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2021 DIGILAW 686 (MAD)

Mahendran v. State Rep. by Inspector of Police

2021-03-01

P.VELMURUGAN

body2021
JUDGMENT : This Criminal Appeal has been filed against the Judgment dated 26.08.2019 in Spl.S.C.No.14 of 2019 on the file of the learned Magalir Neethi Mandram, Fast Track Mahila Sessions Court, Thiruppur. 2. The case of the prosecution is that at the time of occurrence, the victim girl was aged about 7 years and studying in 3rd standard. The appellant is none other than the uncle of the victim girl. The father of the victim girl deserted her mother and they were living separately. During the school vacation, the victim girl and her mother used to go to the accused house, to see her maternal grand father. When the victim girl was alone at home, the accused committed penetrative sexual assault with her and the accused used to misbehave with her for about 3 years. The accused also threatened the victim girl to maintain secrecy. Subsequently, the parents came to know about the incident and lodged a complaint against the appellant on 08.08.2017 to the respondent police. 3. The respondent police registered a case in Crime No.10 of 2018 against the appellant for the offence under Section 5(l)(m)(n) and punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012 [hereafter 'POCSO Act' for the sake of convenience] and Section 506(i) IPC, which was later altered into Section 5(l)(m)(n) r/w Section 6 of POCSO Act and Section 506(ii) IPC. After investigation, the respondent police filed a charge sheet before the learned Sessions Judge, Magalir Neethi Mandram, Fast Track Mahila Court, Thiruppur and the same was taken on file in Spl.S.C.No.14 of 2019. 4. After completing the formalities, the trial Court framed the charges against the appellant for the offence under Sections 5(l) r/w 6, 5(m) r/w 6 and 5(n) r/w 6 of POCSO Act and Section 506(ii) IPC. 5. In order to prove the case of the prosecution before the trial Court, on the side of the prosecution as many as 8 witnesses were examined as P.W.1 to P.W.8 and Exs.P1 to P14 were marked and no material objects were exhibited. After completion of the prosecution side evidences, the incriminating circumstances were put against the appellant/accused by examining the appellant/accused under Section 313 of Cr.P.C and he denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, two witnesses were examined as D.W.1 and D.W.2 and no document was marked. 6. After completion of the prosecution side evidences, the incriminating circumstances were put against the appellant/accused by examining the appellant/accused under Section 313 of Cr.P.C and he denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, two witnesses were examined as D.W.1 and D.W.2 and no document was marked. 6. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the accused/appellant is guilty under Section 9(l) r/w 10, 9(m) r/w 10, 9(n) r/w 10 of POCSO Act and convicted him and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- for each of the offence and in default, to undergo additional rigorous imprisonment for a period of one year, for each of the offences and ordering the sentences to run concurrently. 7. Being aggrieved by the said judgment of conviction and sentence, the appellant is before this Court. 8.1 The learned counsel for the appellant would submit that the appellant is none other than the maternal uncle of the victim girl(P.W.1) and there is no material or medical evidence to prove that the victim girl was sexually assaulted by the appellant. Therefore, the conviction and sentence imposed against the appellant are not in accordance with law. The statement of the victim girl under Section 164 Cr.P.C (Ex.P13) does not corroborate with the evidence of the victim girl, during trial and there are material contradictions in the evidence of the victim girl. There is no eye witness to the said occurrence, except the evidence of the victim girl. Further, the teacher, who was examined as P.W.2 wrongly mentioned the age of the victim girl and the Doctor (P.W.6), who examined the victim girl has deposed that there was no external injuries found on the body of the victim girl and also deposed that there was no traces of subjecting the child to sexual intercourse recently. Hence, the evidence of the Doctor (P.W.6) also not supported the case of the prosecution. However, the trial Court failed to consider the statement of the victim girl under Section 164 Cr.P.C and the evidence of the Doctor, but, wrongly convicted the appellant. Hence, the evidence of the Doctor (P.W.6) also not supported the case of the prosecution. However, the trial Court failed to consider the statement of the victim girl under Section 164 Cr.P.C and the evidence of the Doctor, but, wrongly convicted the appellant. 8.2 The learned counsel for the appellant would further submit that after recording the statement of the victim girl under Section 164 Cr.P.C., the respondent/police altered the charge sheet, which violates the procedures established by law. The trial Court without considering the material contradictions and discrepancies, convicted the appellant only on assumption and sympathy, and therefore, the judgment of conviction and sentence passed by the trial Court against the appellant, are liable to be set aside. 9.1 The learned Government Advocate (Crl.Side) would submit that the victim girl (P.W.1) during her deposition before the trial Court, has clearly narrated that she was subjected to sexual assault by the appellant. P.W.2, who is the teacher of the victim girl has clearly deposed that at the time of teaching she has taught about what is good touch and bad touch to the girl students, the victim girl has told that she was sexually assaulted by her uncle for the past three years. The learned Government Advocate (Crl.Side) would further submit that while recording the statement under Section 164 Cr.P.C, the victim girl (P.W.1) has stated that the appellant had not committed any sexual assault with her. However, during her chief, she has deposed that she was subjected to sexual assault by the appellant and in her cross examination she has deposed that whatever the statement given before the learned Judicial Magistrate under Section 164 Cr.P.C is not correct, since she was tutored by her Advocate to say so. The contradiction arose between the evidence during the trial and statement under Section 164 Cr.P.C, cannot be taken as a sole ground to conclude that the evidence of the victim girl is not trustworthy and the same can be thrown away. The statement recorded under Section 164 Cr.P.C is not substantive piece of evidence. Moreover, the evidence of the Doctor (P.W.6) completely corroborates with the evidence of the victim girl (P.W.1) that the victim girl was subjected to penetrative sexual assault. From the evidence of the victim girl (P.W.1), the teacher (P.W.2) and the Doctor (P.W.6), the prosecution has proved its case beyond reasonable doubts. Moreover, the evidence of the Doctor (P.W.6) completely corroborates with the evidence of the victim girl (P.W.1) that the victim girl was subjected to penetrative sexual assault. From the evidence of the victim girl (P.W.1), the teacher (P.W.2) and the Doctor (P.W.6), the prosecution has proved its case beyond reasonable doubts. 9.2 The learned Government Advocate (Crl.Side) would further submit that the Birth Certificate of the victim girl was marked as Ex.P.2, which clearly shows that date of birth of the victim girl is 13.04.2007. According to the teacher (P.W.2) at the time of preferring complaint before the respondent police, the age of the victim girl was 11 years. The victim girl has stated that for the past 3 years she was subjected to sexual assault by the appellant i.e. from 3rd standard and she was aged about 7 years at the time of the incident. Hence, the victim girl is a child as defined under Section 2(1)(d) of POCSO Act and she is below 18 years and the appellant has committed penetrative sexual assault on the victim girl, and therefore, the trial Court has rightly convicted the appellant, and the appeal is liable to be dismissed. 10. Heard the learned counsel for the appellant and the learned Government Advocate (Crl.Side) for the respondent and also perused the materials available on record. 11. This Court, being an Appellate Court, is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give an independent finding. 12. A reading of the complaint (Ex.P11) clearly indicates that the appellant committed penetrative sexual assault on the victim girl for the past three years. Further, after registration of the FIR, during the course of investigation, the victim girl (P.W.1) was produced before the Doctor (P.W.6) for clinical examination. At that time the victim girl has stated that she was subjected to penetrative sexual assault by the appellant and the Doctor has opined that no external injuries were found over the victim girl and there were no traces for subjecting the child to recent sexual intercourse. However, she has deposed that the private part of the victim girl easily admitted the tip of the little finger. However, she has deposed that the private part of the victim girl easily admitted the tip of the little finger. The evidence of the Doctor (P.W.6) indicates that there was possibility of sexual assault Therefore, the evidence of the Doctor (P.W.6), confirms that the victim girl was subjected to penetrative sexual assault, and therefore, the only question that has to be decided is, whether the appellant has committed the penetrative sexual assault on the victim girl. 13. The victim girl (P.W.1) in her evidence has clearly deposed that at the time of preferring complaint before the respondent police, the age of the victim girl was 12 years and that the appellant is her uncle. She has deposed that for the past three years whenever she goes to see her grandfather to the accused house, she was sexually assaulted by the appellant i.e. prior to the date of complaint. The victim girl did not disclose about the said occurrence to anybody, since she was afraid. However, she informed the said incident to her teacher (P.W.2) at the time of teaching about what is good touch and bad touch. Thereafter, the teacher, who in turn, informed the said incident to her mother and preferred the complaint (Ex.P11). Therefore, the evidence of the victim girl (P.W.1), confirms that she was subjected to penetrative sexual assault by the appellant. 14. Further, the teacher, who was examined as P.W.2 has clearly deposed that on 28.07.2018, she went to the victim girl's class for teaching spoken English. Since it is a co-education school, she called the girl students near her table and taught them about what is good touch and bad touch. At that time, the victim girl started crying and stated that her uncle misbehaved with her for the past three years. Thereafter, she informed the said incident to her mother and preferred the complaint. The evidence of the teacher (P.W.2) is corroborated with the evidence of the victim girl (P.W.1). From the evidence of P.W.1, P.W.2 and P.W.6 the prosecution has established its case and hence, this Court has come to the conclusion that the victim girl was subjected to sexual assault. 15. The defence taken by the learned counsel for the appellant is that there was no eye witness to the said occurrence. From the evidence of P.W.1, P.W.2 and P.W.6 the prosecution has established its case and hence, this Court has come to the conclusion that the victim girl was subjected to sexual assault. 15. The defence taken by the learned counsel for the appellant is that there was no eye witness to the said occurrence. In cases like this, one cannot expect eye witness, since the culprit will take a chance only on the loneliness of the minor children and make use of their innocence and exploited them sexually and also threatened them to take away their life of their kith and kin. Hence, the victim girl will hesitate to reveal the truth to her parents. However, in this case, the victim girl informed the said incident to her teacher (P.W.2) and preferred the complaint. Moreover, the evidence of the Doctor (P.W.6) clearly indicates that the victim girl was subjected to penetrative sexual assault. 16. The other defence taken by the learned counsel for the appellant is that there is a contradiction in the evidence of the victim girl before the trial Court and the statement recorded under Section 164 Cr.P.C by the learned Magistrate. It is well settled law that the statement of the witnesses recorded under Section 164 Cr.P.C is not substantive piece of evidence. Statement recorded under Section 164 Cr.P.C cannot be used as substantive piece of evidence. The victim girl in her cross examination clearly stated that in what circumstances, she has given that statement. Moreover, the evidence of the teacher (P.W.2) and Doctor (P.W.6) are corroborated with the evidence of the victim girl. Therefore, the trial Court has rightly convicted the appellant. 17. Considering the object of the POCSO Act, this Court is of the view that the contradictions pointed out by the learned counsel for the appellant are not material contradictions to disbelieve the case of the prosecution, but the same are only minor contradictions and that will not vitiate the case of the prosecution. Under these circumstances, the offence under POCSO Act is very well established. Hence, this Court has no hesitation to consider the evidence of the victim girl alone, and no other corroborative evidence or eye-witness or independent witness is needed. Under these circumstances, the offence under POCSO Act is very well established. Hence, this Court has no hesitation to consider the evidence of the victim girl alone, and no other corroborative evidence or eye-witness or independent witness is needed. Admittedly, in this case, the victim girl has clearly narrated the incident before the trial Court as well as before the Doctor, who examined her that she was subjected to penetrative sexual assault and the appellant is the one who had committed the penetrative sexual assault on her. The said evidence is also corroborated by the medical evidence of the Doctor (P.W.6). In cases of this nature presence of eye witnesses are mostly improbable. If the evidence of sole witness is cogent, credible and trustworthy, conviction is permissible. 18. Under these circumstances, this Court can safely come to the conclusion that the appellant has committed penetrative sexual assault on the victim girl and thus, the prosecution has established its case beyond reasonable doubt and also substantiated the charges under Section 9(l) r/w 10, 9(m) r/w 10, 9(n) r/w 10 of POCSO Act and convicted and sentenced the appellant. This Court, being an Appellate Court, is a fact finding Court re-appreciated entire evidence and found that the appellant has committed the charged offence. 19. In the light of the above discussion, this Court does not find any merit in this appeal and the appeal is liable to be dismissed. Accordingly, this Criminal Appeal is dismissed and the judgment of conviction and sentence passed by the trial Court is confirmed. Consequently, connected miscellaneous petition is closed.