(Prayer: This Criminal Appeal has been filed under Section 374(2) of Cr.P.C, to set aside the Judgment dated 08.09.2017 made in S.S.C.No5/2014 on the file of the learned Sessions Judge, Mahalir Needimandaram, Madurai and allow the above Criminal Appeal.)

1. This appeal is directed against the judgment of conviction passed by the learned Sessions Judge, Mahalir Needimandaram, Madurai, in Spl.S.C.No.5 of 2014 dated 08.09.2017.

2. The circumstances, which led to the filing of the present appeal, are as follows:

The appellant herein is the sole Accused before the Trial Court. Based on the complaint given by PW1, a case in Crime No.7 of 2013 was registered by the All Women Police Station, Madurai South, for the offences punishable under Section 354 of the IPC and Section 8 of the POCSO Act, 2012. PW9 conducted the investigation and laid the final report before the learned Jurisdictional Magistrate. The case was committed to the Court of Sessions after conducting the necessary committal proceedings. Subsequently, it was made over to the learned Sessions Judge, Mahila Court, as the offences alleged are the one against women and children. On appearance of Accused and after hearing both sides, the Trial Court has framed the charges against the Accused for the offences punishable under Section 354 of the IPC and Section 8 of the POCSO Act, 2012. The charges were explained to the Accused and the Accused denied all the charges and therefore, he was tried by the Trial Court.

3. To substantiate the charges against the Accused, the prosecution has examined PW1 to PW9 and marked Exhibits P1 and P2. No material objects were marked on the side of the prosecution. After closure of the prosecution evidence, the incriminating circumstances appeared against him in the evidence were put to the Accused under Section 313(1)(b) Cr.P.C. The Accused denied them as false and reported that he had witnesses on his side. On the side of the defence, DW1 to DW3 were examined and no exhibits were marked.

4. After hearing both sides, the Trial Court found the appellant guilty of the offences punishable under Section 354 of IPC and Section 8 of the POCSO Act, 2012 and sentenced him to undergo one year of Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for three months for the offence under Section 354 of IPC and sentenced him to undergo four years of Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for one year for the offence under Section 8 of the POCSO Act, 2012. Aggrieved by the said conviction, the present appeal has been filed before this Court.

5. The learned counsel for the appellant submitted his written submissions and the same was perused. The learned Government Advocate(Criminal Side) was heard on the side of the State. The Trial Court records are perused. This Court has given its thoughtful consideration to the rival submissions put forth by either side.

6. Point for determination:

Whether the conviction passed by the Trial Court as against the appellant is sustainable?

Answer:

7. On careful perusal of the records, it is found that the victim girl, at the time of the occurrence, was aged about 16 years. The father of the victim died when she was five years old. PW2 is the mother of the victim and she remarried and was living separately. The victim was brought up by her maternal aunt (ngupak;kh), namely, Palaniyammal. The Accused herein is an Accountant of the said Palaniyammal and he used to visit her house frequently and used to have food in her house. He is also a relative of the victim as an uncle on the maternal side. Whenever the Accused came to the house of the said Palaniyammal, he used to place his hands on the shoulder of the victim and touch her breast. The victim asked him to remove his hands and then he used to remove. When it was reported to the said Palaniyammal, she stated that if he placed his hands on her, what would she lose. This had been happening for three months prior to the date of the complaint.

8. After completion of her 10th Standard, the victim joined the Industrial Training Centre, where she was given training in stitching. In that training centre, an awareness programme was conducted for the children about ''good touch and bad touch''. Only at that time, the victim realised that she had been sexually assaulted by the Accused herein. She enquired with PW4 as to whether she could give a complaint and whether they would provide protection. At her instance, PW1 lodged Ex.P1 complaint with the All Women Police Station, Madurai South, on 23.03.2013 at around 21.00 hours. The said complaint was registered as a First Information Report in Crime No.7 of 2013 on the same date. PW9 investigated the said offence and filed the final report before the Trial Court.

9. Besides the present appellant, the victim was abused by her maternal aunt's son, a child in conflict with law, namely Thavamani, and the said case was tried separately by the Juvenile Justice Board in Juvenile Case No.73 of 2013. As stated supra, the said case ended in conviction and aggrieved by the said conviction and sentence the Appellant is before this Court.

10. The first and foremost contention of the learned counsel for the appellant is that there are contradictions in the evidence of the victim and her statement which was registered as the First Information Report.

11. The learned counsel for the appellant, in his written arguments, has elicited the said contradictions as follows:





12. However, on careful perusal of the records, it is found that PW1 was not cross-examined by the Accused. Therefore, the evidence of PW1 stands uncontroverted. The contradictions said to be in her evidence vis-a -vis her complaint statement was not elicited by the defence in the manner known to law. The Division Bench of this Court in D.Sudhakar & Others Versus The State of Tamil Nadu, rep by Inspector of Police, Neyveli Thermal Police Station, Neyveli reported in CDJ 2014 MHC 1123 = 2014 (2) MLJ(Crl) 282 has succinctly put the manner in which the contradictions to be established which is extracted here-in-below:-

                     “19. The second angle from which this issue could be dealt with is as follows:

                     Assuming for a moment that P.W.1 and P.W.2 had told Dr.Naveen that the incident had taken place at their residence contrary to what they have deposed in the Court subsequently, then their statement to the doctor is a previous statement reduced into writing. The credibility of a witness can be impeached under Section 155 (3) of the Evidence Act by proof of former statements which are inconsistent with any part of his evidence which is liable to be contradicted. The previous statement of a witness which has been reduced into writing can be definitely used to contradict him and the manner in which it should be done has been clearly postulated in Section 145 of the Evidence Act, which reads as under:

                     "145. Cross-examination as to previous statements in writing - A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

                     20. Section 145 of the Evidence Act is divided into two parts. The first part is, without showing or proving the previous statement, general questions can be put to the witness in the cross examination. In this case, without showing the Accident Register copy, if P.W.1 had been asked, "Did you tell Dr.Naveen that the incident took place in your house?" for which if he had replied "Yes", then that is sufficient. If he had replied "No", then the second part of Section 145 comes into play if the defence wants to contradict him and thereby impeach the credibility of his testimony under Section 155(3) of the Evidence Act. Then the attention of P.W.1 must be drawn to the statement recorded by DR.Naveen in the Accident Register copy and an opportunity should be given to him to explain. Without resorting to this procedure, it is not permissible to prove a contradiction. The following example given by the legal Colossus Vivian Bose, J. in Bhagwan Singh vs. State of Punjab [AIR 1952 SC 214], is locus clasicus on this aspect.

                     "22. A witness is called and he says in chief, "I saw the Accused shoot X". In cross examination he resiles and says "I did not see it at all." He is then asked "but didn't you tell A, B & C on the spot that you had seen it?" He replies "yes, I did." We have, of set purpose, chosen as an illustration a statement which was not reduced to writing and which was not made either to the police or to a Magistrate. Now, the former statement could not be used as substantive evidence. It could only be used as corroboration of the evidence in chief under S.157 of the Evidence Act or to shake the witness's credit or test his veracity under S.146. Section 145 is not called into play at all in such a case. Resort to S.145 would only be necessary if the witness 'denies' that he made the former statement. In that event, it would be necessary to prove that he did, and 'if the former statement was reduced to writing', then S.145 requires that his attention must be drawn to those parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made."

                     21. In this case, the defence has merely put a suggestion to P.W.1 which he has denied. We are extracting that portion from the evidence of P.W.1, "It is not correct to say that I told the Doctor that the incident had taken place near our house." The defence has not specifically drawn the attention of P.W.1 to the statement recorded in the Accident Reports [Exs.P22, P23 and P24] and confronted him with it. Reference can be profitably made to the judgment of the Supreme Court in Rajinder Pershad vs. Smt.Darshana Devin [JT 2001 (6) SC 400]

                     "4.There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U.P. v. Nahar Singh (dead) and Ors. [JT 1998 (2) SC 41 = 1998 (3) SCC 561], a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examination a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed: "The oft-quoted of Lord Hershell, L.C. In Browne v. Dunn clearly elucidates the principle underlying those provisions. It reads thus: "I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witness."

                     22. The learned Senior Counsel for the appellants is holding the Accident Register copies [Exs.P22, P23 and P24] in one hand and the evidence of P.Ws.1 and 2 in the other hand and he is arguing that they contradict each other and so these witnesses are untrustworthy. We are sorry to say that such a procedure is unknown to law. Therefore, we reject the contention of the learned Senior Counsel for the appellants that there is contradiction in the evidence of P.W.1, P.W.2, vis-a-vis the entry by Dr.Naveen in English in Exs.P22, P23 and P24 since the contradictions have not been established in a manner known to law.

Therefore, the complaint statement of the victim and her evidence in court cannot be shown side by side before the Court for the purpose of establishing a contradiction. The appellant who wants to contradict the victim ought to have followed the procedure contemplated under Section 145 of the Indian Evidence Act, 1872. However, in this case, the appellant has miserably failed to do so. Therefore, the contention of the learned counsel for the appellant that the evidence of PW1 contradicts her own complaint statement cannot be countenanced.

13. Further, the learned counsel for the appellant relied on the decision of the Hon'ble Apex Court in Crl.A.No.1098 of 2024, dated 11.03.2024, reported in Nirmal Premkumar and Another Vs. State represented by the Inspector of Police. The conviction cannot be sustained if the prosecutrix's testimony is found to be unreliable and insufficient due to identifiable flaws and lacunae. The relevant portion of the judgment of the Hon'ble Apex Court in the decision cited supra is extracted hereunder:

                     “13. This Court was tasked to adjudicate a matter involving gang rape allegations under section 376(2) (g), I.P.C in Rai Sandeep v. State (NCT of Delhi)5. The Court found totally conflicting versions of the prosecutrix, from what was stated in the complaint and what was deposed before Court, resulting in material inconsistencies. Reversing the conviction and holding that the prosecutrix cannot be held to be a ‘sterling witness’, the Court opined as under:

                     “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” (underlining ours, for emphasis)

                     14. In Krishan Kumar Malik v. State of Haryana6, this Court laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to identified flaws and lacunae. It was held thus:

                     “31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.

                     32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant.

                     15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.

                     22. Conviction undoubtedly can be recorded on the sole evidence of a victim of crime; however, it must undergo a strict scrutiny through the well- settled legal principles as established by this Court in a catena of decisions. While the actions attributed to A-1, as sought to be demonstrated by the prosecution, may fall within the purview of 'sexual harassment' under section 11 of the POCSO Act, the evidence in this case has been marred by inadequacies from the outset, evident in contradictions within statements and testimonies. The evidence led leaves reasonable suspicion as to whether A-1 was actually involved in any criminal act. ''

There cannot be any quarrel over the above proposition. However, as stated supra, in this case, the appellant has failed to bring out any circumstances which make the case of the prosecutrix unbelievable or improbable. As stated supra, the victim was not at all subjected to crossexamination and no material was brought on record to discredit the testimony of the victim. Therefore, the said decision is not applicable to the case in hand.

14. The learned counsel further contended that the statement of the victim was not recorded under Section 164 of Cr.P.C. It is a settled position of law that in all cases, including offences involving sexual offences, there is no legal necessity to record the statement of the victim under Section 164 of Cr.P.C. Merely because the statement under Section 164 of Cr.P.C. was not recorded by the Police, it will not throw any suspicion on the case of the prosecution. Had the statement been recorded, it could be used for the purpose of corroboration under Section 157 of the Evidence Act or for contradiction under Section 145 of the Evidence Act. At any event, the absence of a statement under Section 164 of Cr.P.C., will not in any way dilute the evidence of PW1. Therefore, the above contention of the learned counsel for the appellant is rejected.

15. The learned counsel for the appellant has brought to the notice of this Court the contradictions in the evidence of the other witnesses also. In this case, except PW1, none of the witnesses are eye-witnesses and they are all hearsay witnesses and witnesses to the conduct of the victim. Therefore, the contradictions in the evidence of the other witnesses, in no way, dilute the case of the prosecution.

16. The learned counsel for the appellant further contended that PW2, PW5 and PW7 did not support the case of the prosecution and they turned hostile to the case of the prosecution. It is also a settled proposition of law that the evidence of a hostile witness cannot be thrown out in toto. The proviso to Section 154 of the Evidence Act makes it very clear that the evidence of a witness can be relied upon to the extent he supports the person who called him as a witness. Therefore, the evidence of the said hostile witnesses can be relied upon to the extent they support the case of the prosecution.

17. Further, though the learned counsel for the appellant contended that PW3 and PW4 are husband and wife and the same was not revealed by the prosecution and it would affect the case of the prosecution. They are not eye-witnesses and their relationship is not relevant to the case in hand. Therefore, this court is of the considered view that non-mentioning of the said relationship by the prosecution is not fatal to the case of the prosecution.

18. The learned counsel for the appellant further contended that the prosecution has failed to produce the medical evidence to corroborate the evidence of PW1. In this case, the nature of the offence does not require any medical evidence at all to prove the same. Therefore, non-conducting of medical examination is not at all a relevant fact.

19. In this appeal, the learned counsel for the appellant contended that the sexual intent of the Accused was not proved by the prosecution witnesses. However, as per Section 30 of the POCSO Act, 2012, in any prosecution for any offence under the POCSO Act, which requires a culpable mental state on the part of the Accused, the Special Court shall presume the said mental state and it shall be a defence for the Accused to prove the fact that he had no such mental state with respect to the charge as an offence in that prosecution. Therefore, insofar as the offences under the provisions of the POCSO Act are concerned, the Special Court shall presume the culpable mental state on the part of the Accused.

20. In this case, the appellant has not brought on record any material or any circumstance from the cross-examination of the witnesses to show that he had no sexual intent while touching the shoulder and breast of PW1 victim. On the side of the defence, three witnesses were examined. The evidence of all the three witnesses, DW1 to DW3, is to the effect that the Accused was doing housekeeping work at a private Marriage Hall and that he used to work in the said premises between 8.30 a.m. and 9.00 p.m. The said evidence is in no way helpful to the case of the Accused to disprove his culpable mental state. Even assuming that the said evidence was let in for the purpose of alibi, the said evidence is general in nature and is not in relation to the time in which the crime is said to have occurred. Therefore, the evidence of DW1 to DW3 is also of no use to the appellant to disprove the case of the prosecution.

21. The further contention of the learned counsel for the appellant is that the age of the victim was not at all proved by the prosecution. PW1, in response to the preliminary question put by the Court, replied that she was aged about 18 years as on the date of her cross-examination, that is, on 13.03.2015. The said factum was not disputed by the defence. The defence has only contended that the age of the victim was not proved, but nowhere in the defence before the Trial Court was such a defence taken. In fact, PW8, in her chief-examination, deposed that the victim was aged about 16 years at the time of the occurrence. Therefore, it is too late to contend before the Appellate Court that the prosecution has failed to prove the age of the victim.

22. The learned counsel for the appellant relied on the following judgments:

                     1. Crl.A.No.640 of 2022 dated 29.03.2023 mentioned in V.Saravanan Vs. State by the Inspector of Police, AWPS Tiruppur North Police Station, Tiruppur District.

                     2. The Hon'ble Apex Court judgment in R.Shaji Vs.State of Kerala dated 04.02.2023 reported in 2014 (4) SCC (Cri) 185.

                     3. Crl.O.P.No.9624 of 2007 dated 25.11.2009 in E.Balajee Vs. The State, represented by the Inspector of Police.

                     4. Crl.O.P.No.17212 of 2019 dated 03.07.2019 in Sugu @ Sugumaran Vs. State represented by the Inspector of Police.

                     5. RaiSandeep @ Deepu Vs. State of NCT of Delhi, dated 07.08.2012 reported in 2012 (8) SCC 21.

                     6. Crl.A(DB) No.188 of 2023 dated 26.09.2015 in Suraj Kumar Vs. The State of Bihar.

                     7. Crl.A.No.1098 of 2024 dated 29.03.2023 in Nirmal Premkumar and another vs. State, represented by the Inspector of Police.

                     8. Crl.A (DB) No.863 of 2018 in Mandan Rai Vs. The State of Bihar and Crl.A(DB) No.924 of 2018 dated 15.09.2023 in Satendra Ray Vs. The State of Bihar.

The factual matrix in the said decisions and the present case in hand is completely different. It is settled position of law that the principle of state decisis is foreign to cirminal law and even slightest change in the factual position will render the case law inapplicable. Therefore, the said decisions are not at all applicable to the case in hand. Therefore, absolutely there is no merit in the above appeal, which warrants acquittal of the appellant.

23. However, on perusal of the judgment of the Trial Court, it is found that the Trial Court has charged the Accused for the offences punishable under Section 354 of IPC and Section 8 of the POCSO Act and convicted the appellant for both the charges. The offence under Section 354 of IPC and the offence under Section 8 of the POCSO Act are two different offences constituted by the same act or omission. Therefore, in view of Section 26 of the General Clauses Act, 1897, the offender shall be liable to be prosecuted and punished under either or all of those enactments, but shall not be liable to be punished twice for the same offence. In this case, the Trial Court has convicted the appellant for both offences and imposed separate sentences for both offences.

24. In view of the above, the appellant having been convicted and punished under Section 8 of the POCSO Act, there shall be no separate punishment under Section 354 of IPC. Hence, the sentence imposed on the appellant in respect of Section 354 of IPC is hereby set aside and the remaining part of the judgment, dated 08.09.2017 is confirmed.

25. In the result, this Criminal Appeal is partly allowed.