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Manohar vs For Appellant : Mr.C.Christopher on 13 March, 2020

Crl.A.(MD)No.77 of 2015

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 13.03.2020

CORAM

THE HONOURABLE MR.JUSTICE M.DHANDAPANI

Crl.A.(MD)No.77 of 2015

Manohar : Appellant
Vs.

State through the Inspector of Police,
Athoor Police Station in
Crime NO.208 of 2012,
Thoothukudi District. : Complainant

PRAYER: Criminal Appeal filed u/s 374 (2) of the Code of Criminal
Procedure, to call for the records and set aside the conviction and
sentence imposed on the appellant dated 06.01.2015 made in S.C.No.196
of 2013, on the file of the Sessions Judge, Mahalir Neethimandram (Fast
Track Mahila Court), Thoothukudi.

For Appellant : Mr.C.Christopher
For Respondent : Mrs.S.Bharathi
Government Advocate (Criminal side)

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Crl.A.(MD)No.77 of 2015

JUDGMENT

The sole accused in S.C.No.196 of 2013, on the file of the Court of

Sessions Judge, Mahalir Neethimandram (Fast Track Mahila Court),

Thoothukudi, is the appellant. The appellant/accused stood charged and

tried for the commission of the offences under Sections 450 and 506(ii)

I.P.C. and Section 8 of the Protection of Child from Sexual Offences Act,

2012 (POCSO Act).

2. The trial Court, vide impugned judgment dated 06.01.2015 has

found him guilty for the commission of offences under Section 506(ii)

I.P.C. and Section 8 of the Protection of Child from Sexual Offences

Act, 2012 (POCSO Act) and imposed him with the sentences as follows:

Rank of Conviction u/s Sentence awarded
the
Accused
506(ii) I.P.C. To undergo rigorous imprisonment for a
period of five years.
Sole
Accused u/s 8 of the To undergo rigorous imprisonment for a
Protection of

Children from period of five years and to pay a fine of
Sexual Offences
Act Rs.3000/- in default to undergo simple

imprisonment for a period of six months.

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Crl.A.(MD)No.77 of 2015

The trial Court acquitted the appellant/accused for the commission of

offence under Section 450 I.P.C. The sentences of imprisonment were

ordered to be run concurrently. The trial Court has also granted set-off

under Section- 428 Cr.P.C. The appellant/accused, aggrieved by the said

conviction and sentence awarded by the trial Court, has filed this

Criminal Appeal.

3. The facts leading to the present appeal, relevant for the purpose

of disposal, briefly narrated, are as follows:

The case of the prosecution is that on 07.10.2012 at about

01.30 p.m., when the victim girl – P.W.1 was alone in the house doing

homework, the appellant/accused tress passed into the house, bolted the

door, undressed her and committed sexual assault on her. When the

victim girl – P.W.1 shouted, her neighbour Saraswathy – P.W.3 came

and on seeing her, the appellant/accused fled away from the scene of

occurrence. When the mother of the accused – P.W.2 questioned the

appellant/accused about the same, he threatened her that if she disclosed

the fact to anyone, her life would be in danger. Thereafter, P.W.2 lodged

a complaint against the accused before the Inspector of Police, Athoor

Police Station, which was marked as Ex.P.1.

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Crl.A.(MD)No.77 of 2015

(ii) P.W.9, upon receipt of the complaint given by P.W.2, under

Ex.P.1, has registered a case in Cr.No.208 of 2012 under Sections 376

I.P.C. r.w 511 I.P.C. and 506(ii) I.P.C. The printed F.I.R. is marked as

Ex.P.7. P.W.9 proceeded to the scene of occurrence at about 06.00 a.m.

on 30.10.2012 and in the presence of P.W.4, prepared observation

mahazar, marked as Ex.P.3 and also rough sketch, marked as Ex.P.8.

P.W.9 examined the witnesses and recorded their statements under

Section 161(3) Cr.P.C. At about 14.00 hours on 30.10.2012, the accused

was arrested near Palayakayal bus stop and he voluntarily came forward

to give confession statement and he recorded the same in the presence of

the witnesses viz., Periyasamy and Gopal and thereafter sent the

appellant/accused for remand. P.W.9, made necessary arrangements to

medically examine the victim girl-P.W.1 as well as the appellant/accused

for potential test and his requisition letter for medical examination was

marked as Ex.P.10.

(iii) P.W.5 was the Doctor, who examined the appellant/accused

and he would depose evidence that he had clinically examined the

appellant/accused as per the letter of the Judicial Magistrate,

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Crl.A.(MD)No.77 of 2015

Thiruchendur, which was marked as Ex.P.4 and opined that there is

nothing to suggest that the accused is impotent by issuing medical

certificate, which was marked as Ex.P.5. He would also depose that one

Dr.Evangaline sheeba had physically examined the victim girl – P.W.1

and during examination, she had found that as the hymen was intact,

there was no evidence of penetrative sex, but attempted rape cannot be

ruled out. She has not found any injury on the private parts of the victim

girl – P.W.1 and the medical certificate issued by her was marked as

Ex.P.6 P.W.6- Grade I Police Constable had produced the victim girl for

medical examination on 09.11.2012 and later as per the order of the

Judicial Magistrate, Thiruchendur, the victim girl – P.W.1 was handed

over to her mother.

(iv) Subsequently, P.W.10 – the Inspector of Police had taken the

case for further investigation and on completion of investigation filed

final report by altering the charges 376 r/w 511 I.P.C. and 506(ii) I.P.C.

to 376 r/w 511, 506(ii) I.P.C. and Sections 4 and 8 of the Protection of

Children from Sexual Offence Act 2012 and the alteration report has

been marked as Ex.P.11.

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Crl.A.(MD)No.77 of 2015

(v) The Trial Court, upon filing of the final report, issued

summons to the appellant/accused and on his appearance, furnished to

them the copies of the documents under Section 207 of the Code of

Criminal Procedure, 1973 and having been the case is exclusively tried

by the Sessions Court, the same has been committed to the Sessions

Court, Mahalir Neethimandram (Fast Track Mahila Court), Thoothukudi.

The said Court, in turn, has taken the case on file as S.C.No.196 of 2013.

The appellant/accused was summoned to the charges under Sections 450

and 506(ii) I.P.C. and Sections 4 and 8 of the Protection of Children from

Sexual Offences Act 2012, were filed and he was questioned. The

appellant/ accused pleaded not guilty to the charges framed against him

and prayed for trial of the case.

(vi) The prosecution in order to sustain their case, examined

P.W.1 to P.W.10, marked Exs.P.1 to P.11.

(vii) The appellant/accused was questioned under Section

313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the

incriminating circumstances made out against him in the evidence

tendered by the prosecution and he denied it as false.

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Crl.A.(MD)No.77 of 2015

(viii) On behalf of the appellant/accused, neither oral nor

documentary evidence was let in.

(ix) The trial Court, on consideration of the oral and documentary

evidences and other materials, found the accused guilty and convicted

and sentenced the appellant/accused as stated above vide the impugned

judgment and challenging the legality of the same, the present Criminal

Appeal has been filed.

4. The learned Counsel appearing for the appellant/accused would

submit that the alleged occurrence was happened on 07.10.2012,

however, the complaint was given only on 06.08.2014 and the delay in

filing the complaint was not properly explained. Further, the wife of the

appellant/accused already made complaint against P.W.1’s father and the

said complaint is prior to Ex.P.7 – F.I.R., however, the trial Court has not

considered the matter in prosper perspective manner and convicted the

appellant/accused, which is not sustainable one.

5. The learned Counsel for the appellant/accused would further

submit that though the Protection of Children from Sexual Offences Act,

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Crl.A.(MD)No.77 of 2015

2012 came into force on 14.12.2012, as per the said Act, the statement of

the victim has to be recorded immediately by the police officer, as per

Section 24 of the said Act and further as per Section 27 of the said Act,

the victim girl has to be produced before the Medical Officer for clinical

examination. However, the said mandatory provisions are not followed

in the present case. The materials placed by the prosecution did not

constitute the ingredients to the offence, for which, the appellant/accused

was charged and in the light of the very many infirmities and

inconsistencies in the prosecution case, the trial Court, ought to have

awarded the benefit of doubt and acquitted him and hence, prays for

allowing the Criminal Appeal and thereby setting aside the conviction

and sentence imposed by the trial Court.

6. The learned Government Advocate appearing for the State

would submit that P.W.1 is the victim girl and in her evidence, she

clearly deposed that on 07.10.2012 at about 01.30 p.m., when she was

alone in the house doing homework, the appellant/accused tress passed

into the house bolted the door, undressed her and committed sexual

assault on her and when she shouted, her neighbour Saraswathy – P.W.3

came and on seeing her, the appellant/accused fled away from the scene

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Crl.A.(MD)No.77 of 2015

of occurrence and further, her evidence is corroborated with the evidence

of P.W.3. Further, the victim girl herself deposed that though occurrence

was happened on 07.10.2012, her father informed the said occurrence to

the Village head men and they assured him to take appropriate action

against the appellant/accused and since no action has been taken by the

Village head men, the mother of the victim girl – P.W.2 lodged a

complaint before P.W.7 and the delay is not a conventional delay, which

will not attribute against the defacto complainant. Further the evidence

of P.W.1 is sufficient to implicate the appellant/accused and the

testimony of P.W.1 – victim girl, coupled with the evidence of P.W.3,

has clinched the case of the prosecution that the victim girl, who was

aged about 12 years had been physically, forcibly, sexually assaulted by

the appellant/accused. it is the submission of the learned Government

Advocate appearing for the State that the testimony of the victim girl

corroborated by the testimony of P.W.3 has inspired confidence and also

found trustworthy. The trial Court, rightly, reached the verdict of

convicting the appellant/accused for the offences, under Sections 506(ii)

I.P.C. and under Section 8 of the of the Protection of Children from

Sexual Offences Act, 2012 and imposed the appropriate sentence and

hence, prays for dismissal of this Criminal Appeal.

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Crl.A.(MD)No.77 of 2015

7. This Court paid its anxious consideration on the rival

submissions and also considered the oral and documentary evidences and

other materials and also perused the original records.

8. Considering the facts and circumstances of the case, the

questions arise for determination in this Criminal Appeal are

“(i) Whether the evidences of P.W.1 and P.W.3 are

sufficient to convict the appellant/accused?

(ii) Whether the conviction and sentence awarded by the

trial Court to the appellant/accused is sustainable or

not?”

9. P.W.2 is the victim girl and after physically abused and

assaulted on the part of the appellant/accused, she would depose that on

07.10.2012 at about 01.30 p.m., when she was alone in the house doing

homework, the appellant/accused tress passed into the house bolted the

door, undressed her and committed sexual assault on her and when she

shouted, her neighbour Saraswathy – P.W.3 came and on seeing her, the

appellant/accused fled away from the scene of occurrence and further,

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Crl.A.(MD)No.77 of 2015

her evidence is corroborated with the evidence of P.W.3. Though the

trial Court has initially charged for the offences under Section 450 and

506(ii) I.P.C., and Section 8 of POCSO Act, after completing the trial,

the trial Court convicted the appellant/accused for the offences under

Section 506(ii) I.P.C. and Section 8 of POCSO Act.

10. In case on hand, the first and third parts of the provisions of

Section 7 of POCSO Act attract the appellant/accused, for which the trial

Court convicted the appellant/accused for the offence under Section 8 of

POCSO Act.

11. P.W.5- the Doctor, who examined the appellant/accused would

depose evidence that he had clinically examined the appellant/accused as

per the letter of the Judicial Magistrate, Thiruchendur, which was marked

as Ex.P.4 and opined that there is nothing to suggest that the

appellant/accused is impotent and the said medical report was marked as

Ex.P.5.

12. Though the learned Counsel appearing for the

appellant/accused would submit that the statement of the victim has to be

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Crl.A.(MD)No.77 of 2015

recorded immediately by the police officer, as per Section 24 of the said

Act and further as per Section 27 of the said Act, the victim girl has to be

produced before the Medical Officer for clinical examination, since the

occurrence was happened prior to one month of the Act came into force,

the said procedures contemplated under Sections 24 and 27 of the said

Act will not vitiate the case of the prosecution.

13. The evidence of P.W.1 is sufficient to implicate the

appellant/accused and the testimony of P.W.1 – victim girl, coupled with

the evidence of P.W.3, has clinched the case of the prosecution that the

victim girl, who was aged about 12 years had been physically, forcibly,

sexually assaulted by the appellant/accused. it is the submission of the

learned Government Advocate appearing for the State The testimony of

P.W.3 has inspired confidence and also found trustworthy. The trial

Court, rightly, reached the verdict of convicting the appellant/accused for

the offences, under Sections 506(ii) I.P.C. and under Section 8 of the of

the Protection of Children from Sexual Offences Act, 2012 and imposed

the appropriate sentence and hence, this Court does not find any merit to

interfere with the finding of the trial Court.

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Crl.A.(MD)No.77 of 2015

14. Section 7 of POCSO Act consists of three parts. The first part

relates to whoever, with sexual intent touches the vagina, penis, anus or

breast of the child; the second part consists of makes the child touch the

vagina, penis, anus or breast of such person or any other person and the

third part consists of does any other Act with sexual intent which

involves physical contact without penetration is said to commit sexual

assault.

15. At this juncture, the learned Counsel appearing for the

appellant/accused would submit that the wife of the appellant/accused

passed away and the appellant/accused is now facing age old ailments

and is having one son, who is aged about 17 years and hence, prays for

modification of sentence from the period of five years to three years.

16. Considering the above said facts and circumstances of the case

and also considering the submissions made by the learned Counsel

appearing for the appellant/accused, this Court is of the view that three years

rigorous imprisonment would be sufficient to meet the ends of justice under

Section 506(ii) I.P.C. and Section 8 of the Protection of Child from

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Crl.A.(MD)No.77 of 2015

Sexual Offences Act, 2012 (POCSO Act). With the above modification, this

Criminal Appeal is liable to be dismissed.

17. In fine, this Criminal Appeal is dismissed. The conviction passed

under Section 506(ii) I.P.C. and Section 8 of the Protection of Child from

Sexual Offences Act, 2012 (POCSO Act) by the trial Court made in S.C.No.

196 of 2013, dated 06.01.2015 is confirmed. But the quantum of sentence

imposed under the said section is modified as follows:

“The appellant/accused is sentenced to undergo three

years rigorous imprisonment for the offences under Section

506(ii) I.P.C. and Section 8 of the Protection of Child from

Sexual Offences Act, 2012 (POCSO Act) concurrently. In

other aspects, the Judgment passed by the trial Court is

confirmed.”

18. It is represented that pendency of the Criminal Appeal, the suspension

sentence of imprisonment imposed upon the appellant/accused has been suspended

and in the light of the dismissal of the appeal and thereby confirmed the conviction

and sentence awarded by the trial Court, the bail bonds executed by him, stand

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Crl.A.(MD)No.77 of 2015

cancelled and the immediate necessary steps has to be taken by the respondent to

secure the custody of the accused, so as to enable him to undergo the sentence of

imprisonment.

13.03.2020

Index : Yes / No
Internet : Yes / No
SSL

To

1.The Sessions Court, Mahalir Neethimandram
(Fast Track Mahila Court), Thoothukudi.

2.The Inspector of Police,
Athoor Police Station,
Thoothukudi District.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

4.The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court, Madurai.

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Crl.A.(MD)No.77 of 2015

M.DHANDAPANI, J.

SSL

JUDGMENT MADE IN
CRL.A.(MD)No.77 of 2015

13.03.2020

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