Madras High Court
Haja Mohammed vs The Inspector Of Police on 25 September, 2025
Author: A.D. Jagadish Chandira
Bench: A.D. Jagadish Chandira
Crl.A. (MD) No.245 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 25.07.2025
Pronounced on 25.09.2025
CORAM:
THE HONOURABLE MR. JUSTICE A.D. JAGADISH CHANDIRA
and
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A. (MD) No.245 of 2022
Haja Mohammed Appellant/Sole accused
vs.
The Inspector of Police
Keelakarai Police Station
Ramanathapuram District Respondent/Complainant
Criminal Appeal filed under Section 374 (2) of the Criminal Procedure
Code, 1973, against the judgment of conviction and sentence dated 23.02.2022
made in Spl. S.C. No.1 of 2021 on the file of the Fast Track Mahila Court,
Ramanathapuram.
For appellant Mr.C.Mayilvahana Rajendran
for Mr.S.Saravanakumar
For respondent Mr.A.Thiruvadikumar
Additional Public Prosecutor
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Crl.A. (MD) No.245 of 2022
JUDGMENT
A.D. JAGADISH CHANDIRA, J.
This Criminal Appeal is filed against the judgment of conviction and sentence dated 23.02.2022 passed by the Fast Track Mahila Court, Ramanathapuram in Spl.S.C.No.1 of 2021 (for brevity “the Trial Court).
2. By the above judgment, the Trial Court convicted the appellant and sentenced him, as detailed below:
Sentence of Penal Provisions Fine Amount Imprisonment Sections 5(m) and Life Imprisonment Rs.1,00,000/- i/d to Section 6 of the undergo three years POCSO Act simple imprisonment Section 366 of IPC Ten years rigorous Rs.10,000/- i/d to imprisonment undergo two years simple imprisonment Sentences ordered to run concurrently
3. The case of prosecution, in a nutshell, is as follows:
3.1. On 14.06.2020, at 20.45 hours, when Ms.Yamuna (P.W.7), Inspector of Police, was in Keelakkarai AWPS, the mother of the victim girl (P.W.2) gave a complaint (Ex.P.2) stating that on 14.06.2020 at 03.30 p.m., while her second daughter (XXX) (P.W.1) aged about four years, was playing in 2/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 her house, she was suddenly found missing and hence, she (P.W.2), along with her family members, was searching for her. At about 05.00 p.m., the appellant who was her neighbour, dropped her daughter (P.W.1) near her house. Her daughter (P.W.1) was in a state of shock and when she enquired her daughter (P.W.1), she told her that while she was playing, the appellant gagged her mouth, took her to the terrace of his house and pressed her private part with his penis and when she yelled owing to pain, he gagged her mouth and told her not to inform his act to anyone and later, let her go.
3.2. Aggrieved, the mother of the victim girl (P.W.2) gave a complaint (Ex.P.2) to the respondent police on the same day i.e., 14.06.2020, seeking to take action against the appellant. Based on the complaint given by the mother of the victim girl (P.W.2), Ms. Yamuna (P.W.7) registered an FIR in Crime No.8 of 2020 for the offences under Sections 366 and 376-AB IPC and Sections 5(m) read with Section 6 of the POCSO Act, 2012 (for short “the POCSO Act”) and sent the FIR (Ex.P.6) and complaint (Ex.P.2) to the Judicial Magistrate Court and other higher officials. Thereafter, on the same day, at about 10.00 p.m., Ms.Yamuna (P.W.7) went to the place of occurrence and prepared the observation mahazhar (Ex.P.4) and rough sketch (Ex.P.7). She then examined 3/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 Syed Sabeera, Aleena, Syed Abu Tahir, Ahamed Abdul Kadhar, Mohaideen, Seenimumma, Kaja Sulthan Beevi and Thameema and recorded their statements.
3.3. On 15.06.2020, at about 7.00 a.m., she arrested the appellant near Keelakkarai Kothuva Mosque and recorded his confession statement in the presence of the witnesses and thereafter, remanded him to judicial custody. She also sent the victim girl for medical examination.
3.4. On 15.06.2020, she gave a requisition to the Judicial Magistrate to record the statement of the victim girl (P.W.1) under Section 164(5) Cr.P.C. and the same was also recorded on 14.07.2020. Meanwhile, on 30.06.2020, she sent the appellant for medical examination to the Government Hospital and thereafter, on her transfer, handed over the investigation to Ms. Thilagarani (P.W.8), Inspector of Police.
3.5. Ms. Thilagarani (P.W.8), thereafter, took up the case for further investigation. She handed over the case properties to the Regional Forensic Science Laboratory through Ms. Adi Parasakthi, Head Constable (209) and 4/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 recorded her statement. On 28.08.2020, she recorded the statement of Scientific Officer and received serological report (Ex.P.9). On 01.10.2020, she recorded further statements of the mother of the victim girl (P.W.2), the victim girl (P.W.
1) and Syed Abuthaheer (P.W.3), father of the victim girl (P.W.1). She sent the appellant for medical examination and received final medical report/potency certificate (Ex.P.10) of the appellant and thereafter, completed the investigation and filed a final report.
3.6. On completion of investigation and filing of final report, a copy of the final report and other relied upon documents were supplied to the appellant under Section 207 Cr.P.C.
3.7. Thereafter, the Trial Court framed charges against the appellant for the offences under Sections 366 and 376-AB of IPC and Sections 5(m) r/w Section 6 of the POCSO Act. When the charges were read over and explained to the appellant, he pleaded 'not guilty'.
5/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 3.8. In order to prove the case, the prosecution examined 8 witnesses and marked 10 documents and the appellant, in support of his case, examined two witnesses and did not mark any document.
4. When the appellant was questioned under Section 313 (b) Cr.P.C. with regard to the incriminating circumstances appearing against him, he denied the same.
5. On the basis of the oral and documentary evidence let in and after hearing the arguments of the learned counsel on either side, the Trial Court found the appellant guilty of the offences under Section 366 and 376-AB IPC and Section 5(m) r/w Section 6 of the POCSO Act and finding that the charges under Section 376-AB IPC and Section 5(m) r/w Section 6 of the POCSO Act are one and the same, vide judgment dated 23.02.2022, convicted and sentenced the appellant as stated in paragraph 2, supra.
6. Calling in question the judgment of conviction and sentence passed by the Trial Court, the sole accused has preferred this criminal appeal. 6/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022
7. The learned counsel appearing for the appellant made the following submissions:
i. The Trial Court failed to note the time-honoured principle that graver the crime, greater should be the proof; in the case on hand, though the medical evidence did not support the case of the prosecution, the Trial Court got swayed by the rigorous nature of the POCSO Act and erred in convicting the appellant based on mere oral evidence of the victim girl (P.W.1); the victim girl (P.W.1) was taken to doctor (P.W.6) soon after the alleged occurrence and she (P.W.6) stated that there was no injury on the body of the victim girl, especially her genitals; the prosecution had burked the accident register and the case sheet, which creates a doubt with regard to the case projected by the prosecution. The Trial Court erred in permitting marking of final medical certificate/potency certificate (Ex.P.10) of the appellant through the I.O. (P.W.8).
ii. The Trial Court failed to take into consideration the improvements in the evidence of the prosecution witnesses and the existing enmity between the appellant and the family of the victim girl.7/32
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 iii. The Trial Court erred in not taking into consideration the evidence of the defence witnesses that the victim girl (P.W.1) was actually found from inside her house only and that the victim girl (P.W.1) had implicated the appellant out of fear of her mother (P.W.2).
iv. Finally, in the alternative, learned counsel for the appellant submitted that even if the evidence of the victim girl is taken to be true, it does not satisfy the necessary ingredients for the offence of aggravated penetrative sexual assault.
8. The learned Additional Public Prosecutor submitted that it is a case of sexual assault on a girl aged about four years and the victim girl (P.W.1) had clearly spoken to about the incident; the victim girl had reiterated the fact that the appellant, after brushing her genitals with his penis, had also inserted his penis into her genitals and thus, the charge under penetrative sexual assault is attracted; mere absence of injury on the victim girl's body, especially in her genitals, cannot be a reason to discard the testimony of the victim girl; further, there is nothing to disbelieve the credibility of the evidence of the victim girl; the age of the victim girl had been proved and the fact of the appellant not being 8/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 impotent has also been proved through Ex P.10; though Ex.P.10 has been marked through the I.O. (P.W.8), the appellant did not object to marking of the same during trial; D.W.1 is the niece of the appellant and D.W.2 is a person supplying water in the locality and they have spoken to about having seen the witnesses searching for the victim girl; further, the appellant has not discharged the burden cast upon him under Section 29 of the POCSO Act and in view of the categorical evidence of the victim girl coupled with medical evidence, the burden is upon the appellant to rebut the presumption which has not been discharged; that apart, the entry in the accident register cannot be treated as substantive evidence and hence, non marking of the accident register will not vitiate the prosecution case; therefore, the criminal appeal is liable to be dismissed.
9. We have given our anxious thought and consideration to the submissions made on either side and carefully perused the materials available on record.
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10. Before proceeding further, this Court deems it imperative to analyse the deposition of the following witnesses:
(a) The victim girl (P.W.1) was examined in camera. She deposed that she is studying UKG in a school at Keelakkarai and that on the date of occurrence, when she had been to the backyard of her house to wash hands, the appellant gagged her mouth and took her to the terrace of his house unbeknownst to her mother, tied her hands, touched her chest and rubbed his penis on her private part; since it was painful, she cried and he pressed his penis on her private part and later, brought her down from the terrace and left her at the backyard of her house; he further threatened her not to disclose about the incident to anyone and if she discloses, he would eliminate her; saying so, he left her in her house; she narrated the incident to her parents and grandmother;
later, she gave a statement under Section 164 Cr.P.C. before the Court and the statement is marked as Ex.P.1. The victim girl (P.W.1) identified the appellant.
(b) The mother of the victim girl (P.W.2), in her evidence, deposed that 14.06.2020, at about 3.30 p.m., when she and her husband were in their house, the victim girl (P.W.1) went to the backyard of their house to wash hands and later, she was found missing; they searched her upto 4.45 p.m. and 10/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 thereafter, at about 5.00 p.m., they saw their daughter crying at the backyard of their house; when they enquired her, she replied that the appellant, by gagging her mouth, took her to the terrace of his house, tied her hands and pressed his penis on her genitals; she cried owing to pain; later, he brought her from the terrace by gagging her mouth and left her at the backyard of their house and also threatened her not to disclose the same to anyone and if she does so, he would do away her. The mother of the victim girl (P.W.2) further deposed that the appellant is the brother of her neighbour one Mohammed Muthu Umma and that he was separated from his wife and living with his sister; thereafter, she along with her husband, went to the police station and gave the complaint (Ex.P.2).
(c) The father of the victim girl (P.W.3) deposed that he was working in a readymade garments shop at Coimbatore and due to COVID-19 lockdown, he was in his house during the relevant period. His deposition was in line with the evidence of his wife (P.W.2).
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(d) Mable Justus (P.W.4) who was working as Principal in Islamia Matriculation School (the school where the victim girl studied), deposed that on 01.10.2020, when she was in school, Inspector of Police, AWPS, Keelakkarai, came to the school and gave a requisition letter to issue school certificate of the victim girl (P.W.1); as per the school register, she issued school certificate (Ex.P.3) stating that the victim girl (P.W.1) was studying UKG during the academic year 2020-2021 and that her date of birth is 25.05.2016.
(e) Kaja Mohaideen (P.W.5) is the neighbour of the family of the victim girl (P.W.1). He deposed that on 14.06.2020, at about 9.15 p.m., when he, along with P.W.2 and P.W.3, was standing near the house of the victim girl (P.W.1) and talking, the Inspector of Police, AWPS, Keelakkarai, came there and prepared observation mahazhar (Ex.P.4) in which he and one Ameer Hussain signed as witnesses.
(f) Dr. Waheedha Begum (P.W.6), Medical Officer in Ramanathapuram Medical College and Hospital, deposed that on 14.06.2020, when she was on duty, the victim girl (P.W.1) was brought to the hospital by Head Constable, Ms. Adi Parasakthi, for medical examination; the victim girl 12/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 (P.W.1) was admitted as inpatient; on examination, it was found that the victim girl (P.W.1) was aged below six years and that no external or internal injuries were found on her body; her blood group is 'B' positive and no swelling or abrasion was found on her genitals and that she issued final medical report (Ex.P.5) pertaining to the victim girl (P.W.1).
(g) Ms.Yamuna, (P.W.7), Inspector of Police, AWPS Keelakkarai, deposed that while she was on duty on 14.06.2020, at about 8.45 p.m., the mother of the victim girl (P.W.2) came to the police station and lodged a complaint (Ex.P.2), based on which, First Information Report (Ex.P6) was registered in Crime No.8 of 2020 for the offences under Sections 366 and 376- AB, IPC and Sections 5 (m) and 6 of the POCSO Act; she sent the complaint (Ex.P.2) along with the First Information Report (Ex.P.6) to the Court and other higher officials; thereafter, on 14.06.2020, at about 10.00 p.m., she went to the place of occurrence and prepared observation mahazar (Ex.P.4) and rough sketch (Ex.P.7) in the presence of witnesses Amir Shah Jahan and Haja Mohideen; she also recorded the statements of Sabeera, Aleena, Syed Abu Thaheer and Thameema; on 15.06.2020 at about 7.00 a.m., she arrested the appellant and at that time, he voluntarily gave a confession statement; she also 13/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 obtained signature from the witnesses in the confession statement; she sent the appellant for remand and the victim girl (P.W.1) for medical examination and gave a requisition letter to the Magistrate Court to record the statement of the victim girl (P.W.1).
(h) Ms.Thilagarani (P.W.8), Inspector of Police, AWPS, Keelakkarai, deposed that on 05.08.2020, she took up the case for investigation, went to the place of occurrence and prepared observation mahazhar and rough sketch; she sent the case properties to laboratory for chemical analysis; on 28.08.2020, she recorded the statement of Scientific Officer and received serological report (Ex.P.9); on 01.10.2020, she recorded the further statements of the mother of the victim girl (P.W.2), victim girl (P.W.1) and the father of the victim girl (P.W.3); she sent the appellant for medical examination and received final medical report/potency certificate of the appellant (Ex.P.10) and thereafter, completed investigation and filed the final report.
(i) Alsiya Banu (D.W.1) deposed that the appellant is her maternal uncle; he was engaged in fishing; he was in the sea for two days and returned home around 1.00 p.m. on a particular day in the sixth month of the year 2020; 14/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 after having his lunch, he slept around 3.30 p.m.; someone called her and she went out; one Asma, sister of the mother of the victim girl, was standing there and she told her that her sister’s daughter was missing; she (D.W.1) told her (Asma) that victim girl (P.W.1) did not come to her house and that her mother was sleeping outside her house; all of them were searching for the victim girl and she also asked her uncle, who was sleeping in her house, to search for the child. She further deposed that the victim girl (P.W.1) was in the habit of going to the seashore without informing anybody and during those times, someone from the village would bring her back; when they were standing in the road searching for the child, one Kasi (D.W.2) who used to sell drinking water in his cart, came there around 4.15 p.m. and found the victim girl behind the kitchen door near the gas cylinder; he took the victim girl to her grandmother and immediately, the mother of the victim girl (P.W.2) repeatedly asked the victim girl (P.W.1) if anyone performed bad touch on her and she also asked whether “Haja appa” touched her with a bad intent and the victim girl (P.W.1) replied in the affirmative; the victim girl (P.W.1) frequently used to get lost and her mother (P.W.2) used to beat her and hence, out of fear, she stated the name; there are three persons by name Haja in the same street; the mother of the victim girl (P.W.2) called her husband (P.W.3) over phone and informed him that the 15/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 appellant had misbehaved with the victim girl (P.W.1) and after he (P.W.3) came home, he beat the appellant and when she (D.W.1) questioned P.W.3, a quarrel arose; soon thereafter, she (D.W.1) called her family members and when they were getting ready to go to police station to lodge a complaint, the mother of the victim girl (P.W.2), through an advocate, had given a complaint against her uncle and her uncle (appellant) was arrested and taken to custody; when she informed the police that her uncle (appellant) did not do anything wrong, they did not listen to her.
(j) Kasi (D.W.2) deposed that he has been selling drinking water in his cart for the past 37 years in that area and during the period of COVID-19 relaxation also, he was selling drinking water; on the date of occurrence, around 3.30 p.m., the grandmother of the victim girl, told him that her granddaughter was missing; he went inside the house; two women from the area were found searching for the child inside the well with the torch in the mobile phone; at that time, the grandmother of the victim girl brought the victim girl saying that she was found inside the kitchen; the mother of the victim girl (P.W.2) came there and asked the child if “Haja appa” had taken her and thereafter, he left the place.
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11. After hearing the learned counsel on either side and perusing the records, we find that the accident register recorded by the Medical Officer on 14.06.2020 when the victim girl was taken by her mother (P.W.2) to Ramanathapuram Government Hospital and the case sheet relating to the treatment particulars of the victim girl, were not marked as exhibits. It is the specific case of the learned counsel for the appellant that it is a case of no injury on the body of the victim girl, especially her genitals and that the prosecution has willfully suppressed those documents.
12. Before delving into appreciation of evidence, it is noteworthy that the seriousness of the charge and the defence raised by the counsel for the appellant, prompted us to call for the records to satisfy ourselves. Accordingly, we directed the respondent to produce the C.D. file and we found that the copy of the accident register and the case sheet were available in the C.D file. The entries in the accident register had been made by one Dr.Mohamad Khilji and the case sheet had been issued by Dr.Waheeda Begum (P.W.6) and the investigation had been partly conducted by Ms. Yamuna (P.W.7), Inspector of Police (since transferred) and partly by Ms. Thilagarani (P.W.8), Inspector of Police, who had filed the final report. Therefore, in exercise of our powers 17/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 under Section 391 Cr.P.C., we recalled P.W.6 to P.W.8 and summoned Dr.Mohamad Khilji to clarify the aspects referred to above.
13. Accordingly, all the four of them appeared before this Court on 07.08.2025. The appellant was directed to be produced from prison and he was also present in the Court. Evidence was taken by us in the open Court in the presence of the appellant and his counsel. Dr.Mohamad Khilji was examined as P.W.9 and P.Ws.6 to 8 were also examined on the same date.
14. Dr. Waheedha Begum (P.W.6) deposed that she was earlier examined in the Trial Court and through her, final medial report (Ex.P.5) was marked and that the case sheet was not marked. Hence, the case sheet was marked as Ex.P.12.
15. Ms.Yamuna (P.W.7), Inspector of Police, deposed before us that she was earlier examined in this case in the Trial Court and she received the accident register and kept it in her case diary and that it was not marked. 18/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022
16. Ms.Thilagarani (P.W.8), Inspector of Police, deposed before us that she examined Dr. Waheedha Begum (P.W.6) and received final medical report from her but did not receive case sheet from her.
17. Dr. Mohamad Khilji (P.W.9), deposed before us that since the victim girl was aged about four years and that lady doctor will be there in the hospital round the clock, he admitted the victim girl to the hospital and he issued accident register (Ex.P.11).
18. The appellant and his counsel submitted that they do not want to cross-examine the witnesses. Thereafter, the appellant was questioned under Section 313 Cr.P.C. by us with regard to the incriminating circumstances appearing in the additional evidence against him. He denied having committed any offence and submitted that there was enmity between him and the family of the victim girl and hence, the case was foisted against him and added that he is not examining anybody on his side.
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19. Further arguments were advanced and the learned counsel for the appellant reiterated that the ingredients of the offences charged are not made out against the appellant.
20. The case of the prosecution pertains to aggravated penetrative sexual assault of a four year old girl by her neighbour, the appellant. Now, what needs to be seen is whether the evidence on record would attract the offences under Sections 366 IPC and Section 5(m) of the POCSO Act.
21. Section 366 IPC deals with punishment for kidnapping, abducting or inducing a woman to compel her marriage, etc. Section 5(m) of the POCSO Act states that whoever commits penetrative sexual assault on a child below 12 years is said to have committed aggravated penetrative sexual assault.
22. To prove offence under Section 5(m) of the POCSO Act, there should be penetrative sexual assault, as defined under Section 3 of the POCSO Act.
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23. For the sake of juxtaposition, the relevant provisions under the IPC and the POCSO Act are extracted hereunder:
IPC
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.— Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
375. Rape.— A man is said to commit "rape" if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,under the circumstances falling under any of the following seven descriptions:— (First.)— Against her will.21/32
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 (Secondly.) — Without her consent.
(Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, (Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly.) — With or without her consent, when she is under eighteen years of age.
(Seventhly.) — When she is unable to communicate consent.
Explanation 1.— For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.— Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.— A medical procedure or intervention shall not constitute rape.
Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.22/32
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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
(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.
5. Aggravated penetrative sexual assault.— (m) whoever commits penetrative sexual assault on a child below twelve years;
9. Aggravated sexual assault.— (m) whoever commits sexual assault on a child below twelve years;
24. Initially, during investigation, a statement had been recorded from the victim girl (P.W.1) under Section 164 Cr.P.C. (Ex.P1), wherein she had stated that the appellant took her to the terrace of his house, rubbed her genitals with his penis owing to which she developed pain and yelled and later on, he left her at the backyard of her house. Now, analyzing the evidence of the victim girl (P.W.1) during trial, she was born on 25.05.2016 and the incident had 23/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 occurred on 14.06.2020. On the date of occurrence, the victim girl was four years old and it has been proved by the evidence of P.W.4 (Principal of Islamia Matriculation School) and the certificate issued by the school regarding her age is Ex.P3. Thus, the victim girl (P.W.1) has been proved to be a “child” within the meaning of Section 2(d) of the POCSO Act. The victim girl (P.W.1) has spoken to about the appellant taking her to the terrace of his house and committing the aforesaid act. The mother of the victim girl (P.W.2) has spoken to about the temporary missing of her daughter, she being found out after some time, her daughter (P.W.1) informing her about the act committed by the appellant, about preferring the complaint, further action taken by the police and the medical examination conducted on her daughter (P.W.1). As already alluded to supra, the father of the victim girl (P.W.3) has deposed in line with the evidence of his wife (P.W.2).
25. Though the appellant had examined D.Ws.1 and 2 to rebut the claim of the prosecution witnesses, the defence witnesses, in their cross- examination, have admitted about the missing of the victim girl (P.W.1) and her relatives searching for her.
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26. On a careful analysis of the evidence of the victim girl (P.W.1) and her mother (P.W.2), it is clear that the appellant had kidnapped the victim girl (P.W.1) to the terrace of his house with an intent that she may be compelled, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse and thus, the offence under Section 366 IPC stands proved.
27. Now, coming to the evidence regarding the actual sexual act, the victim girl has deposed that on the date of occurrence, when she went to the backyard of her house to wash hands, the appellant, by gagging her mouth, took her to the terrace of his house unbeknownst to her mother and by tying her hands, touched her chest and rubbed his penis on her private part and when she cried due to pain, he pressed his penis on her private part and later, brought her down from the terrace and left her at the backyard of their house. The victim girl (P.W.1) has further deposed that he threatened her not to disclose the incident to anyone and in the event of she disclosing the incident to anyone, he would eliminate her. The mother of the victim girl (P.W.2) has also deposed that the accused pressed his penis on the genitals of her daughter (P.W.1) and she had cried owing to pain. The mother of the victim girl (P.W.2) had given a 25/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 complaint on the very same day, based on which, the F.I.R (Ex.P.6) was registered and the victim girl (P.W.1) was taken to the hospital on the same day and the accident register (Ex.P.11) was issued by Dr.Mohamad Khilji (P.W.9). Though the accident register (Ex.P.11) was not marked during trial, as adverted to supra, Dr.Mohammad Khilji (P.W.9) was summoned by us and examined as additional witness (P.W.9) and through him, the accident register was marked as Ex.P.11. As per the entry in the accident register (Ex.P.11), in the column “Nature of injury and treatment”, it has been entered as “Alleged sexual harassment by Haja Mohamed 40/M at Sangilikara Str. 3.50 p.m. 14/06/2020 for detailed examination”. Dr. Mohamad Khilji (P.W.9) deposed before us that the victim girl was brought by her mother (P.W.2) accompanied by another lady and a woman Constable and that upon enquiry, he was informed that the victim girl (P.W.1) was subjected to sexual violence and that he referred the victim girl to the lady medical officer. Dr. Waheeda Begum (P.W.6) clinically examined the victim girl and as per her evidence, she did not find any external or internal injuries on the body and no swelling or abrasion was found on her genitals and that she issued final medical report (Ex.P.5) pertaining to the victim girl (P.W.
1). Dr. Waheeda Begum (P.W.6) was recalled and through her, the case sheet was marked as Ex.P12. In the case sheet (Ex.P.12) also, it has been noted as 26/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 “No evidence of external injuries, hymen intact and no evidence of injuries in the vaginal walls.”
28. Now, coming to the other aspect of whether the act of the appellant would fall within the ambit of Section 5 of the POCSO Act, viz., aggravated penetrative sexual assault, it is necessary that the prosecution should prove that the appellant committed the act of penetration as defined under Section 3 of the POCSO Act and under Section 375 IPC.
29. In Halsbury’s Statutes of England and Wales, 4th Edn.,Vol.12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse.
30. In Aman Kumar vs. State of Haryana [(2004) 4 SCC 379], the Apex Court has held that penetration is a sine qua non for an offence of rape and in order to constitute penetration, there must be clear and cogent evidence to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little.
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31. From a catena of judgments of the Indian and English Courts, it is abundantly clear as daylight that even the slightest degree of penetration of the penis into the vagina is sufficient to hold the accused guilty of the offence under Section 375 IPC punishable under Section 376 IPC.
32. From a careful scrutiny of the evidence of the victim girl (P.W.1), the mother of the victim girl (P.W.2), Dr. Waheeda Begum (P.W.6) and Dr.Mohamad Khilji (P.W.9) and from a perusal of final medical report of the victim girl (Ex.P.5), accident register (Ex.P.11) and case sheet of the victim girl (Ex.P.12) in this regard, it is clear that the appellant had only rubbed his penis on the genitals of the victim girl. The evidence on record does not make out a case for either penetration or even an attempt to penetrate into the vagina. Had there really been penetration as contended by the prosecution, there is every possibility that the private part of the victim girl (P.W.1) would have got swollen or at least some mark would have been there, but, that is not the version of Dr. Waheedha Begum (P.W.6) who issued final medical report (Ex.P.5) pertaining to the victim girl (P.W.1). It is pertinent to note that the victim girl (P.W.1) was examined by Dr. Waheedha Begum (PW.6) on the date of occurrence itself and not subsequently for the mark/swelling/injury to vanish 28/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 into thin air. Under the POCSO Act, if a person 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, it is defined as “Sexual Assault” under Section 7. The POCSO Act, taking into consideration several forms of sexual acts, has listed out the various manifestations of the crime and the gravity of punishment is prescribed in accordance with the particular act. Touching a part of the body or rubbing a part of the body may amount to only manipulation of the body but an act without penetration will not amount to an offence under Section 5 of the POCSO Act. To be noted, manipulation need not even be with ‘penis’ on ‘vagina’, it may be by any means on any part of the body, but, to attract Section 3 of the POCSO Act or Section 375 IPC, such manipulation must be to cause penetration.
33. In the instant case, as stated above, on a holistic consideration of the evidence, this Court is of the considered view that only the offence of ‘sexual assault’ as defined under Section 7 of the POCSO Act is attracted and since the victim girl (P.W.1) is below 12 years of age, the sexual act gets the form of ‘aggravated sexual assault’ as defined under Section 9 (m) of the 29/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 POCSO Act and accordingly, an offence punishable under Section 10 of the POCSO Act is made out.
34. In view of the foregoing analysis and discussion:
i. the judgment of conviction dated 23.02.2022 of the Fast Track Mahila Court, Ramanathapuram, in Special S.C.No. 1 of 2021 in respect of Section 5 (m) r/w Section 6 of the POCSO Act is modified to one under Section 9 (m) r/w Section 10 of the POCSO Act and as a sequel, the sentence is modified to 5 years rigorous imprisonment and the fine amount is modified as Rs.5,000/- and in default to pay the fine amount, the appellant shall undergo a further period of 2 months rigorous imprisonment;
ii. the judgment of conviction in respect of the offence under Section 366 IPC is confirmed. However, the sentence therefor is reduced to five years rigorous imprisonment and the fine amount is reduced to Rs.5000/- and in default to pay the fine amount, the appellant shall undergo a further period of 2 months rigorous imprisonment;30/32
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/10/2025 03:26:43 pm ) Crl.A. (MD) No.245 of 2022 iii. the sentences of imprisonment shall run concurrently; and iv. the period of imprisonment already undergone by the appellant shall be set off.
In fine, this criminal appeal is allowed in part.
(A.D.J.C., J.) (R.P., J.)
25.09.2025
List of additional exhibits:
Ex.P.11 - Accident Register
Ex.P.12 - Case sheet of victim girl
List of additional witness:
P.W.9 - Dr. Mohamad Khilji
(A.D.J.C., J.) (R.P., J.)
25.09.2025
NC : Yes / No
Index : Yes / No
aav/cad
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Crl.A. (MD) No.245 of 2022
A.D. JAGADISH CHANDIRA, J.
and
R. POORNIMA, J.
aav/cad
To:
1. The Sessions Judge
Fast Track Mahila Court
Ramanathapuram
2. The Inspector of Police
Keelakarai Police Station
Ramanathapuram District
3. The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai
4. The Section Officer
Criminal Records Section
Madurai Bench of Madras High Court
Madurai
Crl.A. (MD) No.245 of 2022
25.09.2025
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