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2018 Supreme(Mad) 1374

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. SUBBIAH, A.D. JAGADISH CHANDIRA, JJ.
A. Kalimuthu - Appellant
Versus
State represented by The Inspector of Police All Women Police Station Madurai Town Madurai - Respondent
Criminal Appeal (MD) No. 450 of 2016
Decided on : 09-03-2018

Advocates:
Advocate Appeared:
For the Appellant : Mr. M. Shankar for Mr. R. Babu Jaganath
For the Respondent: Mr. C. Ramesh Additional Public Prosecutor

Headnote:

Protection of Children from Sexual Offences Act – Sections 5 (l) read with 6 – Code of Criminal Procedure, 1973 – Sections 313, 164 – Compensation – Appellant in this appeal is the sole accused in Special Sessions Case No. 27 of 2015 on the file of Sessions Judge for Mahila Court, Madurai. – He stood charged for the offences punishable under Sections 5 (l) read with 6 of The Protection of Children from Sexual Offences Act – Trial court, after conclusion of trial, passed the judgment convicting the appellant for the offences punishable under Sections 5 (l) read with 6 of POSCO and sentenced him to undergo imprisonment for life together with fine of Rs.5,000/- failing which to undergo simple imprisonment for a period of one year. – By the said Judgment, the trial Court also directed the Government to pay a sum of Rs.10,00,000/- as compensation to the victim child for the trauma and mental disturbance suffered by her on account of the act of the appellant. – Held, Sole testimony of PW1 inspires the confidence of this Court and that itself is sufficient to hold the accused guilty. – Court do not find any reason for the minor victim girl to hurl such an accusation against her own father. – Further, such version of PW1 is corroborated by PW2 to 8. – Even PW4 to 8 are related to the accused and the prosecution witnesses 1 to 3 and therefore, it cannot be said that they have supported PW1 to 3 and implicated the accused falsely. – The fact remains that none of the prosecution witnesses namely Pws 1 to 8 have spoken to the effect that the accused is of good character and he would not have committed such offence. – On the other hand, soon after PW2 informed the other prosecution witnesses about the inhuman act of the accused, they only asked Pws 1 to 3 to go to the police station to lodge a complaint. – It is noteworthy to mention that there is no reason for Pws 1 to 8 to depose against the accused, especially with a complaint of this nature. Further, on examination of the statement of PW1 recorded under Section 164 of Cr.P.C. she has stated that the accused had been arrested and remanded to judicial custody in connection with various offences committed by him. – From the said deposition of PW1, Court could infer the antecedent of the accused as well. – In any event, all the prosecution witnesses have clearly pointed out the guilt of the accused and it was elaborately narrated by the trial Court while convicting the accused. – Court see no reason to interfere with the judgment of conviction and sentence passed by the trial court. – Court feel remorse to observe that no words of solace and comfort, no amount of compensation, no amount of punishment to the accused can undo the damage done to the child and her innocence. – Court hope and believe that time, the great healer, will restore her back to normalcy. – At the same time, Court could only observe that given the nature and magnitude of the offence committed by the accused, even though Court feel that the sentence imposed on the accused/appellant is inadequate, Court could not also enhance the sentence imposed on the accused/appellant than the one our legislators have indicated under the POSCO Act for the offences punishable under Section 5 (l) and 6 thereof. – Court is only left with the option to confirm the judgment passed by the trial Court. – Order Accordingly

JUDGMENT :

R. SUBBIAH, J.

1. The appellant in this appeal is the sole accused in Special Sessions Case No. 27 of 2015 on the file of Sessions Judge for Mahila Court, Madurai. He stood charged for the offences punishable under Sections 5 (l) read with 6 of The Protection of Children from Sexual Offences Act (in short 'POSCO'). The trial court, after conclusion of trial, passed the judgment dated 25.04.2016 convicting the appellant for the offences punishable under Sections 5 (l) read with 6 of POSCO and sentenced him to undergo imprisonment for life together with fine of Rs.5,000/- failing which to undergo simple imprisonment for a period of one year. By the said Judgment dated 25.04.2016, the trial Court also directed the Government to pay a sum of Rs.10,00,000/- as compensation to the victim child for the trauma and mental disturbance suffered by her on account of the act of the appellant.

2. The accused/appellant is the father of the minor victim girl, PW1, who was 16 years at the time of occurrence. PW2 is the mother of PW1 and wife of the accused/appellant. PW3 is the brother of PW1 and son of the accused/appellant and PW2. According to PW1, her father is a drunkard addicted to alcoholic drinks and also had the habit of taking narcotic substances. According to the prosecution witnesses, the accused/appellant was jobless. On the other hand, PW2 was undertaking domestic work and running the family with the meagre income she earns. The accused/appellant used to quarrel with PW2 and often demanded money from her for taking alcoholic drinks. Whenever she refused to pay, the accused/appellant used to assault PW2 and forcibly snatch the amount from her.

3. It is stated that PW1 attained puberty two years prior to the date of occurrence. While so, three months prior to the occurrence, when PW1 was alone in the house, the accused misbehaved with his own daughter by pulling her hands and pressed her breasts under the influence of alcohol. This was complained by PW1 to PW2, mother. PW2 therefore questioned the accused and quarrelled with him. When the accused was confronted by PW2 as to why he had indulged in such acts with his own daughter, the accused threatened PW2 with a knife not to disclose it to any one, failing which he will kill Pws 1 to 3. After this incident, it is stated that PW2 stayed in the night in the house of her junior grand mother situated opposite to their house and PW1 was made to stay in the house of her aunt nearby. While so, on 30.05.2015, when PW1 was in her aunt's house, the accused called PW1 to come to the house to have food prepared by PW2. The aunt of PW1 also asked PW1 to go to her house to have food as requested by her father. Accordingly, PW1 went to her house along with the accused at about 11.00 pm. When PW1 stepped into her house, the accused forcibly pushed her inside the room and locked it from inside. Immediately, PW1 pleaded with the accused to leave her so that she can go to her aunt's house. Unmindful of such request, the accused, under the influence of alcohol and narcotic substances, kicked PW1 in her abdomen and she fell down. The accused continuously assaulted PW1 and she was gripped with panic. At that time, PW3, brother of the PW1 was sleeping beneath the cot in the room. The accused thereafter demanded PW1 to remove the cloths by herself, which she bluntly refused. On such refusal, the accused forcibly undressed PW1 by removing her dress. When PW1 pleaded with the accused to relive her, he threatened her with a knife. Thereafter, the accused pressed the breasts of PW1/his own daughter and caused aggravated penetrative sexual assault. At the time of ejaculation, during withdrawal phase, with strong belief to eliminate any trace of seminal fluid in the private part of PW1 and also led by misplaced caution, had let the semen drop outside the vaginal area of PW1. PW1 wept in pain and unmindful of her cries, the accused repeated his acts of penetration atleast thrice thereafter till 6.00 am in





































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