Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
HON’BLE MR. JUSTICE M.S. RAMESH, HON’BLE MR. JUSTICE SUNDER MOHAN, JJ.
Vijayan – Appellant
Versus
State Represented by Inspector of Police Sathyamangalam Police Station – Respondent
Crl. Appeal No. 79 of 2019
Decided On : 08-04-2024
POCSO - Protection of Children from Sexual Offences - Sections 4, 6, 9(m), 10 of POCSO Act; Section 361, 366 of IPC - The court discussed the provisions of the POCSO Act, particularly focusing on the definitions and implications of sexual assault and aggravated sexual assault. It interpreted the evidence presented, emphasizing the necessity of proving penetrative sexual assault under Section 4, which was not established. The court ultimately modified the conviction to Section 10 r/w 9(m) of the POCSO Act, reflecting the nature of the assault as aggravated but not penetrative, leading to a reduced sentence.
Fact of the Case:
The appellant was accused of sexually assaulting a 10-year-old girl (PW-3) under the guise of changing a TV channel. The victim, who had slight mental retardation, reported the incident after some delay, leading to the appellant's arrest and subsequent conviction under the POCSO Act and IPC.
Finding of the Court:
The trial court found the appellant guilty based on the evidence presented, including testimonies from the victim and her family. However, the appellate court found that the evidence did not support a conviction for penetrative sexual assault as defined under Section 4 of the POCSO Act.
Issues: Whether the evidence established the elements of the offences charged under the POCSO Act and IPC, particularly regarding penetrative sexual assault and kidnapping.
Ratio Decidendi: The appellate court determined that while the victim's evidence indicated an aggravated sexual assault, it did not meet the criteria for penetrative sexual assault under Section 4 of the POCSO Act. The court also clarified that the appellant had not committed kidnapping as the victim was taken with the consent of her guardian.
Final Decision: The appeal was partly allowed; the conviction under Section 4 of the POCSO Act was modified to Section 10 r/w 9(m) of the POCSO Act, with a sentence of seven years rigorous imprisonment. The conviction under Section 366 of the IPC was set aside.
ORDER :
1. This Criminal Appeal has been filed by the sole accused challenging the conviction and sentence imposed upon him vide judgment dated 11.09.2018 in Spl. S.C. No. 5 of 2018 on the file of the learned Additional Sessions Judge, Mahalir Neethi Mandram (Mahalir Fast Track Court), Erode.
2.......
(ii) It is the further case of the prosecution that after the said occurrence, the victim came crying to her house and PW-1 enquired her and came to know about the incident; that since the victim was not a normal child and had slight mental retardation, she did not want to make any issue; that however, on the advice of the elders in the village, she gave a complaint (Ex.P1) on 04.08.2017. PW-16, the Sub-Inspector of Police received the complaint and registered an FIR [Ex.P22] in Cr. No. 6 of 2017 against the appellant for the offence under Section 12 of the POCSO Act.
(iii) PW-17, the Inspector of Police, took up the investigation, went to the scene of the occurrence and prepared the Observation Mahazar [Ex.P14], Rough Sketch [Ex.P23] and examined the witnesses. On 06.08.2017 at about 6.00 p.m. he arrested the appellant and on the basis of the confession and on the medical report, he altered the offence to Section 4 of the POCSO Act and sent the alteration report-Ex.P24. He thereafter made arrangements to record the Section 164 Cr.P.C. statement of the victim, which was recorded by the learned Judicial Magistrate No. 1, Gobichettipalayam. He examined the other witnesses and filed a final report against the appellant under Section 4 of the POCSO Act and Section 366 of the IPC before the learned Additional Sessions Judge, Mahalir Neethi Mandram, (Mahalir Fast Track Court), Erode, which was taken on file as Special S.C. No. 5 of 2018.
(iv) On the appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the trial Court framed charges against the appellant, and when questioned, the appellant pleaded ‘not guilty’.
(v) To prove the case, the prosecution examined 17 witnesses as PW-1 to PW-17 and marked 26 exhibits as Exs.P1 to P26. When the appellant was questioned, u/s. 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. The accused did not examine any witnesses or mark any documents. Series of X-rays, were marked as Court documents [Ex.C1]
(vi) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established its case beyond reasonable doubt and held the appellant guilty of offence under Section 4 of the POCSO Act and Section 366 of the IPC. The appellant was convicted and sentenced as follows:
Offence under Section Sentence imposed
366 IPC To undergo RI for 10 years and to pay a fine of Rs. 10,000/- in default to undergo SI for 1 year
4 POCSO Act To undergo life imprisonment and to pay a fine of Rs. 10,000/- in default to undergo SI for 1 year.
The sentences were directed to run concurrently.
Hence, the appellant has preferred the appeal challenging the said conviction and sentence.
3. Heard, Mr. T. Muruganantham, learned counsel appearing for the appellant and Mr. Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the respondent/State.
4. The learned counsel for the appellant submitted primarily that the complaint is belated and the evidence suggests that there was prior enmity between the family
The court established that the absence of evidence for penetrative sexual assault under Section 4 of the POCSO Act necessitated a conviction under a lesser charge, highlighting the importance of prec....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
