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2021 Supreme(Mad) 2605
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, R. HEMALATHA, JJ.
Venkatesh – Appellant
Versus
State rep by the Inspector of Police, Salem Town All Women Police Station, Salem – Respondent
Crl.A. No. 314 of 2021
Decided On : 21-12-2021
For the Appellant :V. Parthiban, Advocate.
For the Respondent: M. Babu Muthumeeran, Additional Public Prosecutor.
Headnote:
Criminal Procedure Code, 1973 - Section 374 (2) - Criminal Appeal - POCSO Act, 2012 - Section 4 r/w. 3 - Appeal against judgment and order, convicted appellant for offence under Section 4 r/w. 3 of POCSO Act and sentenced to undergo life imprisonment and pay a fine of Rs.50,000/- in default, to undergo simple imprisonment for one year - Appellant contended as per age certificate of victim, she was aged between 16 - 18 years on date of alleged occurrence and that the sexual act was with consent of victim and does not fall under purview of POCSO Act - Public Prosecutor contended as per school records victim was aged 15 years on date of occurrence - He also pointed out that all witnesses were cross examined after a lapse of 1½ to 3 years and victim being 15 years old, POCSO Act would definitely apply – Held, very objective of POCSO Act was to protect children from slew of sexual offences and introducing child friendly judicial mechanisms for dealing with such offences - Despite existence of such comprehensive laws scale of such abuse is staggering and as per a survey conducted in year 2017 by World Vision India, one in every two children is a victim of sexual abuse in India and in majority of cases, perpetrators are known to victim leading to reluctance on victim’s part to seek redressal - Appellant, in all his fairness, did not make any attempt to take advantage of mass denial in cross examination by key prosecution witnesses - However, his argument centered around theory that it was an act of consensual sex and pleaded for reduction of sentence - In order to add credibility to this argument, he went further to dispute age of victim by claiming her age as wrong - Criminal cases under POCSO Act cannot be treated at par with other Acts because flagship feature of POCSO Act 2012 is mandatory reporting obligation imposed under Section 19 of Act and failure to make any reporting would result in punishment under Section 21(1) of Act - While prosecution has proved commission of offence by appellant under Provisions of POCSO Act, mass denial due to selective amnesia is viewed as a mitigating circumstance to reduce sentence awarded by trial court from Life Imprisonment to Rigorous Imprisonment for 10 years and a fine of Rs.50,000/-, in default to pay fine amount, Simple Imprisonment for one year - However, the accused is not entitled for any remission benefits - Criminal Appeal is partly allowed.
JUDGMENT :
(Prayer: Criminal Appeal filed under Section 374 (2) of Criminal Procedure Code, 1973 praying to set aside the conviction and sentence passed by the learned Sessions Judge, Special Court for exclusive trial of cases under POCSO Act, Salem, in Special S.C. No.40 of 2016 and in New S.C. No.22 of 2019 dated 28.01.2020.)
R. Hemalatha, J.
1. The appeal is against the judgment and order dated 28.01.2020 of the learned Sessions Judge in Special S.C.No.22 of 2019 wherein the appellant was convicted for the offence under Section 4 r/w. 3 of POCSO Act and sentenced to undergo life imprisonment and pay a fine of Rs.50,000/- in default, to undergo simple imprisonment for one year.
2. The case of the prosecution in nutshell is as follows:
i. The defacto complainant Selvaraj (P.W.1), a resident of Muniappankovil Kadu, Pudur Agraharam, Salem, is a daily wager. His wife died on account of ill-health. The victim girl (P.W.2) aged 15 years studied up to IX standard in Government Higher Secondary School, Neikarapatti, Salem. She did not continue her studies and was at home.
ii. The appellant Venkatesh, was a friend of victim’s brothers Vignesh, Boopalan and Manikandan (P.W.5). He was also residing in the same locality and he frequently visited the house of the victim.
iii. On 25.03.2016 at about 08.00 p.m., when the victim (P.W.2) was alone at home, the appellant came over there and gagged her mouth with the dupatta worn by the victim. He also tied both her hands with a rope and carried her upstairs to the terrace and raped her.
iv. When her father Selvaraj (P.W.1) returned from work he found her daughter missing at home and started searching for her. When the victim got down from the terrace, according to P.W.1, her hair was dishevelled and she was upset. On further enquiry through the neighbours, Thangaponnu (P.W.3) and Geetha (P.W.4), it was revealed that the appellant had all of a sudden gagged her mouth with dupatta and tied her hands with a rope and carried her to the terrace and molested her before having forcible sex with her.
v. It was also as per the depositions of P.W3 and P.W4 that the appellant used to stalk the victim girl and there were earlier occasions when he misbehaved with her talking inappropriately and was reprimanded by both P.W.3 and P.W.4.
vi. When the appellant was confronted by the father of the victim, the appellant threatened and verbally abused him. Subsequently, P.W.1 along with his son Manikandan (P.W.5), Srinivasan (P.W.6), Sengodan (P.W.7), Murugan (P.W.8) and the victim (P.W.2) went to All Women Police Station, Salem Town, on 26.03.2016 and gave a statement (Ex.P1) before Tmt. Saraswathi (P.W.13), Sub Inspector of Police, All Women Police Station, Salem Town. Tmt.Saraswathi reduced the statement of P.W.1 into writing (Ex.P1) and registered FIR (Ex.P15) in Crime No.4 of 2016 against the accused for the offence under Section 8 r/w. 7 of POCSO Act 2012. She then sent the victim to Mohan Kumaramangalam Government Hospital, Salem, for treatment.
vii. Tmt. Sahida (P.W.14), Inspector of Police, All Women Police Station, Salem, took up investigation and sent the victim to the Protection Home for girls. She then went to the scene of offence and prepared an Observation Mahazar (Ex.P3) and a rough sketch (Ex.P16) in the presence of the witnessess Srinivasan (P.W.6) and A.Ashokan (not examined). P.W.14 then arrested the accused on 27.03.2016 behind the Government Hospital, Salem, and recorded his police confessional statement in the presence of the witnesses Sengodan (P.W.7) and Murugan (P.W.8) and then produced the accused before the concerned court for judicial custody.
viii. Dr.R.Sangeetha (P.W.11) examined the victim on 28.03.2016 and certified (Ex.P11) that her age is about 16-18 years. Dr.Priyadharshini (P.W.12) physically examined her on 26.03.2016. She did not find any external injuries on the genitals, lips, cheeks and mammary. The reports on the investigation of sexual offence is marked as (Ex.P12) and (Ex.P13).
