Madras High Court

A.Antony Cruz vs The Inspector Of Police on 20 June, 2025

                                                                                Crl.A(MD)No.200 & 223 of 2017

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 20.06.2025

                                                      CORAM:

                                  THE HON'BLE DR.JUSTICE R.N.MANJULA

                                       Crl.A(MD)No.200 & 223 of 2017

                A.Antony Cruz
                                                          ... Appellant in Crl.A(MD) No.200 of 2017

                Arockiasamy
                                                          ... Appellant in Crl.A(MD) No.223 of 2017

                                                              Vs
                The Inspector of Police,
                Periyakulam Police Station,
                Periyakulam, Theni District.
                                                                               ... Respondent in both apeals

                Common Prayer: These Criminal Appeal Cases filed under Section 374 of
                Cr.P.C to call for records relating to the Judgment in Spl.S.C.No.07 of 2014 on
                the file of the learned Sessions Judge (Fast Track Mahila Court), Theni, in
                Cr.No.210 of 2013 on the file of the respondent police station and set aside the
                same and acquit the appellants.
                                     For Appellants       :         Mr. T.Lajapathi Roy
                                                                          Senior Counsel
                                                                    for M/s.Seeni Syed Amma
                                                                    (In Crl.A(MD) No.200 of 2017)

                                                                    Mr. C.V.Varkeeswaran
                                                                    (In Crl.A(MD) No.223 of 2017)

                                     For Respondent :               Mr.A.Albert James
                                                                    Government Advocate (Crl.Side)

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                                                                                       Crl.A(MD)No.200 & 223 of 2017




                                                  COMMON JUDGMENT

The Criminal Appeals have been filed challenging the Judgment of

the learned Special Judge, Fast Track Mahila Court, Theni, dated 08.05.2017

made in Spl.S.C.No.07 of 2014.

2.The appellants are the accused 1 and 2, who have been convicted

and sentenced in the following manner:

                        Rank of      Provisions
                 S.
                          the       under which      Sentence of imprisonment                   Fine amount
                 No
                        accused      convicted
                                   294(b) IPC      3 months simple imprisonment                         -

                                   354 IPC         Two Years simple imprisonment                        -
                 1         A-1     506(i) IPC      Two Years simple imprisonment
                                                                                            Rs.5,000/-, in default to
                                   8 of POCSO Act 5 years rigorous imprisonment             undergo 1 year rigorous
                                                                                                imprisonment-
                                   294(b) IPC      3 months simple imprisonment                         -
                                   354 IPC         Two Years simple imprisonment                        -

                 2         A-2     506(i) IPC      Two Years simple imprisonment
                                                                                            Rs.5,000/-, in default to
                                   8 of POCSO Act 5 years rigorous imprisonment             undergo 1 year rigorous
                                                                                                imprisonment-

The sentences were ordered to be run concurrently.

3.As per the case of the prosecution, on 13.08.2013 when PW2,

who is the brother's daughter of PW1 was playing outside her house; the

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accused 1 and 2 came to the house of PW1 and asked her for some medicine.

But she turned them away by stating that she did not have any medicine. After

some time, she had seen that the accused were sexually assaulting PW1 and

when she objected, the accused abused her in filthy language and started to

outrage her modesty by pulling her hands. PW1 rescued herself with difficulty

and shouted. On seeing this, the accused threatened her that they would do

away with her.

4.On the complaint given by PW1, on 13.08.2013 at about

05.00p.m., a case in Cr.No.210 of 2015 has been registered and taken up for

investigation. After completing the investigation, charge sheet has been filed

against the accused under Sections 294(b), 354, 506(i) IPC and Section 8 of

POCSO Act.

5.After taking cognizance of the charge sheet, copies were

furnished to the accused and charges were framed against the accused under

Sections 294(b), 354, 506(i) IPC and Section 8 of POCSO Act and questioned

them. As the accused denied the offence and claimed to be tried, trial was

conducted.

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6.On the side of prosecution, 12 witnesses were examined as PW1

to PW12 and 7 documents were marked as Ex.P.1 to Ex.P.7. After observing

the legal mandates and concluding the trial and on appreciation of evidence, the

learned trial Judge has convicted the accused as tabulated above. Aggrieved

over that, the accused have filed these appeals.

7.The learned Senior Counsel for the appellants submitted that the

age of the child has not been determined as per guidelines. The manner in

which the evidence was given by PW1 and PW2, it is impossible for PW1 to

have witnessed the occurrence. PW5 and PW6, who are independent witnesses

along with PW7 and PW8 mahazar witnesses, have turned hostile, but this was

not appreciated by the trial Court.

8.The learned Senior Counsel further submitted that PW1 is the

complainant, who did not even know the contents of the complaint. The

complaint has been written by one Karunanithi. The accused were totally

strangers to PW2. It is impossible for the strangers to come and ask medicine

for their ailments, to abuse the victim child sexually. As the accused came in a

Car and PW1 demanded more money for the medicine and that has resulted in

quarrel and with that motive, a false complaint was given and that was not

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properly appreciated by the trial Court. Even about the material part of

evidence, there is contradictions in the evidence of PW1 and PW2 and the trial

Court failed to appreciate the same in a proper perspective.

9.Per contra, the learned Government Advocate (Crl.Side)

appearing for the respondent Police submitted that the prosecution witnesses

have stated in their evidence about the incriminating acts of the accused and that

would make out the offences punishable under the POCSO Act. The trial Court

has rightly given the initial presumption in favour of the prosecution and with

the evidence of PW1 and PW2, the presumption had become conclusive and

hence, it is right for the trial Court to convict the accused for the offences under

Sections 294(b), 354, 506(i) IPC and Section 8 of POCSO Act.

10.I have given my anxious consideration to the submissions made

on either side and carefully perused the records.

11.It appears from the compliant Ex.P1 and the evidence of PW1

that the accused had came to the house of PW1 for requesting some medicines,

as they had pain over their legs. During cross examination of PW1, she has

stated that her family belongs to Scheduled Tribe Community and they prepare

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some country medicine for certain ailments. She has further stated in her

evidence that when the accused came to her house seeking medicines, the

second accused was limping, as he had some injuries on his leg. In the

complaint, it is alleged that after saying to the accused that the medicines are not

available, PW1 went inside the house. After some time, when she came out, she

had seen the occurrence. But in her evidence, she has stated that after driving

away the accused by stating that no medicine was available, she went outside to

fetch water. Only when she returned, she noticed that the accused were

removing the dress of the victim child and the accused was touching her private

parts.

12.PW2, who is the victim child has stated in her evidence that

PW1 is her paternal aunt and while she was playing in front of her house, the

accused came there and requested some medicine from her aunt and her aunt

had driven them away by stating that they do not run a medical shop and

thereafter, the accused came to her and asked her to remove her shirt and skirt

and touched her inappropriately. That was seen by her aunt and she shouted at

them, for which, the accused responded by abusing her in filthy language. PW1

has stated in her evidence that when she shouted at the accused, they quarreled

with them by saying that they would do the same thing for her also and pulled

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her Saree. But in the complaint of PW1, it is stated that the accused have

removed the panties of the child and assaulted her sexually by touching her

private parts.

13.PW10, Investigation officer has also stated in his evidence that

the witnesses have stated during his examination that the accused had removed

the panties of the child and touched the private parts. They also pulled the Saree

of PW1 and outraged her. The evidence of PW1 and PW2 are seen to be

contradictory in respect of the manner in which the occurrence had taken place.

14.Though in sexual offenses against children one cannot expect

the same words from the child and her guardians, their evidence have to be

appreciated in a holistic manner in order to understand whether they seriously

mean what they had stated in the complaint. Sometimes the contradictions in

describing the offence, plays a crucial role. This is especially when there are

doubtful circumstances and contradictions in the other aspects of the

occurrence.

15.In the instant case, the accused, who came there to seek

medicines were strangers to PW1 and even according to PW1, her families

involved in preparing country medicine for certain ailments and the second

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accused had ailment on his leg and he was seen walking by limping. She had

further stated that the accused had came in a Car. In such case, after PW1

answered them that there was no medicine available, the accused would

naturally move away from that place. But PW1 has stated that she had seen them

sexually abusing the child. At one point, her evidence, she has stated that she

went out of the house to fetch water. In the complaint she has stated that she

went inside the house and she came after some time and noticed the occurrence.

16.The victim child has stated in her evidence that her aunt has

gone inside the house, which is also contradictory to the evidence of PW1. No

doubt, the victim's evidence is the most significant evidence in the offence of

sexual offenses against children. She has stated in her evidence that the accused

asked her to remove her dress and they touched her body parts. PW2 has not

stated the occurrence by supplying any detail as to how it was stated by PW1.

PW2's evidence does not have anything as to the accused touching her private

parts.

17.As regards the motive, it was suggested to PW1 that there was

some quarrel with regard to demand for more money for the medicine and at the

instigation of some community persons, complaint has been given against the

accused with false allegations.

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18.PW1 has stated in her examination that her husband's brother

Karuppasamy had written the complaint, but the person, who said to have

written the complaint was not examined as a witness.

19.In this aspect, the trial Court has observed in its judgment that

even if the scribe of the complaint was not examined, PW2 has deposed

evidence clearly and that will strengthen the case of the prosecution.

20.But, perusal of the records show that PW2 has not stated the

matter found in her complaint, while she was examined in the Court. As stated

already, there are contradictions in the evidence of PW1 and PW2. One more

aspect, which assumes relevance is about the allegation that the accused shouted

at PW1, when she questioned them about the act of causing sexual assault to the

child. PW1 has stated that when she questioned the accused, they abused her

and declared that they would do the same thing to her also and pulled her Saree.

If any strangers are caught red-handed when they were doing such atrocious and

ugly act of sexual assault on a child, his impulsive response would be rectified

and trying to leave the place early. Quite strangely PW1 has stated that the

accused had retaliated by abusing her and pulling her saree. This is highly

improbable and abnormal and hence unbelievable. The accused are total

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strangers to PW1 and PW2 and hence, they would have got a feeling of

insecurity. This impracticality and improbability would weaken the reliability

standards of the evidence of PW1 and PW2.

21.According to the prosecution, the victim was below 12 years.

But for the reasons best known, the School Certificate of the victim child was

not produced by the investigation officer. Even the trial Judge has not raised any

doubt about her age. PW2 by her looks could be a child below 18 years of age.

But the impact of age between 10 years and 12 years old child is significant in

POCSO case, in view of the categorisation of aggravated act if the child is

below 12 years and the graver of punishment. In the instant case, the trial Court

has framed the charges under Section 8 of POCSO Act, though it has determined

the age of the child is below 12 years.

22.The victim child in her evidence has stated that she was studying

in 6th Standard at the time when she deposed evidence. Considering the

difference in punishment, the age of the child ought to have been determined

properly.

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23.The above lapses on the part of the trial Court would also show

that the trial Court has not appreciated the material exaggerations and

contradictions in the circumstances of the case in a proper perspective.

24.It has been, held repeatedly by various judgments of the Hon'ble

Supreme Court that wherever the accused has got the reverse burden to prove

his innocence, in view of the initial presumption in favor of the prosecution, the

rebuttal proof can be either through direct evidence or by availing the

presumption drawn from the infirmities and weaknesses on the side of the

prosecution.

25.In this regard, it is relevant to refer the decision of the Hon'ble

Supreme Court in Basalingappa v. Mudibasappa, reported in (2019) 5 SCC

418, wherein, it is held as follows:

“25.We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:

25.1....

25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials

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submitted by the complainant in order to raise a probable defence.

Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.”

26.The position of law with regard to reverse burden as held by the

Hon'ble Supreme Court in the above said case is applicable to the case on hand

also. As observed already the material contradictions and exaggerations in the

evidence on the side of the prosecution should be considered as rebuttal

circumstances or proof in favour of the accused. If the initial presumption is

rebutted in view of the above weakness in the case of the prosecution, then the

burden once again shifts on the prosecution for proving the guilt of the accused.

As the prosecution failed to discharge the burden so shifted, by proving the guilt

of the accused, the learned trial Judge ought to have held that the charges

against the accused are not proved. As the trial Court has not properly

appreciated the evidence before arriving at the conclusion that the accused is

guilty, I feel the Judgment of the trial Court calls for interference.