; Ma;thsh; vd;id tprhhpj;jhh;.....” In order to strengthen the case, P.W.8 / Headmistress of the school, in which the victim minor girl studied was also examined, who had given a certificate / Ex.P.16, stating that the age of the victim girl was 17.07.2004.
Further, the birth certificate of the victim minor girl, issued by the Department of Municipal Administration & Water Supply dated 30.05.2016, marked as Ex.P.2 was also adduced to reveal that her date of birth was 8/14 http://www.judis.nic.in Crl.A.No.858 of 2016 17.09.2004.
13. From the above material documents, it was apparently proved on record that the victim minor girl was not a matured / grown up girl at the time of incident and she had not even completed 13 years of age. Thus, there is no substance in the plea raised by the accused with regard to the age of the girl.
14. The learned counsel for the Appellant placed much reliance on the statement made by P.W.4 / Dr.Malarvizhi that in the event of any physical violence, there must have been bodily injury on the person, who is subjected to such violence, in absence of which, it cannot be said that the victim minor girl was subjected to sexual harassment. It is a highly fallacious argument advanced by the learned counsel for the accused inasmuch a minor girl did not even know as to what for she is being pulled in and touched and therefore, an inference can be drawn that there cannot be much resistance on the side of a minor girl and in the absence of any opposition, naturally, there is no possibility of sustaining injury on the body. Mere absence of bodily injury cannot be a ground to say that there is no offence at all, especially when it was reported through Ex.P.18 that semen was detected on the afore-stated churidhar. Thus, the version of the victim minor girl has been duly supported 9/14 http://www.judis.nic.in Crl.A.No.858 of 2016 by the report of the Forensic Sciences Department, as the victim minor girl in her 164 statement before the Chief Judicial Magistrate, Erode had clearly stated that when the accused had touched her, some liquid like water fell on her chudidhar pant and on seeing the same, she had run out of the house and the said deposition cannot be said to be a tutored one. Even though this Court thought of incorporating the deposition of the girl in the order, in the interest of the child and with a view to avoid inclusion of obscene words contained in the deposition, this Court has refrained itself from extraction of those contents.
15. Moreover, on the side of the accused, no iota of evidence has been furnished to show that he was falsely implicated in this case owing to the previous enmity and a mother cannot play with the life of her daughter in order to gain financially or any other thing. The problem of sexual harassment relates to the roles which are attributed to men and women in social and economic life, which, in turn, directly or indirectly, affects women's positions in the labor market.
16. The contention put forth by the learned counsel for the Appellant was that the provisions of Sections 6 and 18 of the POCSO Act, 2012 have been 10/14 http://www.judis.nic.in Crl.A.No.858 of 2016 wrongly invoked, as, even as per the version of the victim minor girl, there was no penetration into the private part of the girl. In order to consider the said contention, it is mandatory for this Court to have a glance at the above provisions, which read thus, “6. Punishment for aggravated penetrative sexual assault-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
18. Punishment for attempt to commit an offence.-
Whoever attempts to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.”
17. A conjoint reading of both sections reveals that not only sexual intercourse, but also any inducement or attempt to sexually abuse a child itself leads to commission of the offence, punishable under the POCSO Act, 2012 and this Courts finds no infirmity with the prosecution case in registering the case under the provisions of Sections 6 and 18 of the POCSO Act, 2012. 11/14 http://www.judis.nic.in Crl.A.No.858 of 2016
18. It is relevant to point out here that when a perpetrator abuses a child for his sexual thirst, that can have lasting effects on the victim for years and the child sexual abuse does not implicitly need to include physical contact alone between a perpetrator and a child and it includes the form of abuse, such as exhibitionism or exposing oneself to a minor, fondling, intercourse, masturbation in the presence of a minor or forcing the minor to masturbate, obscene phone calls, text messages or digital interaction, producing, owning, or sharing pornographic images or movies of children, sex of any kind with a minor, including vaginal, oral or anal and any other sexual conduct that is harmful to a child's mental, emotional or physical welfare. Therefore, the defence taken by the learned counsel for the Appellant to that effect is rejected.
19. Now-a-days, several couples are facing infertility problem in India, on account of which, they are longing for a child and when that child is abused and assaulted sexually, it will amount to removal of a bud from a plant to prevent flower and fruit from forming. When parents, who discover that their child has been abused often find themselves experiencing a range of feelings from confusion and anger to horror, disgust, grief and betrayal and many will feel frustrated and helpless and some find themselves feeling a sense of 12/14 http://www.judis.nic.in Crl.A.No.858 of 2016 numbness.
20. In the present case on hand the medical evidence on record fully corroborates with the ocular testimony, which has more evidentiary value and the recorded conviction of the appellant is based upon cogent evidence and the sentence of imprisonment awarded to him by the trial court is also supported by relevant considerations. In addition to the above, the accused does not deserve for any leniency from this Court, as the acquittal of a person like the accused will tantamount to posing a threat to female children and there may be a possibility of losing their virginity at the young age itself.
21. In view of the above findings, this Court is of the view that the present Criminal Appeal is liable to be dismissed. Accordingly, the Criminal Appeal is dismissed, thereby confirming the conviction and sentence awarded vide judgment dated 17.11.2016 passed in Special S.C.No.13 of 2016 by the Sessions Court, Mahalir Court, Mahalir Fast Track Court, Erode. Consequently, connected miscellaneous petition is closed.
19.10.2019 Index: Yes Internet: Yes 13/14 http://www.judis.nic.in Crl.A.No.858 of 2016 ar S.VAIDYANATHAN, J.
ar To:
1. Sessions Judge, Mahalir Court (Mahalir Fast Track Court), Erode.
2. The Inspector of Police, All Women Police Station, Gobichettipalayam, Erode District.
3. The Public Prosecutor, High Court, Madras
4. The Section Officer, V.R.Section, High Court, Madras.
PRE-DELIVERY JUDGMENT IN Crl.A.No.858 of 2016 19.10.2019 14/14 http://www.judis.nic.in