High Court · 2025

Crl.A.No.39 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.06.2025CORAMTHE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYANCrl.A.No.39 of 2023Maheswaran... AppellantVsState represented by,The Inspector of Police,Salem Junction Railway Police Station, Salem District.(Crime No.211 of 2018)...Respondent PRAYER : Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code, to set aside the Judgment passed against the appellant on 31.10.2022 in Spl.SC.264 of 2019 on the file of the Learned Principal Sessions Judge, POCSO at Salem Division and acquit him from all the charges.For Appellant : Mr.M.K.Bhoopathy RajanFor Respondent : Mr.S.Raja Kumar Additional Public Prosecutor JUDGMENTThis Criminal Appeal has been filed as against the Judgment passed in Spl.SC.264 of 2019 dated 31.10.2022 on the file of the Principal Sessions Judge, POCSO at Salem Division, thereby convicting the appellant for the offence punishable under Section 509 of IPC.Page 1 of 8 https://www.mhc.tn.gov.in/judis Crl.A.No.39 of 20232. The case of the prosecution is that on 09.11.2018, the victim, along with her family members, was travelling by Train No.12674, Cheran Express, from Coimbatore to Chennai in Coach No.S8 occupying Seat Nos.42, 43, 45 and 46. At the same time, the accused was also travelling in the same coach, occupying Seat No.35. While being so, at about 12.30 mid night, when the train was proceeding towards Chennai, the accused, with sexual intent, climbed onto Seat No.46, where the victim was sleeping and forcibly hugged her and touched her all over the body. Hence, the complaint.3. On the said complaint, the first respondent registered FIR in Crime No.211 of 2018 for the offences punishable under Section 7 read with Section 8 of POCSO Act and Section 509 IPC. After completion of investigation, final report has been filed and the same has been taken cognizance by the Trial Court in Spl.S.C.No.264 of 2019.4. On the side of the prosecution, they had examined PWs.1 to 16 and marked Exs.P1 to P16. They had produced a material object and marked as M.O.1. On the side of the accused, no one was examined and no document was marked. On perusal of oral and documentary evidences, the Trial Court Page 2 of 8 https://www.mhc.tn.gov.in/judis Crl.A.No.39 of 2023acquitted the appellant for the offences under Section 7 read with Section 8 of POCSO Act and convicted for the offence under Section 509 IPC and sentenced him to undergo three years simple imprisonment and also imposed fine of Rs.1000/-, in default to undergo six months simple imprisonment.5. The learned counsel for the appellant would submit that there is absolutely no material to frame charges as against the appellant for the offences punishable under Sections 7 and 8 of POCSO Act. However, the Trial Court, without any material convicted the appellant for the offence under Section 509 IPC. Admittedly, the appellant was travelling in the same train and in same coach as the victim. Since he was under the influence of alcohol, he wrongly climbed into the adjacent cubicle, where the victim was sleeping in Seat No.46, instead of occupying Seat No.35. Both cubicles were located next to each other. Even according to the victim, the appellant did not touched her and simply climbed and lied down in her seat. Therefore, the appellant had no intention to commit any act on the victim to attract any of offences under the POCSO Act and also offence under Section 509 of IPC.Page 3 of 8 https://www.mhc.tn.gov.in/judis Crl.A.No.39 of 20236. The learned Additional Public Prosecutor submitted that the prosecution had clearly established the case and proved the guilt of the appellant for the offence under Section 509 of IPC. It is contended that the appellant, under the influence of alcohol, climbed onto the seat of the victim with the intent to insult the modesty and touched her entire body. Therefore, the Trial Court had rightly convicted the appellant for the offence under Section 509 of IPC.7. Heard both sides and perused the materials available on record.8. Admittedly, the appellant was under the influence of alcohol. He was travelling in the same train, viz., Cheran Express, in which the victim had travelled from Coimbatore to Chennai in the same coach. Both the appellant and the victim were allotted seats in Coach No.S8, with the victim occupying Seat No.46 and the appellant in Seat No.35. Both seats are upper berths. After using the washroom, the appellant mistakenly climbed onto Seat No.46 where the victim was sleeping instead of Seat No.35. Page 4 of 8 https://www.mhc.tn.gov.in/judis Crl.A.No.39 of 20239. The victim was examined as PW.3. The relevant portion of the deposition of PW.3 as follows:- ehd; vd; fhiy FWf;fp xUf;fypj;J gLj;J“ J}';fpbfhz;oUe;njd;/ ,ut[ Rkhu; 12/30 kzpapypUe;J 12/45 kzpapUf;Fk;/ vd; fhYf;F fPnH vd; gu;j;jpy; vjpup gLj;jpUe;jhu;/ ehd; clnd vd; mg;ghit vGg;gp brhd;ndd;/ vd; mg;ght[k; kw;wtu;fSk; vGe;J ghu;j;jhu;fs;/ M$u; vjpupia vd; mg;gh ,wf;fptpl;L rj;jk; nghl;lhu;/ mg;nghJ vjpup Foj;jpUe;jhu; vd;gJ bjupe;jJ/ mtu; ntW vJt[k; bra;atpy;iy/”10. Therefore, even according to the victim, the appellant did not do anything as alleged by the prosecution. After such occurrence, the appellant had scolded them. Therefore, the complaint was lodged and he was prosecuted for the offence punishable under Sections 7 and 8 of POCSO Act, since the victim was a minor girl on the date of occurrence. Therefore, the Trial Court had rightly acquitted the appellant for the offences under Sections 7 and 8 of POCSO Act. 11. However, the appellant was convicted under Section 509 of IPC. It is relevant to extract the provision under Section 509 of IPC as follows:-“ 509. Word, gesture or act intended to insult the modesty of a woman — Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be Page 5 of 8 https://www.mhc.tn.gov.in/judis Crl.A.No.39 of 2023seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”12. Thus, it is clear that the intention is primordial requirement to prove the offence under Section 509 of IPC. Admittedly, the appellant was under the influence of alcohol and as such, he had mistakenly climbed onto the Seat No.46 instead of Seat No.35 in Coach No.S8, Cheran Express, where the victim was sleeping. Therefore, the appellant had absolutely no intention to insult the modesty of the victim. Only for the reason that thereafter, he had scolded the family members of the victim, a complaint was lodged as against the appellant. 13. In fact, the appellant is an Ex-Service man. Further, there is no evidence to show that the appellant had any intention to outrage the modesty of the victim, since the appellant did not have any knowledge that the victim was sleeping in Seat No.46 in Coach No.S8. Therefore, the prosecution failed to prove the charge for the offence under Section 509 of IPC.14. In view of the above, the impugned Judgment cannot be sustained Page 6 of 8 https://www.mhc.tn.gov.in/judis Crl.A.No.39 of 2023and is liable to be set aside. Accordingly, the Judgment passed against the appellant in Spl.SC.264 of 2019 dated 31.10.2022, on the file of the Principal Sessions Judge, POCSO at Salem Division, is hereby set aside. The appellant is acquitted of all charges in Spl.SC.264 of 2019, on the file of the Principal Sessions Judge, POCSO at Salem Division. The appellant is directed to be set at liberty forthwith unless his custody is otherwise required in connection with any other case. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed by the appellant shall stand cancelled.15. Accordingly, this Criminal Appeal stands allowed.05.06.2025Speaking order/Non-speaking orderIndex :Yes/NoInternet :Yes/NomnPage 7 of 8 https://www.mhc.tn.gov.in/judis Crl.A.No.39 of 2023G.K.ILANTHIRAIYAN, J.mn To1. The Principal Sessions Judge, POCSO at Salem Division.2. The Inspector of Police, Salem Junction Railway Police Station, Salem District.3. The Public Prosecutor, High Court, Madras.Crl.A.No.39 of 202305.06.2025Page 8 of 8