Madras High Court
Kumaresan vs The State Represented By on 7 November, 2023
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A.No.318 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No. 318 of 2017
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Kumaresan .. Appellant
Versus
The State represented by
The Inspector of Police
All Women Police Station
Perambalur
(Cr.No.32/2015) .. Respondent
Criminal Appeal is filed under Section 374 (2) of the Criminal Procedure
Code, 1973, to set aside the conviction and sentence imposed in the judgment
dated 31.05.2017 made in Spl. S.C. No.19 of 2016 on the file of the learned
Sessions Judge, Fast Track Mahila Court, Perambalur.
For Appellant : Ms. D. Sathya
Legal Aid Counsel
For Respondent : Mr. S. Vinoth Kumar
Government Advocate (Crl.Side)
JUDGMENT
The Appellant is the sole Accused in Spl.S.C.No.19 of 2016 dated 31.05.2017 on the file of the learned Sessions Judge, Fast Track Mahila Court, Perambalur. By the Judgment dated 31.05.2017 passed in Special SC No. 19 https://www.mhc.tn.gov.in/judis 1/17 Crl.A.No.318 of 2017 of 2016, he was convicted and sentenced as follows:-
Conviction under section Sentence Awarded Section 5(l) r/w Section 6 of the To undergo ten years of rigorous Protection of Children from Sexual imprisonment and to pay a fine of Offences Act, 2012 [POCSO Act] Rs.5,000/- and in default, to undergo two three of rigorous imprisonment.
2. The sentences imposed against the Appellant was ordered to run concurrently and the period already undergone by him was ordered to be setoff under Section 428 Cr.P.C.
3. The brief facts, which are necessary for disposal of this Criminal Appeal, are as follows:-
3.1. According to P.W-1, he has four children and the victim in this case – P.W-3 is his first daughter. P.W-1 heard that even when his daughter P.W-3 was studying Higher Secondary (+2), the Appellant/Accused followed her and indulged in teasing. Therefore, he reprimanded the Accused not to follow his daughter. After his daughter completed Higher Secondary (+2) he admitted her in A.V.S. College, Salem for pursuing Engineering Degree. It was further stated that on 27.02.2015, his daughter came to his house on account of leave for her college. On the night of 27.02.2015, at about 1.00 a.m, P.W-1 woke up on hearing a strange noise and therefore, he checked through his house in the bedroom and bathroom, there is nothing to suspect. When he https://www.mhc.tn.gov.in/judis 2/17 Crl.A.No.318 of 2017 went to the terrace of his house, he saw his daughter lying down and the Accused was committing sexual intercourse with her. On seeing P.W-1, the Accused scaled down the stairs and fled the place. Therefore, P.W-1 met the parents of the Accused and narrated to them the ugly incident. Subsequently, he shifted his daughter from the College at Salem to the Kongu College, Karur to pursue B.A. English. Even thereafter, P.W-1 heard that the Appellant threatened his daughter with dire consequences and under such threat, he had physical relationship with her. It was also stated that the Appellant promised his daughter to marry her and on that pretext, he had sexual relationship with her. Subsequently, on 26.10.2015 when he contacted the hostel warden of the college, he was informed that his daughter left the college to Perambalur. P.W- 1 searched for his daughter everywhere but he could not ascertain her whereabout. On the next day on 27.10.2015, when he called upon Mr.Rajkumar, husband of the President of Village Panchayat, for helping him to secure his daughter, he has told that his daughter is in his house. Therefore, P.W-1 went and secured his daughter and proceeded to his house. On enquiring his daughter/P.W-3, she informed him that the Appellant/Accused threatened her to come to Karur otherwise, he will inform everyone in his native Village about the affairs he had with her. Therefore, on 29.10.2015, P.W-1 had given a complaint to the Inspector of Police, All Women Police Station, Perambalur, based on which, the case in Crime No. 32 of 2015 was https://www.mhc.tn.gov.in/judis 3/17 Crl.A.No.318 of 2017 registered by P.W-16 for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and Section 376 of Indian Penal Code. Ex.P-5 is the First Information Report.
3.2. On the basis of the registration of case, P.W-16 commenced investigation and proceeded to the scene of occurrence on 30.10.2015 at about 6.00 am in the morning where she drew a rough sketch and observation mahazar in the presence of witnesses P.W-9 Thangapillai and P.W-10 Veera.
Ex.P-6 is the observation Mahazar and Ex.P-7 is the rough sketch. She also arrested the Accused and sent him to remand. She gave a requisition letter addressed to the Government Head Quarters Hospital, Perambalur through the Head Constable Mrs. Bhuvaneswari for medical examination of the victim girl. Accordingly, the victim girl was subjected to medical examination. On the same day, she enquired the witnesses P.W-1 Sivakumar, P.W-3 victim girl, P.W-9 Thangapillai and P.W-10 Veera and recorded their statement. She also taken steps to record the statement of the victim girl under Section 164 of the Code of Criminal Procedure through the Court by giving a requisition letter. After completing the investigation, upon her transfer, she had entrusted the case files to her successor Mrs. Ranjana, P.W-17.
3.3. Upon taking up the investigation from P.W-16, P.W-17 conducted investigation on 01.11.2015. On the same day, P.W-17 proceeded to the house https://www.mhc.tn.gov.in/judis 4/17 Crl.A.No.318 of 2017 of the complainant and recorded the statement of P.W-1 Sivakumar, P.W-2 Vijayakumari, P.W-3 victim girl, P.W-5 Jeevitha, P.W-15 Sethupathi, Das- P.W-14 and P.W-8 Rajkumar separately and recorded their statement. On 03.11.2015, P.W-17 enquired P.W-7 Kandasamy and recorded his statement. She also enquired P.W-13 Dr. Suriya Prabha and recorded her statement. On 07.11.2015, P.W-17 enquired P.W-6 Dr. Sivakumar, who conducted the medical examination on the Accused and ecorded his statement. P.W-17 also given a alteration report under Ex.P-11 based on which the offences under Sections 4 of Protection of Children from Sexual Offences Act, 2012 and 376 of IPC has been altered into Section 5 (i) read with Section 6 of Protection of Children from Sexual Offences Act, 2012 and 366 (A), 376 of Indian Penal Code read with Section 4 of Tamil Nadu Prohibition of Women Act. After completing the investigation, P.W-17 laid the charge sheet against the Appellant/Accused before the learned Session Judge, Fast Track Mahila Court, Perambalur.
3.4. The trial Court issued summons to the Appellant/Accused and on his appearance, furnished the copies under Section 207 of the Code of Criminal Procedure Code. After hearing the Prosecution and the learned Counsel for the defence, the charges were framed against the Accused under Section 366 of IPC and under Section 5(l) r/w. Section 6 of the Protection of Children from https://www.mhc.tn.gov.in/judis 5/17 Crl.A.No.318 of 2017 Sexual Offences Act, 2012. The Accused denied the charges and claimed to be tried. Therefore, trial was ordered. During trial, the Prosecution examined 17 witnesses as P.W-1 to P.W-17 and marked 11 documents as Ex.P-1 to Ex.P-11 and one material object as M.O-1. On behalf of the defence, Mr.Rajasekar, Principal, Karur Kongu College of Arts and Science was examined as D.W-1 and 3 documents were marked as Ex.D-1 to Ex.D-3.
3.5. The learned Sessions Judge, Fast Track Mahila Court, Perambalur, on appreciation of the oral and documentary evidence, had concluded that the Appellant is guilty of the offence under Section 5 (l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced him to undergo ten years of rigorous imprisonment with fine of Rs.5,000/-, in default, to undergo three years rigorous imprisonment. However, the trial court opined that the other offences for which the Appellant has been charged has not been proved by the Prosecution beyond reasonable doubt and therefore, acquitted him of those offences.
3.6. Aggrieved by the Judgment of conviction and order of sentence imposed on the Appellant, passed by the learned Sessions Judge, Mahila Court, Perambalur in Special Sessions Case No. 19 of 2016, dated 31.05.2017, the present Criminal Appeal is filed by the Appellant.
4. https://www.mhc.tn.gov.in/judis The learned Counsel nominated by the Legal Aid Committee 6/17 Crl.A.No.318 of 2017 Ms.D.Sathya, sought time to argue the case. At that time, Thiru.R.Sankarasubbu, learned Counsel volunteered to assist the Legal Aid Counsel nominated by the Legal Aid Committee to proceed with the Appeal.
5. The main point of attack as projected by the learned Counsel for the Appellant is that on the date of the registration of FIR under Ex.P-5, the Victim, the daughter of the Complainant, had completed 18 years. However, the case was foisted under the provisions of Protection of Children from Sexual Offences Act, 2012 which is a stringent regulation. It is his submission that the Accused and the Victim were teenagers on the date of the alleged occurrence. They were in a love affair and in the course of the love affair, they were in a physical relationship. As the Accused is a major, she is fully aware of the consequences that may befall on her and the consent given by her is valid under law.
6. The earned Counsel for the Appellant invited the attention of this Court to the defence evidence. The Principal of the Kongu College of Arts and Science, Karur was examined as D.W-1. D.W-1 has stated that the Victim girl was undergoing B.A English Literature in the said College. The defence, through the D.W-1, marked documents Ex.D-1 to Ex.D-3. Prominent among them is Ex.D-3, plus-two Mark Sheet issued by the Government of Tamil https://www.mhc.tn.gov.in/judis 7/17 Crl.A.No.318 of 2017 Nadu, Department of Government Examinations, to the victim girl. In Ex.D-1 to D-3, the photo of the Victim is prominently affixed and it is captioned as the Higher Secondary Course Certificate. The name of the Victim and the date of birth are also furnished. The learned Counsel for the Appellant also submits that when the Principal of the Kongu College of Arts and Science, Karur, D.W- 1 was cross-examined by the learned Public Prosecutor, it was not suggested that the Higher Secondary School Certificate did not belong to the Victim.
7. The learned Counsel for the Appellant invited the attention of this Court to the evidence of the Victim/P.W-3. She stated that she was born on 23.11.1997. When that is taken, her age will be 18 on the date of registration of the FIR. The learned Sessions Judge, Fast Track Mahila Court, Perambalur, without considering this valuable point culled out during trial, ignored it and convicted the Appellant. Thus, the learned Sessions Judge ignored the defence's document and mechanically applied the provisions of Protection of Children from Sexual Offences Act, 2012 and convicted the Accused.
8. It is the further submission of the learned Counsel for the Appellant that the complaint preferred by the father of the Victim as though the Accused had indulged in offences attracting Protection of Children from Sexual Offences Act, 2012 is not sustainable. Admittedly, the victim girl and https://www.mhc.tn.gov.in/judis 8/17 Crl.A.No.318 of 2017 the Appellant had a love affair between them and they had consensual sex, which cannot be brought within the sweep of the provisions of Protection of Children from Sexual Offences Act, 2012. Further, under Ex.P-4, the mandatory Certificate obtained after medical examination of the Victim, the Investigation Officer raised a query before the Medical Officer who had issued Ex.P-4. The Investigation Officer stated that on the basis of the dentist report, the age of the Victim is between 16 and 18. In cases of this nature when medical records are produced, +2 or -2 had to be considered. It is his submission that the original date of birth has been suppressed by the Prosecution to invoke the provisions of Protection of Children from Sexual Offences Act, 2012 against the Appellant. Therefore, the trial Court ought to have taken an adverse inference against the Prosecution for suppression of the material document to substantiate the age of the victim girl. Thus, the conviction recorded by the learned Sessions Judge, Fast Track Mahila Court, Perambalur, ignoring the materials available before him in the course of the trial, in the cross-examination of the witnesses, are perverse and is to be set aside. Thus, the learned Counsel for the Appellant prayed for allowing this Appeal.
9. Per contra, the learned Government Advocate (Crl.Side) Mr.S.Vinoth Kumar vehemently objected to the submission of the learned https://www.mhc.tn.gov.in/judis 9/17 Crl.A.No.318 of 2017 Counsel for the Appellant stating that the learned Sessions Judge, Fast Track Mahila Court, Perambalur, had arrived at the conclusion on proper appreciation of evidence as per the provisions of the Protection of Children from Sexual Offences Act, 2012, particularly Sections 34(2) and (3) of the Protection of Children from Sexual Offences Act, 2012. It is the submission of the learned Government Advocate (Crl.Side) that the learned Sessions Judge, Fast Track Mahila Court, Perambalur, has the discretion to decide the age of the Victim. When there is a doubt raised with regard to the age of the victim girl, what is determined by the learned Sessions Judge, Fast Track Mahila Court, Perambalur, cannot be considered invalid. Further, it is the submission of the learned Government Advocate (Crl.Side) that during the course of the cross- examination of the Victim or the parents of the Victim, the learned Counsel for the Accused had not disputed the date of birth as mentioned by P.W-3, the Victim. While so, the assumption of date of birth by the learned Judge is right and it cannot be called in question.
10. The learned Government Advocate (Crl.Side) invited the attention of this Court to the evidence of the Victim herself. She claims that the Accused started teasing and stalking her when she was 17 years old. Therefore, it is evident that the Accused had indulged in sexual activities against the victim and therefore, he was rightly prosecuted for the offences under the https://www.mhc.tn.gov.in/judis 10/17 Crl.A.No.318 of 2017 provisions of the Protection of Children from Sexual Offences Act, 2012.
11. Further, the learned Government Advocate (Crl.Side) invited the attention of this Court to the judgment of the learned Sessions Judge, Fast Track Mahila Court, Perambalur, particularly in paragraph 36, wherein he had discussed that the defence Counsel had not disputed the age or date of birth of the Victim girl. Further, the learned Government Advocate (Crl.Side) invited the attention of this Court to the evidence of P.W-4, Registrar, wherein he had deposed regarding the date of birth as registered by the Executive Officer of the Panchayat where the Victim was born, which document was marked as Ex.P-8. In Ex.P-8, the name of the child as in the Birth Certificate, was stated as xxxx. The parents names are given as Father Name : xxxx and Mother Name : xxxx. Therefore, the suggestion of the learned Counsel for the Defence that the Investigation Officer had collected the name similar to the name of the Victim to invoke Protection of Children from Sexual Offences Act, 2012 whose date of birth is 23.11.1997 cannot be sustained. In effect, it is stated that the conviction of the Appellant is based on records made available and it need not be interfered with.
12. By way of rejoinder, the learned Counsel for the Appellant submits that P.W-1 to P.W-3 had not spoken regarding the birth Certificate or https://www.mhc.tn.gov.in/judis 11/17 Crl.A.No.318 of 2017 the registration of the birth of the Victim. Therefore, the examination of P.W-4 is not relevant to this case and it has to be rejected.
Point for consideration:
Whether the judgment of the learned Sessions Judge, Fast Track Mahila Court, Perambalur, in Spl.S.C.No.19 of 2016, dated 31.05.2017 is to be set aside as perverse?
13. Heard the learned Counsel nominated by the Legal Aid Committee Ms.D.Sathya assisted by Thiru.R.Sankarasubbu, learned Counsel, for the Appellant and the learned Government Advocate (Crl. Side) Mr.S.Vinoth Kumar, for the State. Perused the deposition of witnesses, P.W-1 to P.W-17 and documents Ex.P-1 to Ex.P-11, Defence Witness, D.W-1 and Ex.D-1 to Ex.D-3 and the judgment of the learned Sessions Judge, Fast Track Mahila Court, Perambalur.
14. On consideration of the rival submission, it is found that Ex.P-10 is the Transfer Certificate of the victim/P.W-3, in which her date of birth is given as 09.06.1993. As per Ex.D-3, the mark sheet issued by the Government of Tamil Nadu, Department of Government Examinations, the photo of the Victim and the date of birth were mentioned. The learned Sessions Judge, Fast Track Mahila Court, Perambalur, failed to appreciate the contents of Ex.D-3, https://www.mhc.tn.gov.in/judis 12/17 Crl.A.No.318 of 2017 mark sheet issued by the Government to the victim girl. The argument of the learned Government Advocate (Crl. Side) that the defence Counsel had not disputed or objected to the marking of Ex.P-8 through P.W-4 cannot be accepted as a reasonable ground to reject the evidence of Ex.D-3. Ex.D-3 had more evidentiary value than other documents. Ex.D-3 Mark Sheet for Higher Secondary Course Certificate issued by the Department of Government Examinations, where the photo of the victim had been furnished with and the date of birth is given as 13.03.1997. If that is considered, on the date of registration of FIR on 29.10.2015, she had completed 18 years as per Ex.D-3. Further, it was an admitted fact that the Appellant and the victim girl had love affair between them. In the light of the evidence available before the Trial Court, the Trial Court failed to appreciate the fact that it was love affair between two youngsters which had been converted into Protection of Children from Sexual Offences Act, 2012 on the strength of the complaint lodged by the father of the Victim girl. Further, there are circumstances available through the evidence of D.W-1, Principal of Kongu College of Arts and Science, Karur, where the Victim was studying B.A. English Literature. D.W-1 had stated that the Victim was studying at AVS College. Mayiladudurai, but she dropped out after one year and joined the College at Kongu College of Arts and Science, Karur. That gives a presumption that the parents of the Victim had forced her to quit the earlier College and admitted her in the new College in Karur. In any https://www.mhc.tn.gov.in/judis 13/17 Crl.A.No.318 of 2017 event, at the time of registration of the First Information Report, the victim girl was a major, attained 18 years of age. While so, she is fully aware of the consequence that may befall on her. While so, it can safely be concluded that the sexual intercourse the Appellant had with the victim girl is with consent and consent given by the victim girl is valid.
15. The reasons stated by the learned Sessions Judge, Fast Track Mahila Court, Perambalur, while convicting and sentencing the Appellant are found to be perverse. The Trial Court ignored the materials available before him to hold that it is a love affair between teenagers while so, invocation of the stringent provisions of The Protection of Children from Sexual Offences Act, 2012 is not warranted in this case. The father of the victim girl, in order to wreck personal vengeance against the Appellant had wantonly invoked the provisions of the Protection of Children from Sexual Offences Act, 2012 and given the complaint. The materials collected by the Investigation Officer and the Higher Secondary Certificate are available to hold that the victim girl attained 18 years of age as on the date of registration of First Information Report. The certificate produced by the Defence has more weightage than the document furnished as Ex.P-8 by P.W-4, wherein the name of the parents differ. Therefore, the reasons stated by the learned Sessions Judge, Fast Track Mahila Court, Perambalur, rejecting the Defence evidence cannot be accepted https://www.mhc.tn.gov.in/judis 14/17 Crl.A.No.318 of 2017 by this Court. The Judgment of the Trial Court is therefore perverse and it is liable to be interfered with.
16. In the light of the above discussion, the argument of the learned Government Advocate (Crl.side) that Section 34 of Protection of Children from Sexual Offences Act, 2012 gives discretion to the learned Sessions Judge or the Special Court under the Protection of Children from Sexual Offences Act, 2012 to determine the age of the Victim also cannot be appreciated considering the fact that it is a clear case of the Victim being not a minor to attract the provisions of Protection of Children from Sexual Offences Act, 2012.
17. In the light of the above discussion, the point for consideration is answered in favour of the Appellant and against the Prosecution. The judgment of the learned Sessions Judge, Fast Track Mahila Court, Perambalur, in Spl.S.C.No.19 of 2016, dated 31.05.2017 is found perverse and the same is to be set aside.
18. Before parting with, it must be stated that the Legal Aid Counsel nominated by the Legal Aid Committee, High Court, Madras had put forth all the arguments which are necessary for consideration by this Court and it is hereby appreciated.
https://www.mhc.tn.gov.in/judis 15/17 Crl.A.No.318 of 2017 In the result, this Criminal Appeal is allowed. The judgment of the learned Sessions Judge, Fast Track Mahila Court, Perambalur, in Spl.S.C.No.19 of 2016, dated 31.05.2017 is hereby set aside. The Accused is acquitted of the charge under Section 5(l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012. The bail bond, if any executed by the Accused, shall stand cancelled. The fine amount if any, paid by the Appellant/Accused is also ordered to be refunded to the Appellant.
07.11.2023 cda Index : Yes/No Speaking/Non-speaking order To
1.The Sessions Judge, Fast Track Mahila Court, Perambalur.
2.The Inspector of Police, All Women Police Station, Perambalur,
3.The Public Prosecutor, High Court, Madras.
4.The Section Officer, VR Records, High Court, Chennai.
https://www.mhc.tn.gov.in/judis 16/17 Crl.A.No.318 of 2017 SATHI KUMAR SUKUMARA KURUP, J cda Crl.A.No.318 of 2017 07.11.2023 https://www.mhc.tn.gov.in/judis 17/17