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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.VELMURUGAN, J.
Arumugam - Appellant
Versus
State rep by : The Inspector of Police – Respondent
Crl.A.No.694 of 2019
Decided on : 05-03-2021
Protection of Children from Sexual Offences Act 2012 - Section 9 r/w 10 - Appeal against conviction - Discovery of the alleged sexual act - whether the delay is fatal to the case of the prosecution - Whether the said evidence can be accepted or not - Time of occurrence, appellant was at Cheranmanagram and that occurrence had taken place in the house of Kathirvelu, the prosecution having not established presence of appellant at the time of occurrence at Cheranmanagaram and at house of Kathirvelu, said infirmity is fatal to the case of prosecution - It is further contention of the learned counsel for the appellant that though victim child categorically deposed that Kathirvelu used to take victim child out and used to touch her inappropriately while playing with her, learned Judge has failed to consider same and in this backdrop, delay in filing the complaint is detrimental to case of prosecution - It is the further submission of learned counsel for appellant that identification of appellant by the victim child does not inspire confidence as she has taken varied stance in her identification during cross examination - Father and mother of victim having no idea about appellant and kids, more particularly, the brother of the victim, being elder - submitted that investigating officer has not properly investigated matter to find out real culprit and evidence of P.W.10- Doctor – Held, evidence of P.W.10, the doctor, who examined the victim coupled with accident register, Ex.P-11 issued by her relating to the sexual assault suffered by victim clearly establish that the victim had suffered sexual assault and other evidence, as pointed point the finger on the appellant as the person who has committed sexual assault - Minor discrepancies in the statement given by the victim to Magistrate vis-a-vis her evidence in court cannot be the sole ground to treat evidence as flawed as the age of victim has to be borne in mind while appreciating the evidence - It is to be pointed out that neither the victim nor her family members had any axe to grind against appellant and case of the appellant that a false case is foisted against him falls short of acceptance, as appellant has not placed any evidence to the contra to show that there existed any enmity between the appellant and the family of the victim or any of the witnesses/investigating authorities necessitating fabrication of a false case against him - Mere raising a plea that a false case is being foisted against him would not suffice, as charge is made under the POCSO Act and it is the duty of the appellant to rebut the presumption by placing necessary evidence, which the appellant has failed to furnish. In the absence of the same, the finding recorded by the court below is based on proper appreciation of evidence and the conviction does not suffer any infirmity requiring interference at the hands of this Court - Appeal is dismissed
JUDGMENT :
This Criminal Appeal has been filed challenging the conviction and sentence passed in Spl.C.C.No.2 of 2017 dated 28.12.2017 on the file of the learned Sessions Judge, Magalir Court, [Magalir Fast Track Court], Coimbatore.
2. The respondent police registered a case in Crime No.8 of 2015 against the appellant for the offences punishable under Section 9 r/w 10 of Protection of Children from Sexual Offences Act 2012 (in short 'POCSO Act'). After investigation, charge sheet was laid and taken on file before the Sessions Judge, Magalir Court, [Magalir Fast Track Court], Coimbatore.
3. After completing the formalities, the learned Judge framed the charge against the appellant for the offences punishable under Sections 9(m) r/w 10 of POCSO Act.
4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the Special Court found the appellant guilty of the offence under Section 9 of the POCSO Act which is punishable under Section 10 of POCSO Act, 2012 and convicted and sentenced the appellant to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,500/-, in default, to undergo one month rigorous imprisonment. Aggrieved by the said conviction and sentence, the appellant is before this Court by filing this Appeal.
5. The learned counsel for the appellant would submit that the occurrence is said to have taken place on 21.03.2015 but the complaint had been lodged belatedly only on 25.03.2015 and the said delay in filing the complaint has not been properly explained, which shows that a false case has been foisted against the appellant. He would further submit that though it is the case of the prosecution that at the time of occurrence, the appellant was at Cheranmanagram and that the occurrence had taken place in the house of Kathirvelu, the prosecution having not established the presence of the appellant at the time of occurrence at Cheranmanagaram and at the house of Kathirvelu, the said infirmity is fatal to the case of the prosecution. It is the further contention of the learned counsel for the appellant that though the victim child categorically deposed that Kathirvelu used to take the victim child out and used to touch her inappropriately while playing with her, however, the learned Judge has failed to consider the same and in this backdrop, the delay in filing the complaint is detrimental to the case of the prosecution. It is the further submission of the learned counsel for the appellant that the identification of the appellant by the victim child does not inspire the confidence as she has taken varied stance in her identification during cross examination. Further, the father and mother of the victim having no idea about the appellant and the kids, more particularly, the brother of the victim, being elder, who is said to have been playing along with her at the time of occurrence having not been examined, the theory projected by the prosecution does not deserve acceptance. Further, it is submitted that the investigating officer has not properly investigated the matter to find out the real culprit and the evidence of P.W.10- Doctor, relating to non-existence of any external injury and further the victim having not disclosed the name of the appellant clearly show that the implication of the appellant is by chance without there being any material to connect him with the said offence.
6. It is further submission of the learned counsel for the appellant that there is no corroborating material to the evidence of the victim girl as to the presence of the appellant at the time of occurrence and taking into account the age of the victim at the time of occurrence, relying on her evidence to find the appellant guilty is wholly unsustainable. The learned trial Judge has failed to consider that the prosecution has not established its case beyond reasonable doubt and the victim girl being aged only about 3 years basing conviction on her i
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