Madras High Court
K.Packrisamy @ Ravi vs State Represented By Its on 2 March, 2021
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.418 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2021
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.418 of 2019
K.Packrisamy @ Ravi ... Appellant
Versus
State represented by its
The Inspector of Police,
Thirunallar Police Station,
Karaikal.
Crime No.118 of 2017 ... Respondent
PRAYER: Criminal Appeal is filed under Section 374(2) Cr.P.C seeking to set
aside the judgment and sentence dated 27.06.2019 imposed in Special.S.C.No.1
of 2018 on the file of the learned Special Judge, Karaikal.
For Appellant : Mr.Naveen Kumar Murthi
Legal Aid Counsel.
For Respondent : Mr.D.Bharatha Chakravarthy
Public Prosecutor (Pondicherry)
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Crl.A.No.418 of 2019
JUDGMENT
This Criminal Appeal has been filed seeking to set aside the judgment and sentence dated 27.06.2019 imposed in Special.S.C.No.1 of 2018 on the file of the learned Special Judge, Karaikal.
2. The respondent police registered the case in Crime No.118/2017 against the appellant for the offence punishable under Section 506(1) of IPC and also u/s.6 of POCSO Act. After completing the investigation, the respondent police laid charge-sheet before the Special Judge at Karaikal. Since the offence against the women, particularly child which falls under the POCSO Act, the learned Special Judge, taken the case on file in Spl.S.C.No.01/2018.
3. After completing the formalities, the learned Special Judge framed charges against the appellant for the offence u/s.506(i) of IPC and also offences punishable under Sections 4, 6, 8 and 10 of POCSO Act. After framing charge, during the trial, in order to prove the case of the prosecution, on the side of the prosecution, as many as 17 witnesses were examined as P.W.1 to 17, 24 documents were marked as Ex.P.1 to Ex.P.24 and Material Objects 1 to 4 were 2/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 marked. After completing the examination of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant and he denied it as false and on the side of the defence and pleaded not guilty. On the side of defence, no oral and documentary evidence was produced.
4. After completing the trial and also hearing the arguments advanced on either side, the learned Special Judge convicted the appellant for the offence u/s.506(ii) IPC and sentenced him to undergo rigorous imprisonment for 6 months and also convicted the appellant for the offence punishable u/s.6 of POCSO Act and sentenced him to undergo 10 years rigors imprisonment and to pay a fine of Rs.2000/- in default to undergo 6 months simple imprisonment. The learned Special Judge found that the charges u/s.4, 8 and 10 of the POCSO Act are not proved. Against the conviction and sentence passed by the Special Judge, the accused has preferred the present appeal before this court. 3/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019
5. The learned Legal aid counsel for the appellant would submit that identification of the accused is in great suspicion and the mother of the victim girl has stated that the victim girl identified the accused from the school diary of victim and further he would submit that the prosecution stated that the accused took the victim girl to dining room and punched her private part and locked her. It is not stated that who has opened the lock and the person who opened the room and released the victim girl has not been examined and not been verified by the prosecution. The victim girl is 4 ½ years at the time of occurrence and was studying L.K.G. at Vigneshwara High School, Madhur Road, Sethur Thirunallar, Karaikal. The appellant was working as Head Master in the same school. No Head Master would do this type of activities that too with L.K.G. student. There are material contradictions between the evidence of Prosecution witnesses. P.W.1, the mother of the victim girl stated that she informed to her brother seeking assistance of P.W.1 and P.W.3 brother. The mother and brother of the victim girl alleged to have taken the victim child P.W.2 to nearby female medical practitioner viz., Dr. Annie and the said doctor was examined as P.W.14 but she has stated that she only informed and asked her to go to Government Hospital and also to prefer the complaint. But thereafter the victim girl was not taken to 4/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 the Government Hospital immediately and also not given the complaint. Even P.W.1 mother of the victim girl has stated that they consulted with the relatives and thereafter she made the complaint. The learned Legal Aid counsel for the petitioner would further submit that the complaint was given after discussion and deliberation and foisted a false case against the appellant. The alleged occurrence is said to have taken place on 18.08.2017 at about 9 a.m. The allegation is that a person who is working in the school where the victim girl is studying is alleged to have taken the victim child to the dining room and pressed the private part of the victim girl and inserted finger on the private part of the child and pressed over the same at the time of 9 O clock. Admittedly, at that time, there was assembly prayer. It is not possible to state that Head Master has done this at the time of prayer and that the Head master took the victim girl to a room and involved in this kind of activity, so it is highly suspicious. The victim girl informed to her mother same day evening. But the mother ignored the same. Next day also the victim girl informed her mother and then she is taken to nearby private clinic. Doctor in the private clinic advised to take the child to a female medical officer to take test of the victim girl in the private medical hospital. As far as the complaint is concerned, as to why the mother of the victim girl has not 5/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 immediately given the complaint is not explained.
6. The mother of the victim girl has stated that she was asked to meet the correspondent to take action against the appellant and also to inform to the Social Welfare Officer but that has not been done. The prosecution has failed to examine these aspects. Further the learned legal aid counsel would vehemently contend in front of the school, there was shopping complex in the school premises. There is no specific separate room and door for lunch. Further he would submit that P.W.9 in her evidence, further deposed that there are 5 rooms available near the ground floor and in other floor, no closed door and grill gate. Therefore, the deposition is inconsistent with the case of the prosecution. The evidence of P.W.15 doctor who examined the victim had categorically deposed that there is no evidence of recent sexual intercourse and sexual assault are found on the private parts of the victim girl. P.W.15 admitted injuries found in the private part for one week and an old scar which could have been caused by the act of rubbing or by way of scrubbing by herself due to itching. Further P.W.15 given opinion which has been marked as Ex.P.15, in which it has been stated that no external injury, no nail mark or finger mark in the private part of the victim 6/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 girl. Prior to the occurrence, victim girl was dropped in the school by her grand father and after one week, she was sent in school van and lady attender was accompanying the school children. Three lady doctors P.W.14, P.W.15 and P.W.16 examined the victim girl, but the victim girl never disclosed about the alleged occurrence to any one of the above doctors and it creates suspicion over the prosecution case. Only to defame the reputation of the school and to vacate the premises, the complaint has been given with malicious intent. The mother of the victim girl suppressed the real motive behind the malicious prosecution and complained an unoccurred incident as against the appellant. Therefore, the trial court failed to look into the material contradictions. Only in order to defame the reputation of the school and to vacate the school from the said premise, the present complaint has been given. The trial court failed to consider these aspects and convicted the appellant, which warrants interference and the judgment of the Special Court is liable to be set aside.
7. Learned Government Advocate (Criminal Side) would submit that the victim girl is aged about 4 ½ years studying in L.K.G. at Vigneshwara High School, Madhur Road, Sethur, Thirunallar, Karaikal. The alleged occurrence is 7/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 reported by the victim child to her mother on 18.08.2017. The appellant who was working as Head master in the said school took the victim girl into the dining room of the said school, alleged to have pinched on the cheek of the victim child and indulged in an act of inserting his finger in the private parts of the victim child and pressed over the same. The victim girl subsequently informed to the mother that something itching in the private part. But the mother convinced the child. Again, 2nd day the victim child informed that that she is having itching sensation in her private part, mother noticed reddishness in the private part of the victim child. So the mother taken the victim to a nearby doctor who advised the mother of the victim child to consult a female medical practitioner. When the mother of the victim child taken to P.W.14 Doctor Annie Bullah Juliet, the doctor examined the child and when P.W.14 asked about the victim child, the victim child informed about the incident. The victim child informed the doctor that the person who done the said act photograph is available in her school diary. Subsequently, they made a complaint and the prosecution investigated the matter. P.W.2 is the victim girl who clearly deposed about the incident. P.W.1 is the mother of the victim girl. She has stated that she preferred the complaint, took the victim girl to the hospital where the doctor examined the victim girl. The doctor 8/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 also deposed that she examined the victim child and there was reddishness and no injury. But the doctor referred the case to the Government Hospital. The evidence of P.W.1 to 3, Birth Certificate of the victim girl and statement recorded under Section 164 Cr.P.C., has clearly proved that the victim girl was subjected to sexual assault. In the statement of the victim girl recorded u/s.164 Cr.P.C. also, it is clearly stated by the victim girl the entire events which is marked asEx.P.20. The statement of victim girl’s mother recorded u/s.164 Cr.P.C., is marked as Ex.P.21 and Statement of victim’s uncle recorded u/s.164 Cr.P.C., is marked as Ex.P.22, which clearly shows that the appellant had committed the offence. The prosecution has clearly established its case. Even though there is no eye witness to the said incident, it cannot be expected that in such type of incidents, accused does such act before the eye witness. Person who worked as Head Master definitely would have taken the chance and taken the victim girl and no body would doubt the victim child who is aged 4 ½ years studying LKG, therefore, taking advantage of the trust, the victim girl was subjected to sexual assault. Therefore, trial court rightly appreciated the fact and there is no reason to interfere with the conviction of the accused. There is no material in the appeal. The Criminal Appeal has no merits and it is liable to be dismissed. 9/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019
8. Heard both sides and perused the records.
9. The case of the prosecution is that the defacto complainant is P.W.1 whose daughter is victim child aged about 4 ½ years studying LKG in Sri Vigneshwara High School. On 18.08.2017, at 9 O clock in the morning, the accused took the victim minor child to the dining room of the said school, alleged to have pinched on the cheek of the victim child and indulged in an act of inserting his finger into the private part of the victim child and pressed over the same. The victim girl subsequently informed to the mother that something itching in the private part. But the mother convinced the child. Again, 2nd day the victim child informed that that she is having itching sensation in her private part, mother noticed reddishness in the private part of the victim child. So the mother taken the victim to a nearby doctor who advised the mother of the victim child to consult a female medical practitioner. When the mother of the victim child taken to P.W.14 Doctor Annie Bullah Juliet, the doctor examined the child and when P.W.14 asked about the victim child, the victim child informed about the incident. The victim child informed the doctor that the person who done the said act photograph is available in her school diary. Subsequently, P.W.1 made a 10/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 complaint and the prosecution investigated the matter. P.W.2 is the victim girl who clearly deposed about the incident. P.W.1 is the mother of the victim girl.
10. The Appellate Court is a fact finding court. It has to necessarily reappreciate the entire evidence and give an independent finding. Accordingly, this court perused the entire records produced by the prosecution before the trial court.
11. The trial court framed charges against the appellant punishable u/s.4, 6, 8 and 10 of POCSO Act and u/s.506(i) of IPC. In order to prove the charge against the appellant, totally 17 witnesses were examined on the side of the prosecution out of which, victim girl was examined as P.W.2. She is only about 4 ½ years old. Victim girl was studying in the school at the time of occurrence and in the morning 9 O clock, the appellant who is working as Head Master pinched her in the cheek, confined her in the school room, threatened her not to disclose anything to anybody and also removed her dress by fixing plaster over her mouth and also inserted his finger into the private part of the victim girl. The victim girl has stated that subsequently she informed to her mother and she was brought to a 11/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 private clinic and the doctor referred the matter to the Government Hospital and also suggested to go to a lady doctor. Thereafter, the victim girl was taken to P.W.14 doctor who examined the victim and referred to Government Hospital. Subsequently, the victim girl was examined by PW.15. P.W.15 examined the victim and found the injury which was partially healed scar on the posterior fourchette, one week scar and gave opinion which is marked as Ex.P.13. The victim girl was also produced before Judicial Magistrate for recording statement u/s.164 Cr.P.C. The statement recorded from the victim girl was marked as Ex.P.20. The statement u/s.164 Cr.P.C. of mother of the victim girl was marked as Ex.P.21. The statement u/s.164 Cr.P.C. of victim’s uncle was marked as Ex.P.22. The mother of the victim girl has clearly stated that her daughter was aged 4 ½ years and she did not mention the name of the appellant, but identified through School diary. The victim girl also stated that she identified the accused from the school diary. P.W.14 doctor also stated that the victim girl identified the appellant from the school diary. Therefore, the evidence of P.W.2 victim girl and also her statement recorded by the Magistrate marked as Ex.P.20 and also the doctor who written the history of the case also mentioned the same and there is no contradictory statement. P.W.14 doctor has clearly stated that mother of the 12/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 victim girl also stated about the incident. Therefore, the contention of the learned Legal Aid counsel for the appellant that the identity of the appellant stated by the victim child is highly doubtful, cannot be accepted.
12. The other contention of the learned Legal Aid counsel for the appellant that at the time of occurrence, prayer was going on in the school and the appellant is a Head Master and so it was not possible for him to indulge in such act by taking the victim into a separate dining room and locking the door. The victim girl is aged about 4 ½ years, she came to school by van and also the attendance register shows that victim girl attended the school. It is not the case of the appellant that the victim girl did not attend the school, but the victim girl is not present in the room. Even though the victim girl is 4 ½ years and she could not state the exact details of the occurrence, she stated that on the day of occurrence, in the morning hours, appellant took her to dining room and committed the offence. The further contention of the learned Legal Aid counsel that there was no dining room in the school and the girl was locked inside the room and thereafter somebody released her from the room is also not clear. The victim girl is 4 ½ years old and she may not notice all these things. Further, she may not 13/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 know the person who opened the dining room. Further the contention that the staff who opened the room was not examined is concerned, no employee or teacher in the private school will come and give evidence against the Head Master of the said school considering the reputation of the school and also thinking about his or her future and not to spoil the employment. Therefore, non examination of the staff of the school who opened the room will not be fatal to the case of the prosecution. After the occurrence, some other student or teacher could have seen it and therefore no eye witness in this type of cases is expected.
13. P.W.14, 15 and 16 are the doctors who examined the victim girl and their evidence corroborated the evidence of P.W.1 and P.W.2 victim girl. Ex.P.1 complaint and also the birth certificate of the victim girl marked as Ex.P.12, P.W.14 doctor opinion marked as Ex.P.13 and the statement recorded u/s.164 Cr.P.c., from the victim girl, her mother and her uncle marked as Exhibits P.20, P.21 and P.22 clearly would go to show that the victim girl is a child and comes under definition of Section 2(1)(d) of the POCSO Act.
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14. It is useful to extract relevant provisions of the Protection of Children from Sexual Offences Act, 2012 [POCSO Act] for this case.
"2. Definitions . (1) In this Act, unless the context otherwise requires, -
(d) "Child" means any person below the age of eighteen years
3. Penetrative sexual assault - A person is said to commit "penetrative sexual assault" if -
(a) .........
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
4. Punishment for penetrative sexual assault. - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.
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5. Aggravated penetrative sexual assault. -
(m) whoever commits penetrative sexual assault on a child below twelve years; or
6. Punishment for aggravated penetrative sexual assault. -
(1) Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine.
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.
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9. Aggravated sexual assault. - (a) Whoever, being a police officer, commits sexual assault on a child -
(m) whoever commits sexual assault on a child below twelve years; or
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) ............
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; 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. "
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15. From the evidence of the victim girl and the doctor, it is seen that the victim girl was subjected to aggravated penetrative sexual assault. Therefore, the appellant was identified by the victim girl through school diary. The prosecution has established the case that the appellant committed aggravated penetrative sexual assault on the victim girl and also threatened the victim not to disclose to anybody. Therefore, under these circumstances, this court finds that the appellant has committed offence under Sections 3(b) punishable under Section 4, 5(m) punishable under Section 6, 7 punishable under Section 8, 9(b) punishable under Section 10, 11(ii) punishable under Section 12 of POCSO Act and u/s.506(i) of IPC. But the trial Judge convicted the appellant only for the offence punishable under Section 6 of POCSO Act and under Section 506(i) of IPC. However, either State or victim has not filed any appeal. In view of the foregoing observations, there is no merit in the appeal and the appeal is liable to be dismissed.
16. It is pertinent to mention here that the trial Judge not properly appreciated the evidence of victim and not understood the relevant provisions of 18/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 POCSO Act. In many cases, this Court observed that the Special Judges who deal with cases under POCSO Act, not properly understood the scope and object of the POCSO Act. Before posting any Sessions Judge to the Special Court which deals with the cases under POCSO Act, have to necessarily sensitise and impart training to them through State Judicial Academy. The Registrar General and Director of State Judicial Academy have to necessarily take steps for the same after getting necessary approval from My Lord The Honourable Chief Justice as Patron-in-Chief and Board of Governors of the State Judicial Academy.
17. It is seen from the records that the appellant/accused is at large and therefore, the trial court is directed to take appropriate steps so as to immure him in prison to serve out the remaining period of sentence.
18. The Legal Aid counsel appointed by this Court is entitled to legal fees as per Rules.
02.03.2021 Index:Yes/No nvsri 19/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 To
1. The Special Judge, Karaikal.
2.The Inspector of Police, Thirunallar Police Station, Karaikal.
3.The Public Prosecutor, High Court of Madras.
4.The Section Officer, Criminal Section, High Court, Madras.
Copy to:
1. The Registrar General High Court, Madras.20/22
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2. The Director, State Judicial Academy, Greenways Road, Chennai.
21/22 https://www.mhc.tn.gov.in/judis/ Crl.A.No.418 of 2019 P.VELMURUGAN,J.
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