Madrasdated High Court · 2025

Crl.A.No.1189 of 2024JUDGMENTThis Criminal Appeal has been preferred as against the judgment dated 04.09.2024 passed by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore, in Spl.S.C.No.84 of 2021.2. The case of the prosecution is that the victim girl was aged about 10 years while she was studying in the 5th standard. On 24.09.2021, after she returned from school, she intended to take bath in the house of one Radha. She went to the house of Radha and while she was taking bath, the accused had went there and informed her that he had videographed her taking bath and threatened her that he would publish the same through social media. With an sexual intent, the accused jumped inside the bathroom through roof and he committed aggravated sexual assault. Thereafter, he also threatened her not to disclose the same to anybody. On receipt of complaint, the respondent police registered an FIR in Crime No.18 of 2021 for the offence punishable u/s 450 IPC and Sections 3, 4, 5(m) and 6 of POCSO Act. After completion of investigation, a final report was filed before the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore Page No.2 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024and the same was taken cognizance in Spl.S.C.No.84 of 2021 for the offence punishable u/s 450 IPC and Sections 5(m) & 6 of POCSO Act.3. To bring the charges to home, the prosecution had examined 14 witnesses as P.W.1 to P.W.14 and marked 15 documents as Ex.P.1 to Ex.P.15. The prosecution also produced material object in M.O.1. On the side of the accused, no witnesses were examined, but one document was marked as Ex.D.1.4. On perusal of the oral and documentary evidence, the Trial Court found the appellant guilty and he has been convicted and sentenced as under :S. No.ConvictionSentence1.Section 451 IPCto undergo two years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo three months simple imprisonment2.Sections 9(m) and 10 of POCSO Actto undergo seven year rigorous imprisonment and to pay a fine of Rs.10,000/-, in default to undergo three months simple imprisonment.Page No.3 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024The Trial Court also held that the appellant is entitled to set off the period of sentence already undergone by him u/s 428 Cr.P.C. The sentence of imprisonment was ordered to run concurrently. The Trial Court directed the Tamil Nadu Government to pay a sum of Rs.4,00,000/- as compensation to the victim girl. Aggrieved by the same, the present Criminal Appeal has been filed.5. The learned Senior Counsel appearing for the appellant submitted that the prosecution miserably failed to prove any of the charges against the appellant. The alleged occurrence took place on 24.09.2021, but the complaint was lodged only on 28.09.2021 at about 06.30 p.m. and there is absolutely no reason for the delay in lodgement of complaint. According to the case of the prosecution, the victim/P.W.1 went to the house of one Radha and in her house, while the victim was taking bath, the appellant jumped into the bathroom and threatened her as if he had videographed her while taking bath and committed aggravated sexual assault on her. But the prosecution failed to even examine the said Radha to substantiate the said allegation. Further, the videograph which was allegedly taken by the appellant was not seized by the prosecution and failed to produce the same before the Trial Court. Further, due to Page No.4 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024illness of the counsel, who appeared for the appellant was not present on the date of chief examination of P.W.1. and thereafter, the appellant was not permitted to cross-examine P.W.1. If P.W.1 was subjected for cross-examination, she would not have supported the case of the prosecution. In order to grab the property of the appellant, a false case has been foisted against the appellant. The appellant, being the neighbour of the victim's house, after the alleged occurrence, the appellant and his entire family members were not allowed to stay in their house and they were driven out from their village. After registration of FIR, the victim was subjected for medical examination and the doctor, who examined the victim, was examined as P.W.6 and she categorically deposed that there were no external injuries either in the body of the victim or her genitalia and her hymen was intact and there was no possibility of sexual assault on her. Further, the victim was treated as out-patient and P.W.6 issued medical report, which was marked as Ex.P.6. The radiology report was marked as Ex.P.7. Therefore, the doctor did not support the case of the prosecution and there was absolutely no aggravated sexual assault on the victim. After examination of prosecution witnesses, the appellant was subjected for questioning u/s 313 Cr.P.C., in which the appellant made Page No.5 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024statements and also produced the medical records. Accordingly, prior to the date of alleged occurrence, he was suffered with fracture on his leg and was under treatment. Therefore, he was not able to even walk and thereby, there is absolutely no possibility for the appellant to jump into the bathroom since the height of the bathroom is 5½ ft. even according to P.W.2. The victim was examined as P.W.1 and her parents were examined as P.W.2 and P.W.3. The appellant was not allowed to cross-examine P.W.1 to P.W.3 by the Trial Court. Since the defence counsel was ill on the date of chief-examination, he was not able to cross-examine them on the date of their chief-examination. Though the prosecution failed to prove any of the charges, the Trial Court mechanically convicted the appellant, which is per se unsustainable. Accordingly, he prays for allowing this appeal.6. Per contra, learned Additional Public Prosecutor submitted that the case of the prosecution was that the appellant had threatened the victim as if he had videographed her while she was taking bath. He did not videographed the victim and he simply threatened her as if he had videographed her while she was bathing with an intention to commit aggravated sexual assault on her. The victim was examined as P.W.1, Page No.6 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024who categorically deposed that the appellant jumped into the bathroom and had committed aggravated sexual assault on her. Immediately, it was informed to the mother of the victim viz., P.W.2. P.W.2 categorically deposed the reason for delay in lodgement of complaint. Immediately after the occurrence, the appellant being neighbour of the victim's house, it was informed to all the relatives of the victim and thereafter, decided to lodge a complaint. Further, the delay in lodgement of complaint in the sexual offence cases is not material. In fact, the appellant was examined by the doctor to check his potency to have sexual intercourse. The said doctor was examined as P.W.10, who deposed that the appellant did not suffer any external or internal injury on his body. If at all the appellant suffered any fracture on his right leg, he would have noticed that and given certificate. It is only an after thought and the prosecution categorically proved the charges. Therefore, the Trial Court rightly convicted the appellant and it does not warrant any interference at the hands of this Court. Accordingly, he prays for dismissal of the appeal.7. Heard the learned counsel appearing on either side and also perused the materials available on record.Page No.7 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 20248. Admittedly, the victim was examined as P.W.1, who was aged about 10 years. According to her, on 24.09.2021, she returned to her home from school and in order to take bath, she went to the house of one Radha. In Radha's house, there is a open bathroom with side shelter upto the height of 5½ ft. While she was taking bath, the appellant came there and threatened her as if he had videographed her while she was taking bath and jumped into the bathroom. Thereafter, he committed aggravated sexual assault on her. Though it was immediately informed to the mother of the victim/P.W.2, they did not lodge the complaint on the date of occurrence itself, but, the complaint was lodged only on 28.09.2021 at about 06.30 p.m. The victim deposed that the appellant jumped into the bathroom and squeezed her breast, however there is no evidence to show that he had committed aggravated sexual assault on her. Further, on a perusal of deposition of P.W.2, it was revealed that the height of the bathroom was 5½ ft. and it is open to sky. The appellant jumped into the bathroom and committed aggravated sexual assault on the victim. Further, she deposed that there was a delay in lodgement of complaint for the reason that immediately after the occurrence, it was informed to the relatives and thereafter only it was decided to lodge a complaint. After Page No.8 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024registration of FIR, the victim was subjected to medical examination and the doctor was examined as P.W.6, who deposed as follows:-“ mtiu ehd; gupnrhjid bra;j nghJ mtUila Milfspy; ve;j xU fiwa[k; fhzg;gltpy;iy/ mtUila Milfs; ey;y epiyapy; fhzg;gl;ld/ mtu; taJf;nfw;w kdtsu;r;rpa[lDk;. cly; tsu;r;rpa[lDk; fhzg;gl;lhu;/ clypy; vt;tpj fha';fSk; fhzg;gltpy;iy/ gpwg;g[Wgpy; vt;tpj fha';fSk; fhzg;gltpy;iy/ mtu; g{g;gilatpy;iy mtUila 2Mk; epiy ghypd cWg;g[f;fs; ed;F tsu;r;rpaile;j epiyapy; fhzg;gl;ld/ mtUila fd;dpj;jpiu ,ay;ghf ,Ue;J. jput jlty; gupnrhjidapy; tpe;jQqf;fs; vJt[k; fhzg;gltpy;iy/ mtUila taJ Fwpj;J mwpe;J bfhs;s nuoahy$p!;l; mwpf;iff;fhf mDg;gpitf;fg; gl;lhu;/ lhf;lu; gpupaju;c&pdp rpWkpia Ez;fjpu; gupnrhjid bra;J rpWkpf;F 9 taJ Kotile;jtu; vd;Wk; 12 taJ Kotilahjtu; vd;Wk; fUj;Jiu tH';fp rhd;W tH';fpa[s;shu;/ vd;Dila ,Wjp fUj;Jiuahf ghjpf;fg;gl;l rpWkp ghypay; td;g[zu;r;rpf;F cl;;gLj;j gl;ljw;fhd jla';fs; ,y;iy vd;Wk; ghjpf;fg;gl;l rpWkpf;F gpwg;g[Wg;gpYk; kw;Wk; clypYk; fha';fs; vJt[k; ,y;iy vd;Wk; fUj;Jf;Twp fUj;Jiu tH';fp kUj;Jtrhd;W tH';fpndd;/ ehd; tH';fpa kUj;Jtg; gupnrhjid mwpf;if m/rh/M/6 kw;Wk; nuoahy$p mwpf;if m/rh/M/7 MFk;/”Page No.9 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 20249. Therefore, there is no injury on the victim's genitalia and there is no evidence to show that she was subjected for aggravated sexual assault. Hence, the evidence of the doctor did not support the case of the prosecution. Further, after completion of prosecution witness, the appellant was subjected for questioning u/s 313 Cr.P.C. He made specific statement that no such occurrence was happened. In fact, prior to the date of the alleged occurrence, he suffered with fracture on his right leg while he was working in lathe shop. He also produced the X-ray and other medical documents to show that he suffered a fracture on his right leg on 07.07.2021 and thereafter, his leg was plastered with bandage and it was removed only on 07.08.2021 and thereby, he was advised to take rest. Therefore, there is absolutely no possibility of the appellant that he jumped into the bathroom from the height of 5½ ft. Further, there was a dispute in respect of appellant's land between the victim's family and appellant's family and therefore, in order to acquire the same, a false complaint has been foisted against the appellant. Though the delay is not a matter in the case of sexual offences, under the above stated circumstances, the delay is very much concerned in this case. In order to foist a false case against the appellant, they cooked up a story as if the Page No.10 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024appellant had committed aggravated sexual assault on the victim. The victim was subjected for medical examination after five days from the date of alleged occurrence. Therefore, the prosecution has also failed to follow the procedures as contemplated under the POCSO Act.10. The Investigating Officer was examined as P.W.14, who categorically deposed that the said Radha was not examined and he did not even secure the cellphone of the appellant. Though it was alleged that the appellant merely threatened the victim as if he had videographed the victim while she was taking bath, it is duty of the Investigating Officer to seize the cellphone and verify the same. Further, there was a delay of 23 days in recording the statement of the victim u/s 164 Cr.P.C. The prosecution did not explain the reason for the said delay in recording the statement of the victim. Therefore, the prosecution has miserably failed to prove any of the charges against the appellant and hence, the conviction and sentence imposed on the appellant by the Trial Court cannot be sustained and the same are liable to be set aside.11. Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant, vide judgment, dated Page No.11 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 202404.09.2024 passed by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore in Spl.S.C.No.84 of 2021 is hereby set aside. The appellant is set at liberty forthwith, unless he is not required in connection with any other case. Fine amount, if any, paid by the accused shall be refunded to him. Bail bonds, if any, executed by the accused, shall stands cancelled.25.07.2025Index: Yes/NoNeutral citation: Yes/NoSpeaking/non-speaking orderspPage No.12 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024To1.The Sessions Judge/Special Court for Exclusive Trial of Cases under POCSO Act, Cuddalore.2.The Inspector of Police, Neyveli All Women Police Station, Cuddalore.3.The Superintendent, Central Prison, Cuddalore.4.The Public Prosecutor, High Court of Madras, Chennai.Page No.13 of 14 https://www.mhc.tn.gov.in/judis Crl.A.No.1189 of 2024G.K.ILANTHIRAIYAN, J.spCrl.A.No.1189 of 202425.07.2025Page No.14 of 14