Partly allowed

Senthilkumar v. State by

Madras HC16 Nov 2022CRL A/535/2018

Case brief

AI extract

What is this about?

In a criminal appeal regarding child sexual assault, this Court held that the prosecution failed to prove the first incident of penetrative sexual assault due to lack of evidence and medical findings. The earlier conviction under Section 4 of POCSO Act was set aside, and the appellant was instead convicted and sentenced under Section 8 of POCSO Act for sexual assault.

What did the court decide?

Conviction and sentence under Section 4 of POCSO Act set aside. Appellant convicted under Section 8 of POCSO Act and sentenced to five years rigorous imprisonment and a fine of Rs.5000/.

Senthilkumar Vs State by — Child Sexual Offences (POCSO) | Madras HC (2022)

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Crl.A.No.535 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 16.11.2022

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CORAM

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THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.A.No.535 of 2018

SenthilKumar

... Appellant

State by: The Inspector of Police, All Women Police Station, Neyveli, Kullanchavadi P.S. (Crime No.380 of 2016) ...Respondent

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PRAYER : This Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code, to set-aside the Judgement, conviction passed against the Appellant by the learned Sessions Judge, Mahila Court at Cuddalore in Special Sessions Case.No.04 of 2017 dated 06.08.2018 and acquit him.

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For Appellant : Mr.V.Perarasu legal aid counsel

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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.535 of 2018

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JUDGMENT

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This appeal is directed as against the Judgment passed in Special Sessions Case.No.04 of 2017 dated 06.08.2018, on the file of the learned Sessions Judge, Mahila Court at Cuddalore, thereby convicted the appellant for the offence punishable under Section 506(ii) of IPC and Section 4 of POCSO Act.

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The case of the prosecution is that the victim was aged about 12 years. When she was studying in Government School, she had been going to tuition class. When the victim was returning to her home, the accused had taken her to the sugarcane field and had penetrative sexual assault on her. Thereafter, on 19.09.2016, again when the victim was returning from her tuition, the accused dragged her to tamarind grove and attempted to commit sexual assault on her. Immediately, she ran away from the place of occurrence and informed to her father. Hence, the complaint.

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Crl.A.No.535 of 2018

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On receipt of the complaint, the respondent registered an

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FIR in Crime No.380 of 2016 for the offences punishable under Sections 3 and 4 of POCSO Act, 2012. After completion of investigation, the respondent filed a final report and the same has been taken cognizance in Special Sessions Case.No.04 of 2017 for the offences punishable under Section 506(ii) of IPC and Section 6 of POCSO Act, on the file of the learned Sessions Judge, Mahila Court at Cuddalore.

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In order to bring home the charges, the prosecution had examined P.W.1 to P.W.12 and marked Exs.P1 to P11. On the side of the accused no one was examined and no document was marked. On a perusal of oral and documentary evidences, the Trial Court found the appellant guilty for the offences punishable under Sections 506(ii) of IPC and Section 4 of POCSO Act. He was sentenced to undergo ten years rigorous imprisonment, with a fine of Rs.5000/-, in default to undergo one year simple imprisonment for the offence under Section 4 of POCSO Act. He was also sentenced to undergo one year rigorous imprisonment, with a fine of Rs.1000/- in default to undergo three months simple

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Crl.A.No.535 of 2018

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imprisonment for the offence under Section 506(ii) of IPC. Aggrieved by the same, this present appeal.

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The learned counsel for the appellant would submit that though it is alleged that the accused had caused penetrative sexual assault on the victim, prior to 19.09.2016, she did not inform the same to anybody. Only on 19.09.2016, she informed the said incident to her father, alleging that on that day also the accused attempted to commit sexual assault on her. Except P.W.1 and P.W.2, no witnesses were examined by the prosecution to prove the case of the prosecution. After registration of the complaint, the victim was subjected for medical examination. The Doctor, who examined the victim was examined as P.W.5. She was subjected for medical examination on 06.10.2016. She opined that there was no injury on her body and also on her vagina. There was no possibility for any penetrative sexual assault. At the worst, the appellant can be convicted for the sexual assault under Section 8 of POCSO Act. There was no evidence to prove that the appellant had committed the offence under Section 4 of POCSO Act. From the date of

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Crl.A.No.535 of 2018

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arrest i.e.,24.09.2016, till today he is in incarceration. Therefore, he prayed for modification of conviction for the offence under Section 8 of POCSO Act, 2012.

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Per contra, the learned Government Advocate (Crl.Side) submitted that the prosecutants categorically deposed that before 19.09.2016, the same accused had committed penetrative sexual assault on her and he also threatened her with dire consequences, if she disclose to anybody. Therefore, the victim did not disclose the said occurrence to anybody. Again on 19.09.2016, when the victim had committed the very same offence, the victim informed to her father. He lodged a complaint on 24.09.2016 and the same was marked as Ex.P1. She was subjected for medical examination and found that her hymen was not intact. Therefore, though she did not sustain any injury, it is proved that she was subjected to penetrative sexual assault by the accused. The prosecutants evidence is the best evidence and as such the Trial Court rightly convicted the appellant and it does not warrant any interference by this Court.

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Crl.A.No.535 of 2018

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Heard Mr.V.Perarasu, learned legal aid counsel appearing

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for the appellant and Mr.A.Gopinath, learned Government Advocate (Crl. Side) appearing for the respondent.

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On 19.09.2016, the victim informed about the occurrence to

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her father. Her father was examined as P.W.1. He deposed that the victim informed about the occurrence on 19.09.2016 and he informed the same

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to his relatives and other public of his native. However, there was no reply from the accused side and as such he lodged a complaint only on 24.09.2016, which was marked as Ex.P1. A perusal of Ex.P1 revealed that there was no whisper about the information given to his relatives or any other general public. Therefore, there is no valid reason for the delay in lodging the complaint. If the victim informed the occurrence belatedly, it can be accepted, since when a minor girl is sexually assaulted by the accused, she could not be in a good state of mind to inform about the occurrence immediately. Whereas, after knowing the fact that the minor victim was subjected to penetrative sexual assault by the accused, her father ought to have registered the complaint immediately.

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Crl.A.No.535 of 2018

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On receipt of the complaint on 24.09.2016, the respondent registered FIR in Crime No.380 of 2016 for the offences punishable under Sections 3 and 4 of POCSO Act, 2012. After completion of investigation, the respondent filed a final report for the offences under Section 6 of POCSO Act and Section 506(ii) of IPC. It is seen from Ex.P1

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that there was no allegation that if the victim discloses the said occurrence to anybody, the accused will do away with the life of the entire family of the victim. Therefore, the respondent registered the FIR only for the offences punishable under Sections 3 and 4 of POCSO Act, 2012. While interrogating the witnesses to explain the delay, the prosecution added the allegation that she was threatened with dire consequences by the accused after the first occurrence. In fact, the victim did not mention the date of first occurrence and did not even state the approximate period of occurrence.

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10. The relevant portion of her evidence is as follows,

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“ehd; oac&d; Koj;J tpl;L tUk;nghJ vjpup vd;id ghh;j;J Kj;nj. kzpna eP buhk;g mHfhf ,Uf;fpwha; vd;W brhy;thu;/ 2016k; Mz;L xUehs; ehd; oac&d; Koj;J tpl;L tPl;ow;F tUk;nghJ ,ut[ 8 kzp mstpy; bre;jpy; Fkhu; vd;id rPj;jhukd; thj;jpahu; fUk;g[ njhl;lj;jpw;F vd;id miHj;Jr;brd;whu;/ vjpup fUk;g[ njhl;lj;jpy; vd;Dila Jzpfis mtpH;j;J

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

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Crl.A.No.535 of 2018

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nghl;Ltpl;L vd;Dila iffis fl;odhu;/ gpwF vjpup vd; fhiy tpupf;fr;brhd;dhu;. gpwF a{upd; nghFk; ,lj;jpy; vjpup a{upd; nghtij itj;jhu;. ehd; typia jh';f Koahky; fj;jpndd; mg;nghJ vjpup mtu; ifahy; vd; thia K:odhu;/ gpwF ,e;j tpc&aj;ij btspna ahuplkhtJ brhd;dhy; cd;ida[k;. cd; FLk;gj;ija[k; bfhd;WtpLntd; vd;W“ ” brhd;dhu;/ mjd; gpwF ehd; vd; tPl;ow;F ngha;tpl;nld;/ ehd; ahuplKk; ,e;j tpc&aj;ij brhy;ytpy;iy/ mjd; gpwF 19/09/2016 md;Wk; ehd; oa{c&d; ngha;tpl;L ,ut[ vd; tpl;ow;F jpUk;gp te;njd;/ mg;nghJ vjpup mnj khjpup vd;id miHj;Jf;bfhz;L g[ypaku njhg;gpw;F nghdhu;/ vjpup vd;Dila Jzpia mtpHf;fg; ghu;j;jhu;/ ehd; Xote;J tpl;nld;/ ehd; mjd;gpwF 19/09/2016 md;W ,unt ehd; ele;j tptu';fis vd; mg;gh. mk;khtplk; brhd;ndd;”/

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Thus, it is clear that the victim was not able to tell the first

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date of occurrence and only on 19.09.2016, she informed about the occurrence to her father. Only after the second occurrence, according to her on 19.09.2016, when she was returning home from her tuition, the accused dragged her to tamarind grove and attempted to commit sexual assault on her. Therefore, the prosecution failed to prove the first occurrence i.e., penetrative sexual assault on the victim. Further, after the registration of FIR on 24.09.2016, the victim girl was subjected for medical examination only on 06.10.2016. The Doctor, who examined the victim was examined as P.W.5. She deposed that there was no injury and there was no evidence to show that the victim girl was subjected to penetrative sexual assault. Therefore, the prosecution failed to prove the

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Crl.A.No.535 of 2018

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first occurrence. However, the evidence of the prosecutants is very clear that on 19.09.2016, the appellant dragged her into tamarind grove and committed sexual assault on her, by attempting to remove her dress.

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Therefore, the appellant cannot be convicted for the

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offence under Section 4 of POCSO Act. However, he is liable to be punished under Section 8 of POCSO Act. Accordingly, the conviction and sentence imposed on the petitioner for the offence under Section 4 of POCSO Act is hereby set aside. Instead, the appellant is convicted for the offence under Section 8 of POCSO Act and sentenced to undergo five year rigorous imprisonment and to pay a fine of Rs.5000/-, in default to undergo three months simple imprisonment.

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Accordingly, this Criminal Appeal is partly allowed.

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16.11.2022

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Speaking order/Non-speaking order Index :Yes/No Internet :Yes/No mn

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Crl.A.No.535 of 2018

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G.K.ILANTHIRAIYAN, J.

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The Sessions Judge, Mahila Court at Cuddalore.

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2.The Inspector of Police, All Women Police Station, Neyveli, Kullanchavadi P.S.

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The Public Prosecutor, High Court, Madras.

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Crl.A.No.535 of 2018

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16.11.2022

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Senthilkumar v. State by

Case brief

What is this about?

What did the court decide?

Senthilkumar v. State by

Case brief

What is this about?

What did the court decide?

What the court decided

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