Madras High Court
Saleem vs The State Rep By on 31 October, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.656 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.10.2022
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.656 of 2021
Saleem .. Appellant
.Vs.
The State rep by:
Inspector of Police,
W-6, All Women Police Station,
Ayanavaram, Chennai,
Crime No.4 of 2017. .. Respondent
Criminal Appeal filed under Section 374 of Code of Criminal
Procedure to set aside the conviction of the appellant/accused in
S.C.No.87 of 2018 dated 10.01.2020 by the learned Sessions Judge,
Special Court for Exclusive Trial of Cases under POCSO Act, Chennai.
For Appellant : Mr.C.Samivel
Legal Aid Counsel
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed against the judgment dated 10.01.2020 passed in S.C.No.87 of 2018 by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai. https://www.mhc.tn.gov.in/judis Page No.1/14 Crl.A.No.656 of 2021
2. The case of the prosecution is that on 10.9.2017 at about 11.00 a.m the accused persuaded the victim, who is aged about 16 years by giving false promise, took her to Villupuram and married her at Vinayagar Temple. Even four months before the marriage, the accused influenced the victim girl and committed repeated penetrative sexual assault on her on several occasions and because of that she became pregnant and thereby, the appellant/accused has committed the offence under Section 366A IPC and Section 6 of 'Protection of Children from Sexual Offences Act, 2012' [hereinafter referred to as 'POCSO Act' for the sake of convenience].
3.On the complaint given by P.W.2/mother of the victim child the respondent/Police registered a case for 'girl missing'. The respondent/ Police on completion of the investigation, filed a charge sheet before the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai and the same was taken on file in S.C.No.87 of 2018. When questioned, the accused denied the allegation. However, based on the materials, the trial Court framed charges against the appellant for the offences under Sections 366 IPC and 6 of POCSO Act. https://www.mhc.tn.gov.in/judis Page No.2/14 Crl.A.No.656 of 2021
4.In order to prove the case of the prosecution before the trial Court, on the side of the prosecution as many as 6 witnesses were examined as P.W.1 to P.W.6, marked 14 documents as Exs.P1 to P14 and no material objects were marked. On the side of the defence, no oral or documentary evidence was produced.
5. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant/accused and was questioned under Section 313 Cr.P.C., wherein he denied all the incriminating circumstances as false and pleaded not guilty.
6. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the appellant was guilty for the charges under Section 363 IPC and Section 6 of POCSO Act and he was convicted and sentenced as follows :
(i) for the offence under Section 363 IPC, the accused was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for a further period of three months; and https://www.mhc.tn.gov.in/judis Page No.3/14 Crl.A.No.656 of 2021 https://www.mhc.tn.gov.in/judis Page No.4/14 Crl.A.No.656 of 2021
(ii) for the offence under Section 6 of POCSO Act, the accused was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for a further period of six months and ordering the sentences to run concurrently
(iii) besides that the trial Court recommended the Government of Tamil Nadu to compensate a sum of Rs.6,00,000/- to the victim girl as per the victim compensation. Challenging the said conviction and sentences, the appellant is before this Court.
7.1 The learned counsel for the appellant submitted that the mother of the victim was examined as P.W.2 and in her evidence she has stated that when she went for work, her husband informed that her daughter was missing, thereafter, she came to the house and searched the victim in and around the places and then, she lodged a complaint before the respondent/Police for 'girl missing'. Whereas, in her complaint, she has stated that on 10.09.2017 when she left for her work, at that time the victim girl along with two other children were at home, after returning from work, she found that the victim girl was not at home. On enquiry, other children told that the victim girl walk out of home at 11.00 a.m and https://www.mhc.tn.gov.in/judis Page No.5/14 Crl.A.No.656 of 2021 thereafter, she did not return back to the home. Therefore, there are material contradictions between the evidence of P.W.2 during trial and in the complaint/Ex.P3. Initially, P.W.2 filed a complaint for 'girl missing'. After registering the First Information Report, the respondent/Police found that the victim was with the appellant and secured her. He would further submit that the appellant and the victim had developed love with each other, the parents of the victim have made arrangements for their marriage and engagement also took place. Subsequently, P.W.2 refused to perform marriage between them, the victim girl voluntarily went along with the appellant and subsequently, they got married. There is no material to establish that the appellant kidnapped the victim and hence, he was not involved in commission of the said offence. Though the prosecution has stated that the victim got pregnant and the same was terminated, there was no material evidence to show that the victim was pregnant and the same was terminated. As per the prosecution, the appellant is a married person and hence, the parents of the victim refused to perform marriage between the victim and the appellant, however, the prosecution has not established any material to show that the appellant is a married man, which is fatal to the case of the prosecution. https://www.mhc.tn.gov.in/judis Page No.6/14 Crl.A.No.656 of 2021 7.2 The learned counsel for the appellant further submitted that though the victim has stated that the appellant had tied thali, however, the same was not recovered by the Investigating officer, which creates doubt about the case of the prosecution. Therefore, the prosecution has not substantiated their case as projected by them by way of producing any material evidence. He further submitted that the prosecution miserably failed to examine any witnesses to prove that the appellant and victim went to Pondicherry. However, the trial Court erroneously appreciated the evidence and wrongly convicted the appellant, which warrants interference of this Court.
8. The learned Additional Public Prosecutor appearing for the respondent submitted that originally P.W.2/mother of the victim has given a complaint for 'girl missing'. During the investigation, they found that the appellant took the victim to Pondicherry and married her. In order to substantiate the charges framed against the appellant, the victim girl was examined as P.W.1 and she has clearly narrated the said occurrence. He further submitted that at the time of occurrence, the victim is 15 years and to prove the age of the victim, the Birth https://www.mhc.tn.gov.in/judis Page No.7/14 Crl.A.No.656 of 2021 Certificate of the victim was marked as Ex.P2. As per Ex.P2 the date of birth of the victim is 05.06.2001, whereas, the occurrence said to have taken place on 10.09.2017. Since the victim is a minor, she comes under the definition of 2(1)(d) of POCSO Act. In order to prove the penetrative sexual assault, the Doctor, who conducted clinical examination on the victim was examined as P.W.5 and marked Exs.P7 to Ex.10 as medical evidence and also marked Ex.P1/164 Cr.P.C statement of the victim girl. From the evidence of P.W.1, P.W.2, P.W.5, Exs.P1, P2, P7 to P10 the prosecution has proved that at the time of occurrence the victim is a child and the appellant who taken away the custody of the victim from her natural guardians without their consent had committed the offence under Section 363 IPC. Initially charges were framed against the petitioner for the offence under Section 366 IPC, after trial, the trial Court convicted the appellant for the offence under Section 363 IPC. As far as penetrative sexual assault is concerned from the evidence of P.W.1, P.W.2, P.W.5, Exs.P1, P2, P7 to P10 the prosecution has proved that the victim was subjected to penetrative sexual assault on several occasions. Therefore, the offence committed by the appellant falls under Sections 5(l) which is punishable under Section 6 of POCSO Act. Therefore, the trial Court has https://www.mhc.tn.gov.in/judis Page No.8/14 Crl.A.No.656 of 2021 rightly convicted and sentenced the appellant for the charged offences and there is no merit in the appeal and the same is liable to be dismissed.
9.Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent and also perused the materials available on record.
10. This Court, being an Appellate Court, is a final Court of fact finding, which has to necessarily re-appreciate the entire evidence and give an independent finding. Accordingly, this Court has re-appreciated the entire oral and documentary evidence produced before this Court.
11. Admittedly, at the time of occurrence, the victim is a child who is aged about 15 years. To prove the age of the victim, the prosecution has exhibited Ex.P2/Birth Certificate of the victim girl. At the time of occurrence, the victim is a child, who comes under the definition of 2(1)(d) of POCSO Act. In order to prove the case of the prosecution, on the side of the prosecution totally 6 witnesses were examined and out of which the victim was examined as P.W.1.
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12. On a reading of the evidence of P.W.1 would clearly show that the accused who is the neighbour of the victim had fall in love with the victim and both are loved each other and when the same was revealed to the mother of the victim/P.W.2 she resisted the victim. On 10.09.2017 at about 11.00 a.m when she was alone at home, the accused called her through phone to come along with him, so that he can marry her. Believing the same, P.W.1 went along with the appellant to Pondicherry, thereafter, he married her in the presence of his relatives. After marriage, they did not have any physical relationship, but prior to that, the appellant had committed penetrative sexual assault on her. After registration of the complaint, the respondent/police secured her. Thereafter, she was produced before the learned Judicial Magistrate and she has also given her statement under Section 164 Cr.P.C and thereafter, she was subjected for medical examination.
13. P.W.2/mother of the victim has deposed that on 10.09.2017 her daughter/P.W.1 was missing from her house and on the complaint made by him, the respondent/Police secured the victim and the appellant. Thereafter, on enquiry, she came to know that her daughter was pregnant. https://www.mhc.tn.gov.in/judis Page No.10/14 Crl.A.No.656 of 2021
14. Therefore, from the evidence of P.W.1/victim girl would reveal that the appellant and the victim went to Pondicherry and got married. Based on the complaint given by the mother of the victim, the respondent/Police secured them. Therefore, the appellant under the guise of love taken away the victim from custody of her lawful guardians without their consent and hence, the appellant has committed the offence under Section 363 IPC.
15. As far as penetrative sexual assault is concerned, the victim girl has clearly narrated that the appellant had committed penetrative sexual assault on her on several occasions, due to which, she became pregnant and the same was terminated. However, the pregnancy and termination was not established by the prosecution. However, from the evidence of P.W.1/victim girl, Ex.P1/statement of the victim girl recorded under Section 164 Cr.P.C the prosecution has established its case that the victim girl was subjected to penetrative sexual assault on several occasions. To establish the case of the prosecution, the Doctor, who conducted medical examination on the victim girl was examined as P.W.5 and she has clearly https://www.mhc.tn.gov.in/judis Page No.11/14 Crl.A.No.656 of 2021 narrated that the victim was subjected to penetrative sexual assault by a known person and her hymen was not intact and the evidence of P.W.5 is coupled with the Ex.P7 to P10. Therefore, the evidence of the victim girl is corroborated with the evidence of medical evidence. From the evidence of P.Ws.1,2 and 5, Ex.P1, Ex.P2 and Exs.P7 to P10 the trial Court found that the prosecution has proved its case beyond reasonable doubt and rightly convicted and sentenced the appellant for the offences under Sections 363 IPC and 6 of POCSO Act.
16.Considering the facts and circumstances, this Court finds that the trial Court has rightly appreciated the entire oral and documentary evidence and convicted and sentenced the appellant. This Court, being an Appellant Court as a fact finding Court re-appreciated the entire evidence independently and arrived at a conclusion that the appellant has committed the offences under Section 363 IPC and Section 5(i) which is punishable under Section 6 of POCSO Act.
17. 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. Accordingly, https://www.mhc.tn.gov.in/judis Page No.12/14 Crl.A.No.656 of 2021 this Criminal Appeal is dismissed and the judgment of conviction and sentence passed in S.C.No.87 of 2018 by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai, is hereby, confirmed.
31.10.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms To
1.The Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai.
2.The Inspector of Police, W-6, All Women Police Station, Ayanavaram, Chennai.
3.The Superintendent, Central Prison, Chennai.
4.The Public Prosecutor, High Court, Madras.
5.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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P.VELMURUGAN, J.
ms
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