Madras High Court
Vazhmuni vs The State By on 28 November, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.743 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2022
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.743 of 2022
and Crl.M.P.No.17928 of 2022
Vazhmuni .. Appellant
.Vs.
The State by
The Inspector of Police,
All Women Police Station,
Panruti, Cuddalore District,
Crime No.6 of 2021. .. Respondent
Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure to set aside the judgment of conviction and the sentence dated
24.5.2022 in S.C.No.51 of 2021 on the file of the Sessions Judge, Special
Court for Exclusive Trial of Cases under POCSO Act, Cuddalore and
acquit the appellant from all the charges.
For Appellant : Mr.G.R.Hari
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed against the judgment of conviction and sentence dated 24.5.2022 passed in Spl.S.C.No.51 of 2021 by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore.
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2. The case of the prosecution is that the victim girl was aged about 13 years and studied in 8th standard at the time of occurrence. The appellant, who is the neighbour of the victim girl, sexually abused the victim girl by saying that he is loving her. On 15.3.2021 at about 11.00 p.m, the accused/appellant had woken up the victim girl, who was sleeping inside her house by using five feet stick and asked her to come along with him and also abused her in a filthy language. Immediately, the victim girl raised her voice and on hearing the voice, her parents rushed to the place and on enquiry she revealed the said incident, thereafter, the father of the victim chased the accused and caught hold him, when questioned, the accused attacked the father of the victim by using the stick. Thereafter, the mother of the victim/de-facto complainant lodged a complaint against the accused.
3. On the complaint given by the de-facto complainant, the respondent/Police registered a case in Crime No.6 of 2021 for the offences under Sections 294(b), 354A, 354D and 323 IPC and Section 11(1) and 12 of 'The Protection of Children from Sexual Offences Act, 2012' [hereinafter referred to as 'POCSO Act' for the sake of https://www.mhc.tn.gov.in/judis Page No.2/18 Crl.A.No.743 of 2022 convenience]. After investigation, the respondent/police altered the charges against the appellant to one under Sections 294(b), 354(A), 354(D), 352 IPC and Section 11(1) which is punishable under Section 12 of POCSO Act. Thereafter, the respondent/police laid a charge sheet before the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore for the offences under Section 11(1) which is punishable under Section 12 of POCSO Act and Sections 294(b) and 352 IPC and the same was taken on file in Spl.S.C.No.51 of 2021. When questioned, the accused denied the allegation. However, based on the materials, the trial Court framed the aforementioned charges against the appellant.
4. In order to prove its case before the trial Court, on the side of the prosecution, as many as 13 witnesses were examined as P.W.1 to P.W.13 and 17 documents were marked as Exs.P1 to P17, besides marking two material objects as M.O.1 and M.O.2.
5. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused and he was questioned under Section 313 Cr.P.C., wherein he denied all the incriminating circumstances as false https://www.mhc.tn.gov.in/judis Page No.3/18 Crl.A.No.743 of 2022 and pleaded not guilty. On the side of the defence, no oral evidence was adduced and no documentary evidence was produced.
6.1 The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the appellant is guilty of the charged offences and he was convicted and sentenced as follows :
(i) for the conviction under Section 294(b) IPC he was directed to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for a period of one month;
(ii) for the conviction under Section 352 IPC he was directed to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for a period of one month ;
(iii) for the conviction under Section 11(1) which is punishable under Section 12 of POCSO Act, he was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for a period of one month;
(iv) the trial Court ordered that the period of detention already undergone by the appellant was directed to be set-off under Section 428 Cr.P.C.
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(v) besides that, the trial Court directed the Government of Tamil Nadu to give a compensation of Rs.20,000/- to the victim girl from the Tamil Nadu Child Victim Compensation Fund under the POSCO Act, 2012.
7. Challenging the said conviction and sentences, the appellant is before this Court.
8.1 The learned counsel appearing for the appellant submitted that during the chief examination, the victim girl has categorically stated that she was unable to identify the accused as there was no light, whereas, on her cross examination she has deposed that she identified the accused only by recognizing his voice, but the voice test identification of the appellant was not conducted. Therefore, the identity of the accused and the presence of the accused at the scene of occurrence is doubtful.
8.2 The learned counsel for the appellant further submitted that as per the decision of the Hon'ble Supreme Court in Nilesh Dinkar Paradkar Vs. State of Maharashtra reported in 2011(4) SCC 143, in the absence of comparison of voice, the conviction recorded against the appellant is against law. In the case on hand, except the victim, none of the witnesses have spoken that they have heard the voice of the https://www.mhc.tn.gov.in/judis Page No.5/18 Crl.A.No.743 of 2022 appellant. Even the mahazar witnesses have turned hostile. He further submitted that P.W.2/mother of the victim deposed that her neighbour one Pushparaj has seen the appellant assaulting P.W.6, but the said Pushparaj was not examined by the prosecution. Further, most of the prosecution witnesses have stated that the stick which was used for commission of the offence was recovered by the respondent/police nearby the scene of occurrence on the same day itself and some of the witnesses have stated that at the time of filing the complaint, they went to the police station and produced the stick before the respondent/police. However, Form 91 and seizure Mahazar show that the stick was recovered on 01.6.2021, which is fatal to the case of the prosecution. Further, the prosecution has not substantiated its case that accused caused injury to P.W.6 by using the alleged stick and he had taken treatment in hospital. The entire case of the prosecution is a concocted one and a false case has been foisted against the appellant.
8.3 The learned counsel for the appellant further submitted that while recording statement of the victim girl under Section 164 Cr.P.C by the learned Judicial Magistrate, she has not spoken about the exact words used by the appellant and she simply stated that the appellant used a stick https://www.mhc.tn.gov.in/judis Page No.6/18 Crl.A.No.743 of 2022 and woke up her. Even before the Doctor also, she did not state anything about the exact words used by the appellant. However, during the chief examination, she has stated that the appellant abused her with filthy language. There is an improvement in every stage and the same is fatal to the case of the prosecution. He further submitted that there was a delay in filing the complaint and the same has not been properly explained by the prosecution. The trial Court failed to appreciate the entire oral and documentary evidence and wrongly convicted and sentenced the appellant, which warrants interference of this Court.
9.The learned Additional Public Prosecutor appearing for the respondent submitted that at the time of occurrence, the victim was aged about 13 years and her date of birth is 21.06.2018, whereas the date of occurrence had taken place on 15.3.2021. The victim was a child as defined under Section 2(1)(d) of POCSO Act. On the date of occurrence i.e. on 15.3.2021,while the victim was sleeping in her house, at about 11.00 p.m the accused woke up the victim by using a stick through a window and stating that he is Vazhmuni and called her for sexual intercourse and also abused her with filthy language. She immediately https://www.mhc.tn.gov.in/judis Page No.7/18 Crl.A.No.743 of 2022 raised her voice and that her parents woke up and came outside of the house and chased the appellant. At that time, on hearing the voice of the parents of the victim, the neighbours gathered there and they have also chased the appellant, but the appellant escaped from that place and also assaulted the father of the victim. Thereafter, they went to the jurisdictional police station and at their advice they went to the All Women Police Station and lodged a complaint against the appellant. The trial Court has rightly appreciated the entire oral and documentary evidence and convicted and sentenced the appellant as above. Therefore, there is no merit in the appeal and the same is liable to be dismissed.
10. Heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent and also perused the materials available on record.
11. This Court, being an Appellate Court, is a final Court of fact finding, which has to necessarily re-appreciate the entire evidence and give an independent finding. Accordingly, this Court has re-appreciated the entire oral and documentary evidence produced before the trial Court.
12. Admittedly, based on the complaint given by the mother of victim/defacto complainant, a case was registered against the appellant. https://www.mhc.tn.gov.in/judis Page No.8/18 Crl.A.No.743 of 2022 After investigation, the respondent/police laid a charge sheet against the appellant for the offences under Sections 294(b) and 352 IPC and Section 11(1) r/w 12 of POCSO Act. After trial, the trial Court convicted and sentenced the appellant for the charged offences as stated above.
13. In order to substantiate the charges against the appellant, on the side of the prosecution totally 13 witnesses were examined, out of which, the victim girl was examined as P.W.1; the mother of the victim was examined as P.W.2; the Doctor, who examined the victim was examined as P.W.3; the Doctor, who examined the appellant was examined as P.W.4; the Heard Master of the School where the victim studied was examined as P.W.5; the father of the victim was examined as P.W.6 and the sisters of P.W.6 were examined as P.W.7 and P.W.8 respectively.
14. Soon after the occurrence, the victim was produced before the learned Judicial Magistrate and her statement was recorded under Section 164 Cr.P.C on 26.03.2021, in which, she has clearly stated that on 15.3.2021 during night hours, the appellant came to her house and extended a stick through the window and woke up her; she immediately raised voice and called her parents, after seeing the parents, the appellant https://www.mhc.tn.gov.in/judis Page No.9/18 Crl.A.No.743 of 2022 tried to escape from that place, but the parents of the victim caught hold of the appellant, however, the appellant escaped from the clutches of P.W.6 and also pushed P.W.6 into the canal who has also sustained injuries. Thereafter, they preferred a complaint against the appellant. The previous statement of the victim was corroborated with her statement before the Doctor/P.W.3.
15. During trial, the victim girl was examined as P.W.1 and she has deposed that on the date of occurrence, the appellant woke up her by using a stick and called her for sexual intercourse and also abused her in filthy language; then she immediately raised her voice and called her parents; the accused tried to escape from the place of occurrence; however, her father caught hold of the appellant and at the time, the appellant abused her father in filthy language and also assaulted him by using the stick and the same was witnessed by her aunts P.W.7 and P.W.8. On 17.03.2021, the father of the victim was taken to Cuddalore Government Hospital for treatment. Thereafter, her mother lodged a complaint against the appellant.
16. Though there was an improvised version in the evidence of the victim girl during trial, a reading of the charges framed against the https://www.mhc.tn.gov.in/judis Page No.10/18 Crl.A.No.743 of 2022 appellant shows that at the time of occurrence, the accused, who was aged about 19 years, woke up the victim girl, who was then aged about 13 years in the midnight by using a stick with sexual intention and the prosecution has proved the charges framed against the appellant for the offence under Section 11(1) which is punishable under Section 12 of POCSO Act. However, the act committed by the appellant does not falls under Section 7 of the POCSO Act.
17. As far as the determination of the age of the victim girl is concerned, the Birth Certificate of the victim girl was marked as Ex.P2, in which, the date of birth of the victim was mentioned as 21.6.2008, whereas the occurrence had taken place on 15.3.2021 and hence, at the time of occurrence, the victim was aged about 13 years. She is a child as defined under Section 2(1)(d) of POCSO Act. From the evidence of P.W.1, P.W.2, P.W.5 and P.W.6 and Ex.P2, Ex.P7 and Ex.P9 the prosecution has proved the age of the victim. In the case on hand, the age of the victim is not in dispute.
18. As far as commission of offence under Section 294(b) IPC is concerned, the victim girl in her previous statement has stated that the appellant woke up her, but she did not state that the appellant scolded https://www.mhc.tn.gov.in/judis Page No.11/18 Crl.A.No.743 of 2022 her in filthy language and called her for sexual intercourse. Further, no one has stated that the appellant abused the victim girl with filthy language in the presence of other witnesses. However, P.W.6/father of the victim while in his deposition has deposed that when he questioned the act of the appellant, the appellant scolded him with filthy language. However, P.W.2/mother of the victim has not stated that the appellant scolded her husband with filthy language. Even P.W.7 to P.W.10 have stated that after hearing the voice of P.W.2 and P.W.6 they woke up, went to the place of occurrence and also caught hold of the appellant, however, they have not stated that the appellant abused the victim or her father with filthy language. Except P.W.6, no other witnesses have stated that the appellant scolded PW6 in filthy language in the presence of other persons. Further, P.W.1/victim has not stated either before the Doctor or before the Judicial Magistrate that the appellant used filthy language and called her with sexual intention and hence, the prosecution has failed to prove the charge under Section 294(b) as against the appellant . The trial Court also without considering the entire materials wrongly convicted and sentenced the appellant for the offence under Section 294(b) IPC.
19. As far as commission of the offence under Section 353 IPC is https://www.mhc.tn.gov.in/judis Page No.12/18 Crl.A.No.743 of 2022 concerned though the prosecution witnesses have stated that the appellant assaulted the father of victim by using a stick and also with his hands and that P.W.6 sustained injuries and went to the hospital for taking treatment, the learned counsel for the appellant pointed out that the alleged stick was not recovered by the respondent/Police from the place of occurrence. Some of the prosecution witnesses have stated that the alleged stick was recovered by the respondent/Police on the date of occurrence itself, whereas, some of the witnesses have stated that at the time of filing complaint, they produced the stick before the respondent/Police. However, the Seizure Mahazar and Form-91 show that the alleged stick was recovered only on 01.06.2021, which itself creates a doubt. As per the prosecution, P.W.6/father of the victim was attacked by the appellant with stick and that P.W.6 sustained injuries. However, the prosecution has not produced any documentary evidence to prove the same. Hence, the prosecution has failed to prove the offence under Section 352 IPC as against the appellant. The trial Court also without considering the entire materials wrongly convicted and sentenced the appellant for the offence under Section 352 IPC.
20. As far as commission of the offence under Section 11(1) which https://www.mhc.tn.gov.in/judis Page No.13/18 Crl.A.No.743 of 2022 is punishable under Section 12 of POCSO Act is concerned, the victim girl has clearly narrated the said incident and the prosecution has proved its case beyond reasonable doubt.
21. The learned counsel for the appellant vehemently contended that there was a delay in preferring the complaint and the same has not been properly explained by the prosecution. However, P.W.2/mother of the victim in her deposition has clearly stated that soon after the occurrence, when they approached the jurisdictional police station, the jurisdictional police called the appellant to pacify the matter, but they did not satisfy with reasons stated by the appellant, they advised the parents of the victim to file a complaint before the All Women Police Station, since the offence is against a women and thereafter, P.W.2 filed a complaint before the All Women Police Station. Therefore, the prosecution has properly explained the delay from the evidence of P.W.2.
22. This Court being an Appellate Court, as a final Court of fact finding while re-appreciating the entire evidence found that the prosecution has failed to prove that the appellant abused the victim and her father/P.W6 with filthy language and also the appellant assaulted and caused injuries to P.W.6 and hence, the benefit of doubt should be https://www.mhc.tn.gov.in/judis Page No.14/18 Crl.A.No.743 of 2022 extended in favour of the appellant. The trial Court failed to appreciate the same, wrongly convicted and sentenced the appellant for the offence under Sections 294(b) and 352 IPC. This Court considering the documents and evidences placed before this Court, finds that the charges against appellant for the offences under Sections 294(b) and 352 IPC have not been proved by the prosecution beyond reasonable doubt and therefore, the appellant is acquitted from the said charges. As far as the commission of offence under Section 11(1), which is punishable under Section 12 of POCSO Act is concerned, the victim girl has clearly stated that on the date of occurrence the appellant came to her house and woke up her by using a stick. The victim girl also identified the accused by recognizing his voice. Though the learned counsel for the appellant vehemently contended that the voice identification test of the appellant has not been conducted by the prosecution, in the case on hand the occurrence had taken place during night hours, except the victim girl no one has heard the voice of the appellant and also no voice recorder is available to testify the voice of the appellant. At the time of occurrence, the appellant was aged about 19 years and the victim was aged about 13 years and both are neighbours and that their voices are familiar to each https://www.mhc.tn.gov.in/judis Page No.15/18 Crl.A.No.743 of 2022 other. The victim girl has also clearly stated that the appellant is the one who woke up her, when she questioned, the appellant told his name as 'Vazhmuni'. Further, P.W.2, P.W.6, P.W.7 and P.W.8 have categorically stated that after hearing the voice of the victim, they woke up and went outside and chased the appellant and also caught hold of the appellant and hence, identification was not questioned. Even though during cross examination, the defence counsel has not put forth any suggestion before the victim or other witnesses whether the appellant fall in love with the victim, nothing has been elucidated during the cross examination by the defence the fact that there was contradiction that the appellant used filthy language or expressively the appellant called the victim for sexual intercourse and recovery of alleged stick. However, from the evidence of P.W.1, P.W.2, P.W.6, P.W.7 and P.W.8, the prosecution has proved that the appellant went to the house of the victim and had committed the said offence which falls under Section 11 which is punishable under Section 12 of POCSO Act and the trial Court has rightly convicted and sentenced the appellant for the above charged offence.
23. In the light of the above facts and circumstances, this Court finds that the conviction and sentences passed in Spl.S.C.No.51 of 2021 https://www.mhc.tn.gov.in/judis Page No.16/18 Crl.A.No.743 of 2022 by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore for the offence under Section 11 which is punishable under Section 12 of POCSO Act is confirmed. However, the appellant was acquitted from the charges under Sections 294(b) and 352 IPC. The trial Court is directed to take steps to secure the custody of the accused to undergo the remaining period of sentence, if any and the same shall be set-off under Section 428 Cr.P.C.
24. Accordingly, this Criminal Appeal is partly allowed with the aforementioned direction. Consequently, connected miscellaneous petition is closed.
28.11.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms https://www.mhc.tn.gov.in/judis Page No.17/18 Crl.A.No.743 of 2022 P.VELMURUGAN, J.
ms To
1.The Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore.
2.The Inspector of Police, All Women Police Station, Panruti, Cuddalore District,
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar | with a direction to send back the (Criminal Section), | original records, if any, to the High Court, Madras. | trial Court CRL.A.No.743 of 2022 and Crl.M.P.No.17928 of 2022 28.11.2022 https://www.mhc.tn.gov.in/judis Page No.18/18