POCSO: Accused did not rebut the evidence against evidence of victim

Appeal

1. This Criminal Appeal has been filed, against the judgement of conviction and sentence, dated 19.09.2018, made in Spl.CC.No.9 of 2016, by the Sessions Court (Fast Track Mahila), Namakkal, thereby convicting and sentencing the Appellant/Accused, for the offences under Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (herein after Crl.A.No.731 of 2018 referred to as the Act), to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo one year Rigorous Imprisonment.

Appellant side submission

5. The learned counsel for the Appellant would submit that there are discrepancies and infirmities in the case of the Prosecution and that the subsequent insertions made in the complaint create a grave doubt in the case of the Prosecution and that the non examination of the person, who wrote the complaint dictated by PW.1, is fatal to the case of the Prosecution and that the 164 statement given by the victim girl is not her true version and it is not a substantial evidence and that the victim girl is a tutored witness and the judgement of the lower court is excessive and not in accordance with law.

State submission

6. On the other hand, the learned Additional Public Prosecutor for the Respondent would submit that immediately after the occurrence, the victim girl herself had narrated the entire incident to the witnesses of the Prosecution and that there were sufficient eye witnesses to the occurrenceand that the Prosecution had proved its case, beyond all reasonable doubts, by examining all the witnesses and by valid and cogent evidence and hence, the impugned judgement of conviction and sentence does not warrant any interference by this Court.

Hon’ble Supreme Court principles followed

9. At the outset, it is pertinent to state that the Honourable Supreme Court, in a catena of decisions, had held that nobody be convicted on surmises and conjectures. Similarly, nobody be convicted on mere suspicion, however strong it may be. Similarly, it had been held that the evidence can be rejected, if it suffers from any serious infirmities or if there is any inherent inconsistency in the testimony. At the same time, if there is intrinsic merit in the evidence of the witnesses, the same cannot be rejected. Discrepancies and contradictions, if found material and substantial, are in respect of vital aspects of facts, then the entire testimony cannot be discarded. Bearing in mind, the aforesaid principles, the rival submissions made by the parties are to be analysed and a detailed and proper analysis of the entire evidence is essentially required.

Subsequent insertion in the complaint was not cross-examined

18. In so far as the contention of the Appellant/Accused that the complaint itself is a suspicious one, since there was a subsequent insertion in the complaint, is concerned, as rightly pointed out by the Trial Court, since there was no suggestion or cross examination in categoric terms with regard to the above said allegation, it cannot be said that it was a subsequent insertion, as it did not find a place in Ex.P9, First Information Report and hence, Ex.P1 cannot be doubted.

How to appreciate child witness?

19. As per Ex.P8, age certificate issued by PW.12, Head Master of the School, where the victim girls was studying, PW.2 was aged below 12 years at the time of occurrence. According to the defence, PW.2 and PW.4 are the child witnesses and they were tutored or influenced by the Prosecution to foist a false case against the Appellant/Accused. It is not the law that if a witness is a child, his/her evidence shall be rejected, even if it is found reliable. The decision, on the question as to whether a child witness has sufficient intelligence, primarily rests with the Trial Judge, who notices his/her manners, apparent possession or lack of intelligence and the said Judge may resort to any examination. Though a child witness is a dangerous witness, as he/she is pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of his/her evidence, the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of such a child witness.

Victim girl clearly identified the appellant

20. In this case, there is nothing on record to indicate that the minor victim girl examined as PW.2 and PW.4, had, in any manner, been tutored or influenced by the Prosecution. Further, in a case relating to sexual assault and rape, the evidence of the victim girl is very much vital and if found reliable can form the basis of conviction of the accused, without seeking for further corroboration. In this case, both the victim girl, examined as PW.2 and PW.4, who are the child witnesses, had spoken about the occurrence and clearly identified the Appellant/Accused himself and not on the basis of what the Prosecution told them to state. The evidence of PW.2 and PW.4 is corroborated by the testimonies of the other eye witnesses.

Prosecution proved the offence

23. It is seen from the entire evidence let in by the Prosecution that the victim girl was aged below 12 years at the time of occurrence and that she was subjected to aggravated penetrative sexual assault by the Appellant/Accused. Thus, the offences under Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 levelled against the Appellant/Accused were proved by the Prosecution, beyond all reasonable doubts, by valid and cogent evidence, which was rightly accepted by the court below and accordingly, punishment was awarded as stated above, by the impugned judgement of conviction and sentence, which in the opinion of this Court, is proper.

Accused did not rebut the evidence

24. Further, this Court is unable to find any rebuttal evidence let in by the Appellant/ accused to discard the conviction and sentence imposed on them. On the other hand, the evidence let in by the Prosecution as discussed above is sufficient, cogent and convincing, to sustain the conviction and sentence imposed on the Appellant/ accused by the court below and there is no perversity or infirmity or illegality in the impugned judgement of the court below

26. Since no compensation has been awarded by the Trial Court, this Court awards a compensation of Rs.5,00,000/- (Rupees Five Lakhs Only), under GO.Ms.No.33, Social Welfare and Nutritious Meal Department Programme (SW.5(2)) Department, dated 03.10.2020, to be deposited in the name of PW.2 Victim Girl, by the State Government, in any one of the Nationalised Banks, with her Mother, PW.1, as her Guardian, till she attains the age of majority. The District Child Protection Officer, Namakkal, the Secretary, Legal Services Authority, Namakkal, the Trial Court and the Respondent Police shall ensure that the above said compensation is disbursed to PW.2 Victim Girl, as directed above, within a period of three months from the date of receipt of a copy of this judgement. The Director, Social Welfare Department, Chennai, shall file a compliance report in the Registry of this Court, within a period of three months from the date of receipt of a copy of this judgement and the Registry shall place the compliance report as part ofthe appeal records.

27.In fine, this Criminal Appeal is dismissed, on the aforesaid terms.

Party

Baskar Petitioner Vs State by the Inspector of Police Rasipuram Police Station, Namakkal Respondent – Citation :Crl.A.No.731 of 2018 Dated: In The High Court Of Judicature At Madras Reserved On: 09.02.2022 Pronounced On : 01.03.2022 – Coram: The Honourable Mr.JusticeP.N.Prakash and The Honourable Mr.JusticeA.A.Nakkiran (Through Physical Hearing/Video Conferencing)

https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/638806