Madras High Court
Sankar vs State Represented By
Author: C.Saravanan
Bench: C.Saravanan
Crl.A.No.599 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON PRONOUNCED ON
31.08.2019 24.09.2019
CORAM
THE HONOURABLE MR. JUSTICE C.SARAVANAN
Crl.A.No.599 of 2017
and
Crl.M.P.No.11783 of 2017
Sankar .. Appellant
vs.
State Represented by
Inspector of Police,
W-24, All Women Police Station,
Teynampet, Chennai.
(Crime No.6 of 2014) .. Respondent
Prayer: Criminal Appeal is filed under Section 374(2) of Criminal Procedure
Code, against the order dated 19.07.2017 made in S.C.No.107 of 2015
passed by the learned Mahila Court ( Special Court for Cases) Chennai.
For Appellant : Mr.S.Suresh
For Respondent : Mr.G.Hari Harh Arun
Soma Shankar
Addl.Public Prosecutor.
http://www.judis.nic.in
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Crl.A.No.599 of 2017
JUDGMENT
This Criminal Appeal is filed against judgment dated 19.07.2017 passed by the Mahila Court, Chennai (Special Court for Cases Under Pocso Act, 2012) in S.C.No.107 of 2015 (hereinafter referred to as the trial court).
2.By the impugned judgment, the trial court has found the appellant guilty of the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO Act, 2012).
3.The appellant has been sentenced to undergo 14 years of rigorous imprisonment and to pay a fine of Rs.5000- I/d 6 years rigorous imprisonment.
4.Both the appellant and the victim’s family were living in the same area. The appellant was staying in the No.J12, 4th floor Giriyappa Road, Teynampet, Chennai in a Slum Clearance Board Flat while the victim’s family was staying in a hut outside the Slum Clearance Board Flat with her parents.
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5.The appellant is the paternal uncle by relation of the minor victim aged about 9 years then. The appellant is husband of the victim’s father’s sister. It is the case of the prosecution that the appellant had committed aforesaid offence on the PW 2 victim.
6.The offence is said to have been committed on 19.06.2014 at about 08.00 a.m at the appellant’s rented residence at No.J12, Giriyappa Road, Teynampet, Chennai.
7.It is stated that the appellant taking advantage of the absence of his wife in his house and familiarity with the victim forced himself on to the victim and inserted his genital into minor victim’s genital and committed sexual assault when latter had came to his house asking for a mobile phone charger.
8.At the time of commission of the offence, apart from the minor victim, the appellant’s infant daughter Sandya aged about two years was in the said house. The infant was asleep when the offence was committed on the minor victim. It appears on hearing the protest and cry of the minor victim, the infant woke up from her sleep and started wailing thereby forcing the appellant to let go of the minor victim with the charger. http://www.judis.nic.in 3/28 Crl.A.No.599 of 2017
9.Minor victim is said to have narrated the incident to her mother (the defacto complainant) who was examined as PW1 before the Trial Court. The victim explained that when she had gone to collect a phone charger, the appellant closed the door and window and covered her face and removed her undergarments and forced his male genitals into hers and kept saying “just five minutes” while the minor victim pleaded him to let her go free.
10.The appellant after ejaculating his sexual fluid into the minor victim’s genital released her to attend his wailing infant child. The victim thereafter ran to her house crying with the mobile phone charger and narrated the incident to her mother (the defacto complainant/PW1.).
11.The defacto complainant PW 1 found that the victim in distress and in pain and with wet undergarments and blood. The victim also mentioned that the appellant had passed urine implying that he had ejaculated his seminal fluid into hers while committing offence.
12.Under these circumstances, the defacto complainant went to the appellant’s house along with few neighbours who had gathered on hearing about the incident.
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13.It appears that the police was also informed and enquiry was conducted by the local police in presence of the neighbours. A formal complaint was thereafter lodged by PW1/defacto complainant/the mother of the victim with the Police Station on 19.06.2014. As per the deposition of PW5 to 8 who are the neighbours, the appellant was handed over to the police on the same day.
14.The complaint was formally received on 20.06.2014 by the police, which was marked as Exhibit P1 before the trial court. In the complaint, PW1 defacto complainant narrated the incident. PW12, the Inspector of Police who enquired with the witnesses on 20.06.2014 the spot prepared a rough sketch and stated that she arrested the appellant at the G.N.Chetty Street in presence of the Mahazer witness at about 11.30 am.
15.After investigation was completed and case filed, following charges in Crime No.6/2014 were framed by the Trial Court on 28.04.2015.
" The complainant in his complaint has stated that she had sent her minor elder daughter to her aunt's house was located in the same area to obtain cell phone charger. The child went to her aunt's house and asked for the same to his aunt's husband. Whileso, the accused made her lie on bed, with an intention to commit rape on her and attempted to misbehave with her, thereby, he is charged for the offence u/s.4 of http://www.judis.nic.in 5/28 Crl.A.No.599 of 2017 POCSO. In continuation of the above said act, the accused had made the victim girl lie on bed and sexually assaulted the vicitim girl, thereby, he has committed offence punishable u/s.6 of POCSO Act."
16.Before the trial court 13 Exhibits were marked and 12 witnesses were examined on behalf of the prosecution.
17.Minor victim was examined as PW 2. PW3 is the father of the minor victim and the husband of PW1. PW 4 is one of the Magazar witness whose signature was obtained in Exhibit P4 dated 20.06.2014. He has confirmed that he came to know that the appellant had misbehaved PW 2 minor victim and was present when the police came for enquiry and eventually arrested the appellant on 20.06.2014.
18.PW 5 named Vijaya claims to be an eye witness. She deposed that on the date of occurrence of the crime, she heard a loud wail of a child emanating from the appellant’s house. Thinking that the accused was beating his child, she along with a few others broke open the house and found that the appellant was holding the undergarment of the PW 2 victim and kissing her private parts. PW 5 further deposed that with the help of (gha; igad;) Muslim boy the appellant was beaten. http://www.judis.nic.in 6/28 Crl.A.No.599 of 2017
19.PW5 has further deposed that police complaint was given while the minor victim was taken to the hospital. During cross examination PW5, has re-confirmed that they broke open the house.
20.PW6 named Shanthi is another witness who is also neighbour of the appellant, in her deposition has stated that she noticed PW 1 came crying and when she enquired with PW 1 as to why victim PW 2 was crying, PW1 narrated the incident to her. She has deposed that she along with PW1 proceeded to the appellant’s house when they noticed the appellant climbing down stairs from the 4th floor and enquired with him. Since the appellant denied his involvement and was unwilling to confess to the crime they decided to inform the police.
21.PW 6 has further stated that the appellant was locked and admitted to his crime to the police who came thereafter and took him to the police station for investigation. During cross examination, PW6 has reiterated that she was present when the appellant was arrested.
22.PW 7 Padamvathi has deposed that the appellant was residing opposite her house and that on the date of the incident she heard PW1 was http://www.judis.nic.in 7/28 Crl.A.No.599 of 2017 loudly crying and therefore enquired as to why she was crying when she was informed about the incident.
23.PW 8 Manjula has confirmed that the appellant had taken her sister’s house two months before the incident. She is confirmed that she stays on the 3rd floor whereas the accused was staying in the 4th floor in her sister's house.
24.PW 8 in her deposition has stated that she saw the minor victim crying and coming. Since the child was crying, she also went down to enquire as to why the PW 2 was crying and there she learnt about the incident. In her deposition she stated that the appellant was locked and handed over to the police apprehending commotion untoward incidents.
25.She has also stated that the police took custody of the appellant and took him away. She has further deposed that the police had conducted an enquiry and questioned several persons in the area including PW 8. There was no cross examination of PW 8.
26.The Principal District Judge was examined as PW 9 who recorded Section 164 statement on 04.07.2014 from the victim pursuant to request http://www.judis.nic.in 8/28 Crl.A.No.599 of 2017 from the Inspector of Police of W24, All Women Police Station Teynampet, Chennai 6 vide Exhibit P6.
27.PW 9 has stated that based on his questioning he found that PW 2 minor victim was capable of giving answer and therefore proceeded to record her statement. During cross examination, the Learned District Magistrate has stated that while recording statement from the PW 2 victim minor, he has not asked the victim as to whether she was tutored or not to give evidence. PW9 has deposed that he had merely asked PW 2 minor victim whether the statements that were given by her were true or not before recording her statement under Section 164 of the Cr.P.C
28.PW 10, the physician who examined the minor victim on 25.06.2014 pursuant to letter from 18th District Judge in Complaint No.6/14. PW 10 has stated stated that she enquired with the PW 2 minor victim and mother. She found that the PW 2 minor victim was having pain in abdominal area and was experiencing difficulty in passing urine though no external injury was visible. PW 10 has also confirmed that the internal part of the victim genital was swollen and red and showed rupture of hymen though there was no fluid accumulation.
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29.During cross examination, a hypothetical question was asked whether the rashes in the genital area could be on account of urinary infection to which she has merely answered that there such a possibility. Relevant portion of the answers are reproduced below:-
Chief Examination of PW 10 Cross Examination of PW 10 When the minor girl was nkw;gorpWkpia ghpnrhjid bra;j nghJ mtUf;F btspgg[wk; fhak;
examined, there was no external vJt[k; fhzg;gltpy;iy. mtUf;F injury to her. There was no any gpwg;g[Wg;gpy ,Ue;J ve;j tpj jputnkh liquid or blood in her genital. The uj;jnkh fhzg;gltpy;iy. genital of the girl was swollen and gpwg;g[Wg;gpd; cl;gFjp rpte;J tP;';fpa epiyapy; kpUJthd epiyapy; ,y;yhky;
there was redness. The hymen was fhzg;gl;lJ. fd;dpj;jpiu ug;r;rh;
already ruptured. MfpapUe;jJ.
Generally, minor girl may bghJthf rpWkpfSf;F fpUkp bjhw;W
fhuzkhf mhpg;g[ Vw;gl;L bjhhpe;jjd;
experience itching due to fhuzkhft[k; gpwg;g[Wg;g[ rpte;J
infection and therefore there can fhzg;glyhk; vd;why; Mk;. rpWkpia
be swelling. It would be incorrect chpa Kiwapy; ehd; ghpnrhjid
to state that I did not follow the bra;atpy;iy vd;why; rhpay;y. ehd;
rpWkpapd; jhahiu tprhuiz
protocol while examining the bra;jjd; mog;gilapy; kl;Lk;
minor girl. It would be incorrect to rpWkpia kUj;Jt ghpnrhjid
state that I have examined the branjd; vd;why; jtW.
minor girl only based on the
information given by the mother.
30.PW 11 is the Doctor who examined the accused and conducted potency test confirmed that the accused was potent.
31.PW 12 is the Inspector who investigated the case. She has http://www.judis.nic.in 10/28 Crl.A.No.599 of 2017 confirmed that around 12 o’clock in the noon on 19.06.2014 the complaint from PW 1 was received and thereafter C.S.R.No.115 of 2014 was generated.
32.PW 12 has further confirmed that while conducting investigation on 20.06.2014, in Crime No.6 of 2014 under Section 4 of the POCSO Act, FIR was registered. She proceeded to the spot and prepared a rough sketch which was marked as Exhibit P 13 after inquiring with the witnesses. After, Exhibit P 13 rough sketch was prepared she went in search of the appellant and arrested on G.N.Chetty Street, T.Nagar, Chennai in presence of the Maghazer witnesses. PW 12 has also stated that the appellant had given a confessional statement vide Exhibit P 5 dated 20.06.2014 admitting to the crime.
33.During cross examination on behalf of the appellant, it was portrayed as if signatures were obtained in blank from the appellant and thereafter filled up later.
34.In the present appeal, the learned counsel for the appellant has questioned the conclusion arrived by the trial court finding the appellant guilty and in sentencing him to 14 years rigorous imprisonment and to fine http://www.judis.nic.in 11/28 Crl.A.No.599 of 2017 of Rs.5000 and in default to undergo 6 years rigorous imprisonment.
35.The main thrust of the argument of the learned counsel appearing for the appellant is that there are several contradictions in the evidence and the investigation carried by the respondent therefore the prosecution has not proved the guilt beyond reasonable doubt.
36.According to the learned counsel for the appellant, there was previous enmity between the two families and therefore a false complaint was foisted and complaint was given on 19.06.2014 and therefore C.S.R.No.115 of 2014 was generated by the respondent police station.
37.However, the complaint was altered to make it seem as if the appellant had committed a heinous crime under Sections 4 and 6 of the POCSO Act 2012 as is evident endorsement Exhibit P1 complaint dated 19.06.2014 wherein it is stated that the complaint was received by the Inspector concerned at about 9.00 hours on 19.06.2014.
38.Thus, according to the learned counsel for the appellant an intra-
family dispute which was purely civil in nature was converted into a http://www.judis.nic.in 12/28 Crl.A.No.599 of 2017 criminal complaint by the respondents by unfairly accusing the appellant of crimes under the provisions of the aforesaid Act.
39.In support of the appellant, the learned counsel submits that according to PW 5 Vijaya, the appellant was caught red-handed kissing private parts of the victim and holding the undergarment of the minor victim/PW1 when she allegedly broke open the house after hearing wail and that the appellant was thereafter thrashed before being handed over to the police on 19.06.2014 but according to PW 6 the accused confessed to his crime on 19.06.2014 after he was allegedly thrashed by the police.
40.These above depositions were further contrasted with the depositions of PWs 7, 8 and 12. PW 7 has stated that the police had enquired on 19.06.2014 and thereafter the appellant was arrested for the alleged offence under the aforesaid Act. PW 8 has stated that the appellant was locked apprehending untoward incidents and was later handed over to the police.
41.These statements were contrasted with statement of the PW 12 Inspector of Police. It was submitted that as per PW 12, the appellant was http://www.judis.nic.in 13/28 Crl.A.No.599 of 2017 arrested only on the following day at about 11:30 AM and thus the complaint was altered.
42. As far as the medical evidence tendered by PW 10 is concerned, it is stated that during cross examination PW 10 has also confirmed that redness and rashes in the genital area of the victim and the difficulty in passing urine could also be on account of bacterial infections and not necessarily on account of offence. It is stated that the Ex.P.8 medical evidence states that hymen was intact though there was swelling and reddening in the internal area.
43.As far as cross examination of PW 9 learned District Magistrate who recorded Section 164 Cr.P.C statement from the victim PW 2, it is stated that he failed to ask whether the victim had been tutored or not before recording her statement on 04.07.2014.
44.The learned Trial Judge who examined the evidence and considered the evidence elaborately and found that the victim PW 2 was aged about 9 years at the time when aggravated penetrative sexual assault was committed on her within the meaning of Section 5(m) of the POCSO Act, 2012.
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45.The learned Trial Judge has reproduced the statement of the victim (PW 2) and concluded that she had narrated the incident immediately to PW 1 on reaching home who called PW 3 and went to the appellant’s house and confronted him.
46.The PW 2 victim has also explained the events to the Magistrate who examined her and recorded her statement under section 164 of the Cr.P.C. The evidence of the victim is lucid and clear and there are no reasons to disbelieve the evidence of the victims. The learned trial judge held that it cannot be said that the victim was tutored.
47.As far as contradiction elicited in the evidence given by PW 5-8 with other evidence of the PW 4-8 is concerned, it has been concluded that even eyewitnesses who witnessed crime would not speak uniformly as each person’s perception with regard to a particular event would differ from person to person.
48.The learned Trial Judge has not given much importance to the statement of PW 10 that the pain, infections in the genitals and private part of the victim and swelling of hymen turning red. http://www.judis.nic.in 15/28 Crl.A.No.599 of 2017
49.I have considered the arguments advanced by the both parties and have given my anxious consideration to the facts of the case and the evidence on record.
50.Rarely a sexual offender commits a crime against minors and women in the presence of others unless others are also his accomplice as in the case of Nirbhaya.
51.A sexual predator looks for a secluded spot to bare himself to sexually assault his victim. There is therefore hardly any scope for any independent witness to be an eye witness. If the victim survives the assault, they may live to narrate the incidence to the family members. Since stigma is attached to the victim by the society in our society and therefore mostly these offences do not get reported to the law enforcing authorities fearing repercussion in the society. By and large these offences go unnoticed. The victim alone is the solitary witness. It is the victim who alone can tender best evidence in the case of rape.
52.The Hon'ble Supreme Court in Gurmit Singh vs State of Punjab (1996) 2 SCC 384 has held that in case of rape, it is a settled position of law http://www.judis.nic.in 16/28 Crl.A.No.599 of 2017 that conviction can be recorded based on the sole testimony of the victim prosecutrix if evidence inspires confidence.
53.The court held that testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
54.The courts have also held that evidence of victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent even more reliable. Such evidence is entitled to great weight, absence of corroboration notwithstanding. The burden of proof lies on the prosecution to prove the case charges against the accused. When burden is discharged by the prosecution and the accused fails to destroy the basic foundation of the case, there is no escape from punishment often accused of such offence.
55.Further, under Section 29 of the POCSO Act, 2012 there is a rebuttable presumption, against the accused for the offences under Section 3,5,7 and 9 of the said Act.
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56.In State of Maharashtra Versus Chandra Prakash Kewalchand Jain (1990) 1 SCC 550 it was held that a victim of a sexual assault is not accomplice to the crime but victim of another person’s lust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice.
57.The court further held that the Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated and materials particulars and the victim is undoubtedly a competent witness under section 118 of the Evidence Act and such evidence received the same weight as is attached to an injured the case of physical violence. Conviction based on evidence of the victim has been upheld as long as such evidence inspires the confidence of the Court. Therefore, the conviction can be sustained if the evidence of the victim inspires confidence.
58.In the present case, on a overall consideration of the evidence on record that is available, the deposition of the official witness namely PW 10 makes it clear that there was a rupture of the hymen of the victim. Likewise, the victim was experiencing irritation while passing urine has not been disputed.
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59.After completion of Chief examination of the victim (PW 2), the appellant wanted to cross-examine the victim. However, the appellant failed to cross-examine PW2. Thereafter, a petition under Section 311 of Cr. P.C was also filed by the appellant to recall PW1-6 which was also allowed by the court on 13.10.2015. PW.Nos.1-3 were also present before the court on 12.1.2016 for cross examination. However, the appellant failed to cross- examine them.
60.Yet another attempt was made by the appellant by filing a similar application on 8.6.2016 vide Cri. M.P.No. 7217 of 2016. This application was partly allowed to the effect that appellant can cross-examine PW 1 and 3. This opportunity was also squandered by the appellant. Thereafter, the Trial court closed the cross examination and proceeded to hear arguments before passing the impugned orders.
61.PW 10 who examined the victim pursuant to request of the 1st respondent State has clearly confirmed that the hymen of the PW1 was not intact and admits tip of a little finger indicating sexual assault on the minor. Similarly OP Chit dated 25.6.2014 shows that the hymen was ruptured. http://www.judis.nic.in 19/28 Crl.A.No.599 of 2017
62.Similarly, swelling in the internal area of the genital of the victim at the time of medical examination by the PW 10 is not in dispute. The nature of assault suffered by the victim is not in dispute in the light of medical evidence.
63.Therefore, question to be answered is whether the evidence of the victim inspires the confidence of the Court to uphold the conviction of the appellant. Therefore, to test the correctness of the impugned order, it would suffice to objectively examine the evidence of the victim alone.
64.PW5 claims to be an eye witness and claims to have rushed to the appellant’s house on hearing loud wail of a child emanating from the appellant’s house and is said to have broke open the door of the appellant when she found that appellant was seen kissing the private parts of the PW2 minor victim and was holding undergarment (panty) of the victims in his hand. There is however no effective cross examination by the appellant though evidence was re-opened at his behest. Though, this evidence is similar to the evidence of P.W.1 and complaint in Ex.P.1 and may be exaggerated, yet it cannot be stated that the appellant has discharged the burden cast on him under Section 29 & 30 of the Act. http://www.judis.nic.in 20/28 Crl.A.No.599 of 2017
65.During cross examination, PW5 has merely retracted her earlier statement that the appellant was holding the undergarment (panty) of the said victim.
66.Though, PW5 has partly withdrawn the above statement, there was no further cross examination as to whether the appellant was kissing the private part of the minor victim. The learned trial judge has also not given much importance to the deposition of the said witness or for that matter the evidence of the other neighbours who deposed evidence on behalf of the respondent State. PW 5 statement though indicts the appellant, it by self is of suspect.
67.The victim was a minor aged about 9 years on the date of the Exhibit P1 complaint dated 19.6.2014. The witness has given her statement before PW9 (The Magistrate) vide Exhibit P-3 under Section 164 of Cr.P.C on 4.7.2014. The victim has clearly narrated the events that led to the eventual filing of the complaint by PW1 vide Exhibit P1. There is no inconsistency in her statement.
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68.The victim has clearly answered to the questions that were posed by PW9, the learned Magistrate while recording in Exhibit P-3 statement statement on 4.7.2014 under Section 164 of Cr.P.C.
69.She has explained that at that time her aunt Jaya (appellants wife) was not at home and that only the appellant and the appellant’s infant child Santhiya were at home. She has stated that the infant was asleep.
70.The victim has explained the event on the date of commission of the offence on 19.6.2014. The victim has clearly stated that earlier, her brother had gone to the appellant’s house to collect phone charger but had returned empty handed. Thereafter, the victim, PW2 was sent to collect mobile phone charger at about 8 o’clock.
71.The victim has also stated that she found that the door was closed and she knocked the door. Initially the accused told the victim that the charger was not traceable. He then went to the kitchen and see if it can be located and said it was not there.
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72.He then asked the minor victim to remove the swing meant for swinging the infant child but the appellant lifted the victim. She protested and asked him to set her free and said she had to go to school. He however put her on the floor and shut her mouth and said “just five minutes”. He pinched her face despite her protest.
73.The victim has clearly stated that the appellant had put his genitals into hers and pressed himself hard and ejaculated his semen into her genitals. Thereafter, she rushed out taking the charger and proceeded to her house and narrated the incident to her mother PW 1. The victim has stated that she was having pain in genital area and that later police who came also enquired and that she narrated the incident her.
74.The complaint in Exhibit P1 dated 19.6.2014 and FIR No 6/2014 dated 20.6.2014 in Ex.P.12 matches more or less with deposition of P.W.2 victim. The statement of the victim recorded by the learned Magistrate under Section 164 of CRPC vide Exhibit P3 on 4.07.2014 also shows care taken by the Magistrate while recording the statement of the victim considering the sensitivity.
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75.The victim while deposing evidence on 15.05.2015 before the trial court has also reiterated the statement that was recorded by the Magistrate on 04.07.2014. The quality of the deposition of PW 2 victim is clear. The deposition recorded on 15.05.2015 clearly brings out the narration of the event that took place on 19.6.2014.
76.The only variance that is discernible between the statement recorded on 4.7.2014 before the Magistrate under Section 164 of Cr.P.C and before the trial court is regarding the statement that the sexual assault was committed on the victim on the floor and cot.
77.While in the statement before the Magistrate, the victim had deposed that she was sexually assaulted on the cot by the appellant while deposing on 15.05.2015, she has stated that she was sexually assaulted on the floor. Barring this minor variance, victim has narrated the incident stating that she protested while the appellant continued to sexually assault her stating “just 5 minutes”.
78.Otherwise, there is no contradiction between the statement that was recorded in camera before the Trial Court on 15.5.2015 and in Exhibit http://www.judis.nic.in 24/28 Crl.A.No.599 of 2017 P3 on 4.07.2014. The evidence of P.W.2 is clear and cogent. It inspires confidence.
79.The statement of the victim “leave me mama, I have to go to school” on 14.6.2014 shows indicates that there is a past history. The appellant was perhaps in the habit of touching the minor victim inappropriately and taken his chances before also. However, on 14.6.2014 he ended up actually committing the aggravated penetrative sexual assault on the victim in the manner narrated.
80.Mere non seizure of the clothes, which were worn by the victim girl at the time of occurrence, will not take away the intrinsic value and quality of the evidence of the victim. Admittedly the victim girl is a minor and was subjected into penetrative sexual assault which clearly stands proved by the medical evidence and with statement of minor victim.
81.Minor contradiction in the testimony of PW 5 to 8 and P.W.12 regarding the date of arrest of the appellant can be ignored as they are inconsequential. They can only corroborate events after the commission of sexual offence and to not to actual commission of the offence. http://www.judis.nic.in 25/28 Crl.A.No.599 of 2017
82.PW 4 is one of the Maghazer witness in whose presence the appellant was arrested while PW Nos. 5-8 are the other neighbours. They have given their version of the events that took place after the victim informed PW1 about the incident till he was arrested on 19.6.2014 by the police. Minor contradiction in the evidence of the PW12 that the appellant was arrested on the following day on 20.6.2014 is to be ignored.
83.At best it shows inefficiency on the part of the law enforcement authorities and difficulties experienced by the victims and their family to register a compliant for investigation.
84.The minor discrepancy between the statement PW1 mother,of neighbours who were examined as PW 5 to PW 8 is of no significance in the light of the medical evidence of the PW 10 and in the light of the consistency in the statement of the minor victim who were examined as PW 2.
85.The prosecution has established the commission of aggravated penetrative sexual assault within the meaning of Section 5(m) of the Act on the victim.
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86.The appellant/accused has not brought any contra evidence for the court to disbelieve the presumption contemplated under Section 29 & 30 of POCSO Act. Hence, the conviction by the Trial court is proper and requires no interference.
87.Therefore, I find no merits in the present appeal to disturb the finding of the learned Trial Judge who convicted the appellant and sentenced to the above punishment.
88.The respondent Police are directed to inform Social Welfare Department to take care of the interest of the appellant’s child so that she does not suffer because of the appellant's crime as it was informed that the appellant’s wife also committed suicide. If necessary, the respondent may request a reputed N.G.O. to be involved to oversee that the interest of appellant’s child is taken care by her relatives.
89.The present criminal appeal is dismissed with the above observation. Consequently, connected Criminal Miscellaneous Petition is closed.
24.09.2019 Index : Yes/No Internet : Yes/No kkd/jen http://www.judis.nic.in 27/28 Crl.A.No.599 of 2017 C.SARAVANAN,J.
jen To
1.The Mahila Judge, Special Court for Cases, Chennai.
2.The Inspector of Police, W-24, All Women Police Station, Teynampet, Chennai.
Pre-delivery Judgment made in Crl.A.No.599 of 2017 and Crl.M.P.No.11783 of 2017 24.09.20.19 http://www.judis.nic.in 28/28