Madras High Court
V.Raja vs The Inspector Of Police on 6 May, 2016
CRL.A(MD).No. 271 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 05.03.2021
Delivered On : 08.06.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRL.A(MD).No. 271 of 2016
V.Raja : Appellant / Sole Accused
Vs.
The Inspector of Police,
All Women Police Station,
Kulithalai, Karur District. : Respondent / Respondent
PRAYER:- Criminal Appeal filed under Section 374 Cr.P.C., to allow the
appeal and acquit the appellant by setting aside the judgment passed by the
learned Sessions Judge, (Mahila Fast Track), Karur, in S.C.No.01 of 2016,
dated 06.05.2016.
For Appellant : Mr. B.Sekar
For Respondent : Mr. V.Neelakandan,
Additional Public Prosecutor.
JUDGMENT
“Childhood should be carefree, playing in the sun;
not living a nightmare in the darkness of the soul”
- Dave Pelzer 1/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 The Criminal Appeal is directed against the judgment of conviction passed in Special Sessions Case No.01 of 2016, dated 06.05.2016, on the file of the Fast Track Mahila Court, Karur.
2.The Inspector of Police, All Women Police Station, Kulithalai, has laid the final report against the accused alleging that the defacto complainant – victim, who is a 9th standard student of Government Women Higher Secondary School, xxxxx and residing in the refugee camp at xxxxx, in Kulithalai, her date of birth is 16.04.2002, a minor on the date of occurrence. On 13.06.2015, at about 01.00 p.m., when the defacto complainant went to the bath room situated nearby her house, the accused too entered the bath room from behind and locked the door. When the victim attempted to open the door, the accused threatened to kill her, in continuation of that threat made her lie on the ground and lying on top of her penetrated his private part on to the private part of the victim, thereby committed sexual assault on her. When the victim girl shouted in pain, the accused threatened to kill her father when he was on his way to work if she ever discloses this incident. Thus, the accused is said to have committed the offences punishable under Sections 5 and 6 of POCSO Act and Section 506 (i) of I.P.C.
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3.The learned Judicial Magistrate No.II, Kulithalai, on perusing the records and after compliance under Section 25 (2) of POCSO Act, has submitted the case papers to the Special Court and the case was taken on file in Special Sessions Case No.1 of 2016, on the file of Fast Track Mahila Court, Karur. After appearance of the accused, the learned Sessions Judge, on hearing both the sides and on perusal of records, being satisfied that there existed a prima facie case against the accused, framed charges under Section 3 r/w. 4 of POCSO Act, 2012 and under Section 506 (i) of I.P.C. and the same were read over and explained to him and on being questioned, the accused denied the charges and pleaded not guilty.
4.The prosecution, in order to prove its case, has examined 18 witnesses as P.W.1 to P.W.18 and exhibited 23 documents as Ex.P1 to Ex. P.23 and 4 material objects as M.O.1 to M.O.4.
5.The case of the prosecution emerging from the evidence adduced by the prosecution, in brief, is as follows:-
(i) P.W.1, the victim girl as well the defacto complainant, is the daughter of P.W.2 and P.W.3. P.W.1 to P.W.3 and the accused are residing in refugee camp at xxxxx. P.W.4 to P.W.9 are residing at 3/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 Irumpoodhipatti. P.W.3 is doing painting work and he is having three daughters. P.W.1 is the third daughter of P.W.2 and P.W.3. P.W.1 was studying in 9th standard at Government Women Higher Secondary School, xxxxx. On 13.06.2015, Saturday, P.W.1 was at home being a holiday and at about 1.00 p.m, she went to the bath room. The accused, who is residing nearby her house, came behind her and entered into the bath room. He removed the shirt of the victim girl and made her to lay on the ground and thereafter, the accused took his private part and pressed against the private part of the victim girl. When she cried that it hurts, he threatened to kill her father if she ever discloses the incident to anybody.
(ii).On 14.07.2015, P.W.1 went to the grocery shop situated in their camp at about 6' O clock in the morning. Accused, who was standing there, gave a folded white paper and P.W.1 refused to receive the same.
Immediately, the accused came to hit her and P.W.1, after throwing the white paper given by the accused, returned back to her home. P.W.5 Sivakumari, who is residing in the same camp, was present in the grocery shop at 6.00 a.m. on 14.07.2015, for purchasing the groceries and she witnessed the said incident. While she was returning to her home, the accused, who was standing nearby his house, called her and informed that he had affairs with P.W.1 and that is why he gave that letter to her. After 4/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 returning to her home, P.W.1 informed about that particular incident as well that which happened on 13.06.2015 to her parents. On 15.07.2015, P.W.2 had taken P.W.1 to the All Women Police Station, Kulithalai, and P.W.1 gave a complaint under Ex.P1.
6.P.W.18- Tmt.Selvi, the then Inspector of Police, All Women Police Station, Kulithalai, was on duty on 15.07.2015, P.W.1 came to the Police Station along with her mother and gave a complaint. She received the same and registered a case in Crime No.10 of 2015 under Sections 5 and 6 of POSCO Act and under Section 506(i) of I.P.C. and prepared the First Information Report under Ex.P16. Immediately, she sent the victim girl for medical examination through Women Constable and thereafter, she examined the victim girl and recorded her statement. P.W.18 has then examined the parents of P.W.1 and recovered the dress of P.W.1 (M.O.1) worn by her at the time of occurrence through seizure mahazer under Ex.P3. P.W.18 had then visited the place of occurrence and in the presence of P.W.7 – Arumugam and one Muthukumar prepared the Observation Mahazer under Ex.P4 and Rough Sketch under Ex.P17. On 18.07.2015, at about 02.30 p.m., she arrested the accused, who was identified by P.W.1- victim girl and on enquiry, the accused gave a voluntary confession 5/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 statement and P.W.18 recorded the same in the presence of P.W.8- Amalanathan and P.W.9-Krishnakanth. In pursuance of the confession statement under Ex.P18, the accused was taken to his residence, wherein he had taken and handed over a full hand shirt (M.O.3) and Dhoti (M.O.4) and handed over the same to P.W.18, who in turn, recovered the same in the presence of the same witnesses through seizure mahazer under Ex.P19.
7.As per the requisition of the Investigating Officer, P.W.13 Dr.Anandhi, Senior Residential Medical Officer, examined the victim girl and noticed no external injuries and also found that hymen was intact and she gave a medical certificate under Ex.P.12, giving her opinion she is virgin and that there were no symptoms for rape.
8.P.W.10 - Dr. Meharnisha Begam, Assistant Professor in Radiology Department of the K.A.P. Government Medical Collage Hospital, as per the requisition received from the Court of Judicial Magistrate No.II, Kulithalai, had taken X-Rays for the accused and after examination, she has issued a age certificate under Ex.P.6 stating that the accused is above 50 years of age on the date of examination. P.W.16 Dr. Selvakumar, has also examined the accused and gave his certificate under Ex.P15, giving 6/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 his opinion that there is nothing to suggest that the accused is incapable of performing sexual intercourse and that there are no evidence suggestive of recent sexual intercourse. P.W.11 – Jeya, Scientific Officer attached to the Trichy Regional Forensic Laboratory, has received case property, as per the requisition of the Court of Judicial Magistrate No.II, Kulithalai, under Ex.P7 and Ex.P9 and after examination, issued the Biological reports under Ex.P8 and Ex.P10, stating that no blood or semen was detected on the case properties. P.W.18 has then examined the Medical Officers and the Scientific Officer, received their certificates, examined them and recorded their statements. She sent a requisition to the Court for recording the statement of the victim girl under Section 164 Cr.P.C. under Ex.P20. The learned Judicial Magistrate No.II, Kulithalai, after complying with the necessary requirements has recorded the statement of the victim under Section 164 of Cr.P.C. and sent the file under Ex.P11 containing the statement under Ex.P.2. Thereafter, P.W.18 has again examined the victim girl and her parents and received the birth certificate of P.W.1 under Ex.P23. After completing the investigation, P.W.18 has filed the charge sheet against the accused under Sections 5 and 6 of POSCO Act and Section 506(i) of I.P.C. With the examination of P.W.18, the prosecution has closed their side evidence.
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9.When the accused was examined under Section 313 (i)(b) of Cr.P.C. with regard to the incriminating aspects found available against the accused, he denied the same as false and stated that a false case has been foisted against him. Thereafter, the accused has examined two witnesses as D.W.1 and D.W.2 and exhibited one document as Ex.D1. D.W.1 - Dr.Murugesan is running Santara Eye Care Hospital at Musiri, he examined the accused on 20.03.2016 and advised him to undergo surgery for removing the cataract and he issued a certificate under Ex.D1. D.W.2- Dr. Anbalagan is an Advisor in Raja Ortho Hospital, Karur. He had treated the accused for the bone injury on his left leg and had fixed the nails.
10.The learned Sessions Judge, upon considering the evidence adduced and on hearing the arguments on both the sides, has passed the impugned judgment, on 06.05.2016, convicting the accused for the offence under Section 3 r/w. 4 of POSCO Act, 2012 and under Section 506(1) I.P.C. and sentenced him to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one month simple imprisonment for the offence under Section 3 r/w. 4 of POSCO Act, 2012 and to undergo one year simple imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo one month simple imprisonment for the 8/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 offence under Section 506(1) I.P.C. Aggrieved by the said judgment of conviction and sentence, the accused has preferred the appeal, now under consideration.
11.I have heard Mr.B.Sekar learned counsel for the appellant and Mr.V.Neelakandan, learned Additional Public Prosecutor for the respondent.
12.Whether the impugned judgment, dated 06.05.2016, passed in Special Sessions Case No.01 of 2016, on the file of Fast Track Mahila Court, is liable to be set aside ? is the point for consideration.
13.The case of the prosecution is that on 13.06.2015, at about 1.00 p.m., when the complainant/ P.W.1 went to the bath room situated nearby her house, the accused, who came behind her, had also entered into the bath room and locked the room inside, that the accused by threatening the victim girl made her to lay on the ground and he lay over her, committed penetrative sexual assault on the victim and he threatned that in case, if she discloses the incident, he would kill her father. 9/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016
14.Before entering into further discussion, it is necessary to refer Section 29 of POSCO Act, which deals with reverse burden:
“Section 29: Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”
15.The above provision imposing reverse burden must not only be required to be strictly complied with, but also may be subject to proof of some basic facts as envisaged under the statute. The prosecution has to establish a prima facie case beyond reasonable doubt and only when the foundational facts are established by the prosecution, the accused will be under an obligation to rebut the presumption that arise, that too, by adducing evidence with the standard of proof of preponderance of probability. Moreover, foundational facts in a POCSO case include the proof that the victim is a child, that alleged incident has taken place, that the accused has committed the offence and whenever physical injury is caused, to establish it with supporting medical evidence. If the foundational facts of the prosecution case is laid by the prosecution, by 10/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 leading legally admissible evidence, the duty of the accused is to rebut it, by establishing from the evidence on record that he has not committed the offence. It is pertinent to mention that this can be achieved by eliciting patent absurdities or inherent infirmities in the version of the prosecution or in the oral testimony of witnesses or the existence of the enmity between the accused and the victim or point out the peculiar features of the particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour or bring out material contradictions and omissions in the evidence of witnesses, or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that victim is not a child.
16.In the case on hand, P.W.1- victim is the only occurrence witness for the main incident alleged to have happened on 13.06.2015. It is not in dispute that P.W.1 is the daughter of P.W.2 and P.W.3 and that they are residing in the refugee camp, xxxxx, at Kulithalai. It is also not in dispute that the accused is also residing in the very same refugee camp, residing a few houses away from the house of the victim. P.W.1, in her evidence before the trial Court would depose that on 13.06.2015, she was at her home being a holiday and at about 1.00 p.m, when she went to the bath 11/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 room, the accused, who was standing nearby, came behind her into the bath room and locked the door. He then removed her shirt, made her to lay on the floor and pressed his private part as against her private and when the victim cried that it hurts her, the accused had threatened to kill her father, if she discloses the incident. In cross examination she would say “uh[h epd;W nfhz;Nl vdJ fTid J}f;fptpl;lhh;. uh[h mg;NghJ vdJ thia nghj;jptpl;lhh;. ................ uh[h mtuJ Mz; cWg;ig vdJ ngz; cWg;gpy; itj;jhh;. gpd; vd;id kpul;b tpl;L nrd;Wtpl;lhh;. rk;gt rkak; uh[h Ntl;b mzpe;jpUe;jhh;. uh[h epd;W nfhz;L rl;ilia J}f;fptpl;L> gpd; vd;id gLf;f itj;J mtuJ Mz;cWg;ig vdJ ngz;cWg;gpy; itj;jhh;. ehd; typf;fpwJ vd;W fj;jpNdd;.” As already pointed out, P.W.1 alone lodged the complaint under Ex.P1. No doubt, she gave the complaint as if she was raped by the accused, but at the same time, the evidence of P.W.1 regarding the date, time and place of occurrence stand corroborated by her Ex.P1 - complaint. Further, during investigation, at the instance of Investigating Officer, a statement under Section 164 of Cr.P.C. was recorded from P.W.1 - victim by P.W.12 - Judicial Officer. In Ex.P.2 -statement, she has stated “13.06.2015 md;W kjpak; 1.00 kzpf;F ehd; ghj;&kpw;F rpWePh; fopf;f ghj;&k; nrd;Nwd;. uh[h vd;gth; mg;NghJ fjit js;sptpl;L fjitj; jpwe;J cs;Ns Eioe;J gpd;dh; fjitj;
12/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 jhopl;Lf;nfhz;lhh;> ehd; fjitj; jpwf;f Kad;Nwd;. gpd;dh; ehd; fj;jp fjitj; jpwf;f Kaw;rpj;jNghJ cd;idf;nfhd;WtpLNtd; vd;W nrhy;yptpl;L vd;id fPNo gLf;fg;Nghl;L vd; kPJ Vwp gLj;Jtpl;lhh;. gpwF mthpd; Mz;cWg;ig vdJ ngz;cWg;gpy; itj;jhh;. itj;J Eiof;ifapy;> ehd; typf;fpwJ vd;W fj;jpNdd;. ,ijg; gw;wp ahhplkhtJ nrhd;dhy;> cd; mg;gh Ntiyf;Fg; NghFk;NghJ Ms; itj;J nfhd;WtpLNtd; vd;Wk;> cd;idAk; nfhd;WtpLNtd; vd;Wk; kpul;bdhh;.” Considering the above, as rightly contended by the learned Additional Public Prosecutor, the evidence of P.W.1 regarding the occurrence stands corroborated by her statement under Section 164 of Cr.P.C. as recorded by the Judicial Officer.
17.Regarding the second occurrence allegedly held on 14.07.2015, P.W.1 in her evidence would say that on 14.07.2015, she went to the grocery shop situated in their camp at about 6.00 a.m., the accused, who was standing in the shop, gave her a folded white paper. When she refused to receive it, the accused had tried to hit her and she had thrown away the paper and returned home. It is pertinent to mention that P.W.1 in her complaint under Ex.P1 and in her 164 Statement under Ex.P2 has specifically stated about the occurrence held on 14.07.2015. P.W.5 in her evidence would say that on 14.07.2015, at about 6.00 am, she went to the 13/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 grocery shop of P.W.6, that P.W.1 also came to that shop at that time and that the accused, who was standing there, gave a letter to P.W.1 and immediately P.W.1 had returned to her home. No doubt, P.W.5 would further say that while she was returning to her home, the accused, who was standing infront of his house, called her and informed that he was having affairs with P.W.1 and that is why he gave a letter to her. She would also say that the accused had narrated about the earlier incident. As rightly contended by the learned counsel for the defence, the above portion of the evidence of P.W.5 is inadmissible and the same cannot be looked into as it is only hearsay. No doubt, P.W.6, the owner of the grocery shop had turned hostile. But, it is pertinent to mention that simply because a particular witness is declared as hostile and is subjected to cross examination by the prosecution, the evidence of the witness cannot be rejected in toto. In this case, P.W.6 would say that one day at about 06.00 a.m., in the month of June – 2015, when he was in his petty shop, P.W.1 came and purchased sugar, that the accused was standing aside, that he went to the back of his shop for taking the goods and that he was not aware as to what had happened meanwhile. As rightly contended by the learned Additional Public Prosecutor, though P.W.1 and P.W5 were subjected to cross examination, their evidence regarding the incident held on 14.07.2015 was 14/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 not at all shaken and the evidence of P.W.1 stands corroborated by the evidence of P.W.5 and to some extent by the evidence of P.W.6 and also by Ex.P1 and Ex.P2.
18.Now, turning to the age of the victim, it is the specific case of the prosecution that P.W.1 was aged 14 years at the time of occurrence. P.W.1 in her evidence would say that she was studying 9th standard at Government Women Higher Secondary School, xxxxx, on the date of occurrence. P.W.1’s mother - P.W.2 would also say that her daughter – P.W.1 was studying 9th standard at that time. P.W.18 - Investigation Officer has produced the copy of the birth certificate of P.W.1 under Ex.P23 and whereunder, the date of birth of P.W.1 is shown as 16.04.2002. As rightly contended by the learned Additional Publi Prosecutor, the defence has disputed neither the genuineness nor the contents of Ex.P23. Moreover, P.W.18 was not at all cross examined with respect to Ex.P23. Though P.W. 1 and P.W.2 would say that P.W.1 was studying 9th standard at that time, the same was not at all challenged during the cross examination. Considering the above, as rightly contended by the learned Additional Public Prosecutor, the prosecution has clearly proved that P.W.1- victim was aged 14 years at the time of the occurrence.
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19.Now, coming to the medical evidence, P.W.16 – Doctor, who examined the accused, would say specifically that there is nothing to suggest that the accused is incapable of performing sexual intercourse. P.W.13 - Doctor, who examined the victim, would say that there were no external injuries, that hymen was intact, that she is a Virgin and that there were no symptoms for the commission of rape. No doubt, it is pertinent to mention that it is not the case of complete penetration. Though the occurrence had happened on 13.06.2015, P.W1 and the accused were subjected to medical examination on 15.07.2015 and 31.07.2015 respectively. Hence, the absence of injuries on the private part and other parts of the body of P.W.1 and the private parts of the accused does not favour the accused and not fatal to the prosecution.
20.Considering the above, this Court has no hesitation to hold that the prosecution has proved the basic and foundational facts so as to attract the offence under Section 3 of the POCSO Act and as such, the burden gets shifted to the accused and it is for the accused to rebut the presumption by establishing from the evidence on record that he has not committed the offence. As already pointed out, the accused has examined two Doctors – D.W.1 and D.W.2 alledgedly in support of the case, but, on the other hand, 16/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 the evidence of D.W.1 and D.W.2 does not advance the case of the defence any further. D.W.1 - Eye Doctor would say that he advised the accused to undergo cataract surgery and that at the time of his examination, the accused was able to see a person without any difficulty and his version was clear. D.W.2 would say that though the accused had a surgery of his left leg, he was able to walk and sit like others and that he can do all the work like others.
21.It is not in dispute that a common bath room was there in the street where P.W.1 to P.W.3 and accused were residing. It is also not in dispute that P.W.3 had constructed a bath room recently for their use adjacent to their house property. The main defence of the accused is that the accused and as well as others had raised objections for constructing a bath room in that place, that since P.W.3 had constructed, there existed disputes and enmity between them, that the family members of the accused and P.W.3 were summoned by the police prior to the alleged second occurrence and conducted an enquiry, that both the families had agreed to settle the matter amicably and gave a statement by subscribing their signatures and that thereafter, due to the said enmity, P.W.3 has lodged a false complaint through his daughter implicating the accused. No doubt, 17/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 as rightly pointed out by the defence, P.W.2 - mother of P.W.1, in her cross examination would admit that the police had obtained signatures from herself, her husband and also from the son and daughter of the accused and that they had informed the police that they would settle the matter amicably. But, she would categorically deny that there existed enmity because of the construction of bath room. P.W.1 and P.W.3, in their cross examination would deny the motive theory suggested by the defence. Moreover, when P.W.18 - Investigating Officer was in witness box, she was not at all cross examined with the above motive theory and not even a suggestion was made in this regard. Except the above suggestions, the accused has not produced any evidence or materials nor elicited any other aspect during the cross examination of the prosecution witnesses to prove that there existed a dispute and consequent previous enmity between them.
22.The next contention of the defence is that though the alleged occurrence took place on 13.06.2015, complaint was lodged on 15.07.2015, after a delay of more than 30 days, that the prosecution has not offered any reason or explanation for the inordinate delay and that the above delay creates a reasonable doubt regarding the case of the prosecution. No doubt, as rightly pointed out by the defence, the complaint 18/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 was lodged with a delay of 30 days. Hon’ble Supreme Court in Deepak Vs. State of Haryana reported in 2015 (4) SCC 762 has held:
“15.Coming to the first submission relating to the lodging of the FIR for the commission of the offence is concerned, in our considered opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but also considering the facts and circumstances of the case, it was natural.
16. The Courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in State of Punjab vs. Gurmit Singh & Ors.[ (1996) 2 SCC
384)].” 19/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016
23.Generally, the delay in lodging an F.I.R. in a sexual assault case is not of much significance, as the minor victim has to muster courage to come out in open and expose herself in a conservative social milieu. It is settled law that delay in lodging the First Information Report cannot be used as a ritualistic formula for disbelieving the prosecution case and doubting its authenticity and it only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Bearing the above settled position of law in mind, let us the consider the case on hand. In the present case, F.I.R was lodged on 15.07.2015, after disclosing the occurrences on 13.06.2015 and 14.07.2015 by P.W.1 to her mother and her mother, in turn, had taken her to the police station on 15.07.2015 and gave the complaint through P.W.1. As rightly pointed out by the learned Additional Public Prosecutor, P.W.1 in her evidence would say that since the accused had threatened that in case if she discloses the incident, he would kill her father, she had not disclosed the occurrence to anybody. Even in cross examination also she would say “ehd; fj;jpa cld; uh[h vd;id kpul;btpl;L gae;J ntspNa nrd;W tpl;lhh;. uh[h vd; je;ijia nfhd;W tpLNtd; vd vd;id kpul;bajhy; ehd; gae;J nfhz;L Nkw;gb rk;gtj;ij ahhplKk; nrhy;ytpy;iy.” The accused 20/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 has also taken a stand that P.W.2 after coming to know about the occurrences on 14.07.2015, she has not chosen to lodge the complaint on that date itself, but, on the other hand, they had only lodged the complaint on 15.07.2015. P.W.2 in her cross examination would say “md;W vd; fzth; 08.00 kzpf;F Ntiyf;F nrd;whh;. vd; ngz; Foe;ij tp\ak; vd;gjhy; fye;J Ngrpf;nfhz;L gpd; Gfhh; nfhLf;fyhk; vd;W ,Ue;J tpl;Nld;.” It is the specific case of the prosecution that P.W.2 and P.W.3 - parents of P.W.1 came to know about the occurrence which had happened on 13.06.2015 only on 14.07.2015 and that P.W.1 had disclosed the occurrence only on 14.07.2015. The non-disclosure of the offence by the victim - P.W.1 earlier was well justified by her in her complaint under Ex.P1 and in her statement recorded under Section 164 of Cr.P.C. under Ex.P2 and also in her evidence. Moreover, the accused has not shown as to how he was prejudiced by the said delay.
24.No doubt, as rightly pointed out by the defence, they have elicited some contradicitons in the evidence of prosecution witnesses. But the contradictions elicited are not with respect to any material aspect of the case and as such, they are not sufficient enough to doubt the case of the prosecution. Moreover, the evidence of the victim, who has been subjected 21/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 to sexual assault, is very crucial piece of testimony to prove the case against the accused. It is settled law that conviction for an offence of sexual assault can be based on the sole testimony of the prosecutrix if it is found to be natural and trustworthy. In the case of State of Punjab Vs. Gurumeeth Singh and others reported in AIR 1996 SC 1393, the Hon’ble Apex Court held that the Court can rely upon the evidence of the prosecutrix even without seeking corraboration and if the evidence of the victim inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. The Hon’ble Supreme Court has further observed that the evidence of a girl, who complains of sexual assault should not be viewed with doubt, disbelief, or suspicion and that the evidence of a victim of a sexual offence is entitled to great weight even without corroboration.
25.No doubt, the defence has attempted to take a half-hearted stand that there was absolutely no evidence to show the penetration and as such, Section 3 of POCSO Act has no application at all. As already pointed out, in the case on hand, it is not the case of complete penetration, but at the same time, so as to attract the provision of Section 3 (a) of POCSO Act, complete penetration is not necessary and even a very slight penetration is 22/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 sufficient enough to invoke the provision. More importantly, Section 3 of the said Act would get attracted, if the accused manipulates any part of the body of the child so as to cause penetration into the vigina or makes the child to do so with him. In the case on hand, as already pointed out, P.W.1 would say that the accused made her to lay on the ground, that thereafter, he lay over the victim, that he pressed his private part into the private part of the victim and the victim had screamed in pain. Considering the above and more particularly from the evidence of P.W.1 that she screamed in pain, we can easily infer that the accused had committed penetration to some extent. As rightly contended by the learned Additional Public Prosecutor, the evidence of P.W.1 is consistent, cogent and reliable. Though P.W.1 was subjected to lengthy cross examination, nothing noteworthy has been brought out to doubt her version and to discard her evidence. On considering the entire evidence, the decision of the learned trial Judge that the accused is guilty of the offence under Section 3 of POCSO Act and under Section 506 (1) of I.P.C cannot be found fault with and this Court is entire agreement with the finding of the trial Court.
26.Now, turning to the punishment imposed, as already pointed out, the learned trial Judge has sentenced the accused to undergo 10 years 23/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one month simple imprisonment for the offence under Section 3 r/w. 4 of POCSO Act and to undergo one year simple imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one month simple imprisonment for the offence under Section 506(1) I.P.C.
27.As already pointed out, the victim girl and the accused are residing in refugee camp at xxxxx. Violance against the women, more particularly girls, is a problem across the world and it effects girls of all races, ethnic groups, classes and nationalities. One fails to imagine how a person would think of ravishing a minor innocent girl, who is just a child and that too when the girl is already known as a relative or as a neighbour. Sexual assault upon a girl child is the most sinfull and barbaric atrocity on the body as well the mind of the victim. It is not only deplorable, but severely punishable. Hence , the punishment so awarded cannot be found fault with and consequently, the Criminal Appeal is liable to be dismissed.
28.In the result, the Criminal Appeal is dismissed and the judgment of conviction and sentence imposed on the accused by the learned Sessions Judge, (Mahalir Fast Track Court), in S.C.No.01 of 2016, dated 24/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 06.05.2016, is hereby confirmed. The trial Court is directed to take steps to secure the accused to undergo the remaining period of sentence, if any.
08.06.2021 Index : Yes : No Internet : Yes : No Ls/das To
1. The Sessions Judge, (Fast Track Mahila Court), Karur.
2.The Inspector of Police, All Women Police Station, Kulithalai, Karur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
25/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 271 of 2016 K.MURALI SHANKAR,J.
Ls/das Pre-delivery order made in CRL.A(MD).No. 271 of 2016 08.06.2021 26/26 https://www.mhc.tn.gov.in/judis/