Ganesh vs The State
2022 Latest Caselaw 6489 Mad

                                                                                  Crl.A.No.122 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 30.03.2022

                                                          CORAM:

                                  THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                                 Crl.A.No.122 of 2017

                     Ganesh,
                     S/o. Mohanraj                                            ... Appellant
                                                           V/s.

                     The State, represented by
                     Inspector of Police,
                     All Women Police Station,
                     Arakonam,
                     Vellore District.
                     (Crime No.10 of 2015)                                    ... Respondent



                     PRAYER: The Criminal Appeal is filed under Section 374 of Cr.P.C, to set
                     aside the conviction and sentence imposed in Spl.S.C.No.1 of 2016 dated
                     07.02.2017 on the file of Sessions Judge, Magilir Neethimandram, (Fast
                     Track Mahila Court) Vellore and set aside the same as illegal.


                                          For Appellant       : Mr.Sankarasubbu

                                          For Respondent      : Mr.R.Krishnakumar
                                                                Government Advocate




                     1/12

https://www.mhc.tn.gov.in/judis
                                                                                       Crl.A.No.122 of 2017

                                                       JUDGMENT

The appellant A1 in Spl.S.C.No.1 of 2016 was convicted by the trial

Court for the offence under Section 6, r/w.5(1) of POCSO Act and

sentenced to undergo Rigorous Imprisonment for ten (10) years and to pay a

fine of Rs.50,000/- in default to undergo one (1) year Simple Imprisonment,

against which, he has filed an appeal.

2.The appellant along with his mother, father and sister were tried by

the trial Court for the offence under section 6 r/w, 5(1) of POSCO Act,

506(ii), 341, 294-b, and 352 I.P.C. During trial, P.W.1 to P.W.7 were

examined and Ex.P.1 to Ex.P.9 marked. On the side of the defence DW1

was examined and Ex.D1 marked. The trial Court on conclusion of the trial

had acquitted A2 to A4.

3.Gist of the case is that the P.W.2 is the victim in this case. P.W.1.

the father of P.W.2 had lodged a complaint stating that his minor daughter

who was studying class XII at Kaveripakkam Government Girls Higher

Secondary School, had love affair with the appellant who is his neighbour.

This love affair was not known to anyone except the appellant and the

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victim. Taking advantage of the love relationship, the appellant forcibly

taken the victim to a nearby isolated place near the oil machine and sexually

abused her. This abuse continued in the house of the appellant as well as in

the house of the victim. On 1st May 2015, when the schools were closed for

vacation, the appellant took the victim to Rathinagiri temple and taken her

to the isolated place and again committed sexual assault on her and their

relationship continued from 16.01.2014 to 01.05.2015. The appellant

promised to marry the victim and sexually assaulted her and thereafter

deceived her. When the victim insisted for marriage, the appellant informed

that he would be marrying his uncle's daughter and not the victim. The

victim informed the same to her mother and later to her father. When they

questioned the accused and his family, they used abusive words and

threatened them and also attacked the victim's family on 21.07.2015, when

P.W.1 was proceeding to lodge a complaint with All Women Police Station,

Arakonam, P.W.1 and others were restrained, abused and assaulted. On

receipt of complaint, P.W.6 registered F.I.R and thereafter P.W.7 took up

investigation, examined P.W.1 to P.W.4, arrested the accused, subjected

both the accused and the victim for medical examination. Thereafter

statement under Section 164 Cr.P.C was recorded by the learned Judicial

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Magistrate, Walajapet. On completion of investigation, final report filed

before the trial Court. On completion of trial, the trial Court found the

accused / appellant guilty as stated above.

4.The contention of the appellant is that both the appellant and the

victim belong to same social status and community, they are neighbours.

They were in love with each other for quite sometime. The victim was

madly in love with the appellant and forced the appellant to inform his

parents immediately about their love affair and conduct marriage, which the

appellant resisted and not inclined at that time. P.W.2, on her own assumed

that the appellant was evading the marriage and disowning her, informed

her parents hastily. Hence, P.W.1 lodged a complaint, made a big issue in

the village. The appellant's family was abused and got hurt and initially

resisted the complaint.

5.P.W.1 admits that he is not an educated person and he does not

know to read and write except to affix his signature. The victim in this case

had no birth certificate, the school certificate Ex.P2 showing the date of

birth as 16.07.1999 is not correct. Admittedly, in this case, the school

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authorities who issued Ex.P.2 not examined as witness, the age of the

victim not conclusively proved. The victim admits in her evidence about the

love relationship between the victim and the appellant and she informed her

parents about her affair when she doubted the appellant disowning her and

refusing to marry her. P.W.1 and P.W.2 admit that P.W.2 used to go to

school by cycle daily, quite a distance. Hereby the possibility of Hymen tear

occurs.

6.The Doctor viz. P.W.5, who examined the victim issued Ex.P.4

Medical certificate admits that due to regular cycling, chances of hymen

tear may occur. She further opined stating “no definite opinion could be

given about the virginity and sexual intercourse due to long duration

between the examination and sexual intercourse”. Thus, in this case, the

medical evidence confirming the sexual assault and the confirmation of the

age of the victim, not conclusively proved in the manner known to law.

7.The Investigating officer viz. P.W.7 admits that no ossification test

was conducted, despite the victim has no birth certificate, further no school

authorities been examined in this case to confirm Ex.P.2 viz. The Transfer

https://www.mhc.tn.gov.in/judis Crl.A.No.122 of 2017

Certificate Ex.P.2 which was marked through P.W.1 is not appropriate. He

further submitted that P.W.7, the investigating officer admits that he had

neither taken steps to conduct any Ossification test nor obtained Radiology

report, dentist report to confirm the age of the victim. It is an admitted fact

that the victim's parents were uneducated and the school authorities on their

own filled up the date of birth according to their convenience and hence the

age of the victim was not conclusively proved. These vital factors were not

considered by the trial Court. He further submitted that during the

admission of appeal, the victim's parents have arrived at an understanding

at the instance of the villagers and elders accepted to conduct the marriage

of the victim at the appropriate age. Both had agreed to solemnize the

marriage. This Court considering the same, had suspended conviction of the

petitioner in Crl.M.P.No.3526 of 2017 vide order dated 05.07.2017. There

was also a compromise deed entered between both the families in the

presence of villagers and elders on 23.03.2017, whereby it was agreed to

conduct the marriage and to withdraw the case against the appellant, if

necessary, to appear before the concerned Court and authorities to confirm

the compromise. He further submitted that after the appellant was granted

bail, on 15.09.2017 the marriage between the appellant and the victim taken

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place at, Srirama Bajanai Thirumana Mandapam, Walajapet. Both the

families jointly invited everyone for the marriage function and the marriage

was conducted with everyone's participation, blessings and wishes. After

that on 02.11.2017, the marriage was registered in Reg.No.210 of 2017

before the S.R.O Walajapet. Out of wedlock, the appellant and the victim

P.W.2 have two children born to them namely G.Haritha born on

07.02.2020 and G.Dhanyasri born on 19.08.2021 both at Government

Medical College Hospital, Vellore. In support of the same, he produced

compromise deed, marriage invitation, marriage registration certificate and

the birth certificates of their children. Both the appellant and the victim

along with their parents appeared before the Court.

8.Learned Government Advocate submits that at the time of offence,

the victim was a minor. Now, the marriage between the victim and the

appellant performed and they have two children which is not disputed.

They are living as husband and wife happily which is also not in dispute.

Before the trial Court, P.W.1 the father, P.W.2 the victim, both had stated

about appellant having physical relationship with the victim when she was

minor on the promise of marriage, later resiled from his promise, hence, a

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case came to be registered. The Doctor, though was not certain about the

time and manner of rupture in hymen, in other aspects, she confirms the

sexual assault made on the victim. The trial Court considering all these

aspects has rightly convicted the appellant and now the victim and the

appellant are living happily as husband and wife with two infants. Both the

families hail from the same social status and they are neighbors and they are

living happily.

9.Considering the rival submissions and perusal of materials, this

Court finds P.W.1 is the father of the victim who lodged the complaint

Ex.P.1 through him Ex.P2 Transfer Certificate marked. P.W.1 admits that

he is uneducated person, does not know to read and write. P.W.2, the minor

victim girl had given herself to the appellant due to the love affair and

promise of marriage. Later, when the appellant refused to marry, she

informed her parents and the complaint registered. Now, the victim and

the appellant are living together having two infants born out of their

marriage, the appellant is the only bread winner in his family and they are

sustaining themselves with his income. The victim, who was present before

the Court in categorical terms submitted that in the event is the appellant

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suffers incarceration, she and her two infants would be left in street without

any support and the future of their children would become questionable one.

They would be subjected to untold sufferings and misery.

10.In this case. it is not in dispute that the victim has got no birth

certificate, her age is decided based on Ex.P.2. Transfer Certificate which is

marked through P.W.1. Admittedly, in this case no school authorities

examined, likewise, P.W.5 the Doctor who examined the victim opined that

she cannot confirm whether rupture in hymen was due to sexual assault or

cycling. P.W.2 riding a cycle daily to school is an admitted fact. It is a

known fact that cyclist and Sports person are prone Hymen tear.

11.Be that as it may. Today, before this Court, the appellant and the

victim along with their children and parents appeared and confirmed the

compromise and also reiterated that they are living happily as husband and

wife with their children. There is no much difference between them both in

economic and social status, the conviction would do more harm to the

victim and her children than doing good. The welfare of the victim and two

infants are the paramount consideration.

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12.This Court in the case of “Sabari Vs. Inspector of Police reported

in 2019(2) MLJ Crl.110”, had observed that during the adolescent age,

boys and girls got involved in a relationship, such relationship would be the

result of mutual innocence and biological attraction, which cannot be

construed as an unnatural one or alien to between relationship of opposite

sexes.

13.In a similar situation in the case of “Kumar @ Tennish Vs. The

Inspector of Police, Latheri Police Station, Katpadi Taluk, Vellore and

another in Crl.O.P.No.16648 of 2018”, this Court had quashed the

proceedings on the compromise arrived between the accused and defacto

complainant.

14.Considering the facts and circumstances of the case and in the

right of the above directions, it could be seen that during the adolescent age,

boys and girls got involved in a relationship, such relationship would be the

result of mutual innocence and biological attraction. This Court in a similar

situation, quashes the FIR as well as the proceedings against the accused in

several cases. The same analogy can be follwed herewith.

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15.In view of the same, this Court is inclined to accept the contention

of the appellant and the victim by allowing the appeal.

16.In the result, the criminal appeal is allowed and the impugned

judgment of conviction and sentence imposed on the appellant / accused by

the trial Court in Spl.C.C.No.01 of 2016 vide Judgment dated 07.02.2017

are hereby set aside. The appellant / accused is acquitted from all charges

levelled against him. Fine amount, if any paid, shall be refunded to him.

30.03.2022

Index : Yes/No Internet:Yes/No Speaking / Non Speaking order

To The Sessions Judge, Magilir Neethimandram, (Fast Track Mahila Court) Vellore

https://www.mhc.tn.gov.in/judis Crl.A.No.122 of 2017

M.NIRMAL KUMAR,J.

kas/dk

Crl.A.No.122 of 2017

30.03.2022

https://www.mhc.tn.gov.in/judis