CRL A/52/2022 of ELLAPPA Vs STATE REP BY on 12 October 2026

JUDGMENT

This Criminal Appeal has been filed by the first accused, challenging the Judgment dated 29.01.2021 in Spl.S.C.No.34 of 2018, on the file of the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District, by which he was convicted for the offences under Section 366 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”), and Section 5(l) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”), and sentenced to undergo four years of RI and to pay a fine of Rs.10,000/- i/d to undergo six months of RI for the offence under Section 366 of IPC and to undergo twelve years of RI and to pay a fine of Rs.15,000/- i/d to undergo one year of RI. The sentences were ordered to run concurrently.

2(a). It is the case of the prosecution that on 29.10.2017, the appellant/A1, along with his sister/A2, kidnapped the victim girl/P.W.2 aged about 15 years (Born on 07.12.2002) in a car; that the appellant promised to marry the victim girl; that though the victim girl resisted, the appellant took her to Karnataka, Mysore Road; and that the appellant married the victim girl and subjected her to penetrative sexual assault.

(b) . Initially, on the complaint given by P.W.1, the father of the victim, a case was registered under Section 366A of the Indian Penal Code, 1860, on 05.11.2017 at about 4.00 p.m. The victim girl is said to have been secured from a place near Hosur, and thereafter, her statement was recorded. She was subjected to medical examination on 05.11.2017, at about 9.00 p.m., at the Government Hospital, Hosur. The extract of the Accident Register was marked as Ex.P12.

(c) . P.W.16, the Inspector of Police, after examining the victim and other witnesses, filed the Final Report against the appellant for the offences under Sections 363 and 366 of the IPC and Section 5 (l) r/w 6 of the POCSO Act before the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District.

(d) . On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with, and the case was taken on file as Spl.S.C.No.34 of 2018 by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District. The trial Court framed charges against the first accused for the offences under Sections 366 of the IPC and 5(1) r/w 6 of the POCSO Act and against the second accused/appellant’s sister for the offence under Section 366A of the IPC. During the trial, when questioned, the accused pleaded 'not guilty.'

(e) . Before the trial Court, the prosecution had examined 16 witnesses as P.W.1 to P.W.16 and marked 21 exhibits as Exs.P1 to P21. When the accused were questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. The accused examined the second accused as D.W.1 and not marked any document on their side.

(f) After considering the evidence on record, the Trial Court held the appellant guilty and sentenced him as stated in paragraph No.1 of this Judgment. Aggrieved by the said conviction and sentence, the appellant had preferred the instant appeal.

3. The learned counsel for the appellant/A1, would submit that the victim/P.W.2’s evidence does not inspire confidence; that the victim had not stated anything about the penetrative sexual assault said to have been committed by the appellant; that she had only stated that the appellant had hugged and kissed her; that the evidence adduced on the side of the prosecution also does not establish the offence under Section 366 of IPC, as there are major contradictions as to how the victim was kidnapped and rescued; that the victim had only named one Sridhar in her 164 Cr.P.C., statement; that no evidence was adduced by the prosecution to establish that the appellant was also known as Sridhar, and submitted that the impugned Judgement is liable to be set aside.

4. Ms.Sharada Vivek, the learned Additional Public Prosecutor, for the respondent, per contra, submitted that the victim’s evidence is cogent and convincing; that the fact that the victim had referred to the appellant as Sridhar would not discredit her evidence since she had identified the appellant in the dock; and that the evidence of P.W.1, the father of the victim and the other witnesses examined by the prosecution would show that the victim was kidnapped by the appellant and she was subjected to penetrative sexual assault and prayed for dismissal of the appeal.

5. As stated above, the prosecution had examined 16 witnesses as P.W.1 to P.W.16. P.W.1 is the father of the victim and would speak about the fact that the victim girl was missing for 5 or 6 days and she was brought by the accused, on the sixth day. P.W.2 is the victim girl. P.W.3 is the mother of the victim and would corroborate the evidence of P.W.1. P.W.4 speaks about the arrest of the accused at the Jujuvadi Bus Stand near Hosur on 05.11.2017. His signature in the confession statement was marked as Ex.P3. P.W.5 is the translator who is said to have translated the statement of the witnesses at the police station. He turned hostile. P.W.6 is the Doctor, who had examined the victim girl and had opined that there were no external injuries on the victim girl, and her final opinion was marked as Ex.P7. P.W.7 is known to the accused and the victim, and would speak about the fact that the victim girl went missing. P.W.8 is the witness to the confession statement of the appellant and to the Observation Mahazar [Ex.P8], prepared near the house of the victim girl.

6. P.W.9 is the Doctor, who had issued the potency certificate for the first accused/appellant marked as Ex.P11. P.W.10 is the Doctor who made entries in the Accident Register, Ex.P12, in respect of the victim and deposed that the victim girl told her that “she was sexually assaulted by one unknown person on 29.10.2017 around 7.00 p.m. at her place.” P.W.11 is the friend of P.W.1 and speaks about the complaint given by P.W.1 on 29.10.2017. P.W.12 is the Headmistress in the School where the victim studied, and on the basis of records, she had given an Educational Certificate [Ex.P13] wherein the victim's date of birth is shown as 07.12.2002. P.W.13 is the constable who had taken the first accused/appellant to the doctor for medical examination. P.W.14 is the constable who had taken the victim girl for medical examination. P.W.15

is the Sub-Inspector of Police, who registered the FIR and conducted part of the investigation and thereafter handed over the investigation to P.W.16. P.W.16 is the Inspector of Police, who concluded the investigation and filed the Final Report for the offences under Sections 363 and 366 r/w Section 5(1) r/w 6 of the POCSO Act against the appellant and under Section 366A of the IPC against the second accused, who is the sister of the appellant. The accused examined the second accused as D.W.1 and did not mark any document on his side.

7. As stated above, it is the case of the prosecution that the victim was abducted from her house on 29.10.2017 and thereafter was secured on 05.11.2017 by the Police. According to the prosecution, the complaint was lodged on 05.11.2017. The FIR was marked as [Ex.P15]. But, this is contrary to the evidence of P.W.11, who accompanied P.W.1 to the Police Station. Both P.W.1 and P.W.11 have stated that P.W.1 lodged the complaint on the same day when the victim went missing. Therefore, the first complaint said to have been given by the victim’s father, P.W.1, has been suppressed by the prosecution. Thus it appears that a belated complaint was obtained on 05.11.2017 at about 2.00 p.m.

8. Be that as it may. The accused is said to have been arrested on 05.11.2017, immediately after the FIR is said to have been registered which also appears improbable. Further, it is the version of the victim in the chief examination that she was first taken to Bangalore and the Police came to Bangalore and secured her on 05.11.2017. Though in the cross examination she would depose in conformity with the prosecution case, the victim’s version is contradictory. The evidence of P.W.15, (Investigating Officer) is that the victim and the appellant were found at Jujuvadi Bus Stand near Hosur on 05.11.2017. That apart, as stated above, P.W.1 had stated that the accused came with the victim to his house 5 or 6 days after she went missing. Therefore, the version of the witnesses as regards the place from where she was secured is contradictory to each other. Hence, the arrest of the appellant as projected by the prosecution is also in doubt.

9. Further, the victim had not referred to the name of the appellant in the statement given to the learned Magistrate, which was marked as Ex.P2. The victim was cross-examined on all these aspects and would state that she did not know that the appellant was known as Ellappa until the police told her. In fact, in the chief examination, she referred to the

appellant as Navin. The prosecution had not examined any witness to show that the appellant was known also as Navin and Sridhar.

10. Above all, the victim had not referred to the alleged penetrative sexual assault as projected by the prosecution. The relevant portion of the evidence of P.W.2/victim girl reads as follows: ePjpkd;wj;jpy ; epw;Fk ; 1tJ vjphpapd ; bgah; “

etPd;/ bg';fS:Uf;F me;j gf;fk ; cs;s xU Chpy; vjphpfs; vjphpfs; brhe;jf;fhuh;fs; tPl;oy; vd;id 4 ehl;fs ; j';f itj;jpUe;jhh;fs;/ bg';fS:h ; tPl;oy ; ,Ue;jnghJ etPd ; vd;id fl;ogpoj;J Kj;jk; bfhLj;jhd;/” The victim was examined by the Doctor at the Government Hospital, Hosur, on 05.11.2017, at about 07.00 p.m. Ex.P12 is the extract of the Accident Register, which was prepared by the Doctor/P.W.10. The Doctor had observed on the information given by the victim as follows: “Alleged sexual assault by one unknown person on 29.10.2017 around 7.00 p.m., at her place.” Here again, there is no reference to any penetrative sexual assault.

11. That apart, she had specifically stated that an unknown person had committed the sexual assault. Whereas, it is the prosecution case that the appellant was known to the victim. The alleged assault also according to the victim is said to have taken place on one occasion, which is contrary to the prosecution case. Further, the prosecution case is that the occurrences took place at Bangalore, whereas it is the version of the victim before the Doctor that the sexual assault took place in her home.

12. From the above evidence, therefore, it would be clear that the prosecution has failed to establish that the appellant committed penetrative sexual assault on the victim girl. Even with regard to the sexual assault of alleged hugging and kissing by the appellant at Bangalore, it would be highly unsafe to believe the version of the victim in the light of her statement given to the learned Magistrate, under Section 164 of Cr.P.C., and to the Doctor, which is referred above.

13. As regards the alleged kidnapping, this Court finds that there are discrepancies as pointed above as to from where the victim was secured. The earliest complaint has been suppressed by the prosecution. The second accused, who was prosecuted along with the appellant, was acquitted by the Trial Court.

14. In the light of all the aforesaid discrepancies, it is highly unsafe to hold the appellant guilty of the offences under Section 366 of the IPC and Section 5(l) r/w 6 of the POCSO Act, 2012. Therefore, this Court is of the view that the impugned Judgment of conviction is liable to be set aside.

15. In view of the above, the Criminal Appeal stands allowed. The conviction and sentence imposed upon the appellant/first accused vide Judgment dated 29.01.2021, by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District, Spl.S.C.No.34 of 2018, are set aside. The appellant is acquitted of all the charges. The fine amount, if any, paid by the appellant shall be refunded. The bail bond, if any, executed shall stand discharged. 12-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No dk

To

1. The Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District.

2. The Inspector of Police, All Women Police Station, Hosur, Krishnagiri District.

3. The Public Prosecutor, High Court of Madras.

SUNDER MOHAN, J. dk CRL A No. 52 of 2022 12-10-2026