Madras High Court

E.Nareshkumar vs State on 10 September, 2024

Author: N.Seshasayee

Bench: N.Seshasayee

                                                                                Crl.A.No.544 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                             Reserved on : 28.08.2024

                                            Pronounced on : 10.09.2024


                                        CORAM : JUSTICE N.SESHASAYEE

                                              Crl.A.No.544 of 2018


                E.Nareshkumar                                   .... Appellant / Accused

                                                    Vs


                State, represented by
                Inspector of Police
                W27 All Women Police Station
                Vadapalani
                Chennai - 600 026.
                [Cr.No.2/2015]                                  .... Respondent / Complainant



                Prayer : Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to call
                for the entire records pertaining to the judgment of conviction and sentence
                passed in Sessions Case No.183 of 2015 dated 02.08.2018 on the file of the
                Sessions Judge, Mahalir Neethimandram, Chennai for offences under Section
                363 IPC and Section 6 of POCSO Act, and to set aside the same, and acquit the
                appellant.




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                                                                               Crl.A.No.544 of 2018



                                   For Appellant        : Mr.S.Suresh

                                   For Respondent       : Dr.C.E.Pratap
                                                          Government Advocate (Crl. Side)
                                                          Assisted by Ms.J.R.Archana

                                                JUDGMENT

This appeal is preferred challenging the judgment convicting the appellant for

an offences under Sec. 363 of IPC and Section 6 of POCSO Act as well as

sentence imposed on him. The appellant was sentenced to 3 years rigorous

imprisonment and a fine of Rs.5,000/- in default six months simple

imprisonment for the offence under Section 363 of IPC, and 10 years rigorous

imprisonment and a fine of Rs.5,000/- in default six months simple

imprisonment for offence under Section 6 of the POCSO Act.

2. The case of the prosecution is that on 26.12.2014, the appellant had abducted

P.W.2, a minor girl of the de-facto complainant (PW1), and committed

penetrative offence on her. The complaint was promptly preferred by PW1,

following which Virugambakkam Police had registered a case as girl missing,

and the girl was secured only after about 1½ months. Pursuant to the

investigation, the investigating agency came to know that the appellant herein

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had abducted the victim girl and had physical relationship with her and

accordingly, the case came to be altered to one under Section 366-A of IPC and

Section 6 of POCSO Act.

3. Subsequently, FIR came to be transferred to All Women Police Station,

Vadapalani and the investigating officer concluded the investigation and laid the

final report.

4. Charges were duly framed against the appellant and during trial, the

prosecution produced PW1 to PW9 and also produced Exts.P1 to P15.

Statement under Section 164 Cr.P.C. of the victim was also recorded vide

Ext.P4 by the learned Judicial Magistrate. PW4 is the doctor who examined the

victim girl and she came out with her Ext.P6, Accident Register copy and

Ext.P7, Urine Report. Ext.P7 confirmed that the girl was conceived at that time.

5. On appreciating the evidence, the trial court found the appellant guilty and

slapped him with the sentence as stated in the opening paragraph. This

judgment of the trial Court is now under challenge.

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6. The learned counsel for the appellant made the following submissions :

a) A close reading of the testimony of PW2 (victim girl) reflects that she

had voluntarily left the custody of her mother PW1 and sought

comfort in the company of the appellant. Even according to the

prosecution, PW2 has crossed 17 years and couple of weeks at the

time of occurrence. Inasmuch as the girl has crossed 17 years, it may

have to be considered as a love affair between PW2 and the appellant.

And inasmuch as there has not been a rape but a consensual sex, the

entire prosecution case should have to be looked through a different

lens.

b) The fulcrum of the prosecution case is that the girl was barely 17

years and 2 months. To prove the same, the prosecution has merely

filed Ext.P2, transfer certificate and also Ext.P3 SSLC score card of

PW2. However, in terms of the ratio of the Hon'ble Supreme Court in

P.Yuvaprakash Vs State Rep. by Inspector of Police [2023 SCC

OnLine 846], the date of birth as given in the mark sheet or transfer

certificate is not conclusive. In order to establish the age of the girl,

Ext.P2 and Ext.P3 are unreliable. The only reliable material which

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the Hon'ble Apex Court approved is either the birth certificate or the

radiologist report. This authority was later followed by another

learned single Judge of this Court in Sujithkumar @ Sonaimuthu Vs

State, rep by the Inspector of Police (order dated 19.01.2024 in

Crl.A.(MD) No.394 of 2022).

7. Per contra, the learned Prosecutor submitted that on the issue of age, neither

PW1 nor PW2 were cross-examined. However, he made a fair statement that

the case as projected by PW2 only projects the case of elopement. He, however

added that PW2, the victim girl was not cross-examined, which necessarily goes

to establish that her conception, which PW2 attributes to the appellant, goes

unchallenged.

8. This Court carefully perused the evidence of PW2 as well as Ext.P-4 her

statement under Sec.164 Cr.P.C. They both make it evident that it was a case

of a few years old love affair between PW2 and the appellant, and that she had

even shared it with her father few months before her elopement with the

appellant. And, in her statement which P.W.2 had given voluntarily and

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recorded under Sec.164 Cr.P.C., she (P.W.2) had stated that it was she who

had represented to the appellant that she had attained majority, and that she

could marry. It was very obvious to this Court that P.W.2 and the appellant had

been loving and had planned an elopement, not because the accused forced his

will on the girl, but because the girl induced the appellant to marry her.

Turning to her deposition P.W.2's testimony during trial does not show any

marked deviation from her earlier statement (Ext.P4) recorded under Sec.164

Cr.P.C. except that she did not depose about the representation on her age, a

fact she had made only in her statement under Sec.164 Cr.P.C.

9. But how far this court can rely on the statement of P.W.2 made under

Sec.164 Cr.PC? To render the prosecution case suspect, an accused is entitled

to rely on any materials which the prosecution has produced which are

favourable to him during trial. See: Manoj and Others Vs State of Madhya

Pradesh [(2023) 2 SCC 353]. In every prosecution, the liberty of the person

who faces an accusation of committing a crime is in stake, and it is therefore

necessary that an accused is granted optimum access to any material that could

secure to him his fundamental right to liberty. A statement under Sec.164

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Cr.P.C. recorded during investigation is not conclusive enough to convict an

accused since its evidentiary utility is no more than an earlier statement of a

witness, and hence can only be used either to corroborate or contradict the

subsequent testimony of the witness during trial. However, when a statement is

given before a Judicial Magistrate under Sec.164 Cr.P.C. by a victim freely and

voluntarily, and if that statement throws a possibility to hold the accused person

innocent, necessarily the accused is entitled to rely on it. It may be that P.W.2

was not cross examined with reference to her earlier statement made under

Sec.164 Cr.P.C. but it should be underscored that it is a document which the

prosecution relies on. When an evidence or material gathered during

investigation contains an information which has the potential to deflect the

needle of suspicion pointed towards the accused, then the dictum in Manoj

case [(2023) 2 SCC 353] enables the accused to place reliance on it for

defending the charge. To state it differently, while the statement under Sec.164

Cr.P.C. cannot be treated as a stand alone evidence on the basis of which an

accused could be convicted, still, the accused can take advantage of it if it aids

in protecting his liberty.

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10. To re-emphasis the statement of P.W.2 recorded under Sec.164 Cr.P.C., it

only discloses that the appellant was seen to have been induced by P.W.2 to

marry her, and it is not the other way round. This is critical. When a boy and a

girl love, they look to the hearts and not to the birth certificates. But do people

love with a birth certificate in hand? Love often defies all rules, and tends to

break the rules, even if there are any. Still law decides where love should stop.

Strange sometimes it may appear that the ways of law are, but it is inescapable.

This precisely appeared to have happened, but the man has become a victim in

and of law, for law's insistence is to look to the birth certificate and not hearts.

Is law then a bio-hacker? May be. But sitting here as a Judge to administer law

under the Constitution, this Court may merely record that the appellant had

believed the statement of his love bit too early to act on it, a folly he had

committed due to his sheer inexperience in life. Sympathy, the appellant may

have aplenty from this Court, but it might not be adequate to exculpate him.

11. Here, the appellant relies on the authority in P.Yuvaprakash case, and

contends that only a birth certificate of the victim can be looked into to

ascertain the age of the alleged victim of sexual assault but not her school

records, and hence the age of the P.W.2 as has been attempted to be established

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by the prosecution through Exts.P2 and P3 school records are inadequate to

hold that P.W.2 was below 18 years, and consequently the appellant was

entitled to benefit of doubt. But the judgement in Yuvaprakash case was

delivered by a two Judges bench of the Supreme Court, and it was preceded by

an earlier three Judges Bench of the Supreme Court in Raju Vs State of

Haryana [(2019) 14 SCC 401] which holds that a birth certificate of the victim

is not mandatory. This position is subsequently reiterated by another two Judges

Bench of the Supreme Court in Vinod Katara Vs State of U.P. [(2024) 4 SCC

150]. Therefore, the appellant cannot seek an escape route through the

authority in Yuvaprakash case.

12. If FIR is looked through, it was laid under Section 6 of the POCSO Act, but

Section 6 only prescribes punishment for commission of aggravated penetrative

sexual assault which is defined under Section 5 of the Act. If Section 5 is

carefully scanned, the nearest that may come is Section 5(l) of the Act and not

any other provisions. Section 5(l) of POCSO Act reads as :

5. Aggravated penetrative sexual assault :-

                                  .....   ......   ......    ......     ......
                                  .....   ......   ......    ......     ......



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(l) whoever commits penetrative sexual assault on the child more than once or repeatedly;

The issue here is whether the appellant had penetrative sex with P.W.2 more

than once or repeatedly. If the testimony of P.W.2 is perused, it merely says

that he had sex with P.W.2, which she had couched in the most euphemistic

language but nowhere she had said that the appellant had sex with her

repeatedly or more than once. This is a critical ingredient in establishing the

crime. When it is not proved beyond reasonable doubt, it will be unsafe to

convict the appellant. The second aspect is that Section 30 of the POCSO Act

creates a rebuttable presumption in favour of culpable mental state of the

accused. The provision reads :

30. Presumption of culpable mental state :-

(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond

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reasonable doubt and not merely when its existence is established by a preponderance of probability.

If the evidence on record is analysed, as has been stated earlier, it was P.W.2

who had made a false representation to the appellant that she had attained 18

years and the appellant obviously had believed it. Therefore, there was no mens

rea to do the offence even though there might be actus reus. When this

presumption is broken coupled with other facts, the benefit of doubt necessarily

has to be extended to the appellant.

11. The conclusion in this appeal is to state the obvious: The appeal is allowed

and the appellant is set free of the charges for which he was convicted by the

Sessions Judge, Mahalir Neethimandram, Chennai, in Sessions Case No.183 of

2015 dated 02.08.2018.

10.09.2024

Index : Yes / No Neutral Citation : Yes / No ds