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Madras High Court
Elangovan vs The State Rep. By Its on 18 February, 2026
Crl.A. No. 300 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2026
CORAM
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.A. No. 300 of 2023
Elangovan ..Appellant/Sole Accused
Vs.
The State Rep. By its
The Inspector of Police,
Avinasi All Women Police Station,
Crime No.5 of 2022. ..Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., to set aside
the conviction and sentence against the appellant in Spl.S.C.No.87 of 2022
on the file of the learned Sessions Judge, Magalir Neethi Mandaram (Fast
Track Mahila Court), Tiruppur dated 30.01.2023 and allow this appeal.
For Appellant :: Mr.B.Shruthan
For Respondent :: Mr.S.Raja Kumar
Additional Public Prosecutor
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Crl.A. No. 300 of 2023
JUDGMENT
The appeal challenges the conviction and sentence imposed on the
appellant for the offences under Section 376 AB of IPC and under
Section 5(i) r/w 6(1) of the POCSO Act.
2.(i) The case of the prosecution is that the appellant is known to
the victim girl aged about 2 years; that when the victim girl was playing in
the room of the appellant, the appellant had removed the undergarment of
the victim girl and had inserted his finger in the private part of the victim girl
and thus committed the offences under Section 5(m) r/w 6 of the POCSO
Act.
(ii) On the complaint given by PW2, the mother of the victim girl,
an FIR was registered by PW10, the Sub Inspector of Police for the offences
under Section 5(m) r/w 6 of the POCSO Act in Crime No.5/2022. The FIR
was marked as Ext.P13. PW11 took up the investigation, subjected the
victim to medical examination and after recording the statements of the
witnesses, had filed the final report against the appellant under Sections
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5(m) r/w 6, 3(b) r/w 4(1) of the POCSO Act and Section 376 (AB) of IPC.
The trial Court framed charges under Sections 5(m) r/w 6, 3(b) r/w 4(1), 5(i)
r/w 6 of the POCSO Act and Section 376 AB of IPC and when questioned,
the appellant pleaded 'not guilty.
(iii) The prosecution examined 11 witnesses and marked 16
documents to prove its case. When the appellant was questioned,
u/s.313 Cr.P.C., on the incriminating circumstances appearing against him,
he denied the same. The appellant neither examined any witness nor marked
any documents.
(iv) On appreciation of oral and documentary evidence, the Trial
Court found that the prosecution had established the case beyond reasonable
doubt, and held the accused guilty of the offences under Sections 5(i) r/w
6(1) of the POCSO Act and Section 376 AB of IPC. The Trial Court
sentenced him to undergo 20 years RI and to pay a fine of Rs.5000/-, (id), to
undergo 1 year RI for the offence under Section 5(i) r/w 6 of the POCSO
Act and also sentenced him to undergo 20 years RI and to pay a fine of
Rs.5,000, (id), to undergo one year RI for the offense under 376 AB of IPC.
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Hence, the accused/appellant has preferred the appeal challenging the said
conviction and sentence.
3.Heard Mr.B.Shruthan, the learned counsel appearing for the
appellant/accused, and Mr.S.Raja Kumar, learned Additional Public
Prosecutor appearing for the respondent/State. This Court also perused all
the materials available on record.
4.Mr.B.Shruthan, the learned counsel for the appellant would
submit that the victim's mother had never stated in her earlier version,
including in her complaint, that the victim was subjected to penetrative
sexual assault or rape; that the allegations with regard to the offence of
penetrative sexual assault is an afterthought; that there is no evidence to
suggest that the appellant had committed the offence of rape or penetrative
sexual assault; that the medical evidence is contrary to the evidence of PW2;
and that the victim had not stated about any of the alleged occurrences in her
deposition and therefore, the impugned Judgment convicting the appellant
under Section 5(i) r/w 6(1) of the POCSO Act is liable to be set aside.
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5.The learned Additional Public Prosecutor per contra submitted
that the complainant had stated in her complaint that the victim was
subjected to penetrative sexual assault by the petitioner by inserting his
finger in the genital part of the victim; that merely because the victim was
unable to state the manner of occurrence, the impugned Judgment cannot be
set aside; that the medical evidence would show there was swelling in the
private part of the victim; and the victim had injuries in her private part and
prays for dismissal of the petiton.
6.As stated above, the prosecution had examined 11 witnesses.
PW1 is the victim. PW2 is the victim's mother and the defacto complainant.
PW3 is the Doctor, who examined the victim and had made entries in the
accident register Ext.P4. PW4 is the Doctor, who also examined the victim
and had given the certificate Ext.P6. PW5 is the observation mahazar
witness and has marked Ext.P7 and his signature marked in Ext.P8. He was
treated hostile by the prosecution. PW6 is the observation mahazar witness
and the witness to the confession of the appellant and his signature marked
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in Ext.P9. PW7 is the Doctor, who had given the scan report for the child,
Ext.P10. PW8 is another doctor who speaks about the scan report. PW9 is
the Doctor, who had examined the appellant and issued the potency
certificate, Ext.P12. PW10 is the Sub-Inspector who registered the FIR.
PW11 is the investigating officer.
7.The version of PW2 is that, she heard the victim's cry inside the
room of the appellant on the date of occurrence ie., on 23.04.2022; that when
she asked the appellant to open the door, he asked her not to disturb him and
thereafter, when the victim came out of the room, she saw the victim had
blood stain injuries and her undergarments had blood stains; and that when
she asked the victim, the victim pointed to the appellant. The complaint was
lodged on 24.04.2022. The victim was examined on 24.04.2022 at about
12.05 p.m. PW2 has stated to the doctor that the victim's undergarments had
blood stains.
8.It is seen that the prosecution has failed to seize the said blood
stained undergarments. PW2 also does not state as to whether she handed
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over the undergarments to the investigating officer. It is strange when the
allegation is that the victim's under garments had blood stains, neither PW2
had handed over the same, nor the investigating officer has collected the
same from PW2.
9.Be that as it may, the Doctor(PW3), who had examined the
victim on 24.04.2022, had stated in her deposition that the victim's private
part was swollen and there was an lacerated injury measuring 1 x 1/2 cm on
both sides of her thighs. The Doctor had not noted any blood stains in the
private part and also had not stated about the possibility of the victim
sustaining blood stain injuries.
10.The victim is two year old child. Her deposition in chief reads
as follows;
"Foe;ijaplk; ahuhtJ VjhtJ nra;jhh;fsh vd;W
Nfl;;lNghF jd;Dila tyJ ifahy; tpuiy itj;J åupd;
NghFk; ,lj;ij Rl;bf;fhl;baJ. M[u; vjpupia Foe;ij
R;lbf;fhbaJ;;"
The victim was not cross-examined.
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11. The victim was subjected to medical examination during
investigation. A scan was taken and the Doctor who conducted the scan and
issued Ext.P10 report would state that there were no external injuries on the
body and there was a healed linear vertical abrasion over perinial region.
The scan was taken on 27.02.2022.
12.Therefore, as stated above, the victim's evidence does not
suggest that there was any penetrative sexual assault and the victim, a two
year old, obviously cannot be expected to state beyond was was stated. If the
medical evidence suggested that the victim was subjected to penetrative
sexual assautl, even in the absence of the victim elaborating the nature of
assault, the appellant can be found guilty of the offence of penetrative sexual
assault. The doctors, who had medically examined the victim have not stated
about the possibility of the penetrative sexual assault in any of their reports.
As stated above, the blood stained clothes also were not seized. PW3, the
doctor who had made entries in the Accident Register (Ext.P4) had observed
in the said register that there was no bleeding or discharge from the vagina
of the victim, though she had noted abrasions measuring 1 x 1/2 cm on both
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sides of the genital part of the victim. From the above, it is clear that there is
no evidence to suggest that the victim was subjected to penetrative sexual
assualt within the meaning of Section 3 of the POCSO Act.
13.Therefore, it would be highly unsafe to convict the appellant
for the offence of penetrative sexual assautl. However, it is seen that the
victim was found in the room of the victim on the date of occurrence and the
victim complained of pain in her genital part after she came out of the said
room. She was subjected to medical examination soon thereafter and the
delay in lodging the complaint cannot be said to be unexplained. Therefore,
this Court is of the view that the prosecution had proved that the victim was
subjected to aggravated sexual assautlt by the appellant as the victim was
below 12 years.
14.Considering the nature of the offence, the evidence adduced
and the age of the appellant, this Court is of the view that ends of justice
would be met if the appellant is sentenced to 5 years RI and to pay a fine of
Rs.25,000/- and in default to undergo three months SI for the offences under
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Section 9(m) r/w 10 of the POCSO. Act. Consequently, the appellant is
acquitted of the offene under Section 376 AB of IPC. The appellant shall be
secured for serving the period of sentence. The period already undergone be
set off.
15.The Criminal Appeal is accordingly partly allowed
18.02.2026
Neutral Citation: Yes/No
Tsg
To
1.The Sessions Judge,
Magalir Neethi Mandaram
Fast Track Mahila Court, Tiruppur
2.The Inspector of Police,
Avinasi All Women Police Station,
Crime No.5 of 2022.
3.The Public Prosecutor,
High Court, Madras.
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SUNDER MOHAN,J.
Tsg
18.02.2026
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