High Court · 2025

Crl.A.No.37 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 21.08.2025CORAM:THE HON`BLE MR.JUSTICE G.K.ILANTHIRAIYANCrl.A.No.37 of 2023Santhanakumar... Appellant ..Vs.State Rep.byThe Inspector of Police,All Women Police Station,PennagaramDharmapuri DistrictCr.No.09 of 2016 ... RespondentPrayer: This Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, to set aside the order of conviction imposed by a judgment dated 19.07.2022 made in Spl.S.C No.12 of 2017 on the file of the Fast Track Mahila Court, Dharmapuri, by allowing this criminal appeal. For Petitioner : Mr.Abdu Kumar Rajarathinam for Mr.M.GuruprasadFor Respondent : Mr.S.Raja Kumar Additional Public Prosecutor1/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023 O R D E RThis criminal appeal has been filed as against the judgment passed in Spl.S.C No.12 of 2017 on the file of the Fast Track Mahila Court, Dharmapuri, thereby convicted the appellant for the offence punishable under Section 6 of POCSO Act and 3(1)(w) (i) of SC/ST (Prevention of Atrocities) Act, 2015. 2. The case of the prosecution is that the victim girl was aged about 14 years and belonged to a schedule caste community. The accused is also residing in the same locality and the victim belongs to other community. While being so, in the month of May 2016, when the victim girl was grazing goats with her grand father, the accused came there and taken her into a sugarcane field situated near their residence at Belapalli to Thirumalvadi Road and committed penetrative sexual assault on the victim. Once again on 11.11.2016, at about 9.00 p.m., while the accused gave a signal to the victim to come to his thatched house, where the accused had committed penetrative sexual assault on her by force on two times. On the complaint, the respondent registered a FIR in Crime No.9 of 2016 for the offences punishable under Sections 5(l) read with Section 6 of POCSO Act and 506(i) IPC. After completion of 2/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023investigation, the investigation officer filed a final report for the charges under Section 5(l) r/w Section 6 of POCSO Act, 2012, 506(i) IPC and Section 3(1)(w)(i) SC/ST (Prevention of Atrocities) Act, 2015 and the same was taken cognizance by the trial Court and in order to bring home the charges, the prosecution had examined PW1 to PW23 and marked Ex.P1 to P17 and perused the M.O.1. On the side of the accused, no one was examined and no document was marked. On perusal of the oral and documentary evidence, the trial Court found the accused guilty for the offence punishable under Section 6 of POCSO Act and sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo 6 months simple imprisonment. Further, he was also convicted for the offence under Section 3(1)(w)(i) of SC/ST (Prevention of Atrocities) Act, 2015 and sentenced him to undergo 3 years rigorous imprisonment and to pay a fine of Rs.5000/-, in default to undergo 3 months simple imprisonment. Aggrieved by the same, present appeal is filed. 3. The learned senior counsel for the petitioner would submit that the prosecution has miserably failed to prove the penetrative sexual assault on the victim girl. Even according to the victim girl, she 3/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023deposed that some bad thing was committed by the appellant. She did not even whisper that the appellant had committed penetrative sexual assault on her. In fact, both fell in love and the victim girl voluntarily came to the appellant's house and committed such a bad thing. The bad thing would not amounts to penetrative sexual assault and as such, the charge under Section 6 of POCSO Act is not at all attracted as against the appellant. Immediately after the registration of the FIR, the victim girl was subjected for medical examination. The doctor, who examined the victim girl did not support the case of the prosecution, since there was no injury on the entire body of the victim girl including her genital part. She further opined that the victim girl did not subject for any sexual assault in the recent time. The learned counsel further submitted that the offence of SC/ST is also not attracted as against the appellant since both fell in love and thereafter, the parents of the appellant refused to get marry the victim girl. In support of this contention, he relied upon the judgment of the Hon'ble High Court, New Delhi in Crl.A.No.397 of 2024 in the case of Sahjan Ali Through Parokar Banu Khatun v. State through SHO PS Madhu Vihar, in which it was held as follows:“18. A plain reading of the above provisions would clearly show that in order to convict an accused 4/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023for offences under the above stated sections, it is essential for the prosecution to prove that the accused had committed physical/sexual acts such as penetration, insertion etc., upon the survivor. In the statement given by the survivor under Section 164 of CrPC before the ld. Metropolitan Magistrate, the survivor only states that the boy (Appellant) made 'samband' with her. However, the victim, in her subsequent statements, had categorically denied that there was any form of sexual assault on her. A perusal of the MLC shows that there are no external injuries on the victim. The terminology used in the MLC is not clear and the prosecution has not examined any medical expert/doctor to explain the MLC”.4. The learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court in SLP No.6367 of 2023 in the case of Dashrath Sahu v. State of Chhattisgarh, in which it has been held as follows:“10.In the said judgment, this Court dealt with a case involving offence under Section 3(2)(v) of the SC/ST Act. The language of Section 3(1)(xi) of the SC/ST Act is pari materia as the same also provides that the offence must be committed upon a person belonging to Scheduled 5/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023Castes or Scheduled Tribes with the intention that it was being done on the ground of caste”.Therefore, the appellant did not commit any offence on the ground of caste. Therefore, the entire conviction as against the appellant cannot be sustained and the same are liable to be set aside.5. Per contra, the learned Public Prosecutor submitted that the victim was examined as PW2 and she categorically deposed about the occurrence. In order to prove her age, the age certificate and the school admission register were produced before the trial Court and the same were marked as Ex.P7 and Ex.P17. She was aged 14 years at the time of occurrence and in order to prove her community, her community certificate was marked as Ex.P12. Her statement recorded under Section 164 of Cr.P.C was marked as Ex.P2. The evidence of PW2 and the statement recorded under Section 164(5) of Cr.P.C are clearly corroborated with each other and as such, the prosecution has proved the charges beyond any doubt. Hence, the trial Court had rightly convicted the appellant and it does not need any interference by this Court.6/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 20236. Heard the learned counsel on either side and perused the materials available on record.7. The victim girl was examined as PW2. The relevant portion of her deposition is as follows:“2016 nk khjk; ,t;thW ML nka;f;f brd;wnghJ vd;id miHj;J fUk;g[ njhl;lj;jpw;F brd;W vd;dplk; jtwhd Kiwapy; ele;Jbfhz;lhh;/ ,e;j bfLj;j tpc&aj;ij btspapy; ahhplKk; brhy;yf;TlhJ vd;W kpul;odhh;/ mjd; gpwF v';F ghh;j;jhYk; vd;dplk; ngRthh;/ 11/11/2016k; njjp ehd; v';fs; tPl;L thrypy; epd;W,Ue;jnghJ ifia mirj;J vd;id Tg;gpl;lhh;/ ehd; nghndd;/ re;jhdFkhh; epyj;jpy; xU bfhl;lha; cs;sJ/ m';F cl;fhh;e;J ,UtUk; ngrpf;bfhz;oUe;njhk;/ mg;nghJ vd; ghl;o vd;id fhztpy;iy vd;W njof;bfhz;L te;jhh;/ vd; ghl;o Kufts;sp vd;W miHj;jJ nfl;L re;jhd Fkhh; bfhl;lhia tpl;L btspna te;jhh;/ ehd; cs;ns ,Ue;njd;/ btspna te;j re;jhdFkhhplk; vd; ghl;o nfl;lnghJ ehd; ghh;f;ftpy;iy vd;W re;jhdFkhh; brhd;dhh;/ vd;Dila brUg;g[ btspapy; fplg;gij ghh;j;j vd; ghl;o Kufts;spapd; brUg;g[ ,';nf vg;go te;jJ vd;W nfl;lhh;/ mjw;F vdf;F bjhpahJ vd;W brhd;dhh;/ bfhl;laf;F cs;ns te;j re;jhdFkhh; vd;dplk; ,e;j rkak; eP btspna nghfntz;lhk; eP btspna nghdhy; ehd; khl;of;bfhs;ntd; vd;W kpul;odhh;/ mjdhy; md;W ,ut[[ KgtJk; bfhl;lhapy; jhd; ,Ue;njd;/ me;j rkak; vd;dplk; re;jhdFkhh; jg;ghd Kiwapy; ele;Jbfhz;lhh;/ kWehd; 12/11/2016k; njjp 11 kzpf;F vd; tPl;oy; bfhz;Lngha; vjphp tpl;lhh;/ vd; ghl;o kw;Wk; vd; bgw;nwhh; v';nf ,Ue;jha; vd;W nfl;lnghJ ehd; vjphpapd; bfhl;lhapy; ,Ue;jjhf brhd;ndd;/ ele;jij vy;yhk; brhd;ndd;/ vd;Dila vjphpapd; tPl;ow;F miHj;Jbrd;W bfl;Lg;nghd bgz;iz itj;J ehd; vd;d bra;tJ vd;W 7/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023nfl;lhh;/ mjw;F vjphpapd; bgw;nwhh;fs; vd; mg;ghtplk; kd;dpg;g[ nfl;lhh;fs;/ K:d;W ehl;fs; vd; jfg;gdhh; btspna bry;yhky; nfhgkhf tPl;oy; ,Ue;jhh;/ gpwF bgd;dhfuk; fhty;epiyaj;jpy; g[fhh; bfhLj;jhh;/ 8. It is clear that the petitioner had committed penetrative sexual assault on the minor victim girl. It is not the case of the prosecution that the victim girl fell in love with the appellant. The appellant utilized circumstances like the poverty and caste of the victim and he had exploited the victim girl for his sexual needs. From the above deposition, it is clear that the appellant had committed penetrative sexual assault on the victim girl. It cannot be said that the victim girl did not say that the appellant had committed penetrative sexual assault on her. The victim categorically deposed that the appellant had committed bad thing on her on several times. Therefore, this Court can easily understand that the appellant had committed penetrative sexual assault on her. In fact, after the occurrence, on 12.11.2016, the act committed by the appellant was questioned by the victim's parents and for which, the appellant's parents sought for apologize and the appellant informed the victim that his parents refused to get marry her. Therefore, the father of the victim girl sustained mental agony and lodged a complaint on 16.11.2016. Though there was a delay of 4 days, in the above 8/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023circumstances, the delay is not a fatal to the case of the prosecution. Since the victim girl was subjected for penetrative sexual assault, it will take time to come to a normal mental state. Only thereafter, the complaint was lodged before the respondent. 9. After registration of the FIR, the victim girl was subjected for medical examination on 16.11.2016 before PW16, doctor. She examined her and found that the victim girl hymen was not intact and no injury on her private part. PW16 issued a medical report which was marked as Ex.P9. It reveals that there was no evidence of external injuries by marks all over her body. Vaginal smear - did not detect spermatozoa in smear and Pubic hair clipping- did not detect semen. Further, there is no evidence of recent sexual intercourse. Admittedly, the victim girl was subjected for medical examination, after 5 days from the date of the occurrence. Therefore, there would not be any availability of semen. Further, the appellant after knowing that the victim girl belongs to a Schedule Caste Community and after knowing that there cannot be any says for their marriage, had exploited her community and poverty and committed penetrative sexual assault on her by saying sugar coated words. Though the victim girl consented for physical relationship, it 9/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023cannot be considered since she was aged about only 14 years minor at the time of occurrence. Therefore, her consent is immaterial. Therefore, the judgments relied upon by the learned senior counsel for the petitioner is not applicable to the case on hand. In fact, in the case dealt with by the High Court of Delhi, the victim girl deposed that the boy made 'samband' with her. Further, she also denied that there was any form of sexual assault on her. Therefore, the above judgment is completely on different footing and not applicable to the case on hand. Hence, the prosecution had categorically proved the charges and the trial Court had rightly convicted the appellant. In view of the same, this Court finds no infirmity or illegality in the judgment passed by the trial Court. 10. Accordingly, this Criminal Appeal is dismissed.21.08.2025Index:Yes/NoInternet:Yes/Nouma10/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023To1. The Fast Track Mahila Court, Dharmapuri, 2.The Inspector of Police,All Women Police Station,PennagaramDharmapuri District3. The Public Prosecutor, High Court of Madras, Chennai. 11/12 https://www.mhc.tn.gov.in/judis Crl.A.No.37 of 2023 G.K.ILANTHIRAIYAN,J umaCrl.A No.37 of 202321.08.202512/12