High Court · 2025

Crl.M.P.(MD)No.9752 of 2022BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.04.2025CORAMTHE HONOURABLE MR JUSTICE B.PUGALENDHICrl.M.P.(MD)No.9752 of 2022in Crl.A.(MD)No.512 of 2022Shanmugavel,S/o.Krishnan,Andankovil, Keelpagam,8th Cross Street,Karur District,Karur.Petitioner(s) versusThe State rep. byThe Inspector of Police,Karur Town Police Station,Karur District.Respondent(s) For Petitioner(s): Mr.E.Somasundaram, AdvocateFor Respondent(s): Mr.A.S.Abul Kalam Azad,Government Advocate (Crl. Side) ORDERThe petitioner is the sole accused in Spl.S.C.No.3 of 2022 on the file of thelearned Additional Sessions Judge (Fast Track Court), Karur. He was tried for theoffence under Section 366 IPC and Section 6 of POCSO Act. In conclusion of trial, theTrial Court, by its Judgment dated 29.03.2022, found the petitioner guilty for theoffence under Section 366 IPC and Section 6 of POCSO Act and convicted andsentenced him as under:1/6 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.9752 of 2022(i) for the offence under Section 366 IPC, to undergo 10 years rigorousimprisonment and to pay a fine of Rs.1,000/- in default to undergo one year simpleimprisonment;(ii) for the offence under Section 6 of POCSO Act, to undergo 20 years rigorousimprisonment and to pay a fine of Rs.1,000/- in default to undergo one year simpleimprisonment. Challenging the Judgment of conviction and sentence, the petitioner haspreferred an appeal in Crl.A.(MD)No.512 of 2022 and the same has been admitted bythis Court on 08.09.2022. The petitioner has also moved this petition to suspend thesentence imposed by the trial Court. 2. The petitioner is a washerman. The allegation is that the petitioner said tohave committed aggravated penetrative sexual assault on the victim boy/P.W.3.Therefore, the petitioner was prosecuted for the offence under Section 366 IPC andSection 6 of POCSO Act and was found guilty and convicted and sentenced as statedabove. 3. The learned counsel appearing for the petitioner submits that the allegedoccurrence had taken place on 19.09.2021, for which, a complaint was lodged on28.09.2021. The case of the prosecution is that there was a penetrative sexual assaulton the victim boy. However, the victim boy was produced before the Hospital only2/6 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.9752 of 2022after the complaint on 28.09.2021. The Doctor/P.W.4, who examined the victim boy,has stated that there is no external injury on the victim boy. The learned counsel hasalso relied on the evidence of P.W.1 and P.W.2, the parents of the victim boy andsubmits that according to P.W.1, the father of the victim boy, he was taken to anearby hospital, namely, Nandhini Hospital, on the next day. However, the samewas disputed by P.W.2, the mother of the victim boy that the victim boy was taken tothe Karur Medical College and Hospital. The victim boy has also stated that he wastaken to the Karur Medical College and Hospital. However, the Doctors, whoexamined the victim boy either at Nandhini Hospital or Karur Medical College andHospital were not examined by the Investigating Officer. Apart from the evidence ofP.W.1, P.W.2 and P.W.3, the prosecution has also examined P.W.6, a neighbour to thepetitioner. According to P.W.6, she only witnessed the occurrence and reported thesame to P.W.2, the mother of the victim boy. However, this fact has not been referredby P.W.1 in his complaint, which was lodged after 9 days from the date of occurrence.Since the petitioner is in jail from the date of conviction, i.e. from 29.03.2022, he praysto suspend the sentence imposed by the trial Court.4. The learned Government Advocate (Crl. Side) submits that the FIR is not anencyclopaedia. Therefore, the non-referrence of P.W.6 in the FIR is not fatal to thecase of the prosecution. However, it was mentioned that the neighbours have3/6 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.9752 of 2022rescued the victim boy on that day. The learned Government Advocate furthersubmits that the surgeon, who examined the victim boy, has noted that there was asimple injury on the victim boy. The learned Government Advocate further submitsthat the presumption is against the accused. Therefore, the conviction and sentenceimposed by the trial Court need not be interferred with. 5. The occurrence had taken place on 09.09.2021. It is alleged that the petitionerhas committed aggravated penetrative sexual assault on the victim boy. The case ofthe prosecution is that the victim boy also suffered an injury with ousting of blood.However, he was not immediately taken to any of the Hospitals. Further, there wasno explanation as to whether any treatment was provided to the victim boyimmediate to the occurrence. 6. The petitioner has raised certain arguable points, which can be consideredonly during the final hearing of the appeal. However the appeal could not be takenup for final hearing for want of time. Considering the points raised by the petitioner,his period of incarceration and for the reasons that the appeal could not be taken upimmediately, this Court is inclined to allow this petition. 7. Accordingly, the substantive sentence of imprisonment alone is suspendedpending disposal of the criminal appeal and the petitioner is ordered to be enlargedon bail on the following conditions:4/6 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.9752 of 2022(i) The petitioner shall execute a bond for Rs.25,000/- (Rupees Twenty FiveThousand only) with two sureties each for a like sum to the satisfaction of the learnedAdditional Sessions Judge (Fast Track Mahila Court), Karur;(ii) The petitioner shall file an undertaking affidavit before the respondent thathe will not visit the village of the victim boy till the disposal of the appeal and willnot disturb the victim boy at any point of time.(iii) the petitioner shall stay at Tiruppur and report before the Inspector ofPolice, Tiruppur Town Police Station, Tiruppur, daily at 10.30 a.m. for a period of onemonth and thereafter, report before the trial Court once in a month, i.e. on the firstworking day of every English Calender month at 10.30 a.m., till the disposal of theappeal. sd/- 16/04/2025/ TRUE COPY / 16/04/2025 Sub-Assistant Registrar Madurai Bench of Madras High Court, Madurai - 625 023. OGYTO1. THE ADDITIONAL SESSIONS JUDGE (FAST TRACK MAHILA COURT), KARUR;5/6 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.9752 of 20222. THE SUPERINTENDENT, CENTRAL PRISON, TRICHY.3. THE INSPECTOR OF POLICE, KARUR TOWN POLICE STATION, KARUR DISTRICT.4. THE INSPECTOR OF POLICE, TIRUPPUR TOWN POLICE STATION, TIRUPPUR,5. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1 CC to M/s.E.SOMASUNDARAM, Advocate ( SR-4309[I] dated 16/04/2025 ) ORDER IN Crl.M.P.(MD)No.9752 of 2022in Crl.A.(MD)No.512 of 2022 Date :16/04/2025RS//SAR-(16.04.2025) 6P 7CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/20236/6