(Prayer: Criminal Appeal filed under Section 374 of the Criminal Procedure Code to call for the entire records connected to the Judgment in Spl.S.C.No. 102 of 2021 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Madurai, dated 12.12.2023 and set aside the same.)
R. Poornima, J.
1. This Criminal Appeal is filed against the conviction and sentence passed against the appellant/Sole Accused in the judgment dated 12.12.2023 passed by the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Madurai, in Spl.S.C.No.102 of 2021 by convicting and sentencing the appellant for the offence punishable under Sections 506(i) of IPC and under Sections 5(m) and 5(n) r/w 6 of Protection of Children from Sexual Offences Act, 2012 and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.5,000/- for the offences punishable under Section 506(i) of IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.50,000/- for the offences punishable under Section 5(m) and 5(n) r/w 6 of Protection of Children from Sexual Offences Act, 2012. If the fine amounts are not paid by accused, he shall undergo two years and three months simple imprisonment each concurrently. All sentences shall run concurrently.
2. In furtherance of the conviction, the Trial Court considering the facts and circumstances of the case, the grave nature of the offence and the physical and emotional injuries suffered by the victim child, granted a sum of Rs. 6,00,000/- (Rupees Six Lakhs Only) as compensation under Rule 33(8) of POCSO Act, 2012 and directed the Tamil Nadu Government to deposit the awarded compensation in the name of the victim child in an interest bearing account in any one of the nationalized banks within a period of 30 days from the date of receipt of the copy of the impugned judgment. Further, the mother of the victim child was permitted to withdraw the interest from the deposited compensation every three months once and utilise the same towards the wellbeing of the victim child.
3. The case of the prosecution in brief is as follows: (a)The complainant is one Selvi, mother of the victim ‘X’. The complainant is having three female children. The 1st and 2nd daughters were studying in Kattayampatti Government School. On 09.02.2021 she came to Kallikudi Agathampatti to attend tonsure function of her brothers child at Kulasekarapattinam. She left her daughters with her father at Agathapatti. She returned on 10.02.2021 at about 7.00 p.m., and took the daughters and went to her home. After 2 days, eldest daughter, the victim xxx informed her that she is having pain over her private parts. On inquiry, her daughter informed that when they left to Kulasekarapattinam, the accused who is the junior grandfather of the child, came and sat near her and kissed on her lips then he took her into a room and also improperly touched and committed penetrative sexual assault. Thereafter, the accused threatened the victim girl that, if she disclosed the incident to anyone, he would kill her. Due to fear and intimidation, she was unable to inform anyone about the occurrence immediately. PW1, being unaware of what to do, she remained silent and, after two days, disclosed the incident to her father. Her father/victim's grandfather stated that, on the date of occurrence, when he returned from the market, he found his brother coming out of the room. Thereafter, after consulting the relatives, the complaint, Ex.P1, came to be lodged. The complaint was received at about 16.30 hours. (b)Immediately upon receipt of the complaint, P.W.12 Tmt.Latha Kumari, Sub-Inspector of Police, All Women Police Station, Thirumangalam, registered the FIR in Crime No.4 of 2023 under Sections 5(m) and 5(n) of the Protection of Children from Sexual Offences Act, 2012, and Section 506(i) of the Indian Penal Code. The FIR was marked as Ex.P11. (c)Thereafter, the investigation was taken up by P.W.14 Tmt.Maya Rajalakshmi, Inspector of Police. She proceeded to the place of occurrence at about 18.15 hours and prepared the Observation Mahazar, Ex.P5, and the Rough Sketch, Ex.P6, in the presence of Pandi and Selvakumar (P.W.4). She thereafter examined the victim girl (P.W.2), her mother (P.W.1), her father (P.W.3), and other witnesses and recorded their statements. Subsequently, she forwarded the victim girl for medical examination. (d).Dr.Punitha (P.W.8) examined the victim girl on 17.02.2021 at about 1.25 p.m. and issued the Accident Register, Ex.P7. On examination, she found that the hymen was not intact. She also collected vaginal swabs and forwarded the same for forensic examination. (e).Thereafter, P.W.14 arrested the accused on 18.02.2021 at about 13.00 hours and produced him before the competent Court for remand. On 19.02.2021, she sent a requisition to the Judicial Magistrate for recording the statement of the victim girl under Section 164 Cr.P.C. Accordingly, the statement of the victim girl (P.W.2) was recorded by the Judicial Magistrate, Thirumangalam, on 03.03.2021, and the same was marked as Ex.P3.
(f).Thereafter, P.W.14 was transferred and handed over the case file to P.W.15 Tmt. Sankareswari, Inspector of Police, for further investigation. P.W.15 took up the investigation and sent a requisition to the Government Hospital for conducting a potency examination of the accused and accordingly forwarded him for medical examination.
(g).Dr.Mohammed Nazim (P.W.13) examined the accused and issued the Certificate of Examination for Sexual Offence, marked as Ex.P12. In the said certificate, he opined that there was nothing to suggest that the person examined was impotent. (h).Thereafter, P.W.15 examined the remaining witnesses and recorded their further statements. She also examined the official witnesses. On 20.04.2021, she received the age certificate of the victim girl from the Headmistress, Tmt. Ambalbhai, who was examined as P.W.9. The certificate issued by her was marked as Ex.P8. During her examination, she also produced the Admission Register/Record Sheet, which was marked as Ex.P9. As per Ex.P8, the date of birth of the victim girl was 28.09.2013, and consequently, she was aged about 8 years at the time of occurrence.
(I).Thereafter the mother of the victim girl (PW1) was examined by the Judicial Magistrate and recorded her statement under Section 164 Cr.P.C. (Ex.P.16). (j).Thereafter, the investigating officer altered the offences from 5(m) and 6 of POCSO Act and 506(i) IPC to under Sections 4(2), 5(m), 5(n) r/w.6 of POCSO Act and 506(i) IPC and filed alteration report under Ex.P17 and forwarded the same to the concerned Judicial Magistrate Court and thereafter, she completed the investigation and filed a final report against the accused for the offence under Sections 4(2), 5(m), 5(n) r/w.6 of POCSO Act and 506(i) IPC.
4. After receipt of the final report, the case was taken on file in Spl.S.C.No.102 of 2021 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Madurai. After appearance of the accused, copies of the entire records were furnished to him at free of cost under Section 207 Cr.P.C.
5. The learned Special Court for Exclusive Trial of Cases under POCSO Act, Madurai, on perusal of records and on hearing both sides, being satisfied that there existed a prima facie case against the accused, framed charges for the offence under Section 506(i) IPC and Sections 5(m), 5(n) r/w 6 of Protection of Children from Sexual Offences Act, 2012. The charges were read over and explained to the accused. The accused denied the charges and pleaded not guilty. Therefore, the case was posted for trial.
6. On the side of the prosecution, P.W.1 to P.W.15 were examined and ExS.P1 to Ex.P17 were marked. No material object was marked. On the side of the defence, D.W.1 was examined and Ex.D1 was marked.
7. After a full trial, the trial Court convicted the accused for the offence punishable under Section 506(i) of IPC and under Sections 5(m) and 5(n) r/w 6 of Protection of Children from Sexual Offences Act, 2012 and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.5,000/- for the offences punishable under Section 506(i) of IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.50,000/- for the offences punishable under Section 5(m) and 5(n) r/w 6 of Protection of Children from Sexual Offences Act, 2012. If the fine amounts are not paid by accused, he should undergo two years and three months simple imprisonment each concurrently. All sentences should run concurrently, against which, the present Criminal Appeal has been filed.
8. Mr.S.Ayyanar Prem Kumar, learned counsel appearing for the appellant assailing the judgment of conviction and sentence made the following submissions:- (i)There is no independent witness examined by the prosecution which creates suspicion over the prosecution. Several contradictory statements was made by P.W2 in her deposition when compared the same with Section 164 Cr.P.C statements and statement made under Section 161(3) Cr.P.C. But the trial Court appreciated erroneously and failed to consider the delay of 7 days in lodging the case. (ii)The trial Court erroneously appreciated the presumption under Section 29 of POCSO Act with the several infirmities. He further argued that during the cross examination the mother of the victim did not support the prosecution case. But stated that she had lodged a complaint only by complaining that the accused had assaulted her daughter. She is an illiterate and her signature alone was obtained on the complaint . Likewise P.W3, father of the victim also not supported the case. The victim girl during cross examination admitted that the accused used to shout at her and she informed the same to her mother and therefore, there is no evidence to prove the guilt of the accused.
(iii) He further stated that there is no material available to prove the case of the prosecution and prayed to allow the criminal appeal and to acquit the accused from all the charges.
9. Mr.D.Venkatesh, learned Counsel for the State of Tamil Nadu submitted that the victim girl categorically deposed that when her mother left her with her grandfather's house, to attend a family function, the accused committed penetrative sexual assault on her. However, during her examination, taking into consideration her relationship with the accused, she did not support the case of the prosecution and turned hostile. Nevertheless, the victim girl, in her evidence before the Court, has clearly and categorically narrated the occurrence, which substantially supports the case of the prosecution. Further, P.Ws.5 and 6 have also supported the prosecution case. It is well settled that, in a case of sexual assault, the testimony of the victim, if found to be cogent, consistent, credible and trustworthy, is sufficient to sustain a conviction and does not require independent corroboration. The fact that her evidence is also supported by the medical evidence lends further assurance to her testimony. In the present case, the evidence of the victim girl inspires the confidence of the Court. She was aged about eight years at the relevant point of time and had no conceivable motive to falsely implicate the accused, who is none other than her grandfather. Thus, the prosecution has established the guilt of the accused beyond all reasonable doubt. The findings recorded by the learned Trial Court are well-founded and do not warrant any interference by this Court. This Court finds no merit in the present Criminal Appeal, and the same is liable to be dismissed.
10. Heard the learned counsel on either side and perused the materials available on record.
11. On perusal of the record, it is seen that the charges against the accused is that on 09.02.2021, the mother of the victim girl left the victim child in the company of her father and the accused and left to Kulasekaranpattinam to attend her brother’s child tonsure function. When the child was watching the TV, her grandfather left to get betel nut along with other child. At that time, the accused who is her younger grandfather, kissed her on her lips and also on her private part, took her in to a separate room and committed penetrative sexual assault and threatened her with dire consequences. Therefore, he was charged under Sections 4(2), 5(m), 5(n) r/w.6 of POCSO Act and 506(i) IPC.
12. During the trial, the mother of the victim, who was also the complainant, her husband PW3, her brother, PW7, maternal uncle of the victim were examined on the side of the prosecution, but did not support the prosecution case.
13. PW1, mother of victim deposed that as the child informed her, that the accused used to shout at her, she went to the police station and lodged the complaint. However, according to her, the police themselves prepared the complaint and obtained her signature as well as the signature of her husband, and she was not aware of the contents of the complaint.
14. But during cross examination by the learned Public Prosecutor, she admitted that the victim was examined by Judicial Magistrate as well as by the police and that signature was fixed, in the statement recorded under164 Cr.PC statement. She further admitted that she left the child in the custody of the her father and accused (junior paternal uncle).
15. A specific suggestion was put to her that the child had informed her about the sexual assault, and that based on such information, the complaint came to be registered. In response, she stated that she did not remember the incident. Such an answer is rather peculiar. If the suggestion was incorrect, she could have categorically denied the same, if it was true, she could have admitted it. Her assertion that she did not remember the incident, particularly when she was the complainant herself, does not appear to be a natural or convincing response. The said answer with that other admissions elicited in cross examination gives rise to a strong inference that she was deliberately withholding the relevant facts and was unwilling to support the prosecution case apparently with a view of protecting the accused who is her paternal uncle.
16. PW3, husband of complainant also turned hostile. However during cross examination by the public prosecutor, he stated that he did not remember whether his wife has informed about the sexual assault meted out to victim child. He however admitted that his father-in-law and other family members had consulted among themselves, and with a view of preventing the recurrence of such an incident, decided to lodge a complaint. A complaint was lodged by his wife in which he also countersigned. He further admitted that the victim child and his wife were taken to hospital for examination of the victim and that the Judicial Magistrate had recorded their statements.
17. P.W7 her brother during chief examination turned hostile, but during cross examination by public prosecutor, he admitted that he was informed by PW1 that the accused misbehaved with victim child.
18. The victim who has been examined as PW2. She clearly identified the accused and categorically deposed regarding the occurrence. She stated that, on the date of occurrence she was staying with her grandfather Ganesan and with the accused, who is her junior paternal grandfather, while her mother, father, uncle, aunt and other children had gone to Kulasekarapattinam. At that time, her grandfather had gone to nearby shop along with her younger sister leaving her along with the accused. The accused thereafter came to her and touched her body parts viz.. buttocks, private parts inappropriately and took her to a separate room and committed penetrative sexual assault and also kept his urethra into her mouth. He further threatened her that if she disclosed the incident to anyone, he would kill her. Subsequently, her mother and father returned back. On the following day, she was taken to her native. While she was taking bath, she experienced pain over the private parts. Though her mother questioned her, she did not initially disclose the incident. However as the pain persisted, she subsequently narrated the occurrence to her mother. She further stated that she had undergone medical examination. She identified and admitted her signature in the statement recorded under 164 Cr.PC and also identified her mothers signature therein. During cross examination the defence counsel specifically questioned her as to whether the accused had committed any bad touch upon her, she answered in the affirmative. Except for such questioning the defence did not seriously challenge or dispute the material aspects of the testimony of the victim girl.
19. The evidence of the victim girl is further corroborated by the testimonies of PW5 and PW6. P.W5 who is the elder sister of P.W.1 deposed that PW1 informed her that the accused committed sexual assault upon the victim child and that thereafter a complaint was lodged. Likewise P.W.6 the sister-in-law of P.W.1 and wife of PW7 stated that she was informed that the accused had committed penetrative sexual assault on the victim child. She further stated that P.W.1 and her brother came to their house and shouted at the accused in connection with the occurrence. According to PW6, PW1 alone had informed her about the sexual assault committed by the accused and PW1went to the police station and lodged the complaint.
20. The evidence of the victim girl is further corroborated by the medical evidence. Dr.Punitha, PW8 who examined the victim child has issued the accident register and mentioned that the victim child hymen is not intact, she deposed regarding the findings recorded therein. The medical evidence, to the extent supports the occurrence spoken to by the victim girl, lends further assurance and corroboration to the testimony.
21. P.W.4 spoken about preparation of observation mahazar and rough sketch.
22. P.W.9 the Headmistress of the victim girl issued the record sheet certificate shows that she born on 28.09.2013. She also produced the Admission register/record sheet under Ex.P.8.
23. P.W.10 Mrs.Deepa, deposed that as per the direction, she produced the the victim girl at Government Hospital, Thirumangalam for medical examination.
24. P.W.11 Mrs.Selvarani, deposed that as per the direction, she and Police Constable No.2192 Karuppiah, produced the accused for medical examination.
25. P.W12 Mrs.Latha Kumari, who registered the FIR initially. P.W. 14 and PW15 have spoken about the investigation.
26. In cases involving sexual offences against minor victim, the testimony of the victim if found to be cogent, consistent, and trustworthy, and inspire confidence of the court, is sufficient by itself to sustain a conviction even in the absence of medical corroboration. In the present case, although some of the close relatives of the victim, including the complainant did not support the prosecution cases entirety, the victim girl reminded firm, and consistent in testimony and categorically narrated the occurrence. Her evidence also find substantial corroboration from the medical record. Therefore, there is no requirement for any further corroborative evidence merely to accept her testimony.
27. It is also relevant to note that the victim girl was only eight years of age at the time of occurrence. There is nothing on record to suggest that she had any previous motive to falsely implicate the accused who is her grandfather. In the absence of any such motive and having regard to the consistency and credibility of her evidence, her testimony deserves to be accepted and acted upon.
28. It is further contended that there was a delay in lodging the complaint. It is true that, in cases involving sexual assault, the parents or close relatives of the victim, particularly due to fear of social stigma and considerations of family honour, may initially hesitate to approach the police and lodge a complaint. In the present case, admittedly, the accused is none other than the junior grandfather of the victim child and the paternal uncle of the complainant. In such circumstances, the hesitation on the part of the family members and their decision to consult among themselves before lodging the complaint cannot be viewed as unnatural or improbable. The prosecution has offered a clear and plausible explanation for the delay in lodging the complaint. Therefore, such delay, by itself, cannot be treated as a circumstance creating doubt about the prosecution case.
29. We are convinced that the prosecution in all probability, proved the guilt of the accused beyond all reasonable doubt. The trial Court after considering the evidence and materials held the accused guilty for the offence punishable under Section 506(i) of IPC and Sections 5(m), 5(n) r/w 6 of Protection of Children from Sexual Offences Act, 2012. The conviction and sentence imposed are proper and do not warrant interference by this Court. Accordingly, the criminal appeal is liable to be dismissed.
30. In the result, this Criminal Appeal is dismissed and the judgment dated 12.12.2023 passed in Spl.S.C.No.102 of 2021 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Madurai, is confirmed. Consequently, connected miscellaneous petition is closed.
