Dismissed

Bharathi, Aged 42 Years, v. the State Rep. by Its

Madras HC27 Sept 2022CRL A/106/2018

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal filed under Section 374(2) of CrPC challenging conviction for penetrative sexual assault under POCSO. The Court held that small contradictions in prosecution witness testimony were not fatal and upheld the presumption of culpable mental state under Section 30 of the POCSO Act.

What did the court decide?

Criminal Appeal dismissed; conviction and sentence confirmed.

Bharathi, Aged 42 Years, Vs the State Rep. by Its — Child Sexual Offences (POCSO) | Madras HC (2022)

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Crl.A.No.106 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 27.09.2022

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CORAM:

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THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

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Crl.A.No.106 of 2018

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Bharathi ... Appellant Vs. The State Represented by its The Inspector of Police, Vellithiruppur Police Station, Anthiyur, Erode District. Cr.No.10 of 2013 ... Respondent

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PRAYER: Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure, to call for the records in S.C.No.133 of 2013, dated 08.04.2014 on the file of the learned Sessions Judge, Mahila Court, Erode and set aside the said conviction and sentence.

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For Appellant : M/s.N.Narayanan S.Jeevanantham S.Ponnammal - No Appearance For Respondent : Mr.A.Gopinath Government Advocate (Crl.Side)

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https://www.mhc.tn.gov.in/judis

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Crl.A.No.106 of 2018

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JUDGMENT

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This appeal is filed as against the judgment passed in S.C.No.133

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of 2013, dated 08.04.2014 on the file of the learned Sessions Judge, Mahila Court, Erode. Thereby, the appellant was convicted and sentenced to undergo 10 years of rigorous imprisonment and to pay fine of Rs.5000/- in default to undergo simple imprisonment for 1 year.

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2. The case of the prosecution is that on 21.01.2013, the petitioner, knowing that the parents of the victim were not present at home, took the victim girl to a hut nearby, which was owned by the victim's father, removed her cloths and committed penetrative sexual assault on the victim girl, who aged about 13 years. Thereafter, he escaped from the scene of occurrence, after arrival of the victim girl's father. On the next day, the victim felt intolerable pain on her private part and she was taken to the Government hospital, Antheeyur. On recording the statement from the minor victim girl, F.I.R was registered in Cr.No.10 of 2013 for the offence under Section 3 r/w Section 4 of the Protection of Children from Sexual Offence Act, 2012 (in short "POCSO Act" hereinafter) as against the accused. After completion of the investigation, the respondent filed a

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https://www.mhc.tn.gov.in/judis

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Crl.A.No.106 of 2018

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final report and the same was taken cognizance on the file of the learned Sessions Judge Mahila Court, Erode.

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3. On the side of the prosecution, P.W.1 to P.W.12 were examined and marked exhibits P.1 to P.27. On the side of the appellant, he examined P.W.1 and no exhibits were marked and the prosecution also marked M.O.1 to 6 to prove the case. Upon questioning about the material evidence on record and the incriminating circumstances under Section 313 of Cr.P.C., the accused denied the same as false. On a perusal of the oral and material evidences available on record, the trial Court found the appellant as guilty, convicted and sentenced him to undergo one year imprisonment. Aggrieved by the same, the present appeal has been filed.

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4. Though the appellant representing by his counsel, when the matter was listed on 23.09.2022, there was no representation either by person or through pleader. Therefore, this Court posted this appeal today i.e. 27.09.2022 under the caption "for dismissal". However, even today no one appeared on behalf of the appellant either by person or through pleader. In the absence of the learned counsel for the appellant, this Court

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https://www.mhc.tn.gov.in/judis

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Crl.A.No.106 of 2018

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can dispose the appeal on merits.

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5. The appellant states that there were contradictions on the statement given by P.W.1 and P.W.2 and the trial Court has failed to consider that the statement of the doctor witnesses P.W.3 and P.W.5 that there was no injury found on the vagina of P.W.1. Therefore, the conviction and sentence of the appellant is erroneous and illegal.

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6. Heard Mr.A.Gopinath, Government Advocate (Crl.Side) appearing for the respondent and perused the materials available on record.

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7. It is seen that the minor victim girl was examined as P.W.1, her father was examined as P.W.2, the doctor who examined the victim is P.W.3, the doctor who examined the accused about his potentiality is P.W.4, who also examined the age of the victim and the doctor who treated the victim is P.W.5. The headmaster of the school, where the victim studied was examined as P.W.8 and the Investigation Officer was examined as P.W.12. Further, P.W.1 deposed that on 21.01.2013, when she was returning from the school, she found that her parents were not at

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Crl.A.No.106 of 2018

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home and her sister was sleeping. She prepared food for her family and awaited for the arrival of her parents. At that time, the appellant came to her house and taken her to the nearby hut, which was owned by P.W.2, removed her dress and committed penetrative sexual assault. When the father of the victim arrived, the appellant tried to escape from the scene of occurrence and when he tried to caught the accused, he flew away. On the very next day, the minor victim girl felt intolerable pain on her private part and as such, she was taken to the hospital. It was also corroborated by P.W.2 and the relevant portion of the statement of the minor victim girl reads as under:

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"kWgoa [ k ; 8 kzpf ; F vjphp te ; jhh ; Vd ; te ; jP' ; f vdW nfl ; nld ; ; . mth ; vJtk [ ; brhy ; yhk vdid thia ;

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bghj ; jptpl ; L rhiyf ; F Tlofpl ; L nghdhh ; ; / ehd ; if vLf ; f Kaw ; rpj ; njd ; mth ; ifia vLj ; j nghJ vd ; ,lJ ifapy ; ef fhak ; MdJ/ vdJ Rojhiu lhgir ; gpddho njhspy ; ; ,Gj ; J fpHpj ; jhh ; / vdid fPnH gLf ; ; f itj ; J vd ; ngz ; il fHwwp vjphp jd ; ; ngzl ; ; kwWk ; ; $l ; oia fHw ; wp vwpe ; J tplL vd ; ; $l ; oia ,Gj ; J nghllhd ; ; / vjphp xz ; Qqf ; F nghwij vLj ; J vd ; xz ; Qqf ; F nghwJf ; Fs ; itj ; J 3 Kiw mKf ; fpdhd ; /

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https://www.mhc.tn.gov.in/judis

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Crl.A.No.106 of 2018

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ehd ; typahy ; fhyhy ; cijj ; njd/ mJ fPw ; ; W glypy ; glL rj ; ; jk ; te ; j nghJ mg ; gh me ; j ,lj ; Jf ; F te ; jhh ; . clnd vjphp ve ; jphpr ; rplL Xodhd ; / vjphp miu ghfk ; ; tiu ngzl ; ; nghlLf ; ; bfhz ; nl Xodhd ; / vd ; mg ; gh gpof ; f nghdhh ; Xollhd ; ; . ehd ; clnd ngzl ; ; nghlLf ; ; bfhz ; L tplnld ; ; vd ; mkkh te ; ; jhh ; / mkkhtplk ; ; brhd ; ndd ; ,ij ahhplkhtJ brhddhy ; ; nftyk ; vd brhddhh ; ; / fhiyapy ; typf ; fpwJ vdW mGnjd ; ; / vd ; mk ; kh vdid md ; ; D}h ; muR kUj ; Jtkidf ; F Tlo ; fpl ; L nghdhh ; fs ; /"

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8. Further, it is seen that P.W.3, the doctor who examined the

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victim deposed that nail marks found on the forehead of the victim girl. Though no injuries were found on her private part, semen was found in the vagina of the victim girl. The inner wear of the victim contained vaginal discharge and some blood stains. After giving first aid treatment, the doctor recorded the accident register, which was marked as Ex.P.3, which reveals that the victim girl was rapped at her home on 21.01.2013 by one of the known persons at about 8.00 p.m and she referred the

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victim girl to Salem Government Hospital for further treatment. P.W.4,

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Crl.A.No.106 of 2018

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the doctor who examined the potentiality of the accused deposed that the appellant is a potential person to have sexual intercourse. The headmaster of the victim girl's school was examined as P.W.7 and he certified the age of the victim girl that the date of birth of the victim is 07.01.2000, which was marked as Ex.P.11. The victim girl's dress and her

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inner wears were marked as M.O.1 to 3 and a statement under Section 164 Cr.P.C from the victim girl was also recorded by the concerned Magistrate, which was marked as E.P.22.

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9. This Court is of the considered view the deposition of the victim girl, which clearly corroborated with the statement recorded under Section 164 Cr.P.C. Further, the small contradictions between P.W.1 and P.W.2 are not fatal to the case of the prosecution since other evidences are very clear to prove the case of the prosecution . Therefore, the trial Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved, where the person is prosecuted for the offence under Section 3 of the POCSO Act. The appellant herein though examined the witnesses, nothing elicited to disprove the case of the prosecution. It is also relevant

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https://www.mhc.tn.gov.in/judis

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Crl.A.No.106 of 2018

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to extract the provisions in terms of Section 30 of the POCSO Act, which

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reads as under:

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"30. Presumption of culpable mental state.--

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(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

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(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

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Explanation--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact."

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10. Accordingly, the trial Court shall presume the existence of such

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mental state, but it should be a defence for the accused that he had no such mental state with respect to the act charged as an offence in that prosecution. In the case on hand, the appellant on the date of occurrence

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had two times visited the victim girl's house, confirmed that there was no

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other persons present in the house of the victim, except the victim and

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Crl.A.No.106 of 2018

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whereby, it is evident that his intention was to commit the offence as against the minor victim girl. To that effect, the prosecution clearly established the intention of the appellant to commit the offence. Therefore, the small contradictions which was pointed out by the appellant does not affect the case of the prosecution. Further, the prosecution proved the charges framed as against the appellant by uncontroversial and cogent evidence.

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11. In view of the above, the trial Court has rightly convicted the appellant and this Court finds no infirmity or illegality in the order passed by the Court below and this appeal is liable to be dismissed.

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12. Accordingly, this Criminal Appeal stands dismissed.

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27.09.2022

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Index: Yes/No Speaking/Non-speaking order anu

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1. The Sessions Judge, Mahila Court, Erode

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https://www.mhc.tn.gov.in/judis

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Crl.A.No.106 of 2018

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2. The Inspector of Police, Vellithiruppur Police Station, Anthiyur, Erode District.

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3. The Public Prosecutor, Madras High Court.

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Crl.A.No.106 of 2018

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G.K.ILANTHIRAIYAN, J.,

anu

Crl.A.No.106 of 2018

27.09.2022

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Bharathi, Aged 42 Years, v. the State Rep. by Its

Case brief

What is this about?

What did the court decide?

Bharathi, Aged 42 Years, v. the State Rep. by Its

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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