Madras High Court
Ponnuthai Regina vs State Rep. By on 12 June, 2025
Crl.A(MD)No.228 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 12.06.2025
CORAM :
THE HONOURABLE MS. JUSTICE R.N.MANJULA
Crl.A(MD)No.228 2017
Ponnuthai Regina ... Appellant/P.W.1
Vs.
1.State Rep. by
The Inspector of Police,
Tirunelveli Town Woman Police Station,
Tirunelveli
(In Crime No.8 of 2014) ... 1st Respondent/Complainant
2.Sritharan ... 2nd Respondent/Accused
PRAYER: Criminal Appeal filed under Section 372 of Criminal
Procedure Code, to set aside the order passed in Spl.S.C.No.32 of 2015
dated 29.09.2016 on the file of the Sessions Court (Mahila Court),
Tirunelveli Sessions Division, Tirunelveli.
For Appellant : Mr.E.Somasundaram
For R1 : Mr.A.Albert James
Government Advocate (Crl.side)
For R2 : Mr.J.Jeyakumaran
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Crl.A(MD)No.228 of 2017
JUDGMENT
This Criminal Appeal is filed by the defacto complainant against
the judgment dated 29.09.2016 passed by the learned Sessions Judge
(Mahila Court), Tirunelveli, in Spl.S.C.No.32 of 2015.
2. The brief facts of the case are as follows:
i) The appellant/defacto complainant had given the complaint of
sexual assault caused against the victim child. The accused is the
husband of the defacto complainant and the father of the victim girl. It is
alleged in the complaint that after marriage between the defacto
complainant and the accused, there arose some misunderstanding
between themselves in view of extra marital relationship alleged to have
been developed by the accused. Due to that, the appellant and the
accused were living separately. The victim child and her brother were
under the custody of the accused and the accused was living together
with another woman. During the year 2012, when the victim child was
studying 2nd Standard, she was alone at home and lying with the accused.
During that time, the accused applied his hand on the private parts of the
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victim child on several occasions and sexually assaulted her. Whenever
the victim child raised her voice, the accused was beating her with comb
on her mouth. The accused threatened the victim child by saying that if
she revealed these acts to anyone he would kill her.
ii) After completion of investigation, charge sheet has been laid
against the accused under Section 506(i) IPC and Section 6 of the
POCSO Act, 2012, by the first respondent/prosecution.
iii) After furnishing copies of records to the accused under Section
207 of the Code of Criminal Procedure, the substance of the charges was
explained to the accused. The accused denied the offences and claimed to
be tried.
v) In order to establish the guilt of the accused, 20 witnesses were
examined as P.W.1 to P.W.20 and 14 documents were marked as Ex.P.1
and Ex.P.14. No witness was examined and one document was marked as
Ex.D.1 on the side of the accused.
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vi) After concluding the trial and after appreciating the oral and
documentary evidence on record, the Sessions Court (Mahila Court),
Tirunelveli, found the accused not guilty for the aforesaid offences and
acquitted him.
vii) Aggrieved over the judgment of acquittal, the defacto
complainant has filed the present appeal.
3. The learned counsel for the appellant/defacto complainant has
made the following submissions:
i) The trial Judge ought to have given weightage to the evidence of
the victim girl/P.W.2, who had clearly stated about the occurrence and
pain she experienced on her private parts;
ii) The prosecution is entitled for presumption under Section 29 of
the POCSO Act;
iii) The trial court not only acquitted the accused but did not even
order any compensation to the victim girl.
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4. The learned Government Advocate (Crl.side) for the first
respondent submitted that the learned Sessions Judge ought not to have
given the benefit of doubt to the accused and there are only minor
contradictions and discrepancies in the deposition of prosecution
witnesses. He would further submit that medical evidence corroborated
the evidence of the other witnesses. Hence, the Sessions Judge ought to
have convicted the accused for the offences charged against him.
5. The learned counsel appearing for the second respondent/
accused submitted that the learned Sessions Judge has correctly weighed
the oral and documentary evidence and rightly acquitted the accused and
the judgment of the learned Sessions Judge does not warrant any
interference by this Court.
6. I have given anxious consideration to the submissions made by
the parties and carefully perused the materials available on record.
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7. The evidence of P.W.1 would show that the defacto complainant
had brought the victim child from her husband's house and kept her
under her custody. During that time, the victim child used to complain
pain on her private parts. P.W.1 did not take it very seriously. On
01.07.2014, the victim girl complained severe pain and so P.W.1 had
taken her to the hospital. After examining her, the Doctor told that the
child was subjected to sexual assault. Thereafter, P.W.1, the mother of the
victim child enquired and the victim child told when she was staying
with her father, on several occasions, he had committed sexual assault
and threatened her not to tell to anyone.
8. P.W.1 has further stated in her evidence that after P.W.1 got
separated from the accused, the accused took care of the children by
admitting them in schools. On one occasion, she has taken her daughter
from the school without informing to the management or to the accused.
This has resulted in a police complaint and after an enquiry by the police,
the children were given to the custody of P.W.1. Thereafter the accused
did not leave the children with P.W.1 and again a complaint was given
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by P.W.1 and the police had advised the parties to resolve the issue by
taking proper proceedings in the court.
9. The defacto complainant was given with visitation rights. She
would visit and take the children and keep them with her for some days.
So it was suggested by the accused that the complaint was given by P.W.
1 with the motive to get back the children, who were under the custody
of the accused. In chief examination, it is stated by P.W.1 that on
26.06.2013 when she was giving bath to the victim child, she reported
pain over her private parts. Thereafter, on enquiry she had stated about
the sexual assault. P.W.1 had stated that the child told her that the
accused used to scratch her private parts with his fingers and compelled
her to touch his private parts also. But, in the complaint of P.W.1, she
has only stated that the accused used to apply his hands and she has not
stated that the accused compelled the victim child to touch his penis.
10. It was suggested that the child was made as a pawn in view of
the dispute between P.W.1 and the accused for having got the custody
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for the children. The evidence of P.W.1 would confirm that she had lot of
misunderstanding and the complaints were given by herself and the
accused in connection with custody of children. As P.W.1 and the
accused got separated, the trial court appears to have been very careful in
evaluating the evidence of P.W.1 and P.W.2.
11. P.W.2, the victim child had given statement under Section 164
Cr.P.C before the Court during investigation. At the time of recording
that statement she was studying in 4th Standard. She had made lot of
allegations about the person with whom her father was staying in the
house with the children. Her testimony would show that she did not like
her father's relationship with another woman by deserting her mother.
12. Without any details as to the time and the place of the
occurrence, the victim girl has given statement under Section 164 Cr.P.C.
She further stated that her father had sharp nails and with that nails, he
scratched her private parties. Her statement recorded under Section 164
Cr.P.C is very vague and without coherence. When the victim girl was
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examined before the court as P.W.2, more details than what she stated in
her statement under Section 164 Cr.P.C were spoken elaborately by her
and there were lot of improvements in her evidence.
13. No doubt, the evidence of the victim child needs to be
considered very seriously. A holistic reading of her evidence would show
that she had some dissatisfaction with her father's choice of leaving her
mother. Therefore, her evidence on the aspect of sexual assault has to be
seen very carefully. There are lot of material contradictions between the
statement recorded under Section 164 Cr.P.C from the victim child and
her evidence before the Court as P.W.2.
14. P.W.3 is the grand-mother of the victim child and the mother of
P.W.1. She is a hearsay witness. During her cross-examination, P.W.3
stated that in the year 2001, P.W.1 came to her house after being sepaated
from the accused by leaving the children with him.
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15. The statement of P.W.1/mother of the victim child which was
alleged to have been given during the police enquiry has been marked as
Ex.D.1. In the said statement, P.W.1 has affixed her signature and P.W.3
attested the same. During the cross examination of P.W.1, she has
admitted that the statement has been made by her and it is marked as
Ex.D.1. The contents of Ex.D.1 would show that she would not keep any
contact with any third person and one driver Raja and that she would
lead a happy family life with the accused and she would not threaten that
she would commit suicide. Thus, the complaint given to the police has
been closed. That statement is dated 20.06.2009.
16. P.W.3 has stated that even thereafter P.W.1 left the accused and
had filed a petition seeking divorce before the learned I Additional
District Court. When the said fact was confronted to P.W.1, she denied
the same. The other witnesses, who were examined on the side of the
prosecution as P.W.4 and P.W.5 are closely connected to P.W.1 and hence
they are also interested witnesses.
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17. There was a family dispute between the defacto complainant
and the accused. With regard to the custody of the children also, there
were litigations. Hence, it is difficult to probalize the occurrence as
alleged by the prosecution. This is especially so when there is total
contradiction from the statement recorded under Section 164 Cr.P.C and
the evidence of the victim child P.W.2.
18. P.W.14, the Doctor, who had examined the child on
03.07.2014, stated that he did not notice any injury on the private parts or
body of the child. He had observed that her hymen was ruptured. During
cross examination of P.W.14, he had stated that the child did not have any
external injuries or any injuries over her private parts and it is possible
for the hymen to rupture even while playing or falling down.
19. As per Section 29 of the POCSO Act, when a person is
prosecuted for committing, abetting, or attempting to commit offenses
under Sections 3, 5, 7, or 9 of the Act, the Special Court shall presume
that such person has committed the offense, unless the contrary is
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proved.
20. In the instant case, the accused has been prosecuted for the
offence under Section 8 of the POCSO Act. Even though initial
presumption can be taken against him as per Section 29 of the POCSO
Act, the reverse burden for rebutting the initial presumption can be
discharged by the accused either through direct evidence or through the
doubtfulness in the evidence of the prosecution.
21. Perusal of the entire evidence on the side of the prosecution
would show that there are not only material contradictions but the
background in which the complaint was given itself is not normal. The
said weaknesses on the side of the prosecution can serve as rebuttal
circumstances in favour of the accused for discharging his reverse burden
against the initial presumption and that has not been properly appreciated
by the trial court also.
22. Normally, the judgment of acquittal need not be interfered
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unless for the reasons of prevention of miscarriage of justice. In that
regard, it is useful to refer the judgment of the Hon'ble Supreme Court in
Chandrappa & Others vs State Of Karnataka dated 15.02.2007
reported in 2007(4) SCC 415, wherein the principles regarding the powers
of the appellate court while dealing with an appeal against judgment of
acquittal has been laid down as under:
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate
court while dealing with an appeal against an order of acquittal
emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power and
an appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very strong
circumstances" "distorted conclusions", "glaring mistakes", etc.
are not intended to curtail extensive powers of an appellate court
in an appeal against acquittal. Such phraseologies are more in the
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nature of "flourishes of language" to emphasise the reluctance of
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of e acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not disturb
the finding of acquittal recorded by the trial court''.
23. As the instant case falls under the POCSO Act, there cannot be
any initial presumption of innocence in favour of the accused. As stated
already, initial presumption will be in favour of the prosecution and the
accused has got reverse burden to prove his innocence by rebutting the
initial presumption. As there is a glaring possibility for a complaint was
given with a tainted motive and there are material contradictions in the
evidence of the victim child along with other incidental and unusual
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circumstances, that can serve as rebuttal circumstances in favour of the
accused to rebut the initial presumption. Thereafter, the prosecution has
got burden to prove the guilt of the accused beyond reasonable doubt. As
initial presumption got rebutted, the prosecution has lost the benefit of
getting it culminated into conclusive proof.
24. In view of the above discussion, I do not find any necessity to
interfere with the judgment of acquittal as held by the trial court.
25. In fine,
(i) This Criminal Appeal is dismissed;
(ii) The judgment dated 06.07.2017 passed in S.C.No.46 of 2016
on the file of the District Sessions (Mahila) Court, Madurai District is
confirmed.
05.06.2025
Index : Yes/No
Internet : Yes/No
CM
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To,
1.The Sessions Court,(Mahila Court),
Tirunelveli Sessions Division,
Tirunelveli.
2.The Inspector of Police,
Tirunelveli Town Woman Police Station,
Tirunelveli
(In Crime No.8 of 2014)
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
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R.N.MANJULA, J
CM
Judgment made in
05.06.2025
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