Madras High Court
Subramaniyan vs The State Rep. By on 19 June, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.1089 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.06.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.1089 of 2024
and Crl.M.P.No.12016 of 2024
Subramaniyan ... Appellant
Vs.
The State rep. by
The Inspector of Police,
All Women Police Station,
Ariyalur,
Ariyalur District.
Crime No.38 of 2021 ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C., to
call for the records in Spl.S.C.No.06 of 2022 on the file of the Fast Track
Mahalir Court at Ariyalur, set aside the judgment and order of conviction
dated 15.03.2023 against the appellant/accused and thereby allow the
appeal.
For Appellant : Mr.Conscious Elango
For Mr.D.Arun
For Respondent : Mr.S.Rajakumar
Additional Public Prosecutor
Page 1 of 12
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Crl.A.No.1089 of 2024
JUDGMENT
This Criminal Appeal has been filed as against the order
dated 15.03.2023 passed by the learned Sessions Judge, Fast Track
Mahalir Court, Ariyalur, made in Spl.S.C.No.06 of 2022, thereby
convicting the appellant for the offences punishable under Sections 323,
354A(2) of IPC and Section 10 of the Protection of Children from Sexual
Offences (hereinafter referred to as “the POCSO Act”).
2. The case of the prosecution is that the victim girl is none
other than own daughter of the accused and he used to give sexual torture
to the victim girl from she was studying in sixth standard. On
02.10.2021, at about 10.00 am., while the victim girl was preparing break
fast at her grandmother's house, the accused entered through back side of
the house and attempted to throw a fish pot on the victim girl. Though,
she escaped, she sustained injury on her right hand. On the complaint,
the respondent registered the FIR in Crime No.38 of 2021 for the
offences punishable under Section 9(l)(n) r/w 10 of the POCSO Act.
After completion of investigation, the respondent filed final report and
the same has been taken cognizance in Spl.S.C.No.06 of 2022.
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3. On the side of the prosecution, they had examined P.W.1 to
P.W.10 and marked documents in Ex.P.1 to Ex.P.11. The Court marked
one document in Ex.C.1. On the side of the accused, D.W.1 and D.W.2
were examined and no documents were marked. On perusal of the oral
and documentary evidence, the trial Court found the accused guilty for
the offences under Sections 323, 354A(2) of IPC and Section 10 of the
POCSO Act and sentenced him to undergo seven years rigorous
imprisonment and to pay a fine of Rs.50,000/- in default to undergo
further period of six months simple imprisonment for the offence under
Section 10 of the POCSO Act and to undergo one year rigorous
imprisonment and to pay a fine of Rs.1,000/- in default to undergo
further period of three months simple imprisonment for the offence under
Section 323 of IPC. Aggrieved by the same, the present appeal.
4. The learned counsel appearing for the appellant submitted
that the prosecution miserably failed to prove the charges. There was a
property dispute between the appellant and his wife. In fact, the appellant
was working in gulf country and thereafter returned to India.
Immediately after returning to India, false complaint has been lodged in
order to grab the property by his wife. The victim was examined as
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P.W.1. She deposed that even from her sixth standard, the appellant
harassed her by giving sexual torture. In her cross examination, she
admitted that the appellant was in abroad for four years, while the victim
was studying from sixth standard to eighth standard. Further, she did not
know when the appellant returned India. Except P.W.1 & P.W.2, there is
no independent witness has been examined in order to prove any of the
charge. He further submitted that now the petitioner incarceration from
the date of judgment passed by the trial Court. Even before that, during
investigation, the petitioner was arrested and remanded to judicial
custody for the period of two months and thereafter, he was enlarged on
bail. Hence, he prayed to allow this appeal.
5. The learned Additional Public Prosecutor submitted that the
victim was examined as P.W.1 and she categorically deposed that the
appellant had given sexual torture to her even she was studying sixth
standard. One day when the electricity was not there in their house, the
accused asked her to remove her dress and compelled her to touch his
private part. She further submitted that whenever her mother not there in
house, the accused indulged in same kind of illegality. While being so,
on the date of occurrence, the accused also attempted to put a fish tank
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on her. Fortunately, she escaped but however she had injury on her right
hand. Thereafter, the appellant also slapped her. The victim girl's mother
lodged the complaint and she was examined as P.W.3. She also
corroborated the evidence of P.W.1 and as such the prosecution proved
the charges. Hence the trial Court rightly convicted the appellant and
prayed for dismissal of the appeal.
6. Heard the learned counsel appearing on either side and
perused the material placed on record.
7. P.W.1 is none other than own daughter of the appellant.
P.W.3 is his wife. P.W.2 is the close relative of P.W.3. The crux of the
prosecution was that there was a quarrel between the appellant and his
wife due to which, his wife used to go to her parent's house. During that
time, the appellant insisted the victim to remove her dress and compelled
her to touch his private part. While being so, on 02.10.2021 at about 10
a.m., the appellant went into the house of the victim girl on backside and
attempted to put a fish tank on the victim girl. Fortunately, the victim girl
escaped. Even then she has sustained injury on her right forearm.
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8. The victim girl was examined as P.W.1. On perusal of her
deposition, it is revealed that whenever her mother was not there, the
appellant used to give sexual torture to her. However, it was not
informed to anybody. On the first time, viz., on 02.10.2021, when the
appellant attempted to put a fish tank on the victim girl, P.W.3 lodged
complaint, alleging that the appellant gave sexual torture to the victim
girl. She further alleged that when the victim girl escaped, immediately
the appellant attempted to hug her and pushed down. Therefore, she fell
down and sustained injury on her forehead. She further deposed that due
to the torture given by the accused, she was studying in her aunt house
viz., own sister of the appellant and she studied up to eighth standard.
9. After the complaint, the victim girl was subjected for
medical examination and also she was treated for the injury sustained by
her on her right forearm. However, there was no evidence for the sexual
torture. There is no evidence to show that victim girl had sexual
relationship. P.W.9 the Doctor, who examined the victim girl deposed
that the victim girl was subjected for medical examination and she found
no injury on her private part. She certified that the victim girl had no
sexual intercourse.
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10. The defacto complainant viz., mother of the victim girl was
examined as P.W.3. She deposed that the appellant was always under the
influence of alcohol and used to beat her. During Gandhi Jayanthi, he
was under the influence of alcohol and quarreled with P.W.1. On the date
of occurrence, the appellant entered into their house and attempted to put
a fish tank on the victim girl. However, she escaped and thereafter she
informed that the accused used to give sexual torture to her by showing
obscene videos. Therefore, it is nothing but after thought to make such a
allegation as against the appellant. If at all any sexual torture on the
victim girl, should would tell the same at least to her mother viz., P.W.3.
Even after the allegations of sexual torture, the victim girl was there in
the house of the appellant. Therefore, the prosecution miserably failed to
prove the charge under the POCSO Act. Hence, the conviction and
sentence imposed for the offence under Section 10 of the POCSO Act
cannot be sustained and liable to be set aside.
11. Insofar as the offence under Section 323 of IPC is concerned
on 02.10.2021, the appellant entered into the house of the defacto
complainant and attempted to put a fish tank on the victim girl.
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Fortunately, she escaped, even then she sustained injury on her right
forearm. Thereafter, he also slapped her and also pushed her down.
Therefore, she sustained injury on her forehead. Immediately she was
taken to hospital at about 12 noon. P.W.9 examined her and found one
laceration wound on her right forearm and there was swelling on her
forehead. She certified that both the injuries are simple in nature.
Therefore, the prosecution proved the charges under Section 323 of IPC
and the trial Court rightly convicted the appellant for the offence under
Section 323 of IPC.
12. Insofar as the offence punishable under Section 354A(2) of
IPC is concerned the victim girl categorically deposed that on
02.10.2021, the appellant attempted to hug her and when the victim
refused, he pushed her down. Therefore, she fell down and sustained
injury on her forehead. She also deposed that even before 02.10.2021,
the appellant had made demand to his sexual needs and also shown
obscene photographs. Therefore, the prosecution proved the charges
under Section 354A(2) of IPC. Though the trial Court convicted the
appellant for the offence under Section 354A(2) of IPC did not impose
any sentence for the said offence, since the appellant was convicted and
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sentenced to undergo seven years rigorous imprisonment for the offence
under Section 10 of the POCSO Act. Now the conviction and sentence
imposed for the offence punishable under Section 10 of the POCSO Act
is set aside.
13. Accordingly, the judgment dated 15.03.2023 passed by the
learned Session Judge, Fast Track Mahalir Court, Ariyalur, in
Spl.S.C.No.06 of 2022, is set aside insofar as the conviction and sentence
imposed on the appellant for the offences punishable under Section 10 of
the Protection of Children from Sexual Offences Act alone and the
conviction and sentence imposed on the appellant for the offences
punishable under Sections 323 & 354A(2) of IPC are hereby confirmed.
However, the trial Court failed to sentence the appellant for the offence
under Section 354A(2) of IPC, since the appellant was convicted and
sentenced to undergo seven years rigorous imprisonment for the offence
punishable under Section for the offence under Section 10 of the
Protection of Children from Sexual Offence Act. Hence, the appellant is
sentenced to undergo imprisonment for the period already undergone by
him for the offence under Section 354A(2) of IPC. The appellant is
acquitted of the charge under Section 10 of Protection of Children from
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Sexual Offence Act. The appellant/accused is directed to be set at liberty
forthwith unless his custody is otherwise required in connection with any
other case. Fine amount, if any paid, shall be refunded to the appellant
forthwith. Bail bond, if any executed, shall stand cancelled.
14. In the result, this Criminal Appeal is partly allowed.
Consequently, connected miscellaneous petition is closed.
19.06.2025
(2/2)
Index : Yes/No
Neutral citation : Yes/No
Speaking/non-speaking order
rts
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To
1.The Session Judge,
Fast Track Mahalir Court,
Ariyalur.
2.The Inspector of Police,
All Women Police Station,
Ariyalur,
Ariyalur District.
3.The Superintendent,
Central Prison,
Trichy.
4.The Public Prosecutor,
High Court, Madras.
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G.K.ILANTHIRAIYAN, J.
rts
19.06.2025
(2/2)
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