Madras High Court
K.Chithambaram vs State By on 16 September, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.1260 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 29.04.2025
PRONOUNCED ON : 16.09.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.1260 of 2022
K.Chithambaram ... Appellant
Vs.
State by
The Inspector of Police,
AWPS Tiruppur South Police Station,
Tiruppur City.
(Crime No.17 of 2021) ... Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., to call for
the records to set aside the judgment of the learned Sessions Judge, Magalir
Neethimandram (Fast Track Mahila Court), Tiruppur in Spl.S.C.No.110 of
2021 dated 14.11.2022.
For Appellant : Mr.J.Franklin
For Respondent : Mr.L.Baskaran
Government Advocate (Crl. Side)
Page No.1 of 12
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Crl.A.No.1260 of 2022
JUDGMENT
This Criminal Appeal is filed to set aside the impugned judgment in
Spl.S.C.No.110 of 2021 dated 14.11.2022 on the file of the learned Sessions
Judge, Magalir Neethimandram (Fast Track Mahila Court), Tiruppur.
2.The appellant/accused in Spl.S.C.No.110 of 2021 was convicted by
the Trial Court by judgment dated 14.11.2022 and sentenced him to undergo
three years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default
to undergo three months simple imprisonment for the offence under Section
9(m) r/w. 10 of Protection of Children from Sexual Offences Act, 2012
(POCSO Act).
3.The case of the prosecution is that the defacto complainant/father
lodged a complaint stating that on 07.10.2021, after returning from evening
prayers from the mosque, his wife complained that at about 6:30 p.m. there
was a power cut and the defacto complainant's brother's wife had come there
with her baby aged about 1½ years. The defacto complainant's minor
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daughter aged about 9 years was carrying the baby in her arms and she was
walking near the house, at that time, the appellant, who is running a grocery
and rice batter shop in the name of Subulakshmi Rice Batter shop, called the
victim to his shop. The appellant enquired about the baby and extended his
arms to get the baby and play with the baby, but twice the baby not willing
to come to him. On the third try, the appellant extended his arms in the guise
of taking the baby, pressed the victim's right breast. The victim got shocked,
cried, and went back home, informed her mother, who informed the defacto
complainant. They immediately went to the Law and Order Police Station,
who informed them that the complaint to be given to the All Women police
station. Hence, they came back and on the next day, i.e. 08.10.2021 at about
8.30 a.m., they lodged a complaint to the respondent, who received the
complaint, registered a case in Crime No.17 of 2021 for the offence under
Section 9(m) r/w. 10 of POCSO Act. PW4 is the sub-inspector of police,
who received the complaint, registered FIR/Ex.P5 and placed it to
PW5/Inspector of Police. PW5 enquired the witnesses, recorded the
statement of the victim, her mother, defacto complainant and others, visited
the scene of occurrence and prepared an observation mahazar/Ex.P4 and
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rough sketch/Ex.P6 in the presence of PW3. The victim was produced
before the Magistrate. The victim gave her 164 statement/Ex.P2, the birth
certificate/Ex.P1 collected. On completion of investigation, charge sheet
filed. During trial, PW1 to PW5 examined, Ex.P1 to Ex.P6 marked and
MO1 produced on the side of the prosecution. On the side of the defence,
no witness examined and no documents marked. The trial court on
conclusion of the trial, convicted the appellant as stated above.
4.The learned counsel for the appellant submitted that in this case, a
complaint was lodged on a false notion as though the appellant with sexual
intent forcibly touched the breast of the victim girl. PW1/victim girl clearly
stated that she was holding the baby in her right hand and was walking, at
that time, the appellant called the victim to his shop and wanted to have the
baby and play. PW1 admits that in the shop, there was a showcase and
above it there are biscuits and chocolate bottles. The shop is of 10x10 size
which is fully stocked with articles and there is only little space for one
person to move. The appellant called the victim girl to play with the baby,
the baby couched to the victim twice and at the third attempt, the appellant
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approached the baby with force, consequently accidental touch made is
projected as though the appellant touched the right breast of the victim with
sexual intent and committed sexual assault. He further submitted that as per
Section 7 of the POCSO Act, sexual assault means someone with sexual
intent when touches the body of the victim, sexual intent is a relative factor,
question of fact to be deduced from the attendant circumstances. In this
case, PW5/Investigating Officer admits in her evidence that none of the
witnesses and the persons present near the scene of occurrence stated that
the appellant called the victim with bad intention. An accidental touch
magnified and projected as though the appellant committed sexual assault.
He would further submit that the trial Court primarily relied on the evidence
of PW1 and PW2. PW1/victim girl, in her 164 statement/Ex.P2 and in her
evidence, confirms that the appellant intended to play with the baby, at that
time, touch was made, since it was with force, she complained to her
mother. It is a fact that on earlier two occasions the appellant could not
reach the baby, hence some force used but that would not automatically
termed as an act with sexual intent qualifying to be a sexual assault. In this
case, PW2 is the father of the victim. He admits that he was informed by his
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wife/Shakira about the incident, as informed to her by PW1. In this case,
admittedly, said Shakira not examined as witness. Hence, the statement
given by PW2 with regard to the incident is hearsay and inadmissible. He
further submitted that the evidence of PW2 would be relevant only to the
extent of lodging the complaint. PW2 admits that the complaint was written
by one Bashir, but the said Bashir not examined as witness in this case.
PW3 who is the witness for observation mahazar and rough sketch, states
about the topography of the area and nothing more. He further submitted
that in this case, the Investigating Officer admitted that as against the
Appellant there was no similar complaint received earlier. Further, PW5
admits the area of the shop is a small one with a showcase, customers stand
below the showcase. Hence, there would be a slight difference of height and
the possibility of accidental touch is real. In view of the above, the
conviction of the Appellant is not sustainable.
5.The learned Government Advocate (Crl. Side) filed a counter and
submitted that a case was registered in All Women Police Station, in Crime
No.17 of 2021, U/s.9 (m) r/w 10 of POCSO Act against the accused
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08.10.2021 at about 08.30 hours by the Sub Inspector of Police and the
Inspector of Police took up the case for investigation. During the course of
investigation, the Inspector of Police went to the scene of occurrence, drew
rough sketch, prepared observation mahazar in the presence of witnesses,
examined the witnesses and recorded their statements. On 08.10.2021, the
Inspector of Police arrested the accused, obtained confession statement from
him and produced him before the Fast Track Mahila Court, Tiruppur who
remanded him into judicial custody. On 19.11.2021, the Inspector of Police
produced the victim girl before the learned Judicial Magistrate-III,
Tirupppur for recording 164 Cr.P.C Statement. After completion of
investigation, the Inspector of Police filed a charge sheet before the Fast
Track Mahila Court Thiruppur and the same taken on file, assigned
Spl.S.C.No.110 of 2021 dated 16.12.2021. The Trial Court relying on the
evidence, more particularly, the statement of the victim girl and her 164
statement/Ex.P2 came to the conclusion that the appellant committed the
offence and had rightly convicted the appellant. Hence prayed for dismissal.
6.Considering the submissions made and on perusal of the materials,
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it is seen that the appellant is running a provisional shop and a rice batter
shop and the victim is residing in the third house from the shop. The
appellant was carrying her uncle's daughter in her right arm and she was
walking there and there was power cut, the place was dark. The appellant,
an aged person having three daughters, who are all married and now having
grandchildren, to play with the baby called the victim girl to come near the
shop. The baby couched the victim girl and refused to go to the appellant
twice. Hence, on the third occasion, the appellant with little force attempted
to grab the baby, at that time, the appellant touched the victim's right breast.
The victim confirms this. From the evidence of the victim, it is clear that the
baby was in the victim's right arm and it is natural that babies do not
immediately reach to third person. It is natural elderly persons like paying
with babies for fun. The appellant having grand children conduct is quite
natural. The evidence confirms that the touch could only be accidental and
not a sexual assault and the sexual assault would get qualified if there is a
sexual intent. The sexual intent, a relative factor has to be considered with
the attendant circumstances. It is an admitted position at that time there was
power cut and it was dark. From the attendant circumstances and evidence
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of PW1, it is clear that there can be no sexual intent deduced against the
appellant, which is further qualified by PW5/Investigating Officer who
confirms that there was no material or evidence to prove that the appellant
had some intention while attempting to take the baby. Thus a normal and
natural act has been magnified and projected as a sexual assault. The
evidence of PW2 is in the nature of hearsay. He admits that the complaint
was written by one Basheer, but the said Basheer not examined in this case,
the complaint was not read over, found to be true and thereafter the
appellant signed it.
7.The Apex Court in the case of 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 doubtful not proved, hence
convicting the appellant, is not proper.
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8.In view of the above, this Court is inclined to set aside the
conviction and sentence imposed by the Trial Court.
9.In the result, this Criminal Appeal stands allowed setting aside the
judgment dated 14.11.2022 in Spl.S.C.No.110 of 2021 passed by the learned
Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court),
Tiruppur. The appellant is acquitted. Bail bond if any executed shall stand
cancelled. Fine amount if any paid shall be refunded.
16.09.2025
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
cse
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To
1.The Inspector of Police,
AWPS Tiruppur South Police Station,
Tiruppur City.
2.The Sessions Judge,
Magalir Neethimandram
(Fast Track Mahila Court),
Tiruppur.
3..The Public Prosecutor,
High Court, Madras.
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M.NIRMAL KUMAR, J.
cse
Pre-delivery judgment made in
.09.2025
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