Madras High Court
Sarath Kumar vs State on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A.No.397 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 02.06.2025
Coram :
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No. 397 of 2017
Sarath Kumar : Appellant
Versus
State
Rep by the Inspector of Police,
All Women Police Station,
Rasipuram,
Namakkal District.
(Crime No. 5 of 2015) : Respondent
Criminal Appeal filed under Section 374(2) of the Code of Criminal
Procedure, praying to call for the entire records and set aside the judgment
dated 31.05.2017 passed in Special C. C. No.50 of 2015, on the file of the
learned Sessions Judge, Fast Track Mahila Court, Namakkal.
For Appellant : M/s. K. Raja
For Respondent : Mrs.G.V.Kasthuri
Additional Public Prosecutor
---
JUDGMENT
This Criminal Appeal had filed under Section 374(2) of the Code of
Criminal Procedure against the judgment dated 31.05.2017 passed in Special
C. C. No.50 of 2015, on the file of the learned Sessions Judge, Fast Track
Mahila Court, Namakkal.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
2. The brief facts, which are necessary for the disposal of this
Criminal Appeal, are as follows:-
2.1. As per the prosecution case, the elder brother of the victim with
his wife and children, the victim and her younger sister are residing in a hut in
the premises of the bricklin where the elder brother of the victim and the
sister-in-law of the victim are engaged as daily wage labourers in the bricklin.
The Accused is also residing in a hut within the same premises. The victim
was a student of 8th Standard studying in the School nearer to the bricklin
within the local limits of Vennanthur Police Station within the territorial
jurisdiction of learned Judicial Magistrate, Rasipuram.
2.2. As per the complaint lodged by the elder brother of the victim, the
Accused is residing in a hut along with his family. The Accused is the son of
Varadharaj, a labourer, like the elder brother of the victim working in the
bricklin. On the intervening night of 28.08.2015, when the infant child of the
elder brother of the victim was crying, he took the baby out of the hut to get
fresh air to calm down the child. He observed his sister was missing when
enquired the victim stated that she went out to attend nature's call. After
attending nature's call when she returned to the hut, the Accused caught hold
of her hand and gagged her mouth, pulled her inside the hut, forced her on the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
bed and the Accused undressed himself and thrust his male organ by lifting the
dress worn by the victim. Hearing her pleas, to let her go, the elder brother of
the victim kicked the door of the hut where the occurrence took place and
entered the hut. On seeing the elder brother of the victim, the Accused pushed
him down and ran away. He was shocked to see his sister/victim in a
compromising position. She was pleading with him not to raise the issue as it
will affect her life. He consoled her and brought here back to his hut. He did
not prefer any complaint immediately to the Police. After about 10 days, on
12.09.2015, he lodged a complaint with the All Women Police Station,
Rasipuram. Based on the complaint of the elder brother of the victim, the
Inspector of Police, All Women Police Station, Rasipuram, registered a case in
FIR in Crime No. 5 of 2015 and sent the original complaint and the original
FIR to the Court of the learned Judicial Magistrate, Rasipuram. The case was
registered under Sections 7 and 8 of the Protection of Children from Sexual
Offences Act, 2012. She proceeded with the investigation. She prepared a
rough sketch under Ex.P-12 and observation mahazar under Ex.P-13 in the
presence of the witnesses Panneer Selvam and Siva Kumar. Panneer Selvam
died before the case reached the trial. She arrested the Accused and produced
him before the Court of the learned Judicial Magistrate with a requisition to
subject him to medical examination regarding potency. She also took the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
victim to subject her to medical examination with a requisition to the learned
Judicial Magistrate to subject the victim to medical examination. P.W-8
Dr.Sasireka, Gynaecologist, on duty at the Government Headquarters Hospital,
Namakkal, examined the victim and issued certificate under Ex.P-9 stating that
there are symptoms available that the victim was subjected to sexual
intercourse. The Accused was produced before the Government Headquarters
Hospital, Namakkal, where P.W-5 Dr.Murali examined him and issued
medical certificate under Ex.P-4. Also, the Inspector of Police, All Women
Police Station, Rasipuram, had given a requisition to the learned Chief Judicial
Magistrate to nominate a Magistrate for recording the statement of the victim
under Section 164 Cr.P.C. Accordingly, the learned Chief Judicial Magistrate
had nominated the learned Judicial Magistrate, Rasipuram to record the
statement of the victim under Section 164 of Cr.P.C. The victim was produced
before the learned Judicial Magistrate, Rasipuram. The learned Judicial
Magistrate, Rasipuram had recorded the statement of the victim under Section
164 of Cr.P.C. under Ex.P-10 wherein she had narrated the incident. The
Inspector of Police, All Women Police Station, Rasipuram, had approached the
Headmaster of the School where the victim studied to obtain her age
certificate. Accordingly, the Headmaster of the School P.W-7 had issued Ex.P-
7. As per the School record under Ex.P-7, the date of birth of the victim was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
25.12.2002. To determine whether the victim was child to attract the
provisions of the Protection of Children from Sexual Offences Act, 2012, the
Inspector of Police, All Women Police Station, Rasipuram, as the Investigation
Officer examined the elder brother of the victim/Complainant/P.W-1, his
wife/P.W-4, the victim/P.W-2, the Village Administrative Officer/P.W-3 in
whose presence the Accused was arrested, P.W-8 the Doctor who had
examined the victim, P.W-5 the Doctor who had examined the Accused, the
witnesses who stood as witness to the observation mahazar Sivakumar,
Panneer Selvam, Headmaster who had issued the details of the School
admission register to ascertain the date of birth of the child victim under Ex.P-
7 was examined as witness P.W-7. The woman Police Constable, who
accompanied the victim for medical examination and the male Constable who
accompanied the Accused to the medical examination. The matter was
enquired by the Child Welfare Committee. Therefore, the Official of the Child
Welfare Committee was also examined as witness. The learned Judicial
Magistrate, Rasipuram who had recorded the 164 Cr.P.C. statement of the
victim under Ex.P-10 was also recorded by the Investigation Officer. After
completion of the investigation, she had sent alteration charge to the learned
Judicial Magistrate and filed final report, altering the offence under Section 3
r/w. Section 4 the Protection of Children from Sexual Offences Act, 2012.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
The learned Judicial Magistrate, Rasipuram, had taken cognizance of the
offence, issued summons to the Accused. The case was committed to the Court
of the learned Sessions Judge. The Accused was furnished with copies under
Section 207 of Cr.P.C. and the Accused was bound over to the learned
Principal Sessions Judge. On appearance of the Accused before the learned
Principal Sessions Judge, the learned Principal Sessions Judge made over the
case to the Court of the learned Sessions Judge, Fast Track Mahila Court,
Namakkal. On appearance of the Accused before the learned Sessions Judge,
Fast Track Mahila Court, Namakkal, after hearing the prosecution and the
learned Counsel for the defense, the learned Sessions Judge, Fast Track
Mahila Court, Namakkal, had framed charges under Section 3 r/w. Section 4
and under Section 7 r/w. Section 8 of the Protection of Children from Sexual
Offences Act, 2012. The Accused pleaded not guilty and claimed to be tried.
Therefore, trial was ordered. During trial, the prosecution had examined 13
witnesses as P.W-1 to P.W-13 and marked 15 documents as Ex.P-1 to Ex.P-15.
2.3. After prosecution evidence was closed, the incriminating evidence
was put to the Accused and the Accused was examined under 313 Cr.P.C. The
Accused denied the incriminating evidence against him. The Accused did not
adduce any evidence to disprove the claim of the prosecution. After hearing
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
the prosecution and the defence, the learned Sessions Judge, Fast Track
Mahila Court, Namakkal, had convicted the Accused for the offence under
Section 3 r/w. Section 4 the Protection of Children from Sexual Offences Act,
2012. The Accused was convicted and sentenced to undergo 10 years of
rigorous imprisonment with fine of Rs.2,000/-, in default, to undergo six
months simple imprisonment. Under Section 235 of Cr.P.C., the period
already undergone in detention was set off. The learned Sessions Judge, Fast
Track Mahila Court, Namakkal, also ordered compensation to the victim under
the Tamil Nadu Victim Compensation Act, 2013, through the Legal Services
Authority attached to the District Court, Namakkal.
2.4. Aggrieved by the judgment of conviction and sentence of
imprisonment, and the fine imposed on the Accused, the Accused had
preferred this Criminal Appeal.
3. It is the contention of the learned Counsel for the Appellant that
the learned Sessions Judge, Fast Track Mahila Court, Namakkal, failed to
consider the fact that the FIR was belated. If the alleged occurrence had taken
place, the victim and her relatives would have approached the Police
immediately on such occurrence. Here the FIR was belated. Therefore, it
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
raises a suspicion. It is the defence of the Accused that there were monetary
transactions between the Accused and the family of the victim. The parents of
the Accused is alleged to have sought repayment of the loan availed by the
elder brother of the victim, therefore, to wreak vengeance on the Accused, a
case was foisted. Also, it is the contention of the learned Counsel for the
Appellant that the person who had registered the FIR shall not proceed with
the investigation as always the person who registered the FIR has an intention
to lay final report against the Accused. Therefore, they collect evidence
accordingly. Here the FIR under Ex.P-11 was registered by P.W-13 Inspector
of Police, All Women Police Station, Rasipuram. Also, the Complainant P.W-
1 had in the course of cross- examination, admitted that he had given a
complaint before the Vennanthur Police Station. Therefore, the earlier
complaint was suppressed and the latter complaint was produced before the
Court. P.W-8 the Doctor, who had examined the Victim, had stated that the
hymen happens to tear due to sports activities to the child of similar age.
Therefore, merely the hymen was not intact, it cannot be treated as the victim
was subjected to sexual intercourse. Also, the Investigation Officer had not
examined the father of the victim who is also staying in a hut adjoining the hut
where the elder brother of the victim was staying. He was not at all examined.
Nearby hut dwellers who are all daily wage labourers working in the bricklin,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
were not examined. The victim/P.W-2 had given statement to the learned
Judicial Magistrate, based on the tutoring of her elder brother/P.W-1. The
learned Sessions Judge, Fast Track Mahila Court, failed to consider those
aspects. The investigation itself was shoddy as is available in the cross-
examination of P.W-13 Investigation Officer, All Women Police Station,
Rasipuram.. Based on a shoddy investigation, a final report was laid before the
Court. Based on the final report, the evidence adduced by the prosecution
witness. Based on the deposition of the victim and her elder brother, and sister
in law, the learned Sessions Judge, Fast Track Mahila Court, Namakkal, had
convicted the Accused imposing sentence of 10 years of rigorous
imprisonment. The victim was a student in a college on the date of alleged
occurrence. There is no other witness to the alleged occurrence, except the
elder brother and sister in law of the victim. The victim herself had stated in
her deposition that she had requested her brother not to give a Police
complaint. That gives an impression that it was a false case. Still, the learned
Sessions Judge, Fast Track Mahila Court, Namakkal, convicted the Accused
based on the presumption available under Section 29 of the Protection of
Children from Sexual Offences Act, 2012, which had resulted in a grave
injustice to the Accused, who is a college student aged about 23 years, was
convicted and sentenced to undergo rigorous imprisonment for 10 years
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
affecting his future prospects of getting job at the prime of his age. The
learned Sessions Judge, Fast Track Mahila Court, Namakkal, failed to consider
the circumstances available in the case of the prosecution and the loopholes in
the case and convicted him only based on the surmises and conjunctures which
had resulted in grave injustice to the young man aged 23 years. Therefore, the
judgment of conviction imposed on the Accused/Appellant is to be set aside.
4. Also the learned Counsel for the Appellant submitted that no
material object had been seized by the Investigation Officer. If the prosecution
is to be accepted as per the report of the Doctor who had examined the victim
and issued Ex.P-4, there was no injury on the body of the Accused. Therefore,
the judgement of conviction recorded by the learned Sessions Judge, Fast
Track Mahila Court is to be set aside.
5. In support of his submission, the learned Counsel appearing for
the Appellant relied on the decision reported in CDJ 2021 MHC 1978 in the
case of Harishankar vs. State through the Inspector of Police, Anamalai
Police Station, Coimbatore, where the facts are similar. On appeal, the
Hon'ble High Court had acquitted the Accused from the charge of the
Protection of Children from Sexual Offences Act, 2012 stating that the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
evidence of the Prosecutrix does not inspire confidence. In the light of this
ruling, the learned Counsel for the Appellant/Accused sought to set aside the
judgment of conviction and sentence.
6. He also relied on the ruling of the Hon'ble Supreme Court of India
reported in (2006) 1 SCC 283 in the case of Vishnu alias Undrya vs. State of
Maharashtra wherein it is held that expert medical evidence not binding on
the ocular evidence. Opinion of the Medical Officer is to assist the Court as he
is not a witness of fact and the evidence given by the Medical Officer is really
of an advisory character and not binding on the witness of fact. If that is
considered, the evidence of victim as well as her elder brother are interested
witnesses as she had been tutored by her elder brother and along with that the
delay in filing FIR. It is an afterthought to wreak vengeance of the Accused to
misuse the provisions of the Protection of Children from Sexual Offences Act,
2012 and the Appeal is to be allowed and the Accused is to be discharged from
all the charges.
7. He further relied on the ruling of the Hon'ble Supreme Court of
India reported in (2013) 14 SCC 643 in the case of Lillu alias Rajesh and
another vs. State of Haryana wherein it is held as follows:
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
“B. Criminal Trial - Medical Jurisprudence/Evidence – Rape –
Genital examination – Two-finger Test – Standard of conducting and
interpreting forensic examination of rape survivors – Held, in view of various
judgments of Supreme Court taking into account aspects like propriety of
such examination of prosecutrix, irrelevance of previous sexual experience
and character of prosecutrix, and rape as a crime against dignity, honour,
reputation, chastity of women and their right to life, held, the two-finger test
and its interpretation violates right of rape survivors to privacy, physical and
mental integrity and dignity – Thus, the test, even if report is affirmative,
cannot ipso facto, give rise to a presumption of consent – Constitution of
India – Art. 21 – Rape survivors – Dignity to be accorded to – International
Law – International Treaties and Conventions – International Covenant on
Economic, Social, and Cultural Rights, 1966 – United Nations Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985.”
8. In the light of these two rulings the report of the Doctor on the
victim under Ex.P-4 by P.W-8 is to be rejected. If that is rejected, the evidence
available with the victim as well as the elder brother and sister in law of P.W-1
and P.W-4 happens to be influenced by the elder brother P.W-1 in which case
the evidence of the prosecutrix is unbelievable. Therefore the conviction
against the Accused is to be set aside. There is evidence in cross examination
of P.W-1 that there was a complaint given against the Accused by P.W-1
before the Vennanthur Police Station. It was with regard to money transaction
which was denied in cross-examination. Therefore, the judgment of the
learned Sessions Judge, Fast Track Mahila Court convicting the Accused is to
be set aside.
9. The learned Counsel for the Appellant also relied on the ruling of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
the Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 890 in the
case of The State of Jharkhand vs. Shailendra Kumar Rai @ Pandav Rai
wherein it has held as under:
“64. .... The status of hymen is irrelevant because the hymen can
be torn due to several reasons such as cycling, riding or masturbation
among other things. An intact hymen does not rule out sexual
violence, and a torn hymen does not prove previous sexual intercourse.
Hymen should therefore, be treated like any other part of the genitals
while documenting examination findings in cases of sexual violence.
Only those that are relevant to the episode of assault (findings such as
fresh tears, bleeding, edema etc.) are to be documented.”
10. In the light of the above ruling, the report of the Doctor/P.W-8
under Ex.P-9 has to be ignored. The evidence of P.W-2 victim is based on the
instigation of P.W-1 elder brother. If what had been taken place is true the
father of the victim as well as the elder brother of the victim is available in the
next hut. He was not at all examined. The non-examination of the prime
witness creates doubt regarding the investigation. It is a shoddy investigation.
Based on the shoddy investigation, if the Accused is convicted he will suffer
injustice. Therefore, the learned Counsel for the Appellant seeks to allow this
Appeal and set aside the conviction recorded by the learned Sessions Judge,
Fast Track Mahila Court, Namakkal and set free the Accused.
11. The learned Additional Public Prosecutor vehemently objected to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
the submission of the learned Counsel for the Appellant. As per the
submission of the learned Additional Public Prosecutor, the victim was
studying 8th Standard and was aged 14 years as per evidence of the Headmaster
of the School P.W-7 under Ex.P-7. After this incident, because of the shame
and the stigma suffered by the victim, she dropped out of School which is
available in the evidence of P.W-12 Mrs.Uma Maheshwari, Child Welfare
Committee official and P.W-7 Mr.Jayaseelan, Headmaster of the School where
the child is studying. Because of the criminal assault committed by the
Accused, a child aged about approximately 13 years suffered deprivation. A
child hailing from socio-economically poor background had to drop out of the
School because of this dark incident which affected her future also. In modern
days, the children are interested in coming up in life by studying and
competing in future in excellence in education whereas the victim had lost her
inclination to study and come up in life because of this dark incident in her
life. The claim of the learned Counsel for the Appellant as well as the learned
Counsel for the Accused before the trial Court that the neighbours had not
been examined will not hold good. It is to be considered that the occurrence is
on the middle of the night, early in the morning, where everyone sleep. The
silent night was exploited by the Accused. Except for the cries of the infant
child, the elder brother would not have come out of the hut and noticed the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
murmur of the helpless pleadings with the Accused by his sister/the victim. It
is an irony that the Accused had challenged the Investigation Officer claiming
that the neighbouring hut dwellers were not examined as witnesses.
Therefore, the investigation is shoddy. It is to be noted that in the offences of
this nature, the victims are very careful. That is why the victim herself
prevented her brother from lodging a complaint with the Police as it will affect
her future life. Still there is evidence in the brother P.W-1 that he had
apprehension that if not reported, the Accused will indulge in same offences
with his sister in future. Therefore, after clear thinking, he had approached the
Police after 10 days of the occurrence. The delay in lodging the FIR had been
explained by the victim and her brother P.W-1 complainant. The fact that the
father of the victim who was also staying in the adjoining hut was not
examined will not damage the case of the prosecution. The elder brother being
aware of the sensibilities of his younger sister's future, had not created ruckus
in the middle of the night. He had calm down his sister and brought her back
to the hut. Therefore, the claim that the nearby hut dwellers were not
examined as witness will not help the Accused. To pierce force in the
prosecution case considering the sensibilities of the nature of the offence and
the sensibilities of the victim a special enactment had come into existence by
way of the Protection of Children from Sexual Offences Act, 2012 to protect
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
helpless victims of child sexual offence. The learned Sessions Judge, Fast
Track Mahila Court, had clearly discussed the evidence as well as the defence
of the Accused. Apart from this, it is to be noted that the Accused had not
entered the witness box or examined any witness to rebut the presumption
available to the prosecution under Section 29 of the Protection of Children
from Sexual Offences Act, 2012. Till the date of this occurrence, there is no
enimity between the Accused and P.W-1. The evidence of P.W-1 is
corroborated by the victim. The mandatory 164 Cr.P.C. statement recorded by
the learned Judicial Magistrate also corroborates the claim of the elder brother
of the victim P.W-1 complainant. The claim of the learned Counsel for the
Appellant that the college student had been punished for 10 years is nothing
but plea for misplaced sympathy which cannot be entertained by the Court of
law when dealing with the grave crimes affecting minor child. Here the victim
was aged 13 years studying in 8th standard. She had dropped out of the
School because of the dark experience suffered by her causing stigma and
shame. Even after visit by Headmaster and the Child Welfare Committee, she
did not attend School. That much of evidence is available through P.W-2 the
victim, P.W-7 the Headmaster and P.W-12 the Child Welfare Committee
official affecting the dignity of the child, the psychology of the child, the
mental status of the child and the personality of the child. Apart from that, the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
Investigation Officer when subjected the exhaustive cross-examination
regarding the non-examination of the neighbouring hut dwellers had clearly
stated that neighbouring hut dwellers did not come forward to remain as
witness. That much of evidence is available. The Teachers of the School
came to know about the incident only due to the long absence of the child.
They came to the residence of the victim and on enquiry the victim informed
them that she had suffered the cruel incident. The Teachers informed the same
to the Child Welfare Committee. Therefore, P.W-12 visited the victim and
made enquiries. The P.W-1 brother of the victim, P.W-2 the victim, P.W-4
sister-in-law of the victim withstood cross examination. The claim that there
was earlier complaint is on a different case and not the for the same offence.
Even if it is to be considered that the victim and her family are semi-literates
or illiterates they does not know whom to approach and the niceties and
technicalities of law as common citizens they had approached the nearby
Police Station who had directed them to the All Women Police Station.
Therefore, the claim of the Appellant/Accused that there were two complaints
will not hold good. Even if there are lapses on the part of the investigation
agencies the same shall not be taken advantage in favour of the Accused
particularly when the offence happens to be sexual assault on a child. The
definition of the child as per the Protection of Children from Sexual Offences
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
Act, 2012 is squarely applicable to the facts of this case. Therefore, Section
29 of the Protection of Children from Sexual Offences Act, 2012 is relevant to
the facts and circumstances of this case. It is to be noted that the First
Information Report was registered under Sections 7 and 8 of the Protection of
Children from Sexual Offences Act, 2012 and after completion of the
investigation, based on the medical report available, the Investigation Officer
had arrived at a conclusion that it was not sexual assault and it was penetrative
sexual assault. Therefore, altered the offence as per the alteration report under
Ex.P-14 and laid the final report for the offence under Sections 3 and 4 of the
Protection of Children from Sexual Offences Act, 2012. When the Court had
framed the charges, the Court had framed charges under Section 3 r/w. Section
4 and under Section 7 r/w. Section 8 of the Protection of Children from Sexual
Offences Act, 2012 against the Accused. In conclusion of the trial, the learned
Sessions Judge, Fast Track Mahila Court, had convicted the Accused for the
offence under Section 3 r/w. Section 4 of the Protection of Children from
Sexual Offences Act, 2012. After the incident, the family of the victim had
shifted from the place where they were staying, as per the evidence available
through P.W-7 Headmaster, through the Child Welfare Committee official
P.W-12.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
12. In support of her contention, the learned Additional Public
Prosecutor also relied on the ruling reported in (2020) 10 SCC 573 in the case
of Ganesan vs. State represented by its Inspector of Police wherein it has
been held as follows:
“A. Crime Against Women and Children – Protection of
Children from Sexual Offences Act, 2012 – Section 7 r/w.
Section 8 – Conviction on sole testimony of victim –
Permissibility of – Where testimony of victim is found reliable
and trustworthy, reiterated, conviction on basis of her sole
testimony is permissible – In instant case, victim P.W-13 aged 15
years at time of deposition was matured and her testimony was
found trustworthy, unblemished and her evidence was of sterling
quality – Hence, conviction on basis of her testimony was
justified – Criminal Trial – Witnesses – Sole/Solitary witness.”
13. By relying on the above rulings, if the evidence of the victim
inspires confidence of the Court, the Court has to convict the Accused. Also it
is pointed out by the learned Additional Public Prosecutor that due to long
absence of the child from the School and the School Teachers and the
Headmaster came to the residence of the child. Only then, the child informed
the Teachers and they have informed the Child Welfare Committee. Only
when the Child Welfare Committee came to the residence of the victim based
on their moral support the elder brother of the victim had pursued the case.
That much is available from the evidence of P.W-2 the victim. The alleged
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
offence is an offence under Sections 3 and 4 of the Protection of Children from
Sexual Offences Act, 2012. Whereas the complaint was lodged by the elder
brother of the victim and based on which, the First Information Report was
registered under Sections 7 and 8 of the Protection of Children from Sexual
Offences Act, 2012 by the Inspector of Police, All Women Police Station,
Rasipuram. After subjecting the victim to medical examination, based on the
report, the offence was altered under Section 3 r/w. Section 4 of the Protection
of Children from Sexual Offences Act, 2012. The learned Additional Public
Prosecutor invited the attention of this Court to the portion in the deposition of
the victim that “ehd; typ jh';f Koahky; thapy; ,Ue;J Jzpia vLj;Jtpl;L fj;jpndd;.”
When the victim informed her brother, out of shame, she cannot express what
are all had taken place. She had only narrated the nfirst part of the occurrence,
based on which, her brother had given the complaint. The learned Additional
Public Prosecutor also invited the attention of this Court to the educational
status of the victim as well as the elder brother who is a labourer in a bricklin,
thinking about the future of the victim, he had avoided to report the matter to
the Police. Since the victim had not attended the School for a long time, the
Headmaster of the School came to the residence of the victim. Only then, they
came to know about the occurrence. Therefore they had informed the Child
Welfare Committee. Accordingly, the Child Welfare Committee also
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
conducted enquiry with the victim and her family. Only on the moral support
and guidance, the elder brother of the victim decided to give a complaint. The
complaint was written by somebody. He did not know about the person who
had recorded his oral statement as complaint under Ex.P-1. That cannot be
used against the victim and in favour of the Accused. Also money transaction
between the parents of the Accused and the elder brother of the victim cannot
be used against the victim. If what had been stated by the Accused is true, he
should have entered the witness box and disputed the case of the prosecution.
He had avoided the witness box. That has to be taken note of by this Court to
draw adverse inference against the Accused for not attempting to disprove the
case of the prosecution, to rebut the prosecution evidence by adducing
evidence. The conduct of the Accused in not entering the witness box had to
be considered and heavily relied for convicting the Accused. The learned
Sessions Judge, Fast Track Mahila Court, has given a well reasoned
judgement and he had also offered his clarification to the defence of the
Accused by citing rulings of the Honourable Supreme Court. Therefore it is a
well reasoned judgement it does not warrant any interference by this Court.
The appeal lacks merit and it has to be dismissed.
Point for consideration:
Whether the judgment dated 31.05.2017 passed in Special
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
C. C. No.50 of 2015, on the file of the learned Sessions Judge,
Fast Track Mahila Court, Namakkal, is to be set aside as
perverse warranting interference by this Court?
14. Heard the learned Counsel for the Appellant and the learned
Additional Public Prosecutor for the State. Perused the evidence of the
Prosecution through P.W-1 to P.W-13, the documents under Ex.P-1 to Ex.P-15
and the judgement of the learned Sessions Judge, Fast Track Mahila Court,
Namakkal, in S.C.No. 50 of 2015, dated 31.05.2017.
15. The submission of the learned Counsel for the Appellant cannot at
all be accepted in the light of the evidence of P.W-2. P.W-2 is the victim aged
13 years, a student of 8th standard in the Government Higher Secondary
School, Mallur, Salem. P.W-2 was cross-examined exhaustively in which it is
stated that the Accused suffered from Chikungunya and unable to stand and
walk. If that be the case, as per the provision of the Protection of Children
from Sexual Offences Act, 2012, the Accused shall adduce evidence by way of
rebuttal evidence. The Accused had engaged a Counsel before the trial Court
but had not adduced evidence by examining the witnesses who had treated him
by marking documents regarding treatment for Chickungunya or examined the
Doctor who had treated him for Chickungunya. The Accused avoided the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
witness box. Therefore, the presumption under Section 29 of the Protection of
Children from Sexual Offences Act, 2012 has to be considered by the Court
that the victim is speaking the truth. On perusal of Ex.P-1 complaint, the
elder brother of the victim P.W-1 had narrated the facts that taken place on the
intervening night of 28.08.2015. The victim had clearly stated that the
Accused gagged the mouth of the victim and dragged her inside the hut. The
Accused undressed himself and thrust his male organ in the female organ of
the victim. That much of the evidence is available. Therefore, it is a
penetrative sexual assault as per Sections 3 and 4 of the Protection of Children
from Sexual Offences Act, 2012. But on investigation on subjecting the
victim to medical examination, the Doctor had opined that she had symptoms
of subjecting herself to sexual intercourse. Therefore, the offence was altered
to offence under Sections 3 and 4 of the Protection of Children from Sexual
Offences Act, 2012 by filing alteration report under Ex.P-15. The victim had
narrated the incident under section 164 Cr.P.C. statement recorded under Ex.P-
10. Before the trial Court, she had deposed clearly the occurrence indicating
that the Accused had forced his male organ on her female organ, because of
the pain she suffered, she pleaded with him to let her go which was heard by
her brother forcing him to kick open the door and enter the hut of the Accused.
The defence of the Accused that the hymen of a child aged similar of the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
victim suffers injury due to sporting activities was put to the victim suggesting
that she is involved in sports activities. She had denied the same in cross
examination. She had not indulged in any cycling activities to suffer damage
to her hymen. The evidence of the victim P.W-2 is found inspiring.
16. On perusal of the evidence of P.W-1 it corroborates the incident.
Ex.P-1 is the complaint which does not mention about the penetrative sexual
assault. It is for the victim to speak about the same. On perusal of the
evidence of victim P.W-2, she had clearly stated that the Accused thrusted his
male organ in her female organ, because of the pain, she pleaded him to let her
go. At that time, hearing her murder, pleas, the elder brother of the victim
kicked open the door of the hut and entered in the hut of the Accused and by
seeing him, the Accused pushed him down and ran away. Considering the
ruling cited by the Appellant in (2013) 14 SCC 643 in the case of Lillu alias
Rajesh and another vs. State of Haryana, the standard of conducting and
interpreting forensic examination of rape survivors, the Hon'ble Supreme
Court deprecated the practice of two finger test. That ruling had clearly stated
that two finger tests even if the report is affirmative, cannot ipso facto, give
rise to the presumption of consent. Here the victim is a child and consent is
not applicable. The submission of the learned Counsel for the Appellant that
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
the evidence of P.W-8 Doctor and the report of the Doctor under Ex.P-9 had to
be ignored in the light of the above ruling will not help the Appellant/Accused
to wriggle out of this case. The victim had not narrated the entire incident
when she was examined by the learned Judicial Magistrate, Rasipuram under
Section 164 Cr.P.C. which is marked as Ex.P-10. The evidence of P.W-1 elder
brother, the complainant and P.W-4 sister-in-law of the victim found that they
had withstood exhaustive cross examination.
17. As pointed out by the learned Additional Public Prosecutor, if the
defence of the Accused that he had suffered from the aftermath of
Chickungunya by losing normal strength, unable to stand had been true, it is
for the Accused to have entered the witness box and adduced evidence to that
effect and also examined the Doctor who treated him and to produce the
medical records to that effect, so that the rebuttal evidence could have been
considered in favour of the Accused, if it had been the case. The attempt of
the Accused that only due to previous enmity, the case has been foisted against
the Accused as there was an earlier complaint preferred by the elder brother
against the Accused before Venanthur Police Station also will not help the
Accused to wriggle out of this case. There is evidence through P.W-2 victim
that due to long absence, the Teachers of the School and P.W-7 Headmaster
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
of the School visited the victim. There is evidence that the Child Welfare
Committee visited the victim and the family of the victim. This is available
through P.W-12 official of the Child Welfare committee and P.W-7
Headmaster of the School. The transfer certificate of the victim was also
marked before the trial Court to show the date of birth of the child and the fact
that she had obtained transfer certificate from the School. When the victim
was examined before the Court she was aged 16 years and she had clearly
stated that she had dropped out of School at 8th Standard after this
embarrassing incident. The act of the Accused had caused such mental
trauma in a child aged about 13 years to drop out of the School whereby the
Teachers and Headmaster had visited the victim and made enquiries. They had
reported the matter to the Child Welfare Committee and the Child Welfare
Committee also visited the victim and her family and conducted enquiry.
Based on the strength, moral courage, support given by them, may be the
reason for the elder brother of the victim to lodge the complaint under Ex.P-1
after 10 days of the incident.
18. The submission of the learned Counsel for the Appellant that the
FIR is delayed, therefore, it is an embellished FIR and the Court has to draw
presumption that it is an embellished complaint and embellished FIR.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
Therefore, the advantage is to be given to the Accused cannot at all be
accepted in the facts and circumstances of this case. The victim aged 13 years
had undergone mental trauma because of this incident resulting in her
dropping from School warranting visit to her house by the Teachers and
Headmaster of the School advising the child to return to School and continue
with her studies. In spite of their moral support and advise, she opted out due
to social sigma, mental trauma suffered by her. The family of the victim who
are poor labourers, illiterates or semi-literates they had not taken her for any
medical treatment to overcome the mental trauma. Therefore, the defence of
the Accused that it is a foisted case cannot at all be accepted. The ruling cited
by the learned Counsel for the Appellant in (i) CDJ 2021 MHC 1978 in the
case of Harishankar vs. State through the Inspector of Police, Anamalai
Police Station, Coimbatore; (ii) (2006) 1 SCC 283 in the case of Vishnu
alias Undrya vs. State of Maharashtra; (iii) (2013) 14 SCC 643 in the case
of Lillu alias Rajesh and another vs. State of Haryana and (iv) 2022
LiveLaw (SC) 890 in the case of The State of Jharkhand vs. Shailendra
Kumar Rai @ Pandav Rai are not helpful to the Appellant/Accused. In all the
above rulings, it is specifically stated that if the evidence of the victim inspires
confidence of the Court, the Court shall convict the Accused.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
19. The learned Sessions Judge, Fast Track Mahila Court, Namakkal,
in the discussion of evidence had elaborately dealt with the evidence of the
Prosecution and the defence of the Accused and he had relied on the ruling of
the Honorable Supreme Court and various High Courts to reject the defence of
the Accused. The learned Sessions Judge, Fast Track Court had on logical
deduction arrived at a conclusion that even though charge was framed under
Section 7 r/w. 8 of the Protection of Children from Sexual Offences Act, 2012,
evidence available before the Court indicates proved that offence under
Section 3 r/w. Section 4 of the Protection of Children from Sexual Offences
Act, 2012 had been committed by the Accused warranting punishment not less
than 10 years. Therefore, he had convicted the Accused for the offence under
Section 3 r/w. Section 4 the Protection of Children from Sexual Offences Act,
2012. The same is not found perverse. It is a well reasoned judgment as
pointed out by the learned Additional Public Prosecutor. The the ruling cited
by the learned Additional Public Prosecutor reported in (2020) 10 SCC 573 in
the case of Ganesan vs. State represented by its Inspector of Police wherein it
is reiterated by the Honorable Supreme Court that the conviction on the sole
testimony of the victim if found reliable trustworthy the conviction has to be
confirmed upheld is applicable to the facts of this case.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
20. The ruling of the Hon'ble Supreme Court of India reported in
(2006) 1 SCC 283 in the case of Vishnu alias Undrya vs. State of
Maharashtra is a case where there was shoddy investigation against which
the father of the victim had given a complaint to the office of the Prime
Minister and office of the Chief Minister warranting a transfer of the
investigation. Accordingly, after the subsequent investigation the Accused was
arrested and proceeded with. In the trial, based on evidence the Accused was
convicted. In appeal, the appeal was dismissed. There the defence of the
Accused was that it was a consensual sex whereas the evidence was otherwise.
The offence attracted under Section 57 of the Bombay Children Act, 1940.
The trial Court as well as the High Court had arrived at a conclusion that the
age of the victim was not 16, she was less than 16. Her date of birth was 1963
and not 1964 as per the evidence of the father of the victim who was
undergoing treatment for eye in K.M. Hospital not when the victim was picked
up by the Accused on the pretext of dropping her in her house and instead,
taken to different place and by use of threat raping her. The date of birth
recorded in the School register as well as municipal corporation was relied and
the date of birth of 29.11.1964 was considered and not as made out by the
Accused. The defence of the Accused was rejected on the pretext of
consensual sex. More or less the facts of the case in the above decision and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
the case before us are similar. Here it is a neighbour who had gagged the
mouth of the victim and dragged her inside the hut. It is total denial as though
no such occurrence had taken place. Whereas there is evidence through the
evidence of the victim. As pointed out by the learned Counsel for the
Appellant, if the evidence of P.W-8 Doctor is rejected then the evidence left
out is the evidence of victim P.W-2 and her elder brother and her sister-in-law
P.W-1 and P.W-4 all happened to be from the same family. Therefore the
defence of the Accused that it is a cooked up case to wreck vengeance on a
monetary transaction will not hold good in this case. The evidence of the
Doctor is with regard to consensual sex as pointed out in (2013) 14 SCC 643
in the case of Lillu alias Rajesh and another vs. State of Haryana. This will
not help the case of the Accused in this case. As per the reported ruling of the
Hon'ble Supreme Court in (2013) 14 SCC 643 in the case of Lillu alias
Rajesh and another vs. State of Haryana even if the Doctor's evidence is
affirmative it has to be ignored regarding the dignity of the victim regarding a
rape survivors. Here it is not the case. The report is affirmative. It need not
be ignored as consensual sex. In the same ruling it is stated where the
prosecutrix as per the School records is shown to be less than 14 years, it is
immaterial whether it is a consenting party or not.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
21. Therefore, under all the above circumstances, the case of the
Prosecution had been proved as per the ruling reported in (2020) 10 SCC 573
in the case of Ganesan vs. State represented by its Inspector of Police.
Therefore, the conviction of the Accused by the learned Sessions Judge, Fast
Track Mahila Court, Namakkal awarded against the Accused under Section 3
r/w. Section 4 of the Protection of Children from Sexual Offences Act, 2012 is
found justified and it is a well reasoned judgment it does not warrant any
interference by this Court.
22. In the light of the above discussion, the point for consideration is
answered in favour of the Prosecution and the against the Accused. The
judgment dated 31.05.2017 passed in Special C. C. No.50 of 2015, on the file
of the learned Sessions Judge, Fast Track Mahila Court, Namakkal, is found
proper which does not warrant any interference.
In the result, this Criminal Appeal is dismissed. The judgment dated
31.05.2017 passed in Special C. C. No.50 of 2015, on the file of the learned
Sessions Judge, Fast Track Mahila Court, Namakkal, is confirmed.
The learned Sessions Judge, Fast Track Mahila Court, Namakkal, is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
directed to issue warrant to the Accused. The Inspector of Police, All Women
Police Station, Rasipuram, Namakkal District, is directed to secure the
Accused and produce him before the learned Sessions Judge, Fast Track
Mahila Court, Namakkal, to undergo the remaining period of sentence as per
the judgment of conviction and sentence passed in Special C. C. No.50 of
2015, dated 31.05.2017 by the learned Sessions Judge, Fast Track Mahila
Court, Namakkal.
02.06.2025
Shl/srm
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
To:
1. The Sessions Judge,
Fast Track Mahila Court,
Namakkal.
2. The Inspector of Police,
All Women Police Station,
Rasipuram,
Namakkal District.
3. The Public Prosecutor,
High Court Madras.
4. The Section Officer,
Criminal Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
SATHI KUMAR SUKUMARA KURUP, J.
Shl/srm
Judgment made in
02.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 12:52:46 pm )
