Dharmar v. The Inspector Of Police
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Friday, the Seventeenth day of March Two Thousand and Twenty Three PRESENT The Hon`ble Mr.Justice K.MURALI SHANKAR in CRL A(MD)No. 140 of 2022 DHARMAR ... PETITIONER/APPELLANT/SOLE ACCUSED Vs THE STATE REP BY, THE INSPECTOR OF POLICE CHINNAMANNOOR POLICE STATION, THENI DISTRICT.
CRIME NO.134/2017. ... RESPONDENT/RESPONDENT/COMPLAINANT Petition filed praying that in the circumstances stated therein and in the petition filed therewith the High Court may be pleased to suspend the sentence and enlarge the petitioner on bail imposed in the judgement dt.28/7/2021 made in Spl.SC.No.24/2017 on the file of the Learned Sessions Judge Fast Track Mahila Court,Theni pending disposal of the above appeal.
PARYER CRL A(MD)No.140 of 2022:
To call for the records relating to the judgment dated 28.07.2021 made in Special S.C.NO. 24 of 2017 on the file of the Learned Fast Track Mahila Judge, Theni and set aside the conviction and sentence imposed against the appellant/accused and allow above appeal by acquitting the accused.
Order : This petition coming up for orders on this day, upon perusing the petition filed in support thereof and upon hearing the arguments of M/S.JERIN MATHEW M, Advocate for the petitioner and of MR.R.MEENAKSHI SUNDARAM, Additional Public Prosecutor on behalf of the Respondent, the court made the following order:- This Criminal Miscellaneous Petition has been filed to suspend the sentence passed in Spl.S.C.No.24 of 2017, dated 28.07.2021, on the file of the learned Sessions Judge, Fast Track Mahila Court, Theni, till the disposal of this Criminal Appeal.
2. The case of the prosecution is that on 02.03.2017 at about 05.15 p.m., when the victim child and her elder sister were playing 1/4
in front of the house of the petitioner/sole accused, the petitioner had shouted at the elder sister of the victim child and sent her away, that thereafter, he had illegally restrained the victim child aged 3 years in his house and had abused the victim child by inserting his finger and licking her private parts and on the basis of the complaint given by the victim child's father, FIR came to be registered in Crime No.134 of 2017 for the offence under Section 6 of Protection of Child from Sexual Offences Act, 2012 on the file of Chinnamanur Police Station, Theni District and that subsequently, the case was altered from Section 6 of Protection of Child from Sexual Offences Act, 2012 to Section 342 IPC and Section 6 of Protection of Child from Sexual Offences Act, 2012.
3. The respondent police, after completing the investigation, has filed the final report and the case was taken on file in Spl.S.C.No.24 of 2017 and the same was pending on the file of the learned Sessions Judge, Fast Track Mahila Court, Theni.
4. During trial, the prosecution has examined 20 witnesses as P.W.1 to P.W.20 and exhibited 8 documents as Ex.P.1 to Ex.P.8. The accused has adduced neither oral nor documentary evidence.
5. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed the impugned judgment dated 28.07.2021 convicting the accused for the offences under Section 342 IPC and Section 6 of Protection of Child from Sexual Offences Act, 2012 and sentenced him to undergo 1 year Rigorous Imprisonment for the offence under Section 342 IPC and to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo 1 year Simple Imprisonment for the offence under Section 6 of Protection of Child from Sexual Offences Act, 2012 and that the above sentences were ordered to be run concurrently. Aggrieved by the said judgment of conviction and sentence, the accused has come forward with the present Criminal Appeal along with the above miscellaneous petition for suspension of sentence.
6. The learned counsel appearing for the petitioner would contend that the prosecution has allegedly proved the commission of offence through the witnesses P.W.2, P.W.3, P.W.4 and P.W.6, that P.W.2 is none other than the mother of the victim child, that P.W.3elder daughter of P.W.2 supported her version and that P.W.2 has deposed that her daughter came to house by crying and when enquired, she had stated that the petitioner had restrained her in his house by closing the door and on enquiry, it was stated by the victim girl that she was abused by the petitioner.
7. The learned counsel appearing for the petitioner would further contend that the trial Court had mainly recorded the conviction on the basis of the evidence of P.W.2 to P.W.4 on the score that the victim child had narrated the commission of crime to 2/4
the said witnesses, but there is no clear evidence regarding to whom the victim child spoke earlier, that none of the witnesses were eye witnesses to the alleged crime and they had only been hearsay witnesses and that the victim child was a three year old girl child and she may not have the capacity to say anything about what had happened to her.
8. The learned counsel appearing for the petitioner would further contend that P.W.4 is a promiscuous woman and her character was also not equally good and that the petitioner had enmity with P.W.4 and P.W.4 had informed the victim child as if the petitioner had sexually assaulted. He would further contend that there are several infirmities in the prosecution case and further there are contradictions in material particulars between the evidence of the prosecution witnesses.
9. The learned Additional Public Prosecutor appearing for the respondent would submit that the victim child's elder sister P.W.3 and P.W.4 and P.W.5 had narrated what had happened really at the occurrence and that the medical evidence corroborates the version of the prosecution. He would further submit that there are enough materials available on record against the petitioner and hence, he strongly opposed to grant suspension of sentence.
10. Considering the nature and gravity of the offences allegedly proved against the petitioner and also the fact that the judgment was pronounced on 28.07.2021 and also taking note of the age of the victim child, this Court is not inclined to suspend the sentence imposed on the petitioner.
11. In the result, this Criminal Miscellaneous Petition is dismissed.
sd/- 17/03/2023 / TRUE COPY / /03/2023 Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023.
CSM TO 1 THE SESSIONS JUDGE, FAST TRACK MAHILA COURT, THENI.
2 THE INSPECTOR OF POLICE CHINNAMANNOOR POLICE STATION, THENI DISTRICT.
3 THE SUPERINTENDENT CENTRAL PRISON, MADURAI.
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4 THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
ORDER
IN in CRL A(MD)No. 140 of 2022 Date :17/03/2023 PKP/BUC/SAR-3/30.03.2023/ 4P/5C 4/4