(Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to allow the above appeal and set aside the conviction and sentence imposed upon the appellants vide judgment dated 29.03.2022 in Spl.S.C.No.69 of 2019 on the file of the Special Judge, Puducherry, Special Court under POCSO Act, 2012 and acquit the appellants.)

1. The appellants/A1 & A2 both convicted by the trial Court in Spl.S.C.No.69 of 2019 by judgment dated 29.03.2022 for offence under Section 12 of Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO Act’) and 506(i) r/w 34 of I.P.C. and both appellants sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months, for offence under Section 12 of POCSO Act and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for three months, for offence under Sections 506(i) r/w 34 of I.P.C. Aggrieved against the said conviction, the present appeal is filed.

2.(i)The case of the prosecution is that the defacto complainant/PW1/father of the victim girl lodged a complaint to the respondent police about the constant sexual harassment given by the appellants. On 27.02.2017, when the victim was coming out of the school, waiting for her mother, at that time the first appellant forced and compelled her to have a love affair with him. When she refused, the first appellant threatened her by showing the mobile phone in which the photographs of the first appellant and the victim captured together recorded. The victim cried and ran back to the school, at that time, the victim’s mother/PW3 came, PW4 and PW5, were there near the scene, saw the incident and attempted to catch the appellants but their attempt failed. PW1 went to the respondent police station and lodged a complaint, but no action taken.

                   (ii) Thereafter, on consultation with his friend, he approached the Chairman, Child Welfare Committee/PW7 and gave a complaint/Ex.P1 on 03.03.2017. On the same day, victim/PW2 examined and her statement recorded. The statements forwarded to the respondent police on 06.03.2017.

                   (iii) The respondent on 13.03.2017 registered a case in Crime No.27 of 2017 for offence under Sections 12 r/w 11 (iv) and (v) of POCSO Act, 2012 against the appellants.

                   (iv) PW14/Sub Inspector of Police took up investigation, enquired the witnesses, recorded the statement of witnesses in the Laptop and also by video-graphing. Thereafter, recorded the statement of other witnesses, namely, PW1 and PW3, the father and mother of the victim and PW4 and PW5, the witnesses present in the scene of occurrence. In presence of PW6 and PW9, prepared observation mahazar and rough sketch and arrested A1 on 26.03.2017, arrested A2 on 30.03.2017 in presence of VAO/PW10. The victim’s statement under Section 164 of Cr.P.C. recorded and on completion of investigation, charge sheet filed in this case.

3. During trial, on the side of the prosecution, PW1 to PW14 examined and Exs.P1 to P21 marked and M.O.1 to M.O.3 produced. On the side of the defence, no witnesses examined and no documents marked. On conclusion of trial, the trial Court convicted the appellants as stated above.

4. The learned counsel for the appellants submitted that in this case the victim/PW2 and the first appellant were having love affair, which was opposed by victim’s parents. Thereafter a case projected as though sexual harassment committed by the appellants. The admitted position is that the victim is a native of Lawspet, Puducherry. During vacations, she used to come to her maternal grandmother’s house at Saram Village, Tindivanam. The first appellant belongs to Saram village. In Saram village, the victim had a friend Keerthana and both used to visit Shivan temple regularly. The first appellant is the friend of Keerthana and he also used to visit Shivan temple, at that time, he enquired about the victim, later both the first appellant and victim became close.

5. The admitted case is that the first appellant and victim regularly talking over the mobile phone, which is known to PW1 and PW3, the parents of the victim. Since the victim was very adamant and wanted to marry the first appellant, the parents refused, she consumed Lizol and attempted suicide during December, 2016 and victim admitted in ZIPMER Hospital, took treatment and later discharged. Thereafter plan devised to break the love relationship and to keep away the first appellant, the above case foisted. On 11.12.2016 both appellants said to have come near the victim’s school in a car, forcibly pulled the victim into the car and first appellant proposed for the marriage and also took photographs. It is further projected that PW3/mother saw the incident and appellants fled from the scene, but no materials produced to show that appellants present near the school on 11.12.2016.

6. It is admitted that CCTV cameras are available near the school area. The school guard is present. In the evening hours around 200 parents present near the school to pick up their wards. None of them examined in this case and no materials produced. Further though it is claimed victim took treatment in JIPMER Hospital in ICU for 3 days and thereafter as in-patient for 9 days, no medical records produced. Added to it, it is further projected that police complaint was given to Lawspet Police, the appellant called for enquiry and warned, but there is no documents produced. According to the appellants, no such incident took place during December, 2016. The first appellant’s mobile phone seized, no photographs of victim found in the mobile, further the call detail records will prove the first appellant and the victim were talking regularly.

7. He further submitted that in this case, mere proposal of love affair cannot be termed as sexual harassment. Further, in this case, there is no iota of evidence against the second appellant. His only overt act is that he was present along with the first appellant and nothing more. Further the evidence of PW4 and PW5 are highly artificial and they are planted witnesses. PW4 and PW5 for the first time had seen the accused on 27.02.2017. Three years thereafter they identified the appellants in the dock in the year 2020 and no test identification parade conducted. Hence identification by PW4 and PW5 is doubtful. Hence, prayed for allowing the appeal.

8. The learned Public Prosecutor (Puducherry) strongly opposed the contention of the appellants and submitted that in this case there are five witnesses, who speak about the overt act against the appellants. PW1 and PW3/father and mother of the victim, PW4 and PW5, chance witnesses present near the scene of occurrence. PW4 is a parent of a student, who came to pickup his daughter. PW5 came to a shop near the school. Both of them had seen the appellants showing mobile phone to the victim girl and having a heated talk. Thereafter on seeing the victim girl crying and running back to the school, they got suspicious, attempted to catch the appellants, but they fled from the scene. Further PW3, mother of the victim came there and enquired her daughter, at that time, the victim informed the harassment caused by the appellants and the appellants coming near the school, compelling and threatening the victim to marry the first appellant, the second appellant supported the first appellant and threatened her. When the victim refused, showed a photograph of the first appellant and the victim taken earlier recorded his mobile phone. The first appellant informed that if the victim refused to marry him, this photograph would be uploaded in the Facebook, tarnishing the reputation of the victim and her parents. He further threatened he can take her forcibly and marry her.

9. He further submitted that earlier to this incident, during December, 2016, the appellants came to the school in a car, pushed her into the car and some photographs taken. Since the victim got ashamed, she attempted suicide by consuming Lizol chemical on 12.12.2016. She was admitted in JIPMER Hospital and took treatment in ICU for 3 days and her life could be saved. Thereafter, the first appellant kept quiet for two months and again started following the victim wherever she went, be it to school or tuition centre or other places. Finally, on 27.02.2017, the victim again harassed and compelled for marriage. The victim informed her mother and thereafter complaint lodged to the police. The police not taken immediate action and the defacto complainant/father of the victim approached Chairman of Child Welfare Committee/PW7, lodged a complaint on 03.03.2017. The statement of defacto complainant as well as victim recorded and video-graphed. Thereafter report sent to the Superintendent of Police on 06.03.2017, which was forwarded to the respondent police, who registered a case on 13.03.2017. PW14 registered F.I.R., took up investigation, visited scene of occurrence, prepared observation mahazar and rough sketch in presence of PW6 and PW9, recorded the statement of the victim and the witnesses present in the scene of occurrence. The victim produced before the learned Judicial Magistrate and 164 Cr.P.C. statement recorded, thereafter on completion of investigation, charge sheet filed.

10. The learned Public Prosecutor further submitted that the victim in her first statement before the Child Welfare Committee and in her statement under Section 164 Cr.P.C. before the Magistrate had clearly narrated how she was constantly harassed and subjected to sexual harassment. The victim was fair enough to disclose earlier acquaintance with the first appellant, when she went to her maternal grandmother’s house. She was under the impression that it was a brother and sister relationship. But the first appellant mistook the same and started compelling the victim and to have love affair, when victim refused, he started harassing the victim and forced her for marriage. The victim statement is consistent and gains confidence and no corroboration is required. In this case, the evidence of PW1 and PW3/father and mother corroborates the statement of the victim and their statement all consistent. PW4 and PW5, chance witnesses confirmed the appellants showing the mobile, having heated talk and the victim running back to the school crying. Discarding the evidence of PW4 and PW5 also prosecution proved the case against the appellants. In this case due to the appellants’ act, the victim attempted suicide during December, 2016 and luckily could be saved. The evidence of victim confirm that the victim was constantly harassed by the first appellant in the name of love proposal, which is nothing but a sexual harassment. The Trial Court on the evidence and materials produced had rightly convicted the appellants. Hence, prayed for dismissal of the appeal.

11. Considering the submissions made and on perusal of the material, it is seen that in this case the victim/PW2 is aged about 17 years, studying 10th standard at the time of incident. The victim admits that she used to go to her maternal grandmother’s house at Saram, Tindivanam. The appellants hail from Saram village. The victim had a friend Keerthana in that village and both used to go to Shivan temple regularly. During that time, the first appellant also visited the temple. The first appellant and victim became friendly, exchanged their mobile numbers and had constant touch with each other. Even the parents of the victim, PW1 and PW3 not objected initially, since they were under the impression that it was brother and sister relationship. Later the first appellant informed the victim that he is in love with her and the victim refused, and avoided him. However, the first appellant continued to follow her. On 11.12.2016, both the appellants came to the victim’s school in a car, forcibly took the victim into the car and made a proposal of love. When the victim resisted, some photographs of the victim and the first appellant captured earlier in his mobile phone shown and threatened her. The victim consumed Lizol chemical and attempted suicide. She was admitted in JIPMER Hospital and took treatment for more than 12 days, thereafter she could be saved.

12. The parents of the victim, in order to safeguard her future life and studies, initially through police called the first appellant and warned. For two months first appellant kept quiet, later again started giving harassment and finally on 27.02.2017, the appellants came to the victim’s school showed the mobile phone with photographs of the first appellant and the victim and forced her to have a love relationship, she refused and ran back to the school crying. The mother of the victim enquired her and later she informed to victim’s father/PW1 and complaint lodged. Since no action taken, complaint lodged to the Chairman, Child Welfare Committee. The Child Welfare Committee after counselling, recorded the statement of the victim, which was also video-graphed. The complaint forwarded to the respondent police, who registered a case on 13.03.2017. The victim/PW2 in her evidence deposed how she was subjected to continuous sexual harassment, which is corroborated by the evidence of PW1 and PW3/father and mother of the victim.

13. As regards the second appellant, he is said to be merely present along with the first appellant and nothing more. There is no specific overt act against the second appellant for any sexual harassment and even for criminal intimidation. Hence, the conviction order passed in Spl.S.C.No.69 of 2019 dated 29.03.2022 by the learned Special Judge (Under the POCSO Act, 2012), Puducherry against the second appellant/A2 is set aside and the second appellant is acquitted from the charges levelled against him.

14. As regards the first appellant it is seen that the first appellant and the victim initially initially were friends and also continued their friendship by speaking over the phone regularly. Thereafter the first appellant attempted to elevate the relationship into love relationship, which the victim refused. Due to his age, the first appellant not knowing the consequences, continued and forced the victim for love relationship. In this case, though the first appellant’s mobile phone/M.O.3 seized, no photographs of the victim and the first appellant retrieved from the phone. The misadventure committed by the first appellant led him to this case and conviction. In view of the above, this Court though confirms the conviction of the first appellant but modifies the sentence to period already undergone by the first appellant.

15. In the result,

(i) The Criminal Appeal is partly allowed insofar as the first appellant/A1 is concerned, confirming his sentence to period already undergone.

(ii) The Criminal Appeal is allowed insofar as the second appellant/A2 is concerned and he is acquitted from all charges.