Madras High Court
State vs Paramasivam on 10 February, 2021
Author: P. Velmurugan
Bench: P. Velmurugan
Crl.A.No.211 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.02.2021
CORAM :
THE HONOURABLE MR. JUSTICE P. VELMURUGAN
Crl.A.No.211 of 2019
State
By Inspector of Police,
Thirubuvanai Police Station,
Puducherry.
Through the Public Prosecutor for
Puducherry at the High Court, Madras. ... Appellant
Vs.
Paramasivam ... Respondent
Criminal Appeal filed under Section 378 Cr.P.C., praying to set
aside the judgment of acquittal, dated 16.01.2018, passed by the Special
Judge under POCSO Act, 2012 – Principal Sessions Judge, Pondicherry in
Spl.S.C.No.16 of 2016 and to consequently convict the respondent/accused
for the offence punishable under Section 10 of the POCSO Act, 2012, and
to award maximum punishment.
For Appellant : Mr.D.Bharatha Chakravarthy
Public Prosecutor (Pondicherry)
For Respondent : Mr.K.S.Shanmugam
(Legal Aid Counsel)
https://www.mhc.tn.gov.in/judis/
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Crl.A.No.211 of 2019
JUDGMENT
This Criminal Appeal has been filed against the judgment of acquittal, dated 16.01.2018, passed by the learned Special Judge (Principal Sessions Judge), Puducherry, in Spl.S.C.No.16 of 2016 on the file of the Special Court under POCSO Act, 2012, Puducherry.
2.The appellant Police have registered a case against the respondent/accused in Crime No.27 of 2016 for the offences under Sections 9(o) and 10 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for brevity). After completing the investigation, they laid a charge-sheet before the Special Court under POCSO Act, 2012, Puducherry. Since the offence is against a child, the learned Special Judge has taken the charge-sheet on file in Spl.S.C.No.16 of 2016.
3.After completing the formalities, the trial Court framed a charge punishable under Section 10 of the POCSO Act against the respondent/accused.
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4.After trial, the learned Special Judge found that the prosecution has not proved the guilt of the respondent/accused and acquitted the respondent/accused. Now, the State has filed the present appeal before this Court, challenging the judgment of acquittal.
5.Mr.D.Bharatha Chakravarthy, learned Public Prosecutor (Pondicherry) appearing for the appellant, would submit that the learned Special Judge acquitted the respondent/accused on the ground that there is a doubt about the place of occurrence, and has acquitted the accused largely on the sole factor of place of occurrence, whereas, in the FIR itself, the victim girl has categorically stated that she was also in love with the respondent and the respondent had called her at 08.30 a.m. in the morning on 03.03.2016 and kissed her on the cheek, and thereafter, the respondent called her to his room and committed other acts of sexual assault. The victim girl (P.W.2) has substantiated the same during her evidence before the trial Court by stating that the respondent/accused committed the acts of sexual assault in the 8th Std. classroom, and therefore learned Public Prosecutor would submit that, on a plain reading of the material evidence on record, there is absolutely no material discrepancy about the place of https://www.mhc.tn.gov.in/judis/ 3/20 Crl.A.No.211 of 2019 occurrence, and hence, the finding of the trial Court that there is a reasonable doubt about the place of occurrence is perverse.
6.The learned Public Prosecutor would further submit that the prosecution is very clear that the victim girl (P.W.2) has got acquaintance with the accused, who was working as a MTS Worker in the school, where the victim girl was also studying, and initially after talking in person, they started taking through Mobile Phones and the victim girl used her mother's Mobile Phone to send messages to the respondent. The respondent/accused had also sent a SMS/message about his love to the victim girl, and therefore, in the natural course of things, the respondent had called the victim girl and the occurrence has happened.
7.The learned Public Prosecutor would further submit that the victim girl (P.W.2) has clearly deposed that the prayer in the School starts only at 09.00 a.m., and therefore, the School will only be sparsely populated at 08.30 a.m., and therefore, the respondent had chosen the said time to commit the offence. The learned Public Prosecutor would submit that, though the victim girl (P.W.2) has admitted in her evidence that the students will come at 08.30 a.m., it is common knowledge that only one or https://www.mhc.tn.gov.in/judis/ 4/20 Crl.A.No.211 of 2019 two students will normally arrive early to the School, and that does not mean that the entire classroom will be full, and in any event, the same has not been established by the respondent/accused by way of cross- examination. The learned Public Prosecutor would submit that there is no discrepancy about the presence of Monisha, the friend of the victim girl, as the victim girl (P.W.2) has clearly stated that nobody was present at the time of occurrence. The victim girl (P.W.2) has deposed consistently about the occurrence, viz., originally in the complaint, and thereafter, in the video given before the Child Welfare Committee, and also in the statement recorded under Section 164 Cr.P.C. before the learned Magistrate, and therefore, there is absolutely no material discrepancy regarding the occurrence.
8.The learned Public Prosecutor would further submit that the prosecution has examined 22 witnesses, including the victim girl as P.W.2, and also the parents and School authorities, and has also placed all the materials by way of Exs.P1 to P25, including the love letters written by the respondent to the victim girl, and all other materials before the trial Court, however, the trial Court failed to consider these materials and appreciate the evidence in the right perspective. The learned Public https://www.mhc.tn.gov.in/judis/ 5/20 Crl.A.No.211 of 2019 Prosecutor would submit that the prosecution has examined the victim girl as P.W.2, aged about 16 years, who has spoken about the occurrence that she was molested and sexually assaulted by the respondent, who was aged about 42 years, and that itself would be sufficient to prove the case of the prosecution, and therefore, the prosecution has proved its case beyond reasonable doubt and the findings of the trial Court are highly illegal.
9.The learned Public Prosecutor would further submit that the victim girl (P.W.2) has consistently stated that she was sexually assaulted by the respondent and it is for the respondent to prove that the statement is false, and it cannot be said that the respondent cannot prove his defence. If the prosecution is to prove the case as required under any other law, then there would be no difference between other provisions and the provisions under special laws, like POCSO Act. The learned Public Prosecutor would submit that the victim girl is a child at a tender age of 16 years at the time of occurrence and the respondent was aged about 42 years, who was an employee of the School, and the misbehaviour committed by the respondent is very serious, however, the learned Special Judge failed to consider the object of the POCSO Act and failed to appreciate the material evidence in a right perspective and has acquitted the respondent on the https://www.mhc.tn.gov.in/judis/ 6/20 Crl.A.No.211 of 2019 basis of immaterial contradictions and discrepancies, whereas, the contradictions pointed out by the learned Special Judge are not material contradictions and discrepancies.
10.The learned Public Prosecutor concluded his arguments by submitting that the prosecution has proved its case beyond reasonable doubt and the learned Special Judge failed to appreciate the evidence of the prosecution in a right perspective, and therefore, the judgment of acquittal passed by the learned Special Judge is perverse and is liable to be set aside and the respondent is to be convicted.
11.Mr.K.Shanmugam, learned Legal Aid Counsel, who appears on behalf of the respondent/accused as per the orders of this Court, would submit that, even though the occurrence is said to have taken place in the School, there is no eye-witness in this case, and even as per the evidence of the victim girl (P.W.2), there is a discrepancy in the place of occurrence, and she has not consistently stated as to where exactly the occurrence has taken place. Therefore, the evidence of the victim girl (P.W.2) is highly doubtful. The learned counsel would further submit that the handwriting in the love letter said to have been given by the respondent was not sent for https://www.mhc.tn.gov.in/judis/ 7/20 Crl.A.No.211 of 2019 Handwriting Expert's opinion, and Monisha, the friend of the victim girl, has not been examined in this case. Further, the learned counsel would submit that the room of the respondent is nearer to the Principal's room, and therefore, it would not be possible for such an occurrence said to have happened in the said place.
12.The learned counsel appearing for the respondent/accused would further submit that the SMS/message said to have been sent by the respondent to the victim girl's mother's Mobile Phone has not been proved by collecting the call details of the Mobile Phones of the respondent as well as the mother of the victim girl. Moreover, the victim girl was not subjected to medical examination. Therefore, the prosecution has failed to prove its case beyond reasonable doubt that the respondent is the one who has committed the offence under Sections 9 and 10 of the POCSO Act, and the learned Special Judge has rightly acquitted the respondent/accused, and therefore, there is no perversity in the judgment of the trial Court.
13.The learned counsel appearing for the respondent would submit that this appeal is against acquittal of the accused. Once the trial Court has acquitted the accused, the accused has got double presumption, https://www.mhc.tn.gov.in/judis/ 8/20 Crl.A.No.211 of 2019 the presumption has to be rebutted by substantiating the perversity of the judgment, and when two views are possible, the view in favour of the accused has to be taken into consideration and the benefit of doubt has to be extended to the accused, and therefore, the learned Special Judge has appreciated the evidence on record, and has rightly found that the prosecution failed to establish their case beyond reasonable doubt, and therefore, there is no merit in the present appeal filed by the State and the same is liable to be dismissed.
14.Heard the learned counsel on either side and also perused the materials available on record.
15.The case of the prosecution is that, on 03.03.2016 at 08.30 a.m., the respondent, being a public servant, working as MTS Worker in the Government School, “X” Village, Puducherry, called the victim girl aged about 16 years, who was studying in 11 th Std. in the School, with sexual intent, and suddenly kissed on her cheek, and further, after two days, in the morning, again the respondent called the victim girl in a room inside the School premises with sexual intent, and suddenly hugged her, pressed her breasts by his hands and also rubbed her private part area by https://www.mhc.tn.gov.in/judis/ 9/20 Crl.A.No.211 of 2019 his private part over the dress, and thereby, the respondent had committed aggravated sexual assault repeatedly on the victim girl as defined under Sections 9(c)(i)(l) of the POCSO Act and punishable under Section 10 of the POCSO Act, and accordingly, the Special Court under POCSO Act, Puducherry, framed a charge under Section 10 of the POCSO Act, against the respondent/accused.
16.In order to prove the case, the prosecution examined 22 witnesses as P.W.1 to P.W.22 and marked 25 documents as Exs.P1 to P25, besides 10 Material Objects as M.O.1 to M.O.10.
17.After completing the evidence on the prosecution side, all the incriminating circumstances culled out from the prosecution side evidence were put before the respondent, but he denied as false. On the side of the defence, no oral or documentary evidence was produced.
18.After considering the evidence on record and hearing either side, the learned Special Judge, disbelieved the case of the prosecution and found that the prosecution has not established its case beyond reasonable doubt, and vide judgment dated 16.01.2018 in Spl.S.C.No.16 of 2016, the https://www.mhc.tn.gov.in/judis/ 10/20 Crl.A.No.211 of 2019 trial Court acquitted the respondent/accused.
19.Challenging the judgment of acquittal, the present appeal has been preferred by the State.
20.Since the Appellate Court is a fact finding Court, in order to give a finding independently, it has to re-appreciate the entire evidence.
21.The victim girl was aged about 16 years at the time of occurrence and she was studying 11 th Std. The respondent was 42 years old man and he was working as MTS Worker in the same School, where the victim girl was studying. From the evidence of the victim girl (P.W.2), it is seen that the victim girl, while studying in the School, started to talk friendly with the respondent, and later on, the respondent informed her that he was in love with her, and they also continued to talk to each other. While so, on the date of occurrence, i.e. on 03.03.2016 at about 08.30 a.m., the respondent called the victim girl to one of the classrooms in the School and kissed her and two days later, all of a sudden, he called her with sexual intent, and hugged her, pressed her breasts by his hands and rubbed her private part area by his private part over the dress. It is not in https://www.mhc.tn.gov.in/judis/ 11/20 Crl.A.No.211 of 2019 dispute that the respondent was working as MTS Worker in the said School in which the victim girl was studying. Normally, the MTS Workers will come to the School early in the morning before the School starts, as they have to clean the School, there is every possibility of his access to every classroom in the School premises in the guise of cleaning. However, the students would normally come to the School in the morning one by one and not all the students come at a time.
22.The evidence of the victim girl (P.W.2) clearly shows that, initially, she talked with the respondent and called her as “Anna” (Brother), but the respondent asked the victim girl not to call as “Anna”, but to call as “Mama” (Uncle), and he expressed his love to the victim girl, and due to age factors and may be due to infatuation, the victim girl fell in love with the respondent. The respondent, being a MTS Worker, used to come early in the morning, and when he saw the victim girl coming little bit earlier than the other students, taking advantage of the loneliness, the respondent committed the sexual assault on the victim girl. Though the victim might have given consent or willingness, the respondent, with sexual intent, has committed these type of acts, and it also falls under the POCSO Act.
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23.The victim girl, during deposition before the trial Court and in the complaint, has stated one place at one time and another place at another time in respect of the place of occurrence, and therefore, the learned Special Judge, on account of such discrepancy, has disbelieved the case of the prosecution. However, it is to be noted the fact that the respondent was working as a MTS Worker in the School in which the victim girl was studying, is not in dispute, and it is also clear from the evidence that the MTS Workers should come earlier in the morning to sweep and clean the School, and therefore, there is possibility of reaching every place in the School premises. Therefore, taking advantage of the same, the respondent had chosen the victim girl and has committed the sexual assault. The learned Special Judge has stated that, at 08.30 a.m. in the morning, there would be so many children and all the children would have assembled in the School. If the respondent/accused has decided to commit the sexual assault on the victim girl, naturally he would be waiting for a chance, and when the time was in his favour, he called the victim girl at 08.30 a.m. before the other students reached, and committed the sexual assault.
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24.Though the prosecution has not established the particular place where the occurrence took place, as also stated by the learned Special Judge, the fact remains that the occurrence has taken place inside the premises of the School, especially in a classroom. Naturally, a girl, aged about 16 years and doing these type of acts, would certainly not have a steady mind and her mind will be oscillating, and she would not be in a position to say where the exact occurrence has taken place. Therefore, the victim girl has stated the place of occurrence as 8th Std. classroom at one time and the room of the respondent at the other time. However, this Court is of the view that this discrepancy is not a material discrepancy that will go to the root of the case of the prosecution. Moreover, one cannot expect an eye-witness for these type of offences, especially when two persons have intended to involve in such acts, they will normally tend to create a chance and also they will reach out to a place of aloofness, more particularly to a hidden place, and involve in such acts only in the absence of other persons. The respondent used to come early for his work as his nature of job is like that, and as the victim girl was willing to meet the respondent, she would have come little bit earlier before the other students reach the School, and thereby, the occurrence has happened. In a case like this, no independent witnesses could be expected. Therefore, the https://www.mhc.tn.gov.in/judis/ 14/20 Crl.A.No.211 of 2019 reasons stated by the learned Special Judge are not acceptable.
25.The relevant facts are, at the time of occurrence, the victim girl was studying 11th Std., and on the date of occurrence, i.e. on 03.03.2016, she has attended the School and a copy of the Attendance Register was also marked as Ex.P15, which shows that the victim girl attended the School on the date of occurrence, and the respondent has also attended the School for his work on the date of occurrence. Therefore, the prosecution has established that at the time of occurrence both have attended the School.
26.Even when the victim girl was produced before the Doctor for medical examination, the victim girl told before the Doctor about the occurrence and the history as narrated to the Doctor also reveals the same. The respondent/accused was also produced before the Doctor for medical examination and the history as narrated by him to the Doctor also reveals the same. The Birth Certificate of the victim girl was marked as Ex.P21, which shows that the Date of Birth of the victim girl was 15.06.2000, and hence, on the date of occurrence, i.e. on 03.03.2016, the victim girl has not even completed 16 years, therefore, she was a child under the POCSO Act. https://www.mhc.tn.gov.in/judis/ 15/20 Crl.A.No.211 of 2019 Even assuming that the victim girl has given her consent, it would definitely amount to sexual assault as defined under the POCSO Act. A man working in the Government School, that too a Girls School, is expected to be a responsible person. The respondent/accused is aged about 42 years and he made a sexual assault on a student who is studying in the said School, who is about only 16 years, and it is a very serious nature of offence. Even though the victim girl has not voluntarily given any complaint to anyone, when her mother saw a message in the Mobile Phone, she gave it to the uncle of the victim girl, and after seeing the message, they enquired about the same, and thereafter, the victim girl revealed about the occurrence. Therefore, it may not be a forceful sexual assault, however, the victim girl was below 16 years and she may not know the consequences, however, certainly the respondent, aged about 42 years and working in a School, would know the consequences of committing such sexual assault.
27.Therefore, this Court finds that the prosecution has proved that the victim girl was only 16 years at time of occurrence and she was studying 11th Std. and the Birth Certificate has also been produced to prove the same, and the respondent was 42 years old and he was working in the https://www.mhc.tn.gov.in/judis/ 16/20 Crl.A.No.211 of 2019 School in which the victim girl was studying, and on the date of occurrence, both were present in the School. Though the learned Special Judge has stated that the victim girl has not informed or made any complaint to the Principal or to the School teachers about the occurrence, due to age factor, the victim girl would have given her consent and allowed the respondent to exceed his limit, and hence, naturally, she would not have informed about the same to anyone. However, it is the respondent, who should have advised the victim girl and avoided these type of incidents. The evidence of the victim girl (P.W.2) clearly shows that, initially she started talking with the respondent in a friendly manner by calling him as “Anna” (Brother). Naturally, the children studying in School, used to call the male members of middle age, working in the School, as “Anna” or “Uncle”, and the female members as “Sister” or “Aunt”. The victim girl (P.W.2) has clearly stated that the respondent asked her to call him as “Mama”, i.e. “Uncle” and he has expressed that he has fallen in love with her and he called her with sexual intent to come to the classroom at 08.30 a.m., and she also went there, and subsequently, the occurrence had taken place.
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28.The penal laws, especially the special laws like POCSO Act, have to be interpreted in a strict manner and on a perusal of the entire materials available on record, this Court finds that the discrepancies pointed out by the learned Special Judge are not material discrepancies and that will not go the root of the case of the prosecution to disbelieve the evidence of the victim. On a reading of the evidence of the victim girl (P.W.2), this Court does not find any reason to discard the evidence of the victim girl (P.W.2) or doubt the trustworthiness of her evidence. Therefore, a plain reading of her evidence itself proves that the respondent/accused has committed the charged offence. Therefore, unfortunately, the learned Special Judge has given much importance to the unimportant, immaterial discrepancies.
29.In the light of the above discussion, this Court finds the prosecution has proved its case beyond reasonable doubt, and the respondent/accused has committed the offence under Section 9(c)(i)(l) of the POCSO Act, punishable under Section 10 of the POCSO Act and hence, the respondent/accused is convicted under Section 10 of the POCSO Act.
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30.In the result, this Criminal Appeal is allowed and the judgment of acquittal passed by the trial Court is set aside.
31.Since this appeal is against acquittal and the respondent/accused is now convicted under Section 10 of the POCSO Act, he has to be questioned regarding the sentence. Therefore, the respondent/accused is directed to appear before this Court on 25.02.2021 for questioning regarding the sentence. The appellant Police is directed to ensure that the respondent/accused appears on the said day, failing which, the appellant Police shall secure the respondent/accused and produce before this Court on 25.02.2021.
Post the matter on 25.02.2021 “for question of sentence”.
10.02.2021 (1/2) mkn P. VELMURUGAN, J.
https://www.mhc.tn.gov.in/judis/ 19/20 Crl.A.No.211 of 2019 mkn Copy to :
1.The Special Judge under POCSO Act, 2012, (Principal Sessions Judge), Puducherry.
2.The Inspector of Police, Thirubuvanai Police Station, Puducherry.
3.The Public Prosecutor (Pondicherry), High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
Crl.A.No.211 of 2019
10.02.2021
(1/2)
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