Madras High Court
V.Vishnubhaskar ... Accused / vs The State - Rep. By on 16 November, 2017
Author: P.N.Prakash
Bench: P.N.Prakash
Crl.A.No.137 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 25.08.2021
DELIVERED ON : 02.09.2021
CORAM :
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
Crl.A.No.137 of 2018
V.Vishnubhaskar ... Accused / Appellant
Vs.
The State - Rep. by
The Inspector of Police,
All Women Police Station,Coimbatore(East),
Coimbatore District.
(Crime No.19 of 2015)
... Complainant / Respondent
PRAYER: Criminal Appeal filed under Section 374 (2) of Criminal
Procedure Code, 1973 to set aside the Judgment dated 16.11.2017 of the
Mahila Court, Coimbatore, passed in S.C.C.No.15/2016, convicting and
sentencing the appellant under Section 5 (l), (m), (n) and Section 6 of
POCSO Act, 2012 to undergo imprisonment for life and pay a fine of
Rs.5,000/- and in default, to undergo three months rigorous imprisonment.
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Crl.A.No.137 of 2018
For Appellant : Mr.T.Vijayashankar
For Respondent : Mr.M.Babu Muthumeeran
Additional Public Prosecutor
JUDGMENT
Judgment of the Court was delivered by R.HEMALATHA, J. This criminal appeal is against the conviction and sentence passed by the Mahila Judge, Coimbatore. The appellant / accused is convicted by the Trial Court for the offences punishable under Section 5 (l), (m), (n) and Section 6 of Protection of Children from Sexual Offences (POCSO) Act, 2012 and sentenced to undergo life imprisonment and also to pay a fine of Rs.5,000/- and in default,to undergo rigorous imprisonment for a period of three months.
2. The case of the prosecution as could be discerned from the evidence is as follows:
The defacto complainant Nithya (PW1) is the wife of the appellant / accused Vishnubhaskar. The PW1 and the appellant were living separated for the last two years and Nithya (PW1) had left her girl child aged 3 years 2/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 and 9 months with her parents living in Coimbatore, as she was employed in Bangalore. The victim child was unwell on 07.10.2015 and since PW1 was in Bangalore and could not make it, she had requested her husband (Accused) who was living in Coimbatore at Maniyakaranpalayam, Ganapathy, Coimbatore, to take the child to the hospital. The child was reportedly taken to Sri Ramakrishna Hospital and admitted for treatment and subsequently discharged on 08.10.2015. Further on 17.10.2015 and subsequent days the child was taken out by her father (Accused) at the behest of Nithya (PW1), during which time he committed penetrative sexual assault on his own child under the guise of checking her private part for any insect. The child had symptoms of restlessness, sleeplessness, frequent urination and itchy sensation in her private part and it was on 23.10.2015, that the child narrated her ordeal to Meenakshi (PW2) and to Shakunthala (PW4) who are the sister-in-law and mother of PW1 respectively. PW1 was informed immediately and she rushed to Coimbatore and took the child to the Sri Ramakrishna Hospital on 24.10.2015 at about 05.00 PM. Dr.Saranya Manickaraj (PW13) physically examined the child and her systemic examination report was marked as Ex.P14 in which it was 3/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 mentioned as 'hymen intact' and no external injuries. Subsequently, the childline was informed by PW13 who in turn referred the child for psychological evaluation by “Vazikatti” a Non-Governmental Organization (NGO). PW1 also lodged a complaint (Ex.P1) with the Sub-Inspector of Police, All Women Police Station, Coimbatore and the same was registered as First Information Report (FIR) in Crime No.19/2015 by Tmt.Prema (PW14) Sub-Inspector of Police.Tmt.Rajeshwari (PW15) Inspector of Police referred the child for medical examination to the Government Hospital at Coimbatore on the same date. Dr.Sasikala (PW12) examined the child at about 10.15 PM on 24.10.2015 and found the hymen absent. She also found the vagina mucosa pinkish in colour and an abrasion of 0.5 cm on the right hand side of the private part of the child. A copy of Accident Register dated 24.10.2015 was marked as Ex.P13. Tmt.Rajeshwari (PW15) also recorded the statement of PW1 and PW4 on 24.10.2015 and on the next day i.e. on 25.10.2015, recorded the statements of PW2, PW5 & PW6 under Section 162 of the Code of Criminal Procedure. Thereafter, she arrested the accused, father of the victim child and prepared an observation Mahazar (Ex.P16) and also recorded the confession statement of the accused in the 4/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 presence of Mohan Daniel (PW7) and Ramkumar (PW9). Tmt.Priyamalini (PW16) the Inspector of Police, All Women Police Station, Coimbatore who resumed duty after leave, took up the investigation and examined the child again on 26.10.2015. She also examined PW2 and took the child to the Judicial Magistrate III, Coimbatore for recording her statement under Section 164 of Criminal Procedure Code. On 06.11.2015, the accused was sent for potency test at Government Hospital, Coimbatore as per the order of Judicial Magistrate III, Coimbatore. Dr.Jayasingh (PW8) certified (Ex.P8) that there is nothing to suggest that the accused was impotent.
3. Tmt.Renuka Devi(PW10), Judicial Magistrate III, Coimbatore recorded the statement of the child under Section 164 of the Code of Criminal Procedure in her chamber and sent the entire file containing the statement of the child (Ex.P11) and 8 DVDs (Ex.P12 series) to the Mahila Court, Coimbatore.
4. Tmt. Meena @ Meenakshi (PW2) had deposed that on 07.10.2015 when the victim fell ill and was to be taken to the hospital, the accused had 5/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 taken the child to the hospital and got her admitted and subsequently discharged on the next day. On 17.10.2015, the accused had taken the child out since PW1 had insisted on that. In the evening when the child had come back, she complained of pain and slept off on the sofa without taking food. On the next day i.e. 18.10.2015, when the accused had come to take his daughter, the child refused to go with him and on intervention by PW2 & PW4, she went with her father. However, the child came back at around 03.00 PM and she had new clothes, toys and snacks which was bought by her father. On that night the child did not sleep and was weeping the whole night complaining of pain. However, when similar complaints of pain was repeated on 19.10.2015 & 20.10.2015 the child had narrated about her father's act of touching her private parts. Even at that juncture, PW2 did not realize the seriousness of the situation and on 21.10.2015 when the accused came to take the child PW2 & PW4 refused to send the child with the accused and it was only on 23.10.2015 that the child when playing with her toy was talking to the toy asking the toy as to whether the toy's father had ever done the acts which her father had done to her. This behavior aroused suspicion in the minds of PW2 and PW4 and it was then when the child was 6/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 further questioned. The child narrated to them as to how her father used to make her nude and bathe her, touch her private parts and perform penetrative sexual assault with his male organ, after making her lie down and also ejaculate semen into her mouth which she used to spit out. She was also threatened not to reveal and that she was pampered by the promise to buy new cycle and dress. It was after this revelation that PW4 had called PW1 urgently to rush to Coimbatore and subsequent events including medical examination and police complaint followed.
5. PW4, mother of PW1 corroborated the versions of PW1 & PW2. The victim child (PW3) in her deposition had narrated as to how her father took her to his residence, undressed her and also undressed himself, bathed her and inserted his male organ into her mouth. Furthermore, he also pressed his male organ into her private part and anus and when she screamed out of pain he again put the male organ into her mouth and ejaculated "yellow coloured substance" which did not taste good and she spit it out. After this, he dressed her up and wore back his dress and took her outside to buy chocolate and fanta.
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6. The PW16, after completing investigation laid a final report before the Mahila Court, Coimbatore, against the accused for the offences punishable under Section 5 (l), (m), (n) and Section 6 of Protection of Children from Sexual Offences (POCSO) Act, 2012. The circumstances appearing in evidence were put to the accused under Section 313 of the Code of Criminal Procedure and he denied of having committed any offence. Though no witness was examined on his side, the certified copy of petition filed by P.W.1 in H.M.O.P. No.888 of 2015 on the file of Family Court, Coimbatore (Ex.D1) and Thyroid report of the victim child (Ex.D2) were marked on his side.
7. Mr.T.Vijayashankar, learned counsel appearing for the appellant contended that on 17.10.2015, the child was taken to Sri Ramakrishna Hospital, Coimbatore for a blood test as is seen from Ex.D2 and that the child was never taken to the residence of the accused at any point of time. He also would contend that the child during the course of cross examination admitted that she was taken by her father to the Hospital only once. His next contention is that when Dr.Saranya Manickaraj (PW13) of Sri Ramakrishna 8/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 Hospital who examined the child physically on 24.10.2015 at about 05.00 PM had opined that the hymen was intact and did not find any external injuries, Dr.Sasikala (PW12) of the Government Hospital, Coimbatore had observed that the hymen was absent and there was an abrasion measuring 0.5 cm on the right hand side of the private part of the child. It is also argued by him that the victim was a tutored witness and during the Section 164 Cr.P.C. statement, only her grandmother narrated the incidents to the Judicial Magistrate – III and this is evident from the video footage (Ex.P12 series). Yet another contention of the counsel for the accused is that the entire case was foisted against the accused by the mother of the victim in order to get a decree of divorce in H.M.O.P.No.888/2015 filed by her before the Family Court. He also pointed out certain inconsistencies in the evidence of PW1, PW2 & PW4 and that as such they did not corroborate with each other.
8. The victim was a child hardly 4 years old at the time of occurrence. It is not a case where the perpetrator of the crime was an outsider. It was her own father who committed this ghastly act. In fact, the Trial Court in its 9/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 judgment had already dealt with the various points raised by the defence in this appeal. Firstly, this Court also agrees to the fact that such a complaint by PW1 against her husband cannot have a motive of getting a divorce as there is no reason as to how this complaint would prove to be advantageous to her. In fact, the sequence of events would clearly reveal that both on 07.10.2015 and 17.10.2015 it was on her (PW1) insistence the child was taken out by her father, the accused / appellant. Despite, the differences of opinion between the two, PW1, had fully trusted her husband in the matter of taking their daughter to the hospital on 07.10.2015 and again on subsequent days. Had the motive of this complaint been only to score over her husband she would not have sought the help of her husband to get medical treatment for her daughter. Therefore, this ground raised by the learned counsel for the appellant lacks in merit and fails.
9. Secondly, the appellant's counsel highlighted the contradictory observations made by two doctors (PW12 & PW13) who had physically examined the child within a short span of 4 to 5 hours. The point of contention of the appellant's counsel is that while the first doctor had 10/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 observed that the 'hymen was intact' the doctor who examined the child later on the same day declared that the 'hymen was absent'. According to the learned counsel for the appellant, the theory of sexual assault itself comes under a cloud in the light of such contradictory observations. But the evidence of the victim child does not stop with the penetration of her private part by the accused but also penetration of her mouth and ejaculation into her mouth. In fact, the child's deposition is that 'an yellow substance' which was ejaculated into her mouth, was not of good taste which made her to spit it out. This by any stretch of imagination cannot be termed as a holy act with no sexual intent. Therefore on this ground also there can be no excuse or lenience shown to the appellant.
10. Thirdly, it was argued that the Section 164 Criminal Procedure Code statement of the child which was also video recorded clearly showed that the child was tutored by her grandmother (PW4) and therefore it cannot be relied upon. This contention also is on a weak premise because the deposition of the victim before the Trial Court is more than sufficient and the fact that she withstood the testimony of cross examination clearly 11/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 reveals she has not been tutored and she has only told the truth in her own language with all innocence and oblivious of the seriousness and consequence of the crime committed by her own father. Even her language and innocence remained unadulterated. She had no ill feeling or hatred towards her father. This ground again does not carry any conviction and deserves to be trashed.
11. Lastly, the contention of the counsel for the appellant regarding the inconsistencies and discrepancies in the deposition of the victim child as well as the other prime witnesses namely PW1, PW2 & PW4, are all trivial in nature. For instance, it has been pointed out the child victim during cross examination had deposed that she was sexually abused by her father only on the day she was taken to the hospital by him. In fact the specific contention of the appellant's counsel was that the appellant took her daughter only to the hospital on 17.10.2015 as is evident from Ex.D2 and not to his house and not also on any other subsequent dates. However, a perusal of Section 313 of the Code of Criminal Procedure statement of the accused shows that the appellant is conspicuously silent and did not take the 12/16 https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 said plea at that point of time. Therefore, this ground also lacks substance and cannot be considered.
12. Incidents of sexual assault / abuse on children have become a matter of serious concern and are also on rise. Our culture, tradition and customs have always been treating children as God. The divinity in children is due to their innocence in them and their nature to forgive others.Any act of sexual abuse of child is nothing but exploitation of the innocence. In the instant case, this extract from the evidence of PW2 is heart wrenching.
"23/10/2015-k; njjpad;W kjpak; ehd; o.tp. ghh;j;Jf; bfhz;oUe;jnghJ. J`pjh bghk;ikia itj;J tpisahof; bfhz;oUe;j nghJ. bghk;ikia ghh;j;J J`pjh mg;gh cr;rh nghFkplj;jpy; itj;jhuh?. gpd;dhy; itj;jhuh?. thapy; itj;jhuh? vd;Wk; eP mGjpah? vd;Wk.; bghk;ikia ghh;j;Jf; nfl;Lf; bfhz;oUe;jhs;" The translation of the above extract is that "on 23.10.2015 when I was watching T.V. the child was playing with her doll asking the doll whether her father had placed his male organ on her genitals, anus and mouth and whether the doll was weeping". 13/16
https://www.mhc.tn.gov.in/judis/ Crl.A.No.137 of 2018 The damage caused to the psyche of the victim child is devastating and in many cases irreversible too. Sexual assault of a child that too by her own father is even more serious and deserves no leniency and it is a matter of shame that grounds are invented to save the appellant when the child's statements have pinned him down. This is just a tip of the iceberg and therefore such crimes deserve the maximum punishment with no leniency to be shown.
13. The conviction and sentence passed by the learned Judge, Mahila Court, Coimbatore in S.C.C.No.15 of 2016 are perfectly in order and do not warrant any interference by this Court.
14. In the result,
(i) The Criminal Appeal is dismissed.
(ii) The conviction and sentence passed by the learned Sessions Judge, Mahila Court, Coimbatore dated 16.11.2017 in S.C.C.No.15 of 2016 is confirmed.
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(iii) The accused shall surrender before the learned Sessions Judge, Mahila Court, Coimbatore within 15 days from the date of receipt of a copy of this judgement, failing which, the Trial Court shall take steps to secure him for undergoing the sentence.
(P.N.P., J.) (R.H., J.)
02.09.2021
mtl
Index : yes/no
Speaking /Non speaking Order
To
1.The Inspector of Police,
All Women Police Station (East) Kovai City,
Coimbatore District.
2.The learned Judge,
Mahila Court,
Coimbatore.
15/16
https://www.mhc.tn.gov.in/judis/
Crl.A.No.137 of 2018
P.N.PRAKASH, J.
and
R.HEMALATHA, J.
mtl
Pre-Delivery Judgment in
Crl.A.No.137 of 2018
02.09.2021
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