Madras High Court
Raja vs The State Rep.By on 22 December, 2023
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2023
CORAM
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No.237 of 2016
Raja ... Appellant
Versus
The State Rep.by
The Inspector of Police,
Udaiyarpalayam Police Station,
Ariyalur District. ... Respondent
(Crime No.276 of 2015)
Criminal Appeal filed under Section 374(2) of Cr.P.C, against the
judgment dated 23.02.2016 in SPL.S.C.No.21 of 2015 on the file of the Sessions
Judge, Fast Track Mahila Court, Ariyalur District.
For Appellant : Mr.S.Shankar
For Respondent : Mrs.G.V.Kasthuri
Additional Public Prosecutor
JUDGMENT
This Appeal has been filed as against the judgment passed in Spl.S.C.No.21 of 2015, dated 23.02.2016 on the file of the Sessions Judge, Fast Track Mahila Court, Ariyalur, whereby the Sessions Judge, Fast Track https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 1/49 Mahila Court, Ariyalur District, found the Appellant/Accused guilty and convicted him as hereunder.
S.No. Conviction Sentence
1. Under Section 366 of IPC 5 years of Rigorous
Imprisonment and fine of
Rs.1,000/-, in default, to
undergo Simple
Imprisonment for 6 months.
2. Under Section 506(i) of IPC 6 months R.I and fine of
Rs.1,000/- in default to
undergo S.I for 2 months.
3. Under Section 4 of POCSO Act, 7 years R.I. and fine of
2012 Rs.5,000/- in default to
undergo S.I for 1 year.
4. Under Section 6 of POCSO Act, 10 year R.I. and fine of
2012 Rs.10,000/- in default to
undergo S.I for 2 years.
The above sentences were ordered to run concurrently.
2. The brief facts, which are relevant to decide this Criminal Appeal, are as follows:
2.1. The victim in this case is the daughter of P.W-2 Malarkodi and P.W-3 Elangovan. The Accused is a cousin to P.W-3 Elangovan, who happens to be a paternal uncle to the victim. Sometime in the month of September 2015, when the victim was returning from School by around 5.30 p.m, the Accused had stopped his two wheeler near the victim and asked her to get on to the two wheeler bearing Registration No.TN-68-P-7749 and stated that he will drop her at her house at Pilichikuzhi and on the way to home, in the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 2/49 Cashew grove, he had stopped the two wheeler and taken her inside the grove and touched her inappropriately for which she was shocked and cried. The Accused consoled her and asked her not to disclose it to anyone and he dropped her at her home.
2.2. Subsequently, on 28.09.2015, when the victim was proceeding towards her School by 8.00 a.m, the Accused came near to her on the same two wheeler and forced her to sit on the two wheeler as a pillion rider and taken her away forcibly. On the way, he purchased cool drinks and given the same to victim. After drinking the cool drink, she fainted. When she woke up, she found that she was in the house of a relative of the Accused where they stayed.
Since the child (victim) who went to School had not returned, the parents of the child (victim) made enquiries with the relatives and finding that their daughter was not found in any of their relatives house and the mother of the victim/P.W.2 gave a complaint under Ex.P-2 before the Inspector of Police, Udaiyarpalayam Police Station.
2.3. On receipt of the complaint, P.W-17 Saravanan, the Sub-Inspector of Police, Udaiyarpalayam Police Station, had registered FIR in Crime No.276 of 2015 under Ex.P-17 as 'girl missing'. The original FIR was submitted before the learned Judicial Magistrate, Ariyalur, and copy of the same was forwarded to the higher officials including P.W-18 Bharathidasan, https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 3/49 Investigating Officer. Accordingly, he went to the house of the P.W-2 and P.W-3 and prepared the Rough Sketch under Ex.P-4 and Observation Mahazar under Ex.P-3.
2.4. On 03.10.2015, the Accused was arrested by P.W-18 Investigating Officer, near Sitheri Mariamman Temple, along with his two wheeler, in the presence of witnesses P.W-9 Chinnasamy and P.W-14 Surcose @ Balakrishnan. On their confession, the two wheeler was recovered on Seizure Mahazar under Ex.P-19 and recorded the statement of the witnesses, the victim, the parents of the victim, witnesses to the Observation Mahazar, witnesses to the Rough Sketch and the Seizure Mahazar. Based on the statement of the victim, the case was registered as 'girl missing' under Ex.P-17 FIR in Crime No.276 of 2015. Subsequently, an alteration report was filed before the learned Judicial Magistrate, Ariyalur under Ex.P-20 for the offence under Sections 366-A and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012.
2.5. On 05.10.2015, the Accused was sent for medical examination. On 07.10.2015, P.W-18 Investigating Officer went to the house of P.W-5 Mahalakshmi at Poyyapakkam and examined P.W-5 and recorded her statement. The victim was sent for medical examination along with a woman Police Constable and her mother. P.W-10 Dr. Ravishankar had examined the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 4/49 victim and issued Semen Analysis Report under Ex.P-8. P.W-11 Dr.Thenkuzhali had examined the victim, recorded her statement and also subjected the victim to medical examination through Dentist to determine the age. P.W-15 Dr.Sudhakar had examined the victim and issued age certificate under Ex.P-16. P.W-18 Investigating Officer already went to the School, where the victim studied and obtained the School records regarding the age of the victim and recorded the statement of the Headmistress of the School. The two wheeler belongs to one Kumar. As the owner of the vehicle, he was also examined as P.W-7 and his statement was recorded. P.W-18 Investigating Officer had sent a letter to the learned Chief Judicial Magistrate to nominate a Judicial Magistrate to examine the victim under Section 164 Cr.P.C. On receipt of the intimation from the learned Chief Judicial Magistrate, the victim was produced before the learned Judicial Magistrate and after recording the statement, copy of the same was obtained from the learned Judicial Magistrate by the Investigating Officer.
2.6. On completion of investigation, P.W-18 laid the final report before the Court of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur. On appearance of the Accused, copies were furnished under Section 207 of Cr.P.C.. Since the offences are triable by Court of Sessions, the case was committed to the Court of Principal Sessions Judge, Ariyalur. The https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 5/49 Principal Sessions Judge, Ariyalur, on receipt of the records, forwarded the records to the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, who had taken the case on file, taken cognizance of the offence and numbered the case as Special S.C.No.21 of 2015 and on appearance of the Accused, the prosecution and the defence were heard.
2.7. After hearing the arguments of the Prosecution and the defence, the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, had framed the following charges against the Accused under Sections 366 and 506(i) of IPC and Sections 4, 5(1) r/w 6 of the Protection of Children from Sexual Offences Act, 2012. Since the Accused denied the charges and claimed to be tried, the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, ordered trial.
2.8. In order to prove the charges, the Prosecution had examined 19 witnesses as P.W-1 to P.W-19 and marked 23 documents as Ex.P-1 to Ex.P-23 and also the two wheeler bearing Registration No.TN-68-P-7749 was marked as M.O-1 and to disprove the Prosecution case, the Accused had examined two witnesses one Chinnaraja as D.W-1 and another one Boominathan as D.W-2 and no document was marked.
2.9. On appreciation of the oral and documentary evidence, the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, by judgment dated 23.02.2016, convicted and sentenced the Accused to undergo 5 years Rigorous https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 6/49 Imprisonment and to pay fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of 6 months for the offence under Section 366 of IPC; to undergo six months Rigorous Imprisonment and to pay fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of 2 months for the offence under Section 506(i) of IPC; to undergo 7 years Rigorous Imprisonment and to pay fine of Rs.5,000/-, in default, to undergo Simple Imprisonment for a period of 1 year for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and to undergo 10 years Rigorous Imprisonment and to pay fine of Rs.10,000/-, in default, to undergo Simple Imprisonment for a period of 2 years for the offence under Sections 6 of the Protection of Children from Sexual Offences Act, 2012.
2.10. Aggrieved by the judgment of conviction and order of sentence awarded by the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, this Appeal had been filed by the Accused.
3. Mr.S.Shankar, the learned Counsel for the Appellant submitted that the Appellant was convicted for the offence under Section 366 of IPC for which he was sentenced to undergo 5 years Rigorous Imprisonment and to pay fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of 6 months; for the offence under Section 506(i) of IPC to undergo 6 months https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 7/49 Rigorous Imprisonment and to pay fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of 2 months; for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012, to undergo 7 years Rigorous Imprisonment and fine of Rs.5,000/- in default, to undergo Simple Imprisonment for a period of 1 year and for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012, to undergo 10 years Rigorous Imprisonment and fine of Rs.10,000/- in default, to undergo Simple Imprisonment for a period of 2 years.
4. The learned Counsel for the Appellant invited the attention of this Court to the charges framed by the Trial Court. As per the charges, in the month of September, 2015 one day by around 4.30 p.m., when the victim was returning from School, the Accused was alleged to have forced her to come on his two wheeler stating that he would drop her at her home in Pilichikuzhi from Udaiyarpalayam. On the way, he stopped the vehicle near a Cashew Grove, taken her inside the grove and committed sexual assault on her thereby attracting offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012. On the same day, on the same transaction, he had committed aggravated sex attracting offence under Section 6 of the the Protection of Children from Sexual Offences Act, 2012. In continuation of the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 8/49 same act, on 28.09.2015, by around 8.00 a.m., when the victim was proceeding to her School, the Accused came on a two wheeler bearing Regn.No.TN-68-P- 7749 and forcibly taken her to Villupuram and detained her in a house belonging to the Accused at Poyyapakkam and committed sexual intercourse on the victim continuously thereby attracting offence under Section 5(1) r/w 6 of the Protection of Children from Sexual Offences Act, 2012. Also, in the same transaction, he had kidnapped the minor girl from the lawful custody of her parents attracting offence under Section 366 IPC. Also, the Accused is alleged to have threatened the victim not to disclose it to anyone thereby intimidating her attracting offence under Section 506(i) of IPC.
5. The learned Counsel for the Appellant invited the attention of this Court to the evidence of P.W-1 victim, P.W-2 mother of the victim and P.W-3 father of the victim, P.W-11 Headmistress of the School where the victim studied.
6. The learned Counsel for the Appellant invited the attention of this Court to the fact that the De facto Complainant/P.W-2 mother of the victim had lodged the complaint under Ex.P-2 after 36 hours after the alleged occurrence. The alleged occurrence was on 28.09.2015 by 4.30 p.m whereas https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 9/49 the complaint was lodged on 30.09.2015 at 6.00 p.m.
7. The learned Counsel for the Appellant invited the attention of this Court to the statement recorded by the learned Judicial Magistrate under Section 164 Cr.P.C, which was marked as Ex.P-1 during trial. The statement of the victim that she was given cool drink and after consuming the cool drink, she suffered giddiness and when she opened her eyes, she found herself in the house of Mahalakshmi/P.W-5 at Pilichikuzhi, where the Accused is alleged to have committed sexual intercourse with the victim continuously for a period of four days. It is unbelievable that a person, who is unconscious, was taken on a two wheeler from Udaiyarpalayam in Ariyalur District to Poyyapakkam in Villupuram District, which is more than 120 kms as per the evidence of P.W- 18 Investigating Officer.
8. The defence of the Accused is that the case had been foisted to wreck vengeance on the Accused. The Accused happens to be a cousin of the father of the victim. The mother of the victim influenced the victim and gave a complaint impleading the Accused. The father and mother of the victim wanted to purchase a house site belonging to the relative of the father of the victim, which was purchased by the Accused. Therefore, to wreck vengeance, https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 10/49 this case had been foisted. The mother of the victim does not have any good reputation in the village. There are materials available in the deposition of D.W-2 Boominathan, the defence witness that P.W-2 mother of the victim is a woman of easy morals. Therefore, she had exploited her daughter to lodge the false complaint against the Appellant.
9. As per the evidence of D.W-1/Chinnaraja, who is the cousin to the Accused as well as to the parents of the victim, who is also a practicing lawyer, had narrated the cause of action for registering the false case against the Accused stating that around four cent of house site near the house of P.W- 2 and P.W-3 came for sale, the parents of the victim wanted to purchase it whereas the Accused had purchased it, therefore, there had been dispute between them for more than four to five years.
10. The learned Counsel for the Appellant invited the attention of this Court to the evidence of P.W-2 at Page Nos.16 and 18 regarding date of birth. Birth Certificate is available since she delivered the child in private hospital. If the delivery takes place in Hospital whether Government or Private, the Hospital authorities themselves will register the date of birth of the child with the Local authorities where the Hospital is situated. Here, in the cross- https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 11/49 examination of P.W-2, she admits that she delivered a child in Private Hospital. If so, why was the birth certificate of the victim P.W-1 was not furnished to the Investigating Officer, P.W-18 had not been stated. P.W-3 is the father of the victim who had also admitted that the child was delivered in a Hospital. Therefore, there is presumption that the Hospital Authorities had registered the birth with the Local authorities. Therefore, the Birth Certificate will be available with P.W-2 and P.W-3, which was not furnished to P.W-18 Investigating Officer. The Prosecution attempted to prove the age of the victim through P.W-12 Headmistress of the School where the victim studied.
11. The learned Counsel for the Appellant invited the attention of this Court to the evidence of P.W-12 at Page Nos.38 and 39 who had issued Ex.P- 10 Education Certificate wherein the date of birth of the victim is mentioned as 15.06.2001. Ex.P-12 is the admission application wherein the date of birth of the victim is given as 15.06.2001. Ex.P-12 is not signed by the parents but it is signed by the victim, therefore, the same is suspicious and inadmissible in evidence. A declaration form in the admission register of the School is to be signed by the person who knows about the date of birth of the child to be admitted in the School either the parents or the relatives of the parents, who are elders to the child. Here, it was signed by the victim herself. Therefore, https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 12/49 Ex.P-12 is unacceptable and inadmissible. How can a student sign in the column meant for the signature of the parents? Therefore, Ex.P-12 is not worth for consideration. Ex.P-13 is the record sheet issued by the Headmaster of the School. It is based on the admission register of the Primary School or Middle School, where the child studied before being admitted in the High School. This register was marked through P.W-12, Headmistress of the School. The Head Master of the earlier School was not examined as witness. Therefore, the Prosecution failed to prove the age of the victim that she was a child on the alleged date of occurrence.
12. The learned Counsel for the Appellant invited the attention of this Court to the opinion of the dentist, P.W-15 Dr.Sudhakar, his evidence is available at Page No.44. As per his evidence, he had issued Ex.P-16/Dental Certificate as proof of age of the victim as between 17 and 19 years. Therefore, the victim was not a child as per the medical evidence. The Prosecution suppressed the actual age of the victim and the age of the victim is doubtful. The mother of the victim, P.W-2 is the second wife of P.W-3 Elangovan. P.W- 3 Elangovan has two children through the first wife. P.W-2 Malarkodi has one daughter and one son. The victim girl is the daughter. P.W-2 was residing away from her husband in the village. P.W-3 Elangovan, the father of the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 13/49 victim was employed at Coimbatore and residing there. Therefore, the conduct of P.W-2 Malarkodi having no good reputation and she had exploited her daughter to settle score with the Accused regarding the purchase of the house site adjacent to her house. The evidence of victim that she was taken away on a two wheeler from Udaiyarpalayam in Ariyalur District to Poyyapakkam in Villupuram District, which is nearly 120 Kms, cannot be accepted from the normal experience of an ordinary prudent man. Till 30.09.2015 they were at Villupuram in the house of P.W-5. P.W-5 is the person who was stated by P.W-1, victim. As per evidence of victim, the victim was with the Accused in the house of P.W-5 between 28.09.2015 to 30.09.2015. P.W.5 had turned hostile. P.W-6 also turned hostile. P.W.4, Selvaraj, also turned hostile.
13. The learned Counsel for the Appellant invited the attention of this Court to Section 29 of the Protection of Children from Sexual Offences Act, 2012, and submitted that the fundamental facts was not considered by the learned Sessions Judge. The Investigating Officer had obtained only School certificate and wantonly suppressed the birth certificate available with the parents of the victim. The evidence of P.W-15 Dr.Sudhakar, who issued the age certificate, stated that the age of the victim is between 17 and 19 years. https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 14/49
14. The learned Counsel for the Appellant invited the attention of this Court to the evidence of P.W-11 Dr. Thenkuzhali. The Prosecution had not established the case. Therefore, the judgment of conviction recorded by the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, who failed to appreciate the evidence available through the Prosecution witnesses is perverse and is to be set aside.
15. Mrs.G.V.Kasthuri, learned Additional Public Prosecutor vehemently objected to the submission made by the learned Counsel for the Appellant stating that the evidence of the victim itself inspires confidence when the victim had become unconscious, she had not stated that she had been taken away to Villupuram on a two-wheeler. She was taken on her way back from School by the Accused on a two-wheeler stating that he would drop her near her residence at her native place, Pilichikuzhi, instead he had misbehaved with her in the Cashew grove and also threatened her that she should not disclose it to anyone. On 28.09.2015 by around 8.00 a.m., when she was going to School, he had approached her on a two-wheeler bearing Registration No.TN-68-P-7749 and had forcibly taken her on the two-wheeler again to the place from where she was given cool drink, she fainted. Subsequently when she opened her eyes, she found herself in the house of P.W-5 at Poyyapakkam. https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 15/49 It is natural for P.W-5, to remain hostile as she is related to the Accused.
16. The learned Additional Public Prosecutor invited the attention of this Court to the evidence of P.W-5 and P.W-7. P.W-5 is the wife of friend of the Appellant and P.W-7 is the brother-in-law of the Appellant. The Observation Mahazar is marked as Ex.P-3 and Rough sketch is marked as Ex.P-4. Ex.P-9 is the copy of Accident Register issued by P.W-11. P.W-8 Ganesan had accepted his signature in Ex.P-3 Observation Mahazar and Ex.P- 4 Rough Sketch. He also stated that P.W-4 Selvaraj also affixed his signature to those documents along with him.
17. The learned Additional Public Prosecutor invited the attention of this Court to the evidence of the Headmistress of the School where the victim P.W-1 studied at the time of relevant point of time. P.W-12 Tmt.Vel Oli who had deposed evidence regarding date of birth recorded in the School admission register under Ex.P-11 wherein the victim's name is found as she was admitted in the School in IX Standard. Along with them, the School Register from where the student was admitted in the School in her first standard till her VIII standard also had been produced under Ex.P-13. Register from Rajan Middle School, Okkanatham, Pilichikuzhi, Udayarpalayam Taluk, Ariyalur District. https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 16/49 The date of birth of the victim P.W-1 as per Ex.P-11 and Ex.P-13 Registers are 15.06.2001. On the date of the alleged occurrence on 28.09.2015 she was aged 14 years 3 months approximately and not aged 17 or 18 as claimed by the learned Counsel for the Appellant before this Court or as claimed by the Accused before the learned trial Judge. She further invited the attention of this Court to the cross-examination of D.W-1 and D.W-2 it is found that D.W-1 and D.W-2 are not reliable witnesses from the cross-examination of D.W-1 and D.W-2 and they are only attempting to tarnish the reputation of the mother of the victim, who had suffered due to the conduct of the Accused, who is the paternal uncle to the victim and not expected to behave in a manner treated as an uncivilized behaviour and not expected from a person of his age with relation to the child, who is aged her daughter, who is none other than his elder brother's daughter (cousin's daughter). Only to wriggle out of the criminal case, he had examined D.W-1 and D.W-2 with an intention to tarnish the image of the victim's mother and the victim as though they are the people of easy morals, which is condemnable, which was objected by the learned trial judge during trial.
18. Instead of entering the witness box and deposing evidence, rebuttal evidence against the case of the Prosecution and in support of his own https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 17/49 defence, the Accused himself evaded the witness box. Therefore, the Court has to draw adverse inference under Section 114 of the Indian Evidence Act from the conduct of the Accused. Therefore, the learned Additional Public Prosecutor sought rejection of the evidence of D.W-1 and D.W-2, which is unacceptable in a trial of this nature and prayed the Court to draw adverse inference against the conduct of the Accused.
19. The theory of the Accused that he had purchased the property, which had been admitted in the cross-examination of D.W-1, who claims to be a lawyer and who claims to be relative of the Accused as well as the victim, stating that he is a cousin to the Accused and cousin to the father of the victim. He was not able to give details of the property that is alleged to have been purchased by the Accused, which was attempted to be purchased by the father of the victim. There is evidence available that the property belonging to one Krishnan, who is not alive on the date of trial. His wife and children are available in the village. They were not examined regarding the theory of defence that the father of the victim wanted to purchase the property whereas the Accused purchased the property. D.W-1, who claims to be the cousin to the parents of the victim as well as to the Accused claims that the Accused had brought Krishnan along with relevant records to obtain his legal opinion. It is https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 18/49 unbelievable. Considering the fact that he had only recently registered as an Advocate and regarding civil dispute any person will not get opinion from an Advocate who had recently registered as an Advocate of the Bar Council of Tamil Nadu and Puducherry. If he perused the documents he would have been able to give details of the property with Survey Numbers, extent and its parent documents. He is unable to give details of the property in his cross- examination. Therefore, it is to be treated as he was examined as a witness only for the purpose of an attempt to disprove the Prosecution case and he failed in his attempt. D.W-1 is not a true witness as per the provision of the Indian Evidence Act and therefore, his evidence has to be rejected.
20. The same case is with the evidence of D.W-2, without admitting the fact of the defence, for arguments sake, if it is to be taken that the mother of the victim is a woman of easy moral and it does not give right to anyone in the village or society to have his own way to have sexual intercourse with the minor girl. Even if the evidence of P.W-15, medical evidence is to believed she is less than 18 years on the date of medical examination. P.W-15, the Dentist given the age as between 17 and 19 that does not mean the victim had consented with the Accused and had sexual intercourse as a consensual relationship. Therefore, the arguments of the learned Counsel for the Appellant https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 19/49 that this is a foisted case had been demolished. The person who had fainted after consumption of soft drinks was taken away from the village to a far away place nearly 120 kms from the place of residence of the victim where the victim was detained for two days. Therefore, it attracts the provisions of the Protection of Children from Sexual Offences Act, 2012 as well as provisions under Section 366 of IPC. The statement given by the victim under Section 164 of Cr.P.C before the learned Judicial Magistrate, which was marked as Ex.P-1 itself is sufficient to convict the Accused.
21. Further, the learned Additional Public Prosecutor submitted that the evidence of P.W-1 victim before the trial Court alone will be sufficient that the Accused herein had committed the alleged offences on the victim. The Prosecution had proved the case cogently. As per Section 29 of the Protection of Children from Sexual Offences Act, 2012, the Court has to presume that the evidence of the victim under the Protection of Children from Sexual Offences Act, 2012 is presumed to be true. It is for the Accused to demolish the case of the Prosecution by letting in rebuttal evidence. Here, the Accused himself shied away from the witness box. Therefore, it is to be treated as the Prosecution had proved the case against the Accused.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 20/49 Point for consideration:
Whether the judgment of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, in Spl.S.C.No.21 of 2015 dated 23.02.2016 is to be set aside as perverse and the Accused / Appellant to be acquitted from the charges under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012?
22. Heard the arguments of Thiru.S.Shankar, learned Counsel for the Appellant and Mrs. G.V.Kasthuri, learned Additional Public Prosecutor for the Respondents/State. Perused the evidence available before the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, in Spl. S.C.No.21 of 2015 through the evidence of witnesses P.W-1 to P.W-19 and documents under Ex.P-1 to Ex.P-23. Also the evidence of defence witnesses as D.W-1 and D.W-2.
23. On perusal of the evidence of the victim as P.W-1, the victim had narrated the facts as was stated by her at the earliest point of time before the learned Judicial Magistrate, Ariyalur, under Ex.P-1, which is the statement recorded under Section 164 of Cr.P.C as per the mandate of the Protection of Children from Sexual Offences Act, 2012. Further, P.W-2, the mother of the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 21/49 victim was examined and she had narrated the facts leading to the lodging of complaint under Ex.P-2. She had denied the suggestion in the cross- examination. P.W-3, who is the father of the victim, had also narrated the facts leading to the lodging of complaint under Ex.P-2.
24. P.W-4 Selvaraj, he belongs to Pilichikuzhi village. As per his evidence, he had seen the Accused and the victim on 28.09.2015 by around 8.30 a.m. He had narrated those facts and still he was treated as hostile as he had not supported fully the prosecution case. Therefore, he was subjected to cross-examination by the learned Public Prosecutor. He was also cross examined by the Accused. In the cross-examination, he had stated clearly that he had seen the Accused taking the victim on the said date as stated in his chief examination. Even though the Prosecution treated the witness hostile, from the evidence available in the cross-examination of P.W-4 Selvaraj both by the Prosecution as well as the Accused. He had deposed the important fact that he had seen the Accused taking the victim on the fateful day 28.09.2015. Therefore, based on his evidence only, P.W-2 mother of the victim should have raised suspicion about the Accused in her complaint under Ex.P-2. In the girl missing case, the girl was seen last with the Accused and the Accused was not available in the village. Therefore, based on the complaint under Ex.P-2 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 22/49 and suspicion, FIR had been registered under Ex.P-17 as “Girl missing”. It is found natural and cogent.
25. As per the ruling of the Hon'ble Supreme Court in the case of Neeraj Dutta vs. State (NCT of Delhi) reported in (2023) 4 SCC 731, even if a witness is treated as 'hostile' and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. The Hon'ble Supreme Court further laid down that as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence. Here, the statement of P.W-4 is found acceptable even though he was treated hostile, his evidence need not be rejected by this Court.
26. P.W-5 Mahalakshmi, is the person in whose house, the victim was https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 23/49 stated to have stayed along with the Accused. She had turned hostile. In her evidence, she had stated that she does not know the victim and she had not seen her. Her house is at Kozhiyanur, Samathuvapuram and not at Poyyapakkam. She admitted that her husband name is Kolanji and in her cross examination by the Prosecution, in the statement given to the Investigating Officer, she had stated that on 28.09.2015, a friend of her husband, the Accused came to their house along with the girl and in a portion of their house, the said Raja/Accused and the Victim stayed. When P.W-5, Mahalakshmi enquired with the husband's friend, he claimed that she is his relative and she came along with him after a dispute with her mother. Since it was night they allowed them to stay in their house. They were in the house upto 02.10.2015. Now, to save her husband's friend, she had wantonly not supported the Prosecution case. This suggestion was denied by her. The Court can draw adverse inference from the conduct of P.W-5 that what had been stated by the victim under Section 164 Cr.P.C under Ex.P-1 was true and the witness P.W-5 is not speaking the truth. P.W-6 Bharathi also turned hostile. He is a friend of the Accused. Therefore, it is natural that P.W-5 and P.W-6 turned hostile.
27. P.W-7, Kumar, who is the brother in law of the Accused. He is the owner of the vehicle namely Honda Activa, which has been marked as https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 24/49 M.O-1 in the trial. He had admitted in his evidence that the original number of the vehicle is TN-68-P-7746 but it had been wrongly painted the number as TN-68-P-7749. He had stated that his brother-in-law the Accused had sought the two wheeler. Accordingly, he granted it. Subsequently, he came to know that the Police had seized the vehicle and arrested the Accused.
28. P.W-8, Ganesan, who is also a cousin of the Accused. He had remained as a witness to the Observation Mahazar and Rough Sketch prepared by the Investigating Officer near the house of the victim. He had admitted his signature in Ex.P-3 and Ex.P-4.
29. P.W-9, Chinnasamy, is also a cousin to the Accused and he had deposed that he is the resident of Pilichikuzhi village where the Accused and the victim belong. He had stated that P.W-3, Elangovan had been searching for his daughter and he accompanied P.W-3 to the Police Station. After three days, the victim was brought to the Police Station where the relatives of P.W-3 went to the Police Station and he also went along with them. At the time, the Accused was also secured by the Police. He also admitted that the confession statement recorded by the Police was signed by him under Ex.P-5 for the seizure of the vehicle under Ex.P-6. He was treated as hostile. The suggestion https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 25/49 of the prosecution that he remained as a witness to the confession leading to recovery and in the evidence, he had not supported the prosecution wantonly, as the Accused happens to be his cousin was denied by him. He had in his cross examination admitted the suggestion of the Accused that he saw the Accused in the lock-up in the Police Station. It is considered to be wanton conduct of P.W-9 Chinnaswamy, only to not support the Prosecution, and to remain hostile to help his cousin the Accused to wriggle out from the criminal case warranting punishment of 10 years imprisonment and above.
30. P.W-10 is Dr. Ravishankar, who had examined the Accused and issued potency certificate under Ex.P-7, Accident Register (Accused) and Ex.P-8, Semen Analysis Report. P.W-11 is Dr. Thenkuzhali, who had examined the victim and issued Ex.P-9 Accident Register (Victim) from the Government Hospital and in her evidence before the Court, she had stated that on the date of her medical examination on 03.10.2015, as per the statement of the victim, seven months prior to the date of medical examination she was continuously assaulted by the same person. On her examination, she found no injuries but 'Hymen' was absent and she had issued the report of the medical examination under Ex.P-9. In the cross examination by the Accused, she had stated that injuries on the female organ will be possible only immediately after https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 26/49 the sexual intercourse and not after long time. Nothing was elicited in favour of the Accused.
31. P.W-12, the Headmistress of the School, where the victim studied. On the date of the cross examination of the Headmistress P.W-12 before the Court, the victim was a student of 10th standard. As per the School records, her date of birth is recorded as 15.06.2001, which is marked as Ex.P-
10. The learned Judge had recorded that the original register was brought to the Court and the copy of the same alone is marked. The original record since required in the School, the photostat copies furnished by Prosecution was compared with the original records brought by P.W-12. It was permitted to be perused by the learned Public Prosecutor and the learned Counsel for the defence before the trial Court. The record sheet maintained by the School was marked as Ex.P-12 and Ex.P-13. In the cross examination by the Accused she had stated that the child studied in Okkanatham Rajan Middle School from I standard till VIII standard. She had stated that she had not obtained birth certificate or verified birth certificate from the previous School admission register. She had rejected/denied the suggestion of the learned Counsel for the defence that without verifying the previous School Register, the entries were made based on the facts mentioned by the student herself. Even though the https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 27/49 learned trial Judge had permitted the learned Counsel for the Defence/Accused to peruse the original School Register and marked the photostat copies of the same as Ex.P-12 and Ex.P-13, the learned Counsel for the Defence/Accused had raised objection to mark those documents as Ex.P-12 and Ex.P-13. The learned trial Judge had marked those documents with objection. It is considered that the objections were raised by the learned Counsel for the Accused as it is strong evidence against Accused attracting the provisions of the Protection of Children from Sexual Offences Act, 2012. If Ex.P-12 and Ex.P-13 are considered by the Court, then P.W-1 is to be treated as child, a victim under the Protection of Children from Sexual Offences Act, 2012, the defence of the Accused will be rejected and defeated. Therefore, wantonly raised objection to mark Ex.P-12 and Ex.P-13. The learned trial Judge had rightly accepted Ex.P-12 and Ex.P-13 and rejected the objection of the learned Counsel for the Defence/Accused.
32. P.W-13, Kuppusamy, in his deposition stated that on 28.09.2015 at about 8.30 a.m., when he was waiting at Bus stop near Chavadi, he saw the Accused driving a two-wheeler and the victim seated as pillion rider. He was unable to give out the registration number of the vehicle. Therefore, it is to be presumed that P.W-4 and P.W-13 had informed the parents of the victim. https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 28/49 Based on which only, suspicion arose against the Accused and the mother of the victim lodged a complaint under Ex.P-2. He was treated as hostile as he had not fully given the statement to the Police officials at the earliest point of time. In the cross examination by the Prosecution, he admitted that he had given statement to the police.
33. P.W-14 – Surcose @ Balakrishnan is a witness to seizure of the two-wheeler M.O-1 from the Accused. He and P.W-9 Chinnasamy signed as witnesses in the Seizure Mahazar under Ex.P-19 as Ex.P-6 and Ex.P-15 and in the confession Statement of the Accused. He admits the signature in the Seizure Mahazar, which was marked as Ex.P-15 during the cross examination by the prosecution. He had denied the suggestion of the Prosecution that only to help his cousin/Accused to wriggle out from the criminal case, he wantonly remained hostile. In the cross examination by Accused, he claims that he had given two signatures – one at Pilichikuzhi village and another at the Police Station. He had admitted the suggestion that he had not voluntarily given statement. Therefore, it is to be treated as words thrust in the mouth of the witness. The fact that he had seen the Accused taking the victim on the occurrence date can be taken as supporting the Prosecution case. Therefore, when the parents were searching in the village, the fact that the missing girl https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 29/49 last seen with the Accused was shared with the parents by these witnesses P.W-4 and P.W-13.
34. P.W-15 is Dr. Sudhakar, Dentist, who had examined the victim and issued Ex.P-16, the age certificate wherein it is stated that the age of the victim will be between 17 and 19. He was cross examined by the learned Counsel for the defence. He had admitted that he had not followed any prescribed formula to issue Ex.P-16. He had admitted the suggestion that the victim will be aged on the upper side 25 and lower side 17 and three years plus or minus can be taken between the ages 17 and 25. When there is dispute between the medical evidence and the School certificate, it is safer for the Court to lean towards the School certificate, which clearly states the date of birth of the child whereas the medical certificate under Ex.P-16 is treated as vague in a range between 17 and 19 and in the suggestion P.W-15 says that it is 17 and 25 and plus or minus and three can be taken along with it. It has to be rejected on the ground that he had clearly stated that he did not follow any prescribed formula. Therefore, when there is conflict between the evidence of P.W-15, Dr. Sudhakar and Ex.P-11 to Ex.P-13, the certificate given by the P.W-12 the School Headmistress, it is safer for the Court to rely on the evidence of the Headmistress. Ex.P-13 is the extract of the School Register https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 30/49 where the victim/P.W-1 studied from Standard-I to Standard VIII at Rajan Middle School, Okkanatham, from where she was admitted in the Government Higher Secondary School, Udayarapalayam, in Standard IX. At the time of occurrence, she was in X Standard. On the date of occurrence, she was going to School on 28.09.2015 early morning 8 a.m. for Special Class for Standard X public examination. Based on the details in the School Register where the student was admitted in the Primary School, the details available in the School Register is mentioned at the Government Higher Secondary School, Udayarpalayam where P.W-12 is Headmistress. Therefore, herr evidence is based on School Register maintained in her School under Ex.P-11 and Ex.P-12 which are based on earlier School Register where P.W-1/Victim studied from Standard I to Standard VIII. The date of birth of the victim/P.W-1 as registered in the School under Ex.P-13 is based on the particulars furnished by parents of the child when the child is admitted in the School for the first time. P.W-2 mother of P.W-1 also stated that she had furnished the date of birth of the child and P.W-1 was born in Hospital. She had furnished it as per Hospital records when she took the child to admit in School. The same is corroborated by P.W-3 father of P.W-1/victim.
35. As per ruling of the Hon'ble Supreme Court in the case of Vishnu https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 31/49 @ Undrya vs. State of Maharashtra reported in (2006) 1 SCC 283, the School records have evidentiary value when elders of the child parents/uncle of other elders speak about the details of the date of birth. Therefore, the objection of the learned Counsel for the Defence/Accused that Ex.P-11 to E.P-13 has no evidentiary value has to be rejected.
36. P.W-16 Selvakumari, who is the woman Sub-Inspector of Police, All Women Police Station, Jayamkondam, had stated that on 03.10.2015 by around 6.00 p.m, the Inspector of Police, P.W.18, called her to reach Udaiyarpalayam to examine the witnesses along with the Inspector of Police with plain clothes. She stated that she had examined the victim and her parents in assisting the Inspector of Police at Udaiyarpalayam Police Station
37. P.W-17 Saravanan is the Sub-Inspector of Police, who had registered FIR under Ex.P-17 based on the complaint of P.W-2 under Ex.P-2. He was cross examined regarding the dispatch of the FIR and original complaint to the Court of the learned Judicial Magistrate, Jayamkondam on 01.10.2015. He stated that it was sent on 01.10.2015 in the morning itself. It had the seal of the Court only containing the date as 01.10.2015 for which he states that he was unable to explain why the seal was dated as 01.10.2015. https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 32/49
38. P.W-18, Investigating Officer, had deposed evidence regarding the examination of the witnesses, his visit to the house of the victim, preparation of Rough Sketch and Observation Mahazar and also the arrest of the Accused leading to the recovery in the presence of the witnesses.
39. P.W-19 Pushbarajan, Village Administrative Officer, Koliyanur, Villupuram, had in his evidence deposed that the residence of P.W-5 Mahalakshmi is in Samathuvapuram within Madhirimangalam Village, which forms part of Poyyapakkam. He had stated that P.W-5, Mahalakshmi, was residing at Door No.3/192 even on the date of examination of P.W-19/Village Administrative Officer, the said resident is residing in the place on Bokiyam (mortgage), the patta for the site and building stand in the name of Anusuya. The Village Administrative Officer had marked Ex.P-23 as proof of the fact that the Panchayat President had issued a certificate, which was objected by the learned Counsel for the defence stating only the Panchayat President can mark it and not through the Village Administrative Officer. In the cross examination by the learned Counsel for the defence, he had clearly stated that he is the Village Administrative Officer of Koliyanur, Poyyapakkam and Mathirimangalam, which comes under Poyyappakkam Panchayat and he was https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 33/49 holding additional charge of Poyyapakkam Panchayat along with Mathirimangalam and Samathuvapuram. All these villages had the same Panchayat Union President. He had clearly stated that P.W-5 Mahalakshmi has residential proof documents namely Aadhar Card and other documents in the address at Poyyapakkam and he had verified it. Based on which, he had deposed evidence. He had rejected the suggestion of the learned Counsel for the defence that Ex.P-23 cannot be marked through him as he is not a competent witness and only the Panchayat President is the competent witness.
40. After completion of the evidence of Prosecution witnesses, the incriminating evidence was put to the Accused under Section 313 Cr.P.C. He had denied it as false evidence. For the explanation of the incriminating evidence, the Accused stated that there was a dispute with regard to purchase of the house site between him and the victim's parents. Therefore, this case was foisted against him by the parents of the victim.
41. After 313 questioning of the Accused, on behalf of the Accused, the relative of the Accused by name Chinnaraja, S/o Anbalagan, the resident of Pilichikuzhi was examined as D.W-1 and he had in his evidence stated that both the Accused and P.W-2 and P.W-3 are the relatives and both are cousins https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 34/49 and he had stated that two years prior, he had registered himself as an Advocate. In his evidence, he had stated that Krishnan, the owner of the house site extending four cents had received a sum of Rs.5,000/- as advance from the father of the Accused and stated that he will sell it to the father of the Accused by fixing the rate of Rs.4000/- per cent. P.W-3, the father of the victim offered to purchase the house site offering more than Rs.2000/- more for each cent but the owner of the site one Kumar, P.W-7 refused to state that he had promised to sell the land to the father of the Accused. He was cross examined by the learned Public Prosecutor. In the cross examination, he was unable to give out the details of the purchase of the land regarding its extent and its boundaries. In the course of evidence, he had stated that he had seen the victim along with the young man frequently in the village. To the pointed question by the learned Public Prosecutor, the victim and the parents being his cousins and the relatives had he informed the parents regarding the conduct of the minor to protect the minor, he claims that he is scared of harsh words or abusive words from P.W-2/mother of the victim. Therefore, he did not inform the parents. Considering the fact that he was unable to give out the details regarding the property dispute, his evidence is found unacceptable as pointed out by the learned Public Prosecutor.
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42. One Boominathan, D.W-2 in his evidence made allegations that the mother of the victim P.W-2 was a woman of easy virtue which was objected by the learned Sessions Judge. Still the learned Counsel for the Accused had sought question and answer mode regarding the reputation of the mother of the victim. The cross examination of D.W-2 by the learned Public Prosecutor, it is stated by D.W-2 that he had not sought the elders of the village to hold a Panchayat against the objectionable conduct of the resident of the village, P.W-2. D.W-2 Boominathan had clearly deposed in the cross examination by the learned Public Prosecutor that P.W-2 and P.W-3 the parents of the victim are residing in the same house under the same roof. D.W-2 had denied the suggestion of the Prosecution that he had wantonly given false evidence to wriggle out his relative, the Accused from the criminal case.
43. On perusal of the complaint under Ex.P-2, it is found that the mother of the victim had given the complaint under Ex.P-2 and after enquiring about the whereabouts of the missing daughter with the relatives in and around the village. She had stated that she came to know that her daughter was seen along with the Accused. Therefore, her doubt regarding the involvement of the Accused was raised in the complaint under Ex.P-2.
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44. On perusal of the entire materials and the evidence of P.W-1 to P.W-19 and Ex.P-1 to Ex.P-23, nothing is found suspicious.
45. As per Section 29 of the Protection of Children from Sexual Offences Act, 2012, when a victim under the Protection of Children from Sexual Offences Act, 2012, deposes evidence before the Court, the Court is duty bound to believe the version of the victim, the Court has to presume that the victim speaks the truth. This case under the the Protection of Children from Sexual Offences Act, 2012, is different from other offences under the IPC. Here, the Court has a duty to believe the version as stated by the victim to be true, The presumption is in favour of the victim. Therefore, the Accused is given a chance to let in evidence to rebut the prosecution evidence. In this case, the Accused had cleverly avoided the witness box, if he states that the case had been foisted based on the dispute regarding purchase of a house site adjacent to the house of the P.W-2 and P.W-3, which he had stated in his defence under Section 313 examination by the learned Sessions Judge. Therefore, he is duty bound to adduce the evidence to that effect. Regarding the same, he is the best witness to depose evidence. He had avoided the witness box. Therefore, the Court has to necessarily draw adverse inference https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 37/49 against the Accused from the conduct of the Accused in avoiding to enter the witness box to depose evidence in favour of his defence.
46. Further, the said Krishnan, to whom the land belongs was dead at the time of trial and his wife and children are alive. He did not take any steps to examine either the said Krishnan's legal heirs as witnesses or his own father as his witness. Instead he had summoned D.W-1 and D.W-2 who claim to be his cousins. The evidence of D.W-1, who claims to be an Advocate having registered as an Advocate with the BAR Council of Tamil Nadu and Puducherry, just two years prior to the date of trial does not inspire confidence of the Court. What had been stated by him in the chief examination had been found to be not acceptable from the cross examination by the learned Public Prosecutor. He was unable to give out the details of the property with boundaries, survey numbers and what was the legal opinion given by him or his senior. Therefore, his evidence has to be rejected. There is a saying in English that the judges and lawyers are bad witnesses. This is the glaring example of the said observation. D.W-1 had volunteered to give evidence. He is to be branded as a lier.
47. It is true that the victim in her evidence stated that she consumed https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 38/49 soft drinks given to her by the Accused and when she opened her eyes, she was far away from her village in Ariyalur in an adjoining District in Villupuram, which is stated to be 120 kms from the place of her residence at Pilichikuzhi in Ariyalur District and away at Poyyapakkam, in the house of Kolanhi friend of the Accused. P.W-5, Mahalakshmi, W/o. Kolanji, the owner of the house had wantonly remained hostile. When the Investigating Officer conducted investigation, they had given statement regarding stay of P.W-1 and Accused in their house but remained hostile during trial. To corroborate the evidence, the Village Administrative Officer of the village was summoned and examined as P.W-19. He had cogently stated that P.W-5 is residing in the village as stated under Ex.P-23.
48. Village Administrative Officer is the Government servant and respectable official, he is not expected to remain hostile, he has responsibilities, he had verified the address and he is a competent witness. He had stood cross examination. He had rejected the suggestion of the Accused that he is incompetent to speak about the residence of the P.W-5. He had clearly stated that he is holding additional charge of the adjoining village including Samathuvapuram and he had stated before ever giving statement to the Investigating Officer or before the Court. He had verified the Aadhar card https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 39/49 and ration card of the P.W-5 and on the date of examination of P.W-19. He had issued a certificate under Ex.P-23 by P.W-19. P.W-5 is still the resident of the same house at Poyyapakkam. Therefore, there is ample evidence that P.W- 5 had wantonly remained hostile. If the suggestion of the Accused that P.W-5 is not residing in the village, it is for the Accused to prove it through cross examination of P.W-5 furnishing their village resident proof, Accused had not done so. Therefore, the Court has to draw adverse inference under Section 114 of the Indian Evidence Act against the conduct of the Accused about the objection of the learned Counsel for the Accused to the confession leading to recovery and seizure of the vehicle under the Seizure Mahazar under Ex.P-6, Ex.P-15, Ex.P-19 and the objection to Ex.P-23. They had made objection only for the fact that it incriminates the Accused. Even without those documents the Court can believe the version of the victim when it is recorded evidence of P.W-1 before the Court. The age of the victim P.W-1 on the date of occurrence from 28.09.2015 to the date of the medical examination before P.W-11 Dr. Thenkuzhali on 03.10.2015, was 14 years 3 months and 13 days as per her date of birth in the School Register under Ex.P-11 to Ex.P-13, 15.06.2001. Therefore, she is a child as per the provisions of Section 2 of the Protection of Children from Sexual Offences Act, 2012. Her evidence as P.W- 1 has more weight. The Court has to presume that the evidence of a child https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 40/49 victim is true as per Section 29 of the Protection of Children from Sexual Offences Act, 2012. Therefore, the objection of learned Counsel for the defence regarding Ex.P-11 to Ex.P-13 is to be rejected as the objections are raised only because it strengthens the Prosecution case against the Accused as per the Protection of Children from Sexual Offences Act, 2012. The said objection is rejected.
49. Added to that, the conduct of the Accused in not entering the witness box goes against him. The evidence of D.W-1 and D.W-2 is rejected both by the trial Court as well as by this Court. It is found only with an intention to wriggle out the Accused from the criminal case. Even though P.W-4 and P.W-13 had stated that they had found the Accused riding two- wheeler the victim accompanying her which is to be presumed that when the P.W-2 and P.W-3, the parents of the victim made enquiries and they came to know about the fact from the witnesses P.W-4 and P.W-13. Based on which only, the complaint under Ex.P-2 states that she suspected the involvement of the Accused herein. The defence of the Accused had not been proved before the Court as the Accused himself had not taken steps to let in reliable, acceptable and rebuttable evidence. In the absence of such evidence, the evidence of D.W-1 and D.W-2 was rightly rejected by the learned Sessions https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 41/49 Judge, Fast Track Mahila Court, Ariyalur, and based on the available materials particularly through P.W-1, P.W-2 and P.W-3 and the Doctors evidence P.W- 10 Dr.Ravishankar, P.W-11 Dr.Thenkuzhali who had issued Ex.P-7, Ex.P-8 and Ex.P-9 respectively and P.W-12 the Headmistress of the School, where the victim studied and School Certificate under Ex.P-10, Ex.P-11, Ex.P-12 and Ex.P-13 record sheet maintained by the School, the learned Judge had determined the age of the victim as 15 as stated by the P.W-2 and P.W-3, the parents of the victim and proved by the evidence of the Headmistress of the School. Therefore, the evidence of the victim under Section 29 of the Protection of Children from Sexual Offences Act, 2012 before the trial Court gives stronger presumption to the Court to believe the version of the victim under the Protection of Children from Sexual Offences Act, 2012.
50. On consideration of evidence of Prosecution witnesses P.W-1 to P.W-3 it is found that the Appellant/Accused is a cousin of P.W-3 the father of the victim P.W-1 and paternal uncle of the victim P.W-1. Therefore, the sexual assault on P.W-1 by Appellant/Accused attracts the description aggravated penetrative sexual assault under Section 5 of the Protection of Children from Sexual Offences Act, 2012. As per evidence the Appellant/Accused had committed offence under Section 3 and Section 5 of https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 42/49 the Protection of Children from Sexual Offences Act, 2012. Accordingly, the punishment under Section 4 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 is attracted.
51. On perusal of the judgment of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, in Spl.S.C.No.21 of 2015, it is found that the learned Judge had appreciated the evidence available through P.W-1 to P.W- 19 and Ex.P-1 to Ex.P-23 cogently as per the provisions of the Protection of Children from Sexual Offences Act, 2012 and as per the Indian Evidence Act, nothing is found perverse warranting interference by this Court. Above all, it is mandatory that the victim should be produced before the learned Judicial Magistrate to record the statement of the victim under Section 164 Cr.P.C, in the investigation process. The statement under Section 164 Cr.P.C. of the victim was marked as Ex.P-1, the victim struck on with the statement under section 164 Cr.P.C., in her evidence before the trial Court below.
52. In the light of the above discussion, the point for consideration is answered against the Appellant/Accused and in favour of the Prosecution. The judgment of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, in Spl.S.C.No.21 of 2015, dated 23.02.2016 is found proper which does not https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 43/49 warrant any interference by this Court and the same has to be confirmed.
In the result, this Criminal Appeal is dismissed. The judgment of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, in Spl.S.C.No.21 of 2015, dated 23.02.2016 is hereby confirmed.
The learned Sessions Judge, Fast Track Mahila Court, Ariyalur, is directed to issue warrant in continuation of the judgment of conviction and sentence of imprisonment awarded by the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, in Spl.S.C.No.21 of 2015 dated 23.02.2016.
The Inspector of Police, Udaiyarpalayam Police Station, is directed to obtain warrant from the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, and secure the Accused in Spl.S.C.No.21 of 2015 (in Crime No.276 of 2015) on the file of the Udaiyarpalayam Police Station and detained him in prison.
The learned Session Judge shall report compliance to this Court. Already the learned Sessions Judge, issued warrant and the Accused was secured as per order of the Court on 05.07.2023 and he was produced before https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 44/49 the Court on 12.07.2023 by the Inspector of Police. The Accused is to be detained in prison to undergo the remaining period of sentence as per the judgment of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur.
The period already undergone in detention at the time of remand is to be set off under Section 428 of Cr.P.C.
22.12.2023 Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order ata To
1.The Sessions Judge, Fast Track Mahila Court, Ariyalur District
2.The Inspector of Police, Udaiyarpalayam Police Station, Ariyalur District.
3.The Superintendent, Central Prison, Trichy.
4.The Section Officer, Criminal Section, High Court Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 45/49 Crl.A.No.237 of 2016 SATHI KUMAR SUKUMARA KURUP, J.
While pronouncing the judgment, the learned Counsel for the Appellant submitted that the Appellant/Accused is not mentally stable and suffering from mental illness and hence, the sentence of imprisonment may be modified as the period already undergone by the Appellant/Accused.
2. Considering the submission of the learned Counsel for the Appellant/Accused, the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, is directed issue warrant to produce the Accused before him/her. The Inspector of Police, Udaiyarpalayam Police Station is directed to secure the Accused and produce him before the learned Sessions Judge, Fast Track Court, Ariyalur.
3. On production of Accused, the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, is directed to hold enquiry and on his/her own verification, if the Accused is found not mentally stable, he/she shall forward the Accused to the Dean, Ariyalur Medical College or any Medical College where full fledged Psychiatric Department is available or the Institute of Mental Health, Kilpauk, Chennai at the cost of the State to subject him before https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 46/49 the duly constituted Medical Board. The opinion of the Medical Board shall be sent to the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, in a sealed cover directly. After receipt of the Report of the Medical Board, the learned Sessions Judge, Fast Track Mahila Court, Ariyalur shall decide the sentence. If he is mentally unstable as per the Medical Board of Psychiatric from the Institute of Mental Health, as he will be a danger to the children, instead of sending him to prison, the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, may pass appropriate orders to detain him in the Mental Health Institute for continuous monitoring and treatment, till he regains normal life. If after treatment, Medical Board is of the view that he will not be a danger to the society, particularly, to the children, the report may be sent to the learned Sessions Judge, Fast Track Mahila Court, Ariyalur. After the period of treatment, if he is found recovered from the mental illness, it is for the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, to pass appropriate orders directing the Accused to serve lesser period of sentence of imprisonment and to be detained in prison. The period of detention before the Institute of Mental Health may be set off.
4. This Court confirms the judgment of conviction as far as the period of sentence is concerned. It is for the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, to act accordingly. The Accused shall be https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 47/49 monitored by the Inspector of Police, Udaiyarpalayam Police Station either for treatment before the Institute of Mental Health, Chennai or any competent institute run by the Government either in Madurai or in Trichy or in Chennai, which is nearer to the place of his residence.
5. The Accused shall be monitored by the Inspector of Police, Udaiyarpalayam Police Station and report to be sent to the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, periodically.
6. Only after obtaining the medical opinion from the duly constituted Medical Board, consisting Specialist Psychiatrist, the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, may pass appropriate order as per the judgment passed by the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, in Spl.S.C.No.21 of 2015, dated 23.02.20216 and report compliance to this Court.
7. Report of compliance shall be sent periodically to this Court by the learned Sessions Judge whoever preside over the Court of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, for continuous monitoring.
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ata Pre-delivery Judgment made in Crl.A.No.237 of 2016 22.12.2023 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:57:47 pm ) 49/49