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2019 Supreme(Mad) 1555
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P.N. PRAKASH, B. PUGALENDHI, JJ.
Rajalingam and Ors. - Appellants
Vs.
The State - Respondent
Crl. A. (MD) Nos. 273 of 2017 and 199 of 2018
Decided On : 09-04-2019
Advocate Appeared:
For the Appellant : V. Nagarajan and A. Haja Mohideen, Legal Aid Counsels
For the Respondents: R. Anandharaj, Additional Public Prosecutor
Headnote:
Indian Penal Code - Sections 366-A – Criminal Procedure Code - Section 164/313 - POCSO Act – Section 6 - Challenging judgment of conviction and sentence - evidence as well in Accident Report – First Information Report - Court are afraid that Court cannot concede to request of because once a Criminal Appeal is admitted same cannot be withdrawn by party nor can it be dismissed for default by this Court - Under Section 386 Court are required to go through records and give a disposal to the case in accordance with law – Therefore Court urged Mr. learned counsel on record for (A2) to prosecute the appeal – Held, Trial Judge has contacted the counsel for the accused over phone and has informed them that witnesses are present - When they expressed their inability to come to Court due to boycott of Courts Trial Judge has religiously recorded it in the deposition itself and has closed the evidence. Normally Trial Judges would record such adjudications only in the adjudication sheet which will not find place in the paper book and hence will not come to our cognizance, while hearing the appeal - In this case Trial Judge has recorded this in the deposition itself and thus it came to our notice - When such a categorical recording is made, then High Court would also loath to interfere when a petition is filed to recall the witness for cross-examination - In State Supreme Court has cautioned against mechanically recalling witnesses under Section 313 - Refusal of an Advocate to cross-examine witness on ground of Court boycott is fraught with another danger - If accused suffers conviction on this ground, he can initiate disciplinary proceedings in Bar Council and also claim compensation before Consumer Forum from his Advocate - This problem is endemic in our Trial Courts today and deserves to be handled deftly but firmly issue can be viewed from yet another dimension world is so complex that of late Advocates are also frequently becoming victims of various crimes - When an Advocate-victim leaves his days professional work and comes to Court for giving evidence and if his robed brother defending accused, says that he will not cross-examine because of boycott of courts, will the victim-advocate brook this? Let us remember that, what Court sow so shall we reap - In fine Court hold that Trial Judge in this case has formulated a fair and just procedure which we have no hesitation in appreciating and recommending to our Trial Courts – Appeal allowed
JUDGMENT :
P.N. Prakash, J.
1. Challenging the judgment of conviction and sentence dated 25.10.2016, in S.C. No. 60 of 2016, on the file the Mahalir Neethimandram, (Fast Track Mahila Court), Karur, the accused 2 and 1 have filed Crl. A. (MD) Nos. 273 of 2017 & 199 of 2018 respectively.
2. The case of the prosecution, in a nutshell, is as follows:
2.1. The victim, aged about 13 years, was sexually abused by her father Ganesan (A1) and uncle Rajalingam (A2) on two different dates. On the written complaint (Ex. P2) given by the victim girl (P.W. 11), Balakrithika (P.W. 20), Sub Inspector of Police, registered a case in Kulithalai All Women Police Station Crime No. 2 of 2016, for the offences punishable under Sections 4, 5(m)(n) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, “the POCSO Act”), on 03.04.2016 at 01.00 p.m., against Ganesan (A1) and Rajalingam (A2) and prepared the printed F.I.R. (Ex. P10), which reached the jurisdictional Magistrate on 03.04.2016 at 10.00 p.m., as could be seen from the endorsement thereon.
2.2. Thereafter, the investigation of the case was taken over by Rani (P.W. 21), Inspector of Police, who went to the occurrence places and prepared Observation Mahazars (Exs. P1 & P9) and Rough Sketches (Exs. P11 & P12). The victim girl (P.W. 11) was subjected to medical examination on 04.04.2016 by Dr. Sudarsana (P.W. 14), who in her evidence as well in the Accident Report (Ex. P4) has stated as follows:
“External genitalia
No external injuries, No bleeding PV, Hymen intact. As hymen is intact, PV could not be taken and vaginal smear could not be taken.
Vaginal Smear taken:
No Sperm cells, one epithelial cell, 1-2 pus cells seen.
Investigations:
Opinion:
IN OTHER LANGUAGE
Thus, the opinion of Dr. Sudarsana (P.W. 14) is to the effect that there is no symptom of penetrative sexual assault.
2.3. Rani (P.W. 21), Investigating Officer, arrested Ganesan (A1) and Rajalingam (A2) and they were also subjected to medical examination by Dr. Surendar (P.W. 15), who, after examining both Ganesan (A1) and Rajalingam (A2), vide Exs. P5 and P6 respectively, has opined that they are capable of coitus.
2.4. Rani (P.W. 21), Investigating Officer, had the statement of the victim girl (P.W. 11) recorded under Section 164 Cr.P.C., by Rajasekaran (P.W. 18), Judicial Magistrate and the statement was marked as Ex. P3. After examining witnesses and completing the investigation, Rani (P.W. 21), Investigating Officer, filed final report in P.R.C. No. 6 of 2016, before the learned Judicial Magistrate No. II, Kulithalai, for the offences under Sections 366-A I.P.C., and 5(m)(n) r/w 6 of the POCSO Act against Ganesan (A1) and Sections 366-A I.P.C., and 3 r/w 4 of the POCSO Act, against Rajalingam (A2).
3. On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C. No. 60 of 2016 and was made over to the Special Court (Fast Track Mahila Court), Karur, for trial.
4. The Trial Court framed four charges against the appellants, as detailed below:
Charge Penal Provisions Accused
1 366 I.P.C. A1
2 5(n) r/w 6 of POCSO Act
3 366 I.P.C. A2
4 3 r/w 4 of POCSO Act
5. When questioned, the appellants pleaded “not guilty”. To prove its case, the prosecution examined 21 witnesses and marked 12 exhibits and 01 material object. No witness was examined nor any document marked on the side of the accused. When the accused were questioned under Section 313 Cr.P.C., about the incriminating circumstances appearing against them, they denied the same.
6. By judgment dated 25.10.2016, the Trial Court acquitted the appellants of the charge under Section 366 I.P.C. The appellants were, however, convicted and sentenced as under:
Accused Section of Law Sentence of imprisonment Fine amount
A1 5(n) r/w 6 of POCSO Act To undergo imprisonment for life. Rs. 1,000/- in default to undergo simple imprisonment for one (1) month.
A2 3 r/w 4 of POCSO Act To undergo rigorous imprisonment fo
