Madras High Court
Anandraj vs State By on 2 March, 2022
Crl.A. No.370 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2022
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
Crl.A. No.370 of 2018
1.Anandraj
2.Udayamoorthy
3.Rajavalli .. Appellants
vs.
State by
Inspector of Police,
Sethiathoppu Police Station,
Cuddalore District. .. Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C. against the
sentence and order passed in Spl.S.C.No.29 of 2017 dated 05.06.2018
by the Mahila Court, Cuddalore.
For Appellants .. Mr.V.Sivaraman
for Mr.K.Balu for A1
Mr.R.Thamaraiselvan
for A2 and A3
For Respondent .. Mr.M.Babu Muthumeeran,
Addl. Public Prosecutor
1/14
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
JUDGMENT
(Judgment of the Court was delivered by P.N.PRAKASH, J)
This criminal appeal is directed against the judgment and order
dated 05.06.2018 passed in Spl. S.C. No.29 of 2017 on the file of the
Sessions Court (Mahila Court), Cuddalore, in and by which, the
appellants herein, who have been arrayed as A1, A2 and A4, were
convicted and sentenced as under:
(i) A1 is convicted for the offence under Section 366 IPC
and Section 6 of the Protection of Children from Sexual Offences
Act, 2012 (for brevity “the POCSO Act”); for the offence under
Section 366 IPC, A1 is sentenced to undergo rigorous
imprisonment for a period of three years and to pay a fine of
Rs.5,000/-, in default, to undergo simple imprisonment for a
period of one year; for the offence under Section 6 of the
POCSO Act, A1 is sentenced to undergo rigorous imprisonment
for a period of fifteen years and to pay a fine of Rs.50,000/-, in
default, to undergo simple imprisonment for a period of three
years.
(ii) A2 is convicted the offence under Section 366-A IPC
and Section 6 r/w 17 of the POCSO Act; for the offence under
Section 366-A IPC, A2 is sentenced to undergo rigorous
imprisonment for a period of two years and to pay a fine of
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
Rs.2,000/-, in default, to undergo simple imprisonment for a
period of six months; for the offence under Section 6 r/w 17 of
the POCSO Act, A2 is sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
Rs.25,000/-, in default, to undergo simple imprisonment for a
period of one year.
(iii) A4 is convicted for the offence under Section 6 r/w 17
of the POCSO Act and sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
Rs.10,000/-, in default, to undergo simple imprisonment for a
period of six months.
2. The prosecution story runs thus:
2.1 The victim girl "X" (P.W.2) is the daughter of P.W.1. Her
date of birth is 31.07.2000. She is a native of Allur village in
Chidambaram Taluk. She was studying in 10th standard in the year
2015 in a school in Parangipet. A1, A2 and A3 are also from the same
village and they were known to the family of "X". A1 and "X" were in
love with each other and they both were found talking to each other
very frequently in the village river bed. On one occasion, "X's" mother
saw both of them together and chided her daughter and asked her not
to move with A1. When "X" informed this to A1, he asked "X" to come
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
to the river bed on 03.05.2015 at 7 in the evening and accordingly she
went there. A1 and A2 were there waiting for her in a motorbike.
When "X" told A1 that her mother is not allowing her to speak to him,
he appears to have told "X" that her mother should be taught a lesson
by staying away for two days. Accordingly, "X" got into the motorbike
of A2 along with A1 and all of them went to Kaikalar Kuppam village to
the house of A4. A4 is a distant relative of A1. On seeing A1 with a
girl, A4 asked A1 to send the girl away. However, A1 appears to have
told A4 that he wants to stay only for two days and asked for
accommodation. A4 did not agree to it but A4 left her house and went
elsewhere. A2 also left A1 and "X" in the house of A4 and went away.
2.2 On 04.05.2015, A1 is said to have tied a thali around the
neck of "X" saying that he is marrying her. Thereafter, A1 took a house
for rent in Kaikalar Kuppam village belonging to Selvam (P.W.8) and
lived with "X" as husband and wife. In the meanwhile, on the
complaint given by P.W.1 that her daughter has gone missing,
Sethiathope police registered a case in Sethiathope P.S. Crime No.102
of 2015 on 04.05.2015 at 21.00 hours for 'girl missing' and prepared
the Printed FIR (Ex.P6).
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
2.3 In the complaint, P.W.1 has stated that he suspects the
involvement of A1 in the case. While the police were looking out for
"X", P.W.1 filed a HCP in the High Court for the production of "X". On
01.07.2015, "X" was secured by the police and a statement under
Section 164 Cr.P.C. was recorded. The case was altered from one of
'girl missing' to the offence under Sections 366-A IPC and Sections 3
and 4 of POCSO Act. Medical examination and age determination of "X"
was done by Dr.Parameswari (P.W.6), who in her opinion, has stated
that the age of "X" would be between 14 and 16 vide Ex.P4. As
regards sexual examination, the report (Ex.P4) states as follows:
Opinion:
I am of the opinion that
1.Age as per radiologist opinion appears to be
between 14-16 yrs of age.
2.No. Hymen is not intact.
3.No. There is no evidence of any external injuries
anywhere in the body.
For the following reasons:
1.Presence of spermatozoa or
semen in the vagina .. No evidence of single
spermatozoa seen either
motile or non-motile in
both wet or stained
preparation.
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
2.Presence of injuries on genitals .. No injuries of genitals
3.Presence of marks of violence on
other parts of body .. No marks of violence on
other parts of body.
2.4 A1 was arrested by the police on 01.07.2015 by Alice Mary
(P.W.11) and he was subjected to medical examination by Dr.Sampath
Kumar (P.W.7), who in his evidence as well in his report (Ex.P5) has
stated as follows:
I am of the opinion that there is nothing to suggest
that the above examined individual is impotent.
2.5 During the course of investigation, the involvement of A2, A3
and A4 came to light and after completing the investigation, the police
filed a final report in the Special Court for POCSO Act cases in Special
S.C.No.29 of 2017 against A1, A2, A3 and A4.
2.6 On the appearance of the accused A1 to A4, the provisions of
Section 207 Cr.P.C. were complied with and the Trial Court framed the
following charges against them:
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
A1 - Section 366 IPC, Section 9 of the Prohibition of
Child Marriage Act and Section 6 of POCSO Act,
A2 - Section 366-A IPC and Section 6 r/w 17
of POCSO Act, 2012
A3 - Section 6 r/w 17 of POCSO Act
A4 - Section 6 r/w 17 of POCSO Act
When questioned, the accused pleaded not guilty.
2.7 To prove the case, the prosecution examined 11 witnesses
and marked 14 exhibits.
2.8 When the accused were questioned under Section 313 Cr.P.C.
on the incriminating circumstances appearing against them, they
denied the same. No witness was examined from the side of the
accused nor any document marked.
2.9 After considering the evidence on record and on hearing
either side, the Trial Court by judgment and order dated 05.06.2018 in
Special S.C. No.29 of 2017 acquitted A3 but convicted A1, A2 and A4
and sentenced them as under:
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
(i) A1 is convicted for the offence under Section 366 IPC and
Section 6 of the Protection of Children from Sexual Offences Act,
2012 (for brevity “the POCSO Act”); for the offence under
Section 366 IPC, A1 is sentenced to undergo rigorous
imprisonment for a period of three years and to pay a fine of
Rs.5,000/-, in default, to undergo simple imprisonment for a
period of one year; for the offence under Section 6 of the
POCSO Act, A1 is sentenced to undergo rigorous imprisonment
for a period of fifteen years and to pay a fine of Rs.50,000/-, in
default, to undergo simple imprisonment for a period of three
years.
(ii) A2 is convicted the offence under Section 366-A IPC
and Section 6 r/w 17 of the POCSO Act; for the offence under
Section 366-A IPC, A2 is sentenced to undergo rigorous
imprisonment for a period of two years and to pay a fine of
Rs.2,000/-, in default, to undergo simple imprisonment for a
period of six months; for the offence under Section 6 r/w 17 of
the POCSO Act, A2 is sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
Rs.25,000/-, in default, to undergo simple imprisonment for a
period of one year.
(iii) A4 is convicted for the offence under Section 6 r/w 17
of the POCSO Act and sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
Rs.10,000/-, in default, to undergo simple imprisonment for a
period of six months.
3. Challenging the conviction and sentence, A1, A2 and A4 are
before this Court.
4. Heard Mr.V.Sivaraman, learned counsel for the first appellant,
Mr.R.Thamaraiselvan, learned counsel for appellants 2 and 4 and
Mr.M.Babu Muthumeeran, learned Additional Public Prosecutor
appearing for the respondent.
5. The prosecution has proved the following facts beyond a
peradventure:
(i) Date of birth of victim girl "X" is 31.07.2000 and as
on 03.05.2015, she was 14 years 10 months and above.
She was studying in the 10th standard.
(ii) She went missing from 03.05.2015 to 01.07.2015.
6. The point for consideration is whether the evidence on record
is sufficient for confirming the conviction and sentence of the
appellants.
7. This Court carefully examined the evidence of victim girl "X".
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
In her evidence, she had stated that A1 used to talk to her frequently
which was not to the liking of her mother and when she told the above
to A1, he asked her to come at 7'o clock to the river bed on
03.05.2015. When she went there, A1 and A2 were there in a motor
bike; at that time, A1 told her "cd; mk;kh cd;id jpl;odh';fy;y. vd;
Tl te;J ,uz;L ehs; ,U/ mg;nghJjhd; c';fk;kht[f;F fc&;lk;
bjhpa[k;@; "X" agreed to that and went along with A1 to the house of
A4. "X" has further stated that when they went to the house of A4, A4
stated that ",e;j bgz;iz bfhz;Lngha; tpl;[email protected]; thereafter, A4
went elsewhere. It appears that A1 has used that opportunity to stay
in the house of A4 on that night.
8. It is also the evidence of "X" that A2 had also left the
company of A1 and "X". Thereafter, it is in the evidence of "X" that A1
took the house of Selvam (P.W.8) and they lived in that house and A1
had sex with her. She has further stated that on 01.07.2015, A1
brought her to Sethiathope Cross Street and police secured her. In the
statement under Section 164 Cr.P.C., "X" had not implicated A2 and
A4 at all. This has been confronted to her in her cross-examination.
Except the ipse dixit of "X" that she went to A4's house, there is no
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
other material. Even according to "X", A4 did not entertain them in her
house and after she had left the house on some other work, A1 and
"X" occupied the house.
9. Similarly, Panneerselvam (P.W.3) and Anjalidevi (P.W.4) in
their evidence had stated that they had seen only A1 and "X" together
in the river bed and not A2. It may be pertinent to state that "X" had
not revealed anything about the involvement of A2 in her earlier
statement to the Magistrate. In her statement, she had stated that she
was in love with A1 and gone on her own volition with A1 to A1's
aunt's house in Neyveli. Of course, the statement under Section 164
Cr.P.C. is not a substantive piece of evidence and can be used only for
corroboration or for contradiction. In this case, the defence has
contradicted the testimony of "X" with her 164 Cr.P.C. statement. Even
according to the testimony of "X", even assuming for a moment that
A2 was present at the river bed along with A1, A1 had taken "X"
stating that her mother should be taught a lesson by being away for
two days. Hence, we find no material to sustain the conviction of A2
and A4.
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
10. As regards A1, the fact remains that he had sex with "X" in
the house of Selvam (P.W.8.). Just because it was consensual, A1
cannot be absolved of the criminal liability for the reason that "X" was
a minor. Therefore, the 'consent' or 'no consent' is irrelevant in a
prosecution in POCSO Act.
11. In the result,
(i) The criminal appeal is partly allowed;
(ii) The conviction and sentence of Anandraj (A1) for the offence
under Section 366 IPC is confirmed;
(iii) The conviction of Anandraj (A1) under Section 6 of POCSO
Act is confirmed but the sentence is reduced from 15 years rigorous
imprisonment to 10 years rigorous imprisonment;
(iv) The Trial Court is directed to take steps to secure the
custody of Anandraj (A1) to undergo the remaining part of the
sentence;
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
(v) Udayamoorthy (A2) and Rajavalli (A4) are acquitted of all the
charges;
(vi) Fine amount, if any paid by Udayamoorthy (A2) and Rajavalli
(A4) shall be refunded to them; and
(vi) The bail bonds executed by Udayamoorthy (A2) and Rajavalli
(A4) shall stand cancelled.
[P.N.P., J] [A.A.N., J]
02.03.2022
mmi
To
1.The Inspector of Police,
Sethiathoppu Police Station,
Cuddalore District.
2.The Sessions Judge,
(Mailha Court), Cuddalore.
3.The Superintendent,
Central Prison, Cuddalore.
4.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.A. No.370 of 2018
P.N.PRAKASH, J
and
A.A.NAKKIRAN, J
mmi
Crl.A. No.370 of 2018
02.03.2022
https://www.mhc.tn.gov.in/judis
