Madras High Court
Ramesh vs State Represented By on 20 March, 2024
Crl.A.No.654 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.03.2024
CORAM
THE HONOURABLE MRS. JUSTICE R.KALAIMATHI
Criminal Appeal No.654 of 2017
Ramesh ...Appellant /Accused
vs.
State represented by
Inspector of Police,
All women Police Station,
Attur, Salem District
(Cr.No.20 of 2014) ...Respondent/Respondent
Prayer: Criminal Appeal is filed under Section 374 of the Criminal Procedure
Code, against the judgment of the learned Mahila Judge, Sessions Judge,
Mahila Court, Salem passed in Special case No.10 of 2015 dated
28.08.2017 thereby convicting the appellant u/s of POCSO Act and
sentencing him to undergo R.I for seven years and to pay a fine of a sum of
Rs.25,000/- with in default of 6 months simple imprisonment sentence.
For petitioner : Ms.S.Thankira
For respondent : Mr.S.Udayakumar
Government Advocate (Crl.Side)
ORDER
This criminal appeal assails the judgment and sentence dated 28.08.2017 of the Mahila Court Judge, Salem, in Special S.C.No. 10 of 2015, 1/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 in and by which, the trial Court has convicted the appellant for the offence under Section 4 of the POCSO Act and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine amount of Rs.25,000/-, in default to undergo simple imprisonment of six months. The entire fine amount of Rs.25,000/- was ordered to be given as compensation to the victim girl under Section 357 (1), Cr.PC.
2. The case of the prosecution is that the victim girl (P.W1) was aged about 17 years and 4 months at the relevant point of time. The de facto complainant was residing at Keeripatty Mel Thombai Road, Amman Nagar. The accused was also residing in the same place.
➢ On 04.07.2014 at 6:30 p.m., when the victim girl went to back yard to attend her nature's call in an isolated place, the accused followed her and induced her under the pretext of love and marriage and called for sexual intercourse.
➢ When the victim girl refused for the same, the accused pulled her and committed penetrative sexual assault against her will. ➢ The act of the accused on the minor victim girl amounts to offence punishable under Section 4 r/w Section 3 of the POCSO Act, 2012. Hence, the final report.
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3. On appearance of the accused, the documents relied upon by the prosecution along with the statements of witnesses were furnished to the accused u/s 208 Cr.Pc. Upon consideration, the trial Court framed charges under Section 4 read with Section 3 of the POCSO Act. When the accused was questioned, he objected the guilt and pleaded not guilty.
4. To substantiate the charges, the prosecution examined 12 witnesses, marked 19 documents, one material object. On the defence side, one Arumugam was examined.
5. The victim girl is P.W1, P.W2 and P.W3 are the father and the mother of the victim respectively. P.W4, Duraisamy, is the neighbor of the accused and nearby resident of P.W2. P.W.5 Jayammal and P.W6 Kumar are observation mahazar witnesses. P.W7 Thiagarjan is the Head master of Keeripatty Girls Higher Secondary School, through whom study certificate (Ex.P2) of the de facto complainant was marked. P.W8 of Dr.Ravikumar gave treatment to the victim. P.W9 Dr. Sangeetha, Medical Officer of Salem Government Hospital did ossification test for the victim and issued age certificate (Ex.P4). P.W10 Dr.Padmavathi conducted medical examination on the victim (Ex.P5 and Ex.P6). P.W11 Dr.Gokularaman conducted potency 3/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 test for the accused. The age certificate in respect of the accused is Ex.P8. P.W12 Ms.Ezhilarasi is the Investigation Officer.
6. The learned counsel appearing for the appellant strenuously contended that as per the age certificate (Ex.P4), the age of the victim is given as above 16 years and below 18 years whereas P.W10 Dr.Padmavathy in Ex.P5 and Ex.P6 has mentioned the age of the girl as 19 years.
7. It is further submitted by the learned counsel for the appellant that P.W1 was not enquired by the police. The prosecution witnesses have given different versions and hence, pleaded to allow this appeal.
8. The learned counsel for the appellant has relied on the judgment of the Patna High Court in Roushan Kumar vs. State (Crl A.No.262 of 2022, dated 15.12.2023).
9. The case of the prosecution as projected through the prosecution witness in given in brief:
Duraisamy (P.W4) used to visit Natrajan's (P.W2) house and is a 4/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 resident of the same place. When Duraisamy (P.W.4) went to Natrajan's (P.W.2's) house, Natarajan (P.W.2) and his wife went out for shopping.
Thereafter, he was taking to P.W1 'S' . P.W1 'S' told Duraisamy (P.W4) that as her father and mother would come late, she told him to be there. P.W1 'S' informed Duraisamy (P.W.4) that she would go out for 10 to 15 minutes and went out. After half an hour or 45 minutes, the victim (P.W1) did not return back home. Within 20 minutes after P.W1 left out, her father and mother (P.W2 & P.W3) returned home after purchasing provisions. Duraisamy (P.W4) told them that P.W.1 has gone out and also told her parents to search for her. P.W1's parents went in search of her and brought the victim who was in an unconscious state and admitted her in private hospital. Later, the victim was taken to the Government Hospital, Athur, for further treatment.
When the minor victim regained consciousness, she told that she was ravished by the accused Ramesh.
10. It is the evidence of the victim that on 04.07.2014 at about 6:00 p.m., to attend her nature's call she went to the nearby lands. The accused came behind her and asked her why she was not talking with him and told the victim that he would marry her. When the victim refused, the accused pulled her hand and pushed her down. The victim's neck portion hit on a 5/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 stone and she felt giddiness and fainted. The accused misbehaved with the victim and she became unconscious. When the victims' parents were searching for her, they were told by that girl that she came to attend nature's call. The victims' parents came there and she was taken to Keeripatty Government Hospital. The victim's (P.W1) statement is Ex.P1. The victim girl's statement was recorded under Section 164 Cr.P.C,.
11. Natrajan (P.W2) and Mallika (P.W3) have deposed to the effect that they came from the bazaar and they were told by Duraisamy (P.W4) that their daughter (P.W1) had gone for attending nature's call and did not return home. The victim's parents (P.W2 and P.W3) went out in search of their daughter and heard their daughter murmuring near the bushes. When they went near the bush to rescue their daughter, she developed seizures. On enquiry, the victim stated that the accused kept a cloth on her mouth and sexually assaulted her.
12. It is the evidence of Natrajan (P.W2) that his daughter was unconscious when she was admitted in Government Hospital, Athur and after some time she regained her consciousness.
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13. It appears that a complaint statement was recorded the next day at about 08:30 a.m by the police. Mallika (P.W3) mother of the victim has also corroborated the evidence of Natrajan (P.W2) her husband.
14. As per study certificate (Ex.P2) of the victim girl, the date of birth is 15.03.1997 which indicates that in the year 2009-2010, the victim girl studied 8th standard.
15. P.W8 Dr.S.Ravikumar has seen the minor victim on 04.07.2014 at Government Hospital, Athur at about 10:00 p.m. The victim girl was brought to the hospital by her father Natrajan (P.W2). On enquiry, Natrajan (P.W2) told him that on 04.07.2014 at about 8:00 p.m. unknown person misbehaved with her daughter by keeping a cloth in her mouth and took her to a dark place.
16. During the examination, Dr.S.Ravi (P.W8) would state that the victim was in an agitated state. Though she was in an agitated state, the victim was conscious and oriented.
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17. Dr.Sangeetha (P.W9) has conducted ossification test on the victim girl on 28.07.2014 and gave certificate that the victim's age is above 16 years and below 18 years.
18. It is the evidence of Dr.Padmavathy (P.W10) that on 04.07.2014, when the victim was admitted in the Government Hospital, Athur, on examination of the victim's private parts, Dr.Padmavathy (P.W10) found that her hymen was not intact. On swab test, it was found that no spermatozoa was found in the vaginal smear of the victim girl. The medical records along with the final opinion of Dr.Padmavathy (P.W10) are Ex.P5 and Ex.P6 respectively.
19. Dr.Gokularaman (P.W11), Medical Officer of the Forensic Department, Salem Government Hospital, examined the accused on 11.08.2014 and issued potency certificate (Ex.P7). On examination and by the appearance of the accused, his age was fixed as 29 years. Ex.P8 is the age certificate of the accused.
20. Ezhilarasi (P.W12) Investigation Officer, took up the case for investigation. On 05.07.2014 at about 10:30 a.m., on receiving a complaint 8/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 statement from P.W1 'S', a case was registered against the accused in C.C.No 20 of 2014 under Section 4 of the POCSO Act vide Ex.P10 FIR. The Investigating Officer proceeded to the scene of occurrence inspected and prepared observation magazar (Ex.P11) in the presence of Kumar and Jayamanagalam and Ex.P12 - rough sketch. The Investigating Officer proceeded to the Government Hospital, Athur and examined the witnesses minor 'S' (P.W1), Mallika (P.W3), Duraisamy (P.W2) and Ramarajan and recorded their statement. The dress which was worn by P.W1 at the time of occurrence was seized through Ex.P.13 Seizure mahazar in the presence of P.W2 and PW3. The Investigating Officer requested the medical officers of the Government Hospital, Athur to answer her query as to whether P.W1 was sexually assaulted or not. When she came to know that the occurrence was true and on search the accused, was in hide. Upon request, the study certificate of P.W1 was obtained from the Girls Higher Secondary School, Keeripatty. As per the orders, the statement of P.W1 was recorded under Section 164 Cr.P.C by the Judicial Magistrate – 1, Athur. Upon request, the age certificate of the accused and his potency certificate was also obtained from the Medical Officer. After examining all the witnesses, the Investigating Officer completed her investigation and submitted a final report under Section 4 read with Section 3 of the POCSO Act.
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21. The learned counsel appearing for the appellant/accused stoutly contended that the victim girl was aged about 19 years, as per the medical record marked by the prosecution side. Ex.P3 accident register, Ex.P5 case sheet and Ex.P6 final opinion of the Doctor pertain to P.W.1. Therefore, the age details found in the medical records can be taken as a conclusive proof for determining the age of P.W1.
“With regard to the age of P.W1, Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, deals with the determination of age of a minor girl. Section 94, ibid., reads as under
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining — (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 10/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017
22. In this case, as per Ex.P.2, study certificate the date of birth of P.W1 has been mentioned as 15.03.1997 and as per the entries found in Ex.P2, the victim girl studied in 8th standard in the year 2009-2010. But P.W1 has stated in her evidence that her date of birth is 04.08.1996. Therefore, when she studied in 8th standard in the year 2009-2010, she was aged about 13 years,. The age certificate issued by the medical officer after ossification test reads that P.W1 is above 16 years and below 18 years. The date of the offence is 04.07.2014. As per the details of the study certificate, on the relevant date, the victim was aged 17 years and 3 months.
23. As per Section 2(d) of the POCSO Act, a child means any person below the age of 18 years. Therefore, P.W1 was aged below 18 years on the relevant date of incident.
24. The accused is charged for the offence of penetrative sexual assault. It is the evidence of P.W1 that on 04.07.2014 at about 6:00 p.m., when she went to attend nature's call, the accused came behind her and asked her why she was not taking with him and told her that he would marry her. When P.W1 refused, the accused pulled her hand and pushed her down. As a result, her neck hit on a stone and she fainted. At that time the 11/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 accused misbehaved with P.W1 and she totally became unconscious. PW.2 Natrajan father of P.W1 stated that:
" vd; kfs; ////////mJ tiu tuhjjhy; ehDk; vd;
kidtpa[k; vd; kfis njof;bfhz;Lnghndhk;/ mg;nghJ vd; kfs; mk;kh. mg;gh fhg;ghj;J';f vd;W fj;jpf; bfhz;L xU g[jh; mUnf fple;jhh;/ eh';fs; rj;jj;ij itj;J m';F ngha; ghh;j;j nghJ vd; kfs; Rfj;jpf;F epiyik jLkhwp $d;dp nghy; te;Jtpl;lJ/ "
These details are duly corroborated by P.W2 Natrajan and P.W3 Malliga.
25. The Hon'ble Supreme Court in The State Of Punjab vs Gurmit Singh & Ors reported in 1996 (2) SCC 384 held that, even based on the evidence of prosecutrix the charges held to have been proved, provided the evidence of prosecutrix inspires the confidence of this Court. It has been held by the Apex Court that “The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, 12/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.”
26. I find evidence of P.W1 is casual, cogent and believable. No parent would depose unnecessarily that their daughter was sexually abused. It has mentioned in Ex.P.1 that a similar incident happened 15 days ago. Dr.Padmavathy (P.W10) would state that P.W1's hymen was not intact. From the evidence of P.W1, P.W2 and P.W3 coupled with the evidence of P.W10 and medical records, it is clear that it is the accused who made penetrative sexual assault on the minor girl.
27. It is pertinent to note that the accused is a married person and he is having two children. From the evidence of P.W1, it is inferable that the 13/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 accused by stating that he wanted to marry P.W1 with a mala fide intention in order to have sexual intercourse with her. From P.W1's evidence, it is discernible that the accused made false promises in order to satisfy his lust. Even consensual sex with a minor falls within the ambit of deception. It is clear that the accused is a married person with two children and with a clandestine motive, ravished P.W1 who is below 18 years.
28. A girl child because of fear factor will not tend to disclose sexual abuse to other inmates. Children very often listen to the commands of elders but the same is misused.
29. My view is forfeited by the judgment of the Hon'ble Supreme Court in Gurucharan Singh vs. state (AR 72 SCC 2661 (Juvenile Justice)). From the evidences of P.W1, the cultivable culpable mental act of the accused is discernible. Then the presumption arises under Section 29 and Section 30 of the POCSO Act. Based on the evidences of P.Ws.1 to P.W4 and the medical evidence, the only possible conclusion is that the accused is the perpetrator of the crime he is charged for. The presumption raised under Section 29 is rebuttable. It is already held that absence of external injuries is not much significant from the evidence of prosecution. It is clearly 14/16 https://www.mhc.tn.gov.in/judis Crl.A.No.654 of 2017 proved that the accused followed P.W1 behind, pulled her hand and when she resisted, he stuffed a cloth in her mouth and had penetrative sexual assault.
30. In view of the above findings and based on the evidences and discussions, the conviction and sentence passed by the trial Court in S.C. No.10 of 2015 stands confirmed.
31. In the result, this criminal appeal stands dismissed.
32. Since the appellant is on bail, the Trial Court shall secure the accused by issuing warrant within four weeks from the date of receipt of copy of this order.
20.03.2024
Index : Yes/No
Internet : Yes/No
Citation : Yes/No
Speaking/Non-speaking order :Yes/No
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Crl.A.No.654 of 2017
R.KALAIMATHI,J.
vca
To
1. The Mahila Court, Salem
2.The Inspector of Police,
All women Police Station,
Attur, Salem District
Crl.A.No.657 of 2017
20.03.2024
16/16
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