Karthik v. Inspector of Police

JUDGMENT This Criminal Appeal has been filed by the accused, challenging the conviction and sentence imposed upon him, vide judgment dated

27.12.2022 in Spl.S.C.No.19 of 2021, on the file of the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Erode. 2(a). The case of the prosecution is that the appellant/sole accused had befriended the victim girl through an App called "Hello App" and became intimate with the victim; that thereafter, induced the victim to send her nude pictures by threat; that the appellant had forced the victim to send inappropriate pictures and videos of the victim either nude or the victim touching her private part inappropriately by a further threat that he would upload her nude pictures in the internet if she did not do so; that since the behaviour of the victim was unusual, the uncle of the victim learnt that the victim had shared obscene pictures and videos on the threats made by the appellant and lodged a complaint which was registered for the offences under Sections 11(2), 11(4), 11(5) and 12 of the Protection of Children from Sexual Offences Act, 2012 [for the sake of convenience, hereinafter referred to as POCSO Act, 2012] and 67B(a) of the Information Technology (Amendment) Act 2008 [for the sake of convenience, hereinafter referred to as IT Act] against the appellant/accused.

(b) P.W.7/Sub-Inspector of Police registered the complaint and thereafter handed over the investigation to P.W.9/Inspector of Police. After examination of witnesses and collecting other evidence, P.W.9 who conducted a portion of the investigation handed over the investigation to P.W.10/Inspector of Police completed the investigation and filed the final report for the offences under Sections 11(ii)(iv)(v) r/w 12 of the POCSO Act, 2012 and 67(B)(a) of the IT Act.

(c). On the appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the trial Court framed charges against the appellant under Sections 11(ii), (iv) and (v) punishable under Section 12 of the POCSO Act, 2012 and 67B (a) of the IT Act and when questioned, the appellant pleaded 'not guilty.'

(d). To prove the case, the prosecution examined ten witnesses as P.W.1 to P.W.10, marked sixteen exhibits as Exs.P1 to P16 and produced two Material Objects as P.M.O.1 and P.M.O.2. When the appellant was questioned under Section 313 of the Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. The appellant did not examine any witnesses or mark any documents.

(e). On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established its case beyond reasonable doubt and held the appellant guilty of the offence under Section 11(ii) (iv) (v) punishable under Section 12 of the POCSO Act, 2012 and acquitted the appellant for the offence 67B(a) of the IT Act. The appellant was sentenced as follows: Offence under Sentence imposed 11(ii)

(iv)

(v) punishable

under Section 12 of the POCSO Act, 2012 To undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month. Hence, the accused has preferred the appeal challenging the said conviction and sentence.

¶3Heard, Mr.M.Rajkumar, learned counsel appearing for the appellant and Dr.C.E.Pratap, learned Government Advocate (Crl.Side), appearing for the respondent/State.

¶4Mr.M.Rajkumar, the learned counsel for the appellant, would submit that the victim had given an exaggerated version in her deposition and most of the statements made by her were improvements and not stated during the investigation and pointed out the evidence of the Investigating Officer in this regard; that no obscene picture or video was found either in the phone of the victim or that of the appellant/accused or retrieved from the App; and that in the light of such evidence, the trial Court ought not to have convicted the appellant based on the sole testimony of the victim and relied upon the Judgment of the Hon'ble Supreme Court Nirmal Premkumar and another vs. State rep. by Inspector of Police, reported in 2024 SCC OnLine SC 260, in support of the submission that since the victim is neither wholly reliable nor wholly unreliable, the Trial Court ought to have sought for corroboration and in the absence of same, the Judgment is liable to be set aside.

¶5Dr. C.E. Pratap, the learned Government Advocate (Crl.Side) for the respondent, per contra, submitted that though the obscene pictures were not found from the phone, the evidence of the victim is sufficient to convict the appellant and therefore, there is no infirmity in the Judgment of the trial Court convicting the appellant and prayed for dismissal of the appeal.

¶6This Court carefully considered the submissions made on either side and perused the records.

¶7As stated earlier, the prosecution had examined ten witnesses. P.W.1 and P.W.2 are the uncle and aunt of the victim, respectively. P.W.3 is the victim. P.W.4 is the witness to the arrest of the appellant. P.W.5 is the brother of the victim. P.W. 6 is the headmaster of the school where the victim studied and was examined to prove the age of the victim. P.W.7 is the Sub-Inspector of Police, as stated earlier, who registered the FIR. P.W.8 is the Forensic Science expert. P.W.9 and P.W.10 are the Investigating Officers.

¶8It is the case of the prosecution that the appellant befriended the victim through an App called the "Hello App." and thereafter, the appellant had forced the victim to send obscene pictures and videos by stating that he loved the victim and also by threats that he would upload the pictures in the Internet if she did not send the videos or the pictures.

¶9P.W.1 and P.W.2, the uncle and aunt of the victim, had deposed that they lodged the complaint on the information given by the victim. It is not the case of P.W.1 and P.W.2 that they had seen the WhatsApp messages. In fact, this was clarified in the cross-examination of the Investigating Officer/P.W.9. The relevant portion reads as follows: "g[fhhpy; Kjy; jfty; mwpf;ifapYk; vd;Dila tprhuizapYk; g[fhh;jhuh; ghjpf;fg;gl;l rpWkpapd; bry;nghdpy; ghjpf;fg;gl;l rpWkpapd; Mgrkhd g[ifg;gl';fis mtUila bry;nghdpy; ghh;j;jhf Fwpg;gpl;L Twtpy;iy vd;why; rhpjhd;. g[fhu;jhuh; ghh;j;jhf brhy;ytpy;iy/"

¶10During the course of the investigation, the mobile phones of both the appellant and the victim were seized and sent for forensic examination. The expert had found that there were four messages exchanged between the appellant and the victim and all the messages read as "I love you." The expert, however, found that some pictures were exchanged between the appellant and one Archana, who has not been examined and she had nothing to do with the instant case.

¶11The investigating officer/P.W.10 in his cross-examination had admitted that during the investigation, no material was collected to prove the exchange of obscene videos and pictures between the appellant and the victim. The relevant portion reads as follows: "tl;lhu jla mwptpay; Ma;tfj;jpy; ,Ue;J bgwg;gl;l mwpf;ifia ehd; ghh;itapl;nldh vd;why; ghh;itapl;nld;/ vjpupaplk; ,Ue;J ifg;gw;wgl;ljhf brhy;yg;gLk; bry;nghd;. ghjpf;fg;gl;l rpWkpapd; bry;nghd;dpy; ,Ue;J vjphpapd; nghDf;F nghd; fhnyh tPonah fhnyh brd;wjhf gjpt[fs; ,y;iy vd;why; rhpjhd;/ vjpupapd; nghdpy; ,Ue;J ghjpf;fg;gl;l rpWkpf;F Mgrkhd nghl;nlh bgw;wjhft[k; rpWkpapd; nghdpy; ,Ue;J vjphpapd; nghdpw;F mDg;gg;gl;ljhft[k; Ma;t[fwpf;ifapy; Fwpg;g[ vJt[k; ,y;iy vd;why; rhpjhd;/ vjphpapd; nghdpy; Hello App ,Ue;jjhf ve;j xU Fwpg;g[k; ,y;iy vd;why; rhpjhd;/ ghjpf;fg;gl;l rpWkpapd; bry;nghd; OnModef;F tutpy;iy vdnt mjpy; ,Ue;J ve;j jut[k; nrfhpf;fKoatpy;iy vd;W mwpf;ifapy; Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;/ Ma;tfj;jpy; cs;s cgfuz';fis bfhz;L kPl;blLf;fg;glKoatpy;iy vd;W Fwpg;gplg;gl;Ls;shh;fs; vd;why; rhpjhd;"

¶12In the light of the above evidence, we are now left with the evidence of the victim/P.W.3 alone. The victim was aged 17 years and eight months at the time of occurrence, and the appellant was aged 20 years at the time of the occurrence.

¶13The evidence of the victim/P.W.3 suggests that both the victim and the appellant had shared an intimate relationship. In light of such evidence, the version of the victim that she was threatened to send some obscene pictures appears to be an afterthought. In fact, the investigating officer in his evidence had stated that the victim had not stated about any threat by the appellant in her statement made to him during the investigation. The relevant portion of the investigating officer's evidence reads as follows: "mrh/3 ghjpf;fg;gl;l rpWkp vd;Dila tprhuizapy; xt;bthU Kiwa[k; vjphp jd;id kpul;o jhd; nfl;lhh; vd;W Twp cs;shuh vd;why; kpul;o nfl;ljhf Fwpg;gpl;L brhy;ytpy;iy/ 06/08/2020k; njjp tiu jd;Dila tPl;oy; ,Ug;gtUf;F bjhpagLj;jtpyiy vd;W Twp cs;shh; vd;why; rhpjhd;/ thl;!;Mg; code no tUk; vdf;F bfhL vd;W vjphp nfl;ljhf vd;Dila tprhuizapy; Twp cs;shuh vd;why; ,y;iy/ fztd; kidtp cwt[. First night nghd;wtw;iw gw;wp ngrpajhf Fwpg;gpl;L Twtpy;iy vd;why; rhpjhd;/" Hence, this part of the version of P.W.3 is crucial and has not been stated during the investigation.

¶14This Court is of the view that it is highly unsafe to rely upon only the statement of the victim to hold that the appellant made the victim to share her obscene pictures and videos. In this regard, it would be usual to refer to the observations of the Hon'ble Supreme Court in Nirmal Premkumar and another vs. State rep. by Inspector of Police, reported in 2024 SCC OnLine SC 260, which read as follows: "11. Law is well settled that generally speaking, oral testimony may be classified into three categories, viz. : (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusion(s). However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.

¶12In Ganesan v. State4, this Court held that the sole testimony of the victim, if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused. ...

¶14In Krishan Kumar Malik v. State of Haryana6, this Court laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to identified flaws and lacunae. It was held thus: "31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.

¶32Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant."

¶15What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a "sterling witness" without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded."

¶15The reading of the evidence of the victim would make it clear that she would fall under the third category of witnesses who would require corroboration. Considering the fact that no obscene pictures or videos could be recovered from either the phone of the victim or the appellant; that neither P.W.1 nor P.W.2 have stated that they saw the pictures during the course of the investigation; that there are substantial improvements in the evidence of the victim; and considering the nature of the relationship between the appellant and the victim and their age, this Court is of the view that it is highly unsafe to convict the appellant only on the sole testimony of the victim. The appellant would therefore be entitled to the benefit of the doubt and hence the Judgment of conviction and sentence imposed on the appellant by the trial court is liable to be set aside.

¶16As a result, this Criminal Appeal is allowed and the appellant is acquitted of all the charges levelled against him. The conviction and sentence passed in Spl.S.C.No.19 of 2021 dated 27.12.2022 on the file of the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Erode, are set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged.

¶17This Court records its appreciation for Mr.M.Raj Kumar, the learned counsel for the petitioner, for his meticulous preparation and valuable assistance.

09.12.2024 Speaking /Non-speaking order dk To

¶1The Sessions Judge, Magalir Neethi Mandram, (Fast Track Mahila Court), Erode.

2.The Inspector of Police, Erode, All Women Police Station, Erode.

¶3The Public Prosecutor, High Court, Madras. SUNDER MOHAN,J. dk

09.12.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.12.2024 CORAM : THE HON'BLE MR. JUSTICE SUNDER MOHAN Karthick ...Appellant/Sole Accused vs. The State represented by Inspector of Police, Erode, All Women Police Station, Erode District. (Crime No.13 of 2020 ...Respondent/Complainant Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, 1973, to set aside the Judgement passed in Spl.S.C.No.19 of 2021 dated 27.12.2022 on the file of the Sessions Judge, Magalir Neethi Mandram, (Fast Track Mahila Court), Erode. For Appellant : Mr.M.Rajkumar for Mr.T.Murugnantham For Respondent : Dr.C.E.Pratap Government Advocate (Crl.Side)