Muthukumar v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10.08.2016

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Criminal Appeal No.225 of 2016 Muthukumar .. Appellant/Accused Vs State rep. By Inspector of Police, All Women Police Station, Pollachi, Cr.No.15 of 2013 .. Respondent/Complainant Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., to set aside the conviction and sentence imposed on the appellant by the judgment dated 16.04.2015 passed in Spl.C.C.No.27 of 2013 by the learned Sessions Judge, Mahila Court, Coimbatore.

For Appellant : Mr.S.N.Arunkumar For Respondent : Mr.R.Prathap Kumar, Additional Public Prosecutor JUDGEMENT (Judgment of the Court was delivered by V.Bharathidasan.J) The appellant is the sole accused in Spl.C.C.No.27 of 2013 on the file of the Sessions Judge, Mahila Court, Coimbatore. He stood charged for the offences under Sections 376 IPC and 3(a) r/w. 4 of Prevention of Children from Sexual

Offences Act 2012. After trial, by judgment dated 16.04.2015, the trial Court convicted the appellant/accused for the offences under Sections 376 IPC r/w 3(a) r/w. 4 of Prevention of Children from Sexual Offences Act 2012 (herein after called POCSO Act) and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default to undergo Simple Imprisonment for six months. Challenging the said conviction and sentence, the appellant is before this Court with this Criminal Appeal.

2. The case of the prosecution, in brief, is as follows:- The Victim, in this case, is the daughter of P.W.1. At the time of occurrence , the victim, was aged about 16 years. She is a permanent resident of Neliyampathi village in the State of Kerala. Due to some quarrel with her mother, the victim girl, P.W.2, left her house along with her friend one Vinitha, P.W.3 and came to Pollachi in search of a job. On 28.01.2013, both P.Ws.2 and 3 came to Pollachi bus-stand and in the busstand, accused met them and both P.Ws.2 and 3 requested the accused to find them a suitable job. The accused also promised them to get a job and took them behind the bus-stand. There, P.W.3 withdraw herself and she went back to her native place, Kerala, The accused took P.W.

2 alone to a thatched shed near Aishwarya Nagar at Pollachi and without her consent he had sexual intercourse with P.W.2. Eventhough, the victim girl protested, she could not prevent the accused. At the time, the accused also promised her that he would marry her. On the next day morning, the accused took the victim girl to Dharapuram and both of them stayed there for two weeks. Thereafter, they came to Ukkadam at Coimbatore, where the accused went for a welding work and the victim girl, P.W.2, also accompanied him and they stayed at Ukkadam for two weeks. There P.W.2, came to know that the accused was already a married person and he is having two children. Then, the accused took her to his house at Pollachi and P.W.2 stayed there along with the children of the accused. On the next day, both the accused and his wife gave Rs.

500/- and asked her to go back to her native place, Kerala. Then, the victim girl, P.W.2, contacted the accused over phone. At that time, the wife of the accused picked up the phone and simply asked her to go back to her native place. But the victim girl once again came back to the house of the accused and both the accused and his wife beaten her indiscriminately and left her at Pollachi police station.

3. In the mean time, P.W.1, the mother of the deceased, lodged a complaint before Padagiri Police Station, at Kerala alleging that her daughter P.W.2 was missing. P.W.6, the SubInspector of Police, Padagiri Police Station, based on the complaint, registered a case in crime No.48 of 2013 under Section 57 of the Kerala State Police Act, on 30.01.2013. Then, he commenced investigation and recorded the statements of

witnesses. Based on the information received from the All Women Police Station, Pollachi, on 01.03.2013, P.W.6, took both the accused and victim girl, P.W.2, to Nammara Police Station, Kerala and based on the statement given by the accused and P.W.2, he altered the case into Section 376 IPC and Section 3 and 4 of POCSO Act. He also recovered the dress of the victim girl,P.W.2 and sent the victim girl for medical examination.

4. Then, P.W.10, Inspector of Police, Nammara Police Station, Kerala, took up the case for further investigation and sent the accused to judicial custody. Thereafter, since the occurrence took place at Pollachi, he forwarded the case diary to the Director General of Police, Tamilnadu, under Ex.P.14, who in turn, forwarded the case diary to the Superintendent of Police, Coimbatore to nominate an Investigating Officer for further investigation of the said case. Then, the case diary was sent to All Women Police Station, Pollachi jurisdiction police station.

5. P.W.11, the Inspector of Police, All Women Police Station, Pollachi, registered a case in Crime No.15 of 2013 and the First Information Report is Ex.P.15. Then, she continued the investigation and proceeded to the scene of occurrence and prepared an Observation Mahazar, Ex.P.3 and a Rough Sketch, Ex.P.16 in the presence of witnesses. Since the statement of witnesses had already been recorded by the Padakari Police , Kerala, she did not record any statement of witnesses separately. After completion of investigation, P.W.11 laid charge sheet against the accused.

6. Based on the above materials, the trial Court framed a lone charge against the accused for the offences as mentioned in paragraph one of the judgment. The accused denied the same. In order to prove the case of the prosecution, as many as 11 witnesses were examined and 15 documents were exhibited.

7. Out of the said witnesses, P.W.1 is mother of the victim girl. According to her, at the time of occurrence, the victim girl was 14 years old and she was studying 8th standard at Nellaimmathi Kolar Chikkal School. On 28.01.2013, the victim girl, left the house under the pretext for treatment to hospital along with P.W.3. But, she has not returned home. Hence, P.W.1 lodged a complaint before the Padagiri Police Station at Kerala.

8. P.W.2 is the victim girl. According to her, at the time of occurrence, she was studying 8th standard at Polachirackal Higher Secondary School, Padagiri. On 28.01.2013 at about 9.00 a.m., she along with her friend, P.W.3 left their native place and came to Pollachi. When they were standing on the Pollachi bus-stand, she met the accused and requested the accused to find a suitable job. The accused also promised them

to get a suitable job and took them behind the bus stand. where P.W.3 withdraw herself and she went back to her native place. Then, the accused took P.W.2 to a thatched shed in Aishwarya Nagar at Pollachi, where, without her consent, he forcefully committed rap on her. Eventhough, P.W.2, protested for the same, she could not prevent him. On the next day, the accused took her to Dharmapuri, where, they stayed for two weeks. Then, they came to Ukkadam at Coimbatore and stayed for two weeks. There, the wife of the accused called him over phone, then only P.W.2 came to know that the accused was already married and he had two children. Then, the accused took the victim girl, P.W.2, to Pollachi, where she stayed. On the next day, both the accused and his wife gave Rs.500/- to the victim girl, P.W.

2 and asked her to go back to her native place, Kerala. When, victim girl, P.W.2, contacted the accused, over phone, the wife of the accused picked up the phone and simply asked her to go back to her native place. But the victim girl once again came back to the house of the accused and both the accused and his wife separately beaten her and left the victim girl at Pollachi police station.

9. P.W.3 is friend of the victim girl, P.W.2. According to her, she along with P.W.2 went to Pollachi and where, they met the accused and accused promised them to get a job. Out of fear, P.W.3 left from Pollachi and gone back to her native place. P.W.4 is a witness to the Observation Mahazar. P.W.5 is a Doctor, Government Hospital, Pallakadu, Kerala State. He examined the victim girl and found no injuries in her private parts, vagina was found teared and admitted two fingers easily and he issued a Report Ex.P.4.

10. P.W.6, Inspector of Police, Padagiri Police Station, registered the complaint given by P.W.1 and arrested the accused and altered the charge into Section 376 IPC and Section 3 and 4 of POCSO Act. P.W.7, Doctor, working in the Government Hospital, Nammara, state of Karala, examined the accused and given a potential certificate, Ex.P.10. P.W.8 is the Head Master, Nelliampathi School, Padagiri, who issued a birth certificate of the victim, Ex.P.11. According to him, the victim girl studied in his school at 9th standard and as per her school record, her date of birth is 11.09.1998. P.W.9 is an advocate and notarized, who translated the First Information Report. P.W.10, Inspector of Police, conducted investigation and transferred the case records to Tamilnadu Police. P.W.11, Inspector of Police, Pollachi, on receipt of the case records from Padagiri police station, continued the investigation and after completing investigation, he laid charge sheet against the accused.

11. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as

false. However, he did not choose to examine any witnesses or mark any documents on his side.

12.Having considered all the above materials, the trial Court convicted the appellant/accused as stated in the first paragraph of this judgment.

Challenging the same, the appellant/accused is before this Court with this Criminal Appeal.

13.We have heard Mr. S.N.Arunkumar, learned counsel for the appellant and Mr. R.Prathap Kumar, Government Advocate (Criminal Side) appearing for the State and we have also perused the records carefully.

14. The learned counsel for the appellant would submit that the prosecution has failed to establish the age of the victim girl; no radiology test was conducted to ascertain the approximate age of the victim girl and the medical evidence also does not support the case of rape. The evidence of P.W.2 also cannot be believed, and he contended that the prosecution also has failed to examine the wife of the appellant through P.W.2 alleged that she stayed in the house of the accused.

15. Per contra, learned Government Advocate (Criminal Side) would submit that from the evidence of the victim girl, P.W.2, prosecution has established the offence against the appellant/accused. The medical evidence also supports the case of the prosecution. It is also established by the prosecution that the accused, by deception, took the victim girl to various places and by force, he had sexual intercourse with her and thereby, the accused had committed the offence. Hence, the prosecution has clearly established the guilt of the accused and prayed for dismissal of the appeal.

16. We have considered the rival submissions.

17. P.W.2, the victim girl, has clearly deposed that she along with P.W.3 left their native place and went to Pollachi and at Pollachi bus-stand, they met the accused and requested him to get a job and the accused also promised to get her a suitable job for them. The accused took the victim girl to a thatched shed, which is situated behind the bus-stand and by deception he had sexual intercourse with her. Then, he took her to various places, viz., Dharapuram and Ukkadam at Coimbatore and they lived together for two weeks respectively in the said places. Then, finally, came to Pollachi and then, the accused and his wife asked the victim girl to go to her native place.

18. From the testimony of P.W.2, it is clear that by deception, the accused had sexual intercourse with P.W.2, who is a minor girl. The medical evidence also supports the case of

P.W.2. It inspires the confidence of the Court and there is no reason to disbelieve the testimony of the victim girl. In the above circumstances, under Section 29 of the POCSO Act, the presumption arises that the accused had committed the offence. Eventhough it is a rebuttable presumption the accused has not rebutted the said presumption by any material on record. Thus, the said unrebutted presumption also would go to conclusively prove the guilt of the accused.

19. So far as the contention of the learned counsel for the appellant that the age of the victim girl is not established by the prosecution, the prosecution has marked the certificate issued by the school authority under Ex.P.11, to show that the date of birth of the victim girl is 11.09.1998 and the prosecution also examined P.W.8 Head Master of the school, who issued the certificate. Thus, in our considered view, the prosecution has established the age of the victim girl. As per the certificate, on the date of occurrence, namely, 28.01.2013, the victim girl was aged about 15 years and she was a child as per Section 2(b) of the POCSO Act. Considering all the above materials, we are of the considered view that the prosecution has proved that it is this accused, who has committed the offence.

20. The next question arises regarding the quantum of punishment. The trial Court convicted the appellant and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for four weeks. The accused is an young man, who is 27 years old. He has no bad antecedent. He is also a married man and having children. He has a chance to reform himself. Hence, considering both mitigating as well as aggregating circumstances, we sentence him to undergo Rigorous Imprisonment for 7 years with a fine of Rs.1000/- in default to undergo Rigorous Imprisonment or four weeks, is sufficient to meet the ends of justice.

21. In the result, the Criminal Appeal is partly allowed and the conviction imposed on the appellant for offence under Section 4 of Prevention of Children from Sexual Offences Act 2012, is confirmed, however, the sentence is modified and the appellant is sentenced to undergo Rigorous Imprisonment for 7 years and pay a fine of Rs.1000/- in default to undergo Rigorous Imprisonment for four weeks. The period of sentence already undergone by appellant/accused shall be set off under Section 428 Cr.P.C.

Sd/- ASST. REGISTRAR /TRUE COPY/ SUB ASST. REGISTRAR

To

1. The Sessions Judge, Mahila Court, Coimbatore.

2. The Inspector of Police, All Women Police Station, Pollachi.

3. The Judicial Magistrate, Coimbatore

4. Do thro the Chief Judicial Magistrate, Coimbatore.

5. The Principal Sessions Judge, Coimbatore.

6. The Superintendent, Central Prison, Coimbatore.

7. The Public Prosecutor, High Court, Madras.

8 The Section officer, Criminal Section, High Court, Madras.

9 The Director General of Police, Mylapore, Chennai 4.

+1 c to Mr.S.N.Arunkumar, Advocate vide SR.NO. 46287. Crl.A.No.225 of 2016 MMP 30.12.2016 CO(GJ)