Madras High Court
Kumareshan vs The State Rep. By on 11 March, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.527 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 11.03.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.527 of 2021
Kumareshan ... Appellant/Sole Accused
Vs.
The State rep. by
The Inspector of Police,
All Women Police Station,
Pudukkottai in Cr.No.1 of 2018
Pudukkottai District. ...Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of the Criminal
Procedure Code to call for the entire records connected to the Judgment
in Spl.S.C.No.10 of 2018 on the file of the Sessions Judge, Mahila Court,
Pudukkottai, dated 26.10.2021, and set aside the conviction and sentence
imposed against the appellant.
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1/12
Crl.A(MD)No.527 of 2021
For Appellant : Mrs.M.Krishnaveni
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
JUDGMENT
G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
This Criminal Appeal is filed against the conviction and
sentence passed against the appellant/sole accused in the judgment dated
26.10.2021 passed by the Sessions Judge, Mahila Court, Pudukkottai, in
Spl.S.C.No.10 of 2018 by convicting and sentencing the appellant for the
offences punishable under Sections 5(1), 5(j)(ii) r/w.6 of POCSO Act
2012 and sentenced him to undergo imprisonment for life and to pay a
fine of Rs.50,000/- in default, to undergo one year simple imprisonment.
2. The case of the prosecution is that the victim girl whose
father was away from the home for his avocation, was being enticed by
the accused with sweet words and being repeatedly exploited the carnal
relationship as led to the pregnancy of the victim girl who was a minor, at
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that time point of time. The parents came to know about the pregnancy
and thereafter, had sought criminal law into motion by way of a
complaint, dated 27.02.2018.
3. The Investigation Officer had arranged for recording the
statement of the victim girl under Section 161 Cr.P.C., and thereafter,
proceeded further and filed a final report against the appellant herein for
having aggravated sexual offence with the minor girl.
4. Based on the materials placed, the Sessions Court framed
charge under Section under Section 5(1), 5(j)(ii) r/w.6 of POCSO Act
2012 and tried the accused.
5. To substantiate the charges, prosecution marshalled 9
witnesses, 9 exhibits and the video recording of the victim statement
marked as M.O.1. In defence side, the accused has examined 3 witness
and no document was let in. The DNA report was marked as Ex.X1.
6. The Trial Court having found that pending trial after the
child birth the accused himself has taken out an application to subject
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himself, mother and the child for DNA test to disprove the paternity.
Unfortunately, in this case, the DNA report had disclosed that the
appellant is the biological father of the child. As a result, taking note of
the school certificate of the victim girl which discloses her date of birth
as 19.11.2001. On the date of alleged occurrence, she was below 18 years
old minor child as per POCSO offence and the trial Court had convicted
him for offence under Section 5(1), 5(j)(ii) r/w.6 of POCSO Act, 2012
and sentenced him to undergo imprisonment for life.
7. The learned counsel appearing for the appellant submitted
that the true age of the victim girl has not been established by the
prosecution. The victim girl was in fact major at the time of accident and
it was a consensual sex between two adolescent. The admission of the
minor girl in the cross examination regarding her affair with the appellant
with consent being cited as a ground to challenge the conviction and
sentence.
8. The learned counsel for the appellant vehemently argued
that the case of consensual sex between two adolescent persons,
particularly, when the age of the girl is doubtful and there is every
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possibility that she was major, the rigor of POCSO offence cannot be
clamped on the accused.
9. The learned counsel referring to the School Leaving
Certificate marked as Ex.P.8 and Transfer Certificate marked as Ex.P.9
vis-a-vis the cross examination of P.W.1, the father of the victim as well
as P.W.9 the Headmistress of the school submitted that there is sufficient
doubt regarding the authenticity of the date of birth mentioned in the
School Leaving Certificate and Transfer Certificate. Therefore, she
would submit that it is not an offence punishable under the POCSO Act
in any event and being a consensual sex even IPC offence under Section
376 IPC will not attract.
10. Per contra, the Additional Public Prosecutor submitted
that as far as ascertaining the age of the minor girl, it is a settled principle
of law that most authenticated document is the School Certificate. In this
case, the prosecution has collected the School Leaving Certificate of the
victim as well as the Transfer Certificate. The same has been proved
through P.W.9 Headmistress of the school, who is the custodian of the
record.
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11. The learned Additional Public Prosecutor further
submitted that there cannot be concoction or error in the date of birth for
the sake of prosecuting the appellant since the entry in the School
register was made several years ago, when the victim girl joined at
P.W.9's School in 6th Standard, at about 6 years earlier to the occurrence
and regarding the plea of consensual sex, the learned Additional Public
Prosecutor submitted that the victim girl both before the Magistrate,
while giving her statement under Section 164 Cr.P.C., as well as before
the Court had clearly stated that the accused enticed her promising to
marry her and had been frequently having sex with her.
12. The learned Additional Public Prosecutor further
submitted that the appellant took a plea that the victim girl had in fact
affair with one Manikandan and he is the cause for her pregnancy. The
appellant had even gone to the extent of taking out an application to
subject himself, victim and the child born to the victim for DNA test to
establish his defence. However, the DNA report Ex.X1 had revealed that
the accused is the biological father of the child. Hence, the trial Court
after considering all these factors, had imposed the life imprisonment.
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13. The learned Additional Public Prosecutor would further
submit that the appellant after committing aggravated sexual offence on a
minor girl had audacity to deny the crime and also tarnish the image of
the victim girl making allegations, that too, suspecting her fidelity.
14. The learned counsel for the appellant would submit that
the appellant was 23 years old, at the time of occurrence and the
commission of offence should not be taken as a grave offence, taking
into consideration the fact that it was a consensual sexual relationship
between two adolescent and therefore, even to accomplish the offence, he
cannot prosecute the appellant.
15. Heard the learned counsel on either side and perused the
materials available on record.
16. As far as the date of birth of the victim girl the School
Certificate gains primacy over all other documents. In this case, the
prosecution has collected the SSLC mark sheet of the victim girl and
Transfer Certificate of the victim girl which are marked as Ex.P8 and
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Ex.P9. There is no contra evidence adduced by the accused though he
has ventured to examine three witnesses on his behalf.
17. The victim being a minor girl, the plea that it was a
consensual sex between two adolescent also, does not augur well to
entertain the submissions. Even if it is to be considered that the victim
was about to attain majority and they were in love for a long period and
in hope and belief, they would get marry on attaining majority had
involved in premarital consensual contact, but the intention to marry
could not fructify, has to be taken into account, then the conduct of the
appellant should have been different. Even before registration of
complaint, he should have married her or assured that he will marry the
victim girl. He had not done so. It appears from the record that after
conviction, he had moved the Court expressing his willingness to marry
the girl, however, the girl has declined the proposal.
18. In the said circumstances, this Court is unable to
countenance the argument of the appellant counsel, both regarding the
age as well as the plea of consensual sex. Hence, this Court finds no
merit in this Criminal Appeal.
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19. The learned counsel for the appellant as a last
submission pleaded that the alleged offence has taken place prior to the
amendment to the POCSO Act which has come into effect from
16.08.2019, for imposing rigourous imprisonment for a term not less than
20 years or life imprisonment. Prior to the amendment, it was rigorous
imprisonment for a term not less than 10 years and which may extend to
life imprisonment. Hence, he submitted that the occurrence took place
prior to the amendment and the sentence of life imprisonment is to be
modified, taking into consideration the age of the appellant.
20. This Court after giving anxious consideration to the
above submission and taking into consideration the age of the victim boy
who lost his life because of his sexual urge, we modify the sentence
imposed by the Trial Court as below :
(i) The sentence imposed by the trial Court stands modified
from life imprisonment to rigourous imprisonment for a term of ten years
with a fine of Rs.50,000/- in default to pay the fine amount, to undergo
Simple Imprisonment for one year.
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21. In the result,
(i) this Criminal Appeal is partly allowed;
(ii) the conviction under Section Section 5(1), 5(j)(ii) r/w.6
of POCSO Act 2012 passed by the learned Sessions Judge, Mahila Court,
Pudukkottai, dated 26.10.2021, in Spl.S.C.No.10 of 2018 is confirmed
but the sentence is modified;
(iii) Accordingly, the sentence of Life Imprisonment passed
by the Court below is set aside and the appellant is sentenced to undergo
Rigorous Imprisonment for ten (10) years and to pay a fine of
Rs.50,000/- (Rupees Fifty Thousand only) and in default to pay the fine
amount, to undergo Simple Imprisonment for one year;
(iv) The period of sentence already undergone by the
accused/appellant shall be set off under Section 428 Cr.P.C., as against
the substantive sentence; and
(v) The compensation award by trial Court is hereby
confirmed.
(G.J., J.) & (R.P., J.)
11.03.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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To
1.The Sessions Judge,
Mahila Court,
Pudukkottai.
2.The Inspector of Police,
All Women Police Station,
Pudukkottai in Cr.No.1 of 2018
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
Copy to :
The Superintendent,
Central Prison,
Trichy.
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G.JAYACHANDRAN J.
AND
R.POORNIMA, J.
RM
Judgment in
11.03.2025
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