CDJ Law Journals

(Prayer: This Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, 1973 praying to set aside the conviction and sentence passed by the learned Special Court for Exclusive Trial of Cases under POCSO Act, Coimbatore by a Judgment dated 28.02.2022 made in Spl.C.C.No.104 of 2019 and to acquit the appellant.)

1. This Criminal Appeal has been preferred by the Appellant/accused challenging the Judgment dated 28.02.2022 in Spl.C.C.No.104 of 2019 passed by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Coimbatore.

2. The appellant was convicted for the offence under Section 4 of Protection of Children from Sexual Offences Act, 2012 (for brevity, “POCSO Act”) & Section 366(A) of IPC and sentenced as follows:

S.No.	Offence	Punishment
1	Section 4 of POCSO Act	10 years RI and to pay a fine of Rs.10,000/-, in default, to undergo 1 year RI.
2	Section 366(A) of IPC	5 years RI and to pay a fine of Rs.10,000/-, in default, to undergo 1 year RI.
Sentences to run concurrently

3. According to the prosecution, P.W.3 /victim girl is a minor studying 12th Standard in NGNG Higher Secondary School, Reddiarur. P.W.3 is the friend of one Sowmiya (sister of accused). P.W.3 used to visit the house of her friend Sowmiya. While so, P.W.3 developed love affair with Sowmiya’s brother/ accused. When P.W.3 was in love with accused, on 05.06.2019, accused had called P.W.3 to come to his grandmother’s house. P.W.3 had gone to the Appellant’s grandmother’s house, where the accused enticed P.W.3 that they could marry. At that time, Appellant’s grandmother was not present in the house and thus, exploiting the situation, accused had sexual relationship with P.W.3. After the said incident, P.W.3 returned to the house as if returning from the school. Again, after some time, on 18.06.2019, accused had threatened P.W.3 and kidnapped her to Palani, where, he married the victim.

4. On 18.06.209, P.W.1/ father of the victim girl, received a call from the school where her daughter was studying, informing that her daughter has not reported to school. P.W.1 went in search of her daughter to all the known places. Since the whereabouts of P.W.3 were not known and she was not able to be located, P.W.1 lodged a Complaint /Ex.P1 to the Respondent Police. On receipt of the said complaint, P.W.11 /Sub Inspector of Police registered the FIR /Ex.P13. Thereafter on receipt of information from Valparai about the presence of accused and P.W.3, the Respondent Police went to Valparai and brought the accused and P.W.3 to the Police Station for enquiry. P.W.10 /Sub Inspector of Police recorded the statement of P.W.3 /victim girl. P.W.8 /Police Constable took P.W.3 to P.W.4 /Doctor for medical examination. P.W.4 who examined the victim girl issued Ex.P7 /Medical Test Report and Ex.P8 /Final Opinion. P.W.9 (Head Constable) had taken the accused for medical examination before P.W.7 /Doctor who examined the accused and issued Ex.P11 /Potentiality Certificate. P.W.12 /Inspector of Police took up the investigation, prepared the Observation Mahazar /Ex.P9 and Rough Sketch /Ex.P14. P.W.3 was taken to the Magistrate, where, she gave statement under Section 164(5) of Cr.P.C in Ex.P16. Upon completion of investigation, P.W.12 filed the Final Report before the Trial Court.

5. The Trial Court took up the case, issued summons and on appearance of accused, complied with Sec. 207 of Cr.P.C. Thereafter, the Trial Court framed the charges against accused for offences under Section 3(a), 4 of POCSO Act, Section 366(A) of IPC and Section 9 of Prohibition of Child Marriage Act, 2006. When questioned, the accused pleaded not guilty and stood trial.

6. The prosecution in order to prove the charges, has examined 13 witnesses viz., P.W.1 to P.W.13 and marked 18 exhibits viz., Ex.P1 to Ex.P18. On completion of prosecution side evidence, when the accused was questioned under Section 313 of Cr.P.C about the incriminating materials, he denied the same. The accused disputed the charges and to dislodge the presumption, examined 3 witnesses viz., D.W.1 to D.W.3 and marked two exhibits viz., Ex.D1 & Ex.D2.

7. After trial, on hearing the arguments and analysing the oral and documentary evidences, the Trial Court had concluded that the accused is guilty of the charges and convicted the accused for offence under Section 3(a) r/w. 4 of POCSO Act and Section 366(A) of IPC, but, however, acquitted the appellant for the offence under Section 9 of Prohibition of Child Marriage Act, 2006.

8. Aggrieved by the conviction and sentence imposed, the accused has preferred this Criminal Appeal.

9. Mr.C.Prabakaran, learned counsel for appellant argued that there is absolutely no material or evidence to convict the appellant for offence under Section 366(A) of IPC. As per the statement of P.W.3 /victim girl, she was in love with the accused and they have jointly decided and went to marry at Palani Temple and thus, charge under Section 366(A) of IPC is baseless.

               9.1. It is further submitted by the learned counsel for appellant that in respect of charge under Section 3(a) r/w. 4 of POCSO Act, since the appellant belongs to Scheduled Caste Community, the parents of P.W.3 /victim girl opposed the love of their daughter with the Appellant. The parents instigated and forced P.W.3 to give a false complaint so as to attract the offence under Section 3(a) r/w. 4 of POCSO Act. When the appellant and P.W.3 /victim girl were secured as early as on 19.06.2019 i.e., on the very next date of alleged occurrence, the prosecution had taken 3 months to produce P.W.3 before the Magistrate to record the Statement under Section 164(5) of Cr.P.C.

               9.2. Admittedly, as per the evidence of P.W.12 /Inspector of Police, P.W.3 was not willing and refused to go along with her parents to their house and thus, the victim was made to stay in Mariyalaya Government Observation Home at Coimbatore. The parents of the victim girl took 3 months time to convince the victim to make her give a statement that accused had a sexual relationship with her on 05.06.2019. P.W.3 while giving evidence, in her testimony had exaggerated the occurrence which had not been stated by her before the Magistrate in Ex.P16. The delay in recording the statement under Section 164(5) of Cr.P.C and testimony of P.W.3 /victim girl clearly reveal that the victim has been tutored to implicate the accused for the offence under Section 3(a) r/w. 4 of POCSO Act.

               9.3. The learned counsel for appellant by placing reliance on the evidence of P.W.4 /Doctor coupled with Ex.P8 /Final Opinion submitted that as per Ex.P8 issued by P.W.4, there is no evidence of recent sexual intercourse and there has been no injury found and the evidence of P.W.4 itself suggested that the hymen may not be intact due to the sports activities undertaken by P.W.3 /victim girl.

               9.4. Further, on 05.06.2019, the date on which the accused is alleged to had sexual relationship with P.W.3 /victim girl, the school was holiday due to Ramzan Festival and the victim has not come out of the house even as clearly spoken by the parents of the victim girl.

               9.5. In order to rebut the presumption, appellant had examined the District Education Officer, Pollachi as D.W.1 who had made it clear that on 05.06.2019, the school was holiday due to Ramzan Festival. Apart from that, Appellant’s father who was examined as D.W.2 had deposed that on 05.06.2019, his son, appellant was unwell and thus, he was taken to hospital. The Doctor who treated the accused was examined as D.W.3 and the Medical Prescription Sheet issued by D.W.3 has been marked as Ex.D1.

               9.6. The accused had rebutted the presumption and had established that on 05.06.2019, the school was on holiday and also, the accused was not well and taking treatment on that day. Whileso, except the sole statement of P.W.3 (victim) that on 05.06.2019, there was a sexual relationship between her and the accused which also came from the Statement of P.W.3 /victim girl which was recorded under Section 164(5) of Cr.P.C after a period of 3 months, nothing is available on record. The learned counsel further submitted that when the sole testimony of P.W.3 is unreliable, untrustworthy and not with sterling quality, the Trial Court has erroneously convicted the appellant in the absence of any other corroborative materials to prove the charges against him.

10. Per Contra, Mr.R.Kishore Kumar, learned Government Advocate (Crl.Side) for the Respondent Police contended that admittedly, P.W.3 /victim girl was minor on the date of occurrence and the prosecution had filed Ex.P12 Mark Sheet and examined the Head Master of the school as P.W.13 to prove the age of the victim girl.

               10.1. When the victim girl is a minor, then the very fact that the accused had taken the minor girl away without the consent of her parents on the pretext of marriage itself is a offence which would attract Section 366(A) of IPC.

               10.2. The victim girl had even in her Statement which was recorded under Section 164(5) of Cr.P.C (Ex.P16) and in her testimony before the Court has been very clear about the sexual relationship with the accused on 05.06.2019. When the same is available on record, the sole testimony of victim girl is sufficient to convict the accused for the offence under Section 3(a) r/w. 4 of POCSO Act, 2012.

               10.3. Further, by placing reliance on Ex.P8 /Final Opinion and evidence of P.W.4 /Doctor coupled with the statement and testimony of victim, the prosecution has proved the charges and the trial court in view of the presumption under Section 29 of POCSO Act had rightly convicted the accused.

11. Heard the submissions made by the learned counsel on either side and perused the materials available on record.

12. P.W.3 /victim girl was studying 12th Standard in an aided school at Reddiarur. P.W.3 was in friend with Sowmiya/ sister of accused and she used to visit their house. While so, P.W.3 developed friendship with the accused which resulted in a love relationship. From the statement of P.W.3, it is evident that P.W.3 and accused had been in love for nearly 7 months.

13. The fact remains that the victim girl belongs to Backward Caste and the accused belongs to Scheduled Caste. The relationship between P.W.3 and the accused were opposed by the parents of the victim. P.W.3 and the accused had gone to Palani and alleged to have got married on 18.06.2019. As P.W.3 did not report to school, immediately after the receipt of information from the school where P.W.3 was studying, P.W.1/ father of the victim girl had searched for P.W.3, but since he could not find her whereabouts, had lodged the complaint/Ex.P1. FIR/Ex.P13 came to be registered and the appellant was charged for the offences under the POCSO Act.

14. For invoking the offence under POCSO Act, victim should be a child below 18 years within the meaning of Section 2(d) of the POCSO Act. In this case, Copy of 10th Standard Mark Sheet of P.W.3 /victim girl was marked as Ex.P12 and Birth Certificate of P.W.3 was marked as Ex.P2. As per Ex.P12 and Ex.P2, date of birth of P.W.3 is 26.10.2002. The Head Master of the school who was examined as P.W.13 had deposed that P.W.3 had studied in their school during the year 2019-2020 and the Transfer Certificate was marked as Ex.P17. A copy of the Attendance Register was marked as Ex.P18. From the above documents, the age of the victim girl is below 18 years on the alleged date of occurrence and therefore, it has been clearly established that P.W.3 /victim girl is a child on the date of occurrence.

15. P.W.3 in her evidence had deposed that on 05.06.2019, accused had asked her to come to his grandmother’s house as if she is going to school. When P.W.3 went there, no one was present and the accused enticed her and had sexual relationship. Thereafter, accused asked P.W.3 to come along with him to Palani on 18.06.2019 by threatening that he is having the photographs and videos of the incident that took place on 05.06.2019 and if she did not come along with him, he will show the photographs and videos to others. When she went to the school on 18.06.2019, she was waylaid by the accused and she was forcibly taken to Palani Murugan Temple by the accused, where, the accused had married her.

16. P.W.3 /victim girl was confronted with the Statement recorded under Section 164(5) of Cr.P.C which was marked as Ex.P16. As per Ex.P16, the victim had been in love affair with the accused for nearly 7 months; both of them had decided to go to Palani and get married and thus, P.W.3 willingly went along with the appellant to Palani and got married on 18.06.2019. Immediately after the marriage, when they went to the house of appellant’s relative at Valparai, the neighbours of appellant’s relative had informed about the marriage and thereafter, Respondent Police have came there and secured the appellant and took them to Aliyar police station and recorded the statement.

17. Form the Statement in Ex.P16 it can be seen that P.W.3 /victim girl was clear and specific that she was in love with the accused for 7 months and both of them had jointly decided to marry and had willingly gone to Palani. However in the testimony before Court, P.W.3 had came out with a different version that the accused threatened her with the photos and thus, out of fear, P.W.3 had accompanied the accused to Palani.

18. Further, the statement of P.W.3 /victim girl in Ex.P16, which was recorded after 3 months from the date of occurrence and registration of FIR, the accused had sexual relationship with the victim on 05.06.2019. In this regard, it is to be noted that as per the evidence of P.W.12 /Inspector of Police, after the accused and P.W.3 were secured on 19.06.2019, they have been brought to the Police Station and the Statement of P.W.3 was recorded by P.W.10 /Sub-Inspector of Police, but that was never brought on record.

19. P.W.12 /Inspector of Police had stated in his evidence that P.W.3 was not willing and refused to go along with her parents to their house and therefore, P.W.3 was taken to Mariyalaya Government Observation Home at Coimbatore, where, she had stayed for some time. If the statement of P.W.3 had been recorded by P.W.10 on 19.06.2019 itself, there is no explanation or reason on the side of the prosecution as to why there was an inordinate delay in recording the statement of P.W.3 under Section 164(5) of Cr.P.C.

20. It is clear that P.W.3 /victim girl was in love relationship with the accused which was opposed by the parents of victim girl since the accused belongs to Scheduled Caste Community. The accused and P.W.3 have jointly decided to get married. The accused and P.W.3 is alleged to have got married on 18.06.2019, but, there is no material evidence to establish their marriage or that, there was any sexual relationship between them.

21. As per the statement of P.W.3 /victim girl, the Respondent Police had secured them on 18.06.2019 itself and thereafter, P.W.10 /Sub-Inspector of Police had recorded the statement of P.W.3. However, P.W.12 /Inspector of Police had given evidence that the Police have secured the accused and P.W.3 on 19.06.2019.

22. P.W.4 /Doctor who had examined P.W.3 and issued Ex.P7 /Medical Test Report of victim girl and Ex.P8 /Final Opinion, had stated that P.W.3 informed her that she had willingly went along with the accused to get married at Palani and they also had sexual relationship. As per Ex.P8 issued by P.W.4, there was no injury found on the body of P.W.3 and further, there was no evidence of recent sexual intercourse. The Final Opinion of P.W.4 /Doctor reveals that hymen of P.W.3 was not intact. However, P.W.4 has opined that in view of sports activities involved by P.W.3, hymen may not be intact. There is no evidence of any assault or injury, either spoken by the Doctor or revealed from the Final Opinion /Ex.P8.

23. P.W.12 /Inspector of Police in his evidence had categorically admitted that he had not taken any steps to prepare rough plan or sketch or conducted any enquiry as to whether the school was functioning on 05.06.2019 and he had also not examined the Appellant’s grandmother. P.W.12 had also categorically admitted that a CCTV was available outside the school, but, he has neither collected any materials from the same nor conducted any investigation in the school about the kidnap of P.W.3 /victim girl on the date of alleged occurrence.

24. P.W.1 /father of the victim girl had deposed that P.W.3 /victim girl will not take leave to school and except on working days, P.W.3 will not be allowed to go out of the house. P.W.1 has also admitted that he saw her daughter /victim girl and accused only on 19.06.2019 and he has not accompanied P.W.12 /Inspector of Police at the time of arresting the accused. There is lot of inconsistency and discrepancy between the evidence of PW1 and PW12. P.W.2 /mother of the victim girl had also given evidence in line with P.W.1. In the evidence of P.W.1 /father and P.W.2 /mother, they have admitted that they knew one Mr.Selva Gounder who belonged to the village where accused resides, but they have denied that the complaint was lodged against the accused only on the instigation of said person.

25. As referred earlier, the alleged occurrence was first spoken by P.W.3 /victim girl in Ex.P16 which came to be recorded after 3 months from the date of alleged occurrence on 18.06.2019.

26. The appellant in order to dislodge the presumption under Section 29 of the POCSO Act, had examined the District Education Officer, Pollachi as D.W.1. In the evidence, D.W.1 had categorically deposed that the school was on holiday on 05.06.2019 due to Ramzan Festival. Therefore, the allegations that based on the instructions of accused, on 05.06.2019, P.W.3 /victim girl came out of her house as if going to school, but, she went to the house of Appellant’s grandmother, where, accused and P.W.3 had a sexual relationship and thereafter, P.W.3 returned to her house as if she returned from school is doubtful.

27. The defence has examined D.W.2 /father of the accused who has deposed that his son, accused was suffering from urinary track infection on 04.06.2019 and thus, he had taken the accused to hospital on 05.06.2019 for treatment. The treatment and prescription given by D.W.3 /Doctor, who treated the accused has been marked as Ex.D1. The defence had also examined D.W.3.

28. The fact remains that D.W.3 /Doctor is a Government Doctor and he also treats out patients in a private clinic after his duty time. D.W.3 had deposed in his evidence that on 05.06.2019, he had given treatment to accused and he had clarified that the treatment which he had given to accused does not pertain to injury due to any sexual relationship, but, it pertains to urinary track infection caused due to gallbladder issue.

29. The appellant had brought in the materials to show that 05.06.2019 was a holiday and as deposed by P.W.1 /father of the victim girl and P.W.2 /mother of the victim girl, there was no possibility or chance for P.W.3 /victim girl to come out on the said date as it was a holiday due to Ramzan Festival as confirmed by D.W.1 and P.W.13. The health condition of the appellant who took treatment for urinary track infection has also been established by the defence by way of Ex.D1.

30. D.W.3 being the Government Doctor who treated the accused and issued Ex.D1 has given evidence, which cannot be simply disbelieved since he has no personal interest to safeguard the accused from the charges.

31. It is true that in the cases involving offence under POCSO Act, the testimony of victim girl is sufficient and permissible to convict the accused, if the testimony of the victim girl is reliable, trustworthy and with sterling quality. The term “sterling quality” has also been explained by the Hon’ble Supreme Court in Rai Sandeep v. State (NCT of Delhi) reported in (2012) 8 SCC 21, that as like the case of circumstantial evidence, must have a link so as to have a complete link to prove the charges. The relevant portion reads as follows,

               “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 co-relation 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 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.”

32. The evidence of P.W.3 /victim girl has to be consistent and reliable right from the complaint, statement recorded and the testimony given in Court. In the instant case, as referred earlier, even though the accused and P.W.3 were secured on 19.06.2019 and a statement was recorded from P.W.3 /victim girl on the said date, but the alleged statement recorded by P.W.10 has not been brought on record. Ex.P16 /Statement of victim under Section 164(5) of Cr.P.C., was recorded only after a delay of 3 months from the registration of FIR.

33. There is a gross discrepancy and exaggeration from the statement in Ex.P16 and the testimony given by P.W.3 before the Court. When the statement of victim girl in Ex.P16 and also her statement before P.W.4/Doctor was clear to the effect that P.W.3 had willingly gone along with the accused to marry as they were in love, the victim has completely come out with different version in her testimony.

34. In fact on being secured, P.W.3 was not willing and refused to go along with her parents and P.W.3 as such stayed at Mariyalaya Government Observation Home, Coimbatore. It is possible that may be only after a period of 3 months, the parents of P.W.3 were able to convince P.W.3 and made her to give a statement that the accused had sexual relationship with her on 05.06.2019, to implicate the accused under the stringent provisions of POCSO Act. Therefore, the exaggeration made by P.W.3 in her evidence would reveal that the testimony of P.W.3 is inconsistent, unreliable, untrustworthy and not with sterling quality to convict the accused.

35. The Trial Court had rejected the defence evidence merely on the ground that D.W.3 /Doctor had deposed that as he was attending more patients in a day, he is not sure that whether the accused and the name Vignesh mentioned in Ex.D1 /Medical Prescription Sheet are same person. Therefore, the Trial Court had came to the conclusion that accused had taken the victim girl along with him without the consent of her parents and hence, the act of accused would attract the offence under Section 366(A) of IPC.

36. As detailed above, the consistent evidence and materials available exclusively makes it clear that the accused and victim girl had been in love for nearly 7 months and both of them had decided to marry in Palani. There is no material to show that the victim was induced to do any act for the purpose of forcing sexual assault to attract offence under Section 366(A) of IPC. Therefore, the charge under Section 366(A) of IPC against the accused fails.

37. Further, there was no material or evidence to establish that the accused had sexual relationship with P.W.3 /victim girl on 05.06.2019. The conviction and sentence imposed by the Trial Court is merely based on the testimony of P.W.3 which is found to be exaggerated and untrustworthy. Hence, the charges against the accused cannot be sustained.

38. On re-appreciation of the entire evidence and materials available on record, this Court is of the considered opinion that the findings arrived at by the Trial Court is perverse and suffer from infirmities. Hence, the conviction and sentence imposed on the appellant cannot be sustained and the same is liable to be interfered with.

39. In view of the above, this Criminal Appeal stands allowed and Judgment dated 28.02.2022 in Spl.C.C. No.104 of 2019 passed by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Coimbatore is set aside. The appellant is acquitted of all the charges. Fine amount, if any, paid shall be refunded. Bail bond, if any, executed shall stand cancelled. However, the compensation paid to P.W.3 need not be disturbed.

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