Madras High Court
Manikandan vs State Represented By on 9 February, 2021
Author: P. Velmurugan
Bench: P. Velmurugan
Crl.A.No.56 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2021
CORAM :
THE HONOURABLE MR. JUSTICE P. VELMURUGAN
Crl.A.No.56 of 2019
Manikandan ... Appellant
Vs.
State Represented by
The Inspector of Police,
All Women Police Station,
Virudhachalam District. ... Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C., praying to
set aside the judgment of conviction and sentence, dated 23.05.2018,
passed by the Sessions Judge, Mahila Court, Cuddaore, in Spl.S.C.No.19
of 2017.
For Appellant : Mr.S.Saravanakumar
For Respondent : Mr.R.Suryaprakash
Government Advocate
JUDGMENT
This Criminal Appeal has been filed against the judgment of conviction and sentence, dated 23.05.2018, passed by the learned Sessions Judge, Mahila Court, Cuddalore, in Spl.S.C.No.19 of 2017. https://www.mhc.tn.gov.in/judis/ Page 1 of 20 Crl.A.No.56 of 2019
2.The respondent Police have registered a case in Crime No.23 of 2016 against the appellant for the offences punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for brevity), and Section 506(ii) IPC. After completing the investigation, they laid a charge-sheet before the Mahila Court, Cuddalore. Since the offence falls under POCSO Act, 2012, the learned Sessions Judge has taken the charge-sheet on file in Spl.S.C.No.19 of 2017.
3.After completing the formalities, the learned Sessions Judge framed charges against the appellant for the offences under Section 5(l) r/w. 6 of the POCSO Act and Section 506(ii) IPC.
4.After trial, the learned Sessions Judge convicted the appellant for the offences punishable under Section 6 of the POCSO Act and sentenced him to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.10,000/-, in default, to undergo Rigorous Imprisonment for a further period of one year, and also convicted him for the offence punishable under Section 506(ii) IPC and sentenced him to undergo Rigorous Imprisonment for a period of one year and to pay a fine https://www.mhc.tn.gov.in/judis/ Page 2 of 20 Crl.A.No.56 of 2019 of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of three months.
5.Challenging the said judgment of conviction and sentence, the appellant/accused is before this Court.
6.Learned counsel for the appellant would submit that, originally the case was registered only under Section 4 of the POCSO Act, however, the learned Sessions Judge, erroneously convicted the appellant for the offences under Section 6 of the POCSO Act and Section 506(ii) IPC. The learned counsel would further submit that there is no material or medical evidence to prove that the victim girl was subjected to rape, and therefore, the conviction and sentence imposed against the appellant are not in accordance with law. Even as per the prosecution, the alleged occurrence of rape is said to have taken place within 10 feet from the house of the victim girl, however, the victim girl has not disclosed about the occurrence to her parents immediately, and therefore, the occurrence itself is very doubtful.
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7.The learned counsel for the appellant would further submit that the victim girl was examined as P.W.2 and she has stated that the alleged occurrence is said to have taken place on two occasions, i.e. on 18.08.2016 and 03.09.2016, however, the victim girl informed about the occurrence to her mother (P.W.1) only on 23.09.2016, and thereafter, the mother (P.W.1) gave a complaint (Ex.P1) to the respondent Police on 23.09.2016 and an FIR was registered on the same day. The Inspector of Police (P.W.8) is the one who received the complaint on 23.09.2016 at 12.00 p.m., and the accused was arrested by the Police and the place of arrest is also in doubtful.
8.The learned counsel for the appellant would further submit there is a dispute between the families of the appellant and the victim girl. Due to such personal enmity and to take vengeance, the family of the victim girl have foisted a false case against the appellant and the same was also put as a suggestion during cross-examination of the prosecution witnesses. The learned counsel would submit that the prosecution witnesses are only interested witnesses and there are material contradictions between the evidence of P.W.1 and P.W.2. Though the https://www.mhc.tn.gov.in/judis/ Page 4 of 20 Crl.A.No.56 of 2019 mother of the victim girl (P.W.1) gave a complaint (Ex.P1) before the Police stating that, on two occasions, i.e. on 18.08.2016 and 03.09.2016, the appellant is said to have committed rape, the victim girl (P.W.2) has not made any statement about the second incident, dated 03.09.2016, before the Judicial Magistrate (P.W.5) while recording the statement under Section 164 Cr.P.C. Moreover, though P.W.1, the mother of the victim girl, admitted during cross-examination that on the same day of occurrence, i.e. on 18.08.2016 itself, she came to know about the occurrence and she also gave a complaint to the Police and the Police have registered a case, the complaint given on 18.08.2016 has been completely suppressed by the prosecution.
9.The learned counsel for the appellant would submit further that the place of occurrence is very nearer to the house of the victim girl and it is not possible to commit sexual assault in such an open place, that too, where there is very frequent movement of public. The learned counsel would further submit that the evidence of the Doctor (P.W.4), who examined the victim girl, also does not corroborate with the evidence of the victim girl (P.W.2), and there are material contradictions between the evidence of the victim girl (P.W.2) and the mother of the victim girl https://www.mhc.tn.gov.in/judis/ Page 5 of 20 Crl.A.No.56 of 2019 (P.W.1). The learned counsel would submit that the learned Sessions Judge failed to consider the material contradictions and also the previous motive between the two families and convicted the appellant only on assumption and on sympathy, and therefore, the judgment of conviction and sentence passed by the trial Court against the appellant, is liable to be set aside.
10.Learned Government Advocate appearing on behalf of the respondent would submit that, in the complaint (Ex.P1), the offence of sexual assault on two occasions, i.e. on 18.08.2016 and 03.09.2016, has been stated. The victim girl (P.W.2), during the deposition before the trial Court, has clearly narrated about the two incidents and the Doctor (P.W.4) who has examined the victim girl, has clearly stated that the victim girl told her that on two occasions, she was subjected to sexual assault by the appellant. The learned Government Advocate would further submit that, though the victim girl (P.W.2) has not stated about the second incident in the statement recorded under Section 164 Cr.P.C. by the learned Magistrate, that may not be a sole ground to conclude that the evidence of the victim girl is not trustworthy and the evidence of the victim girl (P.W.2) can be thrown away. Moreover, the evidence of the Doctor https://www.mhc.tn.gov.in/judis/ Page 6 of 20 Crl.A.No.56 of 2019 (P.W.4) completely corroborates with the evidence of the victim girl (P.W.2) that the victim girl was subjected to penetrative sexual assault. From the evidence of the victim girl (P.W.2), the Doctor (P.W.4) and the evidence of the learned Magistrate (P.W.5), the prosecution has clearly established their case beyond reasonable doubt and the victim girl, at the time of occurrence, was only 15 years old, and the appellant has committed penetrative sexual assault on the victim girl, and therefore, the trial Court has rightly convicted the appellant, and the appeal is liable to be dismissed.
11.Heard the learned counsel on either side and perused the materials available on record.
12.The case of the prosecution is that the victim girl (P.W.2) was aged about only 15 years at the time of occurrence, i.e. on 18.08.2016 and 03.09.2016. When the victim girl was returning from the school on 18.08.2016, the appellant threatened her and took her to a secluded place and committed penetrative sexual assault on the victim girl, and also threatened her not to reveal it to anyone. However, the victim girl informed about the same to her mother (P.W.1), who in turn, gave a https://www.mhc.tn.gov.in/judis/ Page 7 of 20 Crl.A.No.56 of 2019 complaint (Ex.P1) to the respondent Police and the respondent Police filed a case in Crime No.23 of 2016 against the appellant.
13.After completing the investigation, the respondent Police laid a charge-sheet before the Mahila Court, Cuddalore, and the same was taken on file in Spl.S.C.No.19 of 2017, and charges were framed against the appellant as stated in the foregoing paragraphs of this order.
14.In order to prove the case, on the side of prosecution, as many as 8 witnesses were examined as P.W.1 to P.W.8, and 10 documents were marked as Exs.P1 to P10, and no Material Object was exhibited.
15.After completing the prosecution evidence, the incriminating circumstances culled out from the prosecution witnesses were put before the appellant, the same was denied as false and pleaded not guilty, however, on the side of the appellant, no oral or documentary evidence was produced.
16.After considering the evidence on record and hearing the arguments advanced on either side, the learned Sessions Judge, vide https://www.mhc.tn.gov.in/judis/ Page 8 of 20 Crl.A.No.56 of 2019 judgment dated 23.05.2018 in Spl.S.C.No.19 of 2017, convicted and sentenced the appellant as stated above.
17.This Court, being an Appellate Court, is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give an independent finding.
18.The complaint (Ex.P1) has been lodged by P.W.1, who is none other than the mother of the victim girl. Though she is not an eye- witness to the occurrence, since the victim girl is a minor as well as a female, the mother of the victim girl (P.W.1) has filed the complaint (Ex.P1) before the respondent Police. A reading of the complaint (Ex.P1) clearly indicates that the appellant committed penetrative sexual assault on the victim girl on two occasions, i.e. on 18.08.2016 and 03.09.2016. Further, after registration of the FIR, during the course of investigation, the victim girl (P.W.2) was produced before the Doctor, who was examined as P.W.4, and the Doctor (P.W.4) has also deposed in her evidence that, when the victim girl was produced before her for clinical examination, the victim girl told her that, on two occasions, she was subjected to penetrative sexual assault by the appellant. The evidence of https://www.mhc.tn.gov.in/judis/ Page 9 of 20 Crl.A.No.56 of 2019 the Doctor (P.W.4) and also the Medical Report of the victim girl (Ex.P4) indicate that there are possibilities of sexual assault and the hymen of the victim girl was also not intact. Therefore, the evidence of the Doctor (P.W.4), coupled with the Medical Report (Ex.P4), confirms that the victim girl was subjected to penetrative sexual assault.
19.The main defence taken by the learned counsel for the appellant is that there is a previous enmity between the families of the appellant and the victim girl and he has also put an effective suggestion to that effect before the prosecution witnesses during trial. However, it has not been established by the defence that, due to such enmity, the victim girl has gone to the extent of making a false complaint before her mother and the mother without verifying the same, has made a complaint (Ex.P1) before the respondent Police. Further, merely because of some dispute between the two families, the victim girl, aged about only 15 years, would not have sacrificed her life to take vengeance on such enmity by giving a false complaint against the appellant. Moreover, the evidence of the Doctor (P.W.4) clearly indicates that the victim girl was subjected to penetrative sexual assault. The appellant has also not examined any witness on his side to establish that, due to enmity, a false case was https://www.mhc.tn.gov.in/judis/ Page 10 of 20 Crl.A.No.56 of 2019 registered against him. Even though the appellant need not come to the witness box and establish his defence, when the evidence of the prosecution witnesses and the medical report proved that the appellant has committed the offence, there is presumption under Section 29 of the POCSO Act. It is the duty of the accused to rebut the presumption, especially under the POCSO Act, and the presumption has to be rebutted by the accused, however, in this case, the same has not been done by the appellant in the manner known to law.
20.The other defence taken by the learned counsel for the appellant is that the earlier complaint given by the mother of the victim girl was suppressed by the Police and the mother of the victim girl (P.W.1), in her evidence, has stated about only one occurrence, and that there was a love affair between the appellant and the victim girl. Admittedly, the victim girl was only 15 years at the time of occurrence. Therefore, even assuming that due to infatuation, the victim girl has given consent, then also, the offence falls under the POCSO Act. Such consent is not valid under law. The victim girl (P.W.2) has clearly stated in her evidence that the appellant had committed penetrative sexual assault on her on 18.08.2016 under threat, and subsequently on 03.09.2016 also https://www.mhc.tn.gov.in/judis/ Page 11 of 20 Crl.A.No.56 of 2019 under threat, and thereafter, she informed to her mother about the occurrence. Though the victim girl has not stated about the second incident before the Judicial Magistrate during recording of statement under Section 164 Cr.P.C., that cannot be a sole ground to disbelieve the evidence of the victim girl and doubt the trustworthiness of her evidence. Though the victim girl has not stated about the second incident before the Judicial Magistrate, she has stated about both the incidents before her mother, who, in turn, stated about the same in her complaint (Ex.P1). The evidence of the Doctor (P.W.4) also clearly states that the victim girl told her that she was subjected to penetrative sexual assault on two occasions. Even assuming that the occurrence has happened on only one occasion, from the evidence of the victim girl (P.W.2), and the evidence of the Doctor (P.W.4), coupled with the medical report (Ex.P4), it is clear that the victim girl has been subjected to penetrative sexual assault. Therefore, mere non-mentioning of the second incident by the victim girl while recording statement under Section 164 Cr.P.C. cannot be a sole ground to disbelieve the evidence of the victim girl. Therefore, the said contention raised by the learned counsel for the appellant is not acceptable. https://www.mhc.tn.gov.in/judis/ Page 12 of 20 Crl.A.No.56 of 2019
21.Further, even though there are contradictions between the evidence of the prosecution witnesses, P.W.1 and P.W.2, considering the object of the POCSO Act, this Court is of the view that the contradictions pointed out by the learned counsel for the appellant are not material contradictions to disbelieve the case of the prosecution, but only minor contradictions with regard to the place of occurrence, and that will not vitiate the case of the prosecution. The allegation against the appellant is that, when the victim girl, who was aged only 15 years, was returning from school, the appellant threatened her and took her to a secluded place and committed penetrative sexual assault on her, and thereafter, it was brought to the knowledge of the mother of the victim girl, and she lodged a complaint before the respondent Police and the respondent Police registered a case, investigated the matter and laid a charge-sheet, and in order to prove the case, the prosecution examined 8 witnesses and out of the 8 witnesses, the victim girl was examined as P.W.2 and she has narrated about the occurrence and she clearly stated that she was subjected to penetrative sexual assault on two occasions and the appellant is the one who has committed the offence.
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22.Further, the evidence of the Doctor (P.W.4) clearly shows that the victim girl, who was a minor aged only 15 years, was subjected to penetrative sexual assault and the learned Magistrate (P.W.5), who recorded the statement of the victim girl under Section 164 Cr.P.C., has stated in her evidence that the victim girl was produced before him and she observed that she was giving the evidence without any fear and she was giving the statement voluntarily. The evidence of the Judicial Magistrate (P.W.5) reveals that the victim girl was subjected to penetrative sexual assault and the victim girl named the appellant who committed the penetrative sexual assault. Therefore, on a perusal and consideration of the evidence of the victim girl (P.W.2), the Doctor (P.W.4), the Judicial Magistrate (P.W.5), the complaint (Ex.P1), the statement of the victim girl recorded under Section 164 Cr.P.C. (Ex.P2) and the Medical Report of the victim girl (Ex.P4), the school certificate of the victim girl (Ex.P5) which shows that at the time of the occurrence, the victim girl was only 15 years old, and all other oral and documentary evidence on record, this Court finds that the prosecution has proved its case beyond reasonable doubt that the appellant has committed penetrative sexual assault on the victim girl, who was a minor aged 15 years at the time of the occurrence, and https://www.mhc.tn.gov.in/judis/ Page 14 of 20 Crl.A.No.56 of 2019 therefore, POCSO Act would attract against the appellant. Even assuming that the victim girl stated before the Judicial Magistrate that the appellant has committed the penetrative sexual assault on the victim girl on only one occasion and date of occurrence is between 18.08.2016 and 03.09.2016, in the complaint, it is stated that the appellant twice committed penetrative sexual assault. The mother of the victim girl clearly stated that her daughter told that the appellant committed the offence on two occasions. P.W.4 – Doctor also stated that the appellant committed the offence on two occasions. Complaint was given on 23.09.2016. Doctor examined the victim child on 06.10.2016, whereas, the victim child was produced before the Judicial Magistrate only on 18.11.2016 for the statement recorded under Section 164 Cr.P.C. which is not substantive evidence. However, the victim has deposed before the trial Court, while examining as witness, that the appellant on two occasions has committed penetrative sexual assault. The Doctor's evidence also corroborated the same. Medical report also supports the same and the matter of fact that the victim girl, aged only 15 years, was subjected to penetrative sexual assault under threat and coercion by the appellant.
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23.Though the learned counsel for the appellant would submit that the evidence of the Doctor (P.W.4) would clearly state that there are no external injuries on the private parts of the victim girl at the time of examination and he has also put a suggestion as to the possibility of the breaking of hymen due to some other reasons, that itself does not establish the defence, because, the Doctor (P.W.4) has examined the victim girl only after more than 20 days from the date of occurrence, and therefore, the appearance of external injuries or semen cannot be expected. It is also not the case of the prosecution that the victim girl was produced before the Doctor on the same day of occurrence, for examination. It is also very clear from the evidence of the victim girl that, due to threat, she did not reveal about the occurrence immediately. Therefore, under these circumstances, where the offence under POCSO Act is very well established, this Court has no hesitation to consider the evidence of the victim girl alone, and it cannot expect any corroborative evidence or eye- witness or any other independent witness. In cases of this nature, presence of eye witnesses are mostly improbable. If the evidence of sole witness is cogent, credible and trustworthy, conviction is permissible. Admittedly, in this case, the victim girl has clearly narrated before the trial Court as https://www.mhc.tn.gov.in/judis/ Page 16 of 20 Crl.A.No.56 of 2019 well as before the Doctor who examined her that she was subjected to penetrative sexual assault twice and the appellant is the one who had committed the penetrative sexual assault on her, and the said evidence is also corroborated by the medical evidence of the Doctor (P.W.4).
24.It is relevant to extract relevant provisions of POCSO Act :
Section 3(a) of the POCSO Act reads as follows :
“3.A person is said to commit ''penetrative sexual assault'' if -
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person;” Section 5(l) of the POCSO Act reads as follows :
“5.Aggravated Penetrative Sexual Assault and Punishment therefor :
(l) whoever commits penetrative sexual assault on the child more than once or repeatedly;” Section 6 of the POCSO Act reads as follows :
“6.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.” https://www.mhc.tn.gov.in/judis/ Page 17 of 20 Crl.A.No.56 of 2019
25.Under these circumstances, this Court can safely come to the conclusion that the appellant has committed aggravated penetrative sexual assault on the victim girl and therefore, the prosecution has established its case beyond reasonable doubt. In the light of the above discussion, this Court does not find any merit in this appeal and the appeal is liable to be dismissed.
26.Accordingly, this Criminal Appeal is dismissed and the judgment of conviction and sentence passed by the trial Court is confirmed.
27.The trial Court is directed to secure the accused and commit him to prison to undergo the remaining sentence. Bail bond executed by the appellant, if any, shall stand canceled.
09.02.2021 mkn https://www.mhc.tn.gov.in/judis/ Page 18 of 20 Crl.A.No.56 of 2019 To
1.The Sessions Judge, Mahila Court, Cuddalore.
2.The Inspector of Police, All Women Police Station, Virudhachalam District.
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
https://www.mhc.tn.gov.in/judis/
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Crl.A.No.56 of 2019
P. VELMURUGAN, J.
mkn
Crl.A.No.56 of 2019
09.02.2021
https://www.mhc.tn.gov.in/judis/
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