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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. VELMURUGAN, J.
Sasikaumar - Appellant
Versus
State, Rep. by Inspector of Police, Bhavanisagar Police Station (Investigated by All Women Police Station, Sathyamangalam), Erode District - Respondent
Crl.A. No. 761 of 2019
Decided On : 16-04-2021
Criminal Procedure Code, 1973 - Section 374(2) – Indian Penal Code, 1860 - Sections 294(b), 323, 506(ii) , 235(i) - Protection of Children from Sexual Offences Act, 2012 - Section 11(i)(iv) - Sexual Intention - Misbehave With Victim Child - Appeal Against Conviction - Appellant followed victim child regularly - Father of victim child warned Appellant and subsequently, he took victim child and kept her in a relative house to prevent Appellant from meeting her - Appellant and another Accused came in an Omni Van and made victim child to accompany them by pulling her hand and by saying “we will go and marry”- When she made an alarm, at that time, father of victim girl scolded Appellant - Thereafter, Appellant shouted towards father of victim girl, slapped him on his cheeks - Neighbours gathered there, Appellant and other Accused escaped from that place – Held, As already stated that in Complaint also, there is nothing mentioned about sexual harassment made by Appellant - Since victim girl also fell in love with Appellant, parents of victim child warned Appellant and Appellant called victim girl only to chat - Therefore, by exaggerating such incident, father of victim child gave a false Complaint against Appellant for reasons best known to him - This Court does not find that Appellant, with sexual intention misbehaved with victim girl - On seeing Ex.D1/Photo, there is no doubt in minds of this Court that Appellant did not misbehave with victim child - Therefore, this Court extending benefit of doubt and finds that prosecution failed to prove its case beyond reasonable doubt - Prosecution has not proved offence of sexual assault or aggravated sexual assault committed by Appellant - Under compulsion of father/PW1, she made such statement against Appellant - Therefore, in the absence of evidence to prove that Appellant with sexual intention misbehaved with victim child, conviction of Appellant under POCSO Act cannot be sustained - Appeal allowed.
JUDGMENT :
Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, to set aside the Conviction and Sentence, dated 22.10.2019 in Spl.S.C. No.18 of 2018, passed by the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Erode.
1. This Criminal Appeal has been filed against the Conviction and Sentence imposed on the Appellant vide Judgment, dated 22.10.2019 in Spl.S.C. No.18 of 2018, passed by the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Erode.
2. The Respondent-Police registered a case in Crime No.95 of 2018 against the Appellant and yet another Accused for the offence under Sections 294(b), 323 & 506(ii) of I.P.C., and laid the Charge-sheet before the learned Sessions Judge, Magalir Neethi Mandram (Fast Tract Mahila Court), Erode.
3. The Sessions Court has considered the capitalized of the offence in the Charge-sheet, and the case was taken on file in Spl.S.C. No.18 of 2018. Charges were framed against the Appellant for the offence under Section 11(i)(iv) of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act) & 294(b), 323 & 506(ii) of I.P.C.
4. After framing Charge, in order to prove the case, during the trial, prosecution has examined as many as 14 Witnesses as PW1 to PW14, 16 documents were marked as Ex.P1 to Ex.P16. Besides, Material Objects have been exhibited as MO1 to MO3. On the side of the defence, one Witness was examined as DW1 and 4 Documents were marked as Ex.D1 to Ex.D4.
5. After completion of examination on the prosecution side Witnesses, incriminating circumstances culled out from the evidences of the prosecution were put before to the Accused persons. They denied the same as false.
6. After completing trial and hearing of the arguments on either side, the Special Court acquitted the Second Accused/A2 for the offence under Sections 235(i) & 506(ii) of IPC., and convicted the Appellant/A-1 for the offence under Sections 294(b), 323 & 506(ii) of IPC., and for the offence under Section 11(i) of POCSO Act, sentenced him to undergo 3 years' Rigorous Imprisonment and to pay fine of Rs.1,000 in default of payment of Fine, to undergo further 3 months' Simple Imprisonment. Challenging the said Conviction and Sentence, First Accused/Appellant filed the present Appeal before this Court.
7. The learned Counsel for the Appellant would submit that there was a love affair between the Appellant and the victim girl. The victim girl was taken by her father to prevent the Appellant from meeting her. The Complaint was originally given by the father of the victim only for the offence under Sections 294(b), 323 & 506(ii) of IPC., subsequently they altered it into one of Sections 294(b), 323 & 506(ii) of IPC., along with Section 11(i) & (iv) of POCSO Act. The Complaint does not reveal anything about the offence under POCSO Act, however, in order to threaten the Appellant and to segregate the victim child from the Appellant's love affair, the father of the victim girl coerced and threatened the victim to give false statement against the Appellant. According to the Appellant, there is no offence made out under the POCSO Act and he was falsely implicated in this case. The Trial Judge failed to appreciate the evidence of PW1 and also the allegations in Ex.P1/original Complaint given by the father of the victim girl. Though the Court disbelieved the prosecution case for the offence under Sections 294(b), 323 & 506(ii), I.P.C., however, wrongly convicted the Appellant for the offence under Section 11(i) & (iv) of POCSO Act. Even in the Complaint under Ex.P1, he has not stated anything about the ingredients of the said Act. In any event the statement given by the victim girl before the Judicial Magistrate was not considered by the Trial Judge. The Appellant expressed his willingness to marry the victim girl. The Witness DW.1, who is the uncle of the Second Accused, clearly deposed that the Appellant and the Second Accused has not committed any o
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