Ganapathy Vs The Inspector of Police

The State of Tamil Nadu Rep by The Inspector of police, AWPS-Thiruppathur Police Station, Sivagangai District. ... Respondent/ Complainant (Crime No.15 of 2021)

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For Petitioner(s):

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Mr.S.Hari Vignesh

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For Respondent(s):

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Mr.R.Meenakshi Sundaram Additional Public Prosecutor

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PRAYER: This Petition is filed under Section 389(1) of Cr.P.C., praying to suspend the sentence passed imposed on the petitioner/Appellant in Spl.S.C.No.11 of 2022 dated 31.08.2023 by the learned Sessions Judge, Special Court for Exclusive Trial under POCSO Act Cases, Sivaganga, and enlarge the petitioner on bail pending https://www.mhc.tn.gov.in/judis

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disposal of the criminal appeal.

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ORDER

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The Criminal Miscellaneous Petition is filed to suspend the sentence imposed on the petitioner/Appellant in Spl.S.C.No.11 of 2022 dated 31.08.2023 by the learned Sessions Judge, Special Court for Exclusive Trial under POCSO Act Cases, Sivaganga and enlarge the petitioner on bail pending disposal of the criminal appeal.

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The petitioner is the first accused, who has been found guilty for the offences under Sections 5(1)r/w 6, 5(m) r/w 6, 9(m) r/w 10 of POCSO Act and he has been convicted and sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.5,000/-, in default to undergo imprisonment for a further period of six months for the offence under Section 5(1) r/w 6; to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.5,000/-, in default to undergo imprisonment for a further period of six months for the offence under Section 5(m) r/w 6; and to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/-, in default to undergo imprisonment for a further period of three months.

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The case of the prosecution is that during the month of August 2021, the victim girl, aged about 12 years, was grazing her cattle near a pond in her village. https://www.mhc.tn.gov.in/judis

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During that period, the first accused befriended her by offering chocolates, snacks, and special dishes such as biryani. As it was the time of the COVID-19 pandemic, the victim was regularly engaged in grazing cattle, and on such occasions, the first accused lured her by providing eatables and gradually gained her trust. By taking advantage of the proximity he had developed, in the month of September 2021, the first accused once again offered the victim snacks and other favoured eatables, and thereafter, committed penetrative sexual assault on her. He threatened her, stating that if she disclosed the incident to anyone, she would be beaten. The second accused also adopted a similar approach with the victim child by offering her biryani and beer, and committed penetrative sexual assault on her on several occasions. When the victim began experiencing stomach pain and developed serious concerns, she was compelled to disclose the matter to her mother. On the complaint given by the mother of the victim child, a case was registered. After the completion of investigation, charge sheet was filed and the same was taken on file in Spl.S.C.No.11 of 2022. After the conclusion of trial, the appellant was found guilty for the offences under Sections 5(1)r/w 6, 5(m) r/w 6, 9(m) r/w 10 of POCSO Act and convicted and sentenced him to undergo the punishment as stated supra.

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The learned counsel appearing for the appellant submitted that the contradictions in the evidence of P.W.5 to P.W.9 were not properly considered. The

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appellant has been in incarceration for more than four years. As it may not be possible to take up the appeal immediately, it is prayed that this Court may be pleased to suspend the sentence imposed against the appellant pending disposal of the appeal.

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From the grounds of the appeal filed by the learned counsel for the appellant, it is seen that the alleged contradictions in the evidence between P.W.5 to P.W.9 has been highlighted.

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The learned Additional Public Prosecutor submitted that the consistent evidence of victim child and the other circumstances of the case has been properly analyzed by the learned trial Judge and the appellant does not have any strong and compelling ground to warrant reversal of the judgment.

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As the appellant/A1 has been convicted for the serious offences like 5(1)r/w

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6, 5(m) r/w 6, 9(m) r/w 10 of POCSO Act and he is said to have been in incarceration for nearly 4 ½ years, I feel the appeal itself can be taken up at an early date. Considering that the trial court's findings primarily rest on the evidence of the victim girl, who was below 12 years of age at the time of the incident, I do not find any sufficient ground or urgency to warrant suspension of the sentence. However, the learned counsel for the appellant is at liberty to mention the matter for early listing of the appeal for hearing.

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