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 2/22 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 3/22 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.
7.The learned counsel appearing for the appellant would submit that initially, the complaint was filed before P.W.16 Inspector of 4/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 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 required under Section 7 of the Act was not established before the trial Court. Initially, the First Information Report was filed as if the 5/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 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 164 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 164 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 7/22 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 8/22 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.
15.However, in the present case, the injury sustained due to sexual assault at her upper lips by the accused is corroborated with 9/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 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.
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 10/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 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.
18. Time and again it has been consistently held by the various courts that minor contradictions/inconsistencies/discrepancies/embellishments in the evidence of the witnesses will not in any way affect the substratum of the prosecution. Further, it has been held that over a passage of time, there are prone to be contradictions/inconsistencies/discrepancies/embellishments in the evidence of witnesses and so long as it is not material, such contradictions should not be given much weight to throw away the prosecution version.
19. The Hon'ble Apex Court, in the case of State of H.P. - Vs- Lekh Raj (2000 (1) SCC 247), relating to discrepancies in the evidence of the witnesses, held as under :- 11/22
http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 “7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot- like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala [(1974) 3 SCC 767 : 1974 SCC (Cri) 243] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. [1981 12/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 Supp SCC 40 : 1981 SCC (Cri) 676] this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593] held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.” (Emphasis Supplied)
20. In Bakhshish Singh v. State of Punjab, (2013 (12) SCC 187), the Hon'ble Supreme Court, reiterating its ratio laid in a catena of judgments on the question of contradiction/embellishments in the evidence of witnesses, held as under :
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http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 “31. This Court in several cases observed that minor inconsistent versions/discrepancies do not necessarily demolish the entire prosecution story, if it is otherwise found to be creditworthy. In Sampath Kumar v. Inspector of Police [Sampath Kumar v. Inspector of Police, (2012) 4 SCC 124 :
(2012) 2 SCC (Cri) 42] this Court after scrutinising several earlier judgments relied upon the observations in Narayan Chetanram Chaudhary v.
State of Maharashtra [(2000) 8 SCC 457 : 2000 SCC (Cri) 1546] to the following effect: (Sampath Kumar case [Sampath Kumar v. Inspector of Police, (2012) 4 SCC 124 : (2012) 2 SCC (Cri) 42] “21. … ‘42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory 14/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 sometimes plays false and the sense of observation differ from person to person.’ (Narayan Chetanram Chaudhary case [(2000) 8 SCC 457 : 2000 SCC (Cri) 1546]”
32. In Sunil Kumar Sambhudayal Gupta v. State of Maharashtra [(2010) 13 SCC 657 : (2011) 2 SCC (Cri) 375] this Court observed as follows:
“30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580] .)”
33.The embellishments in the statements of Narinder Banwait (PW 19) referred to above, in our view do not constitute such contradictions which destroy the core of the prosecution case as 15/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 this Court in Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722] has observed as under:
“43. … It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief.” 16/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015
21. Yet again, in Rohtash Kumar – Vs - State of Haryana (2013 (14) SCC 434), the Hon'ble Supreme Court had reiterated the long established proposition in the appreciation of evidence of witnesses with regard to the discrepancies in their evidence and in this regard, held as under :-
“24. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant, details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the 17/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. (See State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48], State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580 : AIR 2009 SC 152] and Vijay v. State of M.P. [(2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639])” (Emphasis Supplied)
22. From the above proposition of law laid down by the Hon'ble Apex Court, it is clear that contradictions/discrepancies are prone to happen in the testimony of the witnesses due to 18/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 passage of time between the occurrence proper and the date of their examination in court and in such circumstances, it is left to the wisdom of the court to analyze their evidence as a whole to cull out the truth or otherwise in their deposition and appreciate the same in proper perspective to arrive at a substantive opinion as to whether such contradiction/discrepancies affect the substratum of the prosecution case.
23. The learned counsel appearing for the appellant vehemently contended that in the complaint, the accused name is mentioned as 'Naren', however, in the chief and cross-
examination, his name mentioned as 'Arunkumar'. Hence, this Court paid its undivided attention in the chief and cross examination of P.W.1. On perusal of chief and cross examination of P.W.1 it is seen that in the chief examination P.W.1 mentioned the accused name as 'Arunkumar' and identified the dress worn by the appellant, at the time of occurrence and further, during the cross-examination, he mentioned the accused name, however, after registration of FIR, the contents of the FIR was 19/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 not read over to P.W.1. In her cross examination, he has clearly identified the accused in the Police Station and further, the family members and other background of the accused also clearly mentioned in the cross-examination. Hence, on the simple minor contradictions in respect of the same will not vitiate the entire prosecution case. Hence, all the issues answered against the accused.
24. In the light of the above discussions, 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.
25.Accordingly, this Criminal Appeal stands dismissed. However, 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. The trial Court shall take steps to secure the accused / 20/22 http://www.judis.nic.in CRL.A.(MD)No.152 of 2015 appellant to commit him in prison to serve out the remaining period of sentence. 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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