High Court · 2025

Crl.M.P.(MD)No.6348 of 2024BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24-02-2025CORAMTHE HONOURABLE MR JUSTICE B.PUGALENDHICrl.M.P.(MD)No.6348 of 2024in Crl.A.(MD)No.542 of 2024VeerapandiS/o.Ramesh, Kaliyammankovil Street, Adanjur, Budalur Taluk, Thanjavur District. Petitioner(s) VsThe Inspector of PoliceAll Women Police Station, Thiruvaiyaru, Thanjavur District. Respondent(s) For Petitioner(s): Mr.D.Rameshkumar,Advocate For Respondent(s): Mr.P.Kottaichamy,Government Advocate (Crl. Side) ORDERThe petitioner is an accused in Spl.S.C.No.101 of 2022 on the file of the learnedSessions Judge, Principal Special Court for Exclusive Trial of cases under POCSO Act,1/7 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.6348 of 2024Thanjavur. After the trial, the trial Court, by its Judgment dated 22.08.2023, found thepetitioner guilty for the offence under Section 6 of POCSO Act and convicted andsentenced him as follows:(i) for the offence under Section 6 of POCSO Act, to undergo 20 years rigorousimprisonment and to pay a fine of Rs.20,000/-, with the default sentence of one yearrigorous imprisonment. Challenging the Judgment of conviction and sentence, the petitioner has preferred anappeal in Crl.A.(MD)No.542 of 2024 along with the petition for suspension ofsentence. The Criminal Appeal was admitted by this Court on 25.06.2024.2. The learned counsel appearing for the petitioner submits that the age of thevictim girl was more than 18 years at the time of occurrence. But, the prosecution hasfiled to prove the age of the victim girl by adducing proper evidence and they haveproduced the course certificate given by the Headmistress of the School that wastaken into consideration that the age of the victim girl was 17 ½ years and the trialCourt has convicted the petitioner under Section 6 of the POCSO Act. The learnedcounsel, by relying on a Judgment of the Division Bench of this Court in Crl.A.(MD)No.518 of 2019 dated 18.10.2022, submits that the document relied on by theprosecution is not a document, based on which, it cannot be considered that the ageof the victim girl has been proved. The relevant paragraph of the said Judgment is2/7 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.6348 of 2024extracted as under:“10. It is now a settled law that insofar as ascertaining the age ofthe minor girl, there is no procedure under the POCSO Act and hence,only the procedure prescribed under the Juvenile Justice (Care andProtection of Children) Rules, 2007, has to be followed. The law on thisissue was settled by the Division Bench of this Court in SubramaniamVs. The State reported in 2016(4) MLJ (Crl.) 385. 11. Rule 12 (3) of the Juvenile Justice (Care and Protection ofChildren) Rules, 2007 (hereinafter referred to as the Rules) reads asunder : “12. Procedure to be followed in determination of Age.:- (1) xxxxx (2) xxxxx (3) In every case concerning a child or juvenile in conflictwith law, the age determination inquiry shall be conducted by thecourt or the Board or, as the case may be, the Committee byseeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available;and in the absence whereof; 3/7 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.6348 of 2024(ii) the date of birth certificate from the school (other than aplay school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or amunicipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause(a) above, the medical opinion will be sought from a dulyconstituted Medical Board, which will declare the age of thejuvenile or child. In case exact assessment of the age cannot bedone, the Court or the Board or, as the case may be, theCommittee, for the reasons to be recorded by them, may, ifconsidered necessary, give benefit to the child or juvenile byconsidering his/her age on lower side within the margin of oneyear. and, while passing orders in such case shall, after taking intoconsideration such evidence as may be available, or the medicalopinion, as the case may be, record a finding in respect of his ageand either of the evidence specified in any of the clauses (a)(i), (ii),(iii) or in the absence whereof, clause (b) shall be the conclusiveproof of the age as regards such child or the juvenile in conflict4/7 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.6348 of 2024with law.12. It is clear from the aforesaid provision that the option that isavailable in the preceding clause will over-ride the option expressed inthe subsequent clause. 13. The prosecution has not complied with the procedureprescribed under Rule 12(3) (a) and has straight-away resorted for theoption provided for medical opinion under Rule 12(3) (b) of the Rules.”4. The learned Government Advocate (Crl. Side) by referring the evidence ofP.W.5, the Headmistress of the School, submits that the course certificate relied on bythe prosecution has been issued by the Headmistress of the School based on the birthCertificate. 5. This Court considered the rival submissions and perused the materials placedon record. 6. Admittedly, the victim girl is having a birth certificate. The course certificaterelied on by the prosecution has been purported to be issued based on the birthcertificate. However, the prosecution failed to collect the birth certificate and producethe same before the Court. 7. Considering the period of incarceration and since the petitioner is havingarguable points in this appeal and there is no likelihood of listing the criminal appeal5/7 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.6348 of 2024for final hearing in the near future, this Court is inclined to suspend the sentenceimposed on the petitioner. 8. Accordingly, the substantive sentence of imprisonment alone is suspendedpending disposal of the criminal appeal and the petitioner is ordered to be enlargedon bail on executing a bond for Rs.25,000/- (Rupees Twenty Five Thousand only)with two sureties each for a like sum to the satisfaction of the learned SessionsJudge, Principal Special Court for Exclusive Trial of cases under POCSO Act,Thanjavur and on further condition that the petitioner shall appear before the saidCourt on the first working day of every English Calender month at 10.30 a.m., till thedisposal of the appeal. sd/- 24/02/2025 / TRUE COPY / /02/2025 Sub-Assistant Registrar ( C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023. OGYTO1 THE SESSIONS JUDGE, PRINCIPAL SPECIAL COURT FOR EXCLUSIVE TRIAL OF CASES UNDER POCSO ACT, THANJAVUR2 THE SUPERINTENDENT,CENTRAL PRISON, TRICHY.6/7 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.6348 of 20243 THE INSPECTOR OF POLICEALL WOMEN POLICE STATION, THIRUVAIYARU, THANJAVUR DISTRICT. 4 THE ADDITIONAL PUBLIC PROSECUTOR,MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1 CC to M/s.M.RAMESHKUMAR, Advocate ( SR-1997[I] dated 24/02/2025 ) ORDER IN Crl.M.P.(MD)No.6348 of 2024in Crl.A.(MD)No.542 of 2024 Date :24/02/2025SA/SAR. /24.02.2025/7P/6CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023. 7/7