Madras High Court
Sundharraj vs The State Rep. By on 26 June, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.99 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.06.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.99 of 2023
1. Sundharraj
2. Thangavel ... Appellants
Vs.
The State rep. by
The Inspector of Police,
Mecheri Police Station,
Salem District.
Crime No.306/2018 ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C., to
call for the records and set aside the judgment passed in Special
S.C.No.262/2019 by the learned Sessions Judge Principal POCSO Court,
Salem, dated 29.12.2022 and acquitted the appellants.
For Appellants
For A1 : Mr.R.Anburaj
For Mr.R.Sethuvarayar
For A2 : Mr.L.Mouli
For Respondent : Mr.S.Raja Kumar
Additional Public Prosecutor
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Crl.A.No.99 of 2023
JUDGMENT
This Criminal Appeal has been filed as against the judgment dated 29.12.2022, passed by the learned Sessions Judge, Principal POCSO Court, Salem, in Spl.S.C.No.262 of 2019, thereby convicted the appellants for the offences punishable under Section 366 of IPC and Sections 5(l), 5(m) r/w 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as “the POCSO Act”).
2. The case of the prosecution was that, the minor victim girl had studied up to 5th standard and thereafter discontinued her studies. The second appellant is the distant relative of the first appellant. The first appellant had asked the victim girl to marry him. However, it was refused, since the victim girl was a minor. Thereafter, the first appellant forced her to fall in love with him. Though the victim girl refused to love him, on 27.07.2018, the first appellant forcibly kidnapped the victim girl to his sister's house, at Morpalayam and had made her to stay with him that night. The second appellant also assisted the first appellant in the kidnap by taking her on the two wheeler and thereafter shifting her to a car. Thereafter, the second appellant left the place and had gone to his house. On the next day, the first appellant took the victim girl to a lonely Page 2 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 01:57:40 pm ) Crl.A.No.99 of 2023 house and had committed aggravated penetrative sexual assault on the victim and thereafter he left her in her home. On the complaint, the respondent registered the FIR for the offences punishable under Section 363 of IPC in Crime No.306 of 2018. After completion of investigation, the respondent filed final report for the offences punishable under Sections 363, 366, 366(A) of IPC and Sections 5(l), 5(m) & 6 of the POCSO Act and the same was taken cognizance by the trial Court in Spl.S.C.No.262 of 2019.
3. In order to bring the charges to home, the prosecution had examined P.W.1 to P.W.14 and marked documents in Ex.P.1 to ExP.24. The prosecution had also produced one material object in M.O.1. On the side of the accused, no one was examined and no documents were marked. On perusal of the oral and documentary evidences, the trial Court convicted the first appellant for the offences punishable under Section 366 of IPC and Sections 5(l), 5(m) r/w 6 of the POCSO Act and sentenced him as follows :-
S.No. Conviction Sentence
1 Section 366 of to undergo rigorous imprisonment for a
IPC period of seven years and to pay fine of
Rs.1,000/-, in default to undergo rigorous
imprisonment for further period of one year.
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Crl.A.No.99 of 2023
S.No. Conviction Sentence
2 Section 5(l) r/w. to undergo rigorous imprisonment for a
6 of the POCSO period of ten years and to pay fine of Act. Rs.1,000/-, in default to undergo rigorous imprisonment for further period of one year.
3 Section 5(m) r/w. to undergo rigorous imprisonment for a 6 of the POCSO period of ten years and to pay fine of Act. Rs.1,000/-, in default to undergo rigorous imprisonment for further period of one year.
The trial Court also convicted the second appellant for the offences punishable under Section 366 of IPC and Section 16 r/w. 17 of the POCSO Act and sentenced him as follows :
S.No. Conviction Sentence
1 Section 366 of to undergo rigorous imprisonment for a
IPC period of seven years and to pay fine of
Rs.1,000/-, in default to undergo rigorous
imprisonment for further period of one year.
2 Section 16 r/w. to undergo rigorous imprisonment for a
17 of the POCSO period of ten years and to pay fine of Act. Rs.1,000/-, in default to undergo rigorous imprisonment for further period of one year.
The above sentences are ordered to run concurrently. Aggrieved by the same, both the accused filed the present appeal.
4. The learned counsel appearing for the first appellant submitted that the prosecution failed to prove the age of the victim and for that reason Section 5(m) of the POCSO Act, will not be attracted Page 4 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 01:57:40 pm ) Crl.A.No.99 of 2023 against the first appellant and the prosecution failed to prove the charge under Section 5(m) r/w 6 of the POCSO Act. Insofar as the offence under Section 5(l) r/w 6 of the POCSO Act is concerned, even according to the victim girl, the appellant had committed sexual assault on her only once. Therefore, the offence under Section 5(l) r/w 6 of the POCSO Act will not be attracted against the first accused. Only the offence under Section 4(1) of the POCSO Act shall be attracted against the first appellant. He also pointed out the contradictions, insofar as the age of the victim girl from the evidence of P.W.1, P.W.3 and the doctor, who examined the victim.
5. The learned counsel appearing for the second appellant submitted that the prosecution miserably failed to prove the abatement done by the second appellant under Section 16 r/w. 17 of POCSO Act. That apart, he never assisted the first appellant to kidnap the victim. Only on her interest, she came along with the first accused in the motorcycle. Since the second appellant is the relative of the first appellant, he also accompanied with the first appellant. Therefore, the second appellant had absolutely no intention to kidnap the victim to attract the offence punishable under the POCSO Act.
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6. Per contra, the learned Additional Public Prosecutor appearing for the respondent submitted that the prosecution had categorically proved by the charges by examining the victim girl and her parents. The victim girl was examined as P.W.2. She categorically deposed that both the accused had taken her in their two wheeler and thereafter shifted her to car. They went to the first accused's sister's house, where they stayed together for one day. While so, the first accused had committed aggravated penetrative sexual assault on the victim girl. The victim girl was aged about 12 years on the date of occurrence. That apart, he had committed sexual intercourse on the victim for more than once. Therefore, the offences punishable under Sections 5(l), 5(m) r/w 6 of POCSO Act are very well attracted against the first accused. Insofar as the offence under Section 366 of IPC is concerned, both the accused had kidnapped the victim in order to commit aggravated penetrative sexual assault. Therefore, the trial Court rightly convicted both the accused and it doesn't warrant any interference from this Court.
7. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
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8. On perusal of the statement recorded from the victim under Section 164 of Cr.P.C., which was marked as Ex.P.2, it is revealed that she was taken by the first accused in his two wheeler. At that time, the second accused was also sitting on the two wheeler. After some time, the first appellant brought a car and she was shifted to the car. Till the victim girl boarded the car, the second accused accompanied them and thereafter he left. In the car, they went to the first accused's sister's house and the first accused compelled her to marry him. They also went to temple to marry. However, the Poojari of the temple refused to solemnize the marriage between them. Thereafter, they went to the house and had physical relationship. But, the victim girl deposed in her examination as P.W.2 as follows :-
“@///////////1tJ vjphp bgau; Re;ju;uh$;/ 2tJ vjphp bgah; j';fnty;/ ehd; 5k; tFg;g[ tiu goj;jpUf;fpnwd;/ 2 tUlj;jpw;F Kd;g[ ehd;
v';fs; fhl;oy; cs;s nkhl;lhupy; jz;zPh;
vLg;gjw;fhf khiy 5/00 kzpastpy; nghndd;/
mg;nghJ M$u; 1tJ vjpup o/tp/v!;/50apy;
eLtpy; cl;fhuitj;Jf; bfhz;L 2tJ vjpup
j';fntYit gpd;dhy; cl;fhuitj;Jf;bfhz;L
vd;id J}ukhf miHj;J nghdhu;fs;/ gpwF
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Crl.A.No.99 of 2023
fhupy; vd;id 2 vjpupfSk;. oiutUk;
miHj;J nghdhh;fs;/ 1tJ vjpup vd;id
mtUila rpd;df;fh tPl;ow;F
nkhu;ghisaj;jpw;F miHj;J ngha;
j';fitj;jhu;/ m';F gf;fj;J xU tPl;oy;
1tJ vjpup vd;id j';fitj;J. vd;dplk;
jg;ghf ele;Jf;bfhz;lhu;/ vd;id
bfLj;Jtpl;lhu;/ gpwF gf;fj;jpy; cs;s
nfhtpYf;F rpd;df;fht[k;. Re;ju;uh$Pt[k; kw;Wk;
epiwa ngUk; vd;id. vdf;F
jhypf;fl;Ltjw;fhf miHj;Jf;bfhz;L
nghdhu;fs;/ g{rhup Mdhy; KoahJ vd;W
brhy;yptpl;lhu;/ gpwF M$u; vjpup vd;id
v';fs; CUf;F miHj;J te;J v';fs; fhl;oy;
tpl;Ltpl;L ngha;tpl;lhu;/////////@
Therefore, it is completely in contradiction to the statement recorded under Section 164 of Cr.P.C.
9. Immediately after the complaint, she was subjected for medical examination. The medical reports were marked as Ex.P.13 to Ex.P.16. On perusal of the same, it is revealed that no injury was found in her genitalia. However, her hymen was not intact. Finally, it was opined that spermatozoa was no detected in the vaginal smears. The doctor who examined the victim was deposed as P.W.12. She Page 8 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 01:57:40 pm ) Crl.A.No.99 of 2023 categorically deposed as follows:-
@/////////////ehd; rpWkpia gupnrhjid bra;jjpy; mtUila fhy;fs; ,uz;oYk; rpuha;e;j jlak; fhzg;gl;lJ/ ntW tifapy; nkw;go rpWkpapd;
clk;gpy; btspg;g[wf; fha';fs; ,y;iy/
ghYWg;gpy; btspg;g[wf; fha';fs; VJk;
,y;iy/ ty;th. bgupdpak;. bgsr;rl;
rhjhuzkhf ,Ue;jJ/ fd;dpj;jpiu
jd;ikahf ,y;iy/ rpWkpapd; ghYWg;gpd;
tha;gFjpapy; ,Ue;J ,uz;L jlty;fs;
vLj;J nryk; tl;lhu jla mwptpay;
Ma;tfj;jpw;F tpe;jQq ghpnrhjidf;F
mDg;gp itj;njd;/ gupnrhjidapd; Kotpy;
jlty;fspy; tpe;jQqf;fs; VJk;
fz;lwpag;gltpy;iy/ vd;Dila
gupnrhjidapy; ,Ue;Jk;. gjpt[ bra;ag;gl;l
kw;Wk; fpilf;fg;bgw;w Mtz';fspy; ,Ue;Jk;
nkw;go rpWkp XXXX j-bg/ bgUkhs;.
ClYwt[f;F cs;shfpapUg;gjw;F tha;g;g[ cz;L
vd;W vdJ ,Wjp fUj;ij tH';fpndd;///////@
Thus, it is clear that there is a possibility of sexual intercourse. Further, the victim's age was only 14 years at the time of her medical examination.Page 9 of 14
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10. The prosecution had marked school certificate of the victim as Ex.P.8. On perusal of the Ex.P.8, it was issued by the Head Master as per the school record. However, no documents were produced to show that the school record was registered based on birth certificate or any other relevant documents. Though the victim was minor on the date of occurrence, the prosecution failed to prove whether the victim was below the age of 12 years or above. According to P.W.12 viz., the age of the victim was recorded as 15 years at the time of examination. Further, the father of the victim was examined as P.W.1. He deposed that the victim was aged below 12 years on the date of occurrence. However, the grand mother of the victim was examined as P.W.3 and she deposed that the victim was aged about 13 years at the time of alleged occurrence. Therefore, there is no clear evidence to prove the age of the victim that she was below 12 years at the time of occurrence. Hence, the prosecution failed to prove the age of the victim whether she was below 12 years or above. In any case, the victim was minor below the age of 18 years at the time of occurrence. Therefore, the prosecution filed charge sheet for the offence punishable under the POCSO Act.
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11. Insofar as the offence under Section 5(l) of the POCSO Act is concerned, the victim deposed that the first accused had sexual intercourse once in his sister's house. Though she had stated in the statement recorded under Section 164 of Cr.P.C., that she had sexual intercourse twice, she deposed before the Court contradictively. Therefore, the prosecution also failed to prove the charge under Section 5(l) of the POCSO Act. However, the first accused had penetrative sexual assault on the victim. Therefore, the first accused is liable to be convicted for the offence punishable under Section 4(1) of the POCSO Act. He had committed the offence before the amendment of the POCSO Act and as such he shall be sentenced for less than seven years.
12. Insofar as the offence under Section 366 of IPC and Section 16 r/w. 17 of the POCSO Act, as against the second accused is concerned, even according to the victim the two wheeler was brought by the first accused. After boarding the victim girl, the first accused insisted the second accused to get on and thereafter he had sat in the back. The second accused had absolutely no knowledge that the first accused was taking the victim girl to his sister's house for committing sexual assault. In fact, after reaching the place where the car was kept, the second Page 11 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 01:57:40 pm ) Crl.A.No.99 of 2023 accused left the place and had gone to his house. Thereafter, the first accused alone had taken the victim girl in the car to his sister's house. Hence, no offence is made out as against the second accused and the prosecution failed to prove the offence under Section 366 of IPC and Section 16 r/w 17 of the POCSO Act, against the second accused.
13. In view of the above discussions, the conviction and sentence imposed by the judgment dated 29.12.2022, passed by the learned Sessions Judge, Principal POCSO Court, Salem, in Spl.S.C.No.262 of 2019, for the offences punishable under Sections 5(l), 5(m) r/w 6 of the POCSO Act, as against the first accused are set aside. However, the first accused is convicted for the offence punishable under Section 4(1) of the POCSO Act and sentenced to undergo seven (7) years rigorous imprisonment. The conviction and sentence imposed for the offence under Section 366 of IPC as against the first appellant is confirmed. The conviction and sentence imposed on the second respondent for the offences under Section 366 of IPC and Section 16 r/w 17 of the POCSO Act are hereby set aside. The second appellant is acquitted of all charges in Spl.S.C.No.262 of 2019 on the file of the learned Sessions Judge, Principal POCSO Court, Salem. Fine amount, if Page 12 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/08/2025 01:57:40 pm ) Crl.A.No.99 of 2023 any paid, shall be refunded to the second appellant forthwith. Bail bonds, if any executed, shall stand cancelled.
14. Accordingly, the Criminal Appeal stands partly allowed. Consequently, connected miscellaneous petition is closed.
26.06.2025
Index : Yes/No
Neutral citation : Yes/No
Speaking/non-speaking order
rts
To
1.The Sessions Judge,
Principal POCSO Court,
Salem.
2. The The Inspector of Police,
Mecheri Police Station,
Salem District.
3. The Public Prosecutor,
Madras High Court, Chennai.
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Crl.A.No.99 of 2023
G.K.ILANTHIRAIYAN, J.
rts
Crl.A.No.99 of 2023
26.06.2025
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