High Court · 2025

Crl.A.No.47 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.06.2025CORAM:THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYANCrl.A.No.47 of 2023Suresh... AppellantVs.State by the Inspector of Police,All Women Police Station,Cheyyar,Thiruvannamalai District(crime No.22 of 2013)... RespondentPRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to call for the entire records in connection with the Spl.SC.No.6 of 2019 on the file of the learned Special Court, POCSO Cases, Thiruvannamalai, Thiruvannamalai District and set aside the judgment dated 26.07.2022.For Appellant: Mr.E.KannadasanFor Respondent: Mr.S.Raja Kumar, Additional Public ProsecutorJUDGMENTThis criminal appeal has been preferred against the judgment passed in Spl.SC.No.6 of 2019 on the file of the learned Special Court, Page 1 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023POCSO Cases, Thiruvannamalai, Thiruvannamalai District dated 26.07.2022, thereby the appellant has been convicted for the offence punishable under Sections 354, 366, 376 & 506(i) of IPC and Sections 6 & 8 of POCSO Act. 2.The case of the prosecution is that the victim is the second daughter of the defacto complainant. While she was studying 8th standard, on 17.11.2013, she went along with her cousin sister named Pavithra to graze their goats. When they were grazing their goats, the appellant invited the victim to have some fruit near the ridge of a lake. Thereafter, the appellant committed sexual assault on the victim. It was immediately informed to police and a complaint was lodged. On receipt of the said complaint, the respondent registered FIR in crime No.22 of 2013 for the offences punishable under Sections 376 & 506(i) of IPC r/w Sections 3 & 4 of POCSO Act. After completion of investigation, final report was filed and the same was taken cognizance by the trial court. 3.In order to bring the charges to home, the prosecution had examined PW1 to PW13 and marked Ex.P1 to Ex.P19. The prosecution Page 2 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023also produced a material object as M.O.1. On the side of the appellant, no one was examined and no documents were marked. Also no material object was marked. On perusal of oral and documentary evidences, the trial court found the appellant guilty for the offences punishable under Sections 376 & 506(i) of IPC r/w Sections 6 & 8 of POCSO Act. Convicting the appellant for the aforementioned offences, the trial court sentenced him to undergo ten years rigorous imprisonment for the offence under Section 366 of IPC with fine of Rs.1,000/-, in default of which to undergo simple imprisonment for one year. For the offence under Section 376 of IPC & Section 6 of POCSO Act, he was sentenced to undergo 20 years rigorous imprisonment with fine of Rs.1,000/-, in default of which to undergo simple imprisonment for one year. For the offence under Section 8 of POCSO Act, he was sentenced to undergo five years rigorous imprisonment with fine of Rs.1,000/-, in default of which to undergo simple imprisonment for one year. He was also sentenced to undergo rigorous imprisonment for one year for the offence under Section 506(i) of IPC. Further, he was also sentenced to undergo rigorous imprisonment for one year with fine of Rs.1,000/- in default of which, to undergo simple imprisonment for three months. Aggrieved by the judgment of the trial court, the present criminal appeal has been filed by Page 3 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023the accused. 4.The learned counsel for the appellant would submit that except the victim girl, all the witnesses are hear-say evidences and as such, the prosecution failed to prove the case beyond any doubt. In fact, PW8 to PW12 are close relatives. Only due to previous enmity, false complaint was lodged against the appellant. Further, there were contradictions between the evidence of PW1 and PW4. Even according to the case of the prosecution, conviction under Sections 6 & 8 of POCSO Act cannot be sustained. There was only an attempt to commit a sexual intercourse. Further, there was no kidnapping and as such, the conviction under Section 366 of IPC also cannot be sustained against the appellant. 5.Per contra, the learned Additional Public Prosecutor appearing for the respondent submitted that at the time of the occurrence, the victim was aged about only 11 years. The appellant kidnapped the victim to a deep forest area and committed penetrative sexual assault on the victim. The victim categorically deposed about the occurrence and it was also corroborated by PW1, who is the mother of the victim. Therefore, the order of conviction rendered by the trial court does not Page 4 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023require any interference by this Court.6.Heard, the learned counsel appearing for the appellant and perused, all the materials placed before this Court.7.On perusal of records, it is revealed that the victim girl was examined as PW2. According to her, on 17.11.2013 at about 10.00 a.m., when the victim and one, Pavithra were playing near a pond situated in their village, the appellant came there and took her to a dark bushy area to have some fruits. At that place, he attempted to commit rape on her. Immediately, another girl came there and the appellant left her. The relevant portion of her deposition is as follows:17/11/2013k; njjpad;W fhiyapy; Rkhh; 10/00. 10/30 kzpf;F ehDk; gtpj;uh mf;fht[k; v';fs; Chpy; cs;s Fsj;j';fiu gf;fkhf tpisahof; bfhz;oUe;njhk;/ mg;g Rnuû; vd;fpw mz;zd; m';F te;jhh;/ mtd; vd;id te;J mjl;odhd;. kpul;odhd;/ xU tpshkuj;jhz;l vd;id Tl;og; nghdhd;/ tpshkuk; gf;fj;Jy g[juhz;l vd;id Tl;og; nghdhd;/ mtd; jg;g[ gz;zhd;/ ehd; xj;Jf; bfhs;stpy;iy/ mtd;jhd; jg;g[ gz;zpdhd;/ ehd; iel;o Page 5 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023nghl;oUe;njd;/ tpshk;gHk; gwpr;rp jnud;D Rnuû; brhd;djhy gtpj;uh mf;fh nghd;D brhd;djhy ehd; nghndd;/ mtd; tpshk;gHk; gwpr;rpj; juhd;D ehd; nghndd;/ vd;id ghypay; gyhj;fhuk; brë;rhd;/ vd; iel;oia khh;g[f;Fnky; J}f;fpl;lhd;/ ehd; fj;jpndd;/ Vd; fGj;ijg; gpor;rhd;/ ehd; vl;oTl cijr;Rg; ghh;j;njd;/ mtd; vd;id tpliy/ khkh bgz; gtpj;uh fj;jpf;fpnd Xo te;jhs;/ mtfpl;l vjphp Rnuû; ehd; ghj;U:k; nghnw eP Vd; th;nw ngh vd;W brhd;dhd;/ mg;gt[k; nfl;fhk me;j mf;fh fpl;l te;J ghh;j;Jr;rp/ mg;gjhd; mtd; vd; nky ,Ue;J vGe;jphpr;rhd;/8.The above was informed to PW1 and therefore, the complaint was lodged. In order to prove the age of the victim, age certificate issued by the Government Vellore Medical College Hospital was marked as Ex.P7. On perusal of the same, it is revealed that the victim girl was aged below 12 years as on 10.11.2014. Further, her birth certificate was marked as Ex.P15. Ex.P15 revealed that the victim girl was born on 07.04.2004. Therefore, she was aged only about 11 years at the time of the occurrence. Immediately after the lodgment of the complaint, the victim was subjected for medical examination. The Page 6 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023accident register was marked as Ex.P5. It is stated in the accident register as follows:Consent obtained:As said by the mother: DOB 07/03/2004 6th standard alleged to have been sexually assaulted by a know male person today morning around (10.30 am as said by the mother) When she was picking up vilambalam near murugarkoil kunnavakam, pushed her down on the ground lied on over her without dress took her dress off, kissed her, bit her over neck, chest, cheek, lips placed his male genitalia over her genitalia threatened her that he will kill her if she tells it outside closed her mouth, took off her ears stud gold neck chain, silver chain. After few mts her niece, pavithra 8th std came in search of her this male person threatened her also she came and told Gowri and others and their relatives came running and the child was coming from the pond opposite and the child narrated the above thing.O/EChild answers to question, not passed uml since then, faint abrasion like bite mark over right cheek.faint abrasion like bite mark over left cheekabrasion like bite over neck 2 cm 'I' Rt to ltfaint abrasion like bite mark over alaihasae it faint bite mark breast Rt sideAbrasion right knee.Page 7 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023Child appears frightinedAble to understand, respond to calls stimuli, answers to questions.Breast not yet developedNo public hair (or) auxiliary hair9.The report on the victim’s examination received from the Government Hospital was marked as Ex.P6. The forensic laboratory reports were marked as Ex.P8 and Ex.P9. On perusal of Ex.P8 and P9, it is revealed that spermatozoa was not detected in the smear of the slide. Further, neither semen nor blood was detected. As per the opinion, the hymen of the victim was not intact and admitted one finger. Therefore, there is no evidence for penetrative sexual assault on the victim. However, the entire body of the victim was found with laceration and bite wounds. Therefore, the appellant had attempted to commit sexual assault on the victim. As such, the prosecution failed to prove the charges under Section 376 of IPC and Section 6 of POCSO Act. However, the offence attracts Section 3 of POCSO Act and the appellant is liable to be convicted for the offence under Section 4 of POCSO Act. Insofar as the charge under Section 366 of IPC, there is absolutely no material to attract the same. Even according to the victim as well as PW1, they were playing while grazing their goats and the appellant had called her to eat some Page 8 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023fruits. Thereafter, she was taken to the ridge of a lake, whereat the appellant attempted to commit sexual assault on the victim. Therefore, the prosecution miserably failed to prove the charges under Sections 366 of IPC. 10.In view of the above, the appellant is liable to be convicted for the offence under Section 3 r/w 4 of POCSO Act. Accordingly, the judgment of the trial court is modified as follows: Order of conviction and sentences imposed on the appellant for the offences punishable under Section 366 & 376 of IPC and Section 6 of POCSO Act is set aside. The appellant is now convicted for the offence under Section 3 r/w 4 of POCSO Act and sentenced to undergo rigorous imprisonment for a period of seven years. The order of the trial court in respect of the conviction and sentences imposed on the appellant for the offences under Section 8 of POCSO Act and Sections 506(i) & 354 of IPC is confirmed.11.In the result, this criminal appeal stands partly allowed. 12.06.2025Index: Yes/NoPage 9 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023Neutral citation: Yes/NoSpeaking/non-speaking orderlokTo1.The learned Special Court, POCSO Cases, Thiruvannamalai, Thiruvannamalai District 2.Inspector of Police,All Women Police Station,Cheyyar,Page 10 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023Thiruvannamalai District3.The Public Prosecutor,Madras High Court.Page 11 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.47 of 2023G.K.ILANTHIRAIYAN, J.lokCrl.A.No.47 of 202312.06.2025Page 12 of 12