Madras High Court
Arunkumar vs State Represented By on 12 March, 2020
Author: M.Dhandapani
Bench: M.Dhandapani
CRL.A.(MD)No.152 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.03.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
CRL.A.(MD)No.152 of 2015
Arunkumar ... Appellant / Sole Accused
-Vs-
State represented by
The Inspector of Police,
Kuzhithalai All Women Police Station,
Karur District.
(Crime No.4 of 2014) ... Respondent / Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code, praying to call for the records and set aside the
order of conviction and sentence passed in Spl.S.C.No.2 of 2015,
dated 08.05.2015 on the file of the Magalir Neethimandram (Fast
Track Mahila Court), Karur and allow this appeal and acquit the
appellant / accused from the charge levelled against the accused.
For Appellant : Mr.G.Karuppasamy Pandian,
For Mr.A.K.Azagarsamy
For Respondent : Ms.S.Bharathi,
Government Advocate (Crl.Side).
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CRL.A.(MD)No.152 of 2015
JUDGMENT
The appellant / sole accused was charged and tried before the learned Sessions Judge, Mahalir Neethimandram, (Fast Track Mahila Court), Karur, in Spl.S.C.No.2 of 2015, for the offence under Section 7 r/w 8 of POCSO Act, 2012. The trial Court, vide the impugned judgment dated 08.05.2015, has convicted and sentenced the appellant as under :-
Section Sentence
U/s., 7 r/w 8 of POCSO Convicted and sentenced to
Act, 2012 undergo rigorous imprisonment for
a period of four [4] years and to pay
fine amount of Rs.1,000/-, in default
to undergo three months simple
imprisonment.
2.The appellant, aggrieved by the conviction and sentence awarded by the trial Court, vide the impugned judgment referred supra, has filed the present appeal. For the sake of convenience, the appellant will be referred to as 'the accused'.
3.The case of the prosecution is that P.W.1 victim girl is aged about 12 years and residing along with her paternal grand mother in 2/14 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 Keelasinthalavadi, Lalapet and she is studying 7th standard at Government Higher Secondary School, Lalapet. On 04.05.2014, at about 11.30 p.m., she went along with her grand mother for Puvaneswari Mariamman temple festival. When she felt hungry with a permission of her grand mother for the purpose of taking food, she went to her house. At that time the accused called the victim girl and laid down the victim girl and bite her upper lips and committed rape. Immediately, thereafter, the said incident was informed to her grandmother P.W.2 and paternal uncle P.W.3 and P.W.7 and thereafter, they went to Police Station and gave a complaint (Ex.P.1) to P.W.16. Thereafter, the First Information Report (Ex.P.21) was registered for the offence under Sections 5 and 6 of POCSO Act. Thereafter, the First Information Report was forwarded to P.W.17 Inspector of Police. He went to the scene of occurrence prepared observation mahazar and rough sketch and filed alteration report, altering the charges for the offence under Section 7 r/w 8 of POCSO Act and filed final report.
4.The accused was furnished with the relied upon documents under Section 207 Cr.P.C. and the case was committed to the learned Sessions Judge, Mahalir Neethimandram (Fast Track Mahila Court) Karur, for trial, after framing charges for the offences under Sections 3/14 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 3 r/w 4 of POCSO Act. When the accused was questioned, he pleaded not guilty.
5.In order to prove the prosecution case, P.W.1 to P.W.17 were examined and Exs.P.1 to P.27 as well as M.O.1 to M.O.6 were marked. When the trial Court examined the accused under Section 313(1) of Cr.P.C., in respect of incriminating the evidences available against him, he denied the same as false. In order to disprove the prosecution case, the accused has examined one Kavitha as D.W.1, however, no documents were marked on his side.
6.Though initially, the case was registered under Sections 5 and 6 of POCSO Act, during the investigation, alteration report was filed, altering the charges as Section 7 r/w 8 of the POCSO Act and the charge sheet was filed. The trial Court upon consideration of both oral and documentary evidence, has convicted the accused for the offence under Section 7 r/w 8 of POCSO Act, as stated above. Against which, the present Criminal Appeal is filed by the accused. 4/14 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015
7.The learned counsel appearing for the appellant would submit that initially, the complaint was filed before P.W.16 Inspector of Police, All Women Police Station, Karur for the offences under Sections 5 and 6 of POCSO Act and further, the First Information Report was registered, as if the appellant committed rape of the accused. Thereafter, the statement of P.W.1 was recorded under Section 164 Cr.P.C., by the learned Judicial Magistrate No.2, Kuzhithalai, P.W.14, wherein the victim girl has categorically stated that the accused has bite her upper lips, however, did not say anything with regard to the bristling of chest. However, there is no specific allegation with regard to the bristling of chest. The charge sheet was framed under Sections 3 and 4 of POCSO Act. However, the trial Court has acquitted the accused from the offence under Sections 3 and 4 of POCSO Act and convicted the accused in respect of Section 7 r/w 8 of POCSO Act, which is unsustainable on the simple reason that even a perusal of Section 7 of POCSO Act shows that whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. In the present case, the necessary ingredients 5/14 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 required under Section 7 of the Act was not established before the trial Court. Initially, the First Information Report was filed as if the appellant committed rape and subsequently, the law enforcing agency modified and based on the improved version of P.W.1, the punishment was awarded.
8.He would further submit that in the statement under Section 164 Cr.P.C., the accused's name is mentioned as Naren and in the First Information Report, the accused's name is mentioned as Arunkumar. Further, there was a civil dispute pending between the appellant's family and the victim girl's family. In order to wreck vengeance, this false case has been foisted.
9.He would further submit that though the offence was committed by the appellant at about 11.30 p.m., as per the evidence of P.W.3, who is the paternal uncle of P.W.1, they have given complaint at about 12.30 a.m. However, the complaint was registered at about 02.30 a.m., and there is no proper explanation. Initial complaint has not been marked as exhibit and not marking the initial complaint made by P.W.1 before the law enforcing agency at about 12.30 a.m., is vitiated the prosecution case.
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10.In fine, he would submit that if this Court arrive at a conclusion that the offence is proved, this Court may take a lenient view and consider the present situation faced by the appellant as well as the victim girl P.W.1.
11.The learned Government Advocate (Crl.Side) appearing for the respondent would submit that there were some contradictions in the First Information Report. However, the First Information Report was registered only at the initial stage, thereafter, the statement under Section 161 Cr.P.C., was recorded by the learned Judicial Magistrate, in which, the victim girl has deposed that on 04.05.2014, at about 11.30 p.m., she went along with her grand mother for Puvaneswari Mariamman temple festival. When she felt hungry with a permission of her grand mother for the purpose of taking food, she went to her house. At that time the accused called the victim girl and laid down the victim girl and bite her upper lips and committed rape. However, after came to know the statement under Section 161 Cr.P.C, the law enforcing agency has filed alteration report and altered the Sections from Sections 5 and 6 of POCSO Act to Section 7 r/w 8 of POCSO Act. Hence, the trial Court 7/14 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 has awarded punishment for four years. Further, the statement of P.W.1, victim girl and her evidence corroborated with the evidence of P.W.14. Further, in respect of the injuries sustained by the victim girl at the upper lips was corroborated with the evidence of the Doctor P.W.8 under Ex.P.9. Further, the evidence of P.W.2 grand mother of P.W.1, her paternal uncle P.W.3 and maternal uncle P.W.4 also corroborated the incident, though they were not eye witnesses. Hence, their evidence is sufficient to decide the case, accordingly, the trial Court has convicted the accused, which cannot be interfered with.
12.Heard the learned counsel appearing for the appellant, the learned Government Advocate (Crl.Side) appearing for the respondent and perused the materials available on record carefully.
13.The issues involved in the present case are as follows:-
“(i)whether the prosecution established the necessary ingredients required under Section 7 of POCSO Act or not?;
(ii)whether the minor contradiction in respect of the name and place of occurrence could 8/14 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 vitiate the prosecution case or not?; and
(iii)what relief the accused is entitled?.”
14.It is to be noted that P.W.1 initially was produced before the learned Magistrate for recording the statement under Section 161 Cr.P.C., which is required under the Act. Though the said incident was happened on 04.05.2014, the statement was recorded by the learned Judicial Magistrate on 09.06.2014. On perusal of the First Information Report, it is seen that the First Information Report was registered on 05.05.2014 at about 2.30 a.m. In Ex.P.2 statement of the victim girl, which is recorded by P.W.14, she deposed that on 04.05.2014 On 04.05.2014, at about 11.30 p.m., she went along with her grand mother for Puvaneswari Mariamman temple festival. When she felt hungry with a permission of her grand mother for the purpose of taking food, she went to her house. At that time the accused called the victim girl and laid down the victim girl and bite her upper lips and committed rape. The said statement is clearly corroborated with the evidence of P.W.1. Though there are some minor contradictions in respect of the name in the statement mentioned as Naren, P.W.1 in her evidence clearly deposed that Arunkumar, which will not vitiate the prosecution case.
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15.However, in the present case, the injury sustained due to sexual assault at her upper lips by the accused is corroborated with the evidence of P.W.8 and the exhibits Exs.P.8 and P.9. Further, it is the contention of the learned counsel for the appellant that the necessary ingredient required under Section 7 of POCSO Act was not established. It is relevant to refer Section 7 of POCSO Act, which reads as follows:-
“whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
16.On close reading of the above provisions, there are three parts. The first part relates to whoever with sexual intent touches the vagina, penis, anus or breast of the child, the second part relates to whoever makes the child touch the vagina, penis, anus or breast of such person or any other person and the third party relates to any other person does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 10/14 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015
17.In the present case, the allegation against the accused is that the accused called P.W.1 victim girl to his house and laid down the victim girl, thereafter, attempted to commit rape. Hence, the third part is clearly attracted the act committed by the accused. Further, the evidence of P.W.1 and P.W.8 doctor, P.W.14, learned Judicial Magistrate is clearly corroborated each other. Hence, I do not find any error in the judgment of the trial Court. Therefore, the judgment and conviction dated 08.05.2015 passed in Spl.S.C.No.2 of 2015 by the learned Sessions Judge, Mahalir Neethimandram, (Fast Track Mahila Court), Karur, is confirmed.
18.Considering the facts and circumstances of the case and after lapse of several years, the parties are settled in their life and considering the present situation, this Court is inclined to award minimum sentence of three years rigorous imprisonment to the accused.
19.Accordingly, this Criminal Appeal stands dismissed. The trial Court shall take steps to secure the accused / appellant to commit him in prison to serve out the remaining period of sentence. 11/14 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 Bail bond executed by the appellant and the sureties shall stand cancelled. The period of sentence already undergone by the appellant shall be set off under Section 428 of the Code of Criminal Procedure.
12.03.2020 Index: Yes / No Internet: Yes / No Myr To
1.The Sessions Judge, Magalir Neethimandram, (Fast Track Mahila Court), Karur.
2.The Inspector of Police, Kuzhithalai All Women Police Station, Karur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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