Madras High Court
Dhanasekar vs State Rep By on 8 September, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.173 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 01.04.2025
PRONOUNCED ON : 08.09.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.173 of 2022 and
Crl.M.P.No.18567 of 2023
Dhanasekar ... Appellant
Vs.
State Rep by
The Inspector of Police,
All Women Police Station,
Panruti, Cuddalore. ... Respondent
PRAYER: Criminal Appeal is filed under Section 374(2) of Code of Criminal
Procedure, to set aside the conviction judgment dated 30.11.2021 in
Spl.S.C.No.80 of 2019 on the file of the Special Court for POCSO Act at
Cuddalore.
For Appellant : Mr.K.Prabakar
For Respondent : Mr.L.Baskaran,
Government Advocate (Crl. Side)
Page No.1 of 20
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Crl.A.No.173 of 2022
JUDGMENT
The appellant was convicted by judgment dated 30.11.2021 in Special
S.C.No.80 of 2019 by the learned Sessions Judge, Special Court (POCSO
Court Cases), Cuddalore and sentenced to undergo twenty years Rigorous
Imprisonment and to pay a fine of Rs.5,000/- in default to undergo three
months Simple Imprisonment for offence under Section 5(m), 6 of Protection
of Children from Sexual Offences Act, 2012 r/w Section 376AB IPC.
Challenging the same, the present criminal appeal is filed.
2.Case of the prosecution is that PW1 is the defacto complainant and
PW2/victim girl is her elder daughter aged about six years as on the date of
occurrence. PW1's younger daughter is a deaf and dumb child, for treatment,
PW1 takes her younger daughter to Chennai on every Tuesday and Friday.
PW1 employed as Insurance Agent in State Bank of India, the appellant a
neighbour residing two houses away from the house of PW1. On 20.01.2019,
the victim girl went to the appellant's house for play, at that time, the appellant
made the victim girl to sit on him, undressed himself, removed her dress and
undergarments, laid over her, placed his penis on her genitalia with force and
also squeezed her breast and buttocks, the victim girl was threatened not to
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disclose the same to anyone. On 21.01.2019, PW1 was giving bath to the
victim girl, at that time, she noticed marks and contusions on the breast and
buttocks of victim girl. When questioned, victim girl disclosed the appellant's
act. PW1's husband was working in Dubai, hence, fearing for life, she kept
quite and not immediately informed anyone. Later, PW1 gained strength, on
06.03.2019 called her husband, informed the incident. PW1 went to the
appellant's house and questioned the incident but he denied. Thereafter, PW1
lodged a complaint (Ex.P1) to the respondent Police. PW6, Sub Inspector of
Police received the complaint (Ex.P1), registered FIR (Ex.P6) in Crime No.3
of 2019 for offence under Sections 342 IPC and Sections 5(l) & 5(m) r/w 6 of
Protection of Children from Sexual Offences Act, 2012, PW6 visited the scene
of occurrence, prepared Observation Mahazar (Ex.P3), Rough Sketch (Ex.P7),
arrested the appellant, produced the victim girl for recording 164 statement,
thereafter, handed over the investigation to PW9, Inspector of Police.
3.PW9 conducted further investigation, visited the scene of occurrence,
examined the witnesses PW1/defacto complainant, PW2/her elder
daughter/victim girl, her brother/PW3, her sister-in-law/PW8, her
mother/PW7 and other witnesses and recorded their statements. Thereafter,
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PW9 sent the victim girl and the appellant for medical examination. The
Doctor/PW4 examined the victim girl and issued medical report (Ex.P4) and
Doctor/PW5 conducted potency test for appellant and issued medical report
(Ex.P5). On collection of medical reports, 164 Statement of victim girl
(Ex.P8), school certificate and other documents, charge sheet filed before the
trial Court.
4.During trial, on the side of the prosecution, PW1 to PW10 examined
and Exs.P1 to P10 marked. On the side of the defence, no witness examined
and no document marked. On conclusion of trial, the trial Court convicted the
appellant as stated above.
5.The learned counsel for the appellant submitted that it is projected as
though the appellant and PW1 are relatives and the appellant is a neighbour
residing two houses away from PW1's house. The appellant and PW1 are not
relatives and they belong to different community. Further, it is alleged the
victim girl used to visit the appellant's house to watch television, during that
time, the appellant is said to have committed aggravated penetrative sexual
assault. PW1 was working as Insurance Agent in State Bank of India and the
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appellant for his mother's insurance, paid a sum of Rs.20,000/- to PW1. But
PW1 neither got any insurance policy nor returned back the money, due to
which, there was some dispute. The appellant constantly questioned PW1 to
return the said amount and also abused her, hence, PW1 projected a false case
against the appellant using her minor girl as a weapon. It is admitted by PW1
that she used to visit Chennai every Tuesday and Friday for the treatment of
her younger daughter. In her absence, her mother/PW7 residing with her, used
to take care of the victim girl. PW1 falsely stated that she does not have
television but her mother/PW7 admits that in their house, there is a television
and there is no reason for the victim girl to visit the appellant's house for
watching television. The appellant was residing with his sick mother and she
was always present in the house and the appellant was not alone at any point
of time.
6.The learned counsel further submitted that in this case, there is a delay
of more than 45 days in lodging the complaint (Ex.P1). The case is that on
21.01.2019, when the victim girl was giving bath, her mother/PW1 noticed
marks and contusions on the victim girl's body, on enquiry, the victim girl
disclosed the appellant's act. But PW1 lodged a complaint (Ex.P1) only on
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06.03.2019. Though PW1 gives explanation that immediately she informed
the occurrence to her brother/PW3 and her mother/PW7, but she lodged a
complaint only after getting confidence from her husband. PW3 and PW7
confirmed that only on 06.03.2019 PW1 informed about the incident and
lodging of complaint (Ex.P1) and PW8 confirms the same. Thus, the
complaint (Ex.P1) of PW1 is a motivated one. Added to it, PW1 admits that
two days after she noticing the marks and contusions on the body of the victim
girl, she took the victim girl to a Private Nursing Home at Villupuram for
treatment. Who is the Doctor treated the victim girl and what was the
treatment given on 21.01.2019, no details produced. In this case, after
registration of FIR (Ex.P6), the victim girl was taken to Government
Headquarters Hospital, Cuddalore, PW4, Doctor examined her on 07.03.2019
and gave medical report (Ex.P4). In Ex.P4, it is recorded no mark of violence,
hymen intact, and finally opined that the victim girl was not subjected to
penetrative sexual assault, no injuries found in the private parts and also
opined possibility of sexual offence is there. How such conclusion arrived no
details given. The evidence of the Doctor/PW4 confirms no aggravated
penetrative sexual assault and further confirms PW1 not informed about any
visit to Doctor prior to PW4's examination. That being so, taking advantage
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recording in Ex.P4 that there is possibility of sexual offence, the appellant
prosecuted and convicted. Further, the trial Court failed to consider that it is
only a possibility of sexual offence and PW1 gave contradictory evidence at
each time.
7.The learned counsel further submitted that in the medical report
(Ex.P4), it is recorded PW1/mother of the victim girl narrated the incident to
the Doctor/PW4. In 164 statement (Ex.P8), the victim girl stated that the
appellant removed her undergarments, laid on her, placed his hands on the
breast and buttocks, bitten her lips and touched her private parts. No way this
act can be construed and projected as aggravated penetrative sexual assault.
The victim girl in her evidence before the trial Court stated that the appellant
gave a toy TV to play. In this case, the foundational fact gets demolished and
contrary to the complaint (Ex.P1). In the complaint (Ex.P1), it is alleged the
victim girl subjected to aggravated penetrative sexual assault when she visited
the home of the appellant to watch television.
8.He further submitted that PW3, brother of PW1 confirms that on
07.03.2019 at about 05.00 p.m, in his presence the Observation Mahazar
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(Ex.P3) prepared. Prior to it, PW1, his sister not informed about the incident
of sexual assault to PW2. PW8, wife of PW3 confirms that on 06.03.2019,
PW1 informed that during the month of January, the appellant stuffed the
victim girl's mouth using cloth and committed penetrative sexual assault on
the victim girl. PW7, mother of PW1 confirms she was informed by PW1
about sexual assault committed on her granddaughter/victim girl only on
06.03.2019. Thus, the evidence of PW3, PW7 & PW8 are contradictory to
each other about the incident happened on 20.01.2019.
9.He further submitted that PW6 admits that PW1 not informed of
taking the victim girl to a Private Nursing Home at Villupuram before
06.03.2019 and also she visiting Chennai on Tuesday and Friday for her
second daughter's treatment. PW6 further admits that the appellant's mother is
bedridden and living with the appellant in the same house. PW9 confirmed
that none of the neighbours and no private individuals examined as witnesses
in this case even the School Headmaster not shown as witness. PW9 further
confirms that PW1 not produced any medical record for the victim girl's
treatment prior to 06.03.2019 for sexual assault. PW9 confirms that in 164
statement (Ex.P8) the victim girl states improper touch and there is nothing as
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regards aggravated penetrative sexual assault. In such circumstances, the trial
Court brushing aside all these evidence and convicted the appellant for the
above offence, is improper and not sustainable.
10.The learned counsel further submitted that tutelage of child witness
is probable in this case and the victim tutored to give false version as per her
mother's wish. In this case, oral evidence i.e., the evidence of PW1,
PW2/victim girl and 164 Statement (Ex.P8) are contradictory to the medical
evidence (Ex.P4). Added to it, the mother/PW7, brother/PW3 and sister-in-
law/PW8 of PW1 all deposed contradictorily.
11.In support of his submissions, the learned counsel for the appellant
relied on the following decisions:
● Arbind Singh v. State of Bihar reported in CDJ 1992 SC 568.
● Digamber Vaishnav & Another v. State of Chhattisgarh reported in CDJ
2019 SC 375.
● Pradeep v. The State of Haryana reported in CDJ 2023 SC 640.
● Senthilkumar v. State, Rep. by The Inspector of Police, A.Pallipatty
Police Station, Dharmapuri reported in CDJ 2022 MHC 1469.
● Begari Ravi Kumar v. The State of Telangana reported in CDJ 2025
TSHC 001.
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● Chellappan v. State represented by the Inspector of Police,
Gandarvakottai Police Station, Pudukkottai reported in CDJ 2016
MHC 7154.
● Harishankar v. State through the Inspector of Police, Anamalai Police
Station, Coimbatore reported in CDJ 2021 MHC 1978.
● Sri Joubansen Tripura v. The State of Tripura reported in CDJ 2021
THC 050.
● Veerpal @ Titu v. State reported in CDJ 2024 DHC 126.
● Rajamohan v. State represented by The Inspector of Police,
Thallakulam, Madurai reported in CDJ 2024 MHC 6922.
● Kisan v. State of Maharashtra in Criminal Appeal No.303 of 2022.
To buttress the fact that the child witnesses are proven for tutelage and their
evidence to be analyzed with care and caution, more so, when there are
contradictions between the witnesses and medical records.
● Just Rights for Children Alliance and another v. S.Harish and Others
reported in 2024 SCC OnLine SC 2611 for the point that Sections 29 &
30 of Protection of Children from Sexual Offences Act, 2012 would be
invoked when the Court believes the existence of the fact beyond
reasonable doubt and thereafter presumption would follow. In this case,
the foundational fact not proved, hence, invoking Sections 29 & 30 of
the Act and convicting the appellant, is not proper.
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12.The learned Government Advocate (Crl. Side) appearing for the
respondent Police filed counter and submitted that in this case, at the time of
occurrence, the victim girl was aged about 6 years and her date of birth was
13.09.2013. PW1, mother of the victim girl used to visit Chennai on Tuesday
and Friday for the treatment for her second daughter leaving the victim girl
alone. The victim girl visits the appellant's house to watch television. Taking
advantage of the victim girl's loneliness, the appellant removed the clothes of
victim girl, undressed himself, laid on her and forcibly committed aggravated
penetrative sexual assault on two or three occasions prior to 20.01.2019. On
21.01.2019, when the victim girl was giving bath by PW1, she noticed some
marks and contusions on the breast and buttocks. When PW1 questioned, the
victim girl informed the appellant's act. Since PW1 being a woman and her
husband working in Dubai, fearing for life she not disclosed the incident to
anyone immediately. Thereafter, PW1 took the victim girl to a Private
Nursing Home at Villupuram. The appellant constantly threatened the victim
girl. Gaining confidence and courage, she informed her husband on
06.03.2019 and thereafter, lodged the complaint (Ex.P1). The delay in
lodging the complaint (Ex.P1) rightly explained by PW1. In all cases of
similar nature, the reaction of the parents to lodge a complaint depends upon
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various factors. After registration of FIR (Ex.P6), the victim girl sent to the
Government Head Quarters Hospital, Cuddalore and PW4/Doctor examined
and gave medical report (Ex.P4). Further, PW5/Doctor examined the
appellant and gave potency certificate (Ex.P5). The Investigating
Officer/PW9 visited the scene of occurrence, recorded the statements of
defacto complainant/PW1, her daughter/victim girl/PW2, PW1's mother/PW7,
PW1's brother/PW3 and PW1's sister-in-law/PW8 who are the right persons to
speak what happened to the victim girl inside the appellant's house. After
collection of medical records (Exs.P4 & P5), 164 statements of PW1 & PW2
and other documents, charge sheet filed in this case.
13.It is further submitted that since the incident happened inside the
appellant's house, examination of neighbours and others might not be of any
use. PW1 on noticing the marks and contusions on the body of the victim girl,
she informed her mother/PW7, her brother/PW3 and sister-in-law/PW8 which
is a normal conduct. Added to it, the victim girl confirms the appellant's
sexual assault in her 164 Cr.P.C statement (Ex.P8) and also reiterates in her
evidence before the trial Court. The Doctor/PW4 gives opinion there is
possibility of sexual offence.
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14.He further submitted that though the learned counsel for the
appellant relied on several decisions, in those cases the children are witnesses
for a murder or any other offences. In this case, the child is a victim and
witness who suffered and deposed how she was sexually assaulted by the
appellant, hence, the decisions cited by the appellant are not applicable to the
facts and circumstances of the present case.
15.He further submitted that for the insurance dispute projected by the
appellant, the appellant not produced even a single piece of evidence or
material to substantiate the same. He fairly submitted that the appellant and
PW1 belonged to different community, but they were having a good
relationship as relatives. Thus, non examination of the husband of PW1, non
collection of medical records from the Private Nursing Home at Villupuram
and the contradictions in the evidence of PW3, PW7 and PW8, would not
make the prosecution case doubtful. The trial Court considered all these
aspects and by a well reasoned judgment convicted the appellant. Hence, the
appeal to be dismissed confirming the conviction and sentence of the trial
Court.
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16.This Court considered the rival submissions and perused the
materials available on record.
17.The case projected is that PW1 is residing two houses away from the
appellant's house and the victim girl used to visit the appellant's house to
watch television. Taking advantage of the same, the appellant committed
aggravated penetrative sexual assault. In this case, the occurrence took place
on 20.01.2019 and on two or three occasions prior to it. On 21.01.2019, when
PW1 was giving bath to the victim girl, she noticed some marks and
contusions on the breast and buttocks of the victim girl. When PW1
questioned, the victim girl disclosed that the appellant is the reason who
committed sexual assault on two or three occasions. PW1 was shocked,
further fearing for life, not disclosed the same to anyone and two later PW1
took the victim girl to a Private Nursing Home at Villupuram. PW1 in her
evidence stated that she submitted the medical records of the Private Nursing
Home to the Investigating Officer. PW1 further states that she noticed marks
and contusions on the breast and buttocks and lips bitten. But
PW9/Investigating Officer denies and contradicts the same. The reason for
the victim girl visiting the appellant's house is to watch television since there
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was no television in the house of PW1. Even in the complaint (Ex.P1), PW1
records the same but PW7, mother of PW1 contradicts this fact and confirms
that there is television in the house of PW1. The appellant is an unmarried
person and there are no children in his house to give company or to play with
the victim girl.
18.In this case, admittedly till 06.03.2019, PW1 not disclosed the
incident to anyone even to her mother/PW7 who is residing with her and also
to her brother/PW3 and PW8/sister-in-law who are living nearby. PW3, PW7
& PW8 the family members of PW1 all confirmed they were informed about
the incident only on 06.03.2019. PW7, mother of PW1 and grandmother of
PW2 confirms the victim girl was attending the school regularly after
20.12.2019 and she was also giving bath to PW2/victim girl on some of the
days till 06.03.2019. But neither she found any marks or contusions nor PW2
informed about any incident. PW3, brother of PW1 states only about he being
a witness to the Observation Mahazar (Ex.P3). The aunt of the victim
girl/PW8 gives a dramatized version as though the victim girl was tied, mouth
stuffed with clothes and penetrative sexual assault committed as informed by
PW1. In this case, PW1's husband not examined and no call detail records or
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any other materials produced to show that on 06.03.2019 PW1 spoke to her
husband who directed PW1 to lodge a complaint. The evidence of PW7,
mother of PW1 is that the husband of PW1 used to call PW1 twice a day in the
morning and night hours. Hence, the delay of more than 45 days is quite
abnormal. In the absence of any material to show that the victim girl had
suffered injuries on the body and private parts, it is highly doubtful to believe
such incident took place. Added to it, the victim girl in her 164 statement
(Ex.P8) stated about the appellant undressing her and making improper touch
but there is nothing about aggravated penetrative sexual assault. The evidence
of Doctor/PW4 and medical report (Ex.P4) confirms that there is no mark of
violence, no external injuries and opinion given is that the victim girl was not
subjected to aggravated penetrative sexual assault. Further, PW1 is the person
who had narrated the entire incident to the Doctor/PW4 and not the victim
girl. Thus, the evidence of PW1 and victim girl and 164 Cr.P.C statement
(Ex.P8) are not in conformity to the medical report (Ex.P4).
19.PW9 further confirms that PW1 not produced any medical records
for the victim girl's treatment prior to 06.03.2019. PW1's evidence is with
contradictions with regard to taking the victim girl to a Private Nursing Home
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at Villupuram, handing over the medical reports and informing the
Investigating Officer and also contradicts disclosing the incident to her
brother/PW3, mother/PW7 and sister-in-law/PW8 immediately on 21.12.2019.
PW1 seems to be a person who improves and contradicts her statement
depending upon the situation and not coming out with true version. Hence,
PW1's evidence becomes doubtful and does not inspire confidence. Further,
the conduct of PW1 keeping quite from 21.01.2019 to 06.03.2019, that to
when her daughter/victim girl being subjected to penetrative sexual assault
defies normal human conduct.
20.It is to be noted that PW1 and appellant are not relatives and they
belong to different community. Added to it, the victim girl tutored by PW1
cannot be ruled out. In this case, none of the neighbours, private individual
neither cited nor examined as witness in this case. Even the School
Headmaster examined as additional witness, thereafter, Ex.P9 admission
register extract marked.
21.There is clear contradictions in the evidence of PW1, PW3, PW7 &
PW8 and the medical record (Ex.P4) and not in conformity to the evidence of
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victim girl and her 164 Cr.P.C statement (Ex.P8). From the statement of
victim girl (Ex.P8) and medical record (Ex.P4), there is no penetrative sexual
assault as projected. The foundational facts becomes shaky, hence, inference
cannot be drawn invoking statutory presumption. Hence, this Court finds that
the prosecution failed to prove the case beyond reasonable doubt.
22.In the result, this Criminal Appeal stands allowed setting aside the
judgment dated 30.11.2021 in Special S.C.No.80 of 2019 passed by the
learned Sessions Judge, Special Court (POCSO Court Cases), Cuddalore. The
appellant is acquitted. Bail bond if any executed shall stand cancelled. Fine
amount if any paid shall be refunded. Consequently, connected Criminal
Miscellaneous Petition is closed.
08.09.2025
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
vv2
Note: Issue Order Copy on 08.09.2025.
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To
1.The Special Court for POCSO Act,
Cuddalore.
2.The Inspector of Police,
All Women Police Station,
Panruti, Cuddalore.
3.The Central Prison,
Cuddalore.
4.The Public Prosecutor,
Madras High Court.
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M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY JUDGMENT IN
08.09.2025
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