IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.07.2022

CORAM :

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.A.No.592 of 2021

Moorthi              … Appellant

 

Versus

The State of Tamilnadu represented by Inspector of Police, Kallavi Police Station.

(Crime No.44 of 2017)                  … Respondent

Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, to set aside the order of conviction imposed as against the appellant by the judgment, dated 14.09.2021 made in Spl.S.C.No.42 of 2018 passed by the learned Sessions Judge, Fast Track Mahila Court at Krishnagiri and acquit the appellant from all charges.

For Appellant             : Mr.S.Subramaniya

for Mr.S.Sathish Rajan

For Respondent         : Mr.S.Vinoth Kumar

Government Advocate (Crl. Side)

JUDGMENT

A complaint by post was received at the Kallavi Police Station, on 10.04.2017 from P.W.1, to the effect that, on 04.04.2017 at about 9.30 A.M, when P.W.1’s grandson, namely victim child, aged 4 years was playing near the house, the appellant took him by holding his hand and after some time, the victim child was found lying naked with blood in his ear, mouth and nose and the appellant/accused had committed oral penetration and even though she took up the matter with the other residents of the village, they had directed her to go

to the Police Station and therefore, she has lodged the complaint.

2. On the strength of the said allegation, a case in Crime No.44 of 2017 under Section 3(A) read with 4 of the POCSO Act, 2012 was registered and P.W.14 took up the case for investigation and laid a Final Report, after completion of the investigation, proposing the accused guilty for the offence under Section 5(m)(u) read with 6 of the POCSO Act. The offence was taken cognizance by the Trial Court and after furnishing copies under Section 207 of the Code of Criminal Procedure and upon perusing the material records of the case, a charge was framed against the accused under Section 5(m)(u) read with Section 6 of the POCSO Act, 2012.  Upon being questioned, the accused

denied the charge and stood trial.

3. So as to prove the charge, the prosecution examined one Rani, the

grand-mother of the victim child and the de-facto complainant in this case, as P.W.1.  She deposed that since the child did not return home, she went in search of the child and upon hearing of wailing of the child, she found the child in the neighbour’s field and when she ran and enquired her grandson, he told her that the appellant/accused had made him to lie down and by pressing his mouth made his mouth open and inserted his penis inside his mouth.  She also saw that her grandson was bleeding in the ears and nose and there was an injury on the cheek because of pinching by the appellant/accused.  She took her

grandson to a private Doctor. She also went to the house of the

appellant/accused and when she confronted his mother, the appellant/accused

came and threatened her.  Thereafter, she had lodged a complaint.

4. The prosecution examined one Kumaravel, who was the mahazar

witness, as P.W.2.  He deposed that he accompanied the Police when the Police examined the child and the child took the Police to the place of occurrence and told them that the appellant/accused had oral penetration at the place.  The prosecution had examined the victim child as P.W.3.  The victim child was examined in detail and the child vividly described about the oral penetration done by the accused and was cross-examined in great detail and the child withstood the very many questions and denied the suggestions that such an act never happened.  The child also clarified in the cross-examination that a thorn pricked in his ear, therefore there was bleeding.  The prosecution examined one Rangan as P.W.4, who was said to be an independent ocular witness, who had also rushed to the spot upon the request of P.W.1, but, however, he turned hostile.  The prosecution examined one Raja as P.W.5, who is the father of the victim child and he spoke about the fact that after being informed, he came to the village and his son once again narrated the entire incident to him.  The prosecution examined one Chennakesavan, as P.W.6, who was the brother of P.W.5 and who also spoke about the account given to them by the child.  The yet another mahazar witness, namely Chennakrishnan, who was examined as P.W.7, was turned hostile.  P.W.8, Dr.Sathishkumar, who examined the child and who gave the certificate that there were no visible injuries either in the

mouth or in the anus or in the private parts of the child.  P.W.9, Dr.Arivazhagan, who examined the appellant/accused and gave a certificate that he was potent and in his cross-examination, he admitted that if there was oral penetration, there would have abrasion and also if the child has bitten the penis, there would have been the corresponding injury in the private part of the appellant/accused and there was no such injury.  The Sub-Inspector, who took the appellant/accused for medical examination, was examined as P.W.10.  One Palanisamy, who registered the F.I.R was examined as P.W.11.  One

Sivakumar, who is yet another Sub-Inspector, who accompanied P.W.10 was examined as P.W.12.  One Kanakesan, the Investigating Officer, who

conducted the initial investigation, was examined as P.W.13.  One Veerappan, who completed the further investigation by obtaining medical opinion from the Doctors and filed the chargesheet, was examined as P.W.14.

5. On behalf of the prosecution, the complaint lodged by P.W.1 was

marked as Ex.P-1; Section 164 Cr.P.C., statement of P.W.1 was marked as Ex.P-2; the observation mahazar was marked as Ex.P-3; Section 164 Cr.P.C., statement of P.W.3, the victim child, was marked as Ex.P-4; the signature of P.W.7, in the observation mahazar, was marked as Ex.P-5; the Accident Register copy, for the treatment of the victim child, was marked as Ex.P-6; medical report of the victim was marked as Ex.P-7; the requisition letter for potentiality test was marked as Ex.P-8; the potentiality report of the accused was marked as Ex.P-9; the further requisition letter given by the Investigating Officer for the same purpose was marked as Ex.P-10; the First Information

Report was marked as Ex.P-11; the rough sketch prepared by the Investigating

Officer was marked as Ex.P-12; the requisition letter sent by the Investigating Officer for recording Section 164 Cr.P.C., statement was marked as Ex.P-13

and the alteration of section report was marked as Ex.P-14.

6. Upon being questioned about the material evidence on record and

the incriminating circumstances, the appellant/accused denied the same as false.  Thereafter, no evidence was let in on behalf of the appellant/accused and the Trial Court, thereafter, proceeded to hear the learned Special Public Prosecutor on behalf of the prosecution and the learned Counsel for the appellant/accused and by a judgment, dated 14.09.2021 found that the prosecution has not proved the charge under Section 5(u) of the POCSO Act, namely parading the child nude, but, however, found that the prosecution has proved the charge under Section 5(m) of the POCSO Act i.e., committing an aggravated penetrative sexual assault in respect of a child less than 12 years of age and therefore, convicted the appellant/accused under Section 6 of the POCSO Act and imposed Rigorous Imprisonment for ten years and directed the appellant/accused to pay a fine of Rs.1,000/- and in default, to undergo Rigorous Imprisonment for six months.  Aggrieved by the same, the present

appeal is laid before this Court.

7. Heard S.Subramaniya, learned Counsel for the appellant and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) appearing on

behalf of the prosecution.

8. The learned Counsel for the appellant/accused, taking this Court

through the evidence on record, namely the evidence of P.W.1, the evidence of

P.W.3, the victim child and the evidence of both the Doctors, who examined the victim child as well as the appellant/accused, would submit that this is a case in which there is absolutely no corroborating material for the version of the child for committing the penetrative sexual assault by way of oral penetration.  From both the Doctors as well as the medical report, it is very clear that there was absolutely no external injury on the child.  If the occurrence had taken place in the manner as described by the victim child witness, upon examination of the victim child, definitely the injury on the cheek and the other injuries mentioned by P.W.1 would have been found by the Doctor, P.W.8, on his examination and therefore, the same throws considerable doubt in the version of the prosecution.  He would further submit that in the absence of corroborating injury, the Hon’ble Supreme Court of India has in Prahlad Vs. State of Rajasthan^[1], in paragraph No.11 held that in the absence of corroborative medical evidence, the appellant/accused cannot be convicted

under the POCSO Act.

9. The learned Counsel would further submit that in this case, except

for the child witness, there is no eye witness.  P.W.1, in her complaint, has stated as if she actually saw the appellant/accused performing the act complained of.  However, she did not stand by her complaint when she came into the box.  This is one circumstance which raises suspicion in the case of the prosecution.  The second suspicious circumstance is that the occurrence took place on 04.04.2017, while the complaint in the offence of this serious nature was by post, received at the Police Station  only on 10.04.2017.  Thereafter, it is seen that without even examining the complaint, strangely it is registered,

even though the mobile number of the complainant is mentioned in the

complaint itself.  This, is the second circumstance raising doubt in the case of the prosecution.  The third circumstance is that the only independent witness, namely P.W.4, who sought to be examined and who also said to have been

rushed to the spot as per the charge itself, has turned hostile.  He would further submit that the yet another circumstance in this case is that even though the child has described the place as bush in nature and speaks about the injury by

thorns, no such thing is mentioned in the rough sketch drawn by the Investigating Officer and therefore, the Investigating Officer, without even visiting the spot, has conducted only table top investigation and has laid the charge sheet.  The investigation suffers from so much infirmity right from the manner in which the First Information Report is recorded as P.W.1 says that she was sent back from the Police Station to write the complaint from bank official and on a reading of the First Information Report, it shows that the complaint was received by post and up to the preparation of the mahazar and especially one of the mahazar witnesses have also turned hostile, the appellant/accused cannot be punished for such a serious offence, on the mere ipse dixit the victim child, when no other medical evidence corroboration is

there and when the investigation suffers  serious infirmities.

10. Per contra, S.Vinoth Kumar, the learned Government Advocate (Crl. Side) would submit that in this kind of offenses, it is only the evidence of victim child which matters the most. When the appellant/accused has taken the victim to a secluded place and performed the dastardly act, there will be no other witness for the incident.  But, by way of corroboration, soon after the incident, P.W.1 has gone to the place and had found the boy with blood on his ears and nose and also naked.  The boy had narrated the entire incident to P.W.1 and also the other witnesses.  The version of the victim boy is consistent in the Section 164 Cr.P.C., statement as well as in the witness box. A detailed cross-examination was done by the learned Counsel for the

appellant/accused, but, however, no answer favourable to them was elicited.

11. He would submit that there are two things which this Court has to

take into consideration as far as the medical evidence is concerned.  Firstly, the incident is said to happened on 04.04.2017 and the First Information Report itself was registered only on 10.04.2017 and thereafter only, the boy was taken for medical checkup.  Secondly, the nature of the act i.e., oral penetration, there will not be any external injury either on the boy or on the appellant/accused. Therefore, he would submit that the submission of the learned Counsel for the appellant/accused regarding the non-corroboration of medical evidence is

totally without merit.  He would further submit that in this case, the answers of P.W.1 about the developments and thereafter, the registration of the First Information Report and the further investigation, all would corroborate the version of P.W.3 victim and therefore, he would submit that there is ample material on record to prove the charge against the accused and nothing has been done by the appellant/accused to rebut the presumption under Section 29 of the Act.  Therefore, he would pray this Court to dismiss the appeal and

confirm the sentence imposed by the Trial Court.

12. I have considered the rival submissions made on either side and

perused the material records of the case.  In this case, on a reading of the Section 3 of the POCSO Act, 2012, it would be clear that the act complained would definitely come within the Section 3(a) of the Act and therefore, there is a penetrative sexual assault.  If the same is done to a child below 12 years of age, as per Section 5(m) of the Act, it becomes aggravated penetrative sexual assault and thereby, punishable under Section 6 of the POCSO Act.  Now, the victim child was examined as P.W.3.  The child has clearly spoken about the act of the appellant/accused.  The child was also specifically cross-examined regarding the same and the child stood his ground even in the cross-

examination and the repeated suggestions.  Now, in this case, P.W.1 has found the child wailing in the said spot, lying naked on the ground in pain.  As far as the absence of injuries is concerned, it is the evidence of the child that the appellant/accused had pressed his mouth and also pinched his chin and such kind of injuries will not be visible after a period of seven or eight days, after which, he was taken for medical examination.  As far as the absence of other injuries is concerned, in the judgment relied upon by the learned Counsel for the appellant cited supra is the case where a tender girl child was abused by having  penetrative sexual intercourse in the vagina, in which, the Hon’ble Supreme Court of India had relied upon the medical opinion that in respect of such a tender child, if penetrative sexual assault is committed, there will surely be an injury in the private part of the child.  But, in this case, the allegation is different and it is oral penetration.  In such a case, there need not be an external injury both for the victim child as well as for the appellant/accused.  In this regard, the learned Counsel for the appellant/accused relied upon the evidence

of P.W.9, the Doctor who examined the appellant/accused.  His second

statement that if the child has bitten the private part of the appellant/accused, a corresponding injury will be there is logical, but in this case, it is not the case of the prosecution that the child had beaten.  But, as far as his other statement that there will be an abrasion injury in the private part of the appellant/accused is concerned, considering the nature of allegation made by the prosecution in this case, the said statement, on the face of it, absurd and therefore, even though coming from a Doctor, who examined the appellant/accused, stands

rejected by this Court.

13. The further argument of the learned Counsel for the

appellant/accused, regarding the discrepancy in the manner of registration of the First Information Report is concerned, it can be seen from the evidence of P.W.1 that she had confronted the mother of the appellant/accused initially and then taken up with the other villagers and finally the complaint was lodged. Considering the nature and background of the parties and the fact that the parents of the victim/child were also not with the child and the child was under the care of his grand-mother, the delay in lodging a complaint is clearly explained and in any event, I am of the view that the same has not caused any prejudice to the appellant/accused especially when he is the sole accused and

was a known person and there is no any quarrel over identity.

14. Further, the contention of the learned Counsel for the

appellant/accused that as far as the non-mentioning of thorn bush in the observation mahazar by the Investigating Officer is concerned, it may be so,

but, even the absence of observation mahazar, will not entitle the appellant/accused for acquittal in the case of this nature, much less to say about any discrepancy in noting down the feature.  As far as the contention regarding the injuries on the child is concerned, the child himself, in his crossexamination, has clearly stated that there was a thorn prick in his ear and therefore, being a tender child and especially when the thorn tears the cartilaginous tissue, there would be bleeding and being a child, it could have spread through his nose and mouth etc., as the child was lying on the ground

crying and wailing.  Therefore, none of the contentions of the

appellant/accused can be accepted by this Court and I am of the view that the

prosecution has proved the case beyond doubt.

15. Now, coming to the sentence, the Trial Court itself had imposed

only the minimum sentence and imposed minimum amount of fine.  Therefore, there is no scope for this Court in any manner interfering with the sentence imposed by the Trial Court.  It is seen from the judgment that no compensation has been awarded to the victim child.  A copy of this judgment shall be marked and forwarded to the Tamil Nadu State Legal Services Authority, which shall issue notice to P.W.5, the father of the victim child and upon such notice, the application can be made on behalf of the victim child in accordance with the scheme available and the Legal Services Authority shall determine the compensation amount payable to the victim child under the scheme.  The said compensation shall also be paid to the victim child.

16. With the above said observations, the Criminal Appeal is

dismissed as without merits.  Consequently, Crl.M.P.No.12180 of 2021 is

closed.

17. Before parting with the case, this court places on record its

appreciation to the Learned Counsel for the appellant, who despite all the facts stacked against the appellant/accused, had left no stone unturned to defend the accused by raising all the points, but still arguing in a manner befitting as the

officer of this Court.

29.07.2022

Index        : yes

Speaking order grs

To

1. The Sessions Judge, Fast Track Mahila Court,
2. The Public Prosecutor, High Court of Madras.
3. The Tamil Nadu State Legal Services Authority, High Court of Madras.
4. The Inspector of Police, Kallavi Police Station.

D.BHARATHA CHAKRAVARTHY. J.,

grs

Crl.A.No.592 of 2021

29.07.2022

[1] CDJ 2018 SC 1152