Crux of this Appeal
2.That the appellant is an accused in Spl.S.C.No.45 of 2020 on the file of the Sessions Court, Magalir Neethi Mandram, (Fast Track Mahila Court), Erode. The victim child is aged about 12 years and the accused is her relatives. On 24.11.2019 at about 5.00 p.m. when the victim was alone in her house, the accused entered into the house and locked the door and hugged and kissed her and pressed the breast and removed the dresses and had pressed his penis into her vagina. Thus, he committed penetrative sexual assault upon the victim child. Thereafter, the victim child informed her mother immediately and her mother lodged a complaint. In pursuance of the complaint, a case has been registered by the respondent police in Crime No.406 of 2019. After investigation, the respondent police filed the final report before the trial Court, which was taken on file in Spl.S.C.No.45 of 2020.
Trial Proceedings
3.In the trial Court, the prosecution examined eleven witnesses as P.W.1 to P.W.11 and marked sixteen documents as Exs.P1 to P16. On the side of the accused, no oral and documentary evidence were marked.
4.The trial Court by considering the entire oral and documentary evidence on record found guilty of the accused under sections 5(m) punishable under Section 6 of the Protection of Children from Sexual offences Act, 2012 and convicted and sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of Rs.5,000/-, in default, to undergo 3 months simple imprisonment and found not guilty for the offence under 506(i) IPC.
Appellant side contentions
5.The learned counsel for the appellant/accused submitted that the trial Court failed to note the material discrepancy in the evidence on record. The finding of the trial Court is erroneous and against the evidence on record. Only on sympathy, convicted the accused. The mother of the victim child (PW1) had an illegal relationship with one another person, which was condemned by the family members and the husband of PW1 gave a complaint against PW1 in this regard. Therefore, he was not examined as a witness in this case. Further, there was a delay of one day in filing the complaint. PW1’s sister Lakshmi PW5, who is working in the police station and in the police quarters and by using her influence, complaint has been falsely registered. The trial Court without considering any evidence found guilty and convicted the accused and thus, pleaded to acquit the accused and to allow the appeal
Respondent side contentions
6.The learned Government Advocate (Crl.side) for the respondent supported the findings of the trial Court and submitted that the trial Court considered the entire evidence on record and the contradictions relied on by the accused are not in material particulars. The minor contradictions cannot be a ground to discredit the testimony of the prosecution witnesses. The victim child PW2 clearly deposed about the incident and there is no merit in the criminal appeal and no ground to interfere with the findings of the trial Court and thus, pleaded to dismiss the criminal appeal.
Findings of this court
9. By gone through the evidence of the victim child. Victim’s evidence is corroborated by her mother (PW1) and (PW5) Lakhmi she immediately heard the incident and accompanied with PWl mother of the victim girl went to the police station. PW3 Dr.Karthik and PW4 Dr.Vijaya gave treatment to the victim child. Further PW4 Dr.Vijaya deposed, that on examination of the victim child, she found her hymen was torn and there is a possibility of sexual intercourse. Further, the victim child narrated the incident. Thus, the victim child evidence is corroborated by the evidence of her mother and Dr.Vijaya (PW4). There is no reason to disbelieve the evidence of a victim child.
10.With regard to the submission of the learned counsel for the appellant that there are some discrepancies and the delay in lodging the complaint. I found the delay is not fatal to the prosecution case as the accused and the victim are relatives. They may thing before giving the complaint against the relative person. Therefore, the delay may happened.
Citied with Supreme court case
10.The Supreme Court in Narayan Chetanram chaudhary and Ors. Vs. State of Maharashtra reported in2000(8)SCC page 457 has considered the minor contradiction in testimony while appreciating the evidence in criminal trial, only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. For better appreciation, the relevant portion of the judgment is reproduced hereunder:
“ 40.Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person.”
Conclusion
11.In this case, the finding recorded by the trial Court is in consonance with the evidence on record. From the evidence on record, it is clear that the appellant/accused committed aggravated penetrative sexual assault upon the minor victim child. Therefore, I found no infirmity in the findings of the trial Court. The prosecution proved the charges against the appellant/accused beyond reasonable doubt For the aforesaid reasons, I do not find any merit in this criminal appeal. Accordingly, the criminal appeal is dismissed and the judgment dated 28.07.2022 passed in Spl.S.C.No.45 of 2020 by the Sessions Court, Magalir Neethi Mandram, Fast Track Mahila Court at Erode is hereby confirmed. Consequently, the connected miscellaneous petition is closed.
Party
Nanjundan … Appellant Vs. The State, Rep.By The Inspector Of Police, Bangalapudur Police Station, Erode District. … Respondent , Crl.A.No.1304 Of 2022 And Crl.M.P.No.19778 Of 2022 , Dated On 1st March ,2023 – Coram:- In The High Court Of Judicature At Madras The Honourable Mr. Justice V.Sivagnanam.
