Madras High Court
Murugappan vs State Represented By on 4 March, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.372 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 18.02.2025
Pronounced on : 04.03.2025
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.372 of 2021
Murugappan .. Appellant/Sole Accused
Vs.
State represented by,
The Inspector of Police,
Keeranur All Women Police Station,
Pudukkottai District.
(In Crime No.07/2020). .. Respondent/Complainant
PRAYER: Criminal Appeal is filed under Section 374 (2) of the Code of
Criminal Procedure, against the judgment dated 02.08.2021 in Spl.S.C.No.
85 of 2014 on the file of the Mahila Court, Pudukkottai.
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For Appellant : Mr.E.Somasundaram
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
JUDGMENT
Dr.G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
The appeal is against the judgment of conviction and sentence
imposed by the Mahila Court, Pudukottai. The appellant was sentenced to
undergo Life imprisonment (till the remainder of the natural life) and fine of
Rs.70,000/-, in default, to undergo one year simple imprisonment for the
offence under Section 5(m) r/w 6 of the Protection of Children from Sexual
Offences Act, 2012 (in short ‘POCSO Act‘).
Prosecution case unravelled through its witnesses and documents:
2. The prosecution has examined 9 witnesses and marked 15
Exhibits and 6 Material Objects.
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3. As per the complaint Ex.P-1, on 15.08.2020 at about 12.00
noon, PW-1, the mother of the child victim, left her 5 year old girl child (the
victim) in the house of Bhakiyalakshmi(PW-5) requesting
Mariammal(PW-3) to take care of the child and went out to mend her two
wheeler tube. When she returned back at about 12.30 p.m, she found her
daughter missing. On enquiry with Mariammal, she informed that the
appellant (known as ‘Meenakshi thatha’ in the locality) had taken the child
to his house. She went to the appellant’s house and peeped through the
partially opened door. She saw her daughter holding her undergarment and
pant in her hand, the appellant nude below hip. She rushed out and the
daughter followed her.
4. On enquiry, her daughter told that the appellant removed her
dress and undergarment, put her on the cot and kissed her vagina. She
complaint pain in her private part. On examining the private part, it was
reddish in colour. So, PW-1 applied seasame oil and enquired how it
happened. Then the child opened up and told that the appellant put his penis
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on her vagina. Next day, after husband came home from duty, she informed
the matter to her husband. She and her husband along with one Number
Chinnaiya went to the house of the appellant and questioned him why he did
this to the minor child. The appellant pleaded guilty and sought apology for
his conduct. The matter was informed to the village elders like Velu and
Subramanian. On their advice, she went to Police Station along with the
child and the cloth of the child which she was wearing at the time of
occurrence. Along with her complaint, handed over the clothes.
5. PW-8, Tmt.Sowmiya Banu, Sub Inspector of Police, All
Women Police Station, Keeranur registered FIR in Cr.No.07/2020 dated
16.08.2020 at 10.00 Hrs. (Ex.P-10) and placed it before the Inspector of
Police, Tmt.Kavitha (PW-9). She delivered a copy of the FIR to the Judicial
Magistrate, Keeranur at his residence on the same day at 06.45 pm.
6. PW-9, Tmt. Kavitha Inspector of Police, took up the
investigation. Seized the clothes of the victim girl under Form 95 (Ex.P-11).
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Recorded the statement of the victim girl and her mother. She then
forwarded the victim child with escort for medical examination at
Pudukottai Government Hospital. Dr.Sangeetha(PW-7) examined the child.
The Accident Register is Ex.P-9. Meanwhile, PW-9 visited the house of the
appellant and prepared observation mahazar (Ex.P-7) and rough
sketch (Ex.P-12). Ganesan (PW-4) is one of the witness to the observation
mahazar. On receipt of the information at 15.30 hrs, PW-9 went to
Koodakudi Toll Plaza and arrested the appellant and brought him to the
Station at about 16.30 hrs. The appellant gave his statement voluntarily and
it was recorded in the presence of witnesses Velu and Subramanian at about
16.50 hrs. M.O.4 and M.O.5, the shirt and lungi respectively, of the
appellant were recovered under Mahazar Ex. P-13.
7. The accused was remanded to Judicial custody on the same
day. He was subjected to medical examination with the permission of the
court on 18.08.2020. Dr.Valliappan (PW-6) examined the appellant and the
medical report of the appellant is Ex.P-8, The statements of the minor child
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(Ex.P-5), her mother (Ex.P-4) and Mariammal (Ex.P-6) recorded under
Section 164 of Cr.P.C., by the Judicial Magistrate on 19.08.2020.
Case of the appellant as spoken by the witnesses for defence:
8. The appellant/accused to establish his innocence had
mounted the witness box and also examined 4 more witnesses. The gist of
the evidence spoken through DW-1 to DW-5 are as below:-
8.1. According to the appellant examined as DW-1, on
15.08.2020, he was in his house along with his son and daughter-in-law.
Between 12.30 to 1.00 pm, his son and daughter-in-law left the house to
purchase clothe for their wedding anniversary. He then arranged his cot
outside the room and slept. At about 3.30-4.00 pm his son and daughter-in-
law returned home. He left the home at about 4.00 pm to bring his wife.
After he came back, his sambandi (father-in-law of his son) came home at
4.30 p.m to see his daughter. At about 8.30 p.m, his sambandi left. At
about 8.30 p.m, Ramasamy and Ganesan came to his house and quarrelled
with his son. Ganesan was drunk. They both attacked him saying, “ having
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come from outside, why are you doing atrocity” and told “inspite of
repeated instruction to vacate the house, you are refusing to go. You must
be beaten and chased out”. Soon crowd gathered. He was dragged and taken
by force to the nearby temple and was beaten. Village President Mathi who
was present there, warned him to vacate the house immediately or will be
taken to police station. The crowd gathered there beat him and took him to
the police station.
8.2. DW-2, is son of the appellant. He had deposed that, for a
long time, they are in loggerhead with Ganesan. On 16.08.2020 morning
Ramasamy came to him in a drunken state and asked for the two wheeler.
He refused to give the two wheeler. Ramasamy quarrelled with him by
calling him as outsider. Ganesan along with Ramasamy and their caste
people joined together and attacked him and his father(appellant). They took
his father to the police station. He went to hospital for treatment.
8.3. DW-3, Mr.Manickam, the sambandi of the appellant had
deposed that on 15.08.2020, he went to the house of the appellant at 4.00-
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4.30 pm and left the house on the next day at about 7.00-7.30 am. His
daughter, on Monday called him over phone and informed that police had
arrested her father-in-law (the appellant). DW-4 and DW-5 who are friends
of the appellant and deposed that they know the appellant for more than 15
years. He is man of good character. They don’t believe the accusation
against him.
9. The learned Session Judge, holding that the evidence of the
victim child is cogent and corroborated in all aspects. Her evidence is
natural, reliable and trustworthy. No contradiction in the previous
statements of the witnesses recorded under Section 164 of Cr.P.C and their
deposition before the Court. Accepting the prosecution witnesses, convicted
the appellant.
10. The learned Counsel appearing for the appellant contended
that, the trial Court grossly erred in appreciating the evidence. It failed to
consider the child witness been tutored by her mother and others to depose
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contrary to the truth. The uncorroborated evidence of a child evidence
without proof been relied to convict the appellant with the aid of Section 29
of the POCSO Act.
11. The trial Court miserably failed in note that the minor child
has initially only said that the appellant kissed her. Later improved her
version and said the appellant removed her undergarment and kissed her
private part. Much later, had said the appellant placed his genital on her
vagina. The embellishment due to tutoring though palpable, the trial Court
failed to address this embellishment in the prosecution case. It also not
considering the medical evidence namely, Accident Register of the victim
girl. In the absence of external injuries and no sign of sexual violence, the
trial Court ought not to have convicted the appellant for the offence of
aggravated penetrative sxual assault under section 5(m) of the POCSO Act.
12. The occurrence alleged to have happened on 15.08.2020 at
about 12.30 hrs. The complaint given to the police only on the next day at
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about 10.00 hrs. The delay of more than 20 hrs in lodging the complaint not
properly explained by PW-1. Her explanation that she was waiting for her
husband to come cannot be taken as a excuse for the delay, particularly,
when the said Murugesan, the husband of PW-1 not examined to
corroborate the version for delay given by PW-1. It is the case of the
prosecution, that PW-1 along with her husband and villagers Chinnaiya,
Velu and Subramaniam went to the house of the appellant on 16th morning
before going to the police station at 9.00 am. If so, to corroborate the
evidence of PW-1, the prosecution ought to have examined Murugesan,
Chinnaiya, Velu and Subramaniam who are vital witnesses.
13. PW-7, the Doctor who examined the minor child after two
days of the alleged occurrence had admitted that reddishness in the vagina
could have caused due to insect bites or frequent scratching. PW-1 in her
complaint as well as chief examination had deposed she applied sesame oil
on the private part of her daughter and rubbed. Therefore, the manipulation
of the private part of the minor girl admitted done by PW-1 not taken into
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consideration by the trial Court.
14. The presumption under Section 29 of the POCSO Act is a
rebuttable presumption. It is the duty of the prosecution to prove the
foundational facts beyond doubt, before drawing any presumption. The
reverse burden on the accused can be rebutted by preponderance of
probability and need not be beyond doubt. The trial Court in the instant case
failed to consider the evidence of the defence witnesses. Particularly, the
testimony of the accused/DW-1 who had given a detail account of his
activity on 15.08.2020 to show there was no incident occurred on
15.08.2020 in his house between 12.00 to 12.30 hrs.
Submission by the Additional Public Prosecutor on behalf of the State:
15. The case of the prosecution is based on the evidence of the
victim child aged about 5 years. The child statement was recorded by two
Judical officers. First under Section 164 of Cr.P.C by the Judicial
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Crl.A(MD)No.372 of 2021Magistrate, Keeranur on 19.08.2020 (4th day of the occurrence) and next by
the District and Sessions Judge, Mahila Court on 22.01.2021. Both the
Judicial officers have recorded specifically their satisfaction about the
capacity of the child witness to understand and answer questions.
16. In both her statement, the child witness had narrated what
happened to her. The aggravated penetrative sexual act committed on her by
the appellant been consistently stated by the child witness examined as
PW-2. In the cross examination, it was suggested to the child witness that
she is deposing on tutoring. The child has denied the suggestion and had
stated that she not been tutored and she depose voluntarily.
Delay in complaint:
17. In case of sexual offences, particularly, when the victim is
a child, the delay in reporting it to the police may not be fatal. In many cases
the victim and her family to report out of fear of social stigma. In some
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Crl.A(MD)No.372 of 2021cases, the vulnerability or weakness of the victim as against the perpetrator
of the crime may take some time to muster aid and courage to lodge the
complaint, or as in this case, sometimes for absence of family elder or head
delay may cause. The duty of the Court is to look whether the delay is
satisfactorily explained and no embellishment due to delay.
18. The credibility of a child witness is based on the factors
like age, the possibility of tutoring, understanding the difference between
truth and falsehood, capacity to express and the intelligence level. In this
case Ex.P-3 is the birth certificate of the child victim. Her date of birth is
08.07.2016. On the alleged date of occurrence ie., 15.08.2020, she had just
completed 4 years, 1 month and 7 days. Four days thereafter, her statement
under Section 164 Cr.P.C recorded on 19.08.2020 in the presence of her
mother who is the first informant. When she was 4 ½ years old, she was
examined as PW-2 on 22.01.2021.
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19. Questions put to her to ascertain her suitability to be a
witness and her answers given a satisfactory impression to the Trial Judge
that the witness knows the difference between true and false. She has the
capacity and readiness to depose. Hence, the learned trial Judge has
observed that the response of PW-2, the victim child reveals that they are
natural and spontaneous as well as true. Her competency to testify remains
unchallenged in the cross examination.
20. The crime came to light soon after the occurrence, when the
mother of the victim child saw the appellant and the child semi-nude. The
child (PW-2) had told her mother what the appellant did to her and same is
found in the complaint and FIR. The child has reiterated the same before the
Doctor(PW-7) and the Judicial Magistrate. After six months, she had
deposed before the Court that the appellant took her to his house, placed her
on the cot and put his genital on her vagina. He kissed her. This portion of
the evidence is consistent to her earlier statements. No improvement or
embellishment could be noted. The suggestion put to PW-2 whether she
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been tutored to say so, she had denied it.
21. The version of the child is corroborated by the medical
evidence namely, the Accident Register (Ex.P-9) and the testimony of the
doctor (PW-7) who examined the victim and found ‘introitus congestion’.
Also, at this juncture, it is profitable to refer Dattu Ramrao Sakhare and
Ors., vs State Of Maharashtra reported in 1997 (5) SCC 341, where the
Hon’ble Supreme Court has observed that,
“The evidence of a child witness and credibility
thereof would depend upon the circumstances of each
case. case. The only precaution which the court should
bear in mind while assessing the evidence of a child
witness is that the witness must reliable one and his/her
demeanor must be like any other competent witness and
there is no likelihood of being tutored. There is no practice
that in every case the evidence of such a witness be
corroborated before a conviction can be allowed to stand
but, however as a rule of prudence the court always finds
it desirable to have the corroboration to such evidence
from other dependable evidence on record.”
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22. Reverting back to the case in hand, even assuming rest of
the witnesses, except the victim, are only hearsay witnesses in respect of the
crime, the evidence of PW-1 who went in search of his daughter in the
house of the appellant and saw the appellant standing without dress below
hip near her daughter, who without pant and undergarment cannot be
ignored. This piece of evidence is admissible under Section 8 of the
Evidence Act. The child has reported pain in the private part immediately to
the mother and then to the Doctor (PW-7). These portion of the prosecution
evidence is sufficient corroboration to the testimony of the child witness.
23. Therefore, the conviction based on the unimpeached
evidence of the victim corroborated by medical evidence cannot be set aside
taking into consideration the omissions to examine the father of the victim
or the seizure mahazar witnesses. These omissions are trivial not adequate
to reject the testimony of the victim. Likewise, the defence witnesses
particularly, DW-2 (son of the appellant) and DW-3 (sambanthi) does not
lend any support to the appellant to rebut the presumption against him.
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24. The learned counsel for the appellant as his last limb of
argument pleaded that, even if there is some evidence of sexual offence, it
will only fall under Section 9(m) of the POCSO Act (sexual assault on a
child below 12 years) and not under section 5(m) of the POCSO Act
(Aggravated penetrative sexual assault on a child below 12 years). Hence,
the life sentence till the natural death is improper.
25. The above submission in our considered view is not
sustainable, Placing the penis on the vagina and applying mouth to kiss her
vagina falls under (a) and (d) of Section 3 of the POCSO Act which defines
‘Penetrative sexual Offence’. Since the testimony of the victim child aged
below 12 years proves the act of penetrative sexual offence, the said offence
gets the form of ‘aggravated penetrative sexual offence’ to attract Section
5(m) punishable under Section 6 of the POCSO Act which prescribes
Rigorous Imprisonment for a period of not less than 20 years or Life
Imprisonment which shall mean imprisonment for the remainder of natural
life and fine or Death.
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26. Considering the facts and circumstances, the age of the
victim as well as the accused/appellant, the trial Court has imposed sentence
of Life Imprisonment with fine of Rs.70,000/-. We find the said sentence is
proportionate to the crime and need no interference.
27. In fine, the Criminal Appeal stands dismissed. The
judgment passed by the learned Sessions Judge, Mahila Court, Pudukkottai
in Spl.S.C.No.85 of 2014 dated 02.08.2021, is hereby confirmed.
[G.J.,J] & [R.P., J]
04.03.2025
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
PJL
To
1.The Sessions Judge,
Mahila Court, Pudukkottai.
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2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.372 of 2021
DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
PJL
Judgement made in
Crl.A(MD)No.372 of 2021
04.03.2025
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