CRL A/404/2023 of JOTHIVEL Vs THE INSPECTOR OF POLICE on 7 October 2026

JUDGMENT

The appeal has been filed by the sole accused aggrieved by the finding of guilt and sentence imposed on him for the offences under Section 366 IPC and Section 5 (m) r/w 6 of the POCSO Act. 2 (i) It is the case of the prosecution that on 08.05.2021 at about 05.30 p.m., while the victim girl, aged about 5 years (born on 07.01.2016) was playing outside her house, the appellant in order to commit sexual intercourse had taken her to a sugarcane garden nearby and committed penetrative sexual assault by inserting his genital part into the genital part of the victim.

(ii) On the complaint given by the mother/PW3 of the victim, an FIR was registered on 09.05.2021 at about 01.30 a.m. The appellant was arrested and after examining all the witnesses, PW15 filed the final report for the offences under Section 366 IPC r/w Section 5(m) r/w 6 of the POCSO Act before the Special Court for Exclusive trial of cases under POCSO Act, Cuddalore. The trial Court framed charges against the accused under Section 366 IPC and Section 5(m) r/w 6 of the POCSO

Act, and when questioned, the appellant pleaded 'not guilty’.

(iii) The prosecution examined 15 witnesses and marked Exts.P1 to P26. When the appellant was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. On the side of the defence, the appellant neither examined any witness nor marked any documents.

(iv) The trial Court found that the prosecution had established its case beyond reasonable doubt and held the appellant guilty of the offences under Section 366 IPC and Section 5 (m) r/w 6 of the POCSO Act and sentenced him to ten years rigorous imprisonment and to pay a fine of Rs.2,000/- and in default, to undergo three months simple imprisonment for the offence under Section 366 IPC and to undergo 20 years rigorous imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo three months simple imprisonment. Hence, the appeal.

3. Heard Mr.P.Muthamizhselvakumar, learned counsel and Mr.C.Samivel, the learned Legal Aid Counsel for the appellant/accused, and Ms.Sharada Vivek, learned Additional Public Prosecutor appearing for the respondent/State.

4. The learned counsel for the appellant would submit that the complainant/PW3 had not supported the case of the prosecution; that the victim was initially treated hostile by the prosecution; that to certain leading questions put by the prosecution after permission of the Court, she replied in the affirmative; that the medical evidence does not corroborate the evidence of the witnesses; that PW4, the sister-in-law of PW3 was due to pay money to the appellant and only at her instance, the instant complaint was lodged; that the conduct of the eye-witnesses PW7 and PW8 does not inspire confidence; and therefore, the finding of guilt has to be set aside.

5. Since the learned counsel for the appellant was absent on a couple of occasions, this Court had appointed Mr.C.Samivel as the legal aid counsel.

6. The learned legal aid counsel would adopt the submissions made by the learned counsel for the appellant and further add that in the light of PW3's evidence, the evidence of the so called eye-witnesses do not inspire confidence and hence, cannot be believed. He would further add that the victim, who was aged six years at the time of occurrence, is stated to have narrated the incident while she was examined by the Magistrate, had failed to do so in her deposition; and that the cross-examination by the prosecution and the defence would suggest that she had been tutored; and therefore, prayed for acquittal.

7. The learned Additional Public Prosecutor per contra would submit that though the victim was initially treated hostile, she had stated about the incident during the cross-examination by the prosecution and reiterated her version given to the police as well as to the Magistrate under Section 164 Cr.P.C.; that the evidence of PW3 cannot be the sole basis to hold the appellant not guilty, as her evidence only suggests that she has been won over by the defence; that PW4, PW7 and PW8 have all supported the case of the prosecution; that the doctor has noted a contusion in the genital part of the victim and had opined that the victim could have been subjected to sexual assault; and therefore, the evidence, if looked at cumulatively, would reveal the guilt of the appellant; and prayed for dismissal of the appeal.

8. As stated above, the prosecution had examined 15 witnesses and marked 26 documents. PW1 is the victim. PW2 is the Doctor, who examined the victim and had issued Ext.P3, medical report and Ext.P4, radiology report. She had also made entries in the accident register Ext.P2. PW3 is the mother of the victim, who turned hostile. PW4 is the sister-in-law of PW3 (co-sister). PW5 is the headmistress, who had marked the education certificate Ext.P7 reflecting the date of birth of the victim as 07.01.2016. PW6 is the Doctor, who had examined the appellant and had opined that the accused was potent and had issued the potency certificate Ext.P9 and his age certificate Ext.P10. PW7 is the relative of PW1, who came to know of the occurrence from PW8 her mother-in-law and according to the prosecution, both PW7 and PW8 are eye-witnesses to the occurrence. PW9 is the grandmother of the victim, who corroborates the evidence of PW8. PW10 and PW11 are witnesses to the confession statement and they turned hostile. PW12 is the husband of

PW4 and is a witness to the seizure mahazar. PW13 is the Sub-Inspector of Police, who registered the FIR, Ext.P18. PW14 is the Inspector of Police, who conducted the initial investigation and PW15 is the Inspector of Police, who filed the final report.

9. From the above narration, it could be seen that the prosecution relied upon the evidence of PW7 and PW8, who are the eye witnesses to the occurrence, the evidence of PW4, who had taken the victim to the hospital and the evidence of the victim herself, besides the evidence of the doctor/PW2 to prove its case. There is no dispute with regard to the age of the victim.

10. It is the specific case of the prosecution that PW7 and PW8, who are closely related to PW3, have witnessed the occurrence from the terrace of their house. PW7 and PW8, both had not taken any steps to prevent the alleged occurrence. In fact, PW7 would state that she had not raised an alarm, since she felt that the accused would harm the victim; and that thereafter, since it was reported that the victim was missing, she informed her husband about the alleged occurrence. Her husband was not examined by the prosecution. Similarly, PW8, who is said to have witnessed the occurrence also did not raise any alarm. The conduct of both PW7 and PW8 is opposed to normal conduct. It is unbelievable that the two ladies, who had witnessed the occurrence had neither raised any alarm nor took any steps to prevent the occurrence and had waited for PW7’s husband to wake up to inform him.

11. Be that as it may, PW3, the mother of the victim and the defacto complainant would state that the victim had sustained injuries during a fall one month prior to the occurrence and that she took the victim along with PW4 to the hospital. In fact, she would state that after the doctor had examined the victim, both PW3 and PW4 returned home at 8.00 p.m. along with the victim. She, in her deposition, had admitted her signature in Ext.P17 complaint but, had denied having given any complaint. She also would state that she informed the police that no incident as alleged by them occurred. In fact, during cross-examination, she would state that it was only at the instance of PW4, the complaint was registered and that she was locked inside the house, while the others went to lodge the complaint, after obtaining her signature. To a specific question put forth by the defence as to whether PW4 was keen to prosecute the appellant because she had monetary disputes with the appellant, PW3 answered in the affirmative.

12. PW1, the victim herself, who is said to have narrated the incident while she was examined by the Magistrate, was reluctant to depose. Therefore, the prosecution sought permission to treat her as hostile and had put leading questions to the witness. To all the questions put by the prosecutor, which suggests commission of the offence, she had answered in the affirmative. However, the question is, in a case of this nature, where the evidence of the eye witnesses PW7 and PW8 do not inspire confidence, the mother of the victim did not support the prosecution, the conviction can be based on such testimony of PW1, who was reluctant to depose against the appellant. The victim in the cross- examination would also state that she liked PW4 more than her mother and that she would listen to PW4.

13. PW2, the doctor had first examined the witness on 09.05.2021. The doctor in the accident register would state that the hymen was intact;

that no abrasion or contusion was found in the hymen and that the external genitalia was normal; that no nail marks were seen but, had noted a contusion of 2 cm x 1 cm x 1 mm in the left labia majora region. In her deposition, she would state that the said injury was found in the genital part of the victim. She would further state in the cross- examination that such an injury is possible, even if there was an infection and the victim had scratched. That apart, she has also stated that the accident was narrated by PW4 and not by the victim. Thus, it could be seen that there is nothing in the medical evidence to suggest that there was penetration as defined under Section 3 of the Act, as claimed by PW7 and PW8. In fact, PW3, the mother of the victim had also explained the injury.

14. It is further seen that though the alleged occurrence is said to have taken place at 05.30 pm on 08.05.2021, the victim would state that it had taken place in the morning. That apart, there is no reason for the delay in lodging of the complaint on 09.05.2016. The FIR reached the Court later in the evening.

15. In the light of the evidence of PW3, the mother of the victim, the medical evidence and the reluctance on the part of the victim to depose against the appellant initially, though it is stated that she narrated the incident before the Magistrate, this Court is of the view that it would be highly unsafe to convict the appellant only on suspicion. In a case of this nature, which has serious consequences, the burden on the prosecution to prove the case beyond reasonable doubt is higher. From the evidence on record, it is seen that the accused has rebutted the statutory presumption and there is more than reasonable doubt in the case of the prosecution.

16. In the result, this Criminal Appeal is allowed, and the appellant is acquitted of the charges under Section 366 IPC and Section 5 (m) r/w 6 of the POCSO Act. The conviction and sentence passed in Spl.S.C.No.4/2022 on the file of the learned Special Court for Exclusive trial of cases under POCSO Act, Cuddalore dated 09.12.2022 is set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged. Consequently, the connected miscellaneous petition is closed.

17. The High Court Legal Services Committee shall pay the scheduled fees to Mr.C.Samivel, the learned Legal Aid Counsel for the appellant. 07-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No TSG To

1. The Inspector of Police, Viruthachalam All Women Police Station, Cuddalore District, (Crime No.11/2021).

2. The Special Court for Exclusive trial of cases under POCSO Act, Cuddalore.

3. The Superintendent, Central Prison, Cuddalore.

4. The Public Prosecutor, Madras High Court.

SUNDER MOHAN, J. TSG CRL A No. 404 of 2023 & CRL MP No. 12010 of 2026 07-10-2026