Madras High Court
Thangasamy vs The State Rep. By Its on 10 October, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A(MD)No.378 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 09.09.2025
Pronounced on 10.10.2025
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
Crl.A(MD)No.378 of 2022
Thangasamy : Appellant/Sole Accused
Vs.
The State Rep. By its
The Inspector of Police,
All Women Police Station,
Rajapalayam,
Seithur Rural Police Station : Respondent/Complainant
Prayer:-This Criminal Appeal is filed under Section 374(2) of Criminal
Procedure Code, to call for the records in Spl.S.C.No.33 of 2015 on the
file of the learned Sessions Judge cum Special Court for trial of cases
under the Protection of Children from Sexual Offences Act, 2012
Virudhunagar District at Srivilliputhur dated 18.02.2022.
For Appellant : Mr. N.Anantha Padmanabhan, Senior Counsel
for Mr. S.Srikanth
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
1
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Crl.A(MD)No.378 of 2022
JUDGMENT
P.VELMURUGAN, J., This Criminal Appeal is filed against the judgment of conviction and sentence passed by the Special Court for trial of cases under the Protection of Children from Sexual Offences Act, 2012 Virudhunagar District at Srivilliputhur in Spl.S.C.No. 33 of 2015, dated 18.02.2022.
2. By the above judgment the trial Court had convicted the appellant and sentenced him, as detailed below:
Penal Provisions Sentence of Fine Amount
Imprisonment
506(i) of IPC Two years Rs.1000/-each i/d to
imprisonment undergo six month
imprisonment
10 of POCSO Act Seven years Rs.1000/-each i/d to
(two counts) imprisonment(each) undergo six month
imprisonment
6 of POCSO Act Life Imprisonment Rs.1000/-each i/d to
(two counts) (each) undergo six month
imprisonment
The sentences shall run concurrently
Further, the trial Court has recommended the District Collector, Virudhunagar pay Rs.10,00,000/- each as final compensation after deducting the paid interim compensation. if any, to each child victim/survivor through RTGS or NEFT in their bank account. The Secretary, District Legal Services Authority, Virudhunagar District at Srivilliputhur, is also directed to forward a copy of the judgment to the 2 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022 District Collector Virudhunagar to comply with respect to the compensation aspect.
3.The case of the prosecution in brief:-
3.1 The appellant, employed as the nutritional Noon Meal Organizer at the Government Adhi Dravidar welfare primary school at Sundararajapuram in Rajapalayam lured the two victims to come to noon meal kitchen at 7.00am., hours. While so on or before 23.07.2015 the appellant called the victim into kitchen and he committed aggravated penetrative sexual assault and aggravated sexual assault on the two minor victims and thereafter he gave Rs.5 each to the child victims and also threatened them not to disclose the same to anyone. The Headmistress of the school enquired them and ascertained the facts.
Then the headmistress invited the parents of the child victims and narrated the same to them and thereafter the incident came to light before the concerned authorities, whereby investigation started consequently.
3.2 After completion of investigation, the respondent police laid a charge sheet before the Special Court for trial of cases under the Protection of Children from Sexual Offences Act, 2012 Virudhunagar District at Srivilliputhur and the same was taken on file in Spl.S.C.No.33 of 2015.
3 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022 3.3. The trial Court framed charges against the appellant for the offences punishable under Sections 4 r/w.3(d) of POCSO Act (2 counts), 10 r/w. 9(m) of POCSO Act (2 counts), 6 r/w.5(m) of POCSO Act (2 counts), 6r/w.5(f) of POCSO Act (2 counts)and Section 506(i) of IPC 3.4. In order to substantiate the case of the prosecution, the prosecution examined 21 witnesses as P.W.1 to P.W.24 and marked 14 exhibits as Ex.P.1 to P.14.
3.5. After examination of prosecution witnesses, when the appellant was questioned under Section 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against him, he denied the same as false. No witness was examined on the side of the accused, nor was any document marked.
4. The trial court, after considering the evidence on record and hearing either side, by judgment dated 24.02.2022, convicted and sentenced the accused as detailed in Paragraph No.2 supra. Challenging the above said conviction and sentence, the accused has filed the present appeal.
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5. The learned Senior counsel appearing for the appellant would submit that the medical evidence did not corroborate the testimony of the victim, as the medical report clearly indicated the presence of any recent penetrative sexual assault nor any injury was found either in the private parts of the victims nor on any parts of their body. Though the alleged occurrence is stated to have taken place on 23.07.2015 the complaint was lodged only on 27.07.2015. No satisfactory explanation was offered for the delay in filing the complaint and there were no eyewitnesses to the alleged incident. It is further submitted that essential ingredients constituting the offence under Section 7 of the POCSO Act is absent. There is no evidence of aggravated sexual assault as defined under Section 7 of the POCSO Act, nor is there any material to attract the provisions of Section 9 of the POCSO Act r/w. Section 10 thereof. The trial Court, however, failed to take into consideration these aspects erroneously convicted the appellant for the offence under Section 9 of the POCSO Act which punishable under Section 10 of the POCSO Act on the statements of the victims without any corroborative evidence.
6. The learned Senior Counsel further contended that there is no material to establish that the appellant had committed penetrative sexual assault on the victims and the trial Court failed to consider the oral and documentary evidence and only on sympathetic ground convicted the 5 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022 appellant and none of the ingredients either for the offence under Section 506(i) of IPC or Section 3 of POCSO Act punishable under Section 4 of the POCSO Act for the commission of offence under Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act or for the commission of offence under Section 9 of the POCSO Act punishable under Section 10 of the POCSO Act, thereby the conviction recorded by the trial Court is liable to be set aside and the appeal is liable to be allowed.
7. The learned Additional Public Prosecutor would submit that both the victims were about only nine years of age at the time of occurrence and their statements were recorded under Section 164(5) of Cr.P.C., by the learned Judicial Magistrate. The appellant who is a noon meal organizer taking advantage of his position had mis-behaved with the students The parents of the victim gave complaint and based on the same investigation was conducted. The victims were produced before the medical officer who made entries in the Accident Register and subsequently they were also produced before the learned Magistrate for recording statement under Section 164(5) of Cr.P.C. The Magistrate also recorded statements of the victims and after the investigation charge sheet was filed. To substantiate the charges the victims were examined as P.W.2 and P.W.3 and the doctor who examined them was examined as P.W.11 and the doctor who examined the appellant was examined as P.W. 6 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022
12. The age certificate of the victims were also produced and marked as Exps.10 and 11. The prosecution has proved that the victims were aged about 9 years at the time of occurrence. The evidence of the victim combined with the evidence of the doctor proved that the appellant committed aggravated penetrative sexual assault and also aggravated sexual assault and he also threatened the witness not to reveal the incident to any one. The statements of the victims recorded under Section 164(5) of Cr.P.C., the prosecution has proved its case that the victims were subjected to penetrative sexual assault and sexual assault hence there is no merit in the appeal and it is liable to be dismissed.
8. We have considered the submissions of the learned counsel for the appellant and the learned Additional Public Prosecutor for the State and have consciously gone through the evidence and materials on record.
9. The specific case of the prosecution is that the appellant, who is a noon meal organizer, committed aggravated penetrative sexual assault on two minor victims, each aged about nine years. The prosecution followed the due procedures and, after completing the investigation, filed the final report before the Special Court. In order to substantiate the case, the prosecution examined 21 witnesses, and out of these, the main witnesses were the victims, who were examined as P.W.2 7 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022 and P.W.3. The statements of the victims, recorded by the learned Judicial Magistrate under Section 164(5) of Cr.P.C., were marked as Ex.Ps.12 and
13. To corroborate the same, the medical officer was examined as P.W.11, and the accident registers of the victims were marked as Exs.P.4 and 5, and the biological report was marked as Ex.P.7. In order to prove the age of the victims, the age certificate of the first victim was marked as Ex.P. 10, and the age certificate of the second victim was marked as Ex.P.11. Therefore, a combined reading of the evidence of P.W.2 and P.W.3, the evidence of P.W.11 and P.W.12 doctors, and Ex.Ps.12 and 13 (statements of the victims recorded under Section 164(5) of Cr.P.C.) leads this Court to find that the trial Court has rightly appreciated the oral and documentary evidence and convicted the appellant.
10. The learned counsel appearing for the appellant would submit that there are no ingredients to constitute the offence under Section 7 of the POCSO Act to attract the offence under Section 9 of the POCSO Act punishable under Section 10 of the POCSO Act, and such submission is not sustainable under law. Though the prosecution has not proved the case for the offences under Sections 5(k), (l) read with Section 6 of the POCSO Act, the trial Court has rightly found that the appellant has committed the offence under Section 5(m) r/w. Section 6 of the POCSO Act.
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11. The first victim in her statement recorded under Section 164(5) of the Cr.P.C., has stated as follows:
“mrpq;fj;j ef;Fehq;f ,q;f gpbr;rp gpJf;Fdhq;f (rhl;rp neQ;rpy; if itj;J fhl;bdhh;)”.
The second victim in her statement recorded under Section 164(5) of the Cr.P.C., has stated as follows:
“mrpq;fj;j ef;Fehq;f ,q;f gpbr;rp gpJf;Fdhq;f (rhl;rp neQ;rpy; if itj;J fhl;bdhh;)”.
12. At this stage it is pertinent to extract section 7 of the POSCO Act, which reads thus:
7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
13. A combined reading of Section 7 of the POCSO Act and the statements of the victims recorded by the learned Judicial Magistrate under Section 164(5) of Cr.P.C. makes it clear that since the age of the victims are nine years at the time of occurrence the appellant has 9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022 committed the offence under Section 9(m) of the POCSO Act, which is punishable under Section 10 of the POCSO Act.
14. Section 5(m) of the POCSO Act, punishable under Section 6 of the POCSO Act, is concerned, though the learned counsel relied on the evidence of the doctor, claiming that there were no injuries on the private parts of the victims and no symptoms of recent sexual assault, the case of the prosecution is that the appellant was alleged to have committed the offence on 23.07.2015, but the complaint was lodged only on 27.07.2015. The victims were examined by the doctor on 28.07.2015, five days after the incident.
15. Section 3 of the POCSO Act reads as follows:
3. Penetrative sexual assault.—A person is said to commit “penetrative sexual assault” if—
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person;
or 10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person
16. A reading of Section 3 of the POCSO Act clearly shows that the length of penetration or any injuries sustained by the victims is not the sole material for establishing the commission of the offence. Mere touching of the private parts of the victim in any form constitutes an offence punishable under the POCSO Act. Further, a reading of Section 3 of the POCSO Act makes it clear that, from the complaint as well as the statements of the victims recorded by the Judicial Magistrate, the victims have clearly spoken about the commission of the offence. In cases of this nature, mere delay in filing the complaint may not be fatal to the prosecution’s case.
17. In cases of this nature, it is quite common in our country that the victims are subjected to threats by the accused person(s) warning them not to reveal the incident to anyone. Even otherwise, the victims are often afraid to disclose the occurrence to their parents, fearing 11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022 that they may be prevented from attending school or going to public places. They are equally hesitant to approach the police or their parents, being apprehensive about the consequences for their future. Unless it is clearly established that the complaint was filed after much deliberation or with malicious intent, mere the delay in lodging the complaint is not fatal to the prosecution case.
18. In the present case, the victims were medically examined after 3 to 5 days, and therefore, the medical evidence only shows that there were no recent signs of sexual assault or recent symptoms. However, it is a well-settled proposition of law that length of the penetration is not the sole ingredient to constitute the offence. Mere touching of the private parts of the victim is sufficient to attract the offence under the POCSO Act. A plain reading of Section 3 of the Act makes it evident that the appellant has committed the offence.
19. A combined reading of the statements of the victims recorded under Section 164(5) of Cr.P.C. clearly shows that the appellant committed the offence under Section 4 of the POCSO Act. Since the victims were below 12 years of age and aggravated penetrative sexual assault is attempted, the appellant committed the offence under Section 5(m) of the POCSO Act, punishable under Section 6 of the POCSO Act. 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022
20. Further, a reading of the age certificates of the victims, namely Ex.P.10 and Ex.P.11, clearly proved that the victims were below twelve years of age at the time of commission of the offences.
21.Section 2(d) of the POCSO Act reads as follows:
(d) “child” means any person below the age of eighteen years;
As per the prosecution case the victims are covered by the definition “child” and if the appellant has committed any form of penetrative sexual assault against the victims who are below 12 years which falls under Section 5(m) aggravated penetrative sexual assault, he is liable to be punished.
22. This Court, being the appellate court as the final court of fact-finding, has to re-appreciate the entire evidence independently and give an independent finding. The complainant and also the other witnesses, more particularly the victims, doctors, age certificates, medical certificates, and also the statements of the victims recorded under Section 164(5) of Cr.P.C., this Court finds that the appellant has committed the charged offences.
23. Further, the appellant had also threatened the victim not to reveal the same to anyone and thereby he has committed the offence 13 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022 under Section 506(i) of IPC and also under Section 9(m) r/w Section 10 of the POCSO Act and also further under Section 5(m) r/w Section 6 of the POCSO Act.
24. Therefore, from the entire material, this Court does not find any reason to interfere with the judgment of the trial Court. Further, the appellant is a Government employee working as a Noon Meal Organizer and the victims are only students and beneficiaries under the scheme, and the victims have clearly stated that they were subjected to sexual assault and they will suffer the scars about the incident throughout their lifetime and they will not forget the incident. Further, the victims are children below 12 years as defined under Section 2(d) of the POCSO Act. The appellant, using his dominant position, had misused his power and exploited the innocent children, and therefore he does not deserve any leniency and there are no mitigating circumstances to modify the sentence.
25. In view of the same, this Court finds no reason to interfere with the judgment of the trial Court either to set aside the conviction or modify the sentence, hence the appeal lacks merit and deserves to be dismissed.
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26. In the result the Criminal Appeal stands dismissed confirming the judgment of the trial Court.
(P.V.,J.) (L.V.G.J.,)
10 .10.2025
Index : Yes/No
Internet : Yes/No
aav
To:
1.The Special Court for trial of cases under the Protection of Children from Sexual Offences Act, Virudhunagar District
2.The Inspector of Police, All Women Police Station, Rajapalayam, Seithur Rural Police Station
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4. The Section Officer Criminal Records, Madurai Bench of Madras High Court, Madurai.
15 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm ) Crl.A(MD)No.378 of 2022 P.VELMURUGAN,J.
and L.VICTORIA GOWRI,J.
aav Crl.A(MD)No.378 of 2022 10.10.2025 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 05:21:51 pm )