Full order of IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.07.2021 C O R A M THE HONOURABLE MR.JUSTICE P.VELMURUGAN Crl.A.No.50 of 2020–Therefore, all the District Social Welfare Officers concerned, as soon as they receive copy of Judgments, if the State or the victim has not filed any appeal, they are directed to file an appeal with the help of the concerned District Legal Services Authorities or The State Legal Services Authority functioning under Union Territory of Pondicherry and the State of Tamil Nadu or High Court Legal Services Committee. 27. It is also relevant to give a direction to both the Government of Tamil Nadu and the Government of Puducherry to adhere to the provision of Section 43 of the POCSO Act. Both the Governments are directed to take measures as mentioned in Section 43 of the POCSO Act for the implementation of the provisions of the Act. 28. The Registry is directed to communicate a copy of this Judgment to all the Special Courts, dealing with the POCSO Cases, so as to enable them to send a copy of Judgments to the respective District Social Welfare Officers for filing an Appeal with the help of the concerned District Legal Services Authorities / State Legal Services Services Authority / High Court Legal Services Committee.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.07.2021

C O R A M

THE HONOURABLE MR.JUSTICE P.VELMURUGAN

Crl.A.No.50 of 2020

Vijimaran … Appellant

Vs.

State rep. by
Inspector of Police,
Thirunallar Police Station,
Karaikal,
Pondicherry State. … Respondent

(Crime No.139 of 2013)

PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside the Judgment passed in Spl.S.C.No.06 of 2016, dated 26.04.2019, on the file of the Special Judge at Karaikal.

For Appellant : Mr.T.Muruganantham

For Respondent : Mr.D.Bharatha Chakravarthy
Public Prosecutor (Pondicherry)

J U D G M E N T

This Criminal Appeal has been filed against the Judgment of Conviction and Sentence, dated 26.04.2019 made in Special S.C.No.06 of 2016, on the file of the learned Special Judge, Karaikal.

2. The respondent Police have registered a case in Crime No.139 of 2013, for the offence punishable under Section 6 of Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as ‘POCSO Act’) against the appellant on the complaint (Ex.P1) given by PW1. After completing investigation, the respondent police laid a charge sheet before the learned Special Judge, Karaikal, and the same was taken on file in Special S.C.No.06 of 2016.

3. After completing the formalities under Section 207 Cr.P.C., since there was a prima facie material to frame charges against the appellant, the learned Sessions Judge framed charges for the offence punishable under Section 6 of POCSO Act.

4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the learned Special Judge found that the appellant has not committed the charged offence, however, found that he has committed the offence punishable under Section 10 of the POCSO Act, and convicted and sentenced him to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo six months Simple Imprisonment for the offence under Section 9 of POCSO Act.

5.Challenging the judgment of conviction and sentence, the present appeal has been preferred by the appellant.

6. Mr.T.Muruganantham, learned counsel for the appellant would submit that P.W.1, who is said to have an eyewitness, turned hostile during cross-examination, and not supported the case of the prosecution. The aunt of the victim (P.W.2) is not an eyewitness and only hearsay evidence, who also not supported the case of the prosecution during cross-examination. It is further stated that the alleged occurrence is said to have occurred on 03.10.2013 at 11.30 a.m., whereas the complaint was given only at 09.00 p.m. and further F.I.R. was sent to the Court only on the next day, and no explanation was given by the prosecution with regard to delay in filing the complaint and also delay in sending F.I.R. to the Court, which creates suspicious. The victim girl was examined as P.W.4 and in her cross has not stated anything about the penetrative sexual assault committed by the appellant, as alleged by the prosecution and the victim also turned hostile. The doctor (P.W.9), who examined the victim child had deposed that on examination of the victim child, she found that there was no external injury and no evidence of recent sexual intercourse, and no evidence of semen present in the vagina of the victim; and bleeding of vagina is only due to her mensuration and concluded that no evidence of recent sexual assault and issued certificate (Ex.P8). The learned counsel for the appellant would further submit that the victim (P.W.4) is a mentally retarded person and she is not in a position to say anything and the doctor (P.W.10) has also stated that the victim is a mentally retarded person and he examined the victim only after six days from the date of occurrence and on examination, he found that except the victim girl has repeated that she was raped by the husband of one Punitha, not stated anything, and such, it is nothing but the victim girl was tutored by the prosecution. It is further contended by the learned counsel that the evidence of prosecution witnesses are uncorroborated evidence and not supported the case of the prosecution and there are contradictions, which are material contradictions and hence, it is unsafe to convict the appellant on an uncorroborated evidence. Therefore, the Judgment of conviction and sentenced passed by the trial Court is liable to be set aside.

7. Mr.D.Bharatha Chakravarthy, learned Public Prosecutor (Pondicherry) appearing for the respondent-Police would submit that at the time of occurrence, the victim child was aged about 15 years, and she is a mentally retarded person, having a habit of using tobacco and taking advantage of the same, the appellant followed her and took her to the bushes area and at that time, P.W.1, the defacto complainant, who was engaged in watering his newly constructed house, noticed them and followed and went there, and found that the appellant and the victim in a compromising position without any dress and immediately, the appellant flee from the spot and P.W.1 asked her to wear the dress and took her to the house, wherein her maternal aunt (P.W.2) and her grandma was not there, so he handed over her to the neighbour and when her maternal aunt (P.W.2) came, she narrated the entire incident and thereafter, he (P.W.1) accompanied the defacto complainant (P.W.2) to give the complaint (Ex.P1). Thereafter, the victim was produced before the doctor (P.W.9) for medical examination and the doctor also has stated that in the history sheet that a known person had sexually assaulted her and found that her hymen was not intact and therefore, she has not stated that there was no external injury. Subsequently, the victim was produced before the learned Magistrate for recording the statement under Section 164(5) of Cr.P.C., and the learned Magistrate also recorded the statement of the victim child. It is also further stated that a perusal of the evidence of defacto complainant/eyewitness (P.W.1), the evidence of aunt of the victim girl (P.W.2), the evidence of the victim girl (P.W.4) and the evidence of the doctor (P.W.9) and the medical records (Ex.P8) clearly shows that the victim child was subjected to penetrative sexual assault. He would further submit that the victim child is a mentally retarded person has not stated any allegation against the appellant regarding penetrative sexual assault, but according to P.W.1, the accused has committed penetrative sexual assault, however, the learned Judge, failed to appreciate the evidence of P.W.1, P.W.2 and P.W.4 and also the doctor (P.W.9), and however, only convicted the appellant for the offence punishable under Section 10 of POCSO Act.

8. Heard the learned counsel for the appellant and the learned Public Prosecutor (Puducherry) for the respondent and perused the materials placed on record.

9. The case of the prosecution is that the victim child was mentally retarded and used to take tobacco. On 03.10.2013, at 11.00 a.m., the defacto complainant, who was pouring water on the wall of his newly constructed house at upstairs, noticed the victim was walking on backyard of his house. He also noticed that the accused followed her. Since the victim child is mentally retarded she rarely used to go outside the house, so having suspicion, he followed them. At about 11.30 am he heard notice of the child from Karuvaikadu bushes near and he went there and saw the accused laid over the victim child had sexual intercourse with her. P.W.1 scolded him why did you do so, that too she was mentally retarded. Immediately, the appellant rose up and took his one month child, wearing his lungi flee from the place of occurrence. On seeing the victim child, she was lying over the ground without dress. On seeing P.W.1, she started to weep, P.W.1 asked her to wear the dress and took her to her house, wherein her maternal aunt P.W.2 was not there, so he handed over to the neighbour and narrated all to her, then he left to Karaikal to attend hid work. P.W.2 came to her house and enquired about the incident, to whom also P.W.1 narrated the incident. Then, she (P.W.2) requested P.W.1 to come to the Police Station for giving complaint, so, P.W.1 went to the police station along with P.W.2, the maternal aunt and P.W.5-grandmother of the victim child at 09.00 p.m., and gave the complaint (Ex.P1).

10. Based on the complaint (Ex.P1) given by P.W.1, an First Information Report [Ex.P11] in Crime No.139 of 2013 was registered, for offence punishable under Section 6 of the POCO Act. After completing investigation, the respondent Police laid a charge sheet before the learned Special Judge, Karaikal and same was taken on file as Special S.C.No.06 of 2016 and framed charges against the appellant.

11. During the trial, on the side of the prosecution, as many as 16 witnesses were examined as P.W.1. to P.W.16. and 12 documents were marked as Exs.P1 to P12, besides 5 material objects were exhibited as M.O.1 to M.O.5. After completing the evidence of prosecution witnesses, when incriminating circumstances were culled out from the evidence of prosecution witnesses put before the appellant, by questioning under Section 313 of Cr.P.C., he denied the same as false and pleaded not guilty. On the side of the defence, no witness was examined and no document was marked.

12. On completion of trial and hearing arguments advanced on either side, the learned Special Judge, Karaikal, by judgment, dated 26.04.2019, in S.C.No.06 of 2016 convicted and sentenced the appellant as stated above.

13. 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 and accordingly, this Court has appreciated the entire oral and documentary evidence produced before this Court.

14. Before the trial Court, charge was framed for the offence punishable under Section 6 of the POCSO Act. In order to prove the charges, on the side of the prosecution, totally 16 witnesses were examined, out of P.W.1 is the eyewitness, who has seen the occurrence. P.W.2 is the aunt of the victim, in whose house, the victim was staying. Since the victim has no father and mother, she was staying in the house of P.W.2.

15. The defacto complainant/eyewitness (P.W.1) deposed that when he was engaged in the watering his newly constructed house at upstairs, noticed the victim was walking on backyard of his house. He also noticed that the accused followed her. Since the victim child is mentally retarded she rarely used to go outside the house, so having suspicion, he followed them. At about 11.30 am he heard notice of the child from Karuvaikadu bushes near and he went there and saw the accused laid over the victim child had sexual intercourse with her. Immediately, after seeing him the appellant flee from the spot and he asked the victim to wear the dress and took her to her house, wherein her maternal aunt P.W.2 was not there, so he handed over to the neighbour and narrated all to her, then he left to Karaikal to attend hid work. P.W.2 came to her house and enquired about the incident, to whom also P.W.1 narrated the incident. Then, she (P.W.2) requested P.W.1 to come to the Police Station for giving complaint, so, P.W.1 went to the police station along with P.W.2, the maternal aunt and P.W.5-grandmother of the victim child at 09.00 p.m., gave the complaint (Ex.P1).

16. The victim was also produced before the Medical Officer, and the Doctor, who examined the victim was examined as P.W.9 and she had clearly deposed that on examination of the victim child, she found that her hymen was not intact and there is a possibility of sexual intercourse and issued Ex.P8 Certificate. Thereafter, the victim girl was produced before the learned Magistrate for recording the statement under Section 164 (5) of Cr.P.C. and the same was marked as Ex.P12. Though Ex.P12 was not reflected in the list of documents, a perusal of immaterial records, statement of the victim child recorded under Section 164(5) of Cr.P.C. was very much available in the record, and in the statement, the victim stated that the accused took her to karuvaikadu and asked her to remove the petticoat, pushed her to the ground laid over her. In that statement itself, she had stated that the accused had assured her to give tobacco and taking advantage of the same, the accused took her to the bushes area and committed the penetrative sexual assault. Even the victim girl (P.W.4), during evidence deposed that the appellant took her to Kulathukarai and the accused himself removed his inner-wear and pressed her breast and her shoulder and asked her (P.W.4) to remove her inner wear and at that time, she has got pain in the place, where she wears underwear. A perusal of statement, which was recorded under Section 164 of Cr.P.C., also, it could be seen that the victim child had narrated the entire occurrence.

17. The first contention of the learned counsel for the appellant is that there was a delay in filing the complaint and delay in sending the F.I.R. to the Court. In this case, the occurrence is said to have occurred on 03.10.2013 at 11.30 a.m., and the complaint was given only at 09.00 p.m. In this aspect, P.W.1 gave evidence categorically stating that he took the victim to her house, wherein her maternal aunt (P.W.2) and her grandma were not there, so he handed over her to the neighbour and when she (P.W.2) came, he narrated the entire incident and thereafter, he (P.W.1) accompanied P.W.2 to give the complaint (Ex.P1). Therefore, the delay in lodging the complaint (Ex.P1) would not fatal to the case of the prosecution and on that sole ground, this Court cannot disbelieve the evidence of the defacto complainant (P.W.1) and victim girl (PW4). Therefore, delay in preferring the complaint (Ex.P1) has been properly explained. So far as the the delay in sending the FIR to the court is concerned, it is not within the control of the victim, and it is purely laches on the part of the prosecution. Mere laches on the part of the prosecution will not be the reason to discard the evidence of the victim and also appellant is entitled for acquittal. Therefore, under the circumstances, this Court finds that the delay has been properly explained and the contention of the learned counsel for the appellant is rejected.
18. The next contention of the learned counsel for the appellant is that the prosecution witnesses are turned hostile, however, the learned Judge, wrongly convicted the appellant for the offence punishable under Section 10 of the POCSO Act. No doubt, the testimony of the witness must be one which must inspire confidence of the Court and leave no doubt in the mind of the Court about its truthfulness. It is to be noted that P.W.1 examined in chief on 19.07.2016, but was not cross examined on the same day, however, he was recalled on 05.12.2017 for the purpose of cross examination and at that time, he turned hostile. P.W.2 examined in chief on 19.07.2016, but was not cross examined on the same day, however, she was recalled on 05.12.2017 for the purpose of cross examination and at that time, she turned hostile. P.W.3 examined in chief on 19.07.2016, but was not cross examined on the same day, however, he was recalled on 24.07.2018 for the purpose of cross examination and at that time, he turned hostile. P.W.4 examined in chief on 19.07.2016, but was not cross examined on the same day, however, she was recalled on 05.12.2017 for the purpose of cross examination and at that time, she turned hostile. P.W.5 examined in chief on 27.07.2016, but was not cross examined on the same day, however, she was recalled on 24.07.2018 for the purpose of cross examination and at that time, she turned hostile. It is to be noted that all the witnesses were not cross examined on the same day, and they have been recalled only after one year. All the the above prosecution witnesses while examination in chief have supported the case of the prosecution, and however, when they have been recalled after one year, they turned hostile. It is settled law that the entire evidence of such witness should be carefully examined and rationate conclusions have been drawn. There is no need to reject the chief examination part merely because they turned hostile subsequently. It is settled law that a part of the evidence of a witness can be accepted if the same is appearing to be truthful and probable. What is to be seen is which part is inspiring confidence and which part is probable and which part is corroborated by the medical evidence or circumstantial evidence. What is to be seen is whether the Court can rely upon such evidence or not and whether the Court can safely base conviction on such evidence. In the case on hand, the appellant has taken a chance of canvassing and canvassed and hence all the above witnesses have turned hostile and therefore, the contention of the learned counsel for the appellant is rejected.
19. Yet another contention of the learned counsel for the appellant is that the victim is a mentally retarded person and therefore, her evidence is not trustworthy. In the case on hand, the occurrence was said to have occurred on 03.10.2013 and on the next day, i.e., 04.10.2013, the victim was sent before the doctor for treatment and the doctor has also mentioned that there was no evidence to show that she was committed rape, however, found that her hymen was not intact and also stated that her hymen would have ruptured due to sexual intercourse. Further, in the statement recorded under Section 164(5) of Cr.P.C., also the, victim girl has clearly narrated the entire occurrence. During evidence, she has also stated that the appellant had removed her dress and panty and pressed her breast and laid over her and at that time, she was having pain on her private part. Further, the doctor (P.W.10), had also adduced evidence that the victim girl has stated that she was committed rape by the husband of one Punitha. The defacto complainant/P.W.1 also in his evidence has stated he found the appellant and the victim in a compromising position without any dress and immediately, on seeing the defacto complainant, the appellant flee from the spot. The aunt of the victim (P.W.2) and the victim (P.W.4) have clearly deposed the entire occurrence, which was also supported by the evidence of Doctor (P.W.9).

20. A combined reading of the evidence of the defacto complainant (P.W.1) and the victim child (P.W.4), and the doctors (P.W.9 and P.W.10), who examined the victim child and the report-Ex.P8, and Ex.P12-statement of the victim child, which was recorded under Section 164 of Cr.P.C, it could be seen that the appellant has committed penetrative sexual assault, which is punishable under Section 6 of the POCSO Act, however, the learned Judge convicted the appellant for the offence under Section 10 of the POCSO Act.

21. At this juncture, it would be useful to refer Sections 3, 4 and 5 (k) of the POCSO Act.
“3.Penetrative sexual assault.—A person is said to commit “penetrative sexual assault” if—

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

4.Punishment for penetrative sexual assault.

—Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

5. Aggravated penetrative sexual assault

(k), whoever, taking advantage of a child’s mental or physical disability commits penetrative sexual assault on the child;

A careful reading of the language of the said provisions of law and also the evidence of the defacto complainant (P.W.1) and the evidence of the victim child (P.W.4), and the doctors (P.W.9 and P.W.10), and the report (Ex.P8) it could be seen that the appellant has committed penetrative sexual assault, which is punishable under Section 6 of POCSO Act.

22. However, it is pertinent to mention here that, as against the Judgment passed by the learned Special Judge, neither the victim, nor the state filed appeal against the acquittal of the accused for the offence punishable under Section 6 of the POCSO Act. Since the victim is a child as well as mentally retarded person, in the interest of substantial justice, this Court recommends the State to file an appeal against the acquittal under Section 6 of the POCSO Act within a period of one month from the date of receipt of a copy of this Judgment and if such appeal is being filed by the respondent-Police/State, the Registry is directed to take the Appeal on file and place before the concerned port folio Judge. The period of delay is exempted for taking the appeal on file. The Member-Secretary Union Territory of Puducherry Legal Services Authority, Puducherry, is directed to provide necessary compensation to the victim child under Victim Compensation Scheme, forthwith.
23. Though the appellant has committed penetrative sexual assault on the victim, however, the learned Special Judge, wrongly convicted the appellant for the offence punishable offence under Section 10 of the POCSO Act. Therefore, this Court is of the considered view that all the three stakeholders, viz., the Investigating Officer, the Pubic Prosecutor and the learned Judge have not properly dealt with this case and they have not properly understood the object and scope of the POCSO Act and seriousness of the offence against the children. This Court also time and again directed the State Judicial Academy, Director of Prosecution, and Director General of Police, to impart training to the stakeholders, who are dealing with the cases under POCSO Act, however, it is disappointing to note that till date no such training is imparted. Therefore, this Court directs the State Judicial Academy, Director of Prosecution, and Director General of Police to impart a training, who are dealing with the cases under POCSO Act.

24. 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. The Trial Court is directed to secure the appellant for sufferance of sentence, if he is outside. Consequently, connected miscellaneous petition is closed.
25. However, given the facts and circumstances of the case, it is to be noted that though in this case, the appellant has committed the offence, which is punishable under Section 6 of the POCSO Act, the learned trial Judge found that the appellant has not committed the charged offence, and convicted him under Section 9 of the POCSO Act, which is punishable under Section 10 of the POCSO Act. Since this Court is the defacto guardian of the children and mentally retarded person, it is necessary to give certain directions, in the cases of this nature, and therefore, all the Special Judges, who are dealing with the cases under POCSO Act, are directed to send copies of the Judgments to the respective District Social Welfare Officer concerned in the Union Territory of Pondicherry and the State of Tamil Nadu. In cases of this nature, if the Prosecution or the victim has not filed any appeal against the order of acquittal or reduction of punishment with regard to POCSO Cases, the respective District Social Welfare Officers concerned, as aggrieved parties can file appeals with the help of the respective District Legal Services Authority concerned, or State Legal Services Authority or High Court Legal Services Committee, as they are deemed to be aggrieved parties.

26. Therefore, all the District Social Welfare Officers concerned, as soon as they receive copy of Judgments, if the State or the victim has not filed any appeal, they are directed to file an appeal with the help of the concerned District Legal Services Authorities or The State Legal Services Authority functioning under Union Territory of Pondicherry and the State of Tamil Nadu or High Court Legal Services Committee.

27. It is also relevant to give a direction to both the Government of Tamil Nadu and the Government of Puducherry to adhere to the provision of Section 43 of the POCSO Act. Both the Governments are directed to take measures as mentioned in Section 43 of the POCSO Act for the implementation of the provisions of the Act.

28. The Registry is directed to communicate a copy of this Judgment to all the Special Courts, dealing with the POCSO Cases, so as to enable them to send a copy of Judgments to the respective District Social Welfare Officers for filing an Appeal with the help of the concerned District Legal Services Authorities / State Legal Services Services Authority / High Court Legal Services Committee.

05.07.2021
Speaking Order / Non-speaking order

Index : Yes / No.
Internet : Yes.

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To

1.The Special Judge at
Karaikal.

2.The Inspector of Police,
Thirunallar Police Station,
Karaikal,
Pondicherry State.

3.The Public Prosecutor, (Pondicherry)
High Court of Madras,
Chennai.

4. The Director General of Police,
Dr.Radhakrishnan Salai Road, Mylapore,
Chennai, Tamil Nadu 600-004.

5. The Director of Prosecution,
Puddupettai Street,
Alandur, Chennai.

6.The Director,
Tamil Nadu Judicial Academy,
Greenways Road, R.A.Puram, Chennai.

7.The Member-Secretary Union Territory of Puducherry
Legal Services Authority,
Puducherry.

8.The State Legal Services Authority, Union Territory of Pondicherry.

9.The Social Welfare Officer, Union Territory of Pondicherry.

10.The Tamil Nadu State Legal Services Authority,
North Fort Road, High Court Buildings, Chennai
Tamil Nadu.

11. The Social Welfare Department,
No.11 Panagal Maligai Building 2nd Floor, Near Kalaignar Arch,
Jeenis Road, Saidapet, Chennai, Tamil Nadu 600015.

12.The Secretary,
High Court Legal Services Committee,
North For Road,
Chennai – 600 104.

P.VELMURUGAN, J.

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Crl.A.No.50 of 2020