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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. VAIDYANATHAN, N. ANAND VENKATESH, JJ.
Udhyanithi - Appellant
Versus
State through The Inspector of Police, Budalur Police Station, Thanjavur - Respondent
Crl.A.(MD)No. 181 of 2018
Decided On : 12-11-2019
Criminal Procedure Code1973 - Section 374(2) - POCSO Act - Section 6 - Indian Evidence Act 1872- - Section 4 - F-I-R – Inquiry - Appellant and about appellant was arrested Nagar bus stop- He was brought to police station and which he was wearing was recovered in presence of witness - thereafter was produced before Court and appellant was remanded to judicial custody - Investigation Officer thereafter gave a requisition to send all recovered materials to forensic laboratory- Since Investigation Officer was transferred investigation was thereafter handed over new Investigation Officer who took charge of case recorded statements of or witnesses- He gave a requisition to Court through Head Constable take statements of victim girl and her mother Section statements of victim girl and her mother were recorded- appellant was examined by Doctor and age certificate was given and potency test was taken by Doctor and certificate (was issued- Similarly victim girl was also examined by Doctor (and her age was assessed and certificate was given- victim girl was also examined by doctor and it was recorded in Accident Register and medical examination report and final opinion was also given –Held, Appellant was below on date when alleged offence was committed and for that purpose he relied upon evidence of doctor and age certificate marked plea raised by learned counsel for appellant is liable to be rejected for simple reason that age of appellant was never raised as an issue before trial Court and for first time it is raised before this Court- Merely with certificate doctor this Court cannot come to a conclusion that appellant was aged below 18 years on date of commission of offence Court or Board or as case may be Committee shall decide juvenility or otherwise of juvenile or child or as case may be juvenile in conflict with law prima facie on basis of physical appearance or documents if available and send him to Observation Home or in Jai Committee for reasons to be recorded by m may if considered necessary give benefit to child or juvenile by considering his/her age on lower side within margin of one year and while passing Orders in such case shall after taking into consideration such evidence as may be available or Medical Opinion as case may be record a finding in respect of his age and either of evidence specified in any of Clauses or in absence whereof Clause (b) shall be conclusive proof of age as regards such child or juvenile in conflict with Court is hereby confirmed and sentence is modified from life imprisonment to ten years Rigorous Imprisonment and a fine and in default to undergo three months Simple Imprisonment and also to pay compensation which shall be deposited before Court below and which shall be permitted to be withdrawn by victim girl after she completes age - compensation amount shall be put in a fixed deposit renewable once in three years and interest shall also be accumulated so that at time when it is withdrawn by victim girl after she completes of age she will get amount along with accumulated interest – Appeal allowed
JUDGMENT :
S. VAIDYANATHAN, N. ANAND VENKATESH, JJ.
Prayer: Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure to set aside the judgment and conviction dated 12.06.2016, by the learned Sessions Judge, Mahalir Neethimandram (Fast Track Mahila Court), Thanjavur in Spl.S.C.No.20 of 2016 and acquit the appellant.
1. The sole accused, aggrieved by the judgment passed by the Mahila Court (Fast Track Mahilla Court), Tanjore made in Spl.S.C.No.20 of 2016 dated 12.06.2017, convicting the appellant for the offense under Section 6 read with 5(m) of the POCSO Act and sentencing him to undergo life imprisonment and to pay a fine of Rs.1,000/- and in default to undergo three months simple imprisonment and to further pay a compensation of a sum of Rs.2,00,000/-(Rupees Two lakhs only), has preferred this Criminal Appeal before this Court.
2. The case of the prosecution is that on 05.06.2015, at about 4:00 p.m., the appellant had sexually assaulted the victim girl (P.W.2) at the back side of the house of one Gunasekaran at Rayandur Kaliyamman Koil street. The mother of the victim girl (P.W.1) was informed about this incident by the victim girl (P.W.2) and when P.W.1 attempted to question the appellant, he quickly moved out of the place. Thereafter, she went to the Police Station and the Sub Inspector of Police (P.W.14) received the complaint from P.W.1 and registered an F.I.R.(Ex.P.19) in Crime No.117 of 2015, for an offence under Section 4 of POCSO Act. The express F.I.R. was immediately sent to the learned Judicial Magistrate, Thiruvaiyaru and it was also forwarded to the Inspector of Police (P.W.16).
3. The Investigation Officer (P.W.16) went to the scene of crime at about 7:30 p.m. and prepared the observation mahazar (Ex.P.20) and the rough sketch (Ex.P.21). He also recovered the clothes from the victim girl under seizure mahazar and he recorded the statements of P.W.1, P.W.6, P.W.7, P.W.8 and P.W.5 under Section 161(3) of Cr.P.C.
4. The Investigation Officer received an information about the appellant and on 06.06.2015, at about 1:00 p.m., the appellant was arrested near the Akilandeshwari Nagar bus stop. He was brought to the police station and the clothes which he was wearing was recovered in the presence of the witness under mahazar. Thereafter, he was produced before the Court and the appellant was remanded to judicial custody.
5. The Investigation Officer, thereafter gave a requisition to send all the recovered materials to the forensic laboratory. Since the Investigation Officer was transferred, the investigation was thereafter handed over to P.W.18. The new Investigation Officer, who took charge of the case, recorded the statements of the other witnesses. He gave a requisition to the Court through the Head Constable (P.W.15) to take the statements of the victim girl and her mother under Section 164 of Cr.P.C. The 164 statements of the victim girl and her mother were recorded. The appellant was examined by the Doctor (P.W.12) and the age certificate (Ex.P.15) was given and the potency test was taken by the Doctor (P.W.13) and certificate (Ex.P.17) was issued. Similarly, the victim girl was also examined by Doctor (P.W.12) and her age was assessed and certificate (Ex.P.16) was given. The victim girl was also examined by the doctor (P.W.10) and it was recorded in the Accident Register (Ex.P.11) and the medical examination report and final opinion (Ex.P.12) was also given.
6. The Investigation Officer completed the investigation and filed the final report before the Special Court on 19.04.2016. The trial Court framed charges against the appellant for an offense under Section 5(m) read with Section 6 of POCSO Act. The prosecution examined witnesses P.W.1 to P.W.18 and marked exhibits Ex.P1 to Ex.P.25 and exhibited M.O.1 to M.O.3.
7. The trial Court questioned the appellant under Section 313 (1)(b) of Cr.P.C. and had put all the incriminating materials collected during the course of trial and the same was denied as f
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