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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RMT. TEEKAA RAMAN, J.
Muniyapillai - Appellant
Versus
State by the Inspector of Police, All Women Police Station, kallakurichi - Respondent
Crl.A. No. 214 of 2015
Decided on : 26-10-2021
Criminal Procedural Code, 1973 - Section 374 (2), 161, 164 - Protection of Children from Sexual Offences Act, 2012 - Sections 4 and 3, 2(d), 30, 30(ii), 30(1) – Punishment for penetrative sexual assault – Appeals from conviction - Presumption of culpable mental state - Respondent police filed a charge sheet, alleging that defacto complainant, father of victim girl - Whether omission of victim before police that she had questioned him why accused is following her which she has denied in cross examination – Held, this Court is of considered view that prosecution has proved essential ingredients for offence section 3 of POCSO Act and ‘fact’ has been proved beyond reasonable doubt –found that prosecution has proved charge under Section 4 of POCSO Act beyond reasonable doubt and accused has failed to probablize suggestive case as contemplated under Section 30 (1) of POCSO Act - Accused having failed to prove that he had no such mental state for which he had been charged, Court has held that accused has failed to rebut presumption and hold that charge under Section 4 of POCSO Act against prosecution is proved in manner known to law and a similar finding rendered Session Judge is hereby confirmed and accordingly, conviction and sentence passed by trial Court appears to be just and proper and 7 years of imprisonment for above said offence cannot be termed as excessive - Criminal Appeal dismissed
JUDGMENT :
(Prayer: Petition filed under Section 374 (2) of Cr.P.C, to call for the records pertaining to the judgment rendered by the Sessions Court in S.C.No.78 of 2014 dated 28.03.2015 Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Villupuram and set aside the judgment.)
1. The convicted sole accused is the appellant herein.
2. This Criminal Appeal is filed as against the judgment rendered by the learned Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court) Villupuram in S.C.No.78 of 2014 dated 26.03.2015. The accused was convicted under Section 4 of POCSO Act 2012 and sentenced to Rigorous Imprisonment for seven years and a fine of Rs.500/- and in default of payment of fine, to undergo Rigorous Imprisonment for one month.
3. The respondent police filed a charge sheet in Crime No.19 of 2013, All Woman Police Station, Kallakurichi alleging that the defacto complainant, father of the victim girl was working as coolie at Bangalore during the occurrence time. He had left his minor victim daughter aged about 14 years at the relevant time in the custody of his mother-in-law at Thondanathal village, Sankarapuram Taluk. She was studying 8th standard in the Panchayath school. As such, on 02.06.2013 at about 2.00 p.m., while the grand parents of the victim girl went out for work, the accused herein knowing the victim was alone in the house knocked the door and asked for water. The victim opened the door and went inside to bring water for the accused. At that time, the accused came inside the house and gagged her mouth with a cloth and pushed her down and pressed her breast. When the victim tried to escape from him, he forcibly caught hold of her and committed the offence of rape upon her. Hence the father of the victim girl lodged Ex.P1 complaint before the police. After investigation, the charge sheet has been laid.
4. To prove the case of prosecution P.W.1 to P.W.15 were examined and Exhibits P1 to P11 were marked. On the defence side D.W.1 and D.W.2 were examined and no exhibits marked on the defence side.
5. On consideration of both oral and documentary evidence, the learned Special Sessions Judge (Mahila Court) has laid the conviction and sentence as stated supra and hence the appeal.
6. Heard the learned counsel for the appellant and the learned Public Prosecutor (Crl. Side) appearing for the respondent.
7. According to the learned counsel for the appellant (i) the occurrence took place on 02.06.2013 at about 2.00 P.M at the house of P.W.5 who is the grandmother of the victim girl (P.W.1). The complaint was lodged before the respondent police by the father of the victim girl namely P.W.2 on 03.06.2013. But the case was registered only on 04.06.2013. [Though it is a serious offence, the case was not registered in time and the delay was not explained by the prosecution.]
(ii) According to the appellant counsel, the occurrence took place at the house of P.W.5. But the evidence of P.W.5 says that the occurrence took place at the opposite house of P.W.5 and it belonged to one Arumugam and it was kept locked. Therefore, it creates a serious doubt regarding the place of occurrence.
(iii) The evidence of P.W.5 is that she along with her grand-daughter victim girl and her son-in-law P.W.2 settu went to the police station to lodge the complaint. But the victim girl was sent to the hospital for medical examination after a lapse of 10 days that is on 12.06.2013. This delay was not also explained by the prosecution.
(iv) According to the evidence of P.W.10, the Doctor who examined the victim girl is that the victim girl did not say that she was raped. Moreover, there is no material evidence to show that the victim girl was raped. This also creates a serious doubt over the case of the prosecution.
(v) A close reading of Sections 4 and 3 of the POSCO Act, the ingredients required for the offence has not been established in this case. The basic facts were not established. The evidence of P.W.1 is quite insufficient to record a
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