Madras High Court
Kennedy Dharma vs The Inspector Of Police on 22 July, 2025
Crl.A(MD)No.715 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.07.2025
CORAM:
THE HON'BLE DR.JUSTICE R.N.MANJULA
Crl.A(MD)No.715 of 2025
Kennedy Dharma
... Appellant
Vs
The Inspector of Police,
Ambhathurai Police Station,
Dindigul District.
... Respondent
Prayer: This Criminal Appeal Case filed under Section 374 of Cr.P.C to
call for records and set aside the conviction passed in the Judgment,
dated 27.05.2025 by the learned Sessions Judge, Special Court for
POCSO Cases, Dindigul in Spl.S.C.No.117 of 2024 and acquit the
appellant.
For Appellant : Mr. V.Palanichamy
For Respondent : Mr.A.Albert James
Government Advocate (Crl.Side)
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Crl.A(MD)No.715 of 2025
JUDGMENT
The present appeal has been filed against the Judgment of
the learned Sessions Judge, Special Court of SC/ST (POA) Cases,
Dindigul, dated 27.05.2025, made in Spl.S.C.No.117 of 2024.
2.The appellant is the sole accused, who has been convicted
and sentenced in the following manner:
S. Provisions under which
Sentence of imprisonment Fine amount
No convicted
Rs.10,000/-, in default to
366 IPC 5 Years rigorous imprisonment undergo 6 months
simple imprisonment
Rs.50,000/-, in default to
8 of POCSO Act 5 Years rigorous imprisonment undergo 1 year simple
imprisonment
The sentences were ordered to be run concurrently.
3.The case of the prosecution is that the victim girl was
studying in 9th standard. On 13.01.2024, at about 01.00p.m., the accused
asked the victim girl to come to Roja Garden, near Velankanni and took
her in a vehicle to Dindigul and stayed in the relative's house and took
her to a house, where no one was available and committed sexual
assault.
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4.As the charge sheet has been filed and the accused denied
his involvement, he was subjected to trial. At the conclusion of trial, the
accused was found guilty under Section 366 IPC and Section 8 of
POCSO Act and he was convicted and sentenced as stated supra.
5.Aggrieved over that, the accused has filed this appeal.
6.The learned counsel for the appellant submitted that the
defacto complainant and the victim girl, who were examined as PW1 and
PW2 did not support the case of prosecution, and the learned trial Judge
has found the accused guilty and convicted him based on just
presumptions and assumptions.
7.The learned Government Advocate (Crl.Side) appearing
for the respondent submitted that the trial Court has relied on the
medical evidence and has stated the acceptable reasons in the Judgment
as to why the accused was convicted.
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8.I have given my anxious consideration to the submissions
made on either side and carefully perused the records.
9.On perusal of the Judgment of the trial Court, it appears
that the learned trial Judge has relied on the corroborative evidence, even
in the absence of any substantive evidence. It is not a case based on
circumstantial evidence, without the availability of the evidence of the
victim girl of sexual offence.
10.The learned trial Judge has mainly relied on the statement
said to have been given by the victim girl, PW2 to the Doctor that the
accused had kissed her on her lips, cheeks and chest. Based upon the
statement of the victim girl given before the Doctor, the trial Court got
convinced to convict the accused for the offences under Section 366 IPC
and Section 8 of POCSO Act. The victim girl has stated to the Doctor
that she had gone with the accused to his friends house.
11.The origin of the case is the complaint is given by the
mother of the victim girl, PW1. PW1 has stated in her complaint that her
daughter, who was studying in 9th standard at the time of the occurrence
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was inattentive towards her studies, therefore, she reprimanded her.
Under these circumstances, on 13.01.2024, when PW1 and her husband
gone to work, their three children were at home. The victim girl had
gone out of the house, saying that she was going to her friend's house. As
she did not did not return and could not be found out after a thorough
search, a complaint has been given on 14.01.2024. After two days of
giving the complaint, the victim girl came to the house. When she
enquired her, she told that she had gone with the accused. After three
days, the accused also surrendered to the police.
12.It is the case of the prosecution that during the stay of
victim girl with the accused, he had committed sexual assault on her.
During the examination, PW1 did not support the case of the prosecution
and stated that after returned to her home, the victim girl told her that she
had been to her grandmother's house, as she was angry with PW1. Even
the victim girl, PW2 has also stated that she was angry with her mother as
she had scolded her, on coming to know that the complaint has been
given that she was missing, she returned from her grandmother's house to
her mother's house.
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13.Even though the learned trial judge appears to have been
prompted by the statement of the victim girl given to the Doctor, that
statement is not supported by her before the Court.
14.So far as the occurrence is concerned, the statement given
to the Doctor is for a limited purpose of recording the history of the case.
The veracity of the statement given before the Doctor or to the
Investigation Officer has to be testified only before the Court.
15.If the victim girl has given evidence supporting the case
of the prosecution, then the Doctor's evidence could help as a
corroborative evidence. But without any substantive evidence, the Court
cannot act on the basis of the corroborative evidence alone. Had it been a
case based on circumstantial evidence, then there is no possibility to get
any substantive evidence about the occurrence and the only available
option is to do a thorough examinination of the circumstances and to
ensure whether each of such links of the circumstances form a chain, so
as to, lead to the accused as to the commission of offence.
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16.Convicting the accused only on the basis of the
corroborative evidence without substantive evidence will be like building
a house without foundation.
17.Though the offences falling under the POCSO Act are
very serious and has special provisions under Sections 29 and 30 of the
POCSO Act to draw initial presumption in favour of the prosecution,
once a person is prosecuted for the offence under Section 8 of the
POCSO Act, such presumption can be made available to the prosecution,
only when the foundational facts are proved before the Court.
18.It appears that the learned trial Judge himself has
strongly influenced by the statement of the victim girl given before the
Doctor, without appreciating the victim girl's statement given before the
Court. Neither the victim girl nor the defacto complainant, who have
stated anything incriminating against the accused in order to hold him
guilty for the offences under Sections 366 IPC and Section 8 of POCSO
Act.
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19.As the trial Court has not properly appreciated the
evidence by rightly understanding the principles of appreciation of
evidence, especially the effect of substantive evidence, I feel the
miscarriage should be rectified by setting aside the judgment of the trial
Court.
20.Accordingly,
● the Criminal Appeal stands Allowed and the
appellant is acquitted from all the charges levelled
against him;
● the bail bond executed by the appellant if any, shall
stand terminated and the fine amount, if any, paid
by the appellant shall be refunded to him;
● the compensation awarded by the trial Court to the
victim girl shall be refunded to the Government.
22.07.2025
NCC :Yes/No
Index :Yes/No
Note: Issue copy on 25.07.2025
PNM
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To
1.The Sessions Judge,
Special Court for POCSO Cases, Dindigul
2.The Jail Superintendent,
Central Prison, Madurai
3. The Inspector of Police,
Ambhathurai Police Station,
Dindigul District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
5.The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
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DR.R.N.MANJULA,J.
PNM
JUDGMENT IN
22.07.2025
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