Madras High Court
Ramaraj vs State Rep. By on 1 September, 2020
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.A.(MD)No.333 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.09.2020
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A.(MD)No.333 of 2015
Ramaraj ... Appellant/Accused No.1
versus
State Rep. By
The Inspector of Police,
All Women Police Station,
Andipatti,
Theni District.
(Crime No.10 of 2014) ... Respondent/Complainant
Criminal Appeal filed under Section 374(2) of Cr.P.C. against the
Judgment dated 26.10.2015 made in Special S.C.No.13 of 2014 on the file
of Mahila Fast Track Court, Theni.
For Appellant : Mr.Karuppasamy Pandian
For Respondent : Mr.A.Robinson,
Government Advocate (Crl. Side)
JUDGMENT
The appellant, who was arrayed as A1, was tried along with three others/A2 to A4, before the Mahalir Fast Track Court, Theni, in Special 1/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 S.C.No.13 of 2014 and the trial Court framed charges as against the accused and gave its verdict as follows:
Rank of the Charges Findings of Sentence imposed accused framed the trial Court A1-Ramaraj Under Sections Found guilty (i) for the offence under Section 8 and 4 r/w.18 8 of POCSO Act, sentenced to of POCSO Act undergo 5 years rigorous and 506(i) IPC imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo one year rigorous imprisonment;
(ii) for the offence under Section 4 r/w. 18 of POCSO Act, sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.
20,000/-, in default to undergo
one year rigorous
imprisonment;
(iii) for the offence under
Section 506(i) IPC, imposed a
fine of Rs.2,000/-, in default to
undergo six months rigorous
imprisonment.
(The sentences were ordered to
run concurrently)
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Crl.A.(MD)No.333 of 2015
Rank of the Charges Findings of Sentence imposed
accused framed the trial Court
A2-Thangavel Under Sections Found guilty (i) for the offence under Section
294(b) and 294(b) IPC, imposed a fine of
506(i) IPC Rs.1,000/-, in default, to
undergo three months rigorous
imprisonment;
(ii) for the offence under
Section 506(i) IPC, imposed a
fine of Rs.2,000/-, in default to
undergo six months rigorous
imprisonment.
A3-Velmani Under Sections Found guilty (i) for the offence under Section
294(b) and 294(b) IPC, imposed a fine of
506(i) IPC Rs.1,000/-, in default, to
undergo three months rigorous
imprisonment;
(ii) for the offence under
Section 506(i) IPC, imposed a
fine of Rs.2,000/-, in default to
undergo six months rigorous
imprisonment.
A4-Muthuraj Under Sections Found guilty (i) for the offence under Section
294(b) and 294(b) IPC, imposed a fine of
506(i) IPC Rs.1,000/-, in default, to
undergo three months rigorous
imprisonment;
(ii) for the offence under
Section 506(i) IPC, imposed a
fine of Rs.2,000/-, in default to
undergo six months rigorous
imprisonment.
As against the Judgment of the trial Court dated 26.10.2015, the first accused has preferred the above Criminal Appeal in Crl.A.(MD)No.333 of 3/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 2015. The accused Nos.2 to 4 have not preferred any appeal.
2. The prosecution case, in a nut-shell, is as follows:
(i) The victim child, Kasthuri, aged about 13 years, was in the custody of her grandparents P.W.1 and P.W.4, who were residing at Pitchampatti Colony, Andipatti Taluk, Theni District. The victim's parents, Sudhakar and Muniyammal-P.W.8, working as mason, were residing in another place.
On 15.06.2014, when the victim girl (P.W.2) and her grandmother (P.W.1) were sleeping outside their house, at around 1.00 a.m., the first accused came there and woken the victim child stating that he has brought some cakes for her from his bakery and taken the victim child to a petty shop nearby, where, he has committed sexual assault on the victim girl by touching her private parts. P.W.1, after sometime, found that her granddaughter (P.W.2) was not available and went in search of the child (P.W.2) along with P.W.3 and they witnessed the accused lying over the victim child (P.W.2) and sexually assaulted her. On seeing this, P.W.1 kicked the accused on back and questioned him. But, the accused pushed her down, intimidated and ran away from the place of occurrence. On the 4/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 next day morning, P.W.1 informed the incident to the accused's mother/A3, father/A2, sister and sister's husband/A4, but, they intimidated her and also abused her in filthy language. Thereafter, P.W.1, after the arrival of her husband (P.W.4), went and report the incident to the Panchayat President(P.W.5). P.W.5 made an attempt to solve the issue amicably. Since the accused did not respond, a complaint (Ex.P1) was lodged before the All Women Police Station, Andipatti, on 17.06.2014 at about 11.00 a.m. P.W.10-Tmt.R.Meena, the Special Sub Inspector of Police, Andipatti All Women Police Station, received the complaint (Ex.P1) from P.W.1 and registered a case in Cr.No.10 of 2014 under Section 12 of POCSO Act 2012, 294(b), 506(i) IPC. The printed FIR is marked as Ex.P5.
(ii) On receipt of the information about the case registered in Cr.No. 10 of 2014, P.W.12-A.Peulamary, the Inspector of Police, took up the investigation, proceeded to the place of occurrence, prepared an observation Mahazar-Ex.P7 and a rough sketch-Ex.P8 in the presence of P.W.6 and P.W.7 and recorded the statement of other witnesses, who were present in the place of occurrence. She arrested the first accused, on 17.06.2014 at 5/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 about 1.30 p.m. at Pitachampatti Bus Stop. She made a request to the learned Judicial Magistrate, Theni, for recording the statement of victim child under Section 164 Cr.P.C. on 20.06.2014 and pursuant to the order of the learned Chief Judicial Magistrate, the statement of the victim child (P.W.2) was also recorded before P.W.11-learned Judicial Magistrate, Theni, on 23.06.2014. She has also examined P.W.9-Headmaster of Andipatti Government Higher Secondary School and obtained a certificate from him for the age proof of the victim child in Ex.P4. As per the certificate issued by P.W.9-Headmaster, the date of birth of the victim child is 25.06.2001 and accordingly, at the time of occurrence, she was aged about 13 years. After completing the investigation, P.W.12 filed a final report as against the accused No.1 and three others for the offence as stated above. The same was taken on file by the Mahalir Fast Track Court, Theni, in Special S.C.No.13 of 2014.
(iii) The available evidence from the prosecution case are as follows:
(a) P.W.1 Mariammal is the grandmother of the victim child, who is an eye-witness to the occurrence and set the law in motion. 6/27
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(b) P.W.2-Kasthuri is the victim child and she speaks about the occurrence.
(c) P.W.3-Saratha, is a relative of P.W.2 and also a neighbour, who has witnessed the accused taking the victim child and had witnessed the occurrence.
(d) P.W.4 is the grandfather of the victim child, but, he was not present at the time of occurrence.
(e) P.W.5 is the Village Panchayat President who speaks about the information given by P.W.1 and others.
(f) P.W.6 and P.W.7 are the witnesses for the observation mahazar and rough sketch and though they have stated about the preparation of observation mahazar and rough sketch by the Investigating Officer on the date of occurrence, they were treated as hostile, since they have stated that they have not been examined by the Investigating Officer.
(g) P.W.8 is the mother of the victim child. She and her husband were working as mason and living in another place.
(h) P.W.9 is the Headmaster, who issued the certificate for age of the victim in Ex.P4.
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(i) P.W.10 is the Special Sub Inspector of Police, who registered the case in Cr.No.10 of 2014.
(j) P.W.11 is the learned Judicial Magistrate, Theni, who recorded the statement from the victim child under Section 164 Cr.P.C.
(k) P.W.12 is the Investigating Officer, who conducted the investigation and filed the final report in this case.
3. Before the trial Court, in support of the prosecution, 12 witnesses were examined and 9 documents were marked during the trial. In conclusion of the trial, the trial Court found this appellant/A1 and three others guilty, convicted and sentenced them as mentioned above. As against the Judgment of the trial Court dated 26.10.2015, the accused No. 1/appellant has preferred the present Criminal Appeal.
4. Mr.Karuppasamy Pandian, learned counsel appearing for the appellant has made the following submissions:
4.1. there was a delay in filing the complaint-Ex.P1 and prior to that complaint, yet another complaint was lodged by P.W.1 before the 8/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 Kaniyappapillaipatti Police Station, which has also been elicited from the evidence of P.W.1, P.W.4 and P.W.5 and the same was suppressed by the prosecution. Therefore, the benefit of doubt has to be extended in favour of the appellant/first accused.
4.2. The charges framed against the appellant/first accused by the trial Court are defective in nature. When there was no evidence and averment for the penetrative sexual assault on the victim child , the trial Court ought not to have framed the charge under Section 18 of POCSO Act.
But, the trial Court framed the charge under Section 18 of POCSO Act as against the appellant and also found him guilty for the offence under Section 4 r/w. Section 18 of the POCSO Act. He also pointed out that a charge (charge-iv) under Section 506(i) IPC has also been framed, as if the accused, while sexually assaulting the victim girl, intimidated the victim child, but, if she is not co-operating for his desire, he would kill her grandmother-P.W.1. But, there was no evidence to substantiate the same. However, the trial Court convicted this appellant for the offence under Section 506(i) IPC also.
9/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 4.3. The observation mahazar witnesses, viz. P.W.6 and P.W.7, were treated as hostile. The occurrence, according to the prosecution, took place behind the Petthiammal Petty Shop, but, it has not been established by the prosecution. Moreover, the owner of the Petty Shop has also not been examined by the prosecution. Therefore, the offence under Section 8 of POCSO Act is also not made out by the prosecution in this case.
4.4. It is the contention of the learned counsel for the appellant that there is no evidence for penetrative sexual assault as defined under Section 4 of POCSO Act and even there is no averment to that effect. Therefore, no offence is made out under Section 4 r/w. 18 of POCSO Act.
4.5. According to the prosecution, the age of the victim girl was 14 years at the time of occurrence. But, the victim child, in her evidence stated that she is aged 16 years old. Therefore, there is a different versions with regard to the age of the victim girl. If there are different versions with regard to the age of the victim child, the prosecution ought to have filed a 10/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 certificate, like, Birth Certificate or Transfer Certificate to establish the age of the victim child at the time of prosecution. But, the prosecution has failed to do so. On the other hand, the prosecution has simply relied upon the certificate (Ex.P4) given by P.W.9-Headmaster. In the absence of any School Leaving Certificate or Birth Certificate, the certificate issued by the Headmaster of the School cannot be a piece of evidence to substantiate the age of the victim girl. Therefore, he prays for allowing the appeal.
5. Per contra, the learned Government Advocate (Crl. Side) made his submissions as follows:
5.1. Insofar as the delay in lodging the present complaint is concerned, P.W.1-grandmother of the victim child as well as P.W.5-the Village Panchayat President, in their evidence, stated that an attempt was made for compromise. That apart, P.W.1 has also stated that without knowing the place where to lodge the complaint, she initially lodged a complaint before the Kanniyappapillaipatti Police Station, where, the accused also lodged a counter complaint as if he was assaulted by her henchmen. Thereafter, she was suggested to give a complaint before the 11/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 Andipatti Police Station. After that, P.W.1 lodged the present complaint before the Andipatti Police Station, out of which, the delay had occurred.
5.2. By relying upon the evidence of P.Ws.1 to 3, the learned Government Advocate (Crl. Side) submitted that the prosecution has established the case beyond reasonable doubt through the witnesses. In fact, the first accused made a suggestion as if the first accused and the victim P.W.2 moved closely and loved each other. Insofar as the earlier complaint lodged before the Kanniyappapillaipatti Police Station is concerned, the learned Government Advocate (Crl. Side) submitted that there is lacuna on the part of the Investigating Officer. However, P.W.1, in her evidence, has stated that without knowing the place where to lodge the complaint, she initially lodged the complaint before the Kanniyappapillaipatti Police Station, where, the accused also lodged a counter complaint against them and thereafter, based on the suggestion, she lodged the present complaint before the Andipatti Police Station. When the testimony of witnesses, namely, P.Ws.1 to 3, clearly narrate the manner of occurrence, which took place on 15.06.2014, the lacuna on the part of the 12/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 Investigating Officer in verifying the same cannot be a ground for brushing aside the entire evidence of the prosecution witnesses.
5.3. The learned Government Advocate (Crl. Side) further submitted that this is a case involved in morality. The testimony of P.W.1 and P.W.3, eye witnesses to the occurrence, are corroborated with the evidence of P.W. 2- victim child and nothing has been elicited from the prosecution witnesses that it is a false accusation. In fact, the accused has also admitted in his cross examination that he is acquainted with P.W.2 (victim child). In this regard, the learned Government Advocate (Crl. Side) has relied upon the Judgment of the Hon'ble Apex Court in the case of Yogesh Singh vs. Mahabeer Singh and others (Criminal Appeal No.1482 of 2013, dated 20.10.2016), wherein, the Hon'ble Apex Court, by relying upon its Judgment in the case of C.Muniaappan and others vs. State of Tamil Nadu, reported in (2010) 9 SCC 567, that the investigation is not the solitary area for judicial scrutiny in a criminal trial. The relevant portion is extracted hereunder:
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30. In C. Muniappan and Others vs. State of Tamil Nadu, (2010) 9 SCC 567, this Court explained the law on this point in the following manner:
“There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The 14/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.” 5.4. Further, the learned Government Advocate (Crl. Side) relied upon a Judgment of the Apex Court in the case of C.Muniaappan and others vs. State of Tamil Nadu, reported in (2010) 9 SCC 567, wherein, the Apex Court has held as follows:
“43. Serious issues have been raised by learned senior counsel appearing for the appellants, submitting that inquest report was defective as there has been much irregularity in the inquest itself. Undoubtedly, three Investigating Officers, namely, T. Shanmugaiah, Police Inspector (PW.116); S.Palanimuthu (PW.121); and John Basha (PW.122) had conducted the investigation at the initial stage. The occurrence was so ugly and awful that the I.Os. had conducted the investigation under great anxiety and tension. The seizure memos were also prepared in the same state of affairs. Therefore, when the investigation had been conducted in such a charged atmosphere, some irregularities were bound to occur. There is ample evidence on record to show that after burning of the University bus, when the students came to know that three girls had been charred and 15/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 large number of girl students had suffered burn injuries, they became so violent that they damaged the ambulance which had been brought to take bodies of the deceased girls for conducting autopsy. The State Authorities, after keeping all these factors in mind and realizing that the investigation had not been conducted in proper manner, had taken a decision to transfer the investigation to the CBCID. Therefore, the irregularities committed in the investigation by the earlier I.Os. has too little relevance on the merits of the case. The evidence collected by the said three I.Os. was not worth placing reliance on and has rightly been not relied upon by the subsequent Investigating Officer.
44. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part 16/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi v.
State of Maharashtra, AIR 1974 SC 220; Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850; Paras Yadav v. State of Bihar, AIR 1999 SC 644; State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185; Amar Singh v.
Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri v. State of Gujarat, AIR 2002 SC 1051; and Ram Bali v. State of U.P., AIR 2004 SC 2329).” 5.5. Regarding the age of the victim child, the learned Government Advocate (Crl. side) submitted that the school certificate (Ex.P4) was not marked through the Headmaster of Andipatti Higher Secondary School. However, it is an admitted document for the age proof of the victim girl, in the absence of any other valid document, as per Section 12 of the Juvenile 17/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 Justice (Care and Protection of Children) Rules, 2007.
5.6. The learned Government Advocate (Crl. Side) further submitted that the occurrence was in the year 2014 and the victim child was examined in the year 2015. According to the prosecution, at the time of occurrence, the age of victim child was 14 years. But, the victim child, in her cross examination, stated that she is aged 16 years old. Therefore, this small variation of the age of victim child during her cross examination cannot be a ground to disprove the case of the prosecution. Even according to Section 2(d) of POCSO Act, child means any person below the age of 18 years, therefore, the victim has to be treated as child. Further, the child means both boy and girl, POCSO Act is gender-neutral law, wherein the law takes cognizance of sexual crimes committed against both girls and boys under the age of 18 years. Therefore, he prays for dismissal.
6. This Court paid its anxious consideration to the rival submissions and also perused the available records.
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7. The alleged occurrence is said to have taken place on 15.06.2014. According to the prosecution, the age of the victim child was 14 years at the time of occurrence. But, the victim child, in her cross examination, stated that she is aged about 16 years and she is studying 8th standard. The evidence of victim child was recorded in the year 2015. Further, in order to establish the age of the victim child, the prosecution examined the Headmaster of the Andipatti Government Higher Secondary School as P.W.9 and the Headmaster has also issued a certificate on age based on the school records, which was marked as Ex.P4. As per the certificate (Ex.P4), the date of birth of the victim girl is 25.06.2001 and therefore, the age of the victim child was 13 years at the time of occurrence.
8. It is the contention of the learned counsel for the appellant that Ex.P4-school certificate issued by the Headmaster of the Andipatti Government Higher Secondary School cannot be a piece of evidence to substantiate the age of the victim girl. As rightly pointed out by the learned Government Advocate (Crl. Side), as per Section 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, in the absence of any valid 19/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 document, the School Certificate can be a valid document in ascertaining the age of the victim girl. Therefore, the certificate issued by the Headmaster is a valid document to establish the age of the victim child.
9. Further, according to the learned counsel for the appellant, there was a delay in lodging the complaint and prior to the present complaint, there was a earlier complaint lodged by P.W.1 before the Kanniyappapillaipatti Police Station, that has been suppressed by the prosecution. Excepting the Investigating Officer, all other witnesses have spoken about the complaint lodged before the Kanniyappapillai Police Station. P.W.1, being a rustic village woman, in the absence of her husband P.W.4, admitted in her evidence that without knowing the place where to lodge the complaint, she went and lodged the complaint before the Kanniyappapillaipatti Police Station, where, the accused has also lodged a counter complaint against her and the Police officials have also attempted to compromise the issue and thereafter, they suggested to prefer the complaint before the All Women Police Station, Andipatti. After that only, P.W.1 preferred the present complaint before the Andipatti All Women Police 20/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 Station. The Investigating Officer, P.W.12, ought to have conducted the investigation on this issue. However, the said fact was elicited only at the time of cross examination of P.W.1 and not during the statement recorded under Section 164 Cr.P.C.
10. This is a case of sexual assault by the accused No.1 on the victim child and there is no scope for any development or embellishment on the complaint. P.Ws.1 to 3 have consistently stated about the manner of occurrence and therefore, their evidence appears to be trustworthy. Further, when the testimony of the eye witnesses are very much available before the Court, the lapses on the part of the Investigating Officer to find out the earlier complaint before the Kaniyappapillai Police Station cannot be a ground for disbelieving the entire case of the prosecution. P.W.1 is a rustic village woman, who was not even capable of signing the complaint, admitted in her evidence that without knowing the place where to lodge the complaint, she approached the Kanniyappapillaipatti Police Station and based on their suggestion, she lodged the complaint before the All Women Police Station, Andipatti. The incident was reported to the Panchayat 21/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 President and he along with others made an attempt to solve the issue amicably. Therefore, there was a delay of two days in lodging the complaint before the All Women Police Station, Andipatti and this delay in a complaint for this nature cannot be a material defect to disbelieve the case of the prosecution as discussed above.
11. The evidence of P.Ws.1 to 3 establish the case of the prosecution that the victim child was sexually assaulted by the accused on 15.06.2014. The victim child-P.W.2 along with her grandmother and another neighbour was sleeping outside the house on the date of occurrence and on that day, there was power cut and therefore, most of them were sleeping outside their house and taking advantage of the situation, the accused approached the victim child, induced her stating that he has brought some cakes from his bakery and took the child to a remote place behind the Petthiammal Petty Shop and sexually assaulted her.
12. P.W.2, in the statement recorded by P.W.11-the learned Judicial Magistrate on 23.06.2014 as well as in the evidence recorded before the trial 22/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 Court on 05.03.2015, had clearly narrated the incident. Though the victim child was cross examined at length, the defence could not shatter her evidence. In fact, as pointed out by the learned Government Advocate (Crl. Side), the accused admitted the close proximity with the victim child and that they were in love affair.
13. The evidence of P.W.2-victim child is also corroborated by the evidence of P.W.1 and P.W.3. P.W.1 is the grandmother of the victim child in whose custody the victim child was studying. Her parents, P.W.8- Muniyammal and her husband, were living in another place to eke out of their livelihood. P.W.4, the grandfather of the victim child, was also not available in the house at the time of occurrence. Taking advantage of that situation, the accused/appellant approached the victim girl with some cakes, induced her to come to a remote place and sexually assaulted her. P.W.3, a neighbour, who was also sleeping outside of her house, had noticed the same. In fact, both P.W.1 and P.W.3 went in search of the victim child and rescued the child from the accused at the time of occurrence. The evidence of P.W.1 and P.W.3 are also trustworthy and the accused were not able to 23/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 shatter their evidence. Further, the age of the victim child has also been established by the prosecution and the sexual assault committed by the accused has also been established through the evidence of P.Ws.1 to 3. The trial Court has correctly held that the accused was found guilty for the offence punishable under Section 8 of POCSO Act. Therefore, there is no reason to interfere with the conviction and sentence passed by the trial Court for the offence under Section 8 of POCSO Act.
14. As rightly contended by the learned counsel for the appellant, there is no evidence for penetrative sexual assault as defined under Section 4 of POCSO Act and there is no averment to that effect. The victim child was not subjected to medical examination. Therefore, no offence is made out under Section 4 r/w. 18 of POCSO Act. Hence, this Court is of the view that the appellant/accused is entitled for an acquittal from the charge punishable under Section 4 r/w. 18 of POCSO Act.
15. Similarly, with regard to the offence under Section 506(i) IPC, there is no evidence for intimidation. Therefore, the charge under Section 24/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015 506(i) IPC is not made out as against the appellant/accused and the appellant is entitled for an acquittal from the charge punishable under Section 506(i) IPC also.
16. At this stage, the learned counsel for the accused submitted that the appellant/accused and the victim child loved each other and without knowing the consequences, the appellant/accused committed the offence. Further, he has not involved in any other case. Therefore, the learned counsel for the accused pleaded for lesser sentence as the accused is the only breadwinner of the family. It is also informed to this Court that the victim girl completed her studies and also married another man. The available evidence disclose that an attempt was made to solve the issue amicably and therefore, there is a delay in reporting the incident and the family members of the appellant were also roped in.
17. Considering the circumstances and the other factors, this Court is inclined to modify the sentence imposed on the accused for the offence under Section 8 of POCSO Act, to the minimum sentence of three years. 25/27 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.333 of 2015
18. Accordingly, the Criminal Appeal is partly allowed. The appellant/accused is acquitted from the offence punishable under Section 4 r/w. 18 of POCSO Act and 506(i) IPC. The conviction imposed under Section 8 of POCSO Act is hereby confirmed. However, the sentence imposed under Section 8 of POCSO Act is hereby modified to the minimum period of three years. Bail bonds executed by the appellant/A-1 at the time of suspension of sentence shall stand cancelled and the trial court is directed to take necessary steps to secure the custody of A-1 and commit him to prison to undergo the remaining portion of the sentence imposed on him under Section 8 of POCSO Act. The period of incarceration, if any, already undergone by the appellant/A-1 during the course of investigation shall be set off in terms of Section 428 Cr.P.C.
01.09.2020 Index : Yes / No. Internet: Yes / No. ogy To
1. The learned Sessions Judge, Mahila Fast Track Court, Theni.
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