CDJ Law Journals

(Prayer: This Criminal Appeal has been filed under Section 374 of Cr.P.C, to allow the above appeal and consequently set aside the impugned judgment dated 24.07.2019 passed by the Court of Sessions (Fast Track Mahila Court), Kanyakumari District, Camp Court at Kuzhithurai in Spl.S.C.No.12 of 2017 forthwith.)

1. This Criminal Appeal is directed against the judgment of conviction passed by the learned Sessions Judge (Fast Track Mahila Court), Kanyakumari District, Camp Court at Kuzhithurai in Spl.S.C.No.12 of 2017 dated 24.07.2019.

2. On perusal of records, it is found that PW18 Tmt.Mercy Ramani Bai registered Ex.P10 First Information Report in Crime No.213 of 2016 based on Ex.P1 complaint given by PW1, the father of the victim/PW2 for the offence punishable under Sections 6, 5(a)(iii), 4 and 3(a) of the POCSO Act and placed the same before the Inspector of Police, All Women Police Station for investigation. PW19 Tmt.Neela Devi, Inspector of Police, All Women Police Station, Kuzhithurai, has taken up the investigation of the above case on 18.11.2016 and at around 16 hours, she visited the place of occurrence and prepared Ex.P3 Observation Mahazar and Ex.P11 Rough Sketch in the presence of witnesses Harikumar and PW8 Bensigar. Thereafter, she examined the defacto complainant, victim and witnesses Suresh, Prasanth, Kobakumaran, Prasanth, Sathishkumar, Jeyachandran, Mercy Ramani Bai and recorded their statements. On the same date, at around 19.00 hours she arrested the Accused at Mattapalayam check post in the presence of witnesses PW9 Sathishkumar and PW6 Jeyachandran. The Accused volunteered to give a confession which she recorded in the presence of the same witnesses. She caused the Accused to be remanded into the judicial custody. On 22.12.2016, she examined the witnesses George, Flawrence Mary, Ashokrajan, Kumari Vijila and Vibina and recorded their statements. On 24.02.2017, she examined the Scientific officer Ananthi and recorded her statement. On 27.03.2017, she examined Dr.Rajesh and recorded his statement. On 24.12.2016, she has given requisition to learned Chief Judicial Magistrate for recording the statements of victim and his father. On 18.11.2016, she caused the medical examination of the victim to be done by the Government Medical College Hospital, Aasaripallam, Nagercoil. On 16.02.2017, she forwarded the samples collected from the victim to Regional Forensic Science Laboratory, Tirunelveli. On 07.12.2016, she has given Ex.P16 requisition letter to the Fast Track Mahila Court, Nagercoil for conducting potency test on the Accused. On 18.04.2017, she altered the case sections from Section 6 r/w. 5(a), 4 r/w. Sections 3(a) of POCSO Act to Sections 4, 3(a), 5(a) and 6 of POCSO Act, 2012 and prepared Ex.P.17 Alteration Report. She obtained Ex.P.18 age certificate of the victim from the School, where he studied. On completion of investigation, she obtained opinion from the Public Prosecutor and laid final report before the Fast Track Mahila Court, Nagercoil. The Fast Track Mahila Court, Nagercoil has taken cognizance of the said final report in Spl.S.C.No.12 of 2017 and issued summons to the Accused/Appellant herein. On appearance of the Appellant, the copies of documents relied on by the prosecution were furnished to the Appellant under section 207 of Cr.P.C.

3. After hearing both sides, the Trial Court has framed the charges against the Appellant for the offences punishable under Sections 3(a), 4, 5(a) and 6 of POCSO Act, 2012. When the charges were read over and explained to the Appellant, he denied the said charges and therefore, he was ordered to be tried by the Trial Court.

4. On the side of the prosecution, PW1 to PW19 were examined and Ex.P1 to Ex.P18 were marked.

5. Upon closure of the prosecution side evidences, the incriminating circumstances appeared in the evidence were put to the Accused under Section 313(i)(b) Cr.P.C. and the Accused denied the same as false and claimed that he has witnesses on his side. However, no witness was examined on his side, but Ex.D1 was marked through the cross examination of PW16. The Trial Court, after hearing both sides, has found the appellant guilty of the offences punishable under Sections 3(a) and 4 and 5(a) r/w Section 6 of the POCSO Act. The Trial Court has sentenced the appellant as follows:

Section of Law	Sentence of imprisonment	Fine amount
Section 3(a) punishable under Section 4 of the POCSO Act	To undergo seven years Rigorous imprisonment	Rs.25,000/- i/d to undergo one year Rigorous Imprisonment
Section 5(a) punishable under Section 6 of the POCSO Act	To undergo ten years Rigorous imprisonment	Rs.25,000/- i/d to undergo one year Rigorous Imprisonment

The Trial Court has directed the said sentences to run concurrently. Aggrieved by the said conviction and sentence, the appellant is before this Court.

6. The counsel for the appellant is heard at length. The learned Government Advocate (Crl. Side) appearing for the respondent Police is also heard. The Trial Court records are called for and perused.

7. Point for determination:

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

Answer:

8. On perusal of records, it is found that it is the case of the prosecution that the Appellant herein is the Head Constable bearing No. 373 of Thuckalay Police Station. The victim boy was studying 9th standard at the time of occurrence. On 18.11.2016 at around 12.00 Noon, the Appellant herein was working in the Check Post at Madhampalai and at that time he was drunk. The victim was standing in front of his house opposite to the Police Check Post and the Appellant called the victim boy and taken him in a narrow lane to a secluded place. The Accused removed his pant and took out his male organ and inserted it into the victim boy's mouth, asked him to suck till the sperms come out and thereby forced the victim boy to suck his private part. At that time of ejaculation, he removed his male organ from the mouth of the victim and asked him to shake it until the semen comes out. Therefore, the action of the appellant is punishable under Sections 3(a), 4, 5(a) and 6 of the POCSO Act. To substantiate the said case, the prosecution has examined the witnesses PW1 to PW19 and exhibited Ex.P1 to Ex.P18.

9. On careful perusal of the prosecution side evidences, it is found that the victim is a boy aged about 15 years at that time of occurrence and as per Ex.P18 Age certificate issued by the School, his date of birth is 13.09.2001. There is no much dispute about the age of the victim. The victim boy was examined as PW2 and he, in his evidence, deposed that on 18.11.2016, the school was declared holiday since a student died and he was standing outside the house, at that time, a Police uncle in the Check Post situate in front of his house called him and asked him to come behind to the bathroom, there, he opened his pant zip and put his penis into the victim's month. Further, the appellant asked the victim to shake his male organ with his hand until the white fluid come out. Thereafter, he has returned to his house. When the victim's father asked the victim as to where he has gone, he informed the above occurrence. On hearing the same, PW1/victim's father has gone to beat the said Police. He and his father have gone to Pazhugal Police Station. The victim informed the said occurrence to the Police which they have written. Thereafter, they have taken the victim to the hospital. Thereafter, he has given Ex.P2 164 statement before the learned Magistrate. On careful perusal of cross examination of victim by the appellant, it is found that the defence has not brought out any circumstances to discredit the evidence of PW2.

10. The learned counsel for the appellant contended that the mother of the victim had an illicit intimacy with the appellant. The said factum came to the knowledge of PW1 and therefore, due to the said motive, PW1 has lodged Ex.P1 complaint implicating the Appellant in the above crime. In this connection, the learned counsel for the Appellant relied on the cross examination of PW1 and PW2. It is true that the defence has put such a suggestion to PW1 that his wife and the appellant has relationship and in this connection, on the date of occurrence, there were quarrel between the PW1 and his wife. However, PW1 has denied the said suggestion. According to the learned counsel for the appellant, that is the reason why the wife was not cited as a witness in the above case. However, merely because the mother of the victim and the wife of the PW1 was not examined before the Court, it will not give an automatic inference that she and the appellant had illicit intimacy. It is pertinent to note here that the mother of the victim is not a witness to the occurrence and therefore, to prove the occurrence, her evidence is not necessary. Except the said suggestion, the defence has not brought in any material to prove the illicit intimacy between the appellant and the mother of the victim and only due to the said motive, the PW1 had lodged the false complaint before the Police. Therefore, this Court is of the considered view that the said contention of the learned counsel for the appellant does not hold water.

11. Further, the learned counsel for the appellant contended that on the date of occurrence, there was a quarrel between PW1 and his wife, which was admitted by PW2 in his cross examination. Only after the said quarrel, PW1 has gone to the Police Station to lodge the complaint. The said position was admitted by PW2 in his cross examination. From the above admission of the victim in his cross examination, the learned counsel for the appellant contended that the defence has established the quarrel between the PW1 and his wife with regard to the intimacy she had with the appellant. However, PW2 in his cross examination has clearly stated that he does not know the reasons for the quarrel between his father and mother. In the absence of any concrete evidence with regard to the reason for the quarrel between PW1 and PW2, it cannot be inferred that the said quarrel is only with regard to the alleged illicit intimacy between the appellant and the mother of the victim.

12. The learned counsel for the appellant further contended that though the occurrence was said to have happened at around 12.00 hours on 18.11.2016, the FIR was registered only on 18.11.2016 at around 16.00 hours with the delay of 4.00 hours. According to the learned counsel for the appellant, the said delay was occurred only due to the quarrel between PW1 and his wife with regard to the illicit intimacy she had with the appellant. It is true that the FIR was registered only at 16.00 hours on the date of occurrence with the delay of 4.00 hours. According to learned counsel for the appellant, the said delay has occurred only due to fabrication of the case against the appellant. Had it been true, the complaint need not be registered with the delay. From the evidence of PW2, it is found that there was a quarrel between the PW1 and his wife and only thereafter PW1 and the victim have proceed to lodge Ex.P1 complaint. The quarrel may be for the reason that the wife of PW1 has not taken care of the victim properly. Therefore, the delay is not assume much significance in this case.

13. The delay will be fatal only in cases where there is a chance for exaggeration, embellishment and false implication. Even from the suggestion made by the appellant to PW1, it is found that PW1 called his wife for lodging the complaint against the appellant since he attacked PW1 on that day. The evidence of PW2 is clear that on hearing the occurrence, PW1 has gone and questioned the appellant. According to PW2, PW1 had gone to attack the appellant and therefore, the appellant has pushed the PW1 down, when PW1 attempted to attack the appellant. Therefore, in the given circumstances, this Court is of the considered view that the delay in lodging the FIR with the Police is not a fatal to the case in hand.

14. The learned counsel for the appellant further contended that the place of occurrence itself is doubtful one. The place of occurrence is surrounded by so many houses and therefore, there is no possibility for committing the sexual offence as alleged in a broad day light. Therefore, according to the learned counsel for the appellant, the case of the prosecution is highly unbelievable. On careful perusal of Ex.P11 rough sketch, it is found that there was a lane between Vijayan Industries Shop and A.K Traders. Further, from the Ex.P3 observation mahazar, it is found that the scene of crime is situate in the said lane near the Check Post in a secluded place where the bathroom is situate. The rough sketch discloses that all the houses are facing towards Parasalai Road and Panachamoodu Road and the scene of crime is not in vicinity of above houses. Therefore, the above contention of the learned counsel for the appellant is also cannot be countenanced.

15. Though PW3 and PW4 did not support the case of the prosecution and turned hostile to the case of the prosecution, their evidence is to the effect that there was a crowd near the Check Post, which implies that some untoward incident had happened near the Check Post. The evidence of PW5 and PW6 is to the effect that they heard that a Police man had committed a sexual assault on a child. The evidence of PW5, PW6 and PW7 is only hearsay and therefore, no importance need to be attached to their evidence. PW8 is the witness to the observation mahazar and PW9 is the witness to the confession said to have given by the appellant. PW10 and PW13 are the Police Constables who had taken the appellant for medical examination. PW11 and PW14 are the Constables who had taken the victim for medical examination. PW12 is the Scientific officer, who conducted the medical examination on the swab collected from the oral cavity of the victim. Though the report discloses that no semen deducted in the swab, even as per the case of the prosecution, the appellant has not ejaculated in the mouth of the victim and he has taken out his private part before the ejaculation and asked the victim to shake it by his hands. Therefore, the absence of semen in the oral cavity of the victim is no way affect the case of the prosecution.

16. PW15 Dr.Bibiana, in her evidence deposed that she has issued medical certificate Ex.P7 to the effect that the Accused was brought for drunkenness examination, but he did not give consent for medical examination. The conduct of the appellant for not subjecting himself the medical examination is clearly implies that he was under the influence of alcohol at that time of examination. An adverse inference is need to be drawn as against the appellant. The evidence of PW16 proves that the appellant had potency, though the defence has cross examined PW16 touching upon the examination he had conducted on the appellant, they could not brought any circumstances to discredit the evidence of PW16. Further, it is not the case of the appellant that he had no potency. From the suggestion made to PW1 that the wife of PW1 and the appellant herein had illicit intimacy implies that he had potency. Therefore, there cannot be any doubt with regard to the potency of the appellant.

17. Further, the evidence of PW16 Dr.R.Rajesh makes it clear that the victim had the following Ante-Mortem Injuries at that time of medical examination:

                     1. 4x1cm abraded contusion seen over the outer aspect of middle of left arm.

                     2. 4x1cm contusion seen over the outer aspect of back of lower half of left arm.

                     3. 8x1½cm horizontal contusion seen over the back of left side of abdomen.

                     4. 5x1cm horizontal contusion seen over the back of left side of chest.

                     5. 5x1cm horizontal contusion seen over the right side of back of abdomen.

                     Above said injuries are reddish in colour.

18. From Ex.P.9, it is found that the said medical examination was done on 19.11.2016 on the next date of the occurrence. The defence has suggested the Doctor that the said injuries would have happened by beating up with stick. PW16 had admitted to the said suggestion. Though there is no explanation on the side of the prosecution as to how PW2 sustained above injuries, from the suggestions made to PW2 by the defence it could be understood that immediately after the occurrence, PW1 would have beaten up PW2 for having obliged for the sexual demand of the appellant. The injuries found in the body of PW2 also strengthen the case of the prosecution.

19. On careful perusal of the prosecution side evidences and the circumstances proved through the prosecution side witnesses, it is clear that the appellant herein had called the victim to the lane situate near the Check Post, inserted his private part into the mouth of victim and asked him to suck it until the semen has come out and at that time of ejaculation, he has taken out the private part and asked him the victim to shake it until the semen came out. The evidence of PW2 victim boy makes it clear that he obliged to the sexual overtures made by the appellant. It is proved by the prosecution that a Policeman, who has subjected the victim boy to penetrative sexual assault as defined under Section 3(a) of the POCSO Act. Therefore, the present case would fall within Section 5(a)(i) to (iv) of the POCSO Act. Therefore, this case is squarely fall into an aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Therefore, this Court is of the considered view that the conviction and sentence recorded by the Trial Court for the offence punishable under Section 6 of the POCSO Act is to be sustained.

20. However, since the appellant is found guilty of the offence punishable under Section 6 of the POCSO Act, the punishment imposed on the appellant for the offence punishable under Section 4 of the POCSO Act need to be set aside as he was punished for the aggravated form of penetrative sexual assault defined under Section 5 of the POCSO Act.

21. In the result, this Criminal Appeal is partly allowed. The bail bond executed by the appellant, if any is hereby cancelled. The fine amount, if any, paid in respect of the offence under Section 4 of the POCSO Act shall be refunded to the appellant. The respondent Police is directed to secure the appellant and produce him before the Trial Court for serving out the remaining period of sentence.

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