Madras High Court
K.Sridhar vs The State Rep. By Its on 3 March, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A. No.547 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No.547 of 2016
---
K.Sridhar .. Appellant
Versus
The State Rep. By its
The Inspector of Police,
All Women Police Station,
Panruti.
(Crime No.12 of 2013) .. Respondent
Criminal Appeal filed under Section 374 (2) of Cr.P.C., praying to set
aside the Judgment passed against the Appellant on 24.07.2015 in
Spl.S.C.No.5 of 2014 on the file of the learned Sessions Judge, Fast Track
Mahila Court, Cuddalore and acquit him from all charges.
For Appellant : Mr.R.Hariharan
for Mr.E.Vijay
For Respondent : Mrs.G.V.Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed to set aside the Judgment passed by
the learned learned Sessions Judge, Fast Track Mahila Court, Cuddalore in
Spl.S.C.No.5 of 2014 dated 24.07.2015.
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2. The brief facts, which are relevant for consideration in this
Appeal, are as follows:-
2.1. The victim in this case lost her mother 10 years prior to the date of
occurrence. She was living with her maternal aunt under her care and custody.
The maternal aunt of the victim was an agricultural daily wage labourer and
she used to work in the field of one Kannaiyan, who is a land owner having
agricultural land. The Accused in this case is the son of the said Kannaiyan.
In the course of the agricultural work carried out by the maternal aunt of the
victim, the victim was also accompanied by her maternal aunt. In the course of
such agricultural work, she was acquainted with the son of the land owner
Kannaiyan on 03.06.2013. After the day's work, when the agricultural
products were taken and was about to be stored in the store room near the
house of the land owner, the son of the land owner by around 5.30 p.m., came
to the store room which is adjacent to the motor room, he caught hold of the
victim under the pretext of love, embraced her, forced her to the ground even
though the victim objected, he had forcibly sexual intercourse with her. Also,
he informed that she should not inform people outside. In continuation of the
same, the land owner Kannaiyan had been constructing a new house, in the
newly constructed house, the son of the landlord Kannaiyan summoned the
victim on 10.06.2013 by around 6 p.m., to bring water for him to drink.
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Believing the words of the Accused/son of the landlord, victim brought water
to the newly constructed house for the son of the landlord to drink. At that
time, he had forcibly sexual intercourse with her. When she objected, he had
informed her that he would expose her to the outside world stating that she is
an immoral woman. Therefore, she was forced to co-operate with him.
Subsequently, he informed her that she should co-operate with him whenever
he demands. Subsequently, the Accused summoned her to the house of his
neighbour one Selvaraj, who was working as a Teacher, wherein in the open
terrace, he had sexual intercourse with her. On 27.11.2013, the victim was
alone at the maternal aunt's house by around 6.00 p.m., the Accused went to
the house of the maternal aunt of the victim and had forcibly sexual
intercourse with her. This time also, he informed her that if she disclose this to
outside, he will expose her as a woman of immoral character. Also, he had
given tablets to consume so that pregnancy will be avoided. The maternal aunt
of the victim observed that the victim had not had menstruation. On repeated
enquiries, she confessed to her maternal aunt, who was shocked by the same.
Therefore, she summoned her relatives and the relatives of the victim went to
the house of the landlord and complained of the same, for which they had
threatened them. The relatives of the victim and her aunt by name Sivagami,
Sivaraj and Ayyanar had approached the landlord/Kannaiyan to marry the
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victim to the landlord's son which he flatly refused which forced the relatives
of the victim to lodge a Complaint to the Inspector of Police, All Women
Police Station. The Inspector of Police, All Women Police Station received a
Complaint of the victim and registered a case in Cr.No.12 of 2013 for the
offence under Sections 3 r/w. 4, 7 r/w. 8 of the Protection of Children from
Sexual Offences Act, 2012 and Section 52 of IPC. The Inspector of Police, All
Women Police Station proceeded with the investigation and recorded the
statement of the victim as well as relatives of the victim. She visited the place
of occurrence and prepared a Rough Sketch and Observation Mahazar in the
presence of witnesses. The Inspector of Police, All Women Police Station had
sent a requisition letter to the learned Judicial Magistrate for medical
examination of victim. She had forwarded the victim with a requisition letter
to the Duty Medical Officer, District Head Quarters Hospital, Cuddalore for
medical examination and obtained Medical Certificate regarding the same.
The Inspector of Police, All Women Police Station forwarded him to the
learned Judicial Magistrate, Panruti and sought remand of the Accused for
medical examination and forwarded him with a requisition letter to the duty
Medical Officer, District Headquarters Hospital, Cuddalore subjected to
medical examination and she obtained the medical certificate regarding the
same.
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2.2. The Inspector of Police also had sent requisition letter to the
learned Chief Judicial Magistrate, Cuddalore to nominate a learned Magistrate
to record the statement of the victim under Section 164 Cr.P.C., Accordingly,
the learned Chief Judicial Magistrate had nominated the learned Judicial
Magistrate – III, Cuddalore to record the statement of the victim and
accordingly, the learned Judicial Magistrate had summoned the victim and
recorded the statement of the victim under Section 164 Cr.P.C. The
Investigation Officer had recorded the statement of the Doctor who had treated
the victim and issued Medical Certificate. Also, she had obtained the
statement of the Doctor who had examined the Accused and issued Medical
Certificate.
2.3. After completion of the investigation, the Investigation Officer,
Inspector of Police, All Women Police Station laid the final report of the
investigation before the Court of the learned Sessions Judge, Fast Track
Mahila Court, Cuddalore. The learned Sessions Judge, Fast Track Mahila
Court taken cognisance of the offence alleged against the Accused under
Sections 3 r/w. 4, 7 r/w. 8 of he Protection of Children from Sexual Offences
Act, 2012 and Section 52 of IPC and numbered it as Spl.S.C.No.5 of 2014 and
issued summons to the Accused. On appearance of the Accused, copies were
furnished to the Accused under Section 207 of Cr.P.C., After hearing the
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learned Public Prosecutor and the learned Counsel for the Accused, the learned
Sessions Judge, Fast Track Mahila Court had framed charges against the
Accused for the offence under Sections 5 (l) r/w. 6 of the Protection of
Children from Sexual Offences Act, 2012. The Accused denied the charges
and claimed to be tried. Therefore, the learned Sessions Judge, Fast Track
Mahila Court, Cuddalore ordered trial.
2.4. During trial, to prove the charges, the Prosecution examined 12
witnesses as P.W-1 to P.W-12 and marked 14 documents as Ex.P-1 to Ex.P-14.
After closure of Prosecution evidence, the Accused was examined by the
learned Sessions Judge, Fast Track Mahila Court, Cuddalore, regarding
incriminating evidence available through the Prosecution Witnesses viz., P.W-
1 to P.W-12 and through documents under Ex.P-1 to Ex.P-14, the Accused
denied incriminating evidence against him. The Accused had not let in
evidence. The documents relied by the Accused were marked as Ex.D-1 and
Ex.D-2 through the cross-examination of the Prosecution witnesses. After
hearing the arguments of the learned Counsel for the defence and the learned
Public Prosecutor, the learned Sessions Judge, Fast Track Mahila Court,
Cuddalore, by Judgment dated 24.07.2015 passed in Spl.S.C.No. 5 of 2014
convicted the Accused for the offence under Sections 5 (l) r/w. 6 of the
Protection of Children from Sexual Offences Act, 2012 and sentenced him to
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undergo 10 years of Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in
default, to undergo 6 months of Simple Imprisonment.
2.5. Aggrieved by the judgment of conviction and order of sentence,
the Accused had preferred this Criminal Appeal.
3. The learned Counsel for the Appellant submitted that the
Appellant was convicted for the offence under Section 5 r/w. 6 of the
Protection of Children from Sexual Offences Act, 2012. P.W-1 is the victim in
this case. P.W-2 is her paternal aunt. P.W-3 is her cousin on the paternal side.
P.W-4 and P.W-5 are Mahazar Witnesses and they are turned hostile. P.W-6 is
the relative of P.W-1to P.W-3. P.W-7 is the Doctor who had examined the
victim regarding sexual offence and issued certificate to that effect under
Ex.P-5. P.W-8 is the Doctor who had examined the Accused regarding potency
and issued medical certificate under Ex.P-6. P.W-9 is the Doctor who had
examined the victim and the Accused and issued Radiological Report
regarding the age of the Accused and the victim under Ex.P-8 for the Accused
and Ex.P-7 for the victim. As per the Radiological Report, the age of the
victim is above 17 and below 18 and the age of the Accused is 30 years as on
the date of examination ie., 06.12.2013. P.W-10 is the learned Judicial
Magistrate-III who had recorded the statement of the victim under Section 164
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Cr.P.C., under Ex.P-9. P.W-11 is a relative of the victim. P.W-12 is the
Investigation Officer/Inspector of Police, All Women Police Station, Panruti.
4. The learned Counsel for the Appellant submitted that it is a case
of consensual sex between the Accused and the victim. But the case had been
foisted as though it is a case under the Protection of Children from Sexual
Offences Act, 2012. Only to wreck vengeance on the Accused misusing the
Provisions of the Protection of Children from Sexual Offences Act, 2012.
5. The learned Counsel for the Appellant submitted that as per the
deposition of P.W-1, the victim and the Accused were lovers and they had
indulged in sexual intercourse. Subsequently, there had been difference of
opinion between them and they separated. Accordingly, to wreck vengeance
on the Accused, the relatives of the victim joint together and after discussion,
they had filed a complaint as though it is an offence under the Protection of
Children from Sexual Offences Act, 2012. The Inspector of Police, All Women
Police Station had taken the Complaint and registered the FIR under Ex.P-11
on 04.12.2013. As per the evidence of the victim, she was born in the year
1998. Therefore, as on 2013, Fifteen years. But the Radiological report is
clear that she is above 17 and below 18. In the Radiological report there may
be +/-2.
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6. The learned Counsel for the Appellant invited the attention of this
Court to the evidence of the victim and the exhaustive cross examination.
Also, he invited the attention of this Court to the contents of the Complaint
under Ex.P-1. As per the Complaint, it is stated that she is aged 16 as per the
date of Complaint 04.12.2013 and she had clearly stated that she was in love
with the Accused and in the course of such love affair, they had sexual
intercourse and subsequently she had taken medicine for abortion and aborted
the pregnancy. When the fact came to be known to her paternal aunt/P.W-2,
P.W-2/Paternal aunt along with paternal uncle son/P.W-3 went to the house of
the Accused and requested the parents of the Accused to marry her to the
Accused for which the family of the Accused attacked P.W-1 to P.W-3.
Therefore, she had requested the Inspector of Police, All Women Police
Station, Panruti to help her to be married to the Accused and not to take action
under Protection of Children from Sexual Offences Act, 2012 or legal action.
In the course of the evidence, in the evidence of P.W-2 and P.W-3 and P.W-11,
they had stated that there had been Panchayat in the Village with the elders in
the Village and the Panchayat could not settle the marriage, the Complaint was
lodged. Only to wreck vengeance on the Accused, the Complaint had been
drafted, the case had been developed by the Investigation Officer as though it
attracts the Provisions of the Protection of Children from Sexual Offences Act,
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2012.
7. The learned Counsel for the Appellant invited the attention of this
Court to the evidence of witnesses P.W-1 to P.W-3, P.W-11 and P.W-6 who are
all related to the victim. The Mahazar witnesses remained hostile. The medical
evidence does not support the claim of the Prosecution Witnesses particularly
victim.
8. Also, he invited the attention of this Court to the evidence of the
Investigation Officer as P.W-12 and the evidence particularly in cross-
examination since the Investigation Officer felt the Complainant’s Complaint
was a weak Complaint. She had has an afterthought recorded the statement of
the victim and sent it to the Court in the year 2014. All the documents were
sent to the Court of the learned Judicial Magistrate only in the year 2014 and
not at the earliest point of time. Therefore, the Investigation was shoddy. She
had not conducted investigation in a fair manner. She had admitted in the
cross-examination that the victim prosecutrix had not stated previous
occurrences with all the details. Ex.P-10 showing the birth certificate of victim
is not that of the victim it was procured by the Investigation Officer to suit the
facts of the case. The Prosecution witnesses/P.W-2 is the paternal aunt, P.W-3
is the paternal uncle son, P.W-6 is the paternal aunt son and P.W-11 is also a
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relative of the victim. Therefore, they have just supported the case of the
Prosecution. They are hearsay witnesses. The Prosecution failed to prove the
charge as framed by the trial Court. The learned trial Judge had on assessment
of evidence, mechanically convicted the Accused based on section 29 of the
Protection of Children from Sexual Offences Act, 2012 under presumption,
which is therefore perverse and the Judgment of Conviction and sentence of
Imprisonment awarded to the Accused is perverse and is to be set aside.
9. The learned Counsel for the Appellant had relied on the ruling of
the Hon'ble Supreme Couret in (1975) 4 SCC 497 in the case of Ram Narain
Singh Vs. State of Punjab wherein it has been observed as follows:-
“14. Where the evidence of the witnesses for the Prosecution
is totally inconsistent with the medical evidence or the evidence of the
ballistic expert, this is a most fundamental defect in the Prosecution
case and unless reasonably explained it is sufficient to discredit the
entire case. In Mohinder Singh Vs. State in the case of 1950 SCR 821
: AIR 1953 SC 415, this Court observed in similar circumstances as
follows:
In a case where death is due to injuries or wounds caused by a
lethal weapon, it has always been considered to be the duty of the
Prosecution to prove by expert evidence that it was likely or at least
possible for the injuries to have been caused with the weapon with
which and in the manner in which they are alleged to have been
caused. It is elementary that where the Prosecution has a definite or
positive case, it is doubtful whether the injuries which are attributed
to the Appellant were caused by a gun or by a rifle.
It is obvious that where the direct evidence is not supported by
the expert evidence, then the evidence is wanting in the most material
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part of the Prosecution case and it would be difficult to convict the
Accused on the basis of such evidence. While appreciating the
evidence of the witnesses, the high Court does not appear to have
considered this important aspect, but readily accepted the
Prosecution case without noticing that the evidence of the
eyewitnesses in the Court was a belated attempt to improve their
testimony and bring the same in line with the doctor's evidence with a
view to support an incorrect case.”
Also he relied on the following rulings:-
(i) (2008) 16 SCC 471 in the case of Noor Aga Vs. State of Punjab.
(ii) 2020 16 SCC 709 in the case of Hanif Khan Vs. Central Bureau.
(iii) 2021 4 Gau LR 430 in the case of Saiful Islam Vs. State of Assam.
(iv) 2022 SCC Online Mad 1660 in the case of Ashraff Ali Vs. State of
Tamil Nadu.
(v) 2020 SCC Online Ker 3368 in the case of David Vs. State of
Kerala.
10. In support of his contention regarding appreciation of evidence by
the trial Court and re-appreciation of evidence by the Appellate Court
independently. If the Appellate Court arrives at a conclusion that two views
are possible the benefit of acquittal shall be extended to the Accused. Also, it
is the submission that the evidence of the Prosecutrix or the victim is of
sterling quality, the Court shall convict the Accused. If not, merely based on
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presumption under Section 29 of the Act that the Accused had not let in
rebuttal evidence. The Court shall not convict the Accused. Merely because,
the Accused had not let in rebuttal evidence in the light of the ruling reported
in (2008) 16 SCC 417 in the case of Noor Aga Vs. State of Punjab, it is a case
under NDPS Act where the presumption under Section 35 (i) of NDPS Act and
the reverse burden on the Accused had been discussed.
11. It is the contention of the learned Counsel for the Appellant that
the learned Sessions Judge, Fast Track Mahila Court had not considered the
entire materials available before the Trial Court not assessed and analysed the
facts and circumstances of this case properly as per the Provisions of the
Indian Evidence Act and had drawn the adverse inference about the Accused
not letting in rebuttal evidence. The learned Judge had invoked the Provisions
of Section 29 of the Protection of Children from Sexual Offences Act, 2012 to
consider that the prosecutrix evidence is the bona fide truth and had convicted
the Accused. The first incident, as per the evidence of the Prosecutrix was that
on the day, when she went along with her paternal aunt/P.W-2 to work as
labourer in the field of Accused and after a days where she went to keep the
agricultural implements in the motor room in the house of the Accused, the
Accused bolted the door of the motor room from inside and gaged her mouth
and had forced sexual intercourse with her. Also, he is alleged to have stated
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that she should not mention about this to anyone. The second occurrence was
in the house of the Accused which is under construction. When she was asked
to get water and on that pretext, he had dragged her inside the under
construction house and had forcibly intercourse with her. The third incident,
she had in a Vathiyar house on the terrace near the house of the Accused.
Fourth is the place where when her Aunt was not at home. When they had
gone to attend a puberty function, victim was alone in P.W-2’s house. The
Accused had come over and had intercourse. These details were not stated to
the Investigation Officer at the earliest point of time. This was not stated in the
statement under Section 164 Cr.P.C., made by the victim before the learned
Judicial Magistrate. These are all developments to develop the case of the
Prosecution before the Court, to wreck vengeance on the Accused. Also, she
had stated that he had threatened her that he will disclose those facts to the
villagers and make sure that she does not walk in the society with reputation
and thereby threatened her and whenever, he summoned for sexual intercourse,
she had to comply her.
12. The learned Counsel for the Appellant invited the attention of this
Court to the cross-examination of prosecutrix herself regarding these
afterthought development in her deposition and the same in the cross-
examination of P.W-2, the paternal aunt of the victim. The same had been
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brought out in the cross-examination of P.W-3 also. Therefore, the defence of
the Accused was proved in the cross-examination of witnesses. Therefore, the
credibility of the Prosecution witness was lost. Still, the learned Sessions
Judge failed to consider those aspects in the cross-examination of the
Prosecution witnesses P.W-1 to P.W-3, P.W-6 and P.W-11. Only if the
Prosecution case is established, the reverse burden is on the Accused as per the
rulings reported in 2021 4 Gau LR 430 in the case of Saiful Islam Vs, State
of Assam; 2022 SCC Online Mad 1660 in the case of Ashraff Ali Vs. State of
Tamil Nadu and 2020 SCC Online Ker 3668 in the case of David Vs. State of
Kerala.
13. Under those circumstances, the learned Sessions Judge, Fast
Track Mahila Court, Cuddalore had not considered the settled position of law
regarding Section 29 of the Protection of Children from Sexual Offences Act,
2012 which had been explained by various Judgments of the Hon’ble Supreme
Court as well as the various High Courts in India.
14. The learned Counsel for the Appellant also invited the attention of
this Court to presumption under Section 29 of the Protection of Children from
Sexual Offences Act, 2012 cases only ruling reported in 2021 4 Gau LR 430
in the case of Saiful Islam Vs, State of Assam. Therefore, the learned Counsel
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for the Appellant sought to set aside the Judgment and conviction recorded by
the learned Sessions Judge, Fast Track Mahila Court, Cuddalore in
Spl.S.C.No.5 of 2014 dated 24.07.2015.
15. The learned Additional Public Prosecutor vehemently objected to
the submission of the learned Counsel for the Appellant stated that the
evidence of the prosecutrix/P.W-1 had to be considered taking into
consideration of her educational status and social status. She was a fifth
standard dropped out from School. She had lost her parents. She had under the
care and protection of paternal aunt who is also a farm labourer. P.W-2 had
taken her for farm work along with her to the agricultural field of family of the
Accused where the Accused acquainted with her and played havoc in her life
by expressing love. The innocent girl of teenage as on 2013, she was only age
15. She had clearly stated that her birth is 1998 and she was born in Bahur in
Pondicherry. The Investigation Officer is the Inspector of Police, All Women
Police Station, Panruti which has territorial jurisdiction over the place of
occurrence and Panruti is not far away from Pondicherry which is an adjoining
District. Therefore, she had collected the necessary documents with the help of
the relatives. P.W-1, in her evidence, had clearly stated that her father’s name
as Ranganathan. By the time, the trial in the case proceeded, she was aged 17.
In cases of this nature, the Investigation officer collect the details of the birth
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certificate or the date of birth either from the School or birth certificate if
available from the authority concerned. Here, they had furnished the birth
certificate of the victim under Ex.P-10 where the name of the mother and the
father is found. Therefore, the claim of the Appellant that it was procured by
the Investigation Officer to suit the case of the Prosecution is fertile
imagination. It has to be rejected. If what had been stated by the Accused had
been proved, the Accused ought to have attacked Ex.P-10 by adducing
evidence to that effect to disprove the age of the victim. The Radiological test
can only give the range of the age and it is not exact age as per the rulings of
the Hon’ble Supreme Court as well as various High Courts. While considering
the age based on radiological report, it may have +/-2 years error which can be
taken advantage by the Accused. Therefore, to avoid such error, the
Investigation Officer had clearly furnished the birth certificate of the victim.
Further, it is to be noted that the evidence before the Court is to be considered
as valuable defence. What was stated before the Police Authorities are not
evidence and what was stated before the learned Judicial Magistrate under
Section 164 Cr.P.C., is not evidence. It is only a material collected by the
Investigation Officer to ensure that the investigation proceeded on the right
path and not for the evidence of the victim under 164 statement recorded by
the learned Judicial Magistrate is a mandatory provision followed by the
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Investigation Officers as per the Provision of the Protection of Children from
Sexual Offences Act, 2012. Therefore, what was not stated before the learned
Judicial Magistrate and what was not stated before the Investigation Officer
under 161 statement does not affect the Prosecution case. Even if the
investigation had lapses, the same cannot be exploited by the Accused as far as
Protection of Children from Sexual Offences Act, 2012 case is concerned.
Therefore, the presumption under Section 29 of the Protection of Children
from Sexual Offences Act, 2012 is a strong presumption favouring the children
who were exploited because of their ignorance and innocence. Therefore, the
above rulings cited by the learned Counsel for the Appellant will not help the
Appellant herein.
16. The ruling cited by the learned Counsel for the Appellant
regarding presumption under Section 29 of the Protection of Children from
Sexual Offences Act, 2012 and the presumption under Section 118 of the
Indian Evidence Act and presumption under Section 35 of NDPS Act in the
reported ruling in Noor Aga's case will not help. The presumption under
vigilance case in Hanif Khan Vs. Central Bureau reported in 2020 16 SCC
709 will not help the facts and circumstances of this case. The first point of
attack by the learned Counsel for the Appellant is that the FIR and the
Complaint were belated. It is true, the victim had explained the victim’s
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relatives viz., P.W-2, P.W-3, P.W-6 and P.W-11 are relatives who are interested
in the welfare of the minor child as she has lost her parents. Therefore, to take
care of her, the person who had ravished her was accountable, therefore, they
wanted to try for a marriage. Since they were attacked by the Accused and his
relatives, the FIR was registered against the entire family (brother of the
Accused, mother of the Accused). As the investigation proceeded, there was
not much materials available to incriminate the mother and brother of the
Accused. Therefore, the Investigation Officer/P.W-12 had filed the report
before the learned Judicial Magistrate deleting the names of the mother and
brother of the Accused under Ex.P-14. The fact that the statement of the
witnesses and the investigation records reached the Court belatedly will not be
affecting the Prosecution case. The Accused cannot get the advantage of the
lapses in the investigation to his advantage. Therefore, it was not a shoddy
investigation as pointed out by the learned Counsel for the Appellant. With due
care and diligence, the investigation proceeded, laying the final report against
the Accused with all relevant materials. The mandatory provisions to find out
the age of the victim and Accused, the mandatory provisions regarding
subjecting the victim and Accused to medical examination were carried out by
the Investigation Officer through P.W-7 to P.W-9. P.W-7-Gynecologist who
had examined the victim and issued a report under Ex.P-5 wherein it had been
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clearly stated that the victim was subjected to sexual intercourse. The evidence
of the prosecutrix clearly stated that the Accused under the pretext of love
affair had intercourse with her in the motor room of his house and using at it as
a blackmail and threatened her to comply his demand for sexual favours every
now and then as per his demand.
17. As per the reported ruling of Ganesan vs. State of Tamil Nadu
reported in (2020) 10 SCC 573, if the evidence of the victim inspires
confidence, the learned trial Judge shall convict the Accused. Here, the learned
Additional Public Prosecutor invited the attention of this Court to the evidence
of victim in the chief examination as well as cross-examination. The cross-
examination, she had given replied to the question that she had not stated so in
the statement before the learned Judicial Magistrate and the Investigation
Officer at the earliest point of time under 164 statement under Ex.P-2.
18. The learned Additional Public Prosecutor invited the attention of
this Court to the details of 164 statement in which she had narrated at the
earliest point of time which inspires confidence of the Investigation Officer
that the investigation is on the right path. She had narrated all the incidents
under 164 Cr.PC., before the learned Judicial Magistrate recorded under Ex.P-
2 which was reflected in the examination-in-chief before the Court. Therefore,
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evidence of the victim before the Court is sterling quality which inspires
confidence of the Court.
19. The learned Additional Public Prosecutor invited the attention of
this Court to the evidence of the paternal aunt who had found out the reason
for the victim girl aged about 15 being appearing tired when P.W-2 returned
from puberty function of a relative. She and P.W-3 noticed that the girl was
unusally tired. Only woman can appreciate what could have happened.
Therefore, she on her own made enquiry with the child victim as she is the
care taken of the victim, on her repeated questioning, the victim opened up and
narrating the entire incident.
20. The learned Additional Public Prosecutor also invited the
attention of this Court to that deposition of witness of P.W-2. The relevant
portion is extracted hereunder:-
“eh';fs; k";rs; ePuhl;L tpHhtpwF
; brd;W tplL
; jpUk;gp khiy
6/00 kzp mstpy; tPlo; w;F te;jnghJ fPjh nrhfkhf
cl;fhu;e;jpUe;jhu;/ ehd; vd;dbtd;W nfl;ljw;F fPjh. jd;id _ju;
bfLj;Jtpll; jhf brhd;dJ/ nkYk; bfhy;iy ntiyf;F nghFk;nghJ
_jupd; nkhl;lhu; bfhl;lifapYk;. thj;jpahu; tPlo; Yk;. kw;Wk; g[J
tPlo; Yk; _ju; jd;id bfLj;jjhf fPjh vd;dplk; brhd;dhu;/
ehDk; vd; fztu; ma;adhUk;. rptuhäk; vjpup tPlo; w;F brd;W
nfl;lnghJ c';fshy; Koe;jij ghU';fs; vd;W vjpup brhy;yptpl;lhu;”
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21. The submissions of the learned Counsel for the Appellant
highlighting the contradictions discrepancies in the cross-examination of the
victim and the relatives will not help, there are minor contradictions in any
criminal cases, there are guidelines of Hon’ble Supreme Court regarding
appreciation of evidence wherein the Court has to consider the educational
status and social status of the victim where they deposed before the Court,
there may be minor contradictions or discrepancies to which cannot be given
undue advantage.
22. Also, the learned Additional Public Prosecutor submitted that in
cases of this nature, there cannot be any direct witnesses or ocular witnesses or
neighbours of the victim or the Accused who will volunteer act as witnesses.
Naturally, the relatives alone had to take care of the victim and they had sought
the help of the elders in the Village for attempting or arranging the marriage
with the Accused as the incidents proceeded as of it was a love affair. Only
when they were attacked by the Accused and the relatives that they came to
know that the ploy played by the Accused to expect sexual desire of the
Accused with the victim. Misusing the innocence and the social status of the
victim as a parentless child and under the care of her paternal aunt who is a
farm labourer. Therefore, they will not go to Court and Police station. What are
all the rulings cited by the learned Counsel for the Appellant, the ruling of the
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Hon’ble Supreme Court as well as various High Court are only discussions
regarding Section 29 of the Protection of Children from Sexual Offences Act,
2012 and the Appeals preferred by the Accused in those cases were dismissed.
Therefore, the rulings cited by the learned Counsel for the Appellant will not
help the case of the Accused.
23. The learned Additional Public Prosecutor also relied on the ruling
reported in Ganesan vs. State of Tamil Nadu reported in (2020) 10 SCC 573.
Even if the arguments is sake, if the investigation is shoddy, the victim narrates
the incident before the Court, even if there are discrepancies because of the
status of the victim as a teenager, innocent, illiterate or semi-illiterate, not
worldly wise. Those things had to be appreciated by the Court from the angle
of a village rustic. Here what are all stated by the learned Counsel for the
Appellant that it was a consensual sex will not help the Accused to wriggle out
of this case. It is a case of sexual exploitation of the minor girl by a man aged
30 years only for sexual pleasure. Therefore, the Protection of Children from
Sexual Offences Act, 2012 was enacted by parliament to punish the culprits
like the Accused in this case who go caught free when there was no such law
on the statute book under the ordinary Indian Penal Code. Therefore, the
protection given to the children under the Protection of Children from Sexual
Offences Act, 2012 under Section 29 is a valuable material. The Accused
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cannot seek protection as free trial and guaranteed liberties of the citizens as
per the reported ruling in Noor Aga Vs. State of Punjab reported in (2008) 16
SCC 417 will not help the case of the Accused. The ruling of Hanif Khan Vs.
Central Bureau reported in 2020 16 SCC 709 also will not help the case of
the Accused.
24. The learned Additional Public Prosecutor invited the attention of
this Court to the discussion of evidence by the learned Sessions Judge, Fast
Track Mahila Court. The learned Judge had in the discussion of evidence had
clearly stated it was a case of total denial by Accused. He had claimed that he
does not know who the victim prosecutrix was. The victim had lost her mother
10 years prior to the date of occurrence and she was under the care of her
paternal aunt. Her father was mentally affected after the death of her mother.
That fact was spoken to about by the relatives of the victim/P.W-3, P.W-4, P.W-
6 and P.W-11 regarding mental condition of the father of the victim. P.W-12
had in her evidence deposed that she had examined the father of the victim and
from his retraction found that he was not mentally stabled. Therefore, his
statement was not recorded. The victim had studied upto fifth standard in
Bahur in Pondicherry. P.W-11 had provided the birth certificate of victim
under Ex.P-10 to the Investigation officer. It is his evidence that he had taken
care of the child victim for her education upto fifth standard, subsequently she
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was under the care of the paternal aunt/P.W-2 herein.
25. The learned Additional Public Prosecutor invited the attention of
this Court to the discussion of evidence by the learned Sessions Judge, Fast
Track Mahila Court, the objection of the Accused regarding marking of Ex.P-
10-birth certificate of the victim. The learned Counsel for the Accused before
the trial Court had relied on the ruling reported in AIR 2011 SCC 1492 in the
case of H.Sidiqui (dead) by Lrs., Vs. A.Ramalingam; AIR 2007 SCC 1721 in
the case fo J.Yashoda Vs. K.Shobha Rani; and 2014 (10) SC 473 in the case
of P.V.Anvar Vs. P.K.Basher & Others, that the birth certificate of the victim
cannot be marked and cannot be relied as a valuable document. It is an
inadmissible evidence. The learned Sessions Judge has pointed out that it
contained the registration number, the signature and seal of the authorities at
Pondicherry. If the objection of the Accused is true, the Accused ought to have
summoned Officials from the Pondicherry Government as defence witnesses
regarding the dispute regarding the birth certificate of the victim. Since they
had not done so, the objection of the Accused was rejected. Also, he had
discussed about the radiological report regarding the age of the victim as
between 17 and 18. The evidence of the Radiologist as P.W-9 and the Ex.P-10
regarding the age of the birth certificate of the victim was discussed and as per
the birth certificate it was 08.01.1998 was accepted by the learned Judge. The
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learned Sessions Judge had also discussed the defence of the Accused that the
Complaint was belated by 6 months after the alleged occurrence and the FIR
registered belatedly cannot have any importance before the Court for which
the learned Counsel for the Accused relied on the ruling reported in (2001) 6
SCC 71 in the case of State of H.P Vs. Gianchand; 2013 Criminal Law
Journal 2062 SC in the case of Rajesh Patel Vs. State of Jargant. In cases of
sexual assault, the explanation offered by the victim and their family if found
acceptable, the Court can accept the delay in filing Complaint or delay in filing
FIR was accepted by the learned Judge and the rulings relied by the learned
Counsel for the defence was rejected. The repeated sexual assault committed
by the Accused on the victim aged 15 under the pretext of love affair and
subsequently blackmailing her that he will expose her in society and she
cannot walk in the society by holding her head high shows his criminal intent
to exploit the minor girl to the hilt was also discussed by the learned Judge.
The claim of the defence that the victim had improved her statement before the
Investigation Officer by introducing new facts in the deposition before the
Court which cannot have evidentiary value was also discussed by the learned
Judge. The learned Judge had also relied on the ruling cited by the Prosecution
in support of the victim of sexual assault in the reported ruling (2012) 3 SCC
Crl. 67 in the case of Jitendar Kumar Vs. State of Haryana. The relevant
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portion reads as follows:-
“The Court has also to consider the fact that the main
purpose of the FIR is to satisfy the police officer as to the
commission of a cognizable offence for him to conduct further
investigation in accordance with law. The primary object is to set the
criminal law into motion and it may not be possible to give every
minute detail with unmistakable precision in the FIR. The FIR itself
is not the proof of a case, but is a piece of evidence which could be
used for corroborating the case of the Prosecution. The FIR need not
be an encyclopedia of all the facts and circumstances on which the
Prosecution relies. It only has to state the basic case. The attending
circumstances of each case would further have considerable bearing
on application of such principles to a given situation. Reference in
this regard can be made to State of U.P. Vs. Krishna Master and
Ors.[(2010) 12 SCC 324] and Ranjit Singh and Ors. Vs. State of
Madhya Pradesh [(2011) 4 SCC 336]. “
(ii) (2012) 6 SCC 204 in the case of Sunilkumar and another Vs. State
of Haryana, and rejected the defence of the Accused that the victim had
improvised her case by introducing new facts in her deposition. The learned
Judge had in Paragraph Nos. 27 to 29 had discussed about the attitude of the
victim towards a helpless innocent Village girl who had dropped out school at
5th standard due to loss of her mother and her father affected by mental
disorder. The victim having been subjected to sexual intercourse was
corroborated by the evidence/P.W-7 and the report by P.W-7 under Ex.P-5. The
evidence of P.W-8/Doctor who had examined the Accused and issued potency
certificate under Ex.P-6 was also relied by the learned Judge. The argument of
the learned Counsel for the defence before the trial Court that as per the ruling
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reported in (2013) 14 SCC 643 in the case of Lillu @ Rajesh and another Vs.
State of Haryana by which the evidence of the Doctor, who had subjected the
victim to medical examination using finger insertion cannot be relied by the
Court, it affects the decency of the victim of sexual assault and deprecated by
the Court as it affects the reputation of the victims of sexual assault was also
relied by the learned Sessions Judge stating that the reported ruling is
regarding the attempt of the defence to claim that the prosecutrix is prone to
immoral life that was deprecated by the Hon’ble Supreme Court and not test of
the Doctors. Therefore, the reliance placed by the learned Counsel for the
defence was also rejected.
26. The ruling cited by the learned Counsel for the Accused before the
trial Court was also discussed in the Judgment dated 24.07.2015 in
Spl.S.C.No.5 of 2014. The learned Judge had stated that before the trial Court
when she deposed evidence she had cogently narrated the entire incidents and
on assessment of the evidence of victim, the learned Judge found out the girl
who had lost her mother before 10 years and whose father mentally unstable
due to the death of her mother and the girl who was under the care of P.W-2
and P.W-2 is a daily wage labourer working in the farm belonging to the
Accused. Therefore, the innocence and the helplessness of the family of the
victim was exploited by the Accused who is aged 30, he is not a teenager.
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Therefore, the discussion of the learned Judge is on proper perspective as per
the Provisions of the Protection of Children from Sexual Offences Act, 2012 as
well as Provisions of the Indian Evidence Act. Therefore, the learned
additional public prosecutor submitted that the evidence of P.W-2, P.W-3, P.W-
6 and P.W-11 are natural consistent. They are the persons who are relatives
interested in the welfare of the child. In their evidence had stated that they
have attempted to approach the family of the Accused for arranging the
marriage of the Accused and the victim since they were attacked by the
Accused and threatened, they had no other go than to approach the Police. The
evidence of the Prosecution through P.W-1 to P.W-3, P.W-6 and P.W-11 and the
evidence of the Official witnesses/Doctors had proved the case against the
Accused attracting the provisions under Section 29 of the Protection of
Children from Sexual Offences Act, 2012. It is for the Accused to disprove by
reverse burden as per the reported ruling cited by the Accused as Appellant
before this Court. He had not done so. That was also discussed by the learned
Judge.
27. Without evidence merely on Section 164 Cr.P.C., if the learned
trial Judge convict the Accused based on presumption then the ruling cited by
the Accused as Appellant before this Court will help the case of the Accused.
The facts and circumstances of this case is not so. The learned Sessions Judge
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had appreciated the evidence considering the fact that the victim as well as the
family members are poor farm labourers helpless people, they had been
exploited by the Accused in whose cultivable land, the victim and her paternal
aunt/P.W-2 were employed as labourers. Under the guise of love affair, the
Accused exploited the ignorance and innocence of the victim and forcibly had
sexual intercourse with her and using that ploy blackmail her he will expose
her outside the world if she does not comply to his demand for sexual favour.
It is a fit case attracting provision of the Protection of Children from Sexual
Offences Act, 2012. The objection of the learned Counsel for the Accused
before the trial Court regarding birth certificate of the victim under Ex.P-10
had no legal basis. Therefore, it was also rejected. The best evidence available
before the Court is birth certificate that was duly procured by the investigation
officer through the relatives of the victim. P.W-11 had a resident of Bahur in
Pondicherry, the native Village of the victim where she was born and brought
up till 5th standard is natural. Therefore, the objection regarding Ex.P-10 was
rejected. If the Accused had doubt about Ex.P-10, the Accused ought to have
summoned the documents from the Pondicherry Government, he had not done
so. Therefore, the presumption under Section 29 of the Protection of Children
from Sexual Offences Act, 2012 holds good. Therefore, the learned Additional
Public Prosecutor submitted that the submissions of the learned Counsel for
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the Appellant does not hold good as per the reported ruling by the learned
Counsel for the Appellant. The rulings are in favour of the victims of
Protection of Children from Sexual Offences Act, 2012. The Accused cannot
advert to Section 29 of the Protection of Children from Sexual Offences Act,
2012 and attack the judgment of the learned Sessions Judge. The learned
Sessions Judge had on proper appreciation of evidence had discussed the
objections of the learned Counsel for the Accused before the trial Court and
also considered the rulings cited by the learned Counsel for the Accused
before the trial court rejected those rulings in the facts and circumstances of
this case with valid reasons. Therefore, it is a well-reasoned Judgment does not
warrant interference of this Court. This appeal lacks merit and is to be
dismissed.
Point for consideration
Whether the Judgment of the learned Sessions
Judge, Fast Track Mahila Court, Cuddalore, in Spl.
S.C.No.5 of 2014, dated 24.07.2015 is perverse warranting
interference by this court?
28. Heard the learned Counsel for the Appellant Mr. R. Hariharan for
Mr.E. Vijay and the learned Additional Public Prosecutor Mrs.G.V.Kasthuri for
the State.
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29. Perused the evidence of the Prosecution Witnesses P.W-1 to P.W-
12 and the documents marked on the side of the Prosecution under Ex.P-1 to
Ex.P-14 and the Judgment of the learned Sessions Judge dated 24.07.2015 in
Spl.S.C.No.5 of 2014 and the grounds of appeal raised by the learned Counsel
for the Appellant. It is true that the victim had not stated who had written the
complaint under Ex.P-1. But the contents of the complaint was deposed as
evidence. The contents of the complaint was reflected under Ex.P-2, the
statement recorded from the victim under 164 Cr.P.C., by the learned Judicial
Magistrate on the requisition of the Investigation Officer/P.W-12.
30. As pointed out in the grounds of appeal, there are lapses on the
part of the investigation officer. As per the evidence of P.W-1, there were four
instances, when the Accused is alleged to have indulged in sexual intercourse
with the victim by use of force and blackmail under the pretext of love.
Therefore, it cannot be treated as consensual sex. The age of the victim is more
important in the cases of this nature. The social status of the victim is also to
be considered. P.W-1 had lost her mother 10 years back before the occurrence.
Her father is mentally unstable after the death of her mother. She had dropped
out of her School after 5th standard, she is under the care of the paternal
aunt/P.W-2. P.W-2 is a daily wage labourer working in the agricultural fields
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including the farm of the Accused. Exploiting those situations, P.W-2 had
taken P.W-1 along with her farm work by which the Accused had acquainted
with the victim as per the evidence of P.W-1. On a particular day, when she
had gone to the motor room pumpset to keep the agricultural implements, in
safe custody, the Accused closed the door of the room and forcibly removed
the dress of the victim and indulged in sexual intercourse and threatening her
not to expose to outside. At the same time, he had made that whenever he
summons her she had to comply his demand. Again this case was repeated in a
nearby house where the new house is being built for the family of the Accused.
Again a similar occurrence took place a nearby house belonging to teacher
where the victim identifies the house as “Vathiyar Veedu”. The fourth instance
was in the house of the victim’s aunt, when the aunt was away on the puberty
function of a relative. When the aunt returned she noticed the victim looking
tired and sick. On her observation, she noticed something amiss whereupon
she probed by making enquiries with the victim, she forced the victim, opened
up which shocked P.W-2 resulting in P.W-2 sharing the message with P.W-3,
P.W-6 and P.W-11. Therefore, they gathered and courage and went to the house
of the Accused to question when there were threatened and they had sought the
help of the elders in the Village. They did not come for amicable settlement
which forced the family of the victim to seek legal remedy. Accordingly, the
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case was registered. Therefore, the delay in lodging the Complaint is narrated
in evidence of P.W-1 to P.W-3. The submission of the learned Counsel for the
Appellant that the evidence of the Prosecution witnesses are not sterling
quality. The Prosecution had not established the case against the Accused does
not warrant any interference. As rightly pointed out by the learned additional
public prosecutor, the victim is a helpless girl aged 15 on the date of
occurrence, she is incompetent to give consent, the consent is immaterial when
the age of the prosecutrix is less than 18, she had not cross the age of majority.
31. As per the Radiological Report by P.W-9 under Ex.P-7, the victim
is aged between 17 and 18 that is the range approximate for which the court
are mandate to consider +/-2 from the radiological report considering the
nature of the individual and the disparity from individual to individual
regarding nutrition and healthy status and genetics. Therefore, it is not a strict
proof of age. In cases of attracting Protection of Children from Sexual
Offences Act, 2012, it is a mandate that the Investigation Officer has to collect
the best evidence regarding the age of the victim. Here, the birth certificate of
the victim was placed before the Investigation Officer by the relatives
particularly P.W-11 who happened to be cousin of the victim. His evidence is
found cogent. The objection for Ex.P-10 raised by the learned Counsel for the
Accused is inadmissible, is rejected by the learned Judge on the ground that if
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it is so, the Accused is within his right to summon the necessary document
from the authorities concerned at Pondicherry since he had not done so, the
Court has to necessarily draw adverse inference. On perusal of Ex.P-10, the
name of the parents of the victim is clearly stated. Therefore, it is a genuine
birth certificate. Until otherwise, it is challenged. It has to be accepted. The
victim had clearly in her evidence stated that her year of birth is 1998, the first
occurrence is on some time in the year 2013. Therefore, by the year 2013, she
was only 15 years old, she had not attained the age of majority. On the date of
such occurrence, the Accused is twiced her age 30 years. If the Accused is age
somewhere between 14 and 18, it can be considered as a teenage love affair. It
is not so. He is an adult under any circumstances, he was aware of the
consequences, he had taken it likely that the child of that age, the child who
had dropped out after 5th standard from the School because of the death of her
mother and her father mental condition. Considering father’s sister being a
daily wage earner eking out her livelihood as a farm labourer she was unable
to help the child to attend the School. She had been taking care of child. These
social economic condition was exploited by the Accused to the hilt for his
selfish sexual pleasure under the pretext of love affair. After having the first
encounter, he had used a first encounter as a blackmail for his sexual pleasures
as and when he demands, she has to comply his demand. She is working under
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the aunt in the farm of the Accused. Therefore, she was sexually exploited for
6 months prior to date of lodging complaint under Ex.P-2. After registration of
FIR under Ex.P-11 investigation proceeded by which time, she had 15 years.
By the time, she was before the Court, she had attained the age of 17
approximately. There is no conflict between Ex.P-7 and Ex.P-10. As per the
reported ruling Jaya Mala Vs. Home Secretary, Government of Jammu &
Kashmir and Others reported in (1982) 2 SCC 538 there is variation from
individual to individual regarding Radiological report and the aged determine
on the Radiological Report based on the nutrition of the individual and life
style, genetics of individual. Therefore, plus or minus 2 years if apply, she is
15 on the lower side, 17 on the higher side, as per Doctor evidence. Therefore,
she is a teenager. She had not completed the age of majority. The delay in
lodging FIR will not cause harm to the case of Prosecution as per the reported
ruling of the Hon’ble Supreme Court. In cases of sexual assault, the victim’s
family is slow to approach the police due to so many factors one among the
social stigma. Therefore, the explanation offered by victim and her family P.W-
2, P.W-3, P.W-6 and P.W-11 is found justified. The claim of the
Appellant/Accused that the witnesses are not of sterling quality, the
Prosecution had not established the charge against the Accused through the
Prosecution witnesses, the evidence of Doctor/P.W-7 and the report under
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Ex.P-5 regarding sexual assault as per the reported rulings will not hold good.
As pointed out by the learned Additional Public Prosecutor as well as the
learned Judge in the discussion of evidence rejecting the Doctor’s evidence
based on the ruling reported in (2013) 14 SCC 643 in the case of Lillu alias
Rajesh and another Vs. State of Haryana is on a different context. The
Hon’ble Supreme Court deprecated the practice of finger test adopted by the
Doctor in cases of sexual assault citing the privacy of individual victim
regarding whether the Doctor had obtained permission from the individuals
concerned to conduct such test. It is the ruling of the Hon’ble Supreme Court
that even if it is found affirmative that the child or the prosecutrix was
subjected to sexual intercourse, it cannot be exploited as meaning that the
victim is prone to sexual intercourse. That cannot help the case before the
court. Herein, in the said reported ruling of the Hon’ble Supreme Court, the
Hon’ble Supreme Court had dismissed the Appeal in the course of the
discussion, they had commented upon the test that is all that the Appeal was
dismissed. Here also, it is the case, the learned trial Judge had rejected the
ruling cited by the learned Counsel for the Accused claiming that the Doctor
witnesses had to be rejected based on the said ruling. That was rejected. The
evidence of P.W-1 to P.W-3, P.W-6 and P.W-11 are relatives. The Mahazar
witnesses P.W-4 and P.W-5 remained hostile. It does not affect the case of the
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Prosecution.
32. As rightly pointed out by the learned Additional Public Prosecutor
in the reported ruling in Ganesan vs. State of Tamil Nadu reported in (2020)
10 SCC 573 when the evidence of the victim alone inspires confidence of the
Court, the Court is within its powers to convict the Accused.
33. As per the reported ruling of the Hon’ble Supreme Court in
Vadivelu Thevar’s case, the Judgment of the Hon’ble Supreme court early 50's
it is not the quantity of the witnesses number of witnesses examined, it is a
quality of witnesses weighed by the Court. Here, the victim had narrated the
incident cogently in her deposition before the Court. In the cross-examination,
she admits that she had not stated the facts in detail to the Investigation
Officer. It is true that the Investigation Officer had in the cross-examination as
P.W-12 admitted that the victim had not spoken about the subsequent instances
indulged by the Accused exploiting the victim. That will not help the Accused
in this case. The trial is conducted before a Court to find out whether the case
mentioned in the charge sheet filed by the Police is true. What is adduced
before the trial court by the victim is evidence and it need not be rejected on
the ground that the victim or witnesses had improvised their statement given
before the police at the earliest point of time. The claim that the delayed FIR is
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embellished also will not help cases under the Protection of Children from
Sexual Offences Act, 2012. The objection of Ex.P-10 by the Accused before
the trial Court is also on the ground that if Ex.P-10 is admitted, the entire case
will be strengthened against the Accused. If the objection of the Accused was
bona fide, the Accused should have summoned the authorities from the
Pondicherry State regarding the birth extract of the victim. Since they had not
done so, the reverse burden has to be invoked against the Accused regarding
Ex.P-10 and that was rightly done by the learned Judge.
34. The arguments of the learned Counsel for the Appellant in
attacking the conduct of the learned trial Judge invoking Section 29 of the
Protection of Children from Sexual Offences Act, 2012 under presumption
against the Accused and the judgment in its entirety centered around Section
29 of the Protection of Children from Sexual Offences Act, 2012 will not hold
good. When the facts and circumstances of the case had been proved before
the trial Court that the victim aged 15 years was exploited by the Accused aged
30 years a full adult. The provision of the Protection of Children from Sexual
Offences Act, 2012 is specially enacted to deal with persons who are similar to
the Accused herein. Until the enactment of this Act, the sexual abuse of the
children was unchecked. The law could not punish the violators of law
particularly regarding sexual abuse of children. Therefore, it is a special
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enactment to curtail the criminal activities of adults in exploiting children and
also to protect the children. The intention of the parliament in enacting such
Special Act to protect the children of this country is squarely applicable to the
individuals like Accused before this Court. On appreciation of evidence
individually independently by this Court as Appellate Court except the
demeanour of the witnesses through the records, it is found that the evidence
of deposition of Prosecution witnesses/P.W-1 to P.W-3, P.W-6 and P.W-11 is
found cogent. P.W-7 to P.W-9/Doctors’ evidence supports and corroborates the
allegations levelled against the Accused by the victim. Therefore, the
Prosecution had established the case against the Accused in proving the
charges framed against the Accused by the learned Sessions Judge. The
submission of the learned Counsel for the Accused, the charge had not been
proved. Merely on Section 29 of the Protection of Children from Sexual
Offences Act, 2012 under presumption, the learned Judge had appreciated the
evidence and convicted the Accused does not hold good in the facts and
circumstances of the case.
35. The above rulings cited by the learned Counsel for the Appellant
will not help the Accused. As rightly pointed out by the learned Additional
public prosecutor, the ruling cited by the Accused only the discussion or
arguments putforth by the learned Counsel had been relied by the learned
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Counsel for the Appellant. In all the reported decisions, the Appeals had been
dismissed by the Hon’ble Supreme Court. Therefore, the submission of the
learned Counsel for the Appellant is rejected. As rightly pointed out by the
learned additional public prosecutor, the Court has to give importance to the
evidence of the victim under Section 29 of the Protection of Children from
Sexual Offences Act, 2012 if the age of the victim is less than 18 as proved by
the Prosecution. Here, the age of the victim is 15 on the date of occurrence.
Half of the age of the Accused. The Accused is full grown adult. He is aware
of the consequences. Still, he had exploited the socio-economic background of
the innocent helpless ignorant child of 15 years. Therefore, the conviction
recorded by the learned Sessions Judge, Fast Track Mahila Court, Cuddalore
in Spl.S.C.No. of 2013 is found proper and it is not perverse and the same is
confirmed.
36. In the light of the above discussions, the point for consideration is
answered in favour of the Prosecution and against the Appellant. The
Judgment passed by the learned learned Sessions Judge, Fast Track Mahila
Court, Cuddalore in Spl.S.C.No.5 of 2014 dated 24.07.2015 is not perverse.
In the result, this Criminal Appeal is dismissed. The Judgment passed
by the learned learned Sessions Judge, Fast Track Mahila Court, Cuddalore in
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Spl.S.C.No.5 of 2014 dated 24.07.2015 is confirmed.
The learned Sessions Judge, Fast Track Mahila Court, Cuddalore, is
directed to issue warrant to the Accused through The Inspector of Police, All
Women Police Station, Panruti. The Inspector of Police, All Women Police
Station, Panruti, is directed to secure the Accused and produce him before the
the learned Sessions Judge, Fast Track Mahila Court, Cudallore, to undergo
the remaining period of sentence in continuation of the Judgment of conviction
recorded by the learned Sessions Judge, Fast Track Mahila Court, Cudallore,
as per the judgment dated 24.07.2015 in Spl.S.C.No.5 of 2014.
The Superintendent of Police, Cuddalore District, is also directed to
secure the Accused through Special Team and report compliance to the High
Court.
03.03.2025
dh
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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To
1.The Sessions Judge,
Mahila Court, Cuddalore.
2.The Inspector of Police,
All Women Police Station,
Panruti, Cuddalore.
3.The Superintendent of Police,
Cuddalore District.
4.The Superintendent,
Central Prison,
Cuddalore.
5. The Public Prosecutor,
High Court, Madras.
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SATHI KUMAR SUKUMARA KURUP, J
dh
Judgment made in
Criminal Appeal No.547 of 2016
03.03.2025
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