Madras High Court
Deva @ Devaraj vs The State Rep. By on 10 November, 2025
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.A.No.95 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.11.2025
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
AND
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
Crl.A.No.95 of 2022 and
Crl.M.P.No.5573 of 2024
Deva @ Devaraj ... Appellant/Sole Accused
-vs-
The State Rep. by
The Inspector of Police,
All Women Police Station,
Salem Town, Salem District.
(Crime No.8 of 2017) ... Respondent/Complainant
Prayer: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. against
conviction and sentence passed by judgment dated 30.11.2021 in Old
No.Spl.S.C.No.60 of 2017 in New Spl.S.C.No.58 of 2019 on the file of the
Principal Special Court for POCSO Act Cases, Salem.
For Appellant : Mr.S.Shanmugha Velayutham
Senior Counsel
For Mr.B.Vasudevan
For Respondent : Mr.A.Damodaran
Addl. Public Prosecutor
Assisted by Mr.M.Karthikeyan
Advocate
*****
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Crl.A.No.95 of 2022
JUDGMENT
(By N.Sathish Kumar, J.)
This appeal arises against the judgment of learned Principal
Special Judge for POCSO Act Cases, Salem, passed in Old
No.Spl.S.C.No.60 of 2017 in New Spl.S.C.No.58 of 2019 dated 30.11.2021.
2.Brief Facts of the Prosecution case are as follows:
2.1. P.W.2 is the victim girl aged about 9 years at the time of
occurrence, who is the daughter of P.W.1. The mother (P.W.1) of the victim
girl is a divorced woman and had been residing with her 2nd husband P.W.3
(Shankar). The accused is P.W.1's paternal uncle son. On 28.08.2017, the
mother of P.W.1 informed over phone that the accused took away P.W.2
and the same has been seen by P.W.5 (Manikandan). Thereafter, villagers
and others caught hold of the accused and Police came to the spot. P.W.1
was informed that the accused had committed oral sex with P.W.2. P.W.2 in
her statement deposed that the accused, under the pretext of buying sweets,
took her in his motor cycle to the place of occurrence and removed his
underwear and inserted his penis in her mouth and on seeing P.W.5, the
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accused ran away and thereafter, the complaint (Ex.P1) was given. P.W.4 is
the grand mother of the victim girl, who had heard about the occurrence.
P.W.5, who was in intoxicated stage, noticed that a boy and girl were
proceeding to the place of occurrence and P.W.5 found only the girl and he
did not see any male member there and Police also came there later. P.W.6
also heard about the occurrence and had seen the accused on the same day.
P.W.7 is the brother of P.W.1, who had witnessed the Observation Mahazar
(Ex.P2) prepared by the Police. P.W.8 enquired P.W.2 and she also heard
about the occurrence.
2.2. According to P.W.9, the accused was caught hold by
villagers and Police were also present there. P.W.10 / Headmistress issued
certificate Ex.P4 to prove the age of the victim girl. P.W.11 / Headmaster
issued Ex.P5 to show the age of the accused. P.W.12 / Medical Officer
examined the accused as per Ex.P6 and also examined radiology and issued
certificates under Ex.P7 & Ex.P8. P.W.13 examined the victim girl on
29.08.2017 at 1.25am and issued Ex.Ps.10 to 12 and she had stated that she
did not find any external injury and her statement has been recorded as
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stated by the child and her mother. Ex.P13 is the report issued by the
Forensic Sciences Department, based on which, Ex.P14 has been issued by
the Doctor / P.W.13. P.W.14 / Sub-Inspector of Police received the
complaint (Ex.P1) from P.W.1 and registered the same against the accused
for offences under Section 8 r/w 7 of POCSO Act, 2012 and Section 506(i)
IPC under Ex.P15. P.W.15 / Inspector of Police took up the investigation,
went to the scene of occurrence on 28.08.2017, prepared Observation
Mahazar (Ex.P16), rough sketch (Ex.P17) recorded the statement of P.W.5
(Manikandan) and other witnesses, arrested the accused on 29.08.2017,
seized the motor cycle and sent to the Court under Ex.P18 (Form-91) and
gave requisition to P.W.12 / Medical Officer to examine the accused and
the victim girl and recorded the statement of the victim girl under Section
164 Cr.P.C. P.W.15, on completion of investigation, laid a charge sheet for
offences under Sections 6 r/w 5(l) (m) and (n) of POCSO Act and Section
506(i) IPC.
2.3. Before trial Court, prosecution examined 15 witnesses and
marked 22 exhibits and 2 material objects. On behalf of defence, 2 witness
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were examined and 3 exhibits marked. On questioning under Section 235
(2) Cr.P.C., accused denied charges. On appreciation of evidence, oral and
documentary, the Trial Court, under judgment dated 30.11.2021, convicted
and sentenced him as follows:
Offences Sentence
Section 363 IPC 3 years R.I. and fine of Rs.10,000/- i/d 3
months S.I.
Section 5(m) (n) r/w 6 of Life imprisonment and fine of
POCSO Act Rs.20,000/- i/d 6 months S.I.
Section 506(1) IPC 2 years R.I. and fine of Rs.5,000/- i/d 3
months S.I.
Trial Court directed that sentences shall run concurrently and the period
already undergone was ordered to be set off. Against the said judgment, the
present appeal has been filed by the accused.
3. Learned Senior Counsel for the appellant submitted that the
accused has been undergoing incarceration since the date of conviction and
at present, he is confined in the Central Prison, Salem. Since the father of
the accused refused to marry P.W.1, the accused has been made as a
scapegoat by giving a false complaint by using the minor girl. This fact has
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been clinchingly established by the evidence of D.Ws.1 to 3. All the
witnesses relied upon by P.W.1 are interested witnesses and the evidence of
the victim girl is nothing, but a tutored version. He further submitted that no
evidence is available to show that the victim girl was taken by the accused
at the relevant point of time. P.W.12 / Medical Officer clearly deposed that
there was no external injury found on the chin of the victim girl and in case
the accused inserted his penis in her mouth and has repeatedly done the said
act, there must be abrasion in her mouth, which has not been noticed by
P.W.12 / Medical Officer. Further, the statement given by P.W.2 before the
Judicial Magistrate under Section 164 Cr.P.C., would belie her evidence.
Though the entire theory of the prosecution rests on the evidence of P.W.5,
he had never spoken about the accused. He also submitted that FIR has
been registered belatedly and reached the Court only at 5.30pm on the next
day. This fact itself clearly indicates that the case has been framed after due
deliberations and consultations. Due to the refusal by the father of the
accused to marry P.W.1, the child has been used as a tool to wreak
vengeance on the father of the accused.
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4. Learned Additional Public Prosecutor contended that P.W.2
has clearly spoken on the nature of the act committed by the accused and
there was no necessity for the victim child to falsely implicate the accused
and therefore, the Trial Court rightly convicted the accused to undergo
sentences as afore-stated. The judgment of the Trial Court does not warrant
any interference by this Court.
5. We have heard the learned counsel on either side and
perused the material documents available on record.
6. Normally, if the evidence of a victim girl relating to sexual
assault inspires confidence, even if there are contradictions, deviations and
bereft of materials, Courts would tend to believe the evidence of a victim,
provided the same inspires confidence, particularly, when her evidence
does not suffer from any infirmities or does not contain any artificiality. In
the given case, the evidence of the child is attached with a lot of serious
artificialities and the possibility of tutoring cannot be ruled out. While
scrutinizing the evidence of the victim girl, it is noticed that the child is
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used as a tool to wreak vengeance in the personal matter. In the above
background, if the evidence of the victim girl is analyzed, it is the specific
case of the prosecution that P.W.2 was taken by the accused in his motor
cycle on 28.08.2017 to a secluded place, where he had oral sex with the
victim girl. The case of the prosecution is that the accused was seen
together with the child by P.W.5. But, P.W.5 had not spoken anything about
the accused being in the company of the victim girl, whereas he simply
stated that he noticed the weeping of the child and later, he brought the
victim girl back. Moreover, it is not the case of the prosecution that the
accused is an unknown person to the witnesses and P.W.1, as the accused is
none other than P.W.1's paternal uncle's son. If really such sexual assault
has been carried out by the accused on the minor girl of tender age, P.W.12
/ Medical Officer at least would have noticed some minor abrasions in and
around of her face.
7. It is the specific case of the prosecution that the accused
slapped the victim on the chin during oral sex. The victim girl was taken to
the hospital on the same day and if really the accused slapped the victim
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girl on her chin and inserted his penis continuously for several minutes,
there should be abrasions or contusion on her chin. But, P.W.12 / Medical
Officer had not noticed any such thing. Further, FIR is said to have been
given on the same day, but reached the Court on the next day. The
inordinate delay in reaching the Court has not been explained. The evidence
of P.W.12, when carefully analyzed, unravels the fact that only the mother
had given the statement as if the accused had committed sexual assault on
her daughter and in the cross examination, this aspect has been clearly
admitted. P.W.12 / Medical Officer also in her cross examination stated that
only at the instance of P.W.1, the statement is recorded in the Accident
Register copy.
8. It is not the case of witnesses that the accused is unknown to
them. D.Ws.1 to 3 filed exhibits to prove the fact that P.W.1 was residing
with D.W.2, who is none other than the father of the accused. It is further
case of the defence that P.W.1 insisted father of the accused to marry her
and when he refused to marry her, the false complaint has been given.
Though the very factum of P.W.1 residing with D.W.2 itself was denied, the
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public document, namely, School Certificate (Ex.P4) issued by P.W.10
proves otherwise. In fact, while the victim child was admitted in the school,
her father's name has been shown as Raja / D.W.2. This has been clearly
admitted in the evidence and established by the defence.
9. P.W.2 in her statement gave a parrot like version that the
accused has committed sexual assault. But in her statement recorded before
the Judicial Magistrate under Section 164 Cr.P.C., she never stated that the
accused was the root cause and he was present on the date of alleged
occurrence. If really the victim child was accurate in giving minor details,
she would have narrated the incident and in fact, given the name of the
accused. It is not that the accused is not known to the child, as they are very
closely connected and relatives. Therefore, non mentioning the name of the
accused at the earlier point of time, when the statement was recorded under
Section 164 Cr.P.C., itself is a doubtful version of the child and the
possibility of tutoring the child cannot be ruled out.
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10. The defence also clearly established that P.W.1 got divorce
from P.W.3 and in support thereof filed Ex.D3 (affidavit of marriage
dissolution entered into between P.W.1 and P.W.3), whereas P.W.1, in her
evidence, stated as if she has been residing with P.W.3. This indicates that
her evidence is highly doubtful and the child has been used as a tool to
settle her score with D.W.2. The alleged sexual assault on the minor child
by the accused has not been established beyond reasonable doubt. There is
no iota of evidence even to infer that the child was subjected to sexual
assault in any form. If the accused has really committed such act, as
narrated by the child and stated by P.W.1, P.W.12 / Medical Officer must
have noted abrasions or contusions on the face of the child, but P.W.12
categorically stated that no external injury was found on her chin.
11. Considering the fact that there are serious flaws in the case
of the prosecution and also the fact that the Trial Court has not appreciated
the evidence in its proper perspective, we are of the view that the judgment
of the Trial Court has no legs to stand and requires interference by this
Court.
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12. In the result, this Criminal Appeal is allowed. The
conviction and sentence imposed on the appellant / accused, namely, Deva
@ Devaraj, S/o.Raja in Old Spl.S.C.No.60 of 2017 in New Spl.S.C.No.58
of 2019 on the file of the Principal Special Court for POCSO Act cases,
Salem, are set aside and the appellant / accused is acquitted of all the
charges. The appellant/accused is directed to be released forthwith, unless
his custody is required in any other case. Fine amount, if any, paid shall be
refunded. Bail bonds, if any, executed shall stand cancelled. Consequently,
connected Criminal Miscellaneous Petition is closed.
(N.S.K,J.,) (M.J.R,J.,)
10.11.2025
Index: Yes / No
Internet: Yes / No
ar
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To:
1. The Principal Special Judge for POCSO Act Cases,
Salem.
2. The Inspector of Police,
All Women Police Station,
Salem Town, Salem District.
3. The Superintendent,
Central Prison,
Salem.
4. The Public Prosecutor,
High Court, Madras.
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N.SATHISH KUMAR,J.
AND
M.JOTHIRAMAN,J.
ar
10.11.2025
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