Madras High Court
Saravanakumar vs The State Represented By on 18 November, 2025
Crl.A.(MD)No.376 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 03.11.2025
Pronounced on : 18.11.2025
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.A.(MD)No.376 of 2021
Saravanakumar ... Appellant/
Sole Accused
Vs.
The State represented by
The Inspector of Police,
All Women Police Station,
Fort, Trichy.
(Crime No.9 of 2019) ... Respondent/
Complainant
Prayer : This Criminal Appeal filed under Section 374(2) of Cr.P.C., to
call for records and set aside the judgment and conviction imposed by the
learned Mahila Court, Tiruchirapalli in Spl.S.C.No.40 of 2019 dated
27.07.2021 and allow the above criminal appeal.
For Appellant : Mr.B.Jameel Arasu
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
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Crl.A.(MD)No.376 of 2021
JUDGMENT
“Our children are our greatest treasure. They are out future. Those who abuse them tear at the fabric of our society and weaken our nation. We owe our children – the most vulnerable citizens in any society – a life free from violence and fear.” – Nelson Mandela The Criminal Appeal is directed against the judgment of conviction made in Spl.S.C.No.40 of 2019 dated 27.07.2021 on the file of the Mahila Court, Tiruchirappalli.
2. The Inspector of Police, All Women Police Station – Fort, Trichy City laid a charge sheet against the appellant / sole accused (hereinafter referred as 'accused') alleging that the defacto complainant's minor daughter aged about 6 years got enrolled in MND Crew School of Dance in CK Complex, Melasinthamani, Trichy during summer vacation and she used to attend the classes between 05.00 p.m. and 06.00 p.m. daily. The accused was working as a dance master in that school. On 30.05.2019 as usual the defacto complainant dropped the victim child at 05.00 p.m. in 2/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 the dance school. The accused asked the victim child to lick his private part and also to shake it and thereafter, he asked the victim child to lie down on her back and lied on her and rubbed her private parts and that thereby, the accused had committed the offences punishable under Section 376AB IPC and Section 5(m) r/w 6 of Protection of Child From Sexual Offences Act, 2012 (hereinafter referred as 'POCSO Act').
3. After receipt of the final report, the case was taken on file in Spl.S.C.No.40 of 2019 on the file of the Mahila Court, Tiruchirappalli. After appearance of the accused, copies of records were furnished under Section 207 Cr.P.C. on free of costs. The learned Sessions Judge, on perusing of records and on hearing both the sides, being satisfied that there existed a prima facie case as against the accused, framed charges under Section 376AB IPC and Section 5(m) r/w 6 of POCSO Act and the same were read over and explained to him and on being questioned, the accused denied the charges and pleaded not guilty.
4. The prosecution, to prove its case, examined 14 witnesses as P.W.1 to P.W.14 and exhibited 11 documents as Ex.P.1 to Ex.P.11. 3/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021
5. The case of the prosecution emerging from the evidence adduced by the prosecution in brief as follows;
(a) P.W.2 - defacto complainant is the wife of P.W.3 and P.W.1 – victim child is their daughter. P.W.2 along with P.W.3 and P.W.1 are residing at Anthoniyar Kovil Street, Melasinthamani, Trichy. P.W.3 is working as a sales representative at Coimbatore. P.W.1 was studying 1st standard in Swords Nursery School situated nearby Naganathar Swamy Temple. During summer vacation, P.W.2 had enrolled her daughter P.W.1 in MND Crew School of Dance in CK Complex, Melasinthamani on 01.05.2019. P.W.2 used to drop P.W.1 at the dance school at 05.00 p.m. and pick her at 06.00 p.m. daily.
(b) The accused was working as a dance teacher in the dance school and he used to teach dance to P.W.1. P.W.5 is residing in a house just opposite to P.W.2's house. P.W.5 recommended to admit P.W.1 in the said dance school. On 30.05.2019, P.W.2 went to the dance school to pick her daughter and at that time, the accused informed P.W.1 that she should do it properly tomorrow or else she has to leave. Immediately, P.W.2 asked whether P.W.1 was not dancing properly and the accused replied that 4/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 though P.W.1 was dancing, she is behaving like childish sometimes. On the way to their home, P.W.2 questioned P.W.1 as to whether she is not putting dance steps properly and at that time P.W.1 informed that she was forced to do oral sex with the accused and he was referring to that incident. P.W.2 got panicked and immediately contacted her husband through phone, who in turn, informed that he would return from Coimbatore and then to lodge a complaint. P.W.2 unable to digest went to P.W.5's house and informed about the incident. On questioning, P.W.1 informed the same version to P.W.5. Thereafter, P.W.5 along with P.W.1 and P.W.2 went to the dance school. P.W.1 identified the accused and stated that he was the person, who did like that. P.W.5 questioned the accused and started crying. On seeing P.W.2 and P.W.5 crying, crowd gathered in that place. P.W.6 - son of P.W.5, who went to the dance school at that time, contacted police through phone No.100. Patrol police came to the spot and took the accused with them. P.W.7 Marimuthu is running the said dance school along with one Manikandan and both of them went to NID Thiruverumbur for attending an event for one month. After getting information about the incident from P.W.6, they came to the dance school. 5/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021
(c) On 31.05.2019, P.W.2 along with her husband P.W.3 went to the police station and gave a complaint under Ex.P.2. P.W.14 - the then Inspector of Police, All Women Police Station - Fort, Trichy, received the complaint and registered a case in Crime No.9 of 2019 against the accused under Section 5(m) r/w 6 of POCSO Act and prepared the First Information Report under Ex.P.8. P.W.14, after recording the statement of P.W.2 and P.W.3, went to the house of P.W.2 and examined P.W.1 and recorded her statement and thereafter, sent P.W.1 for medical examination to the Government Hospital through P.W.10 - Grade I Constable 605.
(d) P.W.13 - Dr.Prasanna Lakshmi was on duty at Mahatma Gandhi Government Hospital, Trichy on 31.05.2019 and on examination of P.W.1, P.W.13 found no external injuries over body and external genitalia and hymen was intact and issued an accident register with her opinion under Ex.P.5. P.W.1 was discharged on 03.06.2019 by issuing discharge summary under Ex.P.6. She collected vaginal smear and sent the same to the Forensic Laboratory and upon examination, Forensic Laboratory sent a report under Ex.P.7 reporting that vaginal swab did not deduct semen. 6/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021
(e) On 31.05.2019, P.W.14 went to the occurrence place and prepared the observation mahazar under Ex.P.3 in the presence of P.W.4 - Maheswaran and one Selvam and drew a rough sketch under Ex.P.9. She arrested the accused at about 15.45 hours on 31.05.2019 near Oyamari burial ground and sent him to remand. On 01.06.2019, she examined P.W.5 to P.W.9 and recorded their statements. On 10.06.2019, P.W.14 gave a requisition for sending the accused for medical examination and another requisition for recording statement under Section 164 Cr.P.C. from the victim child before the Mahila Court. In pursuance of the same, the learned Judicial Magistrate No.6, Tiruchirappalli, recorded the statement of the victim child under Section 164 Cr.P.C. under Ex.P.1.
(f) P.W.12 - Dr.Selvakumar was on duty at about 01.30 p.m. on 17.06.2019 and P.W.11 - Head Constable No.2299 attached to All Women Police Station - Fort and Women Head Constable No.816 brought the accused for medical examination and after examining the accused, P.W.12 gave a certificate under Ex.P.4 giving his opinion that there is nothing to suggest that the accused is impotent or that he is incapable of performing sexual intercourse. P.W.14 examined the medical officers, forensic lab 7/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 expert and other witnesses and recorded their statements. P.W.14 then altered the case for the offences under Section 376AB IPC and Section 5(m) r/w 6 of POCSO Act and submitted an alteration report to the concerned Court under Ex.P.10. P.W.14 received the original birth certificate of P.W.1 under Ex.P.11 and submitted the same before the concerned Court. After completing the investigation, P.W.14 filed the final report on 18.08.2019 against the accused for the offences under Section 376 AB IPC and Section 5(m) r/w 6 of POCSO Act. With the examination of P.W.14, the prosecution has closed their side evidence.
6. When the accused was examined under Section 313(1)(b) Cr.P.C. with regard to the incriminating aspects against him in the evidence adduced by the prosecution, he denied the evidence as false and stated that a false case has been foisted against him. Though the accused has stated that he is having defence evidence, he has not let in any evidence subsequently.
7. The learned Sessions Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, 8/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 passed the impugned judgment dated 27.07.2021 finding the accused guilty for the offences under Section 376AB IPC and Section 5(m) r/w 6 of POCSO Act, taking note of Section 42 of POCSO Act, convicted the accused for the offence under Section 376AB IPC and sentenced him to undergo 20 years rigorous imprisonment and to pay a fine of Rs.3,000/-, in default, to undergo one year simple imprisonment and also granted compensation of Rs.5,00,000/- to the victim child under Rules 7 and 5 of POCSO Rules, 2012. Aggrieved by the impugned judgment of conviction and sentence, the accused has preferred the present appeal.
8. A learned Judge of this Court had taken up the appeal for final hearing and passed a judgment dated 24.02.2022 dismissing the appeal and thereby confirmed the judgment of conviction passed by the trial Court. The accused aggrieved by the dismissal of the appeal preferred a criminal appeal by Special Leave before the Hon'ble Supreme Court in Crl.A.No.2072 of 2025 and the Hon'ble Apex Court, by setting aside the judgment of this Court, remitted the matter back to this Court for fresh consideration and directed this Court to give some priority to the appeal and see to it that the same is disposed of within a period of six months from the date of receipt of the writ of the said order. 9/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021
9. When the above appeal was listed before this Court on 23.10.2025, considering the fact that the appeal was lastly taken up by my learned predecessor on 20.08.2025 and at that time, the Registry was directed to prepare typed set of papers but since the Registry has not taken any steps to prepare typed set of papers nor to list the matter till then, this Court directed the Registrar (Judicial) to submit a report in that regard. After preparation of typed set of papers, the matter was listed on 03.11.2025 and on that day, I have heard Mr.B.Jameel Arasu, learned counsel appearing for the accused and Mr.S.Ravi, learned Additional Public Prosecutor appearing for the respondent police.
10. Whether the impugned judgment of conviction and sentence imposed on the accused in Spl.S.C.No.40 of 2019 dated 27.07.2021 on the file of the Mahila Court, Tiruchirappalli, is liable to be set aside? is the point for consideration.
11. The facts not in dispute are; P.W.1 – victim child is the daughter of P.W.2 and P.W.3. P.W.7 is running MND Crew School of Dance along with his partner Manikandan. The accused was working in the said dance 10/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 school at the relevant time. P.W.2 enrolled P.W.1 in the said dance school during summer vacation in May 2019.
12. The case of the prosecution is that on 30.05.2019 at about 06.00 p.m., P.W.2 went to the dance school to pick her daughter P.W.1 and at that time, the accused informed P.W.1 that she should do it properly tomorrow otherwise, you have to leave, that when P.W.1 enquired the accused as to whether P.W.1 was not dancing properly, he replied that though she was dancing, she was behaving like childish sometimes, that when P.W.2 questioned P.W.1 as to why the accused was saying so, P.W.1 informed that the accused asked her to lick his private part and to shake it and thereafter, he asked her to lie down on her back and the accused lied on her and rubbed against her private parts and that thereby, the accused had committed the offences under Section 376AB IPC and Section 5(m) r/w 6 of POCSO Act.
13. It is pertinent to mention that the learned trial Judge, after finding the accused guilty for both the offences i.e., Section 376AB IPC and Section 5(m) r/w 6 of POCSO Act, invoking Section 42 of POCSO 11/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 Act convicted the accused for the offences under Section 376AB IPC, as the said provision prescribes maximum punishment.
14. Before entering into further discussion, it is necessary to refer Section 29 of POCSO Act, which deals with reverse burden and the same reads as follows;
“29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved”
15. There is no specific, independent provision for a presumption of guilt under Section 376AB IPC similar to that of Section 29 of POCSO Act. Section 376AB IPC deals with rape on a woman under 12 years of age, whereas, Section 5(m) of POCSO Act deals with penetrative sexual assault on a child below 12 years and is punishable as an aggravated penetrative sexual assault under Section 6 of POCSO Act. When an offence under Section 376AB IPC is tried in conjunction with the offences 12/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 under POCSO Act, in view of the nature of both the offences and the punishment prescribed, the presumption under Section 29 of POCSO Act can very well be applied, provided the prosecution proves the foundational facts of the case.
16. Section 29 of POCSO Act imposes a reverse burden by creating a legal presumption that once a person is prosecuted for the offence under Sections 3, 5, 7 and 9, the Court must presume the person is guilty unless the accused can prove their innocence. However, the prosecution is still required to establish a prima facie case by showing foundational facts to attract the presumption under Section 29 of POCSO Act and after the prosecution shifts its initial burden, the accused must then prove that he is not guilty.
17. It is pertinent to note that foundational facts in a POCSO case included the proof that the victim is a child, that the alleged incident has taken place and that the accused has committed the offence. If the basic and foundational facts of the prosecution case is laid by adducing legally admissible evidence, then the burden gets shifted to the accused to rebut it, 13/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 by establishing that he has not committed the offence or that no such incident was occurred or that the victim is not a child.
18. In the present case, the case of the prosecution is that P.W.1 was a child at the time of the alleged occurrence. The prosecution has produced and exhibited the birth certificate of P.W.1 under Ex.P.11 showing that P.W.1 was born on 29.03.2014 and as such, she was aged about 5 years 2 months at the time of occurrence. The accused has neither disputed Ex.P.11 – birth certificate nor the age of the victim child as alleged by the prosecution. In the absence of any challenge, it can easily be concluded that P.W.1 was a child completed the age of 5 years 2 months at the time of the alleged occurrence.
19. At the outset, it is pertinent to note, as rightly pointed out by the learned Additional Public Prosecutor, that the defence has not attributed any motive or intention against P.W.1 to P.W.3 for lodging a complaint against the accused. Except alleging that the complaint was based on wrong information and identification by P.W.1, the accused has not canvassed any other motive against them.
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20. P.W.1 victim girl, before the trial Court gave evidence categorically reiterating the case of the prosecution. It is necessary to refer the evidence of P.W.1 in the language she deposed, for better appreciation;
“lhd;]; ];$y; NghdNghJ vd;dplk; rutzd;
mz;zd; jtwhf ele;Jnfhz;lhu;. vd;d jtwhf ele;Jnfhz;lhu; vd;W Nfl;ljw;F> Foe;ij gpd;tUkhW $wpdhu;.
vd;id fPNo gLf;fitj;J mtu; vd; NkNy gLj;J Ml;bdhu;. mth; cr;rh NghFk; ,lj;ij vd; ifapy; nfhLj;J FYf;f nrhd;dhu;. vd;id fz;iz %bf;nfhz;L mtu; cr;rh NghFk; ,lj;ij vd; thahy; rg;g nrhd;dhu;. ehd;
mth; nrhd;djhy; nra;Njd;. ehd; fOj;jpy;
nrapd; Nghl;bUe;Njd;. me;j nrapid gpbj;J ,Oj;jhu;. ...... vd;dplk; mtu; itj;jpUe;j nry;Nghdpy; tPbNahit fhl;b> ,JNghy; gz;Z vd;W nrhd;dhu;. vdf;F mJ ve;j ,lk;
(MZWg;G) vd;gJ njupahjjhy; ehd; mtu;
nrhd;dJ Nghy; nra;Njd;. vd; mk;kh te;J
fjit jl;ba gpwFjhd; mtu; fjit jpwe;J
vd;id ntspapy; tpl;lhu;.”
21. It is pertinent to mention that the learned trial Judge, considering the age of the victim child, conducted a preliminary enquiry to ensure that 15/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 the child is competent to understand the question and give rational answers and understands what is truth and what is false and on satisfying with her ability to depose, commenced the examination. It is well settled that the sole testimony of a child victim in a sexual offence case can form the basis of a conviction if found to be reliable and truthful. The Court's primary focus must be on assessing whether the child's testimony is credible, reliable and inspires confidence and if the overall impression is one of the truthfulness, the testimony can be relied upon, even without corroboration.
22. As rightly contended by the learned Additional Public Prosecutor, P.W.1 gave a statement under Section 164 Cr.P.C. before the learned Magistrate and the evidence of P.W.1 given before the trial Court stands corroborated by her statement under Section 164 Cr.P.C. It is necessary to refer the statement under Ex.P.1, wherein, P.W.1 would say, “vdf;F dance fj;Jf;nfhLf;fw rutz mz;zd; mtq;f cr;rh Nghw ,lj;j vd;id rg;g nrhd;dhq;f. mg;Gwk; ifapy itr;R fyf;f nrhd;dhq;f. Kjy;y nra;a khl;Nld;D nrhd;djw;F fOj;J Gbr;rp newpr;rhq;f. mJf;F mg;Gwk;
gae;Jfpl;L ehd; mg;gbNa mtq;f nrhd;dgb 16/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 nra;Njd;. mg;Gwk; vd;ida me;j mz;zd; Fg;Gw gLf;f nrhy;yp me;j mz;zDk; vd; Nky cr;rh Nghwj;ij itr;rp Njr;rhq;f ehisf;F ,e;j khjpup Nfk;]; tpisahlhyhk;D nrhd;dhq;f.”
23. It is pertinent to note that the version of P.W.1 both in statement made before the learned Judicial Magistrate during investigation and also before the Court is consistent. Though P.W.1 was subjected to cross- examination, the basic version of P.W.1 remains unshaken.
24. The learned counsel appearing for the accused would contend that P.W.1, in her cross-examination, stated that during the alleged occurrence, two other dance masters came to the place, and the accused stopped his actions for a while, then continued them after they left, however, according to the prosecution, the other two dance masters were not present at the time of the occurrence in the dance school. He would further submit that P.W.1, in her Ex.P.1 statement, stated that when she refused to obey the accused's directions, he crushed her neck, and fearing for her safety, she did whatever he said, but she did not mention this in her evidence before the Court.
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25. Regarding the presence of two dance masters at the relevant time, P.W.7, a partner of the school, would state that he and his partner Manikandan were in NID Thiruverumbur for an event for a month. In cross-examination, he would confirm that the accused was alone working in the dance school on the date of occurrence. This is corroborated by P.W.5, who said that when she visited the dance school with P.W.1 and P.W.2, only the accused was present. P.W.6 would also state that he contacted the school partners and found the accused alone at the dance school.
26. While some contradictions were elicited during the victim's cross-examination, it is unlikely that a child could narrate her version with such clarity and endure cross-examination if the incident hadn’t occurred. As rightly noted by the learned Additional Public Prosecutor, P.W.1 was only 5 years and 2 months old at the time and testified about 7 months later, at age 5 years and 9 months. Minor discrepancies are natural given her age; a 6-year-old can’t be expected to recount a traumatic event with perfect precision.
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27. P.W.2, the mother, P.W.5, the lady who recommended the dance school and to whom P.W.1 narrated the incident immediately, and P.W.6 all corroborate P.W.1's version, and their evidence cannot be dismissed as hearsay, as rightly argued by the learned Additional Public Prosecutor. P.W.8, a nearby mechanic shop owner, and P.W.9, an auto driver, would confirm that there was commotion at the dance school when P.W.2, P.W.5, and P.W.6 arrived.
28. P.W.13 - medical officer, who examined P.W.1, noted that there were no external injuries. It is by now settled in law that the absence of physical injury does not negate the commission of an offence under POCSO Act, especially when the victim is of tender age and the accused is known to the victim. Considering the above, medical evidence does not discredit the version of the prosecution. P.W.12 - medical officer, who examined the accused, would opine that there is nothing to suggest that the accused is impotent and that he is incapable of performing sexual intercourse.
29. On careful examination of P.W.1's evidence, including her 19/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 statement under Section 164 Cr.P.C., and considering her cross- examination, this Court finds her testimony to be of sterling quality – reliable, trustworthy, and inspiring confidence.
30. The learned counsel appearing for the accused would contend that P.W.1 mentioned a boy was present during the alleged sexual abuse, but he was not at all examined and the prosecution has not explained why, despite being vital evidence.
31. No doubt, according to the prosecution, though P.W.1 has alleged that a boy was present at the occurrence place and time, he was not examined during investigation or trial. However, the learned Additional Public Prosecutor would submit that it was not a regular dance school; it was a summer holidays coaching session nearing its end and that P.W.14 stated that no records were available in the dance school. As rightly pointed out by the learned Additional Public Prosecutor, P.W.14 during cross-examination would confirm that she enquired about the boy but found no records. Moreover, as rightly contended by the learned Additional Public Prosecutor, P.W.1 did not say the boy witnessed the alleged occurrence but she stated that the accused directed the boy to turn 20/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 around before committing the acts. Even according to P.W.1, the said boy was not an eye witness and as rightly contended by the learned Additional Public Prosecutor, examining him would not have aided the case of the prosecution further.
32. The learned counsel appearing for the accused would further contend that P.W.1, in her evidence, stated that she was shown a video on a mobile phone and though P.W.14 knew about this, she failed to seize the mobile phone from the accused, which is vital evidence and its non- recovery is fatal to the case of the prosecution.
33. No doubt, as rightly pointed out by the learned counsel appearing for the accused, P.W.1, in her evidence, would say that the accused had shown a video on his mobile phone but in cross-examination, she would say that the accused had taken the mobile phone from another dance master. As rightly contended by the learned Additional Public Prosecutor, the case is not about the accused recording the act on his mobile phone. Given the prevalence of porn videos on phone, recovering the phone would not significantly aid the prosecution. The charge is 21/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 aggravated penetrative sexual assault, not showing sexual content. Hence, non-recovery of mobile phone is not fatal to the prosecution's case.
34. The learned counsel appearing for the accused would submit that P.W.6's evidence suggests the police arrived at the dance school immediately after the incident and took the accused into custody, contradicting the prosecution's claim he was arrested at 15.45 hours on 31.05.2019. He would further contend that P.W.2's evidence also states the accused was at the police station when she and P.W.3 went to lodge the complaint, whereas P.W.14 says he was arrested after the case was registered at 15.45 hours, casting doubt on the prosecution's arrest theory.
35. No doubt, though P.W.2, in her evidence, would say that at the time of giving complaint at about 11.15 hours on 31.05.2019, the accused was available in the police station but her husband P.W.3, who accompanied the P.W.2, would say that the accused was not available. Moreover, P.W.6, in his evidence, would say that he went to the dance school along with his mother P.W.5 and since crowd gathered, he dialed No.100 and immediately patrol police came to the dance school. As rightly 22/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 pointed out by the learned Additional Public Prosecutor, P.W.6 did not say that P.W.14 or any other police personnel from the jurisdictional police station came to the occurrence place on the evening of 31.05.2019. As suggested by the learned Additional Public Prosecutor, patrol police may have taken the accused due to crowd, but no complaint was lodged, so arresting the accused would not have been possible then.
36. P.W.14, in her evidence, would say that after registering the FIR, the accused was arrested at 15.45 hours near Oyamari burial ground and was brought to the station at 16.15 hours and sent to remand and that the said evidence was not at all shaken during her cross-examination.
37. The learned counsel appearing for the accused would mainly contend that there was a delay of 42 hours in lodging the complaint, despite the police station being only 1.5 km from the dance school and the prosecution has not adequately explained the said inordinate delay.
38. As rightly pointed out by the learned Additional Public Prosecutor, P.W.2, in her evidence, would say that she informed about the 23/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 incident immediately to her husband P.W.3, who was in Coimbatore at that time and that they lodged the complaint the next day at 11.15 hours on 31.05.2019. P.W.14, in her evidence, would corroborate the same. Since the delay is explained, the contention of the accused about manipulation, is unfounded.
39. As rightly contended by the learned Additional Public Prosecutor, the defence has failed to create any reasonable doubt or lead any evidence in rebuttal, so the presumption under Section 29 of POCSO Act remains unrebutted.
40. The offence of rape is defined under Section 375 IPC and sub clause (a) is relevant for the present case.
“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 ....” The offence under Section 376AB IPC deals with stringent punishment for a person, who commit rape on a woman under 12 years of age. 24/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021
41. Section 3 of POCSO Act defines what is penetrative sexual assault.
“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 ....”
42. As per Section 5(m) of POCSO Act, whoever commits penetrative sexual assault on a child below 12 years is considered as aggravated penetrative sexual assault and Section 6 of POCSO Act specifies the punishment for the aggravated penetrative sexual assault.
43. Under the POCSO Act, oral sex is explicitly defined as ''penetrative sexual assault''. A cursory perusal of the evidence of P.W.1 would only reveal that the accused had indulged in oral sex and as rightly contended by the learned Additional Public Prosecutor and as rightly observed by the learned trial Judge, it can be considered as rape under Section 375 IPC and aggravated penetrative sexual assault under Section 5(m) of POCSO Act.
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44. The learned trial Judge, since the POCSO Amendment Act 2019 (Act 25 of 2019) came into effect on 16.08.2019, subsequent to the present occurrence and taking note of Section 42 of POCSO Act as the punishment prescribed for Section 376AB IPC is more than that prescribed under Section 6 of unamended POCSO Act, has awarded 20 years rigorous imprisonment and as such, the same is perfectly legal and cannot be found fault with. Consequently, this Court concludes that the appeal is devoid of merits and the same is liable to be dismissed.
45. Today, the world observes World Day for the Prevention of and Healing from Child Sexual Exploitation, Abuse, and Violence. This global day recognizes the urgent need to protect children from sexual violence, support survivor healing, and take responsibility for protection and prevention. Despite stringent punishments, reported cases are rising. It's high time to strengthen commitment to eliminate and prevent all forms of sexual exploitation, abuse, and violence, promoting victims' rights, well- being, and recovery.
46. In the result, this Criminal Appeal is dismissed. 26/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm ) Crl.A.(MD)No.376 of 2021 18.11.2025 NCC :yes/No Index :yes/No Internet:yes/No csm To
1.The Sessions Judge, Mahila Court, Tiruchirappalli.
2.The Inspector of Police, All Women Police Station, Fort, Trichy.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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csm Pre-Delivery Judgment made in Crl.A.(MD)No.376 of 2021 Dated : 18.11.2025 28/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/11/2025 07:18:13 pm )