Madras High Court
Selvi vs Nagaraj on 20 February, 2020
Equivalent citations: AIRONLINE 2020 MAD 1150
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.159 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 30.04.2019
Pronounced on : 20.02.2020
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.159 of 2019
Selvi ... Appellant
versus
1.Nagaraj
2.Pugazhenthi
3.The Inspector of Police,
Town Police Station,
Chengalpattu,
Kancheepuram District. ... Respondents
Prayer :- Criminal appeal filed under Section 372 of Cr.P.C. praying to
set aside the order of acquittal passed in Special Case No.1 of 2013
dated 06.03.2018 by the Hon'ble Sessions Judge, Mahila Court,
Chengalpattu and convict the accused person for the offences charged
against them.
For Appellant : Mr.K.C.Karl Marx
For R1 & R2 : Mr.S.Ashok Kumar, Senior Counsel
for Mr.A.Murugavel & Mr.A.Arunkumar
For R3 : Mr.R.Ravichandran
Government Advocate (Crl. Side)
JUDGMENT
This Criminal Appeal has been filed to set aside the order of acquittal passed in Special Case No.1 of 2013 dated 06.03.2018 on the file of the Sessions Judge, Mahila Court, Chengalpattu and convict the accused persons for the offences charged against them. 1/20 http://www.judis.nic.in Crl.A.No.159 of 2019
2. The third respondent herein registered a case against the respondents 1 and 2 for the offences under Section 354, 506(i) I.P.C and Section 4 of Tamil Nadu Women Harassment Act and Sections 8, 9(c) (F) r/w 10 and 11 (1) r/w.12 Protection of Children from Sexual Offences Act-2012. The third respondent, after registering the case, investigated the matter and filed a charge sheet. The charge sheet was taken on file in Special Case No.1/2013 on the file of the learned Sessions Judge, Mahila Court, Chengalpet. The learned Sessions Judge framed charges against the first respondents for the offence under Section 8 and 12 of the POCSO Act and against the second respondent for the offence under Section 12 of the POCSO Act. In order to prove the case of the prosecution, on the side of the prosecution 31 witnesses were examined as PW1 to PW31 and 37 documents were marked as Exs.P1 to P37. After completing the prosecution side witnesses, incriminating circumstances were culled out from the witnesses and the same were put before the respondents 1 and 2. They denied as false. On the side of the defence two witnesses were examined as DW1 and DW2 and two documents were marked as Exs.R1 and R2.
3. After completing the trial and hearing arguments on either side, the learned Sessions Judge acquitted the respondents 1 and 2 2/20 http://www.judis.nic.in Crl.A.No.159 of 2019 and found that they were not guilty. Challenging the said Judgment of acquittal, one of the mother of the victim, namely, Selvi has filed the present appeal before this Court.
4. The case of the prosecution is that the appellant is the mother of PW2. She lodged a complaint before the third respondent that her daughter PW2 studied eleventh and twelfth standards in the Government Girls Higher Secondary School, Chengalpet for the academic years 2011-2013. While so, the respondents 1 and 2, who were working as Chemistry and Physics teachers respectively in the said school have sexually harassed and behaved indecently with the daughter of the appellant and not only her daughter and also with the other students, who were studying in their class. The respondents 1 and 2/A1 & A2 were charged for the offences under Sections 354, 506(i) I.P.C and Section 4 of Tamil Nadu Women Harassment Act and Sections 8, 9(c) (F) r/w 10 and 11 (1) r/w.12 of Protection of Children from Sexual Offences Act-2012. The respondent-Police, after investigation, laid a charge sheet and the same was also taken on file. After trial, the learned Sessions Judge has not believed the case of the prosecution and held that the prosecution has failed to prove its case beyond the reasonable doubt. Hence, he acquitted the respondents 1 3/20 http://www.judis.nic.in Crl.A.No.159 of 2019 and 2. Therefore, one of the mother of the victims, i.e. P.W.2 has filed the present appeal before this Court.
5. The learned counsel for the appellant would submit that the children were sexually exploited by the respondents 1 and 2 under the threat that the practical marks are under their control and they would not give marks in the practical examination if they divulge the information to their parents or anyone else. The respondents 1 and 2 have often touched the private parts of the students and made sexual assaults towards them causing humiliation and inflicting aggravated sexual assaults on the children. Further, he would submit that on 17.01.2013, the defacto complainant along with the victim girls and their parents met PW23-Office Bearer of the All India Democratic Women’ Association and informed her about the harassment inflicted against their children in the school by the respondents 1 & 2. On 18.01.2013, the appellant along with the parents of other victims and PW23 gave a complaint to the Superintendent of Police, Kancheepuram District and the District Collector. The District Collector has immediately contacted the Chief Educational Officer/PW18 and instructed her to take immediate action and that the Chief Education Officer/PW18 along with the Social Welfare Officer/PW19, Chengalpet 4/20 http://www.judis.nic.in Crl.A.No.159 of 2019 has inspected the school and enquired with the respondents 1 and 2 and other students on 19.01.2013. The respondents 1 and 2 had indulged in heinous crime, but no action was taken from 18.01.2013 against the respondents 1 and 2 for the commission of such a heinous crime. Therefore, on 21.01.2013, the Women’s Organisation staged a demonstration in front of the school seeking to register the complaint against the respondents 1 & 2.
6. He would further submit that again the Chief Educational Officer and the District Educational Officer conducted enquiry and on finding that the respondents 1 and 2 have committed aggravated sexual assaults on the victim students, suspended the respondents 1 and 2 with immediate effect. The Inspector of Police obtained a fresh complaint and that a FIR was registered for the offence under Sections 354 I.P.C and Section 4 of Tamil Nadu Women Harassment Act in Crime No.39 of 2013 on 21.01.2013. No case was registered under the relevant provisions of the Protection of Children from Sexual Offences Act-2012. Since the third respondent police failed to add the relevant provisions of the Act-2012, the democratic organisations staged a 'Dharna' on 06.02.2013 in front of the Revenue Divisional Office. Thereafter only the provisions of POSCO Act were added. The learned 5/20 http://www.judis.nic.in Crl.A.No.159 of 2019 Judicial Magistrate, Madhuranthagam was appointed for recording the statement under Section 164 (5) of Cr.P.C from the victim girls. Further, he would submit that PW31, the investigating officer, after completing investigation, laid charge sheet for the offence under Sections 354, 506(i) I.P.C and Section 4 of Tamil Nadu Women Harassment Act. Subsequently, the learned Sessions Judge framed a charge against the first respondents for the offence under Section 8 and 12 of the POCSO Act and against the second respondent for the offence under Section 12 of the POCSO Act.
7. In order to prove the case of the prosecution on the side of the prosecution 31 witnesses were examined and 37 documents were marked. The victim girls have clearly deposed about the sexual assault made by the respondents 1 and 2, upon them. The prosecution has proved its case beyond all reasonable doubt, whereas, the learned Sessions Judge failed to consider the evidence of the victim girls and simply has given much weight to the immaterial contradiction and acquitted respondents 1 and 2. Therefore, the Judgment of the learned Sessions Judge is liable to be set aside and respondents have to be convicted for the offences committed by them.
6/20 http://www.judis.nic.in Crl.A.No.159 of 2019
8. The learned counsel for the respondents would submit that the appellant has foisted a false complaint against the respondents 1 and 2 with the third respondent under the instigation of PW13, one of the teachers working in the same school, namely, Mythily. He further submitted that prior to this occurrence, due to some misbehaviour, the previous Head Master was suspended and the Head Master was under
the impression that due to the instigation of the first and second respondents, he was transferred and therefore, he instigated PW13, namely, Mythili to set up the victim girls and foisted the false case against the respondents 1 and 2. Further, the learned counsel would submit that respondents 1 and 2 are good persons and have also received best teachers award and very sincere towards their duties and they were working more than 30 years in the same school and they never received any complaint and they are also sincere and taking efforts to get through all the students in the examination. Since PW13 instigated some of the students in the class, they have foisted the false case against the respondents 1 & 2. Some of the victim girls, namely, PW10, PW11, PW12 & PW14 were not supported the case of the prosecution and turned hostile and also they have stated that the respondents 1 and 2 are good teachers, due to the ill advise of the PW13, they have given wrong details to the learned Judicial 7/20 http://www.judis.nic.in Crl.A.No.159 of 2019 Magistrate-I and also during the investigation report. Therefore, the Trial Court had rightly appreciated the evidence of the prosecution and other witnesses and have also pointed out the contradiction and rightly acquitted the respondents 1 and 2. There is no merit in the appeal. He would further submit that they suppressed the earlier complaint and also they foisted false case against the respondents 1 and 2. The Trial Court had rightly appreciated the entire evidence and came to the conclusion that the respondents 1 and 2 are not found guilty, therefore, they were acquitted. There is no merit in the appeal and the appeal is liable to be dismissed.
9. Heard both sides and perused the materials on record.
10. Admittedly, the victims PW2, PW5, PW7, PW9, PW10, PW11, PW12 and PW14 were studying in eleventh and twelth standards in the Government Higher Secondary School, Chengalpet, during the academic years 2011-2013. The respondents 1 and 2 also were working in the said school and they were taking Chemistry and Physics subject respectively during the relevant period. According to prosecution during that academic year, the respondents 1 and 2 while teaching in the class room, sexually exploited the victim girl students 8/20 http://www.judis.nic.in Crl.A.No.159 of 2019 under the threat that the practical marks are under their control and they would not give marks in the practical examination if they divulge the information to their parents or anyone else. They have often touched the private parts of the students and made sexual assaults towards them causing humiliation and inflicting aggravated sexual assault on them. PW2-one of the victim girls informed the same to her parents and the parents were thinking about the future of their child and asked PW2 to concentrate on the studies. At one point of time, PW2 could not tolerate all these things made by the respondents 1 & 2, she informed several times to her parents, therefore, the mother of the victim girl i.e. P.W.1 approached Magalir Organisation i.e., PW23, the Office Bearer of All India Democratic Women' Association and informed her about the harassment inflicted against her daughter in the school. Therefore, subsequently, they enquired with the victim girls and also preferred complaint before the Superintendent of Police, Kancheepuram District and the District Collector. Subsequently, they registered the case and investigated the matter and filed the charge sheet.
11. One of the contentions raised by the learned counsel for the respondents 1 and 2 is that earlier complaint was suppressed. 9/20 http://www.judis.nic.in Crl.A.No.159 of 2019 Though, in the earlier complaint simply they have investigated and registered the case under Section 354 I.P.C and Section 4 of Tamil Nadu Women Harassment Act, subsequently, the case was registered under the relevant provisions of the Protection of Children from Sexual Offences Act-2012. Therefore, there is no suppression of the earlier complaint. Though the counsel for the respondents 1 and 2 contended that there is no specific date and place of the allegations, the learned Sessions Judge has also discussed on that. The victim girls have clearly stated that while studying in eleventh and twelfth standards in the Government Higher Secondary School during the academic years 2011-2013, the respondents 1 and 2 were working as Chemistry and Physics teachers in the same school and they were taking classes to the victim girls during the academic years. Further, the victim girls have clearly stated that the respondents 1 and 2 have touched their breasts by holding near armpit. Further, the victims cogently deposed that the respondents 1 and 2 in the pretext of pulling the legs outside the bench and have tapped their thighs. Further, the victim girls have deposed that the respondents 1 and 2 had enquired about their dress and humiliated them and while taking classes the respondents have made gestures towards the students holding the penis and that the respondents 1 and 2 have physically and verbally abused the children 10/20 http://www.judis.nic.in Crl.A.No.159 of 2019 misusing the capacity as teachers and threatened them that their practical marks are under their control and that the respondents 1 and 2 had spoken about the sexual message to the victim girls and also expressed that they had huge amount available in their bank accounts.
12. A careful reading of the statements given by the victim girls PW2, PW5, PW7 and PW9 before the learned Magistrate while recording statement under Section 164 (5) of Cr.P.C. and also the evidence adduced before the Trial Court during the trial, it is seen that the above mentioned witnesses have supported the case of the prosecution and also they corroborated the evidence of the defacto complainants PW1, PW4, PW6, PW8, PW16 and PW20. Independent witnesses, namely, PW13, PW18, PW19, PW23 and PW26 have also given evidence supporting their case.
13. The victim girls PW2, PW5, PW7 and PW9, who have cogently deposed as to how they had been assaulted and harassed by the respondents 1 and 2 in the class room and later while writing examination. In the statements before the investigation officer and before the learned Judicial Magistrate under Section 164 (5) of Cr.P.C., all four victim girls have cogently stated about the way in which the 11/20 http://www.judis.nic.in Crl.A.No.159 of 2019 respondents 1 and 2 behaved with them which itself shows that the respondents 1 and 2 had been assaulting and harassing the victim girls not only once, they were continuously doing for the two years when they were studying in the said academic years. Though PW10, PW11, PW12 and PW14 were turned hostile and not supported the case of the prosecution, they have clearly stated before the learned Magistrate, who recorded the statements under Section 164 (5) of Cr.P.C. Though they subsequently stated that under the instigation of PW13 they have stated so, the conjoint reading of the evidence of other victims and also the earlier circumstances given in the statements, it is clear that the respondents 1 and 2 have sexually assaulted the victim girls. Even though the learned defence counsel taken the defence that prior to the occurrence, the Head Master of the school was suspended for his misbehaviour and that the Head Master was under the impression that the respondents 1 and 2 are the only cause for the action taken against him and hence with the help of PW13, misguided the victim girls and foisted the false case in order to take vengeance against the respondents 1 and 2, but on reading of the evidence of PW1, PW2 and other independent witnesses, it is clear that even prior to the complaint, PW2 informed their parents at several times. Since they thought that the study of their daughter would get affected, they 12/20 http://www.judis.nic.in Crl.A.No.159 of 2019 advised their daughter to concentrate on the studies not on other activities. No parents would sacrifice the future of their children to aid one of the teachers to take vengeance on the other teachers. Naturally victims are being girl students and if anything is wrong, the girl students will approach the lady teachers. Therefore, in that way, they informed to PW13 and also their parents and since the victim girls afraid about the future and at last approached PW23 and also gave the complaint to the Superintendent of Police and District Collector, Kancheepuram. Even in the preliminary enquiry levels, the respondents 1 and 2 were initially suspended and later taken. Though the learned Sessions Judge has given the reason for acquitting the accused that there were more than 20 girl students in the class and the prosecution has not examined all the 20 students but examined only 7 students. Without saying what are the material contradictions to discard the evidence of the victim girls, the Trial Court has rendered a finding of acquittal.
14. Admittedly, in this case, the respondents 1 and 2/A1 & A2 are the teachers and the victim girls PW2, PW5, PW7 and PW9 were studying in eleventh standard and twelfth standard, they would thought about their future and some of the students afraid to reveal all these 13/20 http://www.judis.nic.in Crl.A.No.159 of 2019 facts either before their parents or other teachers and their study would get affected, if their parents know about that, they would stop them from school, they could not pursue their studies. Therefore, they could not have informed. Since because the prosecution has not examined all the 20 girl students in the said class, does not mean that the evidence of other victim girls, who have come with the grievance should be discarded. In this case, admittedly, PW2 has clearly given evidence that she revealed all the facts before her parents PW3 and before the police officer, who has recorded the statement under Section 161 of Cr.P.C, similarly, they have spoken before the learned Magistrate, who has recorded the statement under Section 164(5) of Cr.P.C. and subsequently, during the trial she has substantiated the same and evidence of other witnesses PW5, PW7 and PW9 corroborates each other. As already stated, parents need not help the other teachers to take vengeance against their own colleague teachers, unless they were not satisfied with the grievance expressed by their children. Therefore, the defence taken by the appellant and also the reason stated by the learned Sessions Judge regarding the defence of helping the previous Head Master, PW13/Mythili, used the victim girls 14/20 http://www.judis.nic.in Crl.A.No.159 of 2019 to take vengeance, is not acceptable. No girl will say against their own teachers and forget about their future while supporting one of the teachers that too for this type of allegations. In these circumstances, on a careful perusal of the entire materials, especially, the statement recorded by learned Magistrate under Section 164 (5) of Cr.P.C. and subsequently, the evidence before the Trial Court, there is no reason to discard the evidence of the victim girls PW2, PW5, PW7 and PW9. There is no material contradictions. The learned Sessions Judge has not given any reason to discard the evidence of the victim girls. Therefore, from the entire materials, this Court finds that the respondents 1 and 2 have committed the offences charged against them.
15. It is pertinent to refer and extract the relevant provisions of laws, under which the respondents 1 & 2 are charge sheeted.
Section 354 of IPC:
"354. Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. "
Section 2(a) and 4 of the Tamil Nadu Prohibition of Women Harassment Act, 1998 2(a) "harassment" means any indecent conduct or act by aman which causes or is likely to cause 15/20 http://www.judis.nic.in Crl.A.No.159 of 2019 intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force
4. Penalty for [harassment of woman] : Whoever commits or participates in or abets [harassment of woman] in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, cinema theatre, park, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may to three years and with fine which shall not be less than ten thousand rupees.
Sections 7, 8, 9 (C)(F), 10 and 11(1) and 12 of POCSO Act
7. Sexual Assault – 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.
8. Punishment for sexual assault – Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
9. Aggravated sexual assault.-
c. whoever being a public servant commits sexual assault on a child; or f. whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or 16/20 http://www.judis.nic.in Crl.A.No.159 of 2019
10. Punishment for aggravated sexual assault.-
Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
11. Sexual harassment.- A person is said to commit sexual harassment upon a child when such person with sexual intent,-
i. utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
12. Punishment for sexual harassment – Whoever commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
16. On reading of the above provisions and the evidence of P.W.2, the daughter of the appellant, which corroborates with the evidence of PWs 5, 7, 9, 13 & 23, it is clear that the offence commiitted by the respondents 1 & 2, which comes under Section 354 of IPC, Section 4 of Tamilnadu Prohibition of Harassment of Woman Act, 1998, and Sections 8, 9(c)(f) r/w 10 & 11(1) r/w 12 of POCSO Act have been clearly proved beyond all doubts. Even though, some of the students viz. PWs 10, 11, 12 and 14 have turned hostile, but, when they giving 17/20 http://www.judis.nic.in Crl.A.No.159 of 2019 statement before the Magistrate under Section 164 of Cr.P.C, they have clearly stated about the offence committed by the respondents 1 & 2 and hence the subsequent retraction of the above witnesses will not vitiate the case of the prosecution, since P.Ws.2, 5, 7 & 9 have clearly stated about the offence committed by the accused.
17. Considering the facts and circumstances of the case and from the available evidence, this Court finds that the trial Court has not appreciated the evidence of prosecution in the manner known to law and there is compelled circumstances to interfere with the judgment of acquittal made by the trial Court. Even though, this Court find the accused guilty for the offence under Sections 354 of IPC, Section 4 of Tamilnadu Prohibition of Harassment of Women Act, Section 8 9(c)(f) r/w 10 and 11(1) r/w 12 of the POCSO Act, unfortunately, trial Court framed charges against the first respondent/A1 only for the offence under Section 8 and 12 of the POCSO Act (4 counts) and against the second respondent/A2 only for the offence under Section 12 of the POCSO Act (4 counts), this Court cannot convict them beyond the charges framed by the trial Court without giving opportunity to defend their case. Further even though, this Court can remit back the matter to trial Court for framing of charges, considering the present status of 18/20 http://www.judis.nic.in Crl.A.No.159 of 2019 victim children, it is not proper to bring them again to the Court and hence this Court come to the conclusion to convict the accused for the charged offences.
18. In the result, this criminal appeal is allowed and the judgment of acquittal made by the trial Court is set aside.
19. Since this appeal is against the judgment of acquittal, the respondents 1 and 2 have to be questioned regarding the sentence. Therefore the respondents 1 and 2/accused are directed to appear before this Court on 25.02.2020.
20. In the result, this Criminal Appeal is allowed.
20.02.2020 Index:Yes/No Internet:Yes/No Speaking order/Non speaking order rsi/cgi To
1.The Sessions Judge, Mahila Court, Chengalpet.
2.The Inspector of Police, Town Police Station, Chengalpattu,Kancheepuram District.
3.The Public Prosecutor, High Court, Madras.
19/20 http://www.judis.nic.in Crl.A.No.159 of 2019 P.VELMURUGAN, J., rsi Pre-Delivery Judgment in CRL.A.No.159 of 2019 20.02.2020 20/20 http://www.judis.nic.in