CRL A/64/2018 of KALYANASUNDARAM, AGED 55 YRS Vs STATE REP. BY on 26 October 2026

JUDGMENT

The Criminal Appeal has been filed by the sole accused, challenging the judgment dated 22.01.2018 in S.C.No.11 of 2015, on the file of the learned Special Court for cases under POCSO Act 2012 / Mahila Court, Chennai, convicting him for the offences under Section 10 of the POCSO Act and sentencing him to undergo simple imprisonment for five years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months. Further, the State Government was directed to pay a sum of Rs.10,000/- as compensation to the victim. 2(i) It is the case of the prosecution that the victim, aged about 15 years was staying in a Home for abandoned children, viz., Rainbow Home, run by the NGO managed by the defacto complainant [PW1] in collaboration with the NGO ‘Seers’ run by the appellant; that the victim was admitted to the Home on 16.05.2014; that on 03.07.2014 at about 10.00 a.m., the appellant called the victim to a room in the 2nd floor, hugged and kissed her and inappropriately touched her breasts; that once again on 04.07.2014 at about 10.00 a.m., the appellant hugged, kissed and touched her breasts; and thus, committed the aforesaid offence.

(ii) It is the further case of the prosecution that the victim informed PW8, the Headmistress of the School, whose students also stayed in the Rainbow Home, about the assault committed by the appellant; and that PW8 thereafter, had informed PW11-Anitha, the Chief Educational Officer (CEO), who on enquiry submitted a report to the Deputy Commissioner of Education, who in turn informed PW1, the Executive Director of Rainbow Home.

(iii) On the complaint [Ex.P1] lodged by PW1 on 10.07.2014 at about 9.00 p.m., an FIR [Ex.P8] was registered in Cr.No.3 of 2014 by the Inspector of Police [PW13]. The victim was subjected to medical examination and after examining all the witnesses, the investigating officer [PW13] filed the final report for the offence under Section 10 of the POCSO Act, before the learned Special Court for cases under POCSO Act 2012 / Mahila Court, Chennai.

(iv) On the appearance of the appellant, the provisions of Section 207 Cr.P.C., were complied with, and the case was taken on file as

S.C.No.11 of 2015 and the trial Court framed charges against the appellant/accused for the offence under Section 10 of the POCSO Act, and when questioned, the appellant pleaded 'not guilty'.

(v) To prove its case, the prosecution examined thirteen witnesses, viz., PW1 to PW13 and marked eight documents, viz., Ex.P1 to Ex.P8, besides one material object, viz., M.O.1. When the appellant was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The appellant examined two witnesses viz., DW1 and DW2 and did not mark any document on his side.

(vi) On appreciation of oral and documentary evidence, the trial Court believed the evidence of the victim and the other witnesses who were examined to corroborate her version and hence, convicted and sentenced the appellant as stated above.

3. Mr.R.C.Paul Kanagaraj, the learned counsel for the appellant would submit that the prosecution case rests on the evidence of the victim; that the victim’s evidence is not of sterling quality as could be seen from her contrary versions made before the learned Magistrate and her deposition before the Court; that several vital witnesses, to whom the victim is stated to have informed about the occurrence before she is said to have informed PW8, have not been examined; and that the prosecution in any case, has not established the age of the victim, in the manner known to law. Hence, he prayed for acquittal.

4. Ms.Sharada Vivek, learned Additional Public Prosecutor per contra submitted that the victim’s evidence is cogent and convincing and merely because she had not referred to the incident that had taken place on 04.07.2014, her evidence as regards the incident that took place on 03.07.2014, cannot be disbelieved; that the minor contradictions in her evidence cannot render her evidence unbelievable, as there was no reason for her to falsely implicate the appellant; and that the delay in a case of this nature would not be fatal to the prosecution as the victim was an abandoned child and was under the control of the appellant in the Home run by him. Hence, she prayed for dismissal of the appeal.

5. (i) As stated above, the prosecution examined 13 witnesses. PW1 is the Executive Director of Rainbow Home Projects, who was running the Home where the victim stayed, in collaboration with the NGO, viz., ‘Seers’ run by the appellant. She speaks about the information received by her through the Deputy Commissioner of Education and about her conducting an enquiry and thereafter, severing her relationship with the NGO run by the appellant. PW2 is the victim. PW3 was working as a Programme Director at Rainbow Foundation and would speak about receiving information from the Deputy Commissioner of Education about the incident. PW4 was working as a Teacher at Rainbow Home and she would state that the victim had not stated about the incident to her. PW5 was working as a Security in the Rainbow Home at that time and did not support the prosecution case and hence, was treated hostile. PW6 and PW7, who were working in the Rainbow Home, also turned hostile.

(ii) PW8 is the Headmistress to whom the victim is said to have stated about the incidents. PW9 was working as the Teacher in the school where PW8 was the Headmistress and she is a hearsay witness. PW10, was working in the NGO-Rainbow Home and he is also a hearsay witness. PW11 is the CEO, who received information from PW8 and would speak about the receipt of the letter of the victim and about the complaint of the victim. PW12 is the Doctor, who made entries in the Accident Register [Ex.P4] and had also issued the medical certificates [Ex.P5 & Ex.P6]. She had also marked the Forensic Sciences Laboratory Report [Ex.P7]. PW13 is the investigating officer, who conducted the investigation and filed the final report.

6. The victim’s version is sought to be corroborated by the evidence of PW8 and PW11. The other witnesses are of no avail to the prosecution as they had either turned hostile or had not received information from the victim directly. It is the version of PW8 that the victim came to her room at 12.30 p.m. on 04.07.2014 and that she told PW8 that the appellant hugged and kissed her. PW8 had in turn informed PW11 and PW11 in turn informed the Deputy Commissioner of Education, who called the person in-charge of Rainbow Homes viz., the PW1 to address that issue. Thereafter, PW1 is said to have conducted an enquiry and found the statement of victim to be true and lodged the complaint, accordingly.

7. PW8 did not state that the victim informed about the incident on 03.07.2014. PW1 who conducted an enquiry on instructions of the Deputy Commissioner of Education had deposed that in the enquiry they came to know that the accusation was true. The evidence of PW8 and PW11 is based on what they heard and enquired from the victim. Therefore, the prosecution case rests on the sole testimony of the victim [PW2]. PW2 in her deposition in Court had only stated about the occurrence that is said to have been taken place on 03.07.2014 and not about any alleged occurrence on 04.07.2014. The relevant portion of evidence-in-chief is extracted for better appreciation of her evidence. “3/7/2014 md;W vjphp vd;id nkny tUk;go Tg;gpl;lhu;/ ehDk; nkny nghndd; vd;id jz;zPu; vLj;J it vd;W brhd;dhu;/ ehd; jz;zPu; vLj;Jf;bfhLj;njd;/ khoapy; fhag;nghl;oUe;j Jzpbay;yhk; vLj;JtUk;go brhd;dhu;/ ehd; vLj;Jf;bfhz;L fPnH te;njd; kPz;Lk; vd;id nkny Tg;gpl;lhu; vd; nkny ifnghl;lhu;/ vd;id fl;og;gpoj;jhu;. Kj;jk;bfhLj;jhu;. mg;nghJ ehd; mGnjd; ehd; fPnH te;J mGjnghJ rikay; bra;j Mz;o Vd; mGfpwha; vd;W nfl;lhu; ehd; mthplk; ele;jij brhd;ndd;/ mjd; gpwF me;j Mz;l;o ngha; nfl;fl;Lkh vd;W nfl;lhu;fs; ehd; ntz;lhk; vd;W brhd;ndd;/ me;j rikay; bra;a[k; Mz;l;o bgau; re;jpuh. mjd; gpwF gphpad; mz;zd; te;jhu;. mthplKk; ele;j tpguj;ij brhd;ndd;/ mjd; gpd;du; !;Ty; vr;/vk;/ vd;id nfl;lhu; mthplKk; brhd;ndd; mjd; gpwF btspna ,Ue;J epiwa ngu; te;J nfl;lhu;fs; ehd; mtu;fsplKk; brhd;ndd;/”

8. From the above deposition, it would be clear that the victim has not supported the charge in respect of the incident that took place on 04.07.2014. She had also not referred to the alleged act of the appellant of groping her breasts. Therefore, the prosecution has not established the alleged occurrence that is said to have taken place on 04.07.2014 and the fact that the appellant had touched the breast of the victim, as stated in the charge.

9. To a specific question put by the appellant’s counsel in the cross- examination, the victim would state that she had informed the learned Magistrate and stated to the police that the appellant had touched her breasts. However, as stated above, she had not said so in her chief-

examination. Therefore, it is clear that the victim has given inconsistent versions.

10. It is also seen from the above extracted portion of PW2, the victim had informed one Chandra immediately after the occurrence and for the reasons best known, the prosecution had not examined the said person. The victim is stated to have informed the incident to one Priyan examined as DW2 and he would state that the victim had not stated the occurrence as claimed by her. The defence had also examined one witness working as a Manager in the Home. She would state that the victim did not inform anyone about the alleged occurrence and her version is false.

11. The prosecution claims that the victim was a child at the time of the occurrence. The victim had in her evidence stated that she had studied upto X standard. Therefore, in order to attract the offence under Section 10 of the POCSO Act, the first foundational fact that the victim was a child at the time of occurrence, has to be established by the prosecution. The victim has stated her Date of Birth to be 01.03.1999.

No document has been produced by the prosecution to establish her date of birth. The victim’s oral evidence is of no relevance in the absence of any document to establish the age. In fact, the victim has named the school and place where she studied. There is no reason why the prosecution had not obtained the certificate from the said school. On the other hand, they rely upon the victim’s own version and the evidence of PW8 who would state that the victim may be aged about 15 years. No ossification test was conducted to establish the age. In the absence of any acceptable evidence to prove the age of the victim, it cannot be presumed that the victim was a child at the time of the occurrence.

12. PW1 is said to have conducted the enquiry before she had lodged a complaint. The enquiry report is marked as Ex.P3. Even in the enquiry report it is stated that none of the other girls were aware of the alleged occurrence. The victim alone is said to have stated to PW1 and the others, who enquired her that the appellant hugged and kissed her. The victim who is said to have initially stated about two occurrences and about the groping of her breasts, has not stated so in the chief examination. In fact, all the witnesses who are said to have heard about occurrence through the victim, did not mention about the groping of the breasts.

13. In a case of this nature, it is very difficult to separate the chaff from the grain and believe the evidence of the victim only to the extent of what she stated in the chief examination. The prosecution case entirely rests on her sole testimony. The nature of allegations are such it cannot be corroborated by medical evidence. Therefore, unless the victim’s evidence is of sterling quality, it would be highly unsafe to render a finding of guilt on the basis of such an evidence, especially, in a case where most of the witnesses to whom she is said to have confided immediately after the occurrence, either deposed against her or were not examined by the prosecution.

14. For all the above reasons, this Court is of the view that the prosecution had not established the case beyond reasonable doubt and therefore, this Court is inclined to set aside the impugned judgment and acquit the appellant.

15. As a result, this Criminal Appeal is allowed. The conviction and sentence passed in S.C.No.11 of 2015, dated 22.01.2018 on the file of learned Sessions Judge, Special Court for cases under POCSO Act, 2012/ Mahila Court, Chennai, are set aside. The appellant is acquitted of the charge. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged. 26-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No ars

SUNDER MOHAN, J. ars To

1. The Sessions Judge, Special Court for cases under POCSO Act 2012 / Mahila Court, Chennai.

2. The Inspector Of Police, W-5 All Women Police Station, Vepery, Chennai-600 007.

3. The Public Prosecutor, High Court, Madras. Pre-delivery Judgment CRL A No. 64 of 2018 26-10-2026