Date of Judgement:
22 October 2021
Coram:
Justice P Velmurugan
Parties:
Appellant – K. Ruban
Respondent – The State of Tamil Nadu
Subject
Independent or eye witness is not expected by courts wherein the accused exploits the age and loneliness of a child.
Legal Provisions
- Section 9 of the Protection of Children from Sexual Offences Act, 2012 – Aggravated sexual assault.
- Section 10 of the Protection of Children from Sexual Offences Act, 2012 – Punishment for aggravated sexual assault.
- Section 11 of the Protection of Children from Sexual Offences Act, 2012 – Sexual harassment.
- Section 12 of the of the Protection of Children from Sexual Offences Act, 2012 – Punishment for sexual harassment.
- Section 29 of the Protection of Children from Sexual Offences Act, 2012 - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
Overview
- The respondent in this appeal registered a case before police under Section 9(m), 9(n) read with Section 10, Section 11 read with Section 12 of the POCSO Act. The trial court convicted the appellant herein and sentenced him to undergo rigorous imprisonment for seven years. Aggrieved by this, the appellant preferred this appeal.
- The case of the prosecution was that the victim girl was about 11 years old and the accused was running a travel business around the vicinity of the victim’s house. The accused person was well acquainted with the victim’s parents. When the victim was alone, the accused had entered the victim’s premise to commit the devious act of sexual assault upon her.When the victim shouted in panic, the appellant had run away from the premise. The next time when the victim was alone home, the accused entered the house and pulled the victim by her hand and showing his private parts. The victim raised an alarm, the appellant again fled the scene. The victim then narrated the whole incident to her father and mother. This led a case being registered against the appellant under the POCSO Act.
- The counsel for the appellant contended that there was contradiction in the evidence provided by the victim as she did not mention the specific date of the alleged incident. It was also contended that there were no independent or eye witness to support the narrative of the prosecution.
- It was also the case of the appellant that he was not in that region when the alleged occurrence had happened. It was stated that the appellant was in Palani as drove someone to meet their ailing father, being in the business of running travel trips. In order to prove the same as certain, the people who were driven by the appellant were examined and supported the case of the appellant. Therefore, it was contended that the alleged incident could not have taken place and an alibi has been established. The trial court had made a blunder in convicting the appellant.
- The learned counsel for the respondent contended that even though the plea of alibi was taken, no documentary evidence was provided to substantiate it. It was also stated that the case of the respondent was not an incident of the appellant committing an aggravated penetrative sexual assault, hence no medical evidence is need to prove the case of the respondent.
- Further, it was contended that the prosecution case was proved beyond reasonable doubt and presumption under Section 29 of the Act would come into play and now the burden of proving the contrary shifted to the respondent which he failed to do.
Judgement Analysis
- This court observed that the victim had narrated the incident consistently which was corroborated by necessary witnesses, who were the mother and father of the victim. The victim before the trial court had narrated the incident with proper chain of events.
- Even though the main defence of the appellant was his plea of alibi, there were no documentary evidence to prove the same. Since the main defence was the plea of alibi, no convincing document was provided by the appellant.
- Regarding the contention of appellant that there were no eye witness or independent witness to support the case of prosecution, the court noted that offenders in such cases approach the victims when they are alone and exploit their innocence of age.
- Further, the court also observed that there was no bodily injury hence medical evidence was not necessary.
- In absence of any convincing evidence or possible circumstances contrary to the alleged incident, the evidence of the victim was found to be trustworthy and inspired the confidence of the court. Accordingly, the appeal was dismissed.
Conclusion
In cases such as this, the presence of witness to such offence is rare and it is difficult to prove the case of the prosecution. This can be attributed to the fact that the offender will target the victim when they are vulnerable, when they are lonely, and exploit their innocence due to their age.
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Questions:
1. What Section under the POCSO Act provides for Punishment for sexual harassment?
2. It is provided under this Act that the State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act. What is the condition for a person to be eligible to be appointed as a Special Public Prosecutor under this Act?
