CRL A/1090/2023 of VINOTHKUMAR Vs DEPUTY SUPERINTENDENT OF POLICE on 9 October 2026

JUDGMENT

The Criminal Appeal has been filed by the sole accused, challenging the judgment dated 11.08.2023 in Spl.S.C.No.70 of 2020, on the file of the learned Sessions Judge, Fast Track Magalir Neethimandram, Krishnagiri District, convicting him for the offences under Section 5(l) r/w 6(l) of the POCSO Act and Section 366 of the IPC and sentencing him as follows: Offence under Section Sentence imposed 5(l) r/w 6(l) POCSO Act To undergo rigorous imprisonment for twenty years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for one year. 366 IPC To undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for six months. 2(i) It is the case of the prosecution that on 28.08.2020 at about 10.00 a.m., the victim, born on 02.02.2003, was kidnapped by the appellant from Krishnagiri and thereafter taken to Banagalore; that he tied

‘Thaali’ on the victim girl, took a house on rent at Bangalore and committed penetrative sexual assault continuously for a period of one month; and thus, committed the aforesaid offences.

(ii) Initially, a complaint [Ex.P1] was lodged for 'Girl Missing', which was registered in Cr.No.14 of 2020 by the Sub-Inspector of Police [PW17]. Thereafter, it appears that the victim had returned home and she revealed that she was kidnapped and subjected to penetrative sexual assault by the appellant. Hence, the offences were altered to Section 363 of the IPC r/w Section 3(2)(va) of the SC/ST (POA) Act, Section 366 of the IPC r/w Section 3(2)(v) of the SC/ST (POA) Act and Section 5(l) r/w 6 of the POCSO Act.

(iii) After subjecting the victim to medical examination, recording her Section 164 Cr.P.C. statement and examining the other witnesses, the investigating officer [PW20] filed the final report for the offences under Sections 363, 366 of the IPC, Section 5(l) r/w 6 of the POCSO Act and Section 3(2)(va) of the SC/ST (POA) Act, before the learned Sessions Judge, Fast Track Magalir Neethimandram, Krishnagiri District.

(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 Spl.S.C.No.70 of 2020 and the trial Court framed charges against the appellant/accused for the offences under Section 366 of the IPC and Section 5(l) r/w 6 of the POCSO Act, and when questioned, the appellant pleaded 'not guilty'.

(v) To prove its case, the prosecution examined twenty witnesses, viz., PW1 to PW20 and marked twenty-eight documents, viz., Ex.P1 to Ex.P28. When the appellant was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. Though the appellant has not examined any witness, he has marked Ex.D1-Photos, to prove his defence.

(vi) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established that the victim was a minor at the time of the occurrence; that the prosecution had established the foundational facts; that the appellant had not rebutted the statutory presumption; and hence, held the appellant guilty of the aforesaid offences and sentenced him, as stated above.

3. Mr.E.Kannadasan, learned counsel for the appellant would submit that admittedly the relationship between the appellant and the victim was consensual; that the parents of the victim were also aware of the said fact; that since the parents were in search of both the appellant and the victim, the victim voluntarily went to the house to prevent further harassment to the appellant; that in any case, the prosecution had not established the age of the victim in the manner known to law; that since even according to the prosecution the victim was close to 18 years, the appellant was made to believe that the victim was a major; that there is no evidence to the contrary let in by the prosecution; and thus, prayed for acquittal.

4. Ms.Sharada Vivek, learned Additional Public Prosecutor, per contra, submitted that the father of the victim had deposed that the victim was born on 02.02.2003; that the Headmistress of the school [PW11] in which the victim studied had issued a Bonafide Certificate [Ex.P14], which confirms the date of birth; that the victim herself has referred to her date of birth; that therefore, the prosecution proved that the victim was a child at the time of occurrence and hence, consent is immaterial; that therefore, the appellant was rightly convicted by the trial Court for the offences; and hence, prayed for dismissal of the appeal.

5. (i) As stated above, the prosecution had examined 20 witnesses. PW1 and PW3 are the father and mother of the victim, respectively. PW2 is the victim; PW4 and PW5 are the brother and sister of the victim, respectively. PW6, the Doctor would prove the Accident Register, since the Doctor who made entries in the same, was no more. PW7 to PW9 are the mahazar or observation witnesses, of whom PW8 and PW9 turned hostile.

(ii) . PW10 is the Deputy Tasildhar, who had issued the Community Certificate for the accused stating that he did not belong to the Scheduled Caste community. PW11 as stated above, is the Headmistress, who had issued the Bonafide Certificate to prove the date of birth of the victim. PW12 and PW13 are the Head Constables, who assisted the investigating officer during the investigation. PW14 is the Tasildhar, who had issued the Community Certificate for the victim and had stated that she belonged to SC/ST Community. PW15 is the doctor who made entries in the Accident Register [Ex.P18]. PW16, who was examined by the prosecution to prove that he had helped the appellant and the victim to find a house, turned hostile. PW17 is the Sub-Inspector of Police, who registered the FIR. PW18 and PW19 are the Inspectors of Police, who assisted PW20, the investigating officer.

6. Though the victim in her deposition would state that she was forced to go with the appellant, she had consistently stated in her earlier versions that she had a romantic relationship with the appellant and that she had voluntarily gone with the appellant. In fact, in her cross- examination, she would admit of making such a statement in her earlier version. Even in the Accident Register [Ex.P18], she informed the doctor that she was subjected to sexual assault by a known person. Further, in her statement given to the Magistrate under Section 164 of the Cr.P.C., she confirms that her relationship with the appellant was consensual. The prosecution has not let in any evidence to prove that the victim was forcibly taken from her residence by the appellant.

7. However, if the victim was a minor at the time of the occurrence, consent would be immaterial. The question is whether the prosecution has established the age of the victim on the date of the occurrence. The prosecution had examined PW11, the Headmistress who had marked the Bonafide Certificate [Ex.P14]. The Bonafide Certificate was issued by the Headmistress on 14.10.2020 at the instance of the police during the course of the investigation. In her deposition, PW11 had stated that the date of birth mentioned in the Bonafide Certificate was based on the Admission Register maintained in the school. However, the Admission Register for the reasons best known to the prosecution has not been marked. Strangely, in this case, it could be seen that though a Transfer Certificate is annexed to the Bonafide Certificate, the said Transfer Certificate has not been marked by the prosecution for reasons best known to them. The said Transfer Certificate therefore, would not be of any avail to the prosecution to prove the age of the victim. In any case, it is seen that even in the said Transfer Certificate, the entries were made based on the Admission Register.

8. Firstly, the said certificate was given during the course of the investigation and the contemporaneous record maintained by the school ought to have been collected by the prosecution. Secondly, the Headmistress also admitted to a discrepancy in the Bonafide Certificate wherein the period of study is shown as 2013-14 to 2017-18. However, according to the defence, the victim studied in the school till 2018-19, which was admitted by the witness in the cross-examination. Though the father of the victim had stated the date of birth of the victim as 02.02.2003, the prosecution, as stated above, had failed to produce the entries in the Admission Register of the School.

9. Be that as it may. The defence has questioned the witness that there was no way that the appellant could have known about the age of the victim and that he was made to believe that the victim was more than 18 years old at the time of the occurrence. Though the victim had denied the said suggestion, this Court is of the view that considering the fact that there is considerable doubt in the age of the victim, the appellant’s act would be covered by the general exception under Section 79 of the IPC.

10. The other witnesses examined by the prosecution have only spoken about the fact that the victim was missing from the house for a period of one month and few are hearsay witnesses to the occurrences said to have taken place at Bangalore. The victim, who had all along maintained that it was a consensual relationship had in her deposition had stated that she was forced by the appellant to live at Bangalore and that she was subjected to forcible sexual intercourse. In the light of her contradictory statements, she cannot be termed as a witness of sterling quality and hence a conviction cannot be based on her sole testimony, even assuming she was a minor at the time of occurrence.

11. For all the above reasons, this Court is of the view that it would be highly unsafe to hold the appellant guilty of the offences charged against him and therefore, this Court is inclined to set aside the impugned judgment and acquit the appellant.

12. As a result, this Criminal Appeal is allowed. The conviction and sentence passed in Spl.S.C.No.70 of 2020, dated 11.08.2023 on the file of learned Sessions Judge, Fast Track Magalir Neethimandram,

Krishnagiri, are set aside. The appellant is acquitted of all the charges. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged. 09-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No ars To

1. The Sessions Judge, Fast Track Magalir Neethimandram, Krishnagiri District.

2. The Deputy Superintendent Of Police Hosur, Krishnagiri District.

3. The Inspector Of Police AWPS Hosur, Krishnagiri District.

4. The Public Prosecutor, High Court, Madras.

SUNDER MOHAN, J. ars CRL A No. 1090 of 2023 09-10-2026