Madras High Court
Thangaraj vs State Rep By on 18 March, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A.No.431 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 18.03.2025
Coram :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No.431 of 2017
---
Thangaraj .. Appellant
Versus
State rep by
Inspector of Police,
All Women Police Station (East),
Coimbatore City,
Coimbatore District. .. Respondent
Criminal Appeal is filed under Section 374 (2) of Code of Criminal
Procedure against the judgment dated 10.05.2017 passed in Spl. C.C. No. 8 of
2016 on the file of the learned Sessions Judge, Fast Track Mahila Court,
Coimbatore.
For Appellant .. Mr. M. John Sathyan, Senior Counsel
for Mr. G. Vishwanathan
For Respondent .. Mrs. G.V. Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal had been filed by the Appellant against the
judgment of conviction dated 10.05.2017 passed in Spl. C.C. No.8 of 2016 on
the file of the learned Sessions
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Judge, Fast Track Mahila Court, Coimbatore by
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which he was convicted for the offence under Section 3 (a) read with 4 of The
Protection of Children from Sexual Ofences Act, 2012 and sentenced to
undergo ten years of rigorous imprisonment with fine of Rs.5,000/-, in default
to undergo three months simple imprisonment.
2. The brief facts, which are necessary for the disposal of this
Criminal Appeal, are as follows:
2.1 P.W-1 Selvi is the wife of P.W-4 Nagaraj. They have four
daughters. Victim child P.W-2 is their youngest daughter. The other three
elder sisters of P.W-2 got married and are residing in different places. P.W-1,
P.W-2 and P.W-4 do not have telephone. Accused Thangaraj is residing near
their house. The other three daughters of P.W-1 used to contact P.W-1, P.W-2
and P.W-4, through the mobile phone of Accused. While so, on 13.11.2014 at
07.00 a.m. when P.W-2 was alone in the house, Accused came there, gave his
mobile phone, by saying that her sister was on the line. The victim spoke to
her sister through the mobile phone of Accused and when she gave the mobile
phone to the Accused, he suddenly locked the door and on the promise of
marriage, he committed penetrative sexual assault upon the victim, by
compulsion and against her wish, by saying “cd;id jpUkzk; bra;J
bfhs;fpnwd;/ tPl;oy; ahUk; ,y;iy/ $hypahf
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,Uf;fyhk;/”According to P.W-2 she did not reveal it to her parents
immediately. When she was questioned by P.W-1/mother as to why she was
looking dull, she replied that she was not keeping good health. Thereafter, on
14.11.2014, P.W-1, P.W-2 and P.W-4 went to Madurai to meet the sister of the
victim girl at Madurai. On return, P.W-2 disclosed the incident to P.W-1-
mother. Therefore, on 22.11.2014, a complaint, under Ex.P-1 was given to the
All Women Police Station, Coimbatore (East) based on which the case in
Crime No. 39 of 2014 was registered for the offence under Section 3 read with
4 of the Protection of Children from Sexual Offences Act, 2012. Ex.P-14 is
the First Information Report.
2.2. On receipt of Ex.P-14, P.W-16, Inspector of Police, taken up
investigation and recorded the statement of the victim girl. She also went to
the place of occurrence and drew a rough sketch under Ex.P-15 and
observation mahazar under Ex.P-3 in the presence of witnesses Dass P.W-6
and Muruganandam P.W-7. She also enquired P.W-1/mother, P.W-
3/Lakshmi/sister and P.W-4-Nagaraj/Father and recorded their statement. On
23.11.2014, she arrested the Accused in this case at Singanallur Bus Stop and
remanded him to judicial custody. She has also subjected the victim girl-P.W-
2 as well as the Accused to medical examination and recorded the statement of
the Doctors. After concluding her investigation, she laid the final report
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against the Appellant for the offences under Sections 3 read with 4 of the
Protection of Children from Sexual Offences Act, 2012 before the learned
Judicial Magistrate, Fast Track Court No.1, Magisterial Level, Coimbatore.
2.3. On receipt of the charge sheet filed by P.W-16, summon was sent
to the Accused. On his appearance, copies of the documents relied on by the
Prosecution were furnished to him under Section 207 of Cr.P.C. As the
offence for which the final report was laid against the Appellant has to be tried
by the Court of Sessions, the records were forwarded to the learned Sessions
Judge, Fast Track Mahila Court, Coimbatore. The Accused was also bound
over to the said Court.
2.4. On appearance of the Accused and after hearing the learned
Public Prosecutor and the learned Counsel for the Accused, the learned
Sessions Judge, Fast Track Mahila Court, Coimbatore, had framed charges
against the Accused for the offence punishable under Section 3(a) r/w.4 of
Protection of Children from Sexual Offences Act, 2012. The Appellant-
Accused denied the charge and claimed to be tried. Therefore, trial was
ordered.
2.5. In order to prove the Prosecution case projected against the
Appellant-Accused, totally 16 witnesses were examined before the Trial Court
as P.W-1 to P.W-16 and 15 documents were marked as Ex.P-1 to Ex.P-15. No
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material object was marked by the Prosecution. On behalf of the Accused,
neither any witness was examined nor any document was marked.
2.6. After conclusion of trial, on assessing the oral and documentary
evidence, the learned Sessions Judge, Fast Track Mahila Court, Coimbatore,
convicted and sentenced the Accused as mentioned hereinabove.
2.7. Aggrieved by the Judgment of conviction and sentence of
imprisonment dated 10.05.2017, passed in Spl. C.C. No. 8 of 2016 on the file
of the learned Sessions Judge, Fast Track Mahila Court, Coimbatore, this
Criminal Appeal had been filed.
3. Thiru. M. John Sathyan, learned Senior Counsel appearing for
Mr.G.Vishwanathan, learned Counsel for the Appellant submitted that the
Accused had been framed due to previous animosity that developed between
the parents of the Accused and the parents of the victim regarding money
transaction. Both families are neighbours. They had been in good relationship
but due to money lending and repayment, there had been a dispute between
them. In order to settle score, the Accused was framed by the parents of the
victim by forcing the victim to give a complaint as though the Accused
forcibly indulged in sexual intercourse with her on 13.11.2014.
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4. It is the contention of the learned Senior Counsel for the
Appellant that the deposition of Prosecutrix loses the sterling quality. Above
all, all the Prosecution Witness are all related to the Prosecutrix. P.W-1 is the
mother of P.W-2/Prosecutrix. P.W-3 is her sister. P.W-4 is her father. P.W-5 is
also her sister. P.W-6, P.W-7 and P.W-8 are the neighbours. From the
evidence of P.W-9, Tmt. Thenmozhi, the Headmistress of the School where
the Prosecutrix studied, it is found that she completed her X standard in the
year 2012- 2013. As per the date of birth furnished by P.W-9, Head Mistress
of the School, the date of birth of the prosecutrix was 05.08.1997. Therefore,
on the date of alleged occurrence on 13.11.2014, the victim was aged 17 years
and 3 months.
5. The learned Senior Counsel submitted that as per the complaint,
Ex.P-1, the mother of the victim claims that her daughter studied upto X
Standard. After completing X standard, she had been employed in a grinder
manufacturing unit for monthly salary for three years. If three years is added to
the person who completed X standard, the victim is aged 18 years on the date
of occurrence. Therefore, she will not be treated as a child to invoke the
provisions of the Protection of Children from Sexual Offences Act, 2012. The
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learned Judge failed to consider those aspects and erroneously convicted the
Accused only on the evidence of the Prosecutrix and the Doctor's evidence
through P.W-10, P.W-12 and P.W-13.
6. P.W-10 is Dr. Sureshkanth who subjected the Victim to
Radiological test to determine her age and issued radiological test report under
Ex.P-5 and Ex.P-6 reporting that the age of the victim was above 17 and below
18. The learned Senior Counsel for the Appellant submitted that
Dr.Devilakshmi, P.W12 submitted that there was no injury on the breast,
abdomen, thighs and sexual organ of the victim. P.W-14/ Venkateshwaran
had in his report under Ex.P-13 stated that no semen were found in the vaginal
smear collected and forwarded by P.W-12. In this context, the learned Senior
Counsel for the Appellant invited the attention of this Court to the deposition
of P.W-2 and the statement recorded under Section 164 of Cr.P.C. It indicates
that it was a consensual sex and cannot be brought within the purview of the
Protection of Children from Sexual Offences Act, 2012. The complaint itself
proceeds that the Prosecutrix, the daughter of P.W-1/Complainant was aged
18. The victim who accompanied by her mother before P.W-12/
Dr.Devilakshmi also mentioned her age as 18 in the presence of her mother.
Therefore, the offence under section 3 r/w.4 of the Protection of Children from
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Sexual Offences Act, 2012 is not at all attracted. Even if the offence is brought
within the fold of Section 376 of IPC, it is a consensus sex as the victim was
18 years old as on the date of occurrence.
7. The learned Senior Counsel for the Appellant also invited the
attention of this Court to the cross-examination of the victim/P.W-2. In the
cross-examination, it was specifically questioned as to whether there was
misunderstanding between the family of the Accused and the family of the
victim/Prosecutrix and it was admitted by the Prosecutrix in her cross-
examination which reads as under:
“vd; mk;khtpw;Fk;. M$u; vjpupapd; mg;ghtpw;Fk;
,ilna gzk; th';fy;. bfhLf;fy; rk;ge;jkhf
rz;il Vw;gl;Ls;sJ vd;why; rup// mt;thW rz;il
Vw;gl;ljhy; vjpup ve;j fhyj;jpYk; v';fs; tPl;ow;F
te;jnj fpilahJ vd;Wk; v';fsplk; nghd; ngr
nghid bfhLj;jnj fpilahJ vd;Wk; brhd;dhy;
rupay;y/ vjpupapd; nghd; ek;gu; gw;wpnah. vd; mf;fh
ts;spapd; nghd; ek;gu; gw;wpnah ehd; nghyPrhu; ,lk;
brhy;ytpy;iy/ gzk; bfhLf;fy;. th';fy; jfuhW
fhuzkhf vjpupapd; mg;ghit gHpth';Ftjw;fhf
vjpup kPJ bgha;ahf ,e;j g[fhiu bfhLj;Js;nshk;
vd;why; rupay;y/ g[fhu; bfhLf;f eh';fs; fhty;
epiyaj;jpw;F brd;wnjhL rup/ mjw;F gpd;dpl;L
nghyPrhu; vd;id tprhupf;ftpy;iy/ vjpup vd;Dld;
clYwt[ bfhz;lhu; vd;gJ jtwhd bra;jp vd;Wk;
mt;thW vJt[k; elf;fnt ,y;iy vd;W brhd;dhy;
rupay;y/”
8. P.W-3/sister of the Prosecutrix had in her cross-examination
admitted that she had written
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( Uploaded on: complaint under
09:19:16 pm ) Ex.P-1, based on the
information furnished to her by Prosecutrix. The complaint was given as
though the mother of the Prosecutrix was the Complainant. P.W-2 and P.W-3
had denied the suggestion that individually the Prosecutrix as well as their
sisters have independent mobile phones and there is no necessity to contact
them through the Appellant-Accused.
9. The learned Senior Counsel for the Appellant submitted that
except P.W-2, rest of the witnesses are all hearsay witness. None of the
Prosecution Witness have disclosed the phone number of the Accused or the
phone number from which they used to call the Accused. If what had been
stated in the complaint under Ex.P-1 is true, the Complaint itself should have
contained the mobile number of the Accused or the mobile phone from which
the Accused was contacted. In the absence of such an important particular, the
complaint itself is false. When the Accused has four sisters who are all
unmarried, the claim of the Prosecutrix that on 13.11.2024 by 7 a.m in the
morning, the Accused came to handover the mobile phone and caught hold of
her, bolted the door from inside, undressed her and indulged in sexual
intercourse is unbelievable. Except Prosecutrix, all the other Prosecution
witness denied the suggestion of the defense that there was animosity between
two families.
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10. The learned Senior Counsel for the Appellant contended that the
denial of the defence of the Accused in the cross-examination by P.W-1, P.W-
3, P.W-4 and P.W-5 is a wanton denial. Prosecutrix admitted that there is
animosity between the father of the Accused and the mother of the
Prosecutrix/P.W-1 in relation to money transaction. Under those
circumstances, the claim of the Complainant/P.W-1 and the claim of the
Prosecutrix/P.W-2 that on 13.11.2014, she was subjected to forcible sexual
intercourse by the Accused in his house is found unbelievable. When the
Accused himself has four unmarried sisters, a person of that status and who is
neighbor of the family of the Prosecutrix cannot go or cannot have indulged in
such activities. It is a foisted case fixed by the family of the Prosecutrix to
wreck vengeance on the Accused. In any event, the charge against the
Appellant for having committed an offence under the provisions of the
Protection of Children from Sexual Offences Act, 2012 is unfounded.
11. The learned Senior Counsel for the Appellant further submitted
that the learned Judicial Magistrate had recorded the statement of the
Prosecutrix under 164 Cr.P.C under Ex.P-7 in which, in the middle of the
statement, the Prosecutrix expressed that in the presence of the mother, she is
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unable to express everything freely. Therefore, the statement under Section
164 Cr.P.C. was not recorded as per the procedure contemplated under law.
Till the middle of the 164 recording, the mother of the victim/prosecutrix was
available before the Court which is one of the procedural violations.
Therefore, the recording of the statement under Section 164 itself is not
proper. The mother having given in a complaint under Ex.P-1, accompanied
the Prosecutrix for medical examination with a woman constable in whose
presence the query of the Doctor to the victim about her age was mentioned as
18 under Ex.P-9 and Ex.P-10 and this indicates that she is aged 18 years. Even
otherwise the bona fide under Ex.P-4 cannot at all be considered by the Court.
The certificate issued by the Headmaster or Head of the Institution is a proof
to ascertain the age of the prosecutrix. Therefore, the date of birth mentioned
in Ex.P-4 cannot be considered. Even if Ex.P-4 is considered she had crossed
the age of 18. Therefore, the evidence of P.W-2 is not of sterling quality.
Unless the learned Trial Judge, Fast Track Mahila Court is satisfied that the
evidence of the Prosecutrix is of sterling quality, Section 29 of the Protection
of Children from Sexual Offences Act, 2012 can be invoked as though there is
a presumption in favour of the Prosecutrix. Here, the documents furnished by
the Prosecution itself shows that the age of the Prosecutrix does not attract the
provisions of the Protection of Children from Sexual Offences Act, 2012 and
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consequently Section 29 of the Protection of Children from Sexual Offences
Act, 2012 also cannot be invoked. The learned Judge had mechanically
applied Section 29 of the Protection of Children from Sexual Offences Act,
2012 and recorded a conviction under section 3 r/w.4 of the Protection of
Children from Sexual Offences Act, 2012, which is perverse and is to be set
aside.
12. Per contra, the learned Additional Public Prosecutor, by way of
reply, vehemently objected to the submissions of the learned Senior Counsel
by stating that the Prosecutrix has clearly narrated the incident that had taken
place on 13.11.2014 at 7:00 a.m. At that time, when she was alone at home the
Accused came to the residence and given his mobile phone stating that the
elder sister of the Prosecutrix, who is in Madurai, is on the line. The elder
sister was also examined as P.W-5, who had also corroborated the incident that
she called the mobile phone of the Accused on 13.11.2014. Therefore, by the
evidence of the P.W-1/mother of the Prosecutrix, P.W-2/the Prosecutrix, P.W-
3/elder sister of Prosecutrix, P.W-4/father of the Prosecutrix, P.W-5/elder
sister, the case of the Prosecution has been proved. In fact, P.W-5, who was
under treatment, contacted the Accused on 12.11.2014 and wanted to talk to
her mother. Accordingly, the parents of the Prosecutrix/P.W-1 and P.W-4 left
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on 13.11.2014 to Madurai. Therefore, they left and P.W-2 was at Coimbatore
on 13.11.2014. When the victim was subjected to medical examination, P.W-
12/Doctor had indicated that Hymen was not intact indicating that the
Prosecutrix was subjected to sexual intercourse. The complainant/the mother
P.W-1 under Ex.P-1 complaint clearly stated that her daughter is aged 17 years
only and she is unmarried. Ex.P-4 marked through P.W-9/Headmistress of the
School had only stated that she completed X standard in the academic year
2012-2013 and therefore, it cannot be considered that the prosecutrix had
crossed 18 years of age on the alleged date of occurrence.
13. Regarding the arguments of the learned Senior Counsel for the
Accused that there was no injuries on the breast, abdomen, thighs and genitalia
of the Prosecutrix, it is submitted by the learned Additional Public Prosecutor
that even if there is no injury, when the Prosecutrix's evidence is of sterling
quality it has to be believed and a conviction can be recorded as per the
reported decision of the Honorable Supreme Court in the case of Phool Singh
v. State of Madhya Pradesh reported in (2022) 2 Supreme Court Cases 74 in
which it was held as follows:-
There can be a conviction on the sole testimony of the
victim/prosecutrix when the deposition of the prosecutrix is
found to be trustworthy, unblemished, credible and her
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evidence is of sterling quality.
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14. The learned Additional Public Prosecutor also submitted that
cases of sexual assault stands in a different footing from other sessions cases.
In cases of sexual assault, there cannot be direct witnesses. Therefore, the
deposition of the Prosecutrix has to be treated as a gospel truth by the Court.
The learned Additional Public Prosecutor also submitted that there cannot be
any corroboration to the deposition of the prosecutrix in a case of this nature.
15. The learned Additional Public Prosecutor also invited the
attention of this Court to the discussion of evidence by the learned Sessions
Judge, in para 19 regarding the age of the victim :
(1) Whether the Accused person committed penetrative sexual assault
upon the victim and
(2) Whether the charge against the Accused under section 3(a) r/w.4 of
Protection of Children from Sexual offence Act had been proved by the
prosecution.
16. The learned Judge had discussed point (1) in paragraph 19 and 20
and had discussed (2) regarding the evidence invoking the Provisions of
Section 29 from paragraph 21 till 41. A threadbare discussion had been made
on the above by the learned Sessions Judge while recording a conviction. The
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Judgment of conviction recorded by the learned Sessions Judge, Fast Track
Mahila Court, Coimbatore is well reasoned judgment. As per the provisions of
the Protection of Children from Sexual Offences Act, 2012 and as per the
provisions of the Indian Evidence Act, he had properly appreciated the
evidence and arrived at a logical conclusion that the Accused had committed
the offence attracting punishment under section 3 r/w. 4 of the Protection of
Children from Sexual Offences Act, 2012. The judgment of the learned
Sessions Judge, Fast Track Mahila Court, Coimbatore in Special C.C.No.8 of
2016, dated 10.05.2017 is a well reasoned judgment and it does not warrant
any interference by this Court. The Appeal lacks merit and accordingly, the
learned Additional Public Prosecutor prayed for dismissal of the Appeal.
Point for consideration:
Whether the Judgment conviction recorded by the learned
Sessions Judge, Fast Track Mahila Court, Coimbatore in
Special C.C.No.8 of 2016 dated 10.05.2017 is perverse
warranting interference by this Court?
17. Heard Thiru. M. John Sathyan, learned Senior Counsel for the
Appellant as well as the Mrs. G.V. Kasthuri, learned Additional Public
Prosecutor for the Respondent-State. Perused the deposition of the witnesses
P.W-1 to P.W-16 and documents
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( Uploaded on: Ex.P-1
28/03/2025 topmEx.P-15
09:19:16 ) and the judgment of
the learned Sessions Judge, Fast Track Mahila Court, Coimbatore in Special
C.C.No.18 of 2016, dated 10.05.2017.
18. In order to prove the charge against the Appellant-Accused,
Prosecution had examined as many as 16 witnesses. Among the Prosecution
witnesses, P.W-1 is the mother of the Prosecutrix, P.W-2 is the Prosecutrix,
P.W-3 is the elder sister of the Prosecutrix. P.W-4 is the father of the
Prosecutrix. P.W-5 is the elder sister of the Prosecutrix and elder daughter of
P.W-1 and P.W-4. According to Ex.P-1, complaint, on 13.11.2014, leaving
the Prosecutrix alone at home, her parents have gone to Madurai. When the
prosecutrix was alone, the Accused came to her house, handed over the mobile
phone to her by stating that her sister from Madurai want to talk to her. After
the conversation was over, when the prosecutrix handed over the mobile phone
back to the Accused, the Accused bolted the door from inside and committed
penetrative sexual assault on the promise that he would marry her.
19. On perusal of Ex.P-1, it is found that the mother, as Complainant,
had stated that the Prosecutrix had completed X standard and she had been
employed in a wet grinder manufacturing unit in Coimbatore for three years.
Such a statement in Ex.P-1 indicates that on the date of preferring complaint
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under Ex.P-1, the prosecutrix was 18 years old. But, wantonly, the age of the
prosecutrix was given as 17 to press into service the provisions of the
Protection of Children from Sexual Offences Act, 2012. As pointed by the
learned Senior Counsel for the Appellant, nowhere in the complaint under
Ex.P-1, the mobile number of the Accused had been mentioned. In the cross
examination of P.W-1, Mother of the Prosecutrix, she had stated that her elder
daughter had written down the complaint. P.W-1 in her deposition stated that
the complaint under Ex.P-1 was taken down by her elder daughter, Lakshmi.
As pointed out by the learned Senior Counsel for the Appellant, the learned
Judge in point for consideration (1) in the discussion of the evidence had
raised the question as to whether the victim is a child attracting the provisions
of the Protection of Children from Sexual Offences Act, 2012 and answered
that as per the complaint under Ex.P-1, her age was 17 years and it is also
corroborated by P.W-10 Dr. Sureshkanth by issuing Ex.P-6, in which the age
of the victim was recorded as above 17 and below 18 on the date of
examination dated 09.12.2014. Therefore, the learned Trial Judge held that
there is no evidence to show that the victim had completed 18 years at the time
of occurrence and consequently convicted the Appellant-Accused. The learned
Trial Judge also relied on the bona fide certificate issued by P.W-9/
Thenmozhi Headmistress of the School where the date of birth for Prosecutrix
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was mentioned as 05.09.1997, based on School records. P.W-9/Thenmzhi,
headmistress of the School had mentioned that the prosecutrix completed her
X standard in the academic year 2012-2013 and those who appear for
academic year 2013 for the public examination SSLC, should have completed
15 years 6 months on the date of public examination. She also deposed that
usually public examination are held in the month of March, April of the
academic year. Therefore, P.W-2 /Prosecutrix should have appeared for SSLC
examination in the month of March-April 2013. Her date of birth is
05.08.1997. As on 05.12.2012, she had completed 15 years 4 months. By the
time, she appear for SSLC 2013, she had completed 15 years seven months.
Even according to P.W-1, P.W-2 had been continuously employed after X
standard for three years. Therefore, as on date of Ex.P-1 she had completed 15
years 6 months plus three years. As per the radiological report issued by P.W-
10 Dr Sureshkanth under Ex.P-6 she was aged more than 17 years and below
18 years. As far as radiological reports are concerned, it varies from individual
to individual based on the food habits of the individual and the hereditary of
the family. Therefore, a general guideline is issued that in cases where
radiological report is received, the age indicates a range. From that range plus
or minus two can be calculated. If that is calculated she is 17 + 2= 19 on the
lower side or 18 + 2 = 20 on the higher side. If it is subtracted 17 minus 2 =
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15, 18 – 2 =16. Therefore, for a better clarification, the School certificate
issued by P.W-9/Thenmozhi can be relied. The headmistress of the School had
deposed evidence, based on School register maintained in the School. As per
the School Register, her date of birth is 05.08.1997. Therefore, by the end of
the academic year 2012, she had completed 15 years and 4 months. Therefore,
as rightly pointed by the learned Senior Counsel for the Appellant, the
prosecutrix is not a child on the date of the alleged occurrence
20. In cases of this nature, there cannot be any direct witness. The
defense of the Accused is that the case had been foisted to wreck vengeance on
the family of the Accused as he is the only son for his parents and there are
four daughters. It is also the contention of the Appellant that there was
animosity due to borrowal and repayment between the father of the Accused
and the mother of the prosecutrix. Even though the previous dispute between
the father of Accused and mother of prosecutrix was denied by P.W-1, P.W-3
and P.W-5, it was admitted by P.W-2 that there is animosity between the two
families. The claim of the mother of the Prosecutrix/P.W-1 in the complaint
under Ex.P-1 is that they used to speak with her married daughters settled in
various places and they used to contact them through the mobile phone of the
Accused is not proved. If that is true, in the complaint under Ex.P-1, P.W-1
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should have mentioned the mobile number of the Accused, but nowhere in the
complaint it is mentioned. P.W-1 in the witness box stated that she is unable
to remember the mobile number of the Accused. Even though the prosecutrix
had given the mobile number of the Accused during her deposition, P.W-3 is
the person who had written down the complaint but she had not mentioned the
mobile number of the Accused anywhere in the complaint under Ex.P-1.
Therefore, in the absence of mentioning the mobile number in the complaint,
the root of the case of the prosecution is shaken.
21. Vied from the angle of the normal human conduct, if the evidence
of P.W-1, P.W-2, P.W-3, P.W-4 and P.W-5 is analysed and assessed, it is
found unbelievable. When there is animosity between two families, it is
unbelievable that the three elder daughters of P.W-1 regularly used to contact
the Accused to speak to their parents.
22. P.W-1 deposed that she and her husband are employed as painters,
so they are earning members. Painters, masons, daily wage earners, nowadays
have basic mobile of their own to establish contact with those persons under
whom they work. Even otherwise, P.W-2 is employed as per complaint under
Ex.P-1 continuously for more than three years in a wet grinder manufacturing
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unit. Therefore, at least she can own a mobile phone. Therefore, the complaint
itself is doubtful, as pointed out by the learned Senior Counsel for the
Appellant. In such circumstance, the defense of the Accused is found
reasonable.
23. The learned Trial Judge had considered the evidence without
correct arithmetical calculation and based on the Doctor's evidence under
Ex.P-6 arrived at a conclusion that the victim had not completed 18 years as
per the Ex.P-4, the certificate issued by P.W-9/Headmistress of the School. In
the presence of the mother the Prosecutrix herself had informed her age to
P.W-12 Dr. Devilakshmi under Ex.P-9 and Ex.P-10 as 18 years. In 164 Cr.P.C
statement recorded by the learned Judicial Magistrate, Additional Mahila
Court Coimbatore the age of the Prosecutrix is recorded as 18 years.
Therefore, the conviction of the Accused under Section 3 r/w. 4 of the
Protection of Children from Sexual Offences Act, 2012 is perverse.
24. The offense under Section 376 of Indian Penal Code and Section
3 r/w. 4 of the Protection of Children from Sexual Offences Act, 2012 are one
and the same. In an offence under Section 376 of Indian Penal Code, the
Accused can take up any number of defenses, in which case the conviction
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will be less based on appreciation of evidence. Whereas for offense under the
Protection of Children from Sexual Offences Act, 2012, the Court is duty
bound to believe that the evidence of the children, as victims of sexual
offences, are to be treated as bona fide and gospel truth for which presumption
has to be drawn by the Court under Section 29 of the Protection of Children
from Sexual Offences Act, 2012. This is not available for offence under 376
I.P.C. In any event, the invocation of the Protection of Children from Sexual
Offences Act, 2012 against the Appellant is not proper. The charge under 3
r/w. section 4 of the Protection of Children from Sexual Offences Act, 2012 is
not at all attracted in this case as against the Appellant.
25. The submission of the learned Additional Public Prosecutor that
the evidence of the Prosecutrix is of sterling quality and the evidence of the
Prosecutrix has to be appreciated as not of an accomplice cannot be considered
in this case. The evidence of the injured victim has to inspire the confidence of
the Court. As rightly pointed out by the learned Senior Counsel for the
Appellant, the deposition of P.W-1 is not cogent and trustworthy and
therefore, it does not inspire the confidence of this Court. In all probabilities
the evidence through the cross examination of the Prosecutrix and parents and
elder sisters P.W-1 to P.W-5 create doubt whether such an occurrence could
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have taken place. If those circumstances are analyzed, the claim or allegation
made against the Accused by P.W-2 cannot at all be accepted.
26. In the light of the above discussion, the Point for consideration is
answered in favour of the Appellant and against the Prosecution. The
Judgment conviction recorded by the learned Sessions Judge, Fast Track
Mahila Court, Coimbatore in Special C.C.No.8 of 2016 dated 10.05.2017 is
found perverse and the same is to be set aside.
In the result, this Criminal Appeal is allowed. The judgment dated
10.05.2017 passed in Spl. C.C. No.8 of 2016 on the file of the learned
Sessions Judge, Fast Track Mahila Court, Coimbatore is set aside. The bail
bond executed by the Appellant-Accused is ordered to be cancelled. The fine
amount, if any paid, shall be refunded to the Appellant-Accused.
18.03.2025
Shl
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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SATHI KUMAR SUKUMARA KURUP, J
Shl
To:
1.The Sessions Judge,
Fast Track Mahila Court,
Coimbatore.
2. The Inspector of Police,
All Women Police Station (East)
Coimbatore City
Coimbatore
3. The Section Officer,
Criminal Section,
High Court of Madras.
Judgment made in
Criminal Appeal No.431 of 2017
18.03.2025
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