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Cannot Expect Any Eye Witness Or Independent Witness As Culprits Assault Children When Alone: Madras HC

 

Without mincing any words, the Madras High Court has as recently as on October 22, 2021 in a learned, laudable, landmark and latest judgment titled K Ruban Vs State Represented by All Woman Police Station, Pollachi, Coimbatore District (Crime No. 08 of 2019) in Crl.A.No.253 of 2021 and Crl.M.P.No.5839 of 2021 reiterated remarkably that an accused can be convicted under the Protection of Children from Sexual Offences (POCSO) Act solely based on the testimony of the victim child if such evidence is cogent, consistent, trust worthy and inspires the confidence of the Court. A single Judge Bench of Justice P Velmurugan observed that, “In a cases of this nature, we cannot expect any eye witness or independent witness. The culprit will take a chance of the loneliness of the child and will commit the offence by trying to exploit the innocence of age of the children. It is settled proposition of law that when the evidence of prosecutrix is cogent, consistent and trust worthy and inspires confidence of the Court, conviction can be recorded solely based on the evidence of the victim, unless there is a reason to discord or disbelieve the evidence of the sole witness.” The Court made the observation while dismissing a criminal appeal challenging a man’s conviction under Sections 10 (punishment for aggravated sexual assault of a child) and 12 (punishment for sexual harassment) of the POCSO Act. In the instant case, the trial court had ordered Rs 2 lakh compensation for the sexual assault of the eleven-year old victim child.

Before stating anything else, it is stated right at the scratch that, “The Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure seeking to call for the records relating to the judgment of conviction dated 23.04.2021 passed in Spl.C.C.No.96 of 2019 on the file of the learned Sessions Judge, Special Court for Exclusive trial of Cases under the POCSO Act, Coimbatore, (transferred Spl.C.C.No.104 of 2019, learned Mahila Court, Coimbatore) and set aside the same by allowing this criminal appeal.”

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice P Velmurugan of Madras High Court sets the ball rolling in para 1 wherein it is put forth that, “This criminal appeal has been filed against the judgment of conviction dated 23.04.2021 passed in Spl.C.C.No.96 of 2019 on the file of the learned Sessions Judge, Special Court for Exclusive Trial of Cases Under POCSO Act, Coimbatore.”

To put things in perspective, the Bench then envisages in para 2 that, “The respondent police registered a case in Cr.No.08 of 2019 against the appellant for the offence under Sections 9(m), 9(n) r/w 10, 11(i) r/w 12 of Protection of Children from Sexual Offences Act, 2012 (in short “the POCSO Act). After completing investigation, the respondent police laid a charge sheet before the Magalir Neethimandram (Mahila Court), Coimbatore, which was taken on file in Spl.C.C.No.104 of 2049 and subsequently the case was transferred to the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Coimbatore. The learned Sessions Judge taken the case on file in Spl.C.C.No.96 of 2019 and after hearing both the accused and the prosecution and after perusing the records, since there is prima facie case, framed charges against the appellant/accused for the offence under Section 9(m), 9(n) punishable under Section 10 and 11(i) punishable under Section 12 of the POCSO Act.”

To be sure, the Bench then states in para 3 that, “Before the trial Court, in order to substantiate the charges, prosecution has examined as many as 13 witnesses as P.Ws.1 to 15 and Exs.P1 to P11 were marked and no material object was exhibited. After completing examination of prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses were put before the accused by questioning under Section 313 Cr.P.C., he denied the same as false and pleaded not guilty. On the side of the defence, D.Ws.1 to 5 were examined and Exs.D1 to D7 were marked besides one Court document as Ex.C1.”

As it turned out, the Bench then discloses in para 4 that, “The learned Sessions Judge, on completion of trial and hearing arguments advanced on either side, by judgment dated 23.04.2021 convicted the appellant/accused and sentenced him to undergo rigorous imprisonment for a period of seven years with fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for a period of one year for the offence under Section 9(m), 9(n) punishable under Section 10 of the POCSO Act and sentenced him to undergo rigorous imprisonment for a period of three years with fine of Rs.5,000/-, in default to undergo rigorous imprisonment for a period of one year for the offence under Section 11(i) punishable under Section 12 of POCSO Act and further ordered compensation of Rs. 2,00,000/- for the victim girl. Aggrieved against the said judgment of conviction and sentence, the accused has preferred this criminal appeal.”

Be it noted, the Bench then brings out in para 6.1 that, “Even though, the appellant took a plea of alibi, it has not been substantiated through any documentary proof and the witnesses examined by the appellant on his side are all very close to him and in order to safeguard the appellant, they all deposed before the Court supporting the appellant in a parrot version. The victim girl, who was aged about 11 years at the time of occurrence, was examined as P.W.2 and she has clearly narrated the incident and the sexual assault committed by the appellant on her, which offence comes under Section 9(m), 9(n) punishable under Section 10 of the POCSO Act and also Section 11(i) punishable under Section 12 of the POCSO Act.”

Furthermore, the Bench then adds in para 6.2 that, “Further, it is not the case of prosecution that the appellant had committed aggravated penetrative sexual assault and the victim had sustained injuries and hence it is not necessary for the prosecution to prove its case with the support of the medical evidence. Prosecution has proved its case beyond all reasonable doubt by examining the witnesses P.W.1 to P.W.15 and once prosecution established its initial burden, presumption under Section 29 and 30 of the POCSO Act would come into play and it is for the appellant/accused to rebut the same. In this case the appellant/accused has failed to rebut the same by producing a valid documentary proof. Hence trial Court has rightly framed the charges and convicted the appellant, which does not call for any interference of this Court.”

As we see, the Bench then while narrating the prosecution version remarks in para 8 that, “Case of the prosecution is that the victim girl P.W.2, who was aged about 11 years and was studying 5th standard and she was residing with her parents P.Ws.1 & 3. P.W.2. The appellant/accused was residing near the victim girl’s house and was running a Travels and also owned a vehicle namely Tavera Car and he used to drive the same for rent. The victim girl used to call him as “Appa”. On 23.05.2019 at 11.00 a.m. when the victim girl was alone in her house, the appellant/accused with an devil intend to commit sexual offence on her, called the victim child to come to a vacant place near her house and since the victim shouted, the appellant ran away from the place. Thereafter on 25.05.2019, when the victim girl was alone in her house, the appellant entered into the house and called her by pulling her hand forcibly and by showing his private parts and since the victim child raised alarm, the appellant ran away from the place. Therefore the present case was registered against the appellant for the offence under the POCSO Act.”

Of course, the Bench then hastens to add in para 9 that, “This Court, being an Appellate Court, is a final Court of fact finding, which has to necessarily re-appreciate the entire evidence and give an independent finding. Accordingly, this Court has re-appreciated the entire oral and documentary evidence produced before this Court.”

What’s more, the Bench then states in para 10 that, “The victim girl, who was examined as P.W.2 has clearly spoken about the offence committed by the appellant, which corroborated with the evidence of P.Ws.1 and 3, who are mother and father of the victim child. The victim girl, while producing before the Magistrate for recording statement under Section 164 of Cr.P.C. has clearly narrated the entire incident as stated in the complaint and the statement is marked as Ex.P.3. Ex.P2 is the Birth Certificate of the victim child and as per Ex.P2 age of the victim child at the time of occurrence is 11 years and hence the victim is a child comes under the definition of 2(1)(d) of the POCSO Act. The victim child, while recording the statement under Section 164 of Cr.P.C. even though has not stated any dates, has stated the chain of occurrence clearly that one day when she was alone in the house, the appellant came and called her and due to fear she refused to go and next day also he came in nude and called her and thereafter again he came in nude and pulled her hand. Further, when the victim girl was produced before the Doctor/P.W.10, she has clearly stated that one known person sexually assaulted her and the Doctor also clearly mentioned the same in the Accident Register/Ex.P10 and while examining before the Court also the victim girl reiterated the same. Therefore, in all the stages the victim girl has clearly narrated the entire events and the offence committed by the appellant.”

Quite forthrightly, the Bench then concedes in  para 11 that, “It is seen that prosecution has proved the fact that the appellant is a neighbour of the victim child and also very close to the family of the victim child. P.Ws.1 to 3 have categorically deposed before the Court below that the accused has committed the sexual offence as stated by the victim child and when P.Ws.1 and 3 questioned the same, the appellant/accused behaved in a rude manner and hence complaint has been lodged against the appellant.”

It is worth noting that the Bench then holds in para 14 that, “In the present case on hand, there is no eye witness except the victim child, who was 11 years at the time of occurrence and she has clearly spoken about the incident and the manner in which the offence committed by the appellant, which is cogent, consistent and trustworthy and this Court does not finds any reason to disbelieve or discord the evidence of the victim child. In the absence of any compelled circumstances to disbelieve the evidence of the victim, this Court finds that the evidence of the victim child inspires the confidence of the Court. On a careful reading of the evidence of the victim child, this Court finds no reason to disbelieve the same. On reading of the entire materials, this Court is of the view that the prosecution has proved its case beyond all reasonable doubt. Further there is no injury on the body of the victim child and no penetrative sexual assault and therefore the contention that the medical evidence does not support the case of the prosecution is not acceptable.”

On the whole, the Bench then observes in para 15 that, “On a combined reading of evidence of P.Ws.1 to 10 and Exs.P1 to P3 and P10, this Court is of the considered view that prosecution has proved its case beyond all reasonable doubt and the accused has failed to rebut the presumption under Section 29 and 30 of the POCSO Act. Trial Court has rightly appreciated the evidence of prosecution and come to the conclusion that the appellant/accused committed offence under Section 9(m), 9(n) punishable under Section 10 and Section 11(i) punishable under Section 12 of the POCSO Act.”

Finally, the Bench then concludes by holding in para 16 that, “In fine, this Court come to the conclusion that there is no merit in the appeal and there is no sound reason to interfere with the judgment of conviction and sentence. Accordingly, this criminal appeal is dismissed. The trial Court is directed to secure the appellant/accused to serve remaining period of imprisonment, if any. Consequently connected miscellaneous petition is closed.”

In sum, there is no reason to differ with what the Madras High Court has held so cogently, convincingly and courageously. The Madras High Court in this case has very rightly while upholding the conviction of the POCSO accused took the right stand that one cannot expect any eyewitness or independent witness as culprits assault children when alone! No doubt, all the courts must in similar such cases always remember what the Madras High Court has held here! No denying it!

Sanjeev Sirohi

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