High Court · 2025

1/11CRL A No. 295 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15-12-2025CORAMTHE HONOURABLE MR.JUSTICE SUNDER MOHANCRL A No. 295 of 2023SasirajAppellant(s)VsThe Inspector of Police,Neyveli All Women Police Station, Cuddalore District. Crime No.17/2021.Respondent(s)PRAYER: Criminal Appeal filed under Section 374 (2) Cr.P.C., to call for the records in Spl.S.C.No.21 of 2022 on the file of learned Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore and set aside the judgment dated 30.01.2023 made in Spl.S.C.No.21 of 2022.For Appellant(s):Mr. P.MuthamizhselvakumarFor Respondent(s):Mr.S.RajakumarAdditional Public ProsecutorJUDGMENTThis criminal appeal challenges judgment of conviction and sentence imposed on the appellant vide judgment passed on 30.01.2023, in Spl.S.C.No.21 of 2022, on the file of the Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore, for the alleged offences under section 366 IPC and section 5(1) r/w section 6 of POCSO Act. https://www.mhc.tn.gov.in/judis 2/11CRL A No. 295 of 20232.It is the case of the prosecution that the appellant aged about 19 years (though wrongly stated as 24 in the charge sheet) had sexual intercourse with the victim, born on 16.12.2006, aged about 15 years, on 10.04.2021, 01.09.2021 and 08.09.2021 and thereafter, on several occasions and thus committed the aforesaid offences.3.The case of the prosecution is that since the victim girl went missing, the mother of the victim girl PW2 had lodged a complaint on 09.09.2021 and the same was registered in crime No.17 of 2021, Ex.P15. The complaint was registered by PW12 and thereafter investigation was conducted by PW13. The statement of the victim PW1 was recorded under Section 164 (5) Cr.P.C. on 29.09.2021 by the learned District Munsif cum Judicial Magistrate, Kurinjiapadi. The victim was subjected to medical examination by a Doctor PW5. After examination of all other witnesses, PW13 filed a final report before the Special Court for POCSO cases, Cuddalore, for the offences under section 366 IPC and section 5(1) r/w section 6 of POCSO Act. 4.On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with and the trial Court framed charges against the accused. The appellant was charged for the offences under section 366 IPC and section 5(1) r/w section 6 of POCSO Act. The first charge framed against the appellant was https://www.mhc.tn.gov.in/judis 3/11CRL A No. 295 of 2023under section 366 IPC and the second charge was under section 5(1) r/w section 6 of the POCSO Act and when questioned, the accused pleaded 'not guilty'.5.To prove the case, the prosecution had examined 13 witnesses and marked Exs.P1 to P18 and MO 1. The defendant had examined DW 1 and DW2. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same.6.On appreciation of oral and documentary evidence, the trial court found that the prosecution had established its case beyond any reasonable doubt and held that the appellant is found guilty of the aforesaid offences and convicted and sentenced the appellant to undergo ten years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default to undergo three months simple imprisonment under Section 366 IPC and to undergo ten years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default to undergo three months simple imprisonment under Sections 5(1) r/w 6 of the POCSO Act. Challenging the said conviction and sentence, the accused has preferred the instant appeal.7.Heard Mr. P.Muthamizhselvakumar, learned counsel for the appellant and Mr.S.Rajakumar, learned Additional Public Prosecutor for the respondent. https://www.mhc.tn.gov.in/judis 4/11CRL A No. 295 of 20238.The learned counsel for the appellant would submit that admittedly, it is a case of love affair between the appellant, who was aged 19 years and the victim, who was aged 15 years at the time of occurrence; that the victim has not stated about the alleged penetrative sexual assault in her statement before the learned District Munsif cum Judicial Magistrate in her statement under section 164 (5) Cr.P.C.; that the allegation of penetrative sexual assault is an after thought and tutored by the prosecution; that even before the Doctor, she had not mentioned about the alleged sexual intercourse; that the evidence of PW 2 and PW 3 and that of the investigation officer would go to show that the victim cannot be believed as regards the alleged occurrences and therefore, the impugned judgment is liable to be set aside.9.The learned Additional Public Prosecutor per contra submitted that the victim was not even 15 at the time of occurrence and even assuming that she has consented to the sexual intercourse, the offence under section 5(1) r/w section 6 of POCSO Act would be made out; that minor contradictions in her 164 (5) statement and in her deposition would hardly make any difference and the fact that the victim voluntarily went to the house of the appellant would make more difference as her consent is immaterial for the offences alleged against the appellant and therefore, there is no infirmity in the judgment impugned and prayed for dismissal of the appeal. https://www.mhc.tn.gov.in/judis 5/11CRL A No. 295 of 202310.As stated above, the prosecution had examined 13 witnesses on their side. PW1 is the victim, PW2 is the mother of the victim, PW3 is the maternal aunt of the victim, who corroborates the evidence of PW2. PW 4 is the husband of PW3. PW 5 is the Doctor who had examined the victim girl and had issued medical examination report Ex.P6, made entries in the Accident Register Ex.P5 and issued Ex.P7 Radiology report. PW 6 is the Child Welfare Officer who had stated that the victim girl was admitted in a home between 09.09.2021 to 13.10.2021, after which, she was handed over to her mother PW2. PW7 is the Headmaster who had issued the Educational Certificate Ex.P10 to prove that the victim studied in the school till her 10th standard and had also marked a certified copy of the Admission Register Ex.P11. PW 8 & PW9 are witnesses to Ex.P12 observation mahazar, who turned hostile. PW10 is the Doctor who had examined the appellant and would state that the appellant was aged 19 years at the time of occurrence. He had issued a potency certificate Ex.P14 for the appellant. PW11 is the Head Constable who had accompanied the victim for recording her 164 (5) statement. PW12 is the Head Constable who registered the FIR and sent the FIR to the Court. PW 13 as stated above is the Investigation Officer.11.The appellant had examined 2 witnesses, DWs1 and 2, DW1 is the father of the victim and DW 2 is a friend to establish that there was a love affair between the victim and appellant. https://www.mhc.tn.gov.in/judis 6/11CRL A No. 295 of 202312.From the above narration it is clear that the prosecution rests on the evidence of PWs 1 and 2, mainly to prove that the victim was subjected to sexual intercourse by the appellant when the victim was a minor. To corroborate their evidence, the prosecution has examined PW 5 Doctor. PW 3 and PW4 are relatives of PW 2, who would corroborate the evidence of PW 2. PW 3 and PW4 are hearsay witnesses. The question therefore is whether PW1 can be believed to hold that the appellant was found guilty of the offences under section 366 IPC and section 5(1) r/w section 6 of POCSO Act. As stated above, it is the prosecution case that the appellant had frequent physical contact with the victim in his house. It is the version of PW 1 in her deposition before the Court that the appellant had committed penetrative sexual assault after calling her to his house when there was no one in the house. The 164 (5) statement of the victim girl was recorded on 29.09.2021 by the learned District Munsif cum Judicial Magistrate, Kurinjiapadi. Though the victim in her cross examination would state that she had told in her statement under Section 164 (5) Cr.P.C. before the learned District Munsif cum Judicial Magistrate about the occurrences, it is seen from the deposition of the Investigation Officer, PW 13 that the victim had not stated about the alleged occurrence in her 164 (5) statement. The relevant portion of PW13's evidence is extracted hereunder for better understanding: https://www.mhc.tn.gov.in/judis 7/11CRL A No. 295 of 2023Fw;w mwpf;ifapy; fz;Ls;s rk;gtk; ele;jjhf F/tp/K/r/164(5)d; goahd thf;FK:yj;jpy; rpWkpahy; Twg;gltpy;iy vd;why; rhpjhd;/ 13.The Doctor PW5 who examined the victim had admitted in the cross examination that the victim had not informed her of any alleged sexual intercourse with a known person. The relevant portion of the evidence reads as follows:09/09/2021 k; njjp md;W vjphpapd; tPl;oy; ,Ue;J rpWkpia bea;ntyp midj;J kfsph; fhty; epiya nghyprhh; fhiy 10.00 kzpastpy; miHj;J te;jjhf kUj;Jt mwpf;ifapy; Twpas;nsd; v;dwhy; rhpjhd;/ sexual contact ,Ue;jjhf jhd; Fwpg;gopL cs;nsd; vd;whYk; sexual intercourse ,Ue;jjhf Fwpgpgltpy;iy vd;whYk; rhpjhd;/ ,uz;Lf;Fk; tpj;jpahrk; cs;sJ v;dwhy; rhpjhd;/ vd;Dila fUj;Jiuapy; rpWkp clYwt[f;bfhz;ljhf Fwpg;gpltpy;iy vd;why; rhpjhd;/ bghJthf bgz;fs; cly; gapw;rp bra;jhnyh. irf;fps; Xl;Ltjhnyh fd;dpj;jiu fpHpa tha;g;g[s;sJ vd;why; rhpjhd;/ kUj;Jt ghpnrhjidf;F rpWkp te;j md;W clYwt[f;bfhz;L ,Ue;jjhuh vd;W kUj;Jt mwpf;ifapy; Fwpg;gpltpy;iy vd;why; rhpjhd;/ nghyprhh; nfl;Lf;bfhz;ljpd; nghpy; kUj;Jt mwpf;if jahh; bra;Js;nsd; vd;why; rhpay;y/ sexual contact vd;why; vd;d vd;why; physical contact and physical touch vd;W brhy;yyhk;/ 14.In fact, the trial Court had put a question to the Doctor as to what the Doctor meant by sexual contact. The relevant portion of the questions put to the Doctor and the answer given by the Doctor is extracted herein for better https://www.mhc.tn.gov.in/judis 8/11CRL A No. 295 of 2023understanding:ePjpkd;w nfs;tpnfs;tp sexual contact vd;why; vd;d?gjpy; ghypay; bjhlh;g[ mjd; mh;j;jk; MFk;/nfs;tp,J Fwpj;J c';;fs; mwpf;ifapy; vd;d vGjp ,Uf;fpwPh;fs;?gjpy; history of sexual contact one month back with sasiraj vd;W vGjp cs;nsd;/15.PW2, mother of the victim girl in her cross examination had admitted that the victim was in the habit of going to the appellant’s house without informing them and they had gone to his house to bring the victim girl on several occasions. She further admitted that on one such occasion, the victim girl was brought from the house of the appellant and the police who came to know of the occurrence had advised the victim not to indulge in such action in future. The relevant portion of the PW 2 evidence is extracted herein:XU Kiw vjphpapd; tPl;ow;F m/rh.1 nghapUe;j nghJ vjphp tPl;lhh; Fwp";rpgho fhty; epiyaj;jpw;F jfty; brhy;yp Fwp";rpgho nghyPrhUk; eh';;fSk; ngha; m/rh/1I miHj;J te;njhk; v;dwhy; rhpjhd;/ Fwp";rpgho nghyPrhh; v';;fis tprhhpj;J vd; kfSf;F mwpt[iu brhy;yp mDg;gp itj;jhh;fs; vd;why; rhpjhd;/ Fwp";rpgho nghyPrhh; v';;fis tprhhpj;J thf;FK:yk; vGjp v';;fsplk; ifbaGj;J th';;fp bfhz;L mDg;gp itj;jhh;fs; vd;why; rhpjhd;/ 16.From the above discussion, it would be clear that the victim had not stated about the alleged occurrence in her earlier version. Her deposition is an https://www.mhc.tn.gov.in/judis 9/11CRL A No. 295 of 2023after thought. That apart, in her earlier version, the victim would admit that she had voluntarily gone to the appellant's house and no such occurrence ever took place. In the light of the improvements made by the victim and the deposition of all the witnesses that the appellant and the victim were known to each other, this Court is of the view that PW1's evidence cannot be the basis to convict the appellant, who was aged about 19 years at the time of occurrence. Therefore, this Court is inclined to set aside the judgment of conviction and sentence imposed on the appellant.17.In the result, this Criminal Appeal is allowed. The judgment of conviction and sentence passed on 30.01.2023, in Spl.S.C.No.21 of 2022, on the file of the Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore, are set aside and the appellant/accused is acquitted of all the charges. Fine amount, if any, paid shall be refunded. Bail Bonds, if any, executed shall stand cancelled.15-12-2025Index:Yes/NoSpeaking/Non-speaking orderInternet:YesNeutral Citation:Yes/Nosli https://www.mhc.tn.gov.in/judis 10/11CRL A No. 295 of 2023To1.The Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore.2.The Inspector of Police,Neyveli All Women Police Station,Cuddalore District. Crime No.17/2021.3.The Public Prosecutor,High Court, Madras. https://www.mhc.tn.gov.in/judis 11/11CRL A No. 295 of 2023SUNDER MOHAN, J.sliCRL A No. 295 of 2023 15-12-2025