Madras High Court
Jaccob Melki Sadek vs State Rep.By Its on 24 November, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.938 of
2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2022
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.938 of 2022
Jaccob Melki Sadek .. Appellant
.Vs.
State Rep.by its
The Inspector of Police,
All Women Police Station,
Villupuram,
Crime No.28 of 2017. .. Respondent
Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure to set aside the judgment of conviction and sentence dated
15.06.2022 passed by the learned Sessions Judge, Special Court for
Exclusive Trial of Cases under POCSO Act, Villupuram in Spl.S.C.No.5
of 2020.
For Appellant : Mr.K.Ethirajulu
Legal Aid Counsel
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed against the judgment of conviction and sentence dated 15.06.2022 passed in Spl.S.C.No.5 of 2020 by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Villupuram.
https://www.mhc.tn.gov.in/judis Page No.1/19 Crl.A.No.938 of 2022
2. The case of the prosecution is that at the time of occurrence, the victim was aged about 16 years and studying in 12 th standard. Two years back from the date of occurrence, while the victim girl was going to School, the accused followed her and often talked to the victim and thus he developed contact with her and thereafter both of them loved each other. On 14.02.2017 at about 11.00 p.m., the accused called the victim to his sister's house, when no one was there in that house and the accused had committed penetrative sexual assault on the victim. Once again on 20.10.2017, the appellant called the victim to his friend's house and during that time he had committed penetrative sexual assault. Later, the accused enticed the victim and took her from Villupuram to Salem. Subsequently, the mother of the victim contacted them and brought back the victim to Villupuram. Thereafter, the de-facto complainant/mother of the victim filed a complaint against the appellant.
3. On the complaint given by the de-facto complainant/P.W.1, the respondent/Police registered a case in Crime No.28 of 2017 for the offence under Section 366(A) IPC and Section 4 of 'The Protection of Children from Sexual Offences Act, 2012' [hereinafter referred to as 'POCSO Act' for the sake of convenience] and the same was altered into https://www.mhc.tn.gov.in/judis Page No.2/19 Crl.A.No.938 of 2022 Section 366 IPC and Section 4 of POCSO Act. Thereafter, a charge sheet was laid before the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Villupuram for the offences under Section 366 IPC and Section 4 of POCSO Act and the same was taken on file in Spl.S.C.No.15 of 2018. When questioned, the accused denied the allegation. However, based on the materials, the trial Court framed the aforementioned charges against the appellant.
4. In order to prove its case before the trial Court, on the side of the prosecution, as many as 12 witnesses were examined as P.W.1 to P.W.12 and 14 documents were marked as Exs.P1 to P14 and no material object was marked.
5. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused and he was questioned under Section 313 Cr.P.C., wherein he had denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, no oral evidence was adduced and no documentary evidence was produced.
6.1 The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found https://www.mhc.tn.gov.in/judis Page No.3/19 Crl.A.No.938 of 2022 that the appellant is guilty of the charged offences and he was convicted and sentenced as follows :
(i) for the conviction under Section 366 IPC he was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of three months;
(ii) for the conviction under Section 4 of POCSO Act he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of three months;
(iv) the trial Court ordered that the sentences imposed on the appellant shall run concurrently and the period of detention already undergone by the appellant is to be set-off under Section 428 Cr.P.C.
(v) besides that the trial Court recommended the Government of Tamil Nadu to compensate the victim by paying a sum of Rs.5,00,000/-
from the victim compensation.
7. Challenging the said conviction and sentences, the appellant is before this Court.
8.1 The Legal Aid Counsel appearing for the appellant submitted https://www.mhc.tn.gov.in/judis Page No.4/19 Crl.A.No.938 of 2022 that the victim and the appellant fell in love and when the same came to the knowledge of the family members of the victim, they resisted the same, as both are from different community and also filed a false complaint against the appellant. Further, the parents of the victim forced her to give statement and as per their instructions, she gave statement. Subsequently, the victim committed suicide by consuming rat poison. Hence, the veracity of the complaint cannot be proved.
8.2 The learned counsel further submitted that the previous statement of the victim girl was recorded under Section 164 Cr.P.C by the learned Magistrate, which was marked as Ex.P7. and the Investigating Officer also recorded the statement of the victim girl under Section 161(3) Cr.P.C. In both statements, the victim girl has not stated that she was subjected to penetrative sexual assault by the appellant, however, she has stated that the appellant and herself stayed together in the night on the respective days. Since the victim has not specifically stated about the physical relationship between them, the provisions of the POCSO Act are not attracted. Further, the trial Court had given a finding that the previous statement recorded by the Investigating Officer shall be referred to as a dying declaration. Since the victim died before the trial, https://www.mhc.tn.gov.in/judis Page No.5/19 Crl.A.No.938 of 2022 based on the statements under Section 161 and 164 Cr.P.C., the trial Court cannot come to the conclusion that the appellant committed the charged offences and hence the conviction and sentences are liable to be set aside. He further submitted that the Doctor/P.W.9, who examined the victim girl has given a report stating that there was no injury found in the victim's private part and no evidence to show that the victim was involved in physical intercourse, recently.
8.3 The learned counsel further submitted that no independent witness was examined. While giving statements, the victim girl had stated that the appellant called her on two occasions and compelled her to stay with him for a night and on one such occasion the victim went to his sister's house and another occasion to his friend's house. However, the said sister and friend of the appellant were not examined and the same is fatal to the case of the prosecution. He further submitted that only based on the statement given by the sister of the victim, the Doctor made entries in the Accident Registrar and therefore, the trial Court by relying upon the said statement cannot come to the conclusion that the appellant has committed penetrative sexual assault. Further, in the previous statement, the victim has not stated that the appellant forcefully kidnapped her and https://www.mhc.tn.gov.in/judis Page No.6/19 Crl.A.No.938 of 2022 hence, Section 366 IPC would not attract. The trial Court has failed to appreciate the entire oral and documentary evidence and erroneously found that the statement recorded from the victim under Section 161(3) Cr.P.C is a dying declaration and wrongly convicted and sentenced the appellant. During investigation, any statement recorded from any one of the witnesses by the investigating officer is not admissible in evidence. Therefore, the prosecution has failed to prove its case beyond reasonable doubt that the appellant kidnapped the victim and forcefully intercourse with her. In the absence of the same, convictions recorded by the trial Court for the offence under Section 366 IPC and Section 4 of POCSO Act are liable to be set aside and the appeal may be allowed.
9. The learned Additional Public Prosecutor appearing for the respondent submitted that the age of the victim is not disputed. At the time of occurrence, the victim was aged about 16 years and in order to prove her age, the Birth Certificate of the victim was marked as Ex.P13, in which, the date of birth of the victim is mentioned as 13.6.2001. Hence, the victim was under 18 years, but above 16 years at the time of occurrence. The Doctor, who examined the victim also stated that the age of the victim was 16 years. He further submitted that during investigation, https://www.mhc.tn.gov.in/judis Page No.7/19 Crl.A.No.938 of 2022 the victim died and her death certificate was marked as Ex.P14. Soon after the occurrence, the victim was produced before the learned Judicial Magistrate and her statement was recorded under Section 164 Cr.P.C which was marked as Ex.P7. In Ex.P7, the victim has clearly stated that on two occasions she stayed together with the appellant on the aforementioned days, but in her statement she did not specifically mentioned the word ''sexual intercourse''. However, the Doctor/P.W.9 who examined the victim girl has clearly stated that the victim was subjected to penetrative sexual assault, her hymen was not intact and there was an injury in the vaginal part of the victim and she also stated that at the time of medical examination, the victim girl told that the appellant had intercourse with her on two occasions. Therefore, the previous statement of the victim is corroborated with the medical evidence. He further submitted that P.W.1/mother of the victim and P.W.2/father of the victim have clearly stated about the same in the complaint filed against the appellant. P.W.6, who is an independent witness, has clearly stated that his wife informed him about the missing of the victim and thereafter, he searched and secured the victim at Villupuram. At that time, the victim girl informed that the appellant enticed her stating that he will marry her https://www.mhc.tn.gov.in/judis Page No.8/19 Crl.A.No.938 of 2022 and keep her well and everything will be fine if one child is born to them. Based on the promise, he had committed penetrative sexual assault on her. When the said issue came to the knowledge of the public, the victim committed suicide by consuming poison. Therefore, from the evidence of P.W.1, P.W.2, P.W.6 and P.W.9 and Ex.P7 the prosecution has proved its case beyond reasonable doubt. When the victim was a child and her custody was removed by the appellant from her lawful guardians without their consent for the purpose of having illicit intercourse with her, therefore, the act committed by the appellant falls under Section 366 IPC. As the victim was a child and she was subjected to penetrative sexual assault by the appellant, the offence committed by the appellant falls under Section 4 of the POCSO Act.
10. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent and also perused the materials available on record.
11. This Court, being an Appellate Court, is a final Court of fact finding, which has to necessarily re-appreciate the entire evidence and give an independent finding. Accordingly, this Court has re-appreciated https://www.mhc.tn.gov.in/judis Page No.9/19 Crl.A.No.938 of 2022 the entire oral and documentary evidence produced before this Court.
12. Admittedly, the respondent/Police laid a charge sheet against the accused for the offences under Section 366 IPC and Section 4 of POCSO Act, as the victim was a child and her custody was removed from her lawful guardians without their consent by the appellant and also had physical relationship with her. After trial, the trial Court convicted and sentenced the appellant for charged offences.
13. As far as the age of the victim is concerned, the prosecution has marked the original Birth Certificate of the victim as Ex.P13. As per Ex.P13 the date of birth of the victim is 13.06.2001 and the occurrence had taken place on 20.10.2017 and hence, the age of the victim is not disputed. From the evidence of P.W.1, P.W.2 and P.W.9 and Ex.P9, the prosecution has proved that the victim was 16 years at the time of occurrence, she comes under the definition of 2(1)(d) of POCSO Act.
14. As far as commission of the offence under Section 366 IPC is concerned, the victim girl has clearly stated before the learned Judicial Magistrate while recording her statement under Section 164 Cr.P.C that on one occasion i.e. on 14.2.2017, the appellant called her by phone and induced her to come to the house of his sister. When she went there, the https://www.mhc.tn.gov.in/judis Page No.10/19 Crl.A.No.938 of 2022 accused induced her that he will marry her and thereafter both of them stayed together on that night. Once again, on 20.10.2017 the appellant took the victim to his friend's house and induced her to stay with him for a night. In the absence of the family members of his friend, both were stayed together. The statement of the victim girl clearly shows that at the time of occurrence, the victim was a child and her custody was taken away from her lawful guardians without their consent for the purpose of having illicit intercourse, therefore, the act committed by the appellant falls under Section 366 IPC and the prosecution has proved its case beyond reasonable doubt.
15. The main defence taken by the appellant is that no independent eye witness was examined to prove the fact that on 20.10.2017 the appellant took the victim to his friend's house and both of them stayed together on that night. However, the victim in her previous statement has clearly narrated the said incident. Even though the victim died, her statement recorded under Section 164 Cr.P.C is an admissible evidence. As per Section 32 of the Indian Evidence Act, 1872 the previous statement recorded from the victim can be treated as a dying declaration, https://www.mhc.tn.gov.in/judis Page No.11/19 Crl.A.No.938 of 2022 after her death. Even the dying declaration needs corroborative evidence. In the present case, P.W.6 has clearly stated that he heard about the missing of P.W.1 through his wife and he searched her in Villupuram but he could not trace her. However, on 22.10.2017 the victim was produced before the respondent/Police and on enquiry she revealed that the appellant took her to his friend's house and he induced her by saying that he will marry her and everything will be fine if one child will be born to them, and saying so, he had committed penetrative sexual assault. This Court, being an Appellate Court, as a final fact finding Court while re-appreciating the entire evidence, finds that the appellant has committed the offence under Section 366 IPC.
16. As far as commission of the offence under Section 4 of POCSO Act is concerned, the victim in her previous statement clearly narrated that on two occasions she and the appellant stayed together, though she has not specifically stated the word that ''the appellant had sexual intercourse with her''. However, the Doctor/P.W.9 has clearly stated that at the time of examination, the victim has stated that on two occasions the appellant had committed penetrative sexual assault and on clinical https://www.mhc.tn.gov.in/judis Page No.12/19 Crl.A.No.938 of 2022 examination also it was found that victim was subjected to penetrative sexual assault. From the evidence of P.W.9, Ex.P3, Ex.P7, Ex.P10 and Ex.P11 the prosecution has proved that the victim was subjected to penetrative sexual assault. Though there is no independent eye witness to the occurrence, in cases of this nature, presence of independent eye witnesses are mostly improbable and if the evidence of sole witness is cogent, credible and trustworthy conviction is permissible.
17. In the case on hand, during investigation, the victim died, however, in her previous statement she has clearly narrated the said incident. In the said circumstances, the statement of the prosecutrix recorded under Section 164 Cr.P.C can be treated as chief examination and the victim need not be examined in chief before the trial Court independently. In this case since the victim died after giving statement under Section 164 Cr.P.C. she could not be cross examined and therefore as per Section 32 of Indian Evidence Act the previous statement of the victim is admissible in evidence. Therefore, once the statement of the victim was recorded under Section 164 Cr.P.C., the same can be treated as chief examination. Even otherwise, if any previous statement recorded https://www.mhc.tn.gov.in/judis Page No.13/19 Crl.A.No.938 of 2022 by the authority in other proceedings can be treated as evidence even after the death of the maker of the statement. While the victim girl giving her statement before the stranger for the first time viz., the Judicial Magistrate she would be ashamed to use the word sexual intercourse, therefore, she has stated on that night both were stayed together. However, before the Doctor, the victim girl has specifically stated that the appellant had committed penetrative sexual assault on her on two occasions. Therefore, mere non-mentioning of the exact word of “sexual intercourse” before the learned Judicial Magistrate may not be a sole ground to conclude that the victim was not subjected to penetrative sexual assault, but the medical evidence corroborated with the previous statement of the victim made before the Magistrate. Therefore, this Court finds that the victim was subjected to penetrative sexual assault twice by the appellant. Though the trial Court has framed charges against the appellant for the offence under Section 4 of POCSO Act, as the victim was subjected to penetrative sexual assault for more than once, the said offence falls under Section 5(l) which is punishable under Section 6 of POCSO Act. This Court, being an Appellate Court cannot traverse beyond the scope of appeal. Neither the State nor the parents of the victim filed https://www.mhc.tn.gov.in/judis Page No.14/19 Crl.A.No.938 of 2022 any appeal either for non framing of charge under the said head or the finding in that regard. This Court while re-appreciating the entire evidence finds that the charges framed against the appellant are proved by the prosecution beyond reasonable doubt and also proved the foundational fact that the victim was a child and she was subjected to penetrative sexual assault.
18. Therefore, the presumption under Section 29 of POCSO Act come into play and it is for the accused to rebut the presumption that he had no culpable mental state. No doubt, the presumption under Section 29 of POCSO Act is a rebuttable presumption and this Court finds that the accused has not rebutted the presumption in the manner known to law.
19. This Court while re-appreciating the judgment of the trial Court found that the trial Court made an observation that the statement recorded under Section 164 Cr.P.C by the Investigating Officer can be treated as a dying declaration, which is a wrong perspective. The statement recorded by the investigating officer under Section 161 Cr.P.C is not admissible in evidence. However, in the case on hand the victim was produced before the learned Judicial Magistrate and her statement https://www.mhc.tn.gov.in/judis Page No.15/19 Crl.A.No.938 of 2022 was recorded under Section 164 Cr.PC which was marked as Ex.P7. It is already stated that the previous statement of the victim made before the Magistrate under Section 164 Cr.P.C can be treated as her evidence after her death. During investigation, the victim died and that she was not available for cross examination, therefore, the previous statement of the victim under Section 164 Cr.P.C is treated as dying declaration and hence, conviction can be safely recorded based on the said statement.
20. This Court, being an Appellate Court, as a final Court of fact finding has re-appreciated the entire evidence supra and found that the appellant has committed the charged offences and the trial Court has rightly convicted and sentenced the appellant.
21. In fine, this Court does not find any merit in the appeal and Criminal Appeal deserves to be dismissed and accordingly, the same is dismissed. The conviction and sentences passed by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Villupuram in Spl.S.C.No.5 of 2020 are confirmed.
22. The Legal Aid counsel appointed by this Court is entitled to https://www.mhc.tn.gov.in/judis Page No.16/19 Crl.A.No.938 of 2022 legal fees as per Rules.
24.11.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms https://www.mhc.tn.gov.in/judis Page No.17/19 Crl.A.No.938 of 2022 To
1.The Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Villupuram.
2.The Inspector of Police, All Women Police Station, Villupuram.
3.The Superintendent, Central Prison, Cuddalore
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
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P.VELMURUGAN, J.
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