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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. VELMURUGAN, J.
Premkumar - Appellant
Versus
State Represented by the Inspector of Police, All Women Police Station, Mayiladuthurai - Respondent
Crl.A. No. 267 of 2021 & Crl.M.P. No. 5932 of 2021
Decided on : 25-10-2021
Code of Criminal Procedure, 1973 - Section 374(2), 313 and 164 - Protection of Children from Sexual Offences Act, 2012 - Sections 9(f),(m),(l),(p), 10 and 29 – Indian Penal Code, 1860 - Section 506(i) - Child - Sexual Offence – Appeal Against Conviction - Appellant/accused, who was working as Teacher with sexual intention took victim child, who was studying 4th Standard in same School, to lane situated in between School building, pinched and sucked her breasts and hugged her - Accused lured victim child to same place and repeated sexual offence - He further criminally intimidated victim child not to reveal to anyone, if she disclose, he would kill her - Since victim child refused to go to school, P.W.1 her mother enquired and on enquiry, victim child narrated offence committed by appellant – Held, In present case on hand, there is no eye witness except victim child, who was 10 years at time of occurrence and while recording statement under Section 164 of Cr.P.C. and when prosecution cross examine victim child, she has clearly spoken about incidents and manner in which offence committed by appellant, which is cogent, consistent and natural and hence this Court does not finds any reason to disbelieve or discord evidence of victim child - Even though, victim and other witnesses turned hostile, victim, during cross examination by prosecution has clearly stated that accused has committed sexual assault - On reading of entire materials, this Court is of view that prosecution has proved its case beyond all reasonable doubt - Learned trial Judge has rightly appreciated evidence of prosecution witnesses in a right perspective and convicted appellant accordingly, in which this Court does not find any perversity - This Court come to conclusion that there is no merit in appeal and there is no sound reason to interfere with judgment of conviction and sentence - Appeal dismissed.
JUDGMENT :
(Prayer: The Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure seeking to set aside the judgment passed against the appellant on 29.03.2021 in Spl.S.C.No.07 of 2020 on the file of the Special Court under POCSO Act, Nagapattinam and acquit him for all the charges.)
1. This criminal appeal has been filed against the judgment of conviction dated 29.03.2021 passed in Spl.S.C.No.07 of 2020 by the learned Sessions Judge, the Special Court under POCSO Act, Nagapattinam.
2 The respondent police registered a case in Cr.No.10 of 2019 against the appellant for the offence under Sections 9(f),(m),(l),(p) of Protection of Children from Sexual Offences Act, 2012 (in short “the POCSO Act) and 506(i) of IPC. After completing investigation, the respondent police laid a charge sheet before the learned Sessions Judge, Special Court under POCSO Act, Nagapattinam, which was taken on file in Spl.S.C.No.07 of 2020. The learned Sessions Judge after hearing both the accused and the prosecution and after perusing the records, since there is prima facie case, framed charges against the appellant/accused for the offence under Section 9(f), (m), (l), (p) of the POCSO Act and Section 506(i) of IPC.
3. Before the trial Court, in order to substantiate the charges, prosecution has examined as many as 11 witnesses as P.Ws.1 to 11 and Exs.P1 to P17, besides one material object was marked by the Court as C.M.O.1. After completing examination of prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses were put before the accused by questioning under Section 313 Cr.P.C., he denied the same as false and pleaded not guilty. On the side of the defence, no one was examined and no document was marked.
4. The learned Sessions Judge, on completion of trial and hearing arguments advanced on either side, by judgment dated 29.03.2021 convicted the appellant/accused and sentenced him to undergo rigorous imprisonment for a period of seven years with fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of one year for the offence under Section 9(f),(m),(l),(p) punishable under Section 10 of the POCSO Act and sentenced to undergo rigorous imprisonment for a period of two years for the offence under Section 506(i) of IPC and ordered the sentence to run consequently. Aggrieved against the said judgment of conviction and sentence, the accused has preferred this criminal appeal.
5. The learned counsel appearing for the appellant/accused would submit that even though the alleged occurrence is said to have taken place on 04.11.2019, the complaint was lodged only on 08.11.2019. Prosecution has not explained the inordinate delay in filing the complaint and the same is fatal to the case of the prosecution. Both the victim girl P.W.2 and her mother P.W.1 have not stated any specific dates while recording statement under Section 164 of Cr.P.C. There is no independent witness to corroborate the alleged occurrence as projected by the prosecution. Further medical evidence also does not support the case of the prosecution.
5.1. The learned counsel further vehemently contended that all the witnesses examined on the side of the prosecution have turned hostile and not supported the case of the prosecution. The trial Court erred in not appreciating the fact that the prosecution has miserably failed to prove the allegation of the sexual assault on the victim child. It is settled proposition of law that prosecution should prove its case beyond all reasonable doubts and there is presumption under Section 29 of POCSO Act, which is rebuttable. If prosecution proved its case beyond all reasonable doubt then only the accused has to rebut the presumption by preponderance of probabilities. In this case, prosecution has failed to prove its case beyond all reasonable doubts and therefore there is no presumption would arise.
5.2. The learned counsel vehemently contended that the victim and her mother have c
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