(Prayer: This Criminal Appeal filed under Section 374 of Code of Criminal Procedure, to call for the records and set aside the conviction and sentence passed in Spl.S.C.No.4 of 2016 dated 06.07.2018 by the learned Sessions Judge, Mahila Court, Madurai.)
1. The Criminal Appeal is directed against the judgment of conviction made in Spl.S.C.No.4 of 2016 dated 06.07.2018 on the file of the Mahila Court, Madurai.
2. The Inspector of Police, All Women Police Station, Tallakulam, Madurai City laid a charge sheet against the appellant / sole accused (hereinafter referred as 'accused') alleging that the defacto complainant was working as a beautician trainer in Industrial Training Institute (ITI), Pudhur, Madurai and her husband was working as a Head Constable in Dog Squad attached to Armed Reserve, Madurai, that the defacto complainant's daughter (victim girl) was studying 7th standard in Kendriya Vidyalaya, Madurai, that the victim girl, after attending school, used to go to tuition centre situated just opposite to her school, that the defacto complainant, after completing her work, used to pick up the victim girl, that there was a family function in the defacto complainant's relative's home on 07.10.2015 and her husband was helping their relatives, that since the victim girl was also to attend the function, her father requested his friend to pick up his daughter from the school and drop her in their house and accordingly, the defacto complainant's husband's friend picked up the victim girl and dropped her in front of their house at about 03.00 p.m., that when the victim girl was climbing stairs, the accused, who was residing in the ground floor, was found sitting on motor tank, that the victim girl went to their first floor house and was opening the door and at that time, the accused, who came behind, dragged her hands and attempted to hug her and the victim girl pushed him and entered into their house and locked inside and at that time, the accused told her that her aunt was not in the home and her father would come home soon and directed the victim girl to come to his house, that when the victim girl viewed through her window found that the accused was sitting on motor tank and fearing that he would return, she decided to go to upstairs and then to move to nearby block and at that time, she heard a vehicle sound and on seeing that her mother returned, she got down crying and informed the incident to her mother and that thereby the accused had committed the offences under Sections 7 and 8 of the Protection of Child From Sexual Offences Act, 2012 (hereinafter referred as 'POCSO Act').
3. After the receipt of the final report, the case was taken on file in Spl.S.C.No.4 of 2016 on the file of Mahila Court, Madurai. After appearance of the accused, copies of records were furnished under Section 207 Cr.P.C. on free of costs. The learned Sessions Judge, on perusal of records and on hearing both the sides, being satisfied that there existed a prima facie case against the accused, framed charge under Section 8 of the POCSO Act and the same was read over and explained to him and on being questioned, the accused denied the charge and pleaded not guilty.
4. The prosecution, to prove its case, examined 15 witnesses as P.W.1 to P.W.15 and exhibited 5 documents as Ex.P.1 to Ex.P.5.
5. The case of the prosecution emerging from the evidence adduced by the prosecution in brief as follows;
(a) P.W.1 (defacto complainant) is the wife of P.W.4 and P.W.6 (victim girl) is their daughter. P.W.4 was working as a Head Constable in Dog Squad attached to Armed Reserve, Madurai. P.W.1 was working as a beautician trainer in ITI, Pudhur, Madurai. P.W.6 (victim girl) was studying 7th standard in Kendriya Vidyalaya and she was aged 12 years. Their son was studying in a school at Udumalaipettai and was a hosteler. P.W.4 along with his family were residing in Armed Reserve Police quarters. P.W.2 Sundar and P.W.3 Jeyakumar were also residing in the same quarters.
(b) P.W.1 used to go to work at 09.00 a.m. and return by 05.30 p.m. P.W.6 (victim girl), after attending the school, used to go to tuition centre and P.W.1, while returning from her work place, used to pick up her daughter. On 07.10.2015, there was a family function of their relatives and P.W.4, by taking leave, was helping the relatives. P.W.1 planned to return early and to take P.W.6 (victim girl) to the function. Since P.W.4 was not able to pick up his daughter from the school by 03.00 p.m., he requested his friend P.W.11 Anandh, who was also working in Armed Reserve, to pick up his daughter along with his children and to drop her in their house. Accordingly, P.W.11 picked up P.W.6 (victim girl) in the school and dropped her in front of their house.
(c) The accused was working as a Sub Inspector of Police in Armed Reserve and was residing in the ground floor of that block. P.W.6 (victim girl) found the accused was sitting on motor tank just opposite to their house. P.W.6 (victim girl) climbed stairs for reaching their house in the first floor and while she was attempting to open the door of their house, the accused, who came behind, dragged her hands and tried to hug her. Immediately, P.W.6 (victim girl) pushed the accused and entered into their house and locked inside. The accused told her that her aunt was not in the home and her father would come early, so come to his house immediately. On seeing through window, P.W.6 (victim girl) found that the accused was again sitting in the motor tank and fearing that he would come again, she locked her house and attempted to go to upstairs so as to reach her mother's friend Nagarathinam's house and at that time, on hearing her mother's vehicle sound, she got down and informed the entire incident to her mother. P.W.1 immediately contacted her husband and informed the incident. P.W.4 immediately came to their house. P.W.1 and P.W.6 (victim girl) narrated the incident, breaking down in tears. Not knowing what to do, P.W.4 immediately contacted P.W.5, the then Additional Superintendent of Police, Armed Reserve and informed about the incident and P.W.5 directed him to lodge a complaint before the police.
(d) P.W.5, after getting the information from P.W.4, contacted P.W.7 Kumaresan (the then Inspector of Police, Armed Reserve) and directed him to go to the house of P.W.4. P.W.7 along with P.W.8 Murugesan (the then Sub Inspector of Police) and P.W.9 Nagarathinam (Orderly) in Armed Reserve went to the house of P.W.4 and enquired about the incident. P.W.7 has then informed to his higher officials and directed P.W.4 to lodge a complaint before the jurisdictional police. P.W.1 and P.W.4 went to Tallakulam All Women Police Station and P.W.1 lodged a written complaint under Ex.P.1.
(e) P.W.14, the then Sub Inspector of Police, Tallakulam All Women Police Station received the complaint at about 06.00 p.m. on 07.10.2015 from P.W.1 and registered a case in Crime No.39 of 2015 against the accused under Sections 7 and 8 of the POCSO Act and prepared the First Information Report under Ex.P.4. P.W.14 immediately went to P.W.1's house and examined P.W.6 (victim girl) and submitted the case file to P.W. 15 - the then Inspector of Police for further investigation. P.W.15, after taking the above case for investigation, went to the house of P.W.1 at about 07.00 p.m., examined P.W.1 and prepared the observation mahazar under Ex.P.2 in the presence of P.W.2 and P.W.3 and drew a rough sketch under Ex.P.5. P.W.15 then examined P.W.2 to P.W.4 and P.W.6 and recorded their statements. At about 20.10 hours, P.W.15 arrested the accused near Devi Hospital, brought him to the police station and sent him to remand on the next day morning.
(f) P.W.15 submitted a requisition for recording a statement under Section 164 Cr.P.C. and in pursuance of the same, P.W.13 Judicial Magistrate summoned P.W.6 (victim girl) and after satisfied with the identification, recorded the statement of P.W.6 (victim girl) under Section 164 Cr.P.C. under Ex.P.3. P.W.15 then examined P.W.5 and P.W.7 to P.W.9 on 12.10.2015, P.W.11 on 15.10.2015, P.W.10 on 20.10.2015 and P.W.12 on 22.10.2015. Thereafter, she examined P.W.14, who registered the case. After completing the investigation, P.W.15 filed the final report on 30.11.2015 against the accused for the offences under Sections 7 and 8 of the POCSO Act. With the examination of P.W.15, the prosecution has closed their side evidence.
6. When the accused was examined under Section 313(1)(b) Cr.P.C. with regard to the incriminating aspects against him in the evidence adduced by the prosecution, he denied the evidence as false and stated that a false case has been foisted against him. Though the accused has stated that he is having defence evidence, he has not let in any evidence subsequently.
7. The learned Sessions Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, passed the impugned judgment dated 06.07.2018 finding that though the charge under Section 8 of the POCSO Act was not proved, attempt to commit that offence was proved, convicted the accused for the offence under Section 8 r/w 18 of the POCSO Act and sentenced him to undergo 2½ years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo 3 months simple imprisonment. Aggrieved by the impugned judgment of conviction and sentence, the accused has preferred the present appeal.
8. Whether the impugned judgment of conviction and sentence imposed on the accused in Spl.S.C.No.4 of 2016 dated 06.07.2018 on the file of the Mahila Court, Madurai, is liable to be set aside? is the point for consideration.
9. The facts not in dispute are; P.W.6 (victim girl) is the daughter of P.W.1 and P.W.4. P.W.4 was working as a Head Constable in Dog Squad attached to Armed Reserve, Madurai and whereas, the accused was working as a Sub Inspector of Police in the same Armed Reserve. P.W.1 was working as a beautician trainer in ITI, Pudhur, Madurai. P.W.6 (victim girl) was aged 12 years and was studying 7th standard in Kendriya Vidyalaya, Madurai at the relevant point of time.
10. The case of the prosecution is that on 07.10.2015 at about 03.00 p.m., when P.W.6 (victim girl), after returning from the school, climbed stairs to reach her house in the first floor and while she was attempting to open the door, the accused, who was residing in the ground floor, came behind and dragged the hands of P.W.6 and attempted to hug her, that P.W.6 (victim girl) pushed the accused and entered into the house and locked inside, that the accused at that time told P.W.6 that her aunt was not in the home and her father would come soon and hence, directed her to come to his house immediately and that thereby, the accused had committed the offences under Sections 7 and 8 of the POCSO Act.
11. The learned counsel appearing for the accused would submit that the entire case of the prosecution is based on surmises and figment of imagination of P.W.1 and P.W.4 (parents of the victim girl) as they had prior enmity and hatred towards the accused, that the prosecution miserably failed to examine any witness from either the adjoining flats of the police residential complex nor from anywhere else from the complex, that all the witnesses cited and examined by the prosecution except P.W.6 (victim girl) all are hearsay witnesses and the same cannot be relied on for any purposes, that P.W.4 was working in the rank of Head Constable, whereas, the accused was in the rank of Sub Inspector of Police and in a slew of criminal cases, P.W.4 was ordered to serve under the accused he being a Sub Inspector and being domiciled at the police residential quarters in the same block, the same resulted in jealousy, heart burning and besides considerable bad blood being generated, that P.W.1, who is a beautician, started bringing various types of her female clients to the official residential quarters and also few men started visiting the place bringing disrepute to a residential complex and that too of the Armed force, that the accused got often disturbed by the visits of so many persons vehemently objected and due to which, there were verbal duels very often between the accused and P.W.1's family, that the accused threatened to take up the issue with the higher ups but desisted it on the ground that the matter could be sorted out between themselves and did not want a black mark in the carrier of P.W.4 and that before the accused takes up the issue with the higher ups, P.W.4 and his family members filed the above frivolous complaint and foisted the false case against the accused.
12. The learned counsel appearing for the accused would further submit that though the charge was framed under Section 8 of the POCSO Act, the learned trial Judge, without any charge and without putting the accused in notice, convicted him for the offence under Section 8 r/w 18 of the POCSO Act, that the impugned judgment suffers from various infirmities, that in no stretch of imagination one can conclude that a girl, if at all age of 12 or 13 years could have the strength and /or mustered the strength and courage to push especially a well-trained man belonging to armed force and therefore the case of the prosecution is untenable, that though medical examination in such types of sexual assault cases is mandatory, P.W.6 (victim girl) was not subjected to medical examination and the prosecution has not offered any acceptable reason or explanation for the same, that the normal timing of P.W.6 (victim girl) to come back from the school is not 03.00 p.m. and none could have expected her to arrive before the normal time and hence, the accused would not have anticipated, that the prosecution has miserably failed to prove the charge but the learned trial Judge, reiterating the case of the prosecution and without considering the evidence available on record, has proceeded to convict the accused mechanically and that therefore, the same is liable to be interfered with.
13. The learned Government Advocate (Criminal Side) appearing for the respondent police would submit that P.W.6 (victim girl) gave evidence categorically reiterating the case of the prosecution, that the evidence of P.W.6 (victim girl) given before the trial Court was corroborated by her statement given under Section 164 Cr.P.C. before the learned Magistrate, that P.W.1 (mother) and P.W.4 (father) with whom the incident was informed immediately after the occurrence have deposed reiterating the version of P.W.6 (victim girl), that the evidence of P.W.6 (victim girl) alone is sufficient to convict the accused provided the evidence of P.W.6 (victim girl) inspires confidence of the Court, that though P.W.1, P.W.4 and P.W.6 (victim girl) were subjected to lengthy cross-examination, nothing was elicited by the defence in their favour, that since the prosecution has shown the fundamental facts through the evidence of P.W.1, P.W.4 and P.W.6 (victim girl), drawing presumption under Section 29 of the POCSO Act is automatic, that the accused has not produced any evidence to rebut the said presumption, that the motive attributed by the accused are all flimsy and not supported by any evidence, that the learned trial Judge, appreciating the evidence available on record and since the offence under Section 7 r/w 8 of the POCSO Act was not proved, rightly convicted the accused under Section 8 r/w 18 of the POCSO Act and that therefore, the same does not warrant any interference.
14. It is pertinent to note that the learned trial Judge has framed the charge under Section 8 of the POCSO Act against the accused but at the time of pronouncing judgment, holding that the charge under Section 8 of the POCSO Act was not proved, but attempt to commit the offence under Section 8 of the POCSO Act was proved, convicted the accused under Section 8 r/w 18 of the POCSO Act.
15. Section 8 of the POCSO Act prescribes punishment for sexual assault as defined under Section 7 of the POCSO Act. Section 7 of the POCSO Act defines sexual assault, including any cover touching a child's private parts or any other act with sexual intent, even without penetration or direct skin to skin contact (like touching through clothes) emphasizing the offender's intent over the physical nature of the touch. It establishes that such acts, done with sexual intent, constitute a serious offence with punishment under Section 8 of the POCSO Act. The core element is the offender's sexual motive, not just the physical act. Section 18 of the POCSO Act deals with attempting to commit sexual offence against a child, making such attempts punishable. It means planning, ensuring, or taking steps towards a sexual crime against a child, even if the act is not completed, can constitute an offence under Section 18 of the POCSO Act. To put it differently, if someone attempts to sexually abuse a child but fails, Section 18 of the POCSO Act ensures they can still be punished with imprisonment as if they had succeeded, albeit with a lesser punishment.
16. At this juncture, it is necessary to refer Section 29 of the POCSO Act, which deals with reverse burden and the same reads as follows;
“29. Presumption as to certain offences. —Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special 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”
17. Section 29 of the POCSO Act imposes a reverse burden by creating a legal presumption that once a person is prosecuted for the offence under Sections 3, 5, 7 and 9, the Court must presume the person is guilty unless the accused can prove their innocence. However, the prosecution is still required to establish a prima facie case by showing foundational facts to attract the presumption under Section 29 of the POCSO Act and after the prosecution shifts its initial burden, the accused must then prove that he is not guilty.
18. It is pertinent to note that foundational facts in a POCSO case included the proof that the victim is a child, that the alleged incident has taken place and that the accused has committed the offence. If the basic and foundational facts of the prosecution case is laid by adducing legally admissible evidence, then the burden gets shifted to the accused to rebut it, by establishing that he has not committed the offence or that no such incident was occurred or that the victim is not a child.
19. In the case on hand, the case of the prosecution is that P.W.6 was a child at the time of the alleged occurrence. According to the prosecution, she was aged 12 years and was studying 7th standard at that time. P.W.1 would say that P.W.6 (victim girl) was aged 12 years and P.W.1, P.W.4 and P.W.6 (victim girl) would say that P.W.6 (victim girl) was studying 7th standard at that time. The accused before the trial Court has nowhere disputed the age of P.W.6 (victim girl). No doubt, the prosecution has not produced any certificate to show the date of birth of P.W.6 (victim girl), but as rightly pointed out by the learned Government Advocate (Criminal Side), it is not a border case of 17 or above which requires strict proof to show that the victim was a child under the age of 18 years. In the present case, as already pointed out, P.W.6 (victim girl) was only studying 7th standard and according to the prosecution, she was aged 12 years and that since the same was not disputed, non-production of birth certificate and other records cannot be faulted. In the absence of any challenge, it can easily be concluded that P.W.6 was a child below the age of 18 years at the time of the alleged occurrence.
20. As already pointed out, the defence attributed motive for filing the above case under the POCSO Act against the accused.
21. The learned counsel appearing for the accused would submit that there existed internal rivalry, professional jealousy and personal vengeance between the family of P.W.6 (victim girl) and the accused. According to the defence, since P.W.1 was working as a beautician trainer in ITI, she used to bring several ladies and some gents also in connection with her beautician work and that was objected to by the accused and hence, there were wordy altercation between them often. During crossexamination of P.W.1, P.W.4 and P.W.6 (victim girl), the above motive was suggested but all the witnesses had specifically denied the same. It is the further case of the defence that there were domestic and property related frictions between the two families over the use of the common corridor, parking space and visitors' conduct within the police quarters, but as rightly contended by the learned Government Advocate (Criminal Side), these contentions were not even suggested during the cross-examination of P.W.1, P.W.4 and P.W.6 (victim girl). More importantly, the defence has not even chosen to examine any of the occupants of other houses in that block to show that there were frequent visitors to the house of P.W.1 in connection with her beautician work and the same caused nuisance to the other occupants of the quarters. As rightly pointed out by the learned Government Advocate (Criminal Side), the defence has not produced any iota of evidence to prove that there existed neighbourhood disputes over the common corridor, parking space, etc.
22. The defence has alleged that P.W.4, a Head Constable, was directed to serve under the accused, a Sub-Inspector of Police, leading to jealousy and animosity. However, there is no evidence P.W.4 worked under the accused, and this motive was not suggested during P.W.4's crossexamination. P.W.4 stated his family attended the accused's daughter's marriage and gifted a silk saree. The defence did not dispute the gift but claimed it was not linked to any ill feelings. As rightly contended by the learned Government Advocate (Criminal Side), the alleged motives are vague, flimsy, and lack evidence, warranting rejection.
23. P.W.6 (victim girl) before the trial Court gave evidence categorically reiterating the case of the prosecution. It is necessary to refer the evidence of P.W.6 (victim girl) in the language she deposed for better appreciation;
24. It is pertinent to note that the learned trial Judge, considering the age of the victim girl, conducted a preliminary enquiry to ensure that the child is competent enough to understand the question and give rational answers and on satisfying with her ability to depose, commenced the examination. It is settled law that the evidence provided by a child victim in a POCSO case holds significant value and can be the sole basis for a conviction, provided it is found to be credible and trustworthy by the Court. The testimony of a child victim, if the Court finds it cogent, consistent and inspires confidence, does not require corroboration from independent witness to secure a conviction.
25. As rightly pointed out by the learned Government Advocate (Criminal Side), P.W.6 (victim girl) gave a statement under Section 164 Cr.P.C. before the learned Judicial Magistrate and the evidence of P.W.6 (victim girl) before the trial Court referred above stands corroborated by her statement under Section 164 Cr.P.C. It is necessary to refer the statement under Ex.P.3, wherein, P.W.6 (victim girl) would say,
26. It is pertinent to mention that the version of P.W.6 (victim girl) in both statement before the learned Magistrate under Section 164 Cr.P.C. and also the evidence before the trial Court is consistent. Though P.W.6 (victim girl) was subjected to lengthy cross-examination, the basic version of P.W.6 (victim girl) remains unshaken.
27. P.W.1 (mother) and P.W.4 (father) to whom P.W.6 (victim girl) narrated the incident immediately, corroborated P.W.6's version about the occurrence.
28. As already pointed out, P.W.6 (victim girl) immediately informed P.W.1 (mother) about the incident upon hearing her vehicle arrive. P.W.1's evidence about this disclosure is admissible and significantly corroborates P.W.6's testimony, strengthening her account. P.W.1 did not witness the incident, but her testimony valuably corroborates the victim's narrative. The fact that P.W.6 disclosed the incident immediately to her mother demonstrates the consistency of her narrative from the very beginning. Moreover, P.W.1's evidence is part of the res gestae. At this juncture, it is necessary to refer a decision of the Hon'ble Supreme Court in Krishan Kumar Malik Vs. State of Haryana reported in CDJ 2011 SC 617, wherein, the accused therein was charged for the offence of rape. According to the prosecution, the prosecutrix after the incident met her mother and sister and narrated about the occurrence but they were not examined. The Hon'ble Apex Court, considering the scope of Section 6 of the Indian Evidence Act, which deals with res gestae, has observed,
“34. We shall now deal with Section 6 of the Act, which reads as under:
“6. Relevancy of facts forming part of same transaction - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Black's Law Dictionary defines Res Gestae as follows: (Latin: “things done”) The events at issue, or other events contemporaneous with them in evidence law, words and statements about the res gestae are usually admissible under a hearsay exception (such as present sense impression or excited utterance).
The said evidence thus becomes relevant and admissible as res gestae under Section 6 of the Act.
35. Section 6 of the Act has an exception to the general rule where-under, hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter.
36. Admittedly, she had met her mother Narayani and sister soon after the occurrence, thus, they could have been the best res gestae witnesses, still the prosecution did not think it proper to get their statements recorded. This shows the negligent and casual manner in which prosecution had conducted the investigation then the trial. This lacuna has not been explained by the prosecution. The prosecution has not tried to complete this missing link so as to prove it, beyond shadow of doubt, that it was Appellant who had committed the said offences.”
29. Applying the above legal position, P.W.1's evidence is admissible as res gestae and holds greater value as it relates to the time and circumstances of the event. P.W.1's evidence strongly supports the victim girl's testimony, adding credibility and reliability to the prosecution's case by showing a minimal and natural reaction to the assault. The argument by the learned counsel appearing for the accused that there is no direct evidence except P.W.6 (victim girl) and other witnesses are hearsay, is liable to be rejected, and the reliance on the Hon'ble Supreme Court's decision in Suo Motu Contempt Petition (Criminal) No.5 of 2016 (Saumya rape murder case), is misplaced. For the Appellant: R. Venkataraman, Advocate. For the Respondent: K. Gnanasekaran, Government Advocate (Criminal Side).
30. As already pointed out, the learned counsel appearing for the accused would contend that Section 27 of the POCSO Act mandates that medical examination of a child in respect of whom any offence has been committed under the POCSO Act shall be conducted in accordance with Section 164A Cr.P.C., wherein, Section 164A Cr.P.C. mandates medical examination of a rape victim, attempt to rape victim and deals with the procedure for it. At this juncture, it is necessary to refer a decision of the Hon'ble Division Bench of this Court in Kajendran Vs. The Superintendent of Police reported in 2025 LiveLaw (Mad) 106, wherein, it was observed that in a routine manner every child in a case under the POCSO Act was being subjected to medical examination mechanically and hence, the doctors and hospitals were directed to conduct medical examination based on the nature of the complaint and the relevant passages are extracted hereunder;
“13. .... In those acts that are prescribed under Sections 3 and 5 of the POCSO Act, there is an element of penetration which would require medical examination to substantiate the same. This is more so since the punishment provided under Sections 4 and 6 of the POCSO Act, are more severe. However, when it comes to the sexual assault as is provided under Sections 7, 9 and 11 of the POCSO Act, those are cases where medical examination of the child will serve no purpose. In fact, it will unnecessarily subject the child to once again undergo mental agony
.....
15. The above directions are subject to one caveat. Even for those cases which do not fall within the scope of Sections 3 and 5 of the POCSO Act, there may be cases where the child sustains injury and those cases may fall within the scope of Sections 7 and 9 of the POCSO Act. In those cases, it goes without saying that the medical examination has to be conducted as is required to explain the nature of injury sustained. We further make it clear that considering the complaint made by the victim child and / or guardian, the doctor who examines the victim child shall take a decision as to the nature and extent of medical examination that has to be conducted with the child for the purpose of preparing a report.”
31. In the case on hand, the prosecution is not alleging penetrative sexual assault or any injury to the victim girl, so subjecting the victim girl to medical examination was not necessary, making the objection on this ground liable for instant rejection.
32. The learned counsel appearing for the accused would rely on the decisions of the Hon'ble Supreme Court in Latesh @ Dadu Baburao Karlekar Vs. The State of Maharashtra in Crl.A.No.1301 of 2015 dated 30.01.2018 and Ram Niwas Vs. State of Haryana in Crl.A.No.25 of 2012 dated 11.08.2022, wherein, the Hon'ble Apex Court has considered the scope of proving the case beyond reasonable doubt and not on mere strong suspicion. There is no dispute about the legal position referred and moreover, they are not under the POCSO Act, making them distinguishable.
33. Though the learned counsel appearing for the accused would contend that there are contradictions between the evidence of P.W.1, P.W.4 and P.W.6 (victim girl), he has not highlighted any material or substantial discrepancies. No doubt, P.W.4 in his evidence would say that he was available at 03.00 p.m. in his house but he would say that after getting information from his wife through phone, he came to his house immediately and was informed about the occurrence. P.W.6 (victim girl) would say that she was dropped in her house at about 02.40 p.m. by P.W.11 and thereafter the incident had occurred. Considering the evidence of P.W.1, P.W.4 and P.W.6 (victim girl), there is no contradiction with regard to timings. After knowing the incident, P.W.4 immediately contacted his superior i.e., Additional Superintendent of Police of Armed Reserve, who in turn, directed the Inspector of Police and his people to go to the house of P.W.4 and enquire about the incident and as per the advice of P.W.7, P.W.1 and P.W.4 went to the jurisdictional police station and lodged the complaint. As rightly pointed out by the learned Government Advocate (Criminal Side), all prosecution witnesses were subjected to cross-examination at length, but mostly irrelevant questions were asked and nothing substantial was elicited by the defence.
34. Considering the evidence available on record, this Court has no hesitation in holding that the defence miserably failed to rebut the presumption and as such, the accused is guilty for the offence under Section 8 r/w 18 of the POCSO Act and the impugned judgment of conviction cannot be found fault with.
35. The next limb of argument is that registering of FIR in a POCSO case by itself operates as a virtual life sentence upon the accused, that the accused had 34 years of blemishless service in the Police Department that was reduced to a living corpse since the registration of the FIR, that stigma had shattered his dignity, stripped him of his social respect and inflicted an irreversible emotional and psychological wound upon his entire family and that the above case is a classic illustration of how a false accusation though legally unsustainable can inflict a punishment far greater than any sentence prescribed by law. Given this Court's confirmation of the trial Court's conviction, this argument does not hold weight.
36. Now turning to the punishment imposed, as already pointed out, the learned trial Judge has sentenced the accused under Section 8 r/w 18 of the POCSO Act to undergo 2½ years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default to undergo 3 months simple imprisonment. It is evident from the records that the accused was aged about 56 years at the time of the occurrence and was the then Sub Inspector of Police in the Armed Reserve. As already pointed out, the victim girl was aged 12 years and notably, the accused's daughter already got married.
37. The act of the Sub Inspector of Police attempting to sexually abuse the minor daughter of a Police constable, a resident of the same Police quarters, is a heinous and barbaric act that shakes the very fabric of society. Such a betrayal of trust and abuse of power is not only a crime against the individual but against humanity itself. The attempt to exploit and harm a child, a vulnerable member of our community, reflects a depravity that warrants the strongest condemnation. This offense, akin to the fence itself grazing the crop, damages the very fabric of trust and safety, requiring severe and maximum punishment to uphold justice and protect the innocent. Considering the above, the sentence awarded is not excessive and is justified. Consequently, this Court concludes that the appeal is devoid of merits and is liable to be dismissed.
38. In the result, this Criminal Appeal is dismissed and the impugned judgment of conviction and sentence imposed on the appellant / accused by the learned Sessions Judge, Mahila Court, Madurai in Spl.S.C.No.4 of 2016 dated 06.07.2018 is hereby confirmed. The trial Court is directed to take necessary steps to secure the accused to undergo the remaining period of sentence, if any.
