Madras High Court
Subash vs State Rep. By on 24 February, 2023
Author: V.Sivagnanam
Bench: V.Sivagnanam
Crl.A.No.631 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.01.2023
PRONOUNCED ON : 24.02.2023
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.A.No.631 of 2021
Subash ... Appellant
Vs.
State rep. by
Inspector of Police,
Malayampalayam Police Station,
Crime No.43 of 2019 ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C. to set-
aside the conviction and sentence imposed on the appellant by the judgment
dated 09.11.2021 passed in Special S.c.No.30 of 2019 on the file of Fast
Track (Sessions Judge), Mahila Judge, Erode by allowing the present
Criminal Appeal.
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Crl.A.No.631 of 2021
For Appellant : Mr. K. Ehirajulu,
Legal Aid Counsel.
For Respondent : Mr. C.E.Pratap,
Government Advocate (crl.side)
ORDER
Challenging the conviction and sentence passed by the learned Sessions Judge, Fast Track Mahila Court, Erode in Spl.S.C.No.30 of 2019, dated 31.03.2022, the present Criminal Appeal has been filed.
2. The fact of the case is that on 09.03.2019, at 215 p.m., while the defacto complainant and his wife were cleaning the ducks at the backyard of the shop,namely Ruchi, the accused asked water with the victim child. When the victim child went to take water, the accused went behind her and closed her mouth with his hand, kissed her lips and touched her vagina. On heating the voice of the victim child, the defacto complainant and his wife came to the spot, where, they found the accused was touching the child's 2 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 vagina. Hence, the defacto complainant, who is father of the victim child lodged the complaint and the case has been registered in Crime No.3 of 2019 under Section 9(m) r/w. 10 of Protection of Children from Sexual Offences Act, 2012. and after investigation, final report has been filed.
3. Based on the above materials, the Trial Court framed charges as against the accused under Section 9(m) r/w. 10 of Protection of Children from Sexual Offences Act, 2012 and the accused denied the same as false. In order to prove the case of prosecution, as many as 13 witnesses were examined, 15 documents were marked.
4. When the incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false, he did not choose to examine any witness nor mark any documents.
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5. Having considered all the materials, the Trial Court convicted the accused under Section 9(m) r/w. 10 of Protection of Children from Sexual Offences Act, 2012, the relevant portion of the sentence is as follows:-
" 19. Finally the accused found guilty under Section 9(m) punishable u/s.10 of the Protection of Children from Sexual Offences act, 2012 and I convict the accused u/s.9(m) punishable u/s. 10 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo rigorous imprisonment for 5 years and fine Rs.1000/-and in default to undergo 2 months simple imprisonment. (fine amount Rs.1000/-)
20. I further ordered that the period of detention already undergone by the accused is to be set off u/s.428 of Cr.P.C.,
21. This Court hereby recommends to the State Government of Tamil Nadu to compensate a sum of Rs.50,000/- to the victim child who suffered by physical and mental injury caused to her due to the result of the offence 4 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 and for execution the same the copy of this judgment is forwarded to the District Child Welfare Officer, D.No.69 Gandhiji Road, Jawan Bhavan Building, Erode the compensation amount may be paid to the child victim within one month from the date of the judgment. The amount of Rs.25,000/- is ordered to the child victim in Crl. M.P.No.271/19 on 26.11.2019 as interim compensation. Rs.50,000/- awarded as compensation includes interim compensation amount also.
Challenging the above conviction and sentence, the accused is before this Court with this appeal.
6. The learned counsel for the appellant/accused submitted that the judgment of the Trial Court is contrary to law and weight of evidence and all probabilities of the case. No independent witnesses have been examined in this case. There is no evidence to show that the appellant/accused 5 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 sexually assaulted the victim child. He further submitted that the appellant/accused is aged about 22 years and suffered with intellectual dispute. It is evident by the psychological screening report. The Trial Court without considering the evidence on record, found the accused guilty and thus pleaded to acquit the accused.
7. The learned Government Advocate(crl.side) appearing for the respondent supported the judgment of the trial Court and further contended that before the Trial Court, the prosecution examined 13 witnesses. P.W.3 is the victim child. She clearly deposed about the occurrence, which is supported by the evidence of her father, Arulmani (P.W.1) and mother Saritha (P.W.2). They witnessed the occurrence and on seeing them, the accused escaped from the place of occurrence immediately. Therefore, the Trial Court, rightly found the accused guilty and convicted him. There is no ground to interfere with the findings of the Trial Court and pleaded to dismiss the Criminal Appeal.
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8. I have considered the case in the light of the submissions made by the counsel for the parties and perused the materials carefully.
9. The respondent police prosecuted the accused/appellant for having made aggravated sexual assault on the minor child, aged about 8 years, punishable under Section 9(m) r/w.10 of Protection of Children from Sexual Offences Act 2012. In this case prosecution examined 13 witnesses. Amongh them, Arulmani(P.W.1) and Saritha(P.w.2) are father and mother of the victim child.
10.The victim child was examined as P.W.3. I have gone through the evidence of the victim child(P.W.3). For better appreciation, it is reproduced herein:
** mg;g ehd; !;Ty; yPtpy; filapy; ,Ue;njd;. xU mz;zh te;jhh;fs;, jz;zp nfl;lhh;fs;. ehd; jz;zp vLf;fyhk; vd;W nghndd;/ vd;id J}f;fpf;bfhz;lhh;. thapy; thia itj;J. ehd; a{hpd; nghFk; ,lj;jpy; if itj;jhh;/ ehd; mdj;jw rt[d;l; nfl;L mg;gh. mk;kh te;jhh;fs;/ me;j mz;zh vd;id fPnH nghl;Ltpl;L Xotpl;lhh;/ ehd; fPnH tpGe;jij ghh;j;jjhy; vd; mg;gh. mk;khthy; me;j mz;zhit gpof;f Koatpy;iy. nyo 7 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 nghyPRk;. ,d;ndhU nghyPRk; 5/00 kzpf;F te;J ehd; brhd;dij vGjpf;
bfhz;lhh;fs;/ mg;ghit 6/00 kzpf;F Tl;of; ;bfhz;L nghdhh;fs;/ jpUk;gp mg;gh te;Jtpl;lhh;/ vd;dplk; fhz;gpf;fg;gLk; ifbaGj;J filapy;jhd; nghl;nld;/ ** Further, the alleged eye-witnesses Arulmani((P.W.1), Saritha(P.W.2) in their evidence stated that on 09.03.2019 Saturday, afternoon, they asked her daughter,victim child, to sit in the Hotel and they worked in the backside of the hotel. At about 2.15 p.m, on hearing the alarm sound of her daughter, they ran into the hotel immediately, there, they saw the accused kissing her daughter and placed his hand on her vagina. On seeing them, the accused ran away from the place. Thereafter, they went to the police station and given the complaint Ex.P.1 and the case has been registered. The remaining witnesses, P.W.4 Udayakumar deposed that he saw that the accused running from the hotel. P.W.5 Kanagaraj is the witness to the observation mahazar (Ex.P.2) and he is not an eye-witness to the occurrence. Dr. Sridharan (P.W.6) examined the victim girl and issued Accident Register (Ex.P.4). Kumaravarman (P.W.7), who was the District Civil Judge cum Judicial 8 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 Magistrate, recorded the 164 Cr.P.C. statement of the victim child (Ex.P.6). Dr.Vijaya (P.W.8) examined the victim child and found no injuries on her body and upon her private part and issued Medical Certificate (Ex.P.7). Her evidence runs as follows :-
" mtiu ghpnrhjpj;jnghJ mtUf;F btspg;g[w fha';fs; vJt[k; ,y;iy/ gpwg;g[ cWg;gpYk;. bjhilapYk; fha';fs; vJt[k; ,y;iy** Mr.Nallasamy (P.W.9) deposed about the issuance of birth certificate(Ex.P.9) to the victim girl. Lakshmanan, Principal of P.K.P. Swamy Matric High Secondary School, issued bonafide certificate Ex.P.11. Mr. Sugumaran (P.W.11) registered the First Information Report (Ex.P.12) and placed the matter before the higher officials for further investigation. Mr.Ravi, Inspector of Police (P.W.12) conducted preliminary investigation and thereafter, the investigation has been done by Mrs. Vijaya, Inspector of Police, (P.W.13) and filed final report.
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11. Among 13 witnesses, with regard to the occurrence, P.Ws.1, 2 and 3 deposed about the occurrence. The victim child(P.W.3) during the cross examination deposed that she saw the accused for the first time in the Court and previously one time in the hotel. In the chief examination, she had deposed that on the date of occurrence, the accused came to the shop and kissed her and touched her vagina. It is corroborated by Arulmani(P.W.1) and Saritha (P.W.2).
12. Now, this Court has to consider the defence side argument that the accused was suffering with intellectual disability and he had no intention to commit such offence and it was evidenced through medical observation report of the Institute of Mental Health Chennai, dated 01.12.2022. In the absence of any intention, the accused cannot be punished for sexual assault. In this aspect, this Court has gone through the materials available on record. In the impugned Judgment, the learned Trial Judge observed about the mental condition of the accused. In paragraph 5 of the judgment, the Trial Judge discussed about the mental condition. For 10 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 better appreciation, it is reproduced as follows :-
" The accused is aged about 22. The accused was summoned for appearance before this Court and on his appearance copies were furnished to him and charges framed, explained to him in Tamil. He pleaded not guilty of the offence and therefore, trial was fixed from 15.04.2021. On 15.04.2021, totally three witnesses were examined. During the period of examination, this Court found that the accused restless while standing in the witness box. When enquired the learned coounsel for the accused submitted that the accude's mother informed him that the accused suffers mild intellectual disability, but she do not have any treatment records to produce before this Court as they have not subjected him for tests. This Court decided to test the mental ability of the accused whether he is capable of defending himself and referred him to psychiatrist. The accused had appointed his own counsel to defend him. The accused learned counsel consented to proceed with the trial since date of trial has been fixed and summons served on all witnesses through proceeding. This Court proceeded with the trial . The psychological screening report of the accused received. The findings of the Doctor was as below :-
Co-operative for the simple instruction eye to
11 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 eye contact found to be normal, communication is fair at timer when talk with unwanted laughing.
Attention/concentration normal memory-
difficulties, abstract thinking poor, problem
solving and decision making poor."
Test findings : Memory-poor, Reasoning - Poor, Conceptual thinking - low, Visual motor coordination-low. Social Intelligence and communication and language skills-low.
Impression :
Mental Age and social age is poor is poor; his IQ 60-62 CATEGORY INTELLECTUAL DISABILITY (MILD LEVEL) .His disability 40 to 45 percentage.
Recommendation : 1. Parental counseling.
2.Behaviour management."
It shows that the accused is having memory difficulties, abstract thinking poor, problem solving and decision making poor. It reflects his mental and social poor thinking.
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13. The definition of sexual assault under Section 7 of the Protection of Children From Sexual Offences Act 2012 runs as follows :-
" whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. "
The above said provisions provides that a person is said to commit sexual assault, if he with a sexual intention touches the vagina or breast of the child, etc., to commit the above said offence. In this case, as per the Medical Pshycologial Screening report produced before the Trial Court, he had memory difficulties, abstract thinking poor, problem solving and decision making poor. Whether such a person would touch the breast of the child and the vagina with sexual intention is to be considered. In this case, considering the occurrence and the circumstances, in which, the occurrence took place and the evidence of the victim child is not enough to hold that the accused kissed her mouth and touched her vaginal with sexual intention. It is is doubtful. Therefore, by considering the psychological screening 13 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 report, I find no strong evidence to show that the accused touched the victim child with sexual intention and hence, the accused is entitled to the benefit of doubt. The trial court failed to consider the pshycological screening report properly and consider the evidence whether such mental disability person touched the victim child with sexual intention. There is an element of genuine doubt. Accused is entitled for that. Therefore, the finding of the Trial Court is unsustainable. Hence, by granting benefit of doubt, the accused is acquitted.
14. In the result, the Criminal Appeal is allowed and the conviction and sentence passed by the Trial Court is set aside and the appellant/accused is acquitted from all the charges. Fine if any, paid by the appellant/accused to be refunded to him. The appellant/accused, who is in custody shall be set at liberty forthwith, if he is not required in any other criminal case.
24.02.2023 mrp 14 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 To
1. The Sessions Judge, Mahila Court (Fast Track), Erode.
2. The Public Prosecutor, High Court, Madras 15 of 16 https://www.mhc.tn.gov.in/judis Crl.A.No.631 of 2021 V.SIVAGNANAM, J., mrp Pre-delivery order in Crl.A.No.631 of 2021 24.02.2023 16 of 16 https://www.mhc.tn.gov.in/judis