A. THANSEER Vs. STATE

JUDGEMENT

(1.) The appellant is the first accused (A1) and his wife, namely Raseetha Banu is the second accused (A2) in Spl.C.C. No. 34/2015 on the file of the Court of Sessions, Mahila Court (Fast Track Court), Erode. The appellant/A1 was charged for the commission of offences under section 6 of the Protection of Children from Sexual Offences Act, 2012 [in short "POCSO Act"] and Section 506(ii) I.P.C and A2, wife of A1, was charged for the commission of offence under Section 323 I.P.C. The Trial Court, vide impugned judgment dated 15.03.2016, has convicted the appellant/A1 for the commission of the above said offences and sentenced him to undergo life imprisonment with a fine of Rs. 5,000/-, in default to undergo 2 years simple imprisonment for the offence under Section 6 of the POCSO Act and sentenced to undergo 7 years rigorous imprisonment with a fine of Rs. 5,000/-, in default to undergo 2 years simple imprisonment for the offence under Section 506(ii) I.P.C. The appellant/A1 was also granted set off under Section 428 Cr.PC. A2, wife of the appellant/A1, was acquitted for the commission of offence under Section 323 I.P.C. and the State did not prefer any appeal challenging the acquittal of A2. The appellant/A1, aggrieved by the conviction and sentence passed by the Trial Court, vide impugned judgment, has filed this appeal.

(2.) Facts leading to the filing of this appeal relevant and necessary for disposal of this appeal is as follows: 2. 1. Victim Girl-PW2 is the daughter of PW1 and they are the residents of one of the six houses bearing Door No. 43/33, Slater House Street, Gobichettipalayam Town, belonging to one Arumugam. PW2/victim girl was studying X standard in Palaniammal High School, Gobichettipalayam and she was born on 01.10.2000 and was aged about 15 years. The appellant/A1 and his wife/A2 are also one of the residents of six houses and their house lies adjacent to the house of PW1-mother of PW2/victim girl. Two bathrooms are located for the use of residents of the six houses. The bathroom located on the north west of PW1's house was used by her family. 2. 2. On 07.07.2015 at about 7.00 a.m. and on 06.08.2015 at about 7.30 a.m., PW2/victim girl went to the bathroom for taking bath and on those two occasions, the appellant/A1 was hiding inside the said bathroom with a view to commit the act of rape and put his hand on her month and forcibly committed sexual assault on her. The appellant/A1 also threatened PW2/victim girl by stating that if she disclosed the said fact, she will be murdered. A2, wife of A1, at about 8.00 p.m. on 7.08.2015 supported her husband/A1 and slapped PW2/victim girl on her left cheek and caused pain. 2. 3. PW1, mother of PW2/victim girl, out of wedlock begot 3 sons and 1 daughter (PW2) and the sexual assault on two occasions was informed by PW2/victim girl to PW3-neighbour with a request to disclose the same to her mother-PW1. PW3, on enquiry with PW2/victim girl, came to know about the illegal act of the appellant/A1 and informed the same to PW1 and also aware of the slap on the left cheek by A2. PW1 also made enquiries with her daughter and became aware of the same and the said fact was also disclosed by PW3 and therefore, PW1 lodged a complaint under Ex.P1 to PW13-Sub-Inspector of Police attached to All Women Police Station, Gobichettipalayam and based on the complaint/Ex.P1, PW13 registered a case in Crime No. 7/2015 under Section 6 of POCSO Act and Sections 323 and 506(ii) I.P.C. at about 5.00 a.m. on 12.08.2015 against both the accused. The printed F.I.R. was marked as Ex.P9. PW13 forwarded the original complaint as well as the F.I.R. to the jurisdictional Magistrate Court. 2. 4. PW16 was in-charge of Gobichettipalayam All Women Police Station and on receipt of F.I.R. on 12.08.2015, registered by PW13, took up the investigation and recorded the statements of PW2/victim girl under Section 161(3) Cr.PC and thereafter sent PW2 along with PW10/Women Constable to Government Hospital, Gobichettipalayam for medical examination. On the same day at about 8.15 a.m., PW16 went to the scene of occurrence and in the presence of PW4 and one Murugesan, prepared Observation Mahazar and Rough Sketch, marked as Exs.P3 and P14 respectively and also examined PW1 and PW3 and recorded their statements. 2. 5. At about 11.00 a.m. on 12.08.2015, PW16 effected the arrest of A1 as identified by PW4 and A1 voluntarily came forward to give confession statement, which was recorded in the presence of PW5 and another. PW16 also examined PW4 and PW5 and recorded their statements. At about 2.30 p.m. on the same day, she sent A1/appellant for medical examination through one Prabhudoss/Special Sub-Inspector and PW9/Head Constable to Gobichettipalayam Government Hospital. 2. 6. PW11 was the Senior Civil Surgeon and the Casualty Medical Officer attached to Gobichettipalayam Government Hospital and on 12.08.2015, A1 was brought with a requisition to do medical examination and he examined A1 and gave his opinion under Ex.P8 stating that he cannot say that A1/appellant is impotent and cannot say that he is unfit for sexual intercourse and no external injuries were marked. The Accident Register was marked as Ex.P7. 2. 7. PW14 was the Senior Civil Surgeon attached to Gopichettipalayam Government Hospital and while he was on duty on 12.08.2015 at about 1.30 p.m. PW2/victim girl was produced for medical examination and when she enquired her, she told that on 06.08.2017 at 7.30 a.m. A1/appellant committed sexual assault on her and after 44 days she got her menstruated. PW14 examined PW2/victim girl and found that hymen was found in torn condition and there was no external injuries and was pregnant and till the date of examination, as she was having mensus, vaginal smear was taken and she was sent to Radiologist to ascertain her age. PW14 gave her final opinion, marked as Ex.P12, opining that "Hymen intact. No external injuries. She may be used in the act of coitus. No semen was detected in pubic hair". The Accident Register was marked as Ex.P11. As per Ex.P4 given by Dr. K. Kalyani, Radiologist, the victim girl has completed 15 years of age and completed 17 years of age radiologically on the date of examination. 2. 8. PW16 continued with the investigation and made a request for biological examination in respect of A1 and altered the Sections to Section 6 of POCSO Act and Section 506(ii) I.P.C and the Alteration Report was marked as Ex.P18 and on transfer, handed over the investigation to PW17- Inspector of Police, All Women Police Station, Gobichettipalayam. 2. 9. PW17, Inspector of Police, All Women Police Station, Gobichettipalayam, continued with the investigation on 25.08.2015 and went to the scene of occurrence and recorded the statements of PWs.1 to 3 and during the course of investigation, PW2/victim girl stated that she was slapped by A2, but he did state so to the earlier Investigation Officer. PW1 produced the Birth Register of her daughter and in that process, she examined Ramakrishnan, Health Inspector, Corporation of Madurai and also recorded the statement of Tmt.Vasanthamani, Headmistress of Palaniammal School in which PW2/victim girl studied. PW17 recorded the statement of PW14, Doctor who conducted medical examination on PW2 and also examined Dr.K.Kalyani, Radiologist, who examined PW2. 2. 10. PW17 also examined PW11, Doctor who conducted medical examination on A1/appellant and recorded his statement. PW17 also examined the police officials, namely Karuppasmy/PW8, Arivazhagan/PW9, Tamilzhselvi/PW20, Jayapal/PW12, Prabhudoss-Special Sub-Inspector of Police and Tmt.Nagamani/PW13, Sub-Inspector of Police who registered the F.I.R. and recorded their statements and after receipt of Biological Report and after completion the investigation, filed a Final Report charging the accused for the commission of offences under Section 6 of POCSO Act and Sections 323 and 506(ii) I.P.C. on the file of the Court of Sessions, Mahila (Fast Track Court), Erode, which was taken on file in Spl.C.C. No. 34/2015. 2. 11. The Trial Court issued summons to both the accused and on their appearance, furnished copies of the documents under Section 207 Cr.PC and also framed charges against A1 for the commission of offence under Section 6 of POCSO Act and Section 506(ii) I.P.C. and against A2 for the commission of offence under Section 323 I.P.C. and questioned them and they pleaded guilty to the charges framed against them. 2. 12. The prosecution, in order to sustain their case, examined PWs.1 to 17, marked Exs.P1 to P18 and also marked M.O.1-X Ray Series. All the accused were questioned under Section 313(1)(b) Cr.PC with regard to incriminating circumstances made out against them in the evidence rendered by the prosecution and they denied it as false. On behalf of the accused, no witness was examined and no document was marked. 2. 13. The Trial Court, on consideration and appreciation of oral and documentary evidence and other materials, convicted and sentenced A1/appellant as stated above and acquitted A2, against which no appeal has been preferred by the State. The appellant/A1, aggrieved by the conviction and sentence passed by the Trial Court, vide impugned judgment, has filed this appeal.

(3.) Mr. R. Marudhachalamurthy, learned counsel appearing fort the appellant/A1 made the following submissions: