Sundar Raj v. State

Crl.A.No.297 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.01.2026CORAMTHE HONOURABLE MR.JUSTICE SUNDER MOHANCrl.A.No.297 of 2023Sundar Raj ... Appellant/AccusedVs.State Represented byThe Inspector of Police,Naduveerapattu Police Station,Cuddalore District.(Crime No.1074 of 2020) ... Respondent/ComplainantPrayer: Criminal Appeal filed under Section 374 of Criminal Procedure Code, 1973, to call for the records and set-aside the conviction and sentence imposed in Spl.S.C.No.26 of 2021 dated 27.10.2022, Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore. For Appellant: Mr.K.Gandhi KumarFor Respondent: Mr.S.Raja Kumar, Additional Public ProsecutorJUDGMENTPage No.1 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023This Criminal Appeal challenges the judgment of conviction and sentence imposed by the learned Sessions Judge in Spl.S.C.No.26 of 2021 dated 27.10.2022 on the file of the Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore.2. The appellant was convicted by the trial Court for the offences under Section 366 of IPC and under Sections 3 and 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) and sentenced as follows:Offence under SectionSentence imposed366 of IPCTo undergo RI for 10 years and to pay a fine of Rs.1,000/-, in default to undergo SI for three months.3 r/w 4 of POCSO Act, 2012To undergo RI for seven years and to pay a fine of Rs.2,000/-, in default to undergo SI for three months.3. The gist of the prosecution case is that the victim girl born on 20.07.2004 and the appellant aged 28 years had a love affair; that on 11.10.2020, the appellant had asked the victim girl to go along with him; that on 12.10.2020, the victim girl went along with the appellant; that on 13.10.2020, the appellant had married her by tying “thali” and that he had Page No.2 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023sexual intercourse with the victim girl and thus committed the aforesaid offence. 4. On the complaint given by P.W2 - Father of the victim girl, a case was registered in Crime No.1074 of 2020 for “girl missing” and subsequently altered to offences under Section 366 IPC and Section 3 r/w 4 of the POCSO Act and Section 9 of the Child Marriage Act, 2006. P.W9 had registered the F.I.R. P.W10 commenced the investigation. Thereafter, the investigation was concluded by P.W.12, who filed the final report for the offences under Sections 366 IPC, Section 9 of the Child Marriage Act and Section 3 r/w 4 of the POCSO Act. 5. Before the trial Court, the prosecution had examined 12 witnesses and marked Ex.P1 to Ex.P16. The appellant neither examined any witness nor marked any document. The trial Court found the appellant guilty of the offences under Section 3 r/w 4 of the POCSO Act and sentenced him for the offence under Section 366 IPC as stated above. The appellant was acquitted of the offence under Section 9 of the Child Marriage Act.Page No.3 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 20236. The learned counsel for the appellant would submit that the impugned judgment is liable to be set aside; that the victim's evidence cannot be believed, inasmuch as she had made contradictory statements at various stages during the investigation and in the trial; that admittedly, the appellant and the victim had a love affair and their relationship was consensual; and that the prosecution case rests on the sole testimony of the victim, which does not inspire confidence and prayed for acquittal of the accused.7. The learned Additional Public Prosecutor for the respondent, per contra, would submit that though it is the case of the prosecution that it was consensual relationship, the consent of the minor girl is immaterial; that the evidence adduced on the side of the prosecution conclusively establish that the appellant had sexual intercourse with the victim girl, who was then a minor; and that therefore, there is no infirmity in the impugned judgment and prayed for dismissal of the appeal.8. As stated earlier, the prosecution had examined 12 witnesses to prove its case. P.W1 is the victim. P.W2 is the father and defacto Page No.4 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023complaint, who initially lodged a complaint which was registered for “girl missing”. P.W3 is the mother of the victim. P.W4 is the Head Master of the School who had issued Ex.P7 - Transfer Certificate which mentions the date of birth of the victim as 20.07.2004. P.W5 and P.W6 are the mahazar witnesses to the observation mahazars Ex.P8 and Ex.P9. P.W7 is the Doctor who examined the victim girl on 14.10.2020 and issued the Medical Examination Report Ex.P10. P.W8 is the Doctor who had examined the appellant and issued the Potency Certificate Ex.P11. P.W9 is the Sub Inspector of Police who had registered the F.I.R marked as Ex.P12. P.W10 is the Inspector of Police who conducted the initial investigation and prepared the observation mahazar and the rough sketch Ex.P13. P.W11 is the Constable who had assisted the Investigating Officer. P.W12 is the Investigating Officer who had filed the final report.9. P.W1 as stated about is the victim child who has spoken about the alleged occurrence relating to commission of penetrative sexual assault. P.W2 and P.W3 are the parents who have not spoken about the alleged occurrences. They are hearsay witnesses. P.W2 and P.W3, however, have stated about the fact that the victim went missing on 12.10.2020 and about Page No.5 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023their lodging of the complaint before the Police. Therefore, the prosecution case rests on the evidence of P.W1 who is the victim and the evidence of P.W7 the Doctor, who had examined the victim girl.10. It is the case of the prosecution that the victim went to the Police Station on 14.10.2020 two days after she went with the appellant. Thereafter, she was taken to P.W7 - Doctor on 14.10.2020 at about 2.00 p.m. P.W7 in her deposition would state that the victim had stated that she had married a known person at a Temple in Kurinjipadi and had sexual intercourse with him for two days at Erode. P.W7 in her Medical Examination Report had opined that there was a possibility of sexual intercourse and that there was no evidence of external genital injuries. She also noted that there was no evidence of spermatozoa in her dress. The victim's 164(5) Cr.P.C statement (Ex.P1) was recorded by the learned Magistrate on 29.10.2020. The victim was accompanied by P.W11-Constable to the learned Magistrate. 11. It is the version of the victim in her deposition in the trial that she was taken forcibly by the appellant and taken to hotel at Kurinjipadi after Page No.6 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023the marriage was solemnized on 13.10.2020. She would also state that initially, she was taken to the appellant uncle’s house at Kurinjipadi and the marriage was solemnized in a Temple in their presence by tying of “Thali”. 12. The prosecution had not chosen to examine the appellant's uncle. If the victim's version was true, the said uncle who ought to have been examined. There is no investigation in this regard. That apart in the cross examination, P.W1 was confronted with her Section 164(5) statement. In the Section 164 (5) Cr.P.C statement, she had stated that after the marriage was solemnized, she and the appellant stayed in the bus stand at Kurinjipadi and P.W.1 had not referred to any alleged penetrative sexual assault committed on her during the said period. P.W.1 however in her cross examination denied having made any such statement before the learned Magistrate. However, the Investigating Officer P.W12 had admitted that the victim in her Section 164 Cr.P.C statement, had not stated about the alleged sexual intercourse. The relevant portion of the evidence of P.W12 is extracted hereunder for better appreciation of the contradiction:-“ghjpf;fg;gl;l rpWkp vd;dplk; mspj;j Kjy; thf;FK:yj;jpy; vjphp jd;id <nuhl;Lf;F miHj;Jr; brd;W yhl;$py; j';f itj;J clYwt[ Page No.7 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023bfhz;ljhf brhy;ytpy;iy vd;why; rupjhd;/ ghjpf;fg;gl;l rpWkpapd; FtpKr gpupt[ 164(5) d; goahf ufrpa thf;FK:yj;jpYk; vjpup jd;id <nuhl;Lf;F miHj;Jr; brd;W yhl;$py; j';f itj;J clYwt[ bfhz;ljhf brhy;ytpy;iy vd;why; rupjhd;/”13. P.W10 who initially conducted investigation also would state that the victim had not stated to him that she and the appellant stayed in hotel at Kurinjipadi. There are three different versions regarding the place where the appellant and the victim P.W1 had stayed after the alleged marriage. Before the Doctor, the victim had stated that she stayed at Erode in hotel. In the Section 164 (5) Cr.P.C statement as mentioned above, she stated that she stayed in the bus stand and had not alleged any sexual intercourse. In her deposition, she had stated that she stayed in a hotel at Kurinjipadi. The prosecution had not collected any evidence as to where the victim stayed with the appellant after the alleged marriage. 14. Admittedly, the victim and the appellant were known to each other. The victim has made contradictory statement as stated above even with regard to the alleged occurrence of penetrative sexual assault. The Page No.8 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023prosecution is also not clear as to where and when the alleged occurrence took place. In view of the inconsistent statements of the victim and in view of the above discussion, this Court is of the view that it is highly unsafe to convict the appellant on the sole testimony of P.W1. Hence, the impugned judgment dated 27.10.2022 passed in Spl.S.C.No.26 of 2021 on the file of the Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore, convicting the appellant is liable to be set aside and is accordingly set aside. The appellant is acquitted of the charge. The bail bond executed by the appellant stands discharged. 15. With the above observations, this Criminal Appeal stands allowed. 05.01.2026Index : Yes/NoSpeaking Order/Non Speaking OrderMacTo1. The Special Court under EC Act / NDPS Act, Coimbatore.2. The Inspector of Police, Naduveerapattu Police Station,Page No.9 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023 Cuddalore District.3.The Public Prosecutor, High Court, Madras.Page No.10 of 11 https://www.mhc.tn.gov.in/judis Crl.A.No.297 of 2023SUNDER MOHAN, J.MacCrl.A.No.297 of 202305.01.2026Page No.11 of 11