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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. VELMURUGAN, J.
A. Anthony @ Anthonysamy – Appellant
Versus
The Inspector of Police, Mangalamedu Police Station – Respondent
Crl. Appeal No. 731 of 2017, Crl. M.P. No. 5262 of 2017
Decided On : 28-10-2021
Protection of Children from Sexual Offences Act, 2012 - Section 2(1)(d), 5(P),6,7 and 8 – Criminal Procedure Code,1973 – Section 161,164,313 and 428 - Sexual harassment - Learned counsel for appellant would submit that as per prosecution case, on basis of information received about sexual harassment at Students Home, members of Child Welfare Committee visited said home PW-1 lodged a complaint to respondent police - PW-1 has stated in said complaint that alleged sexual harassment said to have taken place at Home, but in statement given by PW-1, PW-2, PW-7 and PW-8, who are members of Child Welfare Committee, have not specifically stated that, when and where and from whom, so-called information was received by them - PW-28, who is investigating officer has deposed in his cross-examination that sexual harassment took place at Home, this statement is totally contradictory from statements given by PWs. 1, 2, 7 and 8 - Said contradictions have not been considered by Trial Court - Further, he would submit that PW-1 had deposed in his statement under Section 164(5) of Cr.P.C. that there was an information received from District Collector, for taking appropriate action - This statement given by PW-1 is totally contradictory when compared with his earlier statement stated in complaint and which was admitted by PW-28, who is Investigating Officer, during his cross-examination. Para 19.
Finding of the Court: A careful reading of evidence of PW-3 to PW-5 clearly proves that they are victims and they were suffered with sexual assault and they have categorically stated before Judicial Magistrate, while recording previous statement, even before trial Court while examining as witnesses and even before Doctor while conducting medical examination - As per Section 3 of the POCSO Act, inserting any object or part of the body into private part of a child would fall under penetrative sexual assault and extent of penetration is immaterial - In this case, appellant pressed his private part into anus of victims - Considering facts and circumstances of case, this Court finds that, though there are lapse on part of the prosecution and though there are delay, which may not be a ground to disbelieve case of the victims and ignoring the case of the victims, considering serious nature of offence and this Court does not find any merit and as an appellate Court is a fact finding Court, this Court has independently re-appreciated entire evidence and found that appellant/A1 has committed the offence under Section 5(P) punishable under Section 6 of POCSO Act, and this Court does not find any merit in appeal and the appeal is liable to be dismissed.
Result: Criminal Appeal is dismissed.
JUDGMENT :
P. VELMURUGAN, J.
1. This Criminal Appeal has been filed against the Judgment of conviction and sentence, dated 30.10.2017 in Spl. S.C. No. 21 of 2016 by the learned Sessions Judge (Mahila Court), Perambalur.
2. Based on the complaint given by the Child Welfare Committee, the respondent-police registered a case in Crime No. 96 of 2016 against the appellant/A1 and one another/A2 for the offences under Section 5(P) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 [hereafter referred to as ‘POCSO Act’] and Section 7 punishable under Section 8 of the POCSO Act r/w Section 17 of the POCSO Act. On completion of investigation, the respondent police filed a charge sheet before the learned Sessions Judge (Mahila Court), Perambalur. Since the offences were against the children, the learned Sessions Judge taken the charge sheet on file in Spl. S.C. No. 21 of 2016 and after completing the formalities, framed charges against the first accused/appellant herein for the offences under Section 5(P) punishable under Section 6 of POCSO Act and Section 7 punishable under Section 8 of the POCSO Act and framed charges against the second accused for the offences under Section 5(P) punishable under Section 6 of POCSO Act and Section 7 punishable under Section 8 of the POCSO Act read with Section 17 of the POCSO Act.
3. After framing of charges, in order to prove the case of prosecution, on the side of prosecution, as many as 28 witnesses were examined as PWs. 1 to 28 and 39 documents were marked as Exs.P1 to P39, besides one material object exhibited as M.O-1.
4. After completing the evidence of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused by questioning under Section 313 of Cr.P.C. the appellant denied the same as untrue and pleaded not guilty. On the side of the defence, no witness was examined, however, one document was marked as Ex.D1 Series.
5. On completion of trial, after hearing of the arguments advanced on either side and also considered the materials on record, the Trial Court found the second accused not guilty and acquitted him from all the charges framed against him, however, the Trial Court found guilty of the first accused/appellant for the offence under Section 5(P) punishable under Section 6 (4 counts) of POCSO Act, 2012 and not found guilty for the other charges framed against him. The Trial Court convicted and sentenced him to undergo ten years of Rigorous Imprisonment for each count (totally 40 years) and to pay a fine of Rs. 5,000/- for each count (totally Rs. 20,000/-) in default to undergo three years Simple Imprisonment for each count for the offence under Section 5(P) punishable under Section 6 (4 counts) of POCSO Act, 2012. However, the sentence was ordered to run concurrently and to give set off for the period of imprisonment already undergone by him as per Section 428 of Cr.P.C. Challenging the said Judgment of conviction and sentence imposed on the appellant, the present appeal is filed.
6.1. The learned counsel for the appellant would submit that as per the prosecution case, on the basis of information received about the sexual harassment at Hemar Students Home, the members of the Child Welfare Committee visited the said home on 01.02.2016 at about 2.30 p.m. and on 02.02.2016, at about 5.00 p.m. PW-1 lodged a complaint to the respondent police. PW-1 has stated in the said complaint that the alleged sexual harassment said to have taken place at Hemar Home, but in the statement given by the PW-1, PW-2, PW-7 and PW-8, who are the members of the Child Welfare Committee, have not specifically stated that, when and where and from whom, the so-called information was received by them. However, PW-28, who is the investigating officer has deposed in his cross-examination that the sexual harassment took place at Hemar Home, this statement is totally contradictory from the statements given by the
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