Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 161

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. Velmurugan, J.
State represented by the Inspector of Police, All Women Police Station, The Nilgiris Disitrict – Petitioner
Versus
Dinesh – Respondents
Criminal Appeal No. 41 of 2021
Decided On : 12-03-2021

Advocates:
Advocate Appeared:
For the Petitioner:K. Madhan, Government Advocate (Crl.Side).
For the Respondent: M/s. A. Veeramarthini, Legal Aid Counsel.

Point of Law : POCSO Act – Sexual abuse of child – Acquittal under - eye witnesses have clearly stated that the respondent lifted the victim child and bite her cheek and lips. – Though the medical evidence does not shown anything about bite mark, it is settled proposition of law that the ocular evidence has to prevail over the medical evidence – Acquittal set aside

Headnote:
Criminal Procedure Code, 1973 – Sections 164, 378 – Protection of Children from Sexual Offences Act, 2012 – Sections 9, 10 – Penal Code, 1860 – Section 506 – Judgment of Acquittal – Appellant/police registered the case against the respondent in Crime for the offence under Section 9(m) read with 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as POCSO Act) and Section 506(i) of IPC. – After the investigation, they laid the charge sheet against the respondent before the Sessions Judge, Mahila Court, Udhagamandalam since the offence against the Women especially minor child falls under the POCSO Act. – Special Judge had taken the charge sheet on file in Spl.C.C. and framed the charge against the respondent/accused
Findings of Court : Appellate Court will not interfere with the decision of the Trial Court and will not interfere with the judgment of acquittal, unless the appreciation of evidence is perverse. – If there are two views are possible, the Appellate Court cannot take one of the other views and convict the respondent/accused. – But, however in this case, no other view is possible since the victim child has clearly stated more than once, before the mother, also before the Magistrate and subsequently deposed before the Court during the trial. – The brother of the victim child was also present at the time of occurrence. – He also corroborated her evidence. – Moreover, one neighbour P.W.8 has also clearly corroborated the evidence of P.W.2 victim child. – Further, he has stated that soon after the occurrence when the respondent was with the victim, the mother of the victim also reached the place of occurrence. – P.W. 8 also stated that when she tried to approach the respondent, at that time, the mother of the victim child also almost reached the place and therefore, the respondent stopped and the mother has also stated that when she approached her daughter she was crying and when questioned, he has stated that simply she is crying and stated that he has not done anything. – The mother of the victim child tried to pacify her daughter. – Since the victim child was still crying, after the respondent left the place she enquired why still she is crying. – She stated that the respondent lifted the victim child, bite her cheek and mouth. – Her son also narrated the same as stated by the victim child P.W.1. Court finds that the prosecution has clearly substantiated the charge framed against the respondent for the offence under section 9(m) r/w.10 of the POCSO Act and the Trial Court failed to appreciate the evidence and ignored the object of the Act for which it was enacted and simply acquitted the respondent/accused on the ground of immaterial contradictions and discrepancies. – The eye witnesses have clearly stated that the respondent lifted the victim child and bite her cheek and lips. – Though the medical evidence does not shown anything about bite mark, it is settled proposition of law that the ocular evidence has to prevail over the medical evidence. – Therefore the finding recorded by the Trial Court is perverse and liable to be set aside, and is accordingly set aside. – However, there is no evidence to convict the respondent for the offence under section 506(i) of IPC. – Court finds that the prosecution has clearly substantiated the charge framed against the respondent for the offence under section 9(m) r/w.10 of the POCSO Act and the Trial Court failed to appreciate the evidence and ignored the object of the Act for which it was enacted and simply acquitted the respondent/accused on the ground of immaterial contradictions and discrepancies. – The eye witnesses have clearly stated that the respondent lifted the victim child and bite her cheek and lips. – Though the medical evidence does not shown anything about bite mark, it is settled proposition of law that the ocular evidence has to prevail over the medical evidence. – Therefore the finding recorded by the Trial Court is perverse and liable to be set aside, and is accordingly set aside. – However, there is no evidence to convict the respondent for the offence under section 506(i) of IPC.
Result: Criminal Appeal Partly Allowed

Judgement Key Points

Case Summary: State v. Dinesh (Criminal Appeal No. 41 of 2021, Madras High Court)

Parties and Background

Petitioner: State (Inspector of Police, All Women Police Station, The Nilgiris).
Respondent: Dinesh (accused).
Case originated from Crime No. 1 of 2018 under Section 9(m) r/w Section 10 of POCSO Act, 2012, and Section 506(i) IPC. Charge sheet filed before Special Judge (Mahila Court, Udhagamandalam). Trial court (Spl.C.C. No. 6 of 2018) acquitted accused on 18.12.2019.[21001377460001][21001377460002] (!)

Key Facts

Victim (female child, aged ~7-9 years as per birth certificate Ex.P10 dated 04.09.2010; incident on 17.04.2018 or 15.04.2018) lived with grandmother; parents were coolies at work spot.[21001377460003][21001377460007][21001377460009]
Grandmother hospitalized; mother and aunt attended in turns, leaving victim and brother (aged ~9) alone at home.[21001377460003] (!)
Accused (neighbor) entered house, lifted victim, bit her cheek and lips, causing her to cry. Brother intervened; mother arrived soon after, noticed crying but accused claimed innocent play and fled.[21001377460003][21001377460007] (!) (!)
Victim disclosed biting to mother; brother corroborated. They visited accused's home (he absconded); complaint lodged next day.[21001377460003]
Victim's statement under Section 164 Cr.P.C. (Ex.P2) consistent with trial testimony.[21001377460004][21001377460009]

Prosecution Evidence

PW1 (Mother/Complainant): Narrated sequence; victim crying post-incident, disclosure of biting. (!) [21001377460011]
PW2 (Victim): Detailed accused lifting her twice, biting cheek/lips while she hid; cried out; brother and mother intervened. (!)
PW3 (Brother): Eyewitness; saw biting on cheek/lips, pulled accused. (!) (!) [21001377460009]
PW8 (Neighbor): Eyewitness; saw accused with victim (~5:30 PM), heard cries ("leave me"), biting on mouth; mother arrived as she approached. (!) [21001377460011]
18 witnesses (PW1-PW18), 15 documents (Ex.P1-P15); no defense evidence.[21001377460002]
Medical exam: No bite marks or penetration noted, but force of bite varies. (!)

Trial Court Findings (Acquittal)

Relied on lack of independent witnesses (beyond family), no bite marks/injuries, immaterial contradictions (e.g., family living arrangements), doctor's evidence.[21001377460004][21001377460005]

Appellate Court Analysis and Findings (P. Velmurugan, J.)

Standard of Review: Appellate court interferes with acquittal only if perverse or no reasonable alternative view possible. Here, only one view: guilt under POCSO.[21001377460006][21001377460011]
Reliability of Evidence:
Consistent victim statements (to mother, Magistrate under S.164 Cr.P.C., trial); corroborated by brother (PW3), neighbor (PW8). (!) (!) [21001377460009][21001377460011]
Ocular (eyewitness) evidence prevails over medical (no bite marks immaterial; depends on force; mere touching with sexual intent suffices under S.9(m) POCSO). (!) (!) [21001377460012]
Sexual Intent: Lifting/biting child (under 12) in absence of adults constitutes offense under S.9(m) r/w S.10 POCSO; no need for injury proof. (!) [21001377460008]
Rejects Defense: No false motive; accused's "play" claim implausible given crying/disclosure; absconding noted.[21001377460005][21001377460009]
No Conviction under IPC S.506(i): Insufficient evidence.[21001377460012]
Trial court erred: Ignored POCSO object (child protection), over-relied on discrepancies/doctor, perversely discarded eyewitnesses.[21001377460010][21001377460012]

Result

Appeal partly allowed: Acquittal set aside for POCSO offense; accused convicted under S.9(m) r/w S.10; directed to appear for sentencing (17.03.2021).[21001377460012][21001377460013]
No other case citations used or needed per query.

JUDGMENT :

(Prayer: Criminal Appeal filed under Sections 378 (i) of Criminal Procedure Code, to allow the appeal and set aside the judgment of acquittal of the respondent/respondent in Spl.C.C.No.6 of 2018 dated 18.12.2019 by the learned Sessions Judge of Magalir Neethimandram (FTMD), Udhagamandalam at Nilgiris and convict the respondent/respondent for the charges framed against him.)

1. This Criminal Appeal has been filed against the Judgment dated 18.12.2019 in Spl.C.C.No.6 of 2018 on the file of the Sessions Judge of Magalir Neethimandram (FTMD), Udhagamandalam at Nilgiris.

2. The Appellant/police registered the case against the respondent in Crime No.1 of 2018 for the offence under Section 9(m) read with 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as POCSO Act) and Section 506(i) of IPC. After the investigation, they laid the charge sheet against the respondent before the Sessions Judge, Mahila Court, Udhagamandalam since the offence against the Women especially minor child falls under the POCSO Act. The learned Special Judge had taken the charge sheet on file in Spl.C.C.No.6 of 2018 and framed the charge against the respondent/accused.

3. On the side of the prosecution, in order to prove the charges as many as 18 witnesses were examined as P.W.1 to P.W.18 and 15 documents were marked as Exs.P1 to P15. No material object was exhibited. On the side of defence, no witness was examined. No document was marked. After completing the examination of prosecution witnesses, incriminating circumstances were culled out from the evidence of the prosecution witnesses. However, the appellant denied all the allegations as false. After trial and hearing the arguments, the Trial Judge acquitted the respondent by holding that the prosecution has failed to prove the charges beyond reasonable doubt. Now, challenging the said judgment of acquittal, the State has filed the present appeal before this Court.

4. The learned Government Advocate (Criminal Side) would submit that the victim child was 7 years old and the parents of the victim child are coolie workers and they were residing in the work spot. The victim child, along with her brother, was staying in their grandmother’s house. The victim child was studying in Shri Shanthi Vijay Girls Higher Secondary School, Ooty and only during the vacation holidays they go to their parents house. The grandmother of the victim child was not feeling well. She was admitted in the hospital and the mother of the victim child and the sister of the mother of the victim child were taking care of their mother in the hospital in turn basis. At that time, the victim child and her brother were alone in the grandmother’s house and nobody was there. At that time, the respondent/accused lifted the victim child and bite her cheek and also lips which made the victim child to cry. The brother of the victim child also pulled the hands of the respondent/accused and asked him to leave his sister, at that time, mother of the victim child came from the hospital to the house. She saw the victim child with the respondent and asked him why the victim child is crying. He stated that he came there simply to play with the victim child and left the place. Since, the victim child was still crying, her mother asked her why she is crying even though the respondent had left her. The victim child informed that the respondent had bitten her on cheek and lips. The mother also enquired her son and thereafter they went to the house of the respondent and at that time the respondent was not there. Thereafter, the wife of the respondent told that if he comes she will retain him. Next day, when the P.W.1 went to his house, he could not be found; again and again though she went to his house 2 or 3 times, he was not in his house. Thereafter, they have approached police and lodged a complaint.

5. There was no eye witness except P.Ws. 2 and 3, who are the victim child and her brother. Specific case of the prosecutio

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