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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Sudhakar – Appellant
Versus
State Rep. by the Inspector of Police, All Women Police Station, Ariyalur – Respondent
Crl. Appeal No. 575 of 2017
Decided On : 15-11-2022
POCSO Act - Aggravated penetrative sexual assault - Section 366 IPC, Section 506(i) IPC, Section 6 of POCSO Act - The court modified the conviction under Section 5(m) r/w 6 of the POCSO Act to Section 9(m) r/w 10 of POCSO Act. The accused was sentenced to undergo 7 years RI and to pay a fine of Rs. 10,000/- in default to undergo 2 years SI. The period of sentenced shall run concurrently.
Fact of the Case:
The victim girl child was taken to a grove by the accused, where he removed her skirt and undergarment and rubbed his private part on her private part. The accused was convicted under Sections 366 IPC, 506(i) IPC, and Section 6 of the POCSO Act.
Finding of the Court:
The trial Court concluded that the version of the victim child was well supported by corroborating evidence. The court also found that there was no delay in reporting the crime and that the evidence of the victim child stood un-impeached and was natural and genuine.
Issues: The main issues were the delay in lodging/registering the complaint, the lack of corroboration in the victim's evidence, and the sufficiency of evidence to convict the accused for the offence of aggravated penetrative sexual assault.
Ratio Decidendi: The court found that the delay in registering the FIR did not cause prejudice to the accused and that the evidence of the victim child stood un-impeached. The court also held that the accused's actions constituted sexual assault under Section 7 of the POCSO Act, rather than aggravated penetrative sexual assault under Section 5(m) r/w Section 6 of the POCSO Act.
Final Decision: The court modified the conviction under Section 5(m) r/w 6 of the POCSO Act to Section 9(m) r/w 10 of POCSO Act and sentenced the accused to undergo 7 years RI and to pay a fine of Rs. 10,000/- in default to undergo 2 years SI. The period of sentenced shall run concurrently.
JUDGMENT :
G. JAYACHANDRAN, J.
1. The Criminal Appeal is preferred by the accused against the judgment of the trial Court for offences under Sections 366 IPC and imposed 5 years RI with fine of Rs. 1,000/- convicted under Section 506(i) of IPC and imposed 6 months RI with fine of Rs. 1,000/- and convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act”) and imposed 15 years RI with fine of Rs. 10,000/- vide, judgment dated 17.09.2016 in Spl. S.C. No. 18 of 2016.
2. The case of the prosecution is that, on 09.07.2016, the victim girl child (PW-2) along with her mother (PW-1) and her father (PW-3) went to the function held on eve of the marriage of one Selvi, who resides next to her house. At about 9.30 p.m. when PW-1 was helping the bride’s family in decorating the vessels, the child, who was playing with other children was told by her mother to have dinner. Accordingly, she went to the dining room, had her dinner and went to the side by lane to wash her hands. The accused/appellant, who is the husband of the bride’s sister, gagged the child mouth, took her to the nearby babul grove, put the child down, removed her skirt and under garment, then he rubbed the child’s private part (vagina) with his private part (penis). The mother of the child (PW-1) on noticing her daughter is missing, raised alarm. She along with her husband and others went in search of the her daughter. From the babul grove the child came crying. She told PW-1 that she was taken to the grove by the accused. He removed her skirt partially and her under garment, put his penis on her vagina and rubbed. Seeing the light of the torch, people coming in search of the girl, the accused ran away threatening her that if she reveals, he will kill her.
3.About the above said incident occurred on 09.07.2016 at about 9.30 p.m. the complaint (Ex.P-1) was registered by the respondent police on 11.07.2016 at 08.00 hrs in FIR Crime No. 5/2017. The trial Court, based on the materials collected during the course of investigation and the Final Report, framed charges against the accused for the offences under Section 366 IPC, Section 5(m) r/w 6 of POCSO Act and Section 506(i) of IPC.
4. After considering the evidence, the trial Court concluded that the version of the victim child (PW-2) is very well supported by the corroborating evidence of PW-1, PW-3, PW-7 to PW-10 and DW-1. The evidence of prosecution witnesses proves that the complaint was lodged on 10.07.2016 itself. However, the PW-18 (Investigating Officer) due her ignorance about her duties, neglected to register the complaint immediately. Since the crime was reported on 10.07.2016 on the next day of occurrence and taken up for investigation, there is no prejudice to the accused in registering the FIR belatedly.
5. The aggrieved accused, has preferred the appeal wherein he has stated that, the trial Court has travelled a long way on illogical reasons and rendered a perverse finding. The complaint is an act of malice. The evidence of the defence witness to prove that the complaint was given with an ulterior motive by tutoring the child has not been considered by the trial Court properly. The improvement in the prosecution version stage by stage not corroborated with documentary or oral evidence, not taken into consideration by the trial Court.
6. The explanation for the two days delay in lodging the complaint is not convincing and contrary to evidence. The trial Court has gone beyond the prosecution case and has held that the oral complaint was made on the day next to the incident which occurred on the previous day night. Hence, no prejudice to the accused. While the evidence indicates, the alleged occurrence happened on 09.07.2016 at about the 9.30 to 10.00 p.m. the complaint received and FIR registered on 11.07.2016 at about 08.00 hrs. No material evidence or previous statemen
The court clarified the distinction between sexual assault and aggravated penetrative sexual assault under the POCSO Act, emphasizing the need for evidence of penetration to establish the latter.
The court upheld the conviction for aggravated penetrative sexual assault under the POCSO Act based on the reliable testimony of the child victim and corroborative medical evidence, affirming the app....
A conviction under the POCSO Act requires credible evidence, and the absence of medical corroboration can undermine the prosecution's case.
The victim child's testimony and the lack of corroborative medical evidence can be sufficient to establish guilt in cases of aggravated penetrative sexual assault on a child under the POCSO Act.
The court established that in cases of sexual assault, the victim's testimony can be sufficient for conviction, and that slight penetration constitutes an offense under the POCSO Act, regardless of t....
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