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2019 Supreme(Mad) 3079
IN THE HIGH COURT OF MADRAS
C. Saravanan, J.
Venkatesh – Appellant
Versus
State – Respondent
Crl. A. No. 708 of 2016
Decided On : 05-11-2019
Advocate Appeared:
For the Appellant :R. Ganesh Kumar, Advocate
For the Respondent:V. Saratha Devi, Govt. Advocate
Headnote:
Protection of Children from Sexual Offences Act, 2012 - Section 4 - Indian Penal Code - Section 506(ii) – Criminal Procedure Code - Section 164 - Rigorous imprisonment - Victim as compensation – First Information Report - Appellant has been sentenced to undergo years rigorous imprisonment and has been asked to pay fine and in default to undergo a further period of months rigorous imprisonment - Period under which appellant was under remand has been directed to be set off against period of imprisonment - Appellant also has been directed to pay a sum to P.W. 2 victim as compensation - Appellant was aged about years at time when Ex. P1 complaint/Ex. P11 FIR both was filed - P.W. 2 victims age was shown - Appellant and P.W. 2 are closely related - Appellant is son of P.W. 1s sister-in law - P.W. 1 is mother of victim - It is stated that both families were staying next door - P.W. 2 victim developed intimacy with appellant and had sex with him for over a period one year before date of complaint/FIR - P.W. 2 herself has deposed that she has visited beach Zoo and parks on many occasion with appellant and had sexual intercourse with appellant whenever they were alone in appellants house - Case of prosecution is that P.W. 2 had complained of stomach ace to P.W. 1 and was therefore taken Hospital Chennai for treatment - She was initially given prescription for ordinary stomach pain – Held, This court in a scholarly judgment authored by Justice V. had expressed his lament while passing an order in Criminal Appeal - In paragraph 27 he has observed - When the girl below 18 years is involved in a relationship with the teenage boy or a little over the teenage, it is always a question mark as to how such relationship could be defined though such relationship would be result of mutual innocence and biological attraction - Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes - But in such cases where age of girl even though she was capable of giving consent for relationship being mentally mature unfortunately provisions of POSCO Act get attracted if such relationship transcends beyond platonic limits attracting strong arm of law sanctioned under provisions of POSCO Act catching up with so-called offender of sexual assault warranting a severe imprisonment - While offence against children by sexual predators is on raise and society and law enforcement authorities are required to be vigilant and should strictly prosecute offenders under provisions of POSCO Act, 2012 so that such measures act as a deterrence in society yet in appropriate case like in present case prosecution should have been more circumspect in rushing to prosecute appellant particularly when there were questions raised regarding age of P.W. 2 - Court also should not lose sight of fact appellant himself was young man who was himself as mature and as immature as P.W. 2 - Appellant has also been exposed to harsh life in prison which would have unfortunately exposed him to other criminals - Appeal stands allowed
JUDGMENT :
C. Saravanan, J.
1. The present Criminal Appeal is directed against the impugned Judgment dated 22.02.2016 passed by the Sessions Judge, (Mahalir Neethimandram), Chennai in S.C. No. 106 of 2015.
2. By the impugned Judgment, the Sessions Judge has found the appellant:-
(i). Guilty for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012; and
(ii). Not guilty of charges framed under Section 506(ii) of IPC.
3. The appellant has been sentenced to undergo 10 years rigorous imprisonment and has been asked to pay fine of Rs. 5,000/- and in default to undergo a further period of 6 months rigorous imprisonment.
4. The period under which the appellant was under remand has been directed to be set off against the period of imprisonment. The appellant also has been directed to pay a sum of Rs. 10,000/- to the P.W. 2 victim as compensation.
5. The appellant was aged about 18 years at the time when Ex. P1 complaint/Ex. P11 FIR both dated 20.01.2015 was filed. P.W. 2 victim's age was shown as 15 years.
6. The appellant and the P.W. 2 are closely related. The appellant is the son of P.W. 1's sister-in law. P.W. 1 is the mother of victim. It is stated that both the families were staying next door. P.W. 2 victim developed intimacy with the appellant and had sex with him for over a period one year before the date of the complaint/FIR.
7. P.W. 2 herself has deposed that she has visited beach, Vandalur Zoo and parks on many occasion with the appellant and had sexual intercourse with the appellant when ever they were alone in the appellant's house.
8. The case of the prosecution is that P.W. 2 had complained of stomach ace to P.W. 1 and was therefore taken Vijayalakshrni Hospital, Maduravoyal, Chennai for treatment. She was initially given prescription for ordinary stomach pain.
9. Since the pain did not subside, P.W. 2 was taken to the said hospital again the following day. On scanning and screening, it was found that the P.W. 2 victim was pregnant. P.W. 2 is said to have confessed to P.W. 1 that she had sexual intercourse with the appellant. It appears that P.W. 2 took medicine to abort the foetus. This led to profused bleeding.
10. The P.W. 2 was therefore taken to the same hospital. Since P.W. 2 was found profusely bleeding and weak and anaemic, she was directed to go to the Govt. Maternity Hospital, Egmore, Chennai for further treatment.
11. P.W. 2 was admitted in the Govt. Maternity Hospital, Egmore, Chennai and was given treatment in the ICU and under procedure for abortion of the foetus.
12. Since the age of the P.W. 2 victim at the time of admission into the hospital was given as 15 years, an intimation was sent to the Inspector of Police, W8, All Women Police Station, Tirumangalam, Chennai as it involved medico legal case. This set the law in motion.
13. A formal complaint was obtained from P.W. 1 though unwillingly. The appellant was thereafter Charge Sheeted for offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Section 506(ii) of CPC which eventually culminated in conviction of the appellant for the offence under POCSO, 2012.
14. Aggrieved by the impugned order, the appellant has preferred the present appeal. In the appeal, the appellant has questioned the basis on which he has been found guilty.
15. It is stated that the victim was not a minor. It is stated that School certificate with Exhibit P2 was neither the birth certificate nor a school transfer certificate. The appellant has stated that the production of Exhibit P2 was not in accordance with law and appears to have been created for the purpose of finding the appellant guilty. It is stated that it does not bear any seal on the photograph and therefore the document was inadmissible to find the appellant guilty of the offence under section 6 of the POCSO Act, 2012.
16. I have perused the records of the cas
