Madras High Court
Bajarudeen vs State Rep on 24 June, 2025
Crl.A.(MD)No.191 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.06.2025
CORAM :
THE HONOURABLE DR. JUSTICE R.N.MANJULA
Crl.A.(MD)No.191 of 2017
Bajarudeen ... Appellant
versus
State rep., by
The Inspector of Police,
Thiruvidaimaruthur Police Station,
Thanjavur District.
Crime No.54 of 2015 ... Respondent
Prayer : Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure, to call for the records in Special Sessions Case No.09
of 2016 on the file of the learned Sessions Judge, Mahalir Neethimandram
(Fast Track Mahila Court), Thanjavur, Thanjavur District and set aside the
judgment dated 19.04.2017 and acquit the appellant of the charges leveled
against him.
For Appellant : Ms.M.Shunmalar
For Respondent : Mr.A.Albert James
Government Advocate (Crl.side)
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Crl.A.(MD)No.191 of 2017
JUDGMENT
This criminal appeal has been preferred challenging the judgment of
conviction and sentence dated 19.04.2017 made in Special Sessions Case
No.09 of 2016 by the learned Sessions Judge, Mahalir Neethimandram (Fast
Track Mahila Court), Thanjavur, Thanjavur District, thereby convicting and
sentencing the appellant /sole accused for the offence under Section 6 of
Protection of Children from Sexual Offences Act, 2012 to undergo 10 years
of rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to
undergo 1 year of simple imprisonment.
2. The case of the prosecution is that the victim girl was 15 years old
at the time of occurrence. On 02.02.2015 at about 03.00 pm., when the
mother of the victim girl namely P.W.1, was not at home, the accused came
there and insisted the victim girl to come along with him and forcibly took
her to Vadamattam Mariamman Kovil, where the accused tied 'Thali' to her
and thereafter, he took her to his sister's house. The sister of the accused
refused to allow them into her house. Thereafter, the accused took the
victim girl to Aaduthurai and then to Bangalore. As P.W.1 did not know
where the victim girl has gone, she lodged a complaint on 04.02.2015.
Based upon the complaint, FIR was registered in Crime No.54 of 2015 by
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the Thiruvidaimaruthur Police Station for the offence under Section 366(A)
of IPC.
3. Thereafter, on 07.02.2015, during search, the accused and victim
girl were identified by the mother of the victim girl at Hosur and they were
brought to the police station. Thereafter, the victim was sent to Children
home and she was subjected to medical examination and thereafter, she was
sent along with her mother, P.W.1. Upon enquiry, P.W.1 came to know
from the victim girl that the accused had sexual intercourse with the victim
girl continuously for three days.
4. After completion of the investigation, the Investigating Officer has
filed a charge sheet against the accused under Section 366(A) of IPC and
Section 6 of POCSO Act, 2012 and the same was taken on file in
Spl.S.C.No.9 of 2016 by the learned Sessions Judge, Mahalir
Neethimandarm, Fast Track Mahila Court, Thanjavur. After receipt of
summons from the trial Judge, when the accused appeared in person before
the trial Judge, copies of the documents were served on him under Section
207 of Cr.P.C. After giving sufficient time to the accused and after hearing
the accused and considering the documents, necessary charges were framed
for the offences under Section 366(A) of IPC, Section 9 of Children
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Marriage Prohibition Act and Section 6 of POCSO Act. The accused had
denied the charges and pleaded not guilty for the aforesaid charges and
claimed to be tried.
5. During trial, on the side of the prosecution, P.W.1 to P.W.16 were
examined and Ex.P1 to Ex.P13 were marked.
6. On completion of the evidence on the side of the prosecution, when
the accused was questioned under Section 313 of Cr.P.C, as to the
incriminating circumstances found in the evidence of prosecution witnesses
against him, the accused had come with the version of total denial and
stated that he had been falsely implicated in this case. On the side of the
defence, no oral and documentary evidence was let in.
7. The trial Judge, after hearing the arguments advanced on either
side and also considering the materials available on record, found the
appellant guilty and awarded punishment, as referred to above, by the
impugned judgment of conviction and sentence.
8. Aggrieved over the same, this criminal appeal has been preferred
by the appellant/sole accused.
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9. Heard both sides.
10. The learned counsel for the appellant submitted that there was love
affair between the victim girl and the accused and the victim girl has
voluntarily left the home and accompanied with the accused, as her parents
started finding some other alliance to her. It is further submitted that the
victim had given 164 Cr.P.C statement before the Magistrate, in which, she
has stated that herself and the accused were in love each other and she had
voluntarily accompanied the accused to Bangalore, where they were living
in a separate house. The victim girl has not stated any incriminating
evidence against the accused; Only after the victim girl was left with the
custody of P.W.1, mother, she was tutored and deposed before the Court.
When she was examined before the court, she has stated that the accused
had committed penetrative sexual assault on her. It is contended that the
age of the victim girl was not proved in the manner known to law and the
trial Judge did not consider this vital aspect and wrongly convicted the
accused for the offence under Section 6 of POCSO Act.
11. The learned Government Advocate (crl.side) submitted that the
age of the victim girl was below 18 years and the same was proved by
producing the school certificate, wherein the date of birth of the victim girl
was shown as 05.11.1999; On the date of occurrence, the victim girl was 15
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years and two months, the same was proved during medical examination;
the victim girl has stated in her evidence that she initially hesitated to say
about the penetrative assault committed by the accused and hence, her 164
statement before the Magistrate was short and in her evidence, she had
stated what had actually happened. The learned trial Judge has rightly
appreciated the evidence of the victim girl/P.W.2 and held that the accused
was found guilty for the offence under Section 6 of POCSO Act.
12. Even according to the trial Court, it was a love affair between the
victim girl/PW2 and the accused. From the evidence of P.W.1, mother of
the victim girl, it reveals that the accused used to follow the victim girl,
whenever she was going to the school and due to this, the victim girl
eventually stopped from attending the school. The learned trial Judge has
rightly appreciated the evidence available on record and convicted the
accused. So far as the age of the victim child is concerned, her age has been
determined based upon the school certificate issued, where it has been
shown that the date of birth of the victim child is 05.11.1999. The victim
child was studying in Kumbakonam St.Joseph Girl Higher Secondary
School at the time of occurrence. The Head Master of the school was
examined as P.W.9. He has stated that from the School Transfer Certificate,
he came to know that the date of birth of the victim child is 05.11.1999 and
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that is also shown in the 10th standard mark sheet of the victim child, which
has been marked as Ex.P.8. The school certificate has been produced as
Ex.P.7. Hence, the age of the victim has been proved as per Section 94 of
the Juvenile Justice Act.
13. However, the learned counsel for the appellant submitted that the
age of the victim has not been proved in accordance with law and hence, the
victim girl cannot be considered as child, falling under the definition of
child under the POCSO Act. Even during the cross-examination of the
victim girl and her mother P.W.1, it was not suggested that the date of birth
has been wrongly given. Despite charges have been framed against the
accused is inclusive of Section 366-A of IPC, the learned trial Judge has
observed that the victim girl was not compelled to go with the accused and
it was on her own wish. The learned trial Judge observed that the victim did
not travel with the accused and she did not try to escape from the bike
raising any noise. Her statement before the trial Court also made it clear
that she only contacted with the accused, after she started to love him. On
the alleged date, the victim called the accused as she was frustrated due to
the efforts taken by her parents to find some other alliance. So, the accused
and the victim have planned to get out the house. Hence, the trial Court has
observed that the accused had responded to the call of victim girl.
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14. As pointed out by the learned counsel for the appellant, the victim
girl gave 164 statement before the Magistrate on 25.03.2015, wherein she
has stated that after she gone with the accused to Bangalore, the accused
was working as AC Mechanic and she was staying in the house of the
owner of the accused and the accused was staying in a separate place. But,
when she was examined before the Court, she has stated that she was
staying along with the accused in the house of his owner and they were
allowed to stay there, without knowing that she is a minor. She further
stated that during that occasion of three days, the accused had committed
penetrative sexual assault on her on the pretext that he would marry her.
But in the very same evidence, the victim girl has stated that the accused
married her by tying Tali around her neck and thereafter only, they went to
Bangalore. When the victim girl was examined as P.W.2, she confronted
with her statement given before the Magistrate. She has stated that she did
not state certain facts to the Magistrate during her 164 statement, because
she was having some hesitation to give the same before the Magistrate. The
learned trial Judge got that statement confusing and had proceeded to rely
upon the evidence of the victim given before the Court and had convicted
the accused for the offence under Section 6 of POCSO Act.
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15. But the victim's mother was present even on 25.03.2015 when she
was giving 164 statement before the Court. In-fact she did not go with her
mother, after she was secured. So, at the time, she gave evidence on
30.09.2015 before the Court she was under the custody of her mother.
During her cross-examination, she has stated that after she has gone to her
mother's custody, she has been lenient to whatever her mother said. Under
such circumstances, it is not known whether her statement before the Court
was voluntary or whether her statement before the Magistrate under Section
164 was true and voluntary.
16. No doubt Section 164 statement of the victim was anterior in time
and it could be her spontaneous statement. During that time, she could not
have been under the influence of anyone including her parents, whereas
during her evidence, it could have been possible that someone could have
tutored her as she was under the custody of parent and her parents have all
along given objection for the affair with the accused.
17. No doubt that the parents of the victim would stand inimical to
the accused. She has stated in her evidence that on the assurance given by
the accused to marry her, the accused have committed penetrative sexual
assault with her. No doubt, in sexual offences, the evidence of the victim is
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more significant and the Court can rely on the same even without any
corroboration. Therefore, her evidence is cogent and consistent and hence,
it is reliable.
18. If there is scope for any doubt in view of the material
contradictions, then it is always safe to search for any corroboration. As the
victim has stated in her 164 statement that she was staying in the owner's
house of the accused, it would have been worthwhile for the prosecution to
examine the owner. But his evidence was not available before the Court.
So, the evidence of the victim, which has major contradiction need
uncorroboration.
19. So far as the offence under Section 4 or 6 of POCSO Act is
concerned, the prosecution has got the benefit of having the initial
presumption against the accused under Sections 29 and 30 of the POCSO
Act. Hence, the reverse burden would lie on the shoulder of the accused
and he has to rebut the initial presumption.
20. As it has been held repeatedly that the rebuttal proof need not
always be direct, but it can also be the infirmity on the side of the
prosecution. In the instant case, the victim's evidence is not consistent and
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she has given different statement during 164 before the Magistrate and in
the Court during her examination. In view of the same, it would have been
appropriate, if trial Judge had placed reliance on her evidence and
corroborated the same. The learned Judge, by ignoring the above weakness
in the case of the prosecution and without considering the infirmities in the
case of the prosecution as rebuttable proof in favour of the accused has
found the accused guilty for the offence under Section 6 of POCSO Act.
21. No doubt, the offences of sexual assault against the children are
very serious offence and punishment for the same is also very grave. The
accused has got a huge responsibility to prove his innocence, once the
foundation facts are found to be present and initial presumption is drawn
against him. In the instant case, there are sufficient evidence to show that
the accused had taken the victim on the date of the occurrence and both the
accused and the victim were found together and the origin of the
prosecution case. From the complaint lodged by the mother of the victim,
who is examined as P.W.1, she has stated in the complaint that the victim
and the accused were in love with each other for two years and that was not
accepted by the complainant and that on 02.02.2015, the accused had taken
away the victim in his two wheeler and compelled her to marry and they
were missing. As the evidence of the victim would show that she had gone
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with the accused and believed that the accused had married her, the
foundational facts were proved. Even though the victim has stated in her
evidence that she was staying in the owner's house, then the foundational
fact that the victim was with the accused was proved, the initial presumption
under Sections 29 and 30 of the Act will go for the prosecution. At that
stage, the burden of rebuttal will be shifted to the shoulder of the accused.
In such circumstances, the accused has got no other option except to rely on
the materials contradictions, infirmities and all other doubtful
circumstances, as rebuttal circumstances in his favour. In the instant case,
as stated already, there are material contradictions, which were ignored to
be considered by the driver and the evidence of the victim was accepted,
though it was contrary to her previous statement.
22. In view of the above stated reasons, this Criminal Appeal is
allowed and the impugned judgment of conviction and sentence are hereby
set aside. The appellant is acquitted of all the charges. The fine amount, if
any, paid by the appellant shall be refunded. Bail bond, if any, executed
shall stand discharged.
24.06.2025
Index : Yes/No
NCC : Yes/No.
Rmk
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To
1.The Sessions Judge,
Mahalir Neethimandram (Fast Track Mahila Court),
Thanjavur, Thanjavur District
2. The Inspector of Police,
Thiruvidaimaruthur Police Station,
Thanjavur District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.VR Section.
Madurai Bench of Madras High Court,
Madurai.
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DR.R.N.MANJULA, J.,
Rmk
24.06.2025
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