Madras High Court
Manimaran vs The Inspector Of Police on 9 July, 2025
Crl.A(MD)No.460 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 09.07.2025
CORAM :
THE HONOURABLE DR. JUSTICE R.N.MANJULA
Crl.A(MD)No.460 of 2017
Manimaran ... Appellant/Sole Accused
Vs.
The Inspector of Police,
Karur All Women Police Station,
Karur District
(Crime No.14 of 2015) ... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to set aside the order passed in S.C.No.58 of 2016
dated 14.12.2016 on the file of the Sessions Judge (Fast Track Mahila
Court), Karur.
For Appellant : Mr.G.Kannan
for Mr.K.M.Karunakaran
For Respondent : Mr.A.Albert James
Government Advocate (Crl.side)
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Crl.A(MD)No.460 of 2017
JUDGMENT
This Criminal Appeal is filed by the sole accused against the judgment dated 14.12.2016 passed by the learned Sessions Judge (Fast Track Mahila Court), Karur, in S.C.No.58 of 2016.
2. The brief facts of the case are as follows:
The case of the prosecution is that the victim child is the daughter of P.W.1 and she is four years old. On 06.07.2015 at 5.15 p.m, the victim child had gone to the school and returned to home in the evening. The mother of the victim child (P.W.1) went to fetch water from street pipe.
During that time, the accused entered into the house of P.W.1 and removed the panties of the victim child and committed the act of penetrative sexual assault on her. When P.W.1 returned to home by taking water, she saw the accused lying on the child and immediately, she raised alarm. On hearing the voice, P.W.6 and P.W.7 came to the house of P.W.1.
On seeing P.W.6 and P.W.7, the accused tried to escape and later, the accused was caught hold by them. P.W.1 took the child to the ______________ Page No.2 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 Pasupathipalayam Police Station and gave a complaint. The child was taken for medical examination and the Doctor had examined the child and registered Accident Register(Ex.P.9).
ii) After completing investigation, charge sheet has been filed for the offences under Section 450 IPC and Section 5(m) r/w Section 6 of POCSO Act, 2012.
iii) After the case was taken cognizance, the incriminating materials were put to the accused under Section 313(1)(a) Cr.P.C and he denied the guilt and he claimed to be tried.
iv) During the course of trial, on the side of the prosecution, fourteen witnesses have been examined as P.W.1 to P.W.14 and sixteen documents have been marked as Ex.P.1 to Ex.P.16. On the side of the accused, the accused has been examined himself as D.W.1 and no document has been marked. Three material objects have been marked as M.O.1 to M.O.3.
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v) After conclusion of trial and after hearing both sides, the Sessions Court found the accused guilt for the offences under Section 450 IPC and Section 5(m) r/w Section 6 of POCSO Act, 2012 and convicted and sentenced him as below:
Offence u/s Punishment
450 IPC 7 years (R.I), fine of Rs.1,000/- i/d
one month (S.I)
5(m) r/w 6 of POCSO Act 10 years (R.I), fine of Rs.1,000/-
i/d one month (S.I)
It is ordered that the sentences shall run concurrently and the period of imprisonment already undergone by the accused shall be set off under Section 428 Cr.P.C.
3. The learned counsel for the appellant submitted that the witnesses cited by the prosecution are all interested witnesses since they are close relatives of the victim and relying on their evidence, the Sessions Judge has passed the judgment. He further submits that the impugned judgment was passed based on surmises and conjectures. The learned counsel also submits that even though the appellant has been ______________ Page No.4 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 arrested on the alleged date of occurrence, the records show that he was arrested on the next date. This vital fact ought to have been considered by the Sessions Judge. The learned counsel for the appellant also submitted that there was some previous enmity between the mother of the victim child, P.W.1 and the appellant's family and in order to wreck vengeance a false complaint has been foisted against the appellant. The said fact has not been appreciated by the Sessions Court before passing the impugned judgment.
5. Apart from the above submissions, the learned counsel for the appellant submitted that the act alleged to have been committed by the accused would amount to sexual assault punishable under Section 10 of POCSO Act and not penetrative sexual assault and hence, the accused ought to have been convicted for the offence under Section 10 of POCSO Act and not under Section 6 of the POCSO Act.
6. The learned Government Advocate (Crl.side) submitted that on appreciation of the evidence on record, the Sessions Court has rightly ______________ Page No.5 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 convicted the appellant/accused. He supported the reasons assigned by the Sessions Court. He submits that the appellant was aged 44 at the time of occurrence and the victim is a 4 years old child and the evidence of doctor revealed that the accused had committed the penetrative sexual assault. According to the learned Government Advocate, there are no grounds for setting aside the impugned judgment of conviction and order of sentence and prays for dismissal of the appeal.
7. I gave my anxious consideration to the submissions made on either side and carefully perused the materials available on record.
6. P.W.1 is the complainant, who is the mother of the victim child. She lodged a complaint, which is marked as Ex.P.2. In the complaint, she has stated that on 06.07.2015 at about 5.15 p.m, she left the victim child alone at home and went out to fetch water; when she returned home, the accused made the victim child to lay on the floor and he had removed his lungi and sat on his knees by bending his heads; on seeing him in such a obnoxious position, P.W.1 pulled his shirts and screamed; on ______________ Page No.6 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 hearing her outcry, the neighbors came to the house of P.W.1. When P.W.1 enquired, the victim child told that the accused made her to lay down and he laid on her and kept his hand on her private parts and pressed.
7. In fact, P.W.1 had given statement under Section 164 Cr.P.C in the court and during that time, she had stated the same version as found in her complaint.
8. So far as the age of the victim child is concerned, there is no dispute that the child was just 4 years old at the time of occurrence and her date of birth is 26.05.2011. The date of the occurrence is 06.07.2015.
9. The victim child had given statement under Section 164 Cr.P.C on 09.07.2015, which is three days from the date of the occurrence. When the statement was recorded under Section 164 Cr.P.C., the learned Magistrate has observed that as the victim child was just four years old, no declaration has been obtained by her in usual manner. The victim ______________ Page No.7 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 child appears to refer the accused as the father of ''xxx''. The said fact was not denied. The language used by the child during the statement recorded under Section 164 Cr.P.C is sufficient enough to understand what the child wanted to convey to the Magistrate.
10. On the commencement of the trial proceedings, P.W.1 was examined, which was after two years. In the evidence of P.W.1, she had stated the occurrence in a more elaborate manner that she had seen the accused kept his genetical part on the private part of the victim child and had pressed. So far as the time of the occurrence is concerned, there is no contradiction.
11. The Doctor, who had done the medical examination of the victim child, in her evidence told that P.W.1 conveyed that the accused was laying on the victim child and P.W.1 had taken the child for medical examination. When the victim child was enquired by the Doctor, the victim child told that the accused had removed her panties and subsequently, he also lifted his lungi and laid on the victim child and ______________ Page No.8 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 kept his finger on the vagina of the child and pressed. On the medical examination of the child, it is seen that there was aberration found in her left chin measuring 1 X 1 cm and 2 X 1 cm. There was a contusion seen on the private part of the victim child near the urethra. The Doctor has confirmed that the above injury could have occurred within 24 hours. It has to be noted that the child was examined by the Doctor on the date of occurrence at 8.15 p.m three hours after. There was no delay in registering the complaint and bringing the child for medical examination as well. The contusion seen on the private part of the child tallies with the occurrence which was narrated by the child to her mother.
12. P.W.1 is not only an eye witness, who had seen the accused laying on the child and committing the act of sexual assault on the child. She was also a res-gestae witness, who had heard the child narrating the whole occurrence there itself.
13. The witnesses, who came to the place of occurrence on hearing the outcry of P.W.1, were examined as P.W.6 and P.W.7. They have stated ______________ Page No.9 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 in their evidence that when they went to the house of P.W.1 on hearing her noise, the accused was coming out of the house. They were the res-gestae witnesses, who witnessed the place of occurrence immediately after the occurrence and subsequently learnt about the occurrence from P.W.1. So, P.W.6 and P.W.7 cannot be called as hearsay witnesses because of res-gestae exception.
14. P.W.4, who is a neighbor of P.W.1. He stated that he had also seen the accused standing out side the compound wall of P.W.1's house and he also witnessed the people gathered there. In fact, the victim child has referred the accused as the father of ''xxx'', who is the son of the accused in the statement recorded under Section 164 Cr.P.C. The statement of the victim child would itself prove the fact that the victim child was not tutored and there is no previous motive between the victim child's family and the family of the accused.
15. If the complaint (Ex.P.1) and the evidence of P.W.1 are very keenly weighed from the perspective of sexual assault, there is little bit ______________ Page No.10 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 difference in narration made in the complaint and in the evidence given by P.W.1. Though in the complaint, she had stated that the accused kept his hand on the private part of the child, but in the evidence, P.W.1 has stated that the accused kept his private part on the private part of the victim child. The way in which P.W.1 had seen the accused would also probabilize that the accused was about to commit penetrative sexual assault on the victim child.
16. The definition of penetrative sexual assault defined under Section 3 of the POCSO Act reads as under:
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 ______________ Page No.11 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017
(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.
So if the victim child is below 12 years and some act of penetrative sexual assault is considered as aggravated penetrative sexual assault as seen under Section 5 of the Act.
17. The sexual assault as defined in Section 7 of the POCSO Act reads as under:
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.
18. The difference between Section 7 and Section 3 of POCSO Act is the touch involving physical contact without penetration. At very first instance, in the complaint P.W.1 has stated that the accused has kept his hands on the private part, which would attract only the definition of Section 7 of the POCSO Act. In the evidence of P.W.1, she has stated that the accused has pressed his private part on the vagina of the victim child. ______________ Page No.12 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017
19. Section 3 of POCSO Act includes the oral penetrative sexual assault besides penetrative sexual assault. Though the victim child gave statement under Section 164 Cr.P.C, she has not been examined by the trial court. It is duty of the prosecution to examine the victim child as a witness. Failure to do so by the prosecution made difficult to distinguish between the penetrative sexual assault and sexual assault.
20. P.W.1, is the eye witness and res-gestae witness. Therefore, the evidence of P.W.1 is sufficient for the case of the prosecution. P.W.1 has stated that when she entered the house, she had seen the accused laying on the victim child. But, at that moment, she could not have noticed specifically that the accused had inserted his private part on the private part of the victim child. So, the evidence of P.W.1 is more attributable and consistent to sexual assault than penetrative sexual assault. Even though the accused had kept his hands on the private part of the victim child, that might also cause contusion for the victim child. The statement of P.W.1 would attract the offence of sexual assault than penetrative sexual assault.
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21. In that regard, it is useful to refer the judgment of the Hon'ble Supreme Court in Heera Kol Vs. State Of U.P. And And Others reported in 2025 0 Supreme (All) 2264, wherein it has been held thus:
“Referring to the gradation of offences under the POCSO Act, the bench noted that a more serious offence must be proven to award a heavier punishment. Since "penetrative sexual assault" was not proven beyond reasonable doubt, the conviction under Section 5(m)/6 POCSO Act and the corresponding life sentence were unsustainable. The Court, therefore, modified the conviction to Section 7 read with Section 9(m) of the POCSO Act, which punishes "aggravated sexual assault." The maximum sentence contemplated under Section 10 for this offence is seven years imprisonment''.
"As despicable an occurrence as it may be, the morality and ethics may not prompt the Court to either convict any offender for any offence heavier than proven and, therefore, those considerations may not allow the Courts to award sentence heavier than those prescribed by the law," the judgment stated.
21. Since the child is below 12 years, the offence would fall under the category of aggravated sexual assault. It is punishable under Section 10 of POCSO Act. Hence, I am of the view that the accused should be found guilty for the offence under Section 10 of the POCSO Act instead of Section 6 of the POCSO Act.
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22. On a perusal of the prosecution witnesses, it is proved that the accused had trespassed into the house of P.W.1 on the date of occurrence with an intent to commit sexual assault on the victim child. Hence, the finding and conviction of the Sessions Judge for the offence under Section 450 IPC, is confirmed.
23. In view of the above stated reasons, this appeal is partly allowed and the judgment passed in S.C.No.58 of 2016 dated 14.12.2016 on the file of the Sessions Judge (Fast Track Mahila Court), Karur, is modified as under:
Offence u/s Punishment of Sessions Court Modified by this Court 450 IPC 7 years (R.I), fine of Rs.1,000/- confirmed i/d one month (S.I) 5(m) r/w 6 of 10 years (R.I), fine of Rs. Modified to Section POCSo Act 1,000/- i/d one month (S.I) 10 of POCSO Act 7 years (R.I), fine of Rs.1,000/- i/d one month (S.I)
i) It is ordered that the sentences shall run concurrently. The period of imprisonment already undergone by the accused shall be set off under Section 428 Cr.P.C.
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ii) The trial court shall take steps to secure the accused to commit them to prison to serve out the remaining period of sentence.
09.07.2025
Index : Yes/No
Internet : Yes/No
CM
To,
1.The Sessions Judge (Fast Track Mahila Court), Karur.
2.The Inspector of Police, Karur All Women Police Station, Karur District (Crime No.14 of 2015)
3.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.
______________ Page No.16 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm ) Crl.A(MD)No.460 of 2017 DR.R.N.MANJULA, J CM Judgment made in Crl.A(MD)No.460 of 2017 09.07.2025 ______________ Page No.17 of 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/07/2025 05:45:19 pm )