(Prayer: Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, against the order of conviction and sentence passed by the learned Sessions Judge, Fast Track Mahila Court, Ariyalur in Spl.S.C.No.3 of 2015 dated 22.07.2015.)
1. The Appellant/Accused No.1 has preferred the instant Criminal Appeal as against the judgment dated 22.07.2015 in Spl.S.C.No.3 of 2015 (in Cr.No.11 of 2014 on the file of the All Women Police Station, Ariyalur) passed by the Learned Sessions Judge, Fast Track Mahila Court, Ariyalur.
2. The Learned Sessions Judge, Fast Track Mahila Court, Ariyalur while passing the impugned judgment in Spl.S.C.No.3 of 2015 on 22.07.2015 had come to a resultant conclusion that the Respondent/Prosecution had proved its case against the Appellant/A1 in respect of an offence under Section 7 of the Prevention of Children from Sexual offence Act, 2012 (punishable under Section 8 of the Act) and convicted and sentenced him to undergo rigorous imprisonment for a period of three years under Section 8 of the POCSO Act and directed him to pay a fine of Rs.15,000/- in default of payment of the said fine, he was directed to undergo a further period of 6 months rigorous imprisonment. Moreover, a sum of Rs.10,000/- out of the fine amount of Rs.15,000/- imposed on the Appellant/A1 was directed to be paid to the victim/P.W.1 as compensation under Section 357 of Cr.P.C., by the trial Court. Further, the trial Court in its judgment had stated that the Appellant/A1 was entitled to set off the period of detention, if any, he had already undergone under Section 428 of Cr.P.C.
3. Challenging the judgment dated 22.07.2015 in Spl.S.C.No.3 of 2015 passed by the trial Court, the Appellant/A1, as an aggrieved person has focused the present Criminal Appeal, basically contending that the trial Court had not considered the evidence of P.W.2 (in chief examination) to the effect that at the time of so called incidence, P.W.1 did inform her that the identity of the Accused was unknown to her (P.W.1). Also, it is the stand of the Appellant/A1 that the trial Court had incorrectly opined that the identification of the Appellant/A1 by P.W.1 and P.W.2, which were not at all disputed by the Appellant.
4. The Learned counsel for the Appellant/Accused urges before this Court that it is the story of the prosecution that there was a shrubby or bushy area where the incident took place and there was no mentioning or marking of the so called shrubby or bushy area in Ex.P8 Mahazar prepared by P.W.9 (the Investigating Officer) during investigation. In this connection, it is the plea of the Appellant that if really, the incident had taken place in the shrubby or bushy area (as alleged) after such an amount of force was employed by the Appellant/A1 towards P.W.1, then there was every possibility of sustaining injuries by the victim (P.W.1) as well as in the body of the Accused, atleast on the face, bare hands and legs.
5. Advancing his argument, it is represented on behalf of the Appellant that the trial Court had incorrectly held that dress of P.W.1 (victim) was not removed and that the absence of injury on her body does not falsify her version.
6. Expatiating his contention, the Learned counsel for the Appellant projects an argument that P.W.1 (victim) had clearly admitted in her evidence that the place of occurrence was the main road and used to transport the labours in a lorry, (in a daily routine shift basis) to the cement factory and the stress laid on the side of the Appellant is that because of the main road being the place of occurrence, it was highly improbable to believe the version of P.W.1 in regard to happening of the occurrence in question.
7. The grievance of the Appellant is that the trial Court had not considered this essential fact and had merely convicted the Appellant/A1 which is clearly unsustainable in the eye of Law.
8. The Learned counsel for the Appellant brings it to the notice of this Court that the mother of P.W.1 (victim) was examined as P.W.2 by the prosecution before the trial Court and Seetha, being the elder sister of P.W.1 (victim) was not at all examined as witness before the trial Court and that the Respondent/Prosecution had no plausible explanation to offer in this regard.
9. The Learned counsel for the Appellant takes a plea that P.W.2 mother of P.W.1 (victim) stated to be an eye witness had not whispered about Seetha in her evidence and father of Seetha (P.W.4) had clearly deposed in his cross examination that it was correct to state that Seetha's School would work till evening 4.15 p.m. and that his elder daughter Seetha was staying in hostel etc.
10. It is the version of the Appellant that Ex.P2/Complaint was not written by P.W.2 (mother of P.W.1/victim) and in fact, P.W.1 (victim in her cross examination) had admitted that Ex.P2/Complaint was written by an Advocate who was not a witness in this case.
11. The Learned counsel for the Appellant proceeds to bring it to the notice of this Court that the prosecution had suppressed before the trial Court that what was written by the Kairlabath Police during the enquiry based on the first complaint lodged with them and in fact, the trial Court had wrongly arrived at a conclusion that P.W.4 came to the house on the next morning and further, P.W.9 (the Investigating Officer in his cross examination) stated that P.W.4 arrived only on 06.07.2014 i.e., two days after the incident and not on the next day as claimed by the Respondent/Prosecution. In effect, the plea of the Appellant is that the prosecution had not properly explained the delay in lodging the complaint.
12. Apart from the above, it is the claim of the Appellant that P.W.1 (victim) had clearly admitted in her cross examination that there was a dispute regarding the pathway between the families of P.W.1 and the Appellant/A1 for more than two years and the same was not resolved yet, which fact was corroborated by D.W.2.
13. The case of the Appellant is that this aspect namely, the pathway dispute between the two families was not properly appreciated by the trial Court in a real perspective.
14. The Learned counsel for the Appellant submits that the trial Court compared the evidence of P.W.1 (victim) with that of her statement recorded under Section 164 of the Criminal Procedure Code and in fact, on the side of the Appellant/A1 (defence side) many contradictions between the statement of P.W.1 before the Court and the statement recorded by the trial Court were brought before it, but the said contradictions were not either taken note off or considered at the time of passing the impugned judgment.
15. The Learned counsel for the Appellant/A1 invites the attention of this Court to the fact that P.W.1 (victim) gave a statement to the Doctor (P.W.7) which was duly entered in the Accident Register (Ex.P5) which was not of a 'Substantive Evidence' and therefore, it has a little significance.
16. At this stage, it is the plea of the Appellant that the trial Court without seeking any corroboration or comparing Ex.P5/Accident Register with the evidence before the trial Court, directly came to the conclusion as if the incident had taken place, as alleged by the Respondent/prosecution.
17. It is a stand of the Appellant that the Respondent/Prosecution ought to have investigated the (1) Time factor (2) History of the Accused from the time he left the college and could have corroborated with the alleged happening of an occurrence.
18. The Learned counsel for the Appellant takes an emphatic plea that the evidence of D.W.2 (driver of the bus) was not taken into consideration by the trial Court and this has resulted in serious miscarriage of justice.
19. Per contra, it is the submission of the Learned Government Advocate (Crl. Side) for the Respondent that before the trial Court on behalf of the Respondent/Prosecution, witnesses P.W.1 to P.W.9 were examined and Ex.P1 to Ex.P10 were marked and on the side of the Appellant/A1 and A2, witnesses D.W.1 and D.W.2 were examined and Ex.D1 was marked. The trial Court on an appreciation of the entire oral and documentary evidence available on record, had come to a consequent conclusion that the Appellant/A1 was guilty in respect of an offence under Section 7 of the POCSO Act and imposed a punishment of three years Rigorous Imprisonment under Section 8 of the POCSO Act, 2012. Further, it directed him to pay a fine of Rs.15,000/-, only in default of payment of the said fine amount, he was directed to undergo a further period of six months Rigorous Imprisonment. Insofar as the Second Accused was concerned, the Second Accused was not found guilty in respect of an offence under Section 294(b) of IPC and acquitted him under Section 235 (1) of Cr.P.C. In reality, the trial Court also in its judgment had directed the Appellant/A1 to pay a sum of Rs.10,000/- (out of Rs.15,000/- paid as fine) to the victim (P.W.1) towards compensation under Section 357 of Cr.P.C. Therefore, the stand of the Respondent is that there is no infirmity or legal flaw in the judgment dated 22.07.2015 in Spl.S.C.No.3 of 2015 passed by the trial Court and the same need not be displaced at this distant point of time.
20. At the outset, it is to be pointed out that the charge levelled against the Appellant/A1 was that on 04.07.2014 at about 7.00 p.m., when the affected girl Shanthi (P.W.1) went to the backside of the house for answering the nature's call, the Appellant/A1 pulled her hand and when she raised a noise, he closed her mouth with his handkerchief and pulled her down and laid on her. He pressed her breast and also tried to molest her. As such, committed an offence under Section 7 and 8 of the POCSO Act.
21. This Court is concerned only with the Appellant/A1, in the present Criminal Appeal No.496 of 2015 (filed by him), hence, it is unnecessary to refer to the charge levelled and framed against the Second Accused under Section 294(b) of IPC. Furthermore, A2 was acquitted by the trial Court under Section 294(b) of IPC.
22. To know about the full background of the entire gamut of the present case in Spl.S.C.No.3 of 2015 on the file of the trial Court, it is just and necessary for this Court to make an useful reference to the evidence of prosecution witness namely, P.W.1 to P.W.9, D.W.1 and D.W.2 and exhibits marked on either side (Ex.P1 to Ex.P10 and Ex.D1)
23. It is the evidence of P.W.1 (the victim girl) that on 04.07.2014 at about 7.00 p.m., since there was no toilet facilities in her house, she went to the nearby forest area after informing her mother and at that time, the Appellant/A1 followed her and on seeing him, she thought that he would pass her and therefore, she stood for some time but he had not crossed over her but he came near her and she thought that she was waylaying him and therefore, with a view to give passage, she walked in front. Further, the Appellant/A1 had not allowed to proceed her (P.W.1). In that fashion, caught hold of her hand and when she asked him to leave her hands, he had not done so and immediately, she shouted at him and at that time, the Appellant/A1 caught hold of her clothes and also closed her mouth and thereafter, the Appellant/A1 took her to a secluded bushy area and pushed her down and also laid on her. Furthermore, he (the Appellant/A1) kept his hands on her breast, inspite of her screaming out of pain, he had not left her, on hearing P.W.1's cry, her mother (P.W.2) came there and after her mother, her sister Seetha came running and after seeing both her mother and sister Seetha, the Appellant/A1 ran away from the place.
24. P.W.1 adds in her evidence, later her kerchief was removed by her mother (P.W.2) and she enquired as to what had happened and she narrated the incident to her mother and thereafter, she was taken to her house. Moreover, since it was during night time and also since her father was not available in the house, it would not be proper to speak about the incident with others, her mother had not informed the incident to anyone. Thereafter, on the next day, on 05.07.2014 at about 6.30 a.m., her father came to the house. She along with the inmates of the house, had informed her father about the happening of the occurrence and then her mother went to the Appellant/A1's house and spoke about the conduct of the Appellant/A1 to the Second Accused. As a matter of fact, the Second Accused scolded her mother (P.W.2) and at that time, he showed a sickle and threatened her mother P.W.2 by saying if you say something I would finish you and subsequently, her mother out of fear, gave a complaint before the All Women Police Station, Ariyalur about the happening of occurrence.
25. P.W.1 proceeds in her evidence that after lodging a complaint, she came along with her mother and that she was enquired by the police with whom she had stated all the happening of the occurrence and that she was taken to the hospital through police where she was medically examined and also she rendered evidence before the Learned Judicial Magistrate, Jayamkondam about the incidence.
26. P.W.2, mother of P.W.1 in her evidence had stated that P.W.1 is her younger daughter and last year, she studied IX Std in Aditya Birla School and she knew the Accused about one year before. Her husband went out to bring her eldest daughter and at about 6.00 p.m., on the said date, her husband brought their eldest daughter and since a phone call came, he took a lorry and went away and that P.W.1 (her daughter) informed her that he wanted to attend to the nature's call and she (P.W.2) informed P.W.1 that after sending LKG and UKG students who came for tuition at about 7.00 p.m., she may attend the nature's call and at that time, she (P.W.2) was preparing dosai and her daughter P.W.1 went alone for attending the nature's call and when she was pouring the batter for dosai, she heard a noise of her daughter 'saying mummy' and immediately, she (P.W.2) came out running and ran on the mud path, at that time, the Appellant/A1 was keeping the clothes in the mouth of her daughter and pressing the same and her daughter was on the floor and she immediately raised a cry by saying 'who was that person' and released her and immediately, after seeing P.W.2, the Appellant/A1, disappeared from the scene, she lifted her daughter (P.W.1) and removed the cloth from her mouth and enquired her what had happened and she informed that the Appellant/A1 had made an endeavour to assault her sexually and further, informed her that she had not seen the Appellant/Accused before and she brought her daughter (P.W.1) to the house and enquired her.
27. Apart from the above, P.W.2 adds in her evidence that prior to the lodging of complaint, on the second day morning of the incident, she informed the Second Accused about the conduct of the Appellant/A1 and for that, the Second Accused scolded her (P.W.2) by saying you are accusing my grandson, prostitute etc., . Further, the Second Accused gave the Appellant/A1 a sickle and told him to cut P.W.2 and come back and by so saying, showing the sickle, he threatened her, at that time her husband (P.W.2's husband) came to the house and also many people had throng the house of the Accused and they had lodged a complaint before the police and that she was examined by the police.
28. P.W.3 in his evidence had stated that she does not know about anything about the occurrence and that she was not examined by the police and therefore, she was treated as an 'hostile witness'.
29. It is the evidence of P.W.4 who deposed that P.W.1 Shanthi, last year was studying at IX Std in Aditya Birla School and that presently, completed 14 years and was running 15 years and once in every 10 months he used to go to Namakkal for purchasing lorry articles and during the occurrence of the said incident, he went to Namakkal for purchasing the articles to his lorry and his wife telephoned him and informed him about the misbehaviour of the Appellant/A1 with her daughter and he came to his house on the next day and lodged a complaint before the All Women Police Station and that his daughter P.W.1 was taken for medical examination and he was examined by the police.
30. P.W.5 in her evidence had stated that 8 or 9 months before, the police had visited the house of P.W.4 and in blank papers, they asked him to sign and accordingly, he signed and his signature was marked as Ex.P3 and he had not seen anything. In fact, P.W.5 was treated as an 'hostile witness'.
31. P.W.6 in his evidence had stated that in the document shown before him was his signature/Ex.P4 and that he does not know what was written there and he was not examined by the police. He was also treated as an 'hostile witness'.
32. P.W.7 (Doctor) in his evidence had stated that on 06.07.2014, a lady Constable LeonPrabha brought a girl Shanthi (P.W.1) for determining her age and she was examined by the Assistant Doctor Revathi in their hospital and a certificate was issued mentioning that there was no injury and Accident Register got was marked as Ex.P5 and later P.W.1 (affected girl) was sent to him and he examined her teeth and for P.W.1 third molar teeth had not grown and the second molar teeth newly came out and that he gave a certificate to P.W.1 in her favour stating that at the maximum, her age would be from 14 years to 18 years and Ex.P6 was the age certificate.
33. P.W.8 (Principal of the Aditya Birla School) in her evidence had stated that Ex.P1 was the bona-fide certificate issued by her based on the request of the Inspector of All Women Police Station, Ariyalur and as per the records of her school, the date of birth of Miss.Shanthi, D/o.Selvam (P.w.1) was 19.10.2000 and during the academic year 2014-15, she was studying IX Std and the police enquired her.
34. P.W.9 (the Investigating Officer) of All Women Police Station, Ariyalur, in her evidence had deposed that on 06.07.2014 at about 10.30 a.m., at that when she was in-charge of the Station, she received a complaint from one Dhanalakshmi (P.W.2) W/o.Selvam (P.W.4) of Kattupiringiyam Village and registered Ex.P7/FIR in Cr.No.11 of 2014 under Section 7 and 8 of POCSO Act, 2012 and on the same day, at about 11.00 a.m., she went to the scene of occurrence in the presence of witnesses Natarajan, Velmurugan and prepared a rough sketch and observation Mahazar i.e., Ex.P8 and Ex.P10 respectively and recorded the statements of the place of occurrence witnesses namely, Dhanalakshmi (P.W.2), Shanthi (P.W.1), Seetha, Joseph Baskar, Selvam (P.W.4), Natarajan and Velmurugan and later, gave an altercation report/Ex.P9 for changing the section under Section 294(b) of IPC and that of Section 7 and 8 of POCSO Act and at about 2.00 p.m., on 06.07.2014, she arrested the accused Sathish @ Sathish Kumar (A1) at V. Kaikatti Bus stand and brought him to the police station at 2.45 p.m. and sent him to judicial custody.
35. Continuing further, P.W.9 adds in her evidence, on 10.07.2014, she examined Dr.Revathi who enquired/examined the affected girl (P.W.1) and also enquired on Dr.Kavithapriya (P.W.7) and recorded their statements and she examined the lady constable Leonprabha who took P.W.1 affected girl on 31.07.2014 for medical examination and recorded her statement. She obtained the education certificate from the Principal of Aditya Birla Public School after enquiring her and on the same date, she submitted a final report under Sections 7 and 8 of the POCSO Act against the First Accused and against the Second Accused under Section 294(b) of IPC.
36. P.W.9 in her evidence in cross examination had stated that P.W.1 (victim girl) in her statement had not stated that she made an attempt to run away at the time of occurrence and further, in the statement of P.W.1 she had not mentioned that the Appellant/A1 had closed her mouth by catching hold of her dress when she raised a cry.
37. P.W.9 in her evidence had also stated that P.W.4 in his statement had stated that his wife (P.W.2) had seen the occurrence personally and she had not informed about the arrest of the Appellant/A1 to the college where he was studying and that the pathway shown in the sketch was the one where the workers from the cement factory would pass through, which was situated at a distance of 250 mts.
38. As regards the stand taken on behalf of the Appellant/A1 that the identity of the Appellant/A1 was not established by the Respondent/Prosecution in the main case. It is to be pointed out by this Court that it is the evidence of P.W.1 (victim) that she went to the backyard (forest area) of the house, since in her house, there was no toilet facilities and she informed her mother P.W.2 and went for answering the nature's call and at that time, she noted that the Appellant/A1 followed her and she waited for him to cross her but he had not passed over instead, he came near her. Due to the said act of the Appellant/A1, she gave way to him thinking that she was waylaying the path, she walked in front of him and at that time, the Appellant/A1 restrained her and pulled her hand and although she informed him to leave her hands, he had not left her hands and hence, she raised a noise and at that time, the Appellant/A1 had closed her (P.W.1) mouth and took her to a hidden bush and pushed her down and laid on her and pressed her breast and though she suffered pain etc., he did not let her go.
39. From the aforesaid clear cut candid evidence of P.W.1 (victim girl) it could not be said that the identity of the Appellant/A1 at the time of commission of the offence was not known to P.W.1. Viewed in that perspective, the contra plea taken on behalf of the Appellant/A1 is not accepted by this Court.
40. Secondly, on behalf of the Appellant/A1, the evidence of P.W.4 (father of victim girl) had not mentioned in his evidence that his eldest daughter Seetha's school was working till 4.15 p.m., and that she stays in hostel at Perambalur and studying there and therefore, the version of P.W.1 that his sister Seetha came running at the time of occurrence could not be a true one, which was also corroborated by the evidence of P.W.4 (father of the victim girl) and as such, the trial Court had committed an error in this regard.
41. Admittedly, the victim/affected girl/P.W.1 (daughter of P.W.2 and P.W.4) had clearly narrated about the happening of the occurrence in lucid terms through her evidence is indeed in the considered opinion of this Court is unimpeachable and unassailable one. Furthermore, the evidence of P.W.1 (victim) about the happening of occurrence is a cogent, coherent and convincing one (barring her deposition that her sister Seetha had witnessed) which was not the case as seen from the evidence of P.W.4/father of P.W.1. In any event, the happening of the occurrence was very much narrated by P.W.1 in her evidence and therefore, her evidence is worthy and acceptable and the same is accepted by this Court.
42. Thirdly, it is represented on behalf of the Appellant/A1 that there was a pathway dispute between the Appellant/A1 and P.W.1's families and only because of the said motivation, the Appellant/A1 was implicated in the case without any prime or vital reason. On this aspect, this Court on perusing the evidence of P.W.1 (victim) is of the considered view that P.W.1 had specially denied in her cross examination that about the motivation relating to the complaint lodged by her parents in regard to the pathway against the Appellant/A1's family.
43. One cannot ignore the ingredients of Section 7 of POCSO Act, 2012 which defines the offence of 'Sexual Assault'. Also it provides that an individual is said to commit a sexual assault if he with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent and involves physical contact without penetration . Section 8 of the Act provides 'Punishment for Sexual Assault'.
44. On behalf of the Appellant/A1, it is represented before this Court that the trial Court at para 20 of the judgment had stated that the evidence of P.W.1 is clearly in consonance with her statement before the Learned Judicial Magistrate, which was recorded on 23.07.2014 and there was no deviation from the statement recorded under Section 161 of Cr.P.C. The categorical plea of the Appellant/A1 is that such a comparison could not be done in the teeth of the decision of the Division Bench of this Court in R.Palanisamy V. State by Inspector of Police, B-7, Ramanathapuram Police Station, Coimbatore reported in 2013 (2) LW (Crl.) 169 and at special page 181 wherein at para 43 and 44, it is observed as under:
43. Further, through the learned Magistrates, the learned Sessions Judges are marking the very statement of witnesses recorded under Section 164 Cr.P.C., even when the witness either turned hostile or has been dispensed with by the prosecution or not examined in the trial Court due to various reasons.
44. When it was so marked the entire statement u/s.164 Cr.P.C., which has not been recorded before the learned Sessions Judge, but recorded before the Magistrate, at a time when the accused was not in the picture, goes into the deposition of the witness, becomes part of the record of evidence, as it was done in the case before us. Then there is the danger of the trial Court using them as substantive evidence, as it was done in the case before us.
45. The pith and substance of the stand of the Appellant/A1 is that in the instant case, the statement of P.W.1 (victim girl) recorded under Section 164 Cr.P.C., was not marked before the trial Court in Spl.S.C.No.3 of 2015 and as such, the Learned trial Judge should not have referred the same at para 20 of the impugned judgment.
46. It cannot be gainsaid that before the trial Court Section 164 of Cr.P.C., statement of P.W.1 recorded by the Learned Judicial Magistrate concerned was not marked and also that the Learned Judicial Magistrate who recorded the said statement was also not examined. Even then, the fact of the matter is that P.W.1 (victim girl) in a crystalline fashion had spoken about the manner of occurrence and the malevolent conduct of the Appellant/A1. In fact, P.W.2/mother of P.W.1 hearing the noise/cry of her daughter who came to the place of occurrence had seen the Accused at the time of occurrence. Therefore, by no stretch of imagination, it could be said that the Appellant/A1's identity was not known either to P.W.1 (victim girl) or to P.W.2 (mother of the victim girl). In that perspective, the opposite stand taken on behalf of the Appellant/A1 is not accepted by this Court to advance the Accused to substantial justice.
47. In view of the foregoings, detailed qualitative and quantitative discussions and also, this Court on taking into consideration the entire gamut of the facts and circumstances of the present case, in a conspectus manner and also bearing in mind, the facts of the present case which float on the surface, comes to an inevitable and irresistible conclusion that the Respondent/Prosecution had proved the charge of sexual assault against the Appellant/A1 under Section 7 of POCSO Act and rightly found him guilty under Section 8 of the POCSO Act. In fact, really speaking, the trial Court had convicted the Appellant/A1 in respect of an offence under Section 7 of the Act and imposed a punishment of three years rigorous imprisonment under the Act, which in the considered opinion of this Court is slightly on the higher side. As such, this Court modifies the said punishment of three years Rigorous Imprisonment (under Section 8 of the Act) to two years of Rigorous Imprisonment, to meet the ends of justice.
48. It is represented before this Court that a fine of Rs.15,000/- was deposited before the trial Court to the credit of Spl.S.C.No.3 of 2015 and out of the said sum of Rs.15,000/-, a sum of Rs.10,000/- was directed to be paid to P.W.1 (victim girl) as compensation under Section 357 of Cr.P.C., and this Court does not interfere with the same, in furtherance of substantial cause of justice.
49. In fine, the Criminal Appeal is allowed in part as indicated in above terms. The Learned Sessions Judge, Fast Track Mahila Court, Ariyalur is directed to secure the Appellant/A1 to immure him to prison for serving the remaining period of sentence.