Madras High Court
Srini@ Srinivasan vs State Rep. By on 18 February, 2016
Crl.A.No.227 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.03.2022
PRONOUNCED ON: 29. 03.2022
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.A.No.227 of 2016
Srini@ Srinivasan .. Appellant
Vs.
State rep. by
The Inspector of Police,
Marandhahalli Police Station,
Dharmapuri District.
Crime No.219/2014 .. Respondent
Criminal Appeal filed under Section 374 (2) Cr.P.C. to set aside the
conviction and sentenced imposed on him In Special S.C.No.49 of 2015 on
the file of the learned Sessions Judge, Fast Track Mahila Court,
Dharmapuri, and set aside the Judgement dated 18.02.2016 and acquit the
appellant by allowing this appeal.
For Appellant : Mr.R.Thirugnanam
For Respondent : Mr.J.Subbiah
Govt. Advocate (Crl. Side)
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https://www.mhc.tn.gov.in/judis
Crl.A.No.227 of 2016
JUDGMENT
The appellant was an accused in Special S.C.No.49 of 2015 on the file of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri District.
2. The Appellant/Accused has been prosecuted by the Inspector of Police, Marandhahalli Police Station, Dharmapuri District, for having trespassed in to the house of the victim girl, who belongs to SC/ST caste and intentionally insulted and sexually assaulted, offences punishable under Sections 448 IPC, Section 7 r/w 8 of Protection of Children from Sexual Offences Act, 2012, Section 3 (1) (r) and 3(1) (w) (i) of SC/ST (Prevention of Atrocities) Act 1989 and Amendment Ordinance 2014 and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act 1998.
3.In the trial Court, the prosecution examined 19 witnesses (P.W.1 to P.W.19) and filed 13 documents (Ex.P.1 to Ex.P13). On the side of the appellant/accused neither the evidence nor the document were marked. Page 2 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016
4. The trial Court, considering the prosecution evidence, found that the appellant/accused was not guilty under Section 3 (1) of SC/ST (Prevention of Atrocities) Act and Section 7 r/w 8 of POCSO ACT and acquitted him. However, convicted and sentenced the appellant/accused under Section 448 IPC, Section 3(1) (w) (i) of SC/ST (Prevention of Atrocities Act) 1989 and Section 11 (i) (IV) Protection of Children from Sexual Offences Act as follows:
Name of the Provision under which Sentence
accused convicted
Section 448 IPC Two months simple
Imprisonment and fine of
Rs.1000/-, in default to undergo
one month Simple
Imprisonment.
Section 3(1) (w) (i) of Six months Simple
Srini @ SC/ST (Prevention of Imprisonment and fine of
Srinivasan Atrocities Act) 1989 Rs.1000/-, in default to undergo
one month simple
Imprisonment
Section 11(i)(IV) Six months Simple
Protection of Children Imprisonment and fine of from Sexual Offences Rs.1000/-, in default to undergo Act one month Simple Imprisonment The aforesaid sentences were ordered to run concurrently. Page 3 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 Challenging the conviction and sentence, appellant/accused Srini @ Srinivasan has preferred this appeal.
5. The case of the prosecution is that, the victim girl (Name not mentioned) (P.W.1), aged about 17 years, belongs to Aadhidravidar community and studying 11th standard at Marandhahalli Government Higher Secondary School. She is residing at Chinnagumannur Village and her mother Parvathy (P.W.2) and Father Sellan (P.W.6) are working at Bangalore. Her brother is a lorry driver and he was also out of station. The victim girl alone staying in the house and studying in the school. She knows the appellant/accused/ Srini @ Srinivasan. On 17.08.2014 night, when she was sleeping in her house alone, she felt someone broken the door of the house and lying near her and placed his hand on her chest. On feeling this, she immediately put on light and found the appellant/accused and she came to know that he trespassed into her house. Immediately, she attempted to go out of the house. The appellant/accused told her that she belongs to lower caste and he belongs to upper caste and uttered a word Page 4 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 ''(th gu fz;lhuXsp vdj; jplo; dhh)''. Immediately, when she tried to come out of the house, he kicked her. Thereafter, she went out of the house and entered the next house of Rajamani (P.W.5) and Lakshmi (P.W.7) and she informed about the incident. They asked her to stay in their house. The next day morning, informed the matter to her aunt, who in turn, informed to her Father Sellan (P.W.6) and Mother Parvathy (P.W.2). Based on the information, Parvathi (P.W.2), mother of the victim, gave a complaint (Ex.P.1) to the Sub Inspector of Police, Marandhahalli Police Station
6. Mr.Navas (P.W.13) Sub Inspector of Police, received the complaint (Ex.P.1) on 18.08.2014 at 21.30 hours and registered a case in Marandhahalli Police Crime No.219 of 2014 under Section 376, 511 IPC and 7 and 8 of POCSO Act and 3 (1) (w) (i) SC/SC Act and forwarded the registered FIR (Ex.P.6) with related records to the higher officers.
7.Mr.A.Annamalai, Deputy Superintendent of Police, Pennagram, (P.W.19) received the FIR and other records. As per the order of the proceedings of the Superintendent of Police (Ex.P.13), he took up the case Page 5 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 for investigation. He went to the place of occurrence on 19.08.2014 at about 10.30 a.m., he prepared Observation Mahazar (Ex.P.2) and Rough Sketch (Ex.P.12) in the presence of Pazhanisamy (P.W.4) and Kuppusamy (P.W.3). Further, he recorded the statement of the victim girl (PW.1), Parvathy (P.W.2).
8.The Investigation Officer (P.W.19) sent the victim girl (P.W.1) for medical examination with a requisition and Dr.Anitha Tamarai Selvi (P.W.10) examined the victim girl (P.W.1) and issued the Medical Report (Ex.P.3)
9.The appellant/Accused surrendered before the Judicial Magistrate Court, Palacode, and was remanded to Judicial custody at Dharmapuri Sub Jail. Mr.A.Annamalai (P.W.19) Deputy Superintendent of Police, Pennagram, took the custody of the accused on 26.08.2014 then sent him to medical examination with a requisition letter (Ex.P.4), Doctor Sathish Kumar (P.W.11) examined him and gave the medical report (Ex.P.5). Page 6 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016
10.The Investigation Officer further made arrangement for examination of the victim and for recording the statement under Section 164 (Cr.P.C). Tmt.Bharathi (P.W.18), Judicial Magistrate-I, Gobichettipalayam, recorded the 164 Cr.P.C. statement (Ex.P.4) of the victim girl (P.W.1) and C.D. (M.O.1).
11. The Investigation Officer, thereafter, obtained Community Certificate of the victim (Ex.P.8) from the Tahsildar, Thamizharasan (P.W.16) and the Community Certificate of the accused (Ex.P.10) from A.Sivagnanam, Tahsildar (P.W17) and recorded the statement of other witnesses. After completing the investigation, filed a final report under Sections 448 IPC, Section 7 r/w 8 of Protection of Children from Sexual Offences Act, 2012, Section 3 (1) ( r) and 3(1) (w) (i) of SC/ST (Prevention of Atrocities) Act 1989 and Amendment Ordinance 2014 and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act 1998.
12.The learned counsel for the appellant submitted that the trial Court failed to appreciate the evidence properly. FIR (Ex.P.6) is not Page 7 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 reliable as Parvathy (P.W.2) deposed during the cross examination that he gave the FIR to the Deputy Superintendent of Police but the complaint was received by Navas Sub-Inspector of Police (P.W.13). He further contended that according to (P.W.2), the complaint was signed by the victim girl but (Ex.P.1) there is no signature of the victim girl, it creates a doubt about the genuineness of the complaint. The original complaint given by the victim girl was suppressed by the police. The present complaint (Ex.P.1) is seen as signed by the mother of the victim Parvathy (P.W.2). It goes to the root of the prosecution case. Further, the learned counsel contended that (P.W.13) Navas, Sub Inspector of Police, sent the requisition letter (Ex.P.7) on 19.08.2014 to Superintendent of Police, Dharmapuri, to appoint the Investigation Officer as the case was registered under SC/ST Act. But, the proceedings issued by Sub Inspector of Police, Dharmapuri, appointing (P.W.19) Annamalai as Investigation Officer was dated 18.08.2014, which was marked as (Ex.P.13) and it shows serious defect in the investigation. The trial Court fails to appreciate this fact, FIR (Ex.P.6) was registered only at 9.30 p.m on 18.8.2014. On the date itself, Annamalai (P.W.19) could not be appointed as the Investigation Officer. Further, according to Page 8 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 the evidence of (P.W.1) and (P.W.2), the Deputy Superintendent of Police (P.W.19) came to her house on the same night on 18.08.2014, that is inconsistent with the evidence of (P.W.19). According to him, he visited the place of occurrence only on 19.08.2014 at 10.30 a.m. Further, contended that the evidence of (PW.1) victim girl was not corroborated with the any other witnesses. Father (PW.6) and Mother (P.W.2) of the victim girl are not eye witnesses to the occurrence. Further, according to the evidence of the victim girl (P.W.1) she ran out of the house and stayed at the house of Rajamani (P.W.5) and Lakshmi (P.W.7) throughout the night and the next day he informed others but (P.W.5) and (P.W.7) did not support the prosecution case and they were treated as hostile. The Investigation Officer (P.W.19) examined P.W.5 and P.W.7 and recorded their statement after two months, creates doubt.
13. Learned counsel further contended that according to the prosecution story (P.W.8) Ponnammal had informed the occurrence to the parents of the victim girl (P.W.1) but Ponnammal (P.W.8) not supporting the prosecution case, she was also treated as hostile. Further, contended that, according to the prosecution, the appellant/accused broke open the Page 9 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 door and entered into the house of the victim girl. But, the Investigation Officer failed to note the broken door in his Mahazar and not recovered any broken part and reiterated other grounds raised in the grounds of appeal. The trial Court failed to appreciate the evidence properly, the evidence of the victim girl (P.W.1) is unreliable. The trial Court erred in believing the evidence of (P.W.1) and found guilty of the appellant/accused which is liable to be set aside and thus pleaded to allow the appeal.
14.The learned counsel for the State submitted that the evidence of the victim girl (P.W.1) is reliable one. It has ring of truth, conviction may be recorded on the sole testimony of the victim prosecutrix if her evidence inspires confidence. The other evidences also corroborated the prosecution case. The trial Court was right in finding that the accused was guilty of the offence. There is no reason to interfere with the conviction and sentence imposed by the trial Court. There is no merit in the appeal and thus pleaded to dismiss the appeal.
15. I have considered the rival submissions made by the learned counsel for the parties and the State and perused the materials available on record.
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16. I have considered the case in the light of the submissions made by the parties.
17. The evidence on record shows that the victim girl (P.W.1) aged about 17 years belongs to Adhidravidar Community. She stayed in her home at Chinnakammanur village and studied 11th standard at Government Higher Secondary Marandhahalli, her Father (P.W.6) and Mother (P.W.2) were staying and working at Bangalore and the victim girl (P.W.1) alone was residing in the house are not disputed fact.
18. The alleged occurrence took place on 17.08.2014 at night hours., time is not stated by the victim girl during her examination before the Court.
19. I have gone through the evidence of victim girl, she stated that on 17.08.2014 while she was sleeping alone in her house, she felt some one broke open the door and lying near her and placed his hand on her chest. She immediately, put on the light and found the appellant/accused. He also belongs to her village and she immediately came out from the house then, the accused scolded her by using her caste name ''(th gu fz;lhuXsp vdj; jpl;odhh)” and also kicked her.
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20.She entered into the neighbour house belongs to Rajamani (P.W.5) and Lakshmi (P.W.7) and stayed that night and on the next day she informed the fact to her aunt Ponnammal (P.W.8), who in turn informed the fact to her Father Sellan (P.W.6) and Mother Parvathy (P.W.2). They came to home thereafter, gave the complaint to the police. For better appreciation her evidence is reproduced as follows:
brd;w tUlk; Mf!;l; khjj;jpy; 17/08/14Mk; njjpapy; ehd; tPlo; y; ,utpy; ehd; kl;Lk; Jh';fp bfhz;oUe;njd;/ mg;nghJ fjit cilj;J tpl;L te;J vd;dplk; gLj;jhh;/ ahnuh gLj;jpUe;jjhf czh;e;njd;/ vd;Dila be";rpd; kPJ. khh;gpd; kPJ if itj;jpUe;jJ nghy ,Ue;jJ/ ehd; vGe;J iyl; nghl;L ghh;j;njd;/ mJ rPD (v) rPdpthrd;/ mth; v';fs; Ciu nrh;e;jth;/ mth; mj;J kPwp EiHe;J tPlo; w;Fs; te;jpUe;jhh;/ ehd; btspna tu Kaw;rp bra;J nghJ cs;ns th gu fz;lhuXsp vd jpl;odhh;/ ehd; nky; rhjp. eP fPH; rhjp ehd; brhd;dhy; nfl;f ntz;Lk; vd;W brhd;dhh;/ ehd; btspna tu tu vd;id fhyhy; vl;o cijj;jhh;/ mg;nghnj gf;fj;J tPlo; y; ,Ue;j uh$hkzp. yl;Rkp Mfpnahh;fsplk; brhd;ndd;/ mth;fs Page 12 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 v';fs; tPlo; y; j';fp bfhs; vd;W brhy;yp mth;fs; tPlo; y; ,Ue;njd;/ fhiyapy; vdJ mj;ijaplk; brhd;ndd;/ mjid vdJ mg;gh. mk;khtplk; brhy;yp mth;fs; te;J tpll; hh;fs;/
21.From the above said evidence, according to the victim girl (P.W.1) the accused entered into the house by breaking the door. In this regard, there is no evidence on the prosecution side for broke open the door. The Investigation Officer (P.W.19) during his cross examination deposed that no witnesses stated whether the accused broke open the door and trespassed into the house. His evidence is as follows:
rk;gtk; ele;jjhf brhy;yg;gLk; neuk; ,ut[ 1/00 kzp/ tPlo; w;Fs; mj;J kPwp vd;W brhy;yg;gl;Ls;sJ/ tPli ; l cilj;J bfhz;L brd;whuh my;yJ vy;iy kPwp brd;whuh vd;W brhy;yg;gltpy;iy vd;why; rhpjhd;/
22. On perusal of the Observation Mahazar (Ex.P.2), it is seen that the Investigation Officer did not mention about the broken door of the house in the Mahazar. Further, on perusal of the evidence of Rajamani (P.W.5) and Lakshmi (P.W.7) according to the victim, at the time of the Page 13 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 occurrence she went to the house of Rajamani (P.W.5) and Lakshmi (P.W.7) for safety. But, these two witnesses Rajamani (P.W.5) and Lakshmi (P.W.7) were not supported the prosecution case. They were treated by the prosecution as hostile. Further, witness Ponnammal (P.W.8) is the aunt of the victim girl. According to the victim girl, she immediately informed the matter to Ponnammal (P.W.8) she in turn informed the fact to the Father and Mother of the victim girl (P.W.1), that is to Sellan (P.W.6) and Parvathy (P.W.2). On perusal of evidence of P.W.8 Ponnammal, it is seen that she had not supported the prosecution case, she was treated hostile. Thus, the evidence of victim girl (P.W.1) that the accused broke open the door at the time of occurrence, she came out from the house and took asylum at the house of PW.5 and P.W.7 and informed the fact to Ponnammal (P.W.8) she informed to her Father and Mother was not at all supported. Thus, the prosecution story is not having any support from other evidences. Further, Parvathy (P.W.2) Mother of the victim, in her evidence during the cross examination stated the she gave the complaint to Annamalai Deputy Superintendent of Police (P.W.19) and the complaint was signed by the victim girl. For better appreciation of her evidence, it is Page 14 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 reproduced as follows:
,uz;L kzpf;F ehDk; vdJ kfSk; kl;Lk; fhty; epiyaj;jpw;F nghndhk;/ m';F g[fhhpid o/v!;/gpaplk; bfhLj;njhk;. g[fhhpid vd;Dila kfs; jhd; vGjpdhh;/ vd;Dila kfs; ifbahg;gk; bra;J g[fhhpid bfhLj;jhh;/ vd;dplk; g[fhh; vGjp bfhz;lJ o/v!;/gp/ jhd;/
23. On a perusal of the complaint (Ex.P.1) it is found that it was not signed by the victim girl (P.W.1) it was signed only by Parvathy.(P.W.2). Further, it was received by Navas, Sub Inspector of Police (P.W.13) not by Annammalai, Deputy Superintendent of Police (P.W.19) it also creates doubt whether the prosecution suppressed the complaint given by the victim girl (P.W.1). In this regard, the argument placed by the learned counsel for the appellant cannot be rejected. I find some force in this regard.
24.I have perused the evidence of Doctor Anitha Tamarai Selvi (P.W.10) who examined the victim girl. In her evidence, deposed that on Page 15 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 examination she found no injury on her body, her hymen was intact and not found any injuries on the victim girl private parts or any other parts of the body and gave a report (Ex.P.3).
25.According to the victim girl (P.W.1) she felt that the appellant/Accused placed her hand on her chest not deposed certainly that the appellant/accused placed his hand on her chest. Therefore, the trial Court rightly found the offence under Section 7 r/w 8 of protection of Children from Sexual Offence Act 2012 not made out. But, found guilty under Section 11 of Protection of Children from Sexual Offence Act 2012 which is reproduced hereunder:
11.Sexual harassment.-- A person is said to commit sexual harassment upon a child when such person with sexual intent--
(I) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(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 Page 16 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvment of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
Explanation --- Any question which involves ''Sexual intent'' shall be a question of fact.
26.The evidence of the victim girl is not satisfied with the requirements of the above Section to hold that the appellant/accused made sexual harassment towards her.
27.Further, as stated above, the prosecution story that the appellant/accused broke open the door and entered the house was also not proved. There was no evidence to prove the above said fact. Further, the complaint (Ex.P.1) creates a doubt whether the complaint signed by the victim girl was suppressed in view of the evidence given by the Mother of Page 17 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 the victim (P.W.2). Since the complaint FIR becomes doubtful for the above said reason, it goes to the root of the prosecution case. Under these circumstances, the evidence of the victim girl (P.W.1) was also not certain about the act of the appellant/accused and it is unsafe to act upon the evidence of the victim girl (P.W.1).
28. In a criminal trial, an accused person starts with the presumption of innocence in his favour and the presumption holds the field till the prosecution succeed in establishing the guilt of the accused beyond all reasonable doubt, a moral conviction regarding the guilt of an individual has no place in Criminal Jurisprudence. Therefore, where there is an element of genuine doubt then, there must be an acquittal as a matter of right and not as a matter of grace or favour.
29.Therefore, for the above said reasons considering the totality of the facts and evidence the prosecution had failed to prove the guilt of the accused for offences under under Section 448 IPC, 3(1) (w) (i) of SC/ST (Prevention of Atrocities) Act 1989 and Amendment Ordinance 2014 and Section 11(i)(IV) Protection of Children from Sexual Offences Act. Page 18 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 Therefore, the conviction of the accused recorded by the trial Court not having been supported by the credible evidence was liable to set aside.
30.In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the Trial Court in Special S.C.No.49 of 2015 by judgement dated 18.02.2016 is hereby set aside. Hence, the appellant is acquitted from the charges under Section 448 IPC, 3(1) (w) (i) of SC/ST (Prevention of Atrocities) Act 1989 and Amendment Ordinance 2014 and Section 11(I)(IV) Protection of Children from Sexual Offences Act. Bail bond executed if any, shall stand cancelled and the fine amount paid by the appellant shall be returned to him.
29.03.2022 Index: Yes/No Internet:Yes/No Speaking order/Non-speaking order vsn Page 19 of 20 https://www.mhc.tn.gov.in/judis Crl.A.No.227 of 2016 V.SIVAGNANAM, J.
vsn To
1.The Sessions Judge, Fast Track Mahila Court, Dharmapuri,
2.The Inspector of Police, Marandhahalli Police Station, Dharmapuri District.
3.The Superintendent of Prison, Palacode,Dharmapuri District.
4.The Public Prosecutor, High Court, Madras.
Pre-delivery Judgement in Crl.A.No.227 of 2016 29.03.2022 Page 20 of 20 https://www.mhc.tn.gov.in/judis