CRL A/1285/2023 of NAGARAJ.R Vs INSPECTOR OF POLICE on 23 September 2026

JUDGMENT

The appellant/Accused in Spl.S.C.No.32 of 2021 was convicted by the Trial Court, by the judgment dated 15.06.2023 for the offence under Sections 5(l) r/w 6 of Protection of Children from Sexual Offences (in short ‘POCSO’)

Act, 2012, Section 9 of Prevention of Child Marriage (in short ‘PCM’) Act, 2006 and Section 366-A of I.P.C. and sentenced to undergo twenty years rigorous imprisonment and to pay a fine amount of Rs.3,000/-, in default, to undergo one year rigorous imprisonment, for the offence under Section 5(l) r/w 6 of POCSO Act, sentenced to undergo one year rigorous imprisonment and to pay a fine amount of Rs.1,000/-, in default, to undergo six months rigorous imprisonment, for the offence under Section 6 of PCM Act and sentenced to undergo seven years rigorous imprisonment and to pay a fine amount of Rs.2,000/-, in default, to undergo six months rigorous imprisonment, for the offence under Section 366A of I.P.C. Aggrieved against the said conviction, the appellant preferred the above appeal.

2. (i)The case of the prosecution is that the victim/PW1 was residing along with her mother, sister, aunt and her daughter at Seyur, Pothampalayam. The victim’s date of birth is 17.08.2007. She was 13 years old at the time of occurrence and was studying 8th standard at Pothampalayam Government Higher Secondary School. The victim used to visit nearby Shivan temple regularly. At that time, the appellant, who was working in a welding shop near to the temple approached the victim girl and expressed his love and intention to marry her. The victim girl stated that her mother would oppose the marriage, and hence she did not respond.

(ii) On 25.01.2021, at about 9.00 a.m., when the victim girl went to the Shivan temple, the appellant followed the victim girl and forced her for the marriage stating that once they get married, nobody will oppose. Thereafter, he forcibly took her to Seyur and from there, took her to Sathyamangalam and to his residence at Kuthiyalathur. On that night, the appellant hugged her, kissed her, and the victim girl pushed him out. Thereafter, by force, the appellant committed penetrative sexual assault.

(iii) On 26.01.2021, he took the victim girl to the nearby Vinayagar temple, and tied Thali, again on that night he committed penetrative sexual assault on the victim. It was during the Covid-19 period, and all the three children of PW2 were attending online classes. PW2, the mother of the victim had gone for work. Her sister informed her that the victim girl had gone to temple but not returned. Thereafter, PW2 searched for the victim girl and she lodged a complaint on 27.01.2021 that her girl was found missing. Complaint was received and a case in Crime No.50 of 2021 registered under ‘Girl missing’. Thereafter, the respondent police conducted a search. In the meanwhile, the friend of the appellant informed that a case registered and the police were searching for the victim and the appellant left to Mysore. Thereafter, they came back to Seyur on 04.02.2021 and alighted from the bus. At that time the police found them, enquired and arrested the appellant and victim girl secured.

(iv) The victim’s statement recorded and was produced before PW3/Doctor attached to Government Medical College Hospital, Tiruppur, who examined the victim, gave medical report/Ex.P4. The smear of victim collected, sent for forensic examination and the report/Ex.P3, received. The respondent police had gone to the house of the victim, prepared observation mahazar, rough sketch, and thereafter to the house of the appellant, prepared observation mahazar, rough sketch, in presence of the witnesses. The appellant was produced for medical examination and PW8/Doctor gave Accident Register/Ex.P9. PW7/Doctor examined the appellant and issued Ex.P8. In the meanwhile, the victim produced before the Magistrate and her statement under Section 164 of Cr.P.C. recorded. On conclusion of investigation, charge sheet filed in this case.

3. During trial, on the side of the prosecution, PW1 to PW10 examined, Exhibits P1 to P16 marked and M.O.1-S.D card produced, and on the side of the defence, DW1 examined. On conclusion of the trial, the trial Court convicted the appellant as stated above.

4. The learned counsel for the appellant submitted that in this case the victim and the appellant were in love relationship, which was opposed by the victim’s parents. The victim used to visit the Shivan temple near the welding shop, where the appellant was working and their love relationship continued.

The victim on 25.01.2021 came to the Shivan temple and thereafter called the appellant and forced the appellant to take her away, otherwise she would end her life. Left with no other option, the appellant joined the victim and took her to his native place at Sathyamangalam. There the appellant only hugged and kissed the victim girl, the victim showed some resistance. Thereafter the appellant left at that stage. The victim and the appellant stayed together that night. On the next day, both left to Mysore, later came back to Seyur with the intention to leave the victim with her parents. In the meanwhile, PW2, mother of the victim, gave a complaint and a girl missing complaint registered. The police, on seeing the appellant and the victim, arrested the appellant and took the victim into custody. The victim was produced before PW3/Doctor, who examined the victim, issued medical report/Ex.P4, in which it was found that there was no external injuries to show forcible penetrative sexual assault.

5. He further submitted that the doctor had given an opinion that hymen found not intact and for that reason the petitioner is presumed to have committed penetrative sexual assault. The doctor in the evidence admits that hymen being not intact might be for other reasons. Further, the smear was collected from the victim and sent for forensic examination. The forensic report/Ex.P3 confirms that no spermatozoa detected and further the opinion is that no evidence of recent sexual intercourse, which was further confirmed by the evidence of the Casualty Doctor/PW8, who issued Accident Register/Ex.P9.

PW7/Doctor, who examined the appellant, issued medical report/Ex.P8 confirming that there is no injuries or wound and there is no evidence for recent sexual intercourse. Thus, during the period from 25.01.2021 to 04.02.2021, there is no possibility of any penetrative sexual assault in this case. PW1 was produced before the Magistrate on 10.02.2021 and in her statement under Section 164 of Cr.P.C./Ex.P14, she had narrated the happenings between 25.01.2021 to 04.02.2021, at no point of time she had stated about any penetrative sexual assault. Her statement is that she was forcibly taken to the house of the appellant and there they stayed for night and at that time the petitioner attempted to hug and kiss her. Thereafter she pushed him out and they went to Mysore and came to Seyur. The penetrative sexual assault is an improved version given by PW1 during the evidence, which is an uncorroborated statement and the medical evidence is otherwise.

6. The mother of the victim states about her daughter missing from 25.01.2021 to 04.02.2021. The other independent witness is PW4, in whose presence observation mahazar drawn in the house of the victim. PW5 is the another observation mahazar witness drawn in the house of the appellant, and PW6 is the witness for arrest and confession. The other witnesses are official witnesses. The private witnesses PW4, PW5, and PW6 admit that they are relatives to PW2. Further, petitioner had relied upon the Division Bench judgment of this Court in Criminal Appeal No.384 of 2019, referring to paragraph 11, where it is stated that the doctor evidence and the entries in the medical records suggest there is no penetrative sexual assault, and utmost it can be only a sexual assault. Wherein, in that case, the accused was charged for offence under 5(m) r/w 6 of POCSO Act and it was altered to 9(m) r/w 10 of POCSO Act. In the present case, there is no evidence for any penetrative sexual assault and for sexual assault. Hence, submitted that the conviction is not sustainable and prayed for acquittal of the appellant.

7. The learned Additional Public Prosecutor submitted that in this case PW1 is the victim girl, her date of birth is 17.08.2007, which was proved by her birth certificate/Ex.P1 and her school certificate/Ex.P16. The victim was studying 8th standard and it was a Corona period. The victim, her brother and sister were attending online classes from home. The victim’s mother and grandmother are daily wagers and they had gone for work. The victim used to visit Shivan temple, The appellant, who is aged about 31 years, an elderly person, was employed in a welding shop near to it. Taking advantage of the innocence and age of the victim, he lured the victim and proposed a love affair, which she refused. The appellant promised the victim that if they got married there would be no opposition. Thereafter on 25.01.2021, when she went to the temple, he forcibly pulled the victim, dragged and taken her to his house at Sathyamangalam. There he committed penetrative sexual assault. On the next day, on 26.01.2021, he took the victim to nearby Vinayagar temple and tied

Thali and again committed penetrative sexual assault. The victim’s mother searched for her daughter and on 27.01.2021, she lodged a complaint and a ‘Girl missing’ complaint was registered. The Police visited the victim’s house, prepared observation mahazar and rough sketch. Thereafter on 04.02.2021, the appellant and the victim found near Seyur bus stop, the victim rescued, and appellant arrested. The victim was produced before the Doctor/PW3, who examined and gave medical report/Ex.P4, confirming that the victim’s hymen found not intact. Smear test conducted and report/Ex.P3, produced. The victim produced before the Magistrate and her statement under Section 164 Cr.P.C./Ex.P14, recorded. The victim had clearly deposed, how she was forcibly taken by the appellant and made to stay in Sathyamangalam, thereafter they had gone to Mysore and came back to Seyur. During this period, the appellant committed penetrative sexual assault.

8. She further submitted that the appellant was produced before PW7 and PW8, doctors, who issued Accident Register and gave medical report, Exhibits P8 and P9, respectively. Finding that the appellant, an elderly person, had kidnapped the victim minor girl and committed penetrative sexual assault, and shocking offence, he was detained under Act 14 in DPDA No. 745 on 31.03.2021. On conclusion of investigation, charge sheet filed in this case. She further submitted that during trial PW1 to PW10 examined, Exhibits P1 to P16 marked and M.O.1-S.D card produced. On the side of the defence, DW1

examined. The trial Court on the evidence of witnesses and materials produced had rightly convicted the appellant. Hence, she prayed to dismiss the appeal.

9. Considering the submissions made and on perusal of the materials, it is seen that in this case the victim is a minor and her date of birth 17.08.2007, which was proved by Exhibits P1 and P16. The victim was studying 8th standard at the time of occurrence and it was the Corona/Covid-19 period and she was attending online classes. The victim used to visit Shivan temple, the appellant worked in a nearby welding shop. The appellant lured the victim and showed interest on the victim and also proposed a love affair, which the victim refused and rejected. On 25.01.2021, the victim went to the temple and the appellant took her to his house at Sathyamangalam. There he hugged and kissed the victim girl and thereafter he was pushed out. Though it was claimed that on 26.01.2021 he took the victim to the nearby Vinayagar temple and tied thali and also committed penetrative sexual assault on the victim on 25.01.2021 and 26.01.2021, but PW10, the Investigating Officer, admits that he had not collected any materials to show that the appellant tied Thali on the victim. Further he admits that he neither examined any witnesses from Sathyamangalam, nor collected any bus ticket to prove travel to Mysore. Thus, no investigation conducted in Sathyamangalam except preparation of Observation of Mahazar and Rough Sketch.

10. The proved fact is that the victim and the appellant were together from 25.01.2021 to 04.02.2021. The victim in her statement under Section 164 Cr.P.C., recorded on 10.02.2021, not stated anything about penetrative sexual assault except the appellant hugging and kissing her. The victim, a minor was with the appellant from 25.01.2021 to 04.02.2021, is proved. From the medical evidence of Doctors PW3, PW7 and PW8, it is confirmed there is no forcible penetrative sexual assault. PW1 in her evidence before the trial Court had given an improvised version about the penetrative sexual assault, but in her 164 statement/Exhibit P14, there is no such statement. Hence, it is prudent to search for corroboration but no corroborative material or evidence available. Thus, on the uncorroborated statement of PW1, the conviction of the appellant under Section 5(l) r/w 6 of POCSO Act is not sustainable. Likewise, there is no evidence to confirm that there was any marriage and hence conviction under Section 9 of the Prevention of Child Marriage Act is also not sustainable.

11. In view of the above, the conviction of the appellant under Section 5(l) r/w 6 of POCSO Act and Section 9 of the Prevention of Child Marriage Act are set aside and the appellant is acquitted from these charges. As regards the conviction under Section 366A of I.P.C., the appellant and victim were together from 25.01.2021 to 04.02.2021 is proved, hence, the same is confirmed.

12. It is seen that the appellant was in prison as under trial prisoner from 04.02.2021 to 08.04.2022 for a period of 14 months, and after conviction from 15.06.2023 he is in prison for a period of three years and three months. Thus, this Court confirms the conviction of the appellant for offence under Section 366A of I.P.C. but modifies the sentence to period already undergone by the appellant.

13. Accordingly, the Criminal Appeal is partly allowed. The appellant to be released from the Prison forthwith unless he is required in any other case. 23-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No rsi To

1. The Sessions Judge, Magalir Neethi Mandram, Fast Track Mahila Court, Tiruppur.

2. The Inspector of Police, Seyur Police Station, Tiruppur District.

3. The Superintendent of Prison, Central Prison, Coimbatore.

4. The Public Prosecutor, High Court, Madras.

M.NIRMAL KUMAR, J. rsi CRL A No. 1285 of 2023 23-09-2026