Madras High Court
Kumar vs State By on 28 April, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.1435 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2025
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.1435 of 2023 and
Crl.M.P.No.13107 of 2024
Kumar ... Appellant
Vs.
State by
Inspector of Police
All Women Police Station
Gingee Taluk, Villupuram District
Crime No.33 of 2021 ... Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. to set aside the
judgment passed against the appellant on 31.05.2023 in Spl.S.C.No.136 of
2021 on the file of learned Sessions Judge, Special Court for Exclusive Trial of
Cases under POCSO Act, Villpuram District and acquit him from all the
charges.
For Appellant : Mr.P.Thirumalai
For Respondent : Mrs.G.V.Kasthuri
Additional Public Prosecutor
1/18
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Crl.A.No.1435 of 2023
JUDGMENT
This Criminal Appeal has been filed by the appellant/accused to set aside
the judgment passed against the appellant on 31.05.2023 in Spl.S.C.No.136 of
2021 on the file of Sessions Judge, Special Court for Exclusive Trial of Cases
under POCSO Act, Villpuram District and acquit him from all the charges.
2. The brief case of the prosecution is that the defacto complainant who
is the mother of the victim had lodged a complaint before the respondent police
stating that she and her husband are daily wagers and they have got three
daughters. On 03.09.2021, they went for work leaving their daughters at home.
While so, at about 2.00 p.m., the accused had come there and sent away the
younger daughter to shop by giving Rs.10 to her and taken the victim girl
inside the victim's house and by locking the door from inside, had removed the
inner garments of the victim child and his own and committed aggravated
penetrative sexual assault on her. It was informed by the victim child to her
parents when they returned home. Immediately, the defacto complainant
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lodged a complaint before the respondent police and based on the complaint,
the FIR in Crime No.33 of 2021 was registered for the offence under Sections
5(m) read with 6 of POCSO Act. On completion of investigation, the
respondent police filed charge sheet for the offences under Sections 450, 342
IPC and Section 5(m) read with 6 of POCSO Act. The same was taken on file
in Spl.S.C.No.136 of 2021 on the file of the Sessions Judge, Special Court for
Exclusive Trial of Cases under POCSO Act, Villpuram District. Having taken
cognizance of the case and on appearance of the accused, the Special Court
framed charges against the accused for the offences under Sections 366 and
342 IPC and Section 5(m) read with 6 of the POCSO Act and the same was
read over to the accused. Upon questioning, the accused denied the charges and
claimed the offences to be tried.
3. In order to substantiate the charges, on the side of the prosecution 18
witnesses were examined as P.W.1 to P.W.18 and 14 documents were marked
as Ex.P.1 to Ex.P.14. On the side of the accused, no oral and documentary
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evidence was produced.
4. The learned Sessions Judge, after completion of trial, found the
accused guilty of the offences under Section 342 IPC and Section 5(m) of the
POCSO Act and convicted and sentenced him to undergo Rigorous
Imprisonment for 6 months and to pay fine of Rs.5,000/- and in default to
undergo simple imprisonment for one month for the offence under Section 342
IPC, to undergo Rigorous Imprisonment for 20 years and to pay fine of
Rs.5,000/-, in default to undergo Simple Imprisonment for three months for the
offence under Section 5(m) punishable under Section 6 of the POCSO Act.
However, trial Court acquitted the accusd for the offence under Section 366
IPC. The sentences were ordered to run concurrently. The period of detention
already undergone was ordered to be set off under Section 428 IPC. Feeling
aggrieved by the judgment of conviction and sentence, the accused has filed
the present appeal.
5. The learned counsel for the appellant submitted that the appellant is
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one of the preparing brick metal whole sale Merchant and centering employee.
The mother of the victim girl was doing coolie work under the appellant and
she had borrowed a sum of Rs.1000/- from him as advance and after which,
she neither came to work nor repaid the borrowed amount. Therefore, the
appellant had sent one of the coolie workers to bring her for work or to return
the borrowed advance amount. At that time, she quarreled with the messenger
who was sent by the appellant and after which, she foisted a false case against
the appellant. He further submitted that the prosecution witnesses namely
P.W.1 to P.W.4 are relatives and interested witnesses. P.W.1 is the mother of the
victim, P.W.2 is the victim girl, P.W.3 is the sister of the victim and P.W.4 is the
father of the victim and based on their evidence, conviction cannot be recorded
since they all are relatives and interested witnesses. Further, P.W.5 to P.W.10
turned hostile and they did not support the case of the prosecution and the other
witnesses namely P.W.11 to P.W.18 are official witnesses. The trial Court failed
to consider the fact that P.W.9 who is the prime witness to the occurrence, had
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not supported the case of the prosecution and she turned hostile. Further, the
trial Court failed to consider the motive behind the lodging of the false
complaint and there is no independent evidence to corroborate the evidence of
the prosecution witnesses. Even the medical evidence is not supported by the
case of the prosecution. The confession statement recorded by the Police
Officials are not admissible in evidence and that there is no recovery. In the
absence of any material evidence, only based on the evidence of the interested
witnesses, the trial Court recorded the conviction which is perverse. Therefore,
the conviction and sentence recorded by the trial Court are liable to be set
aside.
6. The learned Additional Public Prosecutor appearing for the
respondent/Police submitted that at the time of occurrence the age of the victim
was only 8 years. The appellant is a known person. When the victim and her
sister were playing in front of their house on 03.09.2021 at about 2 p.m., the
appellant came to that place and in order to divert them, he gave cash of Rs.10
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to the sister of the victim and sent her to shop to get snacks. Thereafter, the
appellant took the victim to her house and locked the door from inside and
removed his dress and also his dress and committed penetrative sexual assault
on the victim girl. On hearing the voice of the victim, one of the neighbours
namely P.W.9 came and knocked the door and hence, the appellant ran away.
Later, the victim informed the incident to her mother. Immediately, the mother
of the victim approached the appellant and questioned him for which, the
appellant and his sister scolded her. Thereafter, she lodged a complaint before
the respondent police, based on which, the case was registered. Therefore, the
victim was subjected to medical examination and statements were recorded
from the victim as well as her mother. The entry in the Accident
Register/Ex.P.7 shows that on 09.03.2021 at about 2 p.m., a known person
committed sexual assault on the victim girl. Further, the Medical Officer who
clinically examined the victim had given opinion/Ex.P.8 that the hymen of the
victim was not in-tact and the private parts of the victim was congested. When
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the victim was produced before the Judicial Magistrate for recording statement
under Section 164 Cr.P.C., she clearly narrated the incident.
6.1 The learned Additional Public Prosecutor further submitted that
though there is no eye-witness to the incident, the evidence of P.W.3/sister of
the victim corroborated the evidence of the victim that on the date of
occurrence, when she was playing with her sister, the appellant came there and
asked her to get some snacks by giving cash of Rs.10/-. Thereafter, when she
came back, her sister/victim was crying and the victim informed her that the
appellant took her inside their house and pressed her private part with his
private part. The evidence of the mother of the victim/P.W.1 also corroborated
with the evidence of the victim to show that on the date of occurrence, her
second daughter informed her about the incident and they went and questioned
the appellant and the appellant and his sister scolded her and thereafter, she
lodged the complaint. The evidence of P.W.4 who is the father of the victim is
also corroborated to show that his wife/P.W.2 informed him about the incident,
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which was told by their daughter. Though P.W.9 turned hostile, she has
confirmed that on the date of occurrence, she saw the appellant in the
occurrence place. Though some of the witnesses turned hostile, in the cases of
this nature, the evidence of the victim is paramount. The evidence of the
victim is corroborated by the medical evidence. Therefore, from the evidence
of P.W.1 to P.W.4, P.W.11/Doctor who examined the victim and P.W.12/Doctor
who examined the appellant and also medical report, the prosecution proved
its case beyond all reasonable doubts that the victim was subjected to
penetrative sexual assault by the appellant. Therefore, the trial Court rightly
convicted the appellant.
6.2. The learned Additional Public Prosecutor also submitted that the
appellant has not substantiated his defence and the said Coolie worker who was
alleged to have been sent by the appellant to the house of the victim to get back
the advance amount, was not examined by the appellant. Though the accused
need not examine any witness, however, when the appellant had taken the main
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defence, even in the grounds of appeal, it is for the appellant to prove his
defence. It is not like any other offence under the IPC. As per Section 29 of the
POCSO Act, once the prosecution proved the foundation fact, the Court can
presume that the accused committed the offence unless it is contrarily proved,
whereas in this case, the appellant has not proved the contrary. Therefore, there
are no merits in the appeal and the same is liable to be dismissed.
7. Heard both sides and perused the materials available on record.
8. The specific case of the prosecution is that on 03.09.2021 at about
2.00 p.m., when the victim girl was playing outside her house along with her
sister, the appellant/accused went there and by giving Rs.10/- to the sister of
the victim, sent her to shop to buy snacks. Thereafter, he took the victim girl to
her house and locked the door from inside and undressed the victim as well as
his own and committed aggravated penetrative sexual assault on the victim
girl.
9. After registration of the complaint, the victim was sent to hospital and
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the Accident Register is marked as Ex.P.7. The Doctor who conducted medical
examination on the victim, was examined as P.W.11 and the medical report of
the victim was marked as Ex.P.8. Subsequently, she was produced before the
Judicial Magistrate for recording statement under Section 164 Cr.P.C. wherein,
she has narrated the incident and the same has been marked as Ex.P.3. In order
to prove the age of the victim, the Birth Certificate of the victim was marked as
Ex.P.2.
10. In order to substantiate the case of the prosecution, on the side of the
prosecution, during trial, 18 witnesses were examined as P.W.1 to P.W.18 and
14 documents were marked as Exs.P.1 to P.14. The main charge against the
appellant is that he committed penetrative sexual assault on a 7 year old girl
child and therefore, he was charged for the offence under Section 5(m) which
is punishable under Section 6 of POCSO Act.
11. In order to substantiate the said charges, the prime witness/victim
was examined as P.W.2 before the trial Court and she narrated the incident and
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she also admitted that she made a statement before the Magistrate under
Section 164 Cr.P.C. and the same was marked as Ex.P.3.
12. The mother of the victim who set the law in motion, was examined
as P.W.1 and she narrated the occurrence that was informed by her
daughter/victim and also stated that when she approached the appellant
questioning his act, there was no proper response from him and therefore, she
lodged the complaint before the respondent police. Therefore, the complaint
given by P.W.1 to the respondent police is proved by examining the informant,
who is the author of the complaint.
13. The appellant was also subjected to medical examination and the
Doctor who conducted medical examination on the appellant was examined as
P.W.12 and he has issued the medical certificate/Ex.P.10 stating that there is
nothing to suggest that the appellant is incapable of performing sexual
intercourse.
14. A reading of the evidence of the victim/P.W.2, Doctor/P.W.11, the
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Birth Certificate of the victim/Ex.P.2, the previous statement recorded from
the victim under Section 164 Cr.P.C./Ex.P.3, Accidental Register/Ex.P.7,
Medical Report of the victim/Ex.P.8, all show that the victim who was aged 7
years was subjected to penetrative sexual assault.
15. Though there is no eye-witness to the occurrence, immediately prior
to the occurrence, the victim was playing with her sister/P.W.3. The evidence
of P.W.3 is corroborated by the evidence of the victim/P.W.2.
16. Though the prime witness, namely P.W.9 turned hostile, however,
she admitted that on the date of occurrence and at the time of occurrence, the
appellant was in the place of occurrence. Further, though P.W.1 to P.W.4 are
family members and relatives, that cannot be the sole ground to reject their
evidence. Just because they are relative witnesses, one cannot jump into the
conclusion that they are interested witnesses. The Court has to see as to
whether the evidence of the victim is cogent and reliable. If the evidence of the
victim is cogent and reliable, the Court can safely come to the conclusion that
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the prosecution had proved the charged offences.
17. A combined reading of the prosecution witnesses, the previous
statement recorded from the victim under Section 164 Cr.P.C. and the medical
evidence clearly shows that the victim was subjected to penetrative sexual
assault and the appellant is the one who committed the offence.
18. The other witnesses, namely P.W.5 to P.W.10 have turned hostile.
Some times, in order to avoid animosity with the neighbours, the witnesses are
turning hostile. Since the other witnesses have turned hostile, the Court cannot
come to the conclusion that the prosecution has not proved the charges.
19. In a cases of this nature, the evidence of the victim is paramount to
be considered. In this case, the evidence of the victim is clearly corroborated
by the medical evidence. Since the appellant is a known person, the victim and
the sister of the victim have named the appellant and there is no doubt in the
identification of the accused. Even a perusal of the records shows that in all
the places, the victim has named the appellant.
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20. This Court, as an appellate Court and final Court of fact finding,
while re-appreciating the entire oral and documentary evidence, especially the
evidence of P.W.1 to P.W.4, P.W.9 to some extent, P.W.11 and P.W.12 and
Exs.P.2, P.3, P.7, P.8, P.9 and P.10, finds that the prosecution has proved the
charged offences beyond all reasonable doubts.
21. Since the victim who was aged 7 years and below 12 years was
subjected to penetrative sexual assault by the appellant, the offence committed
by the appellant falls under Section 5(m) which is punishable under Section 6
of the POCSO Act. Under the POCSO Act, the minimum sentence is 20 years.
22. Though the appellant had taken the defence that since the appellant
had demanded repayment of the advance amount, in order to take revenge, the
mother of the victim has given a false complaint against him, but the same was
not substantiated by the appellant by producing any material evidence.
23. Therefore, this Courts finds that the prosecution has proved the
foundational fact. When once the prosecution had proved the foundational fact,
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there is a presumption under Section 29 of the POCSO Act that the appellant
committed the charged offences. No doubt, the presumption is a rebuttable one
and the accused can always rebut the presumption. However, this Court does
not find that the appellant rebutted the presumption and also the grounds taken
by the appellant. Therefore, there are no merits in the appeal and there is no
reason to interfere with the judgment of conviction and sentence imposed on
the appellant/accused by the trial Court.
24. Accordingly, this Criminal Appeal is dismissed. Consequently, the
connected Miscellaneous Petition is closed.
28.04.2025
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation Case : Yes/No
ksa-2
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To
1. The Sessions Judge,
Special Court for Exclusive Trial of Cases
under POCSO Act, Villpuram District
2. The Inspector of Police
All Women Police Station
Gingee Taluk, Villupuram District
3. The Public Prosecutor
High Court of Madras, Chennais
4. The Section Officer,
V.R. Section, High Court of Madras, Chennai
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P.VELMURUGAN. J.
Ksa-2
28.04.2025
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