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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. VELMURUGAN, J.
Mani - Appellant
Versus
State, Represented by Inspector of Police, W13 – All Women Police Station - Respondent
Crl. A. No. 195 of 2020 and Crl. M.P. No. 3522 of 2020
Decided On : 05-03-2021
Prevention of Children from Sexual Offences Act, 2012 - Sections 2(1)(d), 5(l) and 6 - Criminal Procedure Code, 1973 - Section 164(5) - Appeal against conviction - Sexual intercourse - Appellant is husband of sister-in-law of mother of victim child. victim child was staying in appellant's house and studying 10th Std. at time of occurrence. victim child was going to school from house of appellant. During night hours, victim child, appellant and his wife used to sleep in same room and victim child would sleep at centre between appellant and his wife. At that time, appellant used to put his hands and legs on her. victim child did not take it serious, and taking advantage of that, appellant had sexual intercourse with victim child on several occasions, and due to that, victim child became pregnant and gave birth to a female baby - Held, During night hours, the appellant had committed repeated penetrative sexual assault on the victim child, and due to that, victim child, who is aged about only 15 years, became pregnant, and subsequently, gave birth to a female baby. The DNA Test Report and evidence of P.W.5 clearly shows that appellant is biological father of infant baby who was born to victim child. As per copy of Birth Certificate, Date of Birth of the victim child was 29.04.2000 and the date of delivery of female baby by victim child is 03.07.2016. Therefore, age of victim child is only 15 years. Therefore, victim is a child under the definition of Section 2(1)(d) of POCSO Act and since appellant has committed aggravated penetrative sexual assault on the victim child, he has committed offence under Section 5 of POCSO Act, which is punishable under Section 6 of the POCSO Act - Appeal dismissed
JUDGMENT :
This Criminal Appeal has been filed against the judgment of conviction and sentence, dated 23.04.2019, passed in S.C.No.306 of 2017 on the file of the Special Court for cases under POCSO Act, 2012/Mahila Court, Chennai – 600 104.
2. The respondent police registered a case against the appellant in Crime No.8 of 2016 for the offence punishable under Section 6 of the Prevention of Children from Sexual Offences Act, 2012 (“POCSO Act” for brevity). After the investigation, the respondent police laid a charge sheet before the Special Court for cases under POCSO Act, 2012/Mahila Court, Chennai. The learned Special Judge had taken the charge sheet on file in S.C.No.306 of 2017. After completing the formalities, the Special Judge framed a charge against the appellant for the offence punishable under Section 6 of the POCSO Act. After completing the trial and hearing the arguments advanced on either side, the Special Judge considered the materials and found the appellant guilty of the offence under Section 6 of the POCSO Act and convicted him and sentenced to undergo 10 years Rigorous Imprisonment with a fine of Rs.50,000/-, in default, to undergo further one year Rigorous Imprisonment.
3. Challenging the said judgment of conviction and sentence, the accused/appellant has filed the present appeal before this Court.
4. The learned counsel appearing on behalf of the appellant would submit that there is enormous delay in filing the complaint and the prosecution has not given any explanation for the delay and the unexplained delay is fatal to the case of the prosecution. The FIR was registered at the instance of the de facto complainant on 03.07.2016. The statement of the victim child (P.W.1) under Section 164 Cr.P.C., which was marked as Ex.P1, was recorded on 13.07.2016, i.e., after a lapse of 10 days and the said delay has neither been properly explained by the complainant (P.W.2) nor by the Investigating Officer. Surprisingly, even the Magistrate who recorded the statement under Section 164(5) Cr.P.C. did not pose any question to the victim child (P.W.1) about the delay in making the statement. The Judicial Magistrate, who recorded the statement under Section 164(5) Cr.P.C. from the victim child, was not examined as witness before the trial Court. Therefore, there is every possibility of foisting a false case against the appellant.
5. The learned counsel appearing on behalf of the appellant would further submit that the evidence deposed by the victim child (P.W.1) suffers from material contradictions and discrepancies, and the same is highly improbable. On 13.07.2016, the victim child (P.W.1) had stated in her statement recorded under Section 164 Cr.P.C. that, on one day, the appellant had sexual intercourse with her while she was sleeping. Later, while tendering the evidence before the trial Court, the victim child (P.W.1) had deposed that she was subjected to sexual intercourse several times by the appellant. The victim child had never stated anywhere in her statement under Section 164 Cr.P.C. that she was subjected to sexual assault several times and this amounts to material contradiction. The evidence of the victim child (P.W.1) before the trial Court that she was subjected to sexual intercourse on several occasions, amounts to improvement and no explanation was offered by the victim child (P.W.1) for omitting to state the same before the Magistrate while recording the statement under Section 164 Cr.P.C. During the cross-examination, the victim child (P.W.1) stated that it was the police who informed her that the appellant was the reason for her pregnancy.
6. The learned counsel appearing on behalf of the appellant would further submit that the evidence of the victim child (P.W.1) and the mother of the victim child (P.W.2) suffer from improbability, which raises serious doubt in their evidence. The victim child (P.W.1), who was aged about 15 years during the time of alleged occurrence, would have been intelligent enough to diffe
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