J. Nisha Banu & N. Anand Venkatesh
1. This criminal appeal has been preferred against the judgment and order dated 23.03.2017 in S.S.C.No.1 of 2015 on the file of the Sessions Judge, Mahalir Neethimandram, FTC, Theni,whereby, the appellant was convicted for an offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) (hereinafter referred to as 'the Act') and was sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year.
2. The case of the prosecution is that on 29.04.2013 at about 6.30 p.m., the victim girl had gone to fetch the goats, which were grazing in the adjacent field and at that point of time, the accused person is said to have forcibly taken the victim girl to a thatched shed and committed sexual assault. The victim girl went missing and therefore, her parents [P.W.1 and P.W.4] went in search of her. The victim girl was ultimately brought by P.W.3 and one Vadamalur, who was not examined and P.W.1 enquired the victim girl. Initially, the victim girl did not reveal about the incident and her mother [P.W.-1] on examining the victim girl, who had sustained some injuries, found that she has been sexually assaulted. Immediately, a complaint [Ex.P.-1] was lodged by P.W.1 and an FIR came to be registered by P.W.18 and it was marked as Ex.P13.
3. The investigation was taken over by P.W.19 and it was completed by P.W.20 and the final report was laid before the Court below. The Court below, after serving the copies under Section 207 of the Code of Criminal Procedure, framed charge against the appellant for an offence under Section 4 of the POCSO Act.
4. The prosecution examined P.W.1 to P.W.20 and marked Ex.P-1 to Ex.P14 and identified and marked M.O.1 to M.O.4. The incriminating materials collected during the course of evidence was put to the appellant, while he was questioning under Section 313(i)(b) of Cr.P.C. and he denied the same as false. The Court below, on considering the facts and circumstances of the case and on appreciation of evidence, came to a conclusion that the prosecution has established the case beyond reasonable doubts and accordingly convicted and sentenced the appellant in the manner stated supra. Aggrieved by the same, the present criminal appeal has been preferred before this Court.
5. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State.
6. The key witness in this case is P.W.2, who is the victim girl. She was aged about 8 years at the time of incident. She has deposed before the Court below in a cogent manner with regard to the sexual assault committed by the appellant. It is clear from her evidence that the appellant has not only sexually assaulted in the thatched shed near the field but also had taken the victim girl to a burial ground and repeated the sexual assault. The victim girl was subjected to cross-examination and it is seen that her evidence has not been discredited and the same inspires the confidence of this Court.
7. It is now a well settled principle of law that in cases involving sexual molestation, it is the duty of the Court to deal with it with utmost sensitivity and minor contradictions or insignificant discrepancies should be disregarded once the evidence of the victim girl inspires the confidence of the Court. Useful reference can be made to the judgment of the Apex Court in State of Punjab v. Gurmit Singh reported in 1996 SCC Crl. 316.
8. P.W.1, who is the mother of the victim girl speaks about the search that was made by her and her husband [P.W.-4] for the victim girl, since she went missing and the complaint that was lodged by her before the respondent police on 30.04.2013 at about 10.30 a.m. The evidence of P.W.4 is also to the same effect.
9. The Doctor [P.W.-8] was the one, who examined the victim girl on 02.05.2013 at about 3.00 p.m. Ex.P4 and Ex.P5 were marked through her and on examination of the victim girl, she has identified the injuries on the right thigh, left thigh and also on the vagina. She has specifically opined that these injuries can be sustained only if the victim had suffered a sexual assault.
10. P.W.11 is the Doctor, who examined the victim girl in the Government Medical College Hospital, Theni and had issued the discharge summary marked as Ex.P10. The following injuries were recorded in the discharge summary and are extracted hereunder:
“1. Laceration of 2 x 0.5 x 0.1 cm at the junction of labia majora and minora.
2. Multiple abrasion in back largest 5 x 2 cm
3. Nail marks on chest L infraclavicular region
4. Lower lip contusion.”
The above evidence of P.W.8 and P.W.11 corroborates the evidence of the victim girl.
11. A careful reading of the evidence of P.W.19 and P.W.20 shows that the investigation had been carried out in a proper manner and the final report was filed within time. The evidence tendered by the other witnesses also do not in any way discredit the case of the prosecution.
12. In the considered view of this Court, the prosecution has established the offence committed by the appellant beyond reasonable doubts. Unfortunately, no steps were taken by the prosecution to establish the exact age of the victim girl. If really the victim girl was 8 years at the time of incident, the charge ought to have been framed for an offence under Section 5(m) of the POCSO Act and the same should have been brought under aggravated penetrative sexual assault punishable under Section 6 of the Act. Even the Court below did not properly go into this issue and had confined itself to the offence under Section 3, which is punishable under Section 4 of the Act. In any case, the punishment for the offence under Section 4 of the Act can extend to imprisonment for life. Hence, the failure to frame a charge under Section 5(m) of the Act punishable under Section 6 of the Act does not seriously prejudice the interest of the victim girl.
13. The Court below has properly appreciated the evidence available on record and has come to a correct conclusion while convicting the appellant for an offence under Section 3 of the Act. That apart, the presumption under Section 29 of the Evidence Act has not been rebutted by the accused person and apart from the prosecution establishing the case against the appellant, the appellant has not dislodged the reverse burden that has been cast upon him under the Act.
14. The next issue to be gone into is with regard to the punishment that was imposed by the Court below. It is brought to the notice of this Court that the appellant has already undergone imprisonment for nearly 9 years and 6 months. The appellant is having a female child aged about 13 years. That apart, the victim girl is also said to have married and she also has a kid. Considering the age of the appellant at the time incident, the poor financial status of the appellant, the period of incarceration already undergone by him and considering his family situation, this Court is inclined
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to modify the sentence imposed on the appellant and reduce the same from life imprisonment to 12 years rigorous imprisonment without remission. 15. In view of the above discussion, the conviction against the appellant is sustained and the sentence is modified in the following manner: a. The conviction and sentence imposed under Section 4 of the POCSO is hereby sustained and the appellant is sentenced to undergo 12 years rigorous imprisonment without remission; b. The sentence of fine imposed by the trial Court stands confirmed; and c. The period of sentence already undergone by the accused/appellant is ordered to be set off under Section 428 Cr.P.C. 16. In the result, the criminal appeal is allowed in part to the extent indicated above.