CRL A/1257/2022 of S.GANESH Vs STATE REP.BY on 11 September 2026

Judgment

The appellant/Accused in Spl.S.C.No.5 of 2019 was convicted by the Trial Court, by the judgment dated 25.08.2022 for the offence under Sections 450, 506(ii) of I.P.C. and Sections 3 and 4 of Protection of Children from Sexual Offences (in short ‘POCSO’) Act, 2012 and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo 3 months simple imprisonment, for the offence under Section 450 of I.P.C., sentenced to undergo 7 years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo 3 months simple imprisonment, for the offence under Section 506(ii) of I.P.C. and sentenced to undergo 7 years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo 3 months simple imprisonment, for the offence under Sections 3 & 4 of the POCSO Act, 2012. Aggrieved against the said conviction, the appellant had preferred the above appeal.

2. (i)The case of the prosecution is that on 28.06.2017, the victim/de facto complainant/PW1, lodged a complaint with the respondent police stating that on 18.05.2017, at about 3.00 p.m., her father had gone to work, her mother had taken her sister to the college for admission and her brother, who completed 12th standard, was staying at their grandmother's house and the victim was alone at home. At that time, the appellant came to the house and enquired about her father and mother. On finding that no one was in the house, he entered the house, pushed her into the bedroom, locked the door, covered her mouth and committed penetrative sexual assault. When the victim questioned the appellant, he threatened the victim and claimed, he committed such rape with several persons and if she disclosed the same, she and her father would be done away. Threatening so, he left the place. The victim not disclosed the incident to anyone for one month.

(ii) On 28.06.2017 at about 9.00 a.m., the parents found victim not normal, enquired the victim. Then only the victim disclosed the act of the appellant and his threat, and thereafter complaint lodged to PW10, who registered F.I.R., recorded the statement of witnesses, placed the records to PW9, the Inspector of Police, who visited the scene of occurrence, prepared observation mahazar, rough sketch in the presence of PW3 and another witness, enquired PW1/victim, PW2/victim’s mother and PW4/victim's paternal grandmother.

(iii) The victim was produced before PW8, who examined the victim and gave a report/Exhibit P5. The victim appeared before the Magistrate and her statement under Section 164 Cr.P.C./Exhibit P9 recorded and the victim's school certificates/Exhibits P10, P11 and P12 collected from PW11. The victim is a minor, her date of birth is 07.12.2001. The accused arrested, he was produced before the Doctor/PW5, who gave Potency Certificate/Exhibit P4. On conclusion of investigation, charge sheet filed in this case.

3. During trial, PW1 to PW11 examined, Exhibits P1 to P12 marked. On the side of the defence, DW1 examined and Exhibits D1 and D2 marked. 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, PW1 is the victim, PW2, mother of the victim and PW4, grandmother of the victim. The appellant's sister is married to the victim's maternal uncle, brother of PW2. There was dispute and some fight between PW2 and appellant's sister and a case registered in this regard. The appellant intervened in support of his sister and there was a fight and exchange of blows. The appellant assaulted the victim's father and also threatened victim's mother. He was arrested in that case and there was animosity between both families. In such circumstances, the appellant entering the house of the victim and forcibly committing penetrative sexual assault is highly impossible. Further in this case, the alleged occurrence said to have taken place on 18.05.2017 at about 3.00 p.m., but complaint lodged with a delay of 40 days on 28.06.2017, no valid explanation given to overcome the delay. It is projected the appellant threatened the victim and for that reason complaint was not immediately lodged. It is seen during this 40 days, the victim and her parents all continuing with their routine life, hence, it cannot be accepted.

5. The learned counsel further submitted that the evidence of PW2 is that it was PW1 who informed about the incident and PW4/Grandmother, residing elsewhere, and her evidence is that she was informed about the incident. Thus, in this case, the only evidence is that of PW1 for the occurrence. He further submitted that PW1 and PW2 examined on 07.06.2018, and on that day both witnesses not cross-examined. Thereafter, the appellant filed a recall petition in Crl.M.P.No.716 of 2020, which was dismissed, against which he filed Crl.O.P.No.6603 of 2022 before this Court, and this Court by order dated 24.03.2022, finding non cross-examination of PW1 would cause great prejudice to the appellant, permitted the appellant to recall and cross-examine PW1, thereafter cross-examined on 27.06.2022. During the cross-examination, PW1 admits that the appellant is the brother-in-law of her maternal uncle. She also admits the dispute between her mother and appellant's sister, and during a fight between them, the appellant intervened in support of his brother-in-law and there was an exchange of blows. PW2 gave a complaint against the appellant and he was sent to jail. Further PW1 confirms that on 18.05.2017, her father alone had gone with her sister for college admission and other members of the family were in the house and she was not alone. Further she confirms her maternal uncle resides in Pachayankuppam. Due to the fight, the parents of the victim having animosity against the appellant. Further she also confirms that when she was minor, she had to toe the line of her parents, hence she gave a complaint and 164 statement, and the chief examination, she on compulsion and force, gave such statement. Now after attaining majority, realising the mistake, she deposed the truth. Thus the only witness, PW1, after attaining majority, without anybody’s compulsion and force had spoken the truth. In this case, apart from PW1, no other witnesses or material available to corroborate the allegation against the appellant.

6. He further submitted that PW2/mother is a motivated witness, she confirms that her brother, Sathish is residing at Pachayankuppam. In this case, the other witness, PW8, the doctor who examined the victim, gave a medical report/Exhibit P5 and confirms that hymen found not intact may be for other reasons. The appellant, to disprove the case of the prosecution and probabilise his defense, examined DW1, the Supervisor of Sun View Enterprises, Cuddalore and marked Exhibits D1 and D2, where appellant was employed during the relevant time and his attendance certificate for the period from October 2016 to June 2018, marked as Exhibit D1, and the letter regarding the appellant’s work done on 18.05.2017, marked as Exhibit D2 confirming that on 18.05.2017 from 9.00 a.m. till 7.00 p.m. he attended the street lamps repair and maintenance work along with one Senthilkumar (wireman). More specifically at about 2.30 p.m. he fixed two tube lights at Pudupalayam Fish Market street, and the work completed only at about 5.30 p.m. Thereafter from 6.00 p.m. to 7.00 p.m., he attended the work of switching on the street lights from Corporation wards 13 to 21. The petitioner was attending the work of Cuddalore Municipal Corporation, a Government Department.

7. He further submitted that PW10, the Sub-Inspector of Police, confirms that in this case the complaint was lodged on 28.06.2017 for offence which took place on 18.05.2017. Further, when specific question was put to her with regard to appellant’s employment, whether he was attending to his work on 18.05.2017, the Sub-Inspector of Police, feigned ignorance. PW9, the Inspector of Police, took up the investigation and conducted investigation and filed the charge sheet. In this case, the statement under Section 164 Cr.P.C./Exhibit P9, marked after the appellant re-called PW1 for cross-examination. Now prosecution claim that the recall and cross-examination of PW1 after four years serves no purpose and cannot be accepted. The further chief examination of PW1 continued on 27.06.2022 and the appellant cross-examined the witness. The trial Court discards the evidence of PW1 deposed on 27.06.2022 as an afterthought or won over is not proper. Further only on 27.06.2022, Ex.P9/Section 164 Cr.P.C. statement of PW1 marked, but her evidence is contra to her earlier statement. The prosecution neither though fit to elicit the contradictions nor examined the Magistrate, who recorded Section 164 Cr.P.C. statement. Thus the finding of the trial Court on the uncorroborated documents

and evidence of PW1 is not proper and sustainable. Hence, prayed to set aside the conviction.

8. The learned Additional Public Prosecutor strongly opposed the appellant's contention and submitted that in this case PW1 is the victim, who was aged about 16 years. She lodged a complaint with PW10 on 28.06.2017, complaining that on 18.05.2017 when she was alone at home, the appellant, a relative, entered the house, enquired about her parents, and after confirming that there is no one inside the house, he dragged the victim into the bedroom, locked the room and committed forcible penetrative sexual assault. Further he threatened the victim that he would murder her father and the victim, if she disclosed the incident to anyone. Hence, the victim fearing for life not informed to anyone, but she suffered humiliation and pain, and she was not normal. Finding victim abnormal, parents of the victim questioned her on 28.06.2017, at that time, she disclosed the penetrative sexual assault committed by the appellant on 18.05.2017. Hence, immediately PW2 along with her husband and mother-in-law/PW4, lodged a complaint to PW10, who registered the F.I.R., visited the scene of occurrence, prepared observation mahazar and rough sketch in presence of PW3 and other witnesses, recorded the statement of witnesses, and thereafter PW1 was produced before the Doctor/PW8, who examined the victim, gave medical report/Exhibit P5.

9. She further submitted that the victim, even before the Doctor, had clearly narrated the penetrative sexual assault committed by the appellant on 18.05.2017. Thereafter, the appellant was arrested and produced for medical examination. PW5 examined the appellant and issued a Potency Certificate, which was marked as Exhibit P4. PW11, the Principal of the St. Annes Girls Higher Secondary School examined and he issued the School Certificates/Exhibits P10, P11 and P12, confirming the date of birth of the victim as 07.12.2001. The victim gave Section 164 Cr.P.C. statement, marked as Exhibit P9. On collection of the materials and documents, charge sheet filed. During the course of trial, on the side of the prosecution, PW1 to PW11 examined and Exhibits P1 to P12 marked. On the side of the defence, DW1 examined and Exhibits D1 and D2 marked. The appellant took a specific defence of Alibi, contending that on 18.05.2017, between 2.30 p.m. and 5.00 p.m., he was attending repair and maintenance work replacing the street lights and in proof of the same, he produced Exhibit D2. DW1 on a specific question confirmed that there is a possibility of appellant might have gone elsewhere during working hours. Further, the specific stand of the appellant was that he along with one Senthilkumar, Wireman, attended the electrical work, but the said Senthilkumar not examined and no explanation given for his non- examination. Thus, the trial Court rightly rejected the defence of Alibi and on the evidence of PW1/victim and PW2/mother, found the prosecution proved the case.

10. The learned Additional Public Prosecutor further submitted that the contention of the appellant that PW1’s evidence during cross-examination on 27.06.2022, is in his favour not considered, cannot be accepted, since the said evidence was recorded four years after the chief-examination. The trial Court had rightly discarded the said portion of the evidence. Thus, the trial Court considered, analysed the evidence of witnesses and materials produced and had rightly convicted the appellant. Hence, she prayed for dismissal of the appeal.

11. Considering the submissions made and on perusal of the materials, it is seen that in this case PW1 is the victim, PW2, the mother of the victim and PW4, the paternal Grandmother of the victim. PW1/victim is a minor, her date of birth is 07.12.2001, which is proved by the evidence of PW11 and Education Certificate/Exhibit P10. According to the victim, on 18.05.2017, when she was alone in the house, the appellant known to the victim, a relative, who is the victim's maternal uncle's brother-in-law. On 18.05.2017, the appellant trespassed and entered the house of the victim at about 3.00 p.m., dragged her into the bedroom and committed penetrative sexual assault. But the victim kept quiet for 40 days and she disclosed this incident only on 28.06.2017. Though an attempt was made to show that she was threatened and for fear she had not disclosed to her parents, it is highly doubtful. It is seen that during this period the victim leading a routine normal life, and it is not the case that she was confined to a place and she was unable to express the pain to anyone, had abnormal behaviour. For 40 days she had been with her parents, and thus this delay creates serious doubt in the case of the prosecution, considering the animus relationship between the appellant with victim’s parents.

12. It is seen, when the victim was cross-examined on 27.06.2022, she was a major and she clearly admitted the animosity between the appellant and her parents, and PW2/mother and appellant's sister, are sister-in-laws having no cordial relationship. Earlier, there was a fight, exchange of blows and the fight had taken place near the Pachayankuppam. A police complaint lodged by PW2, and the appellant was arrested in that case. Thus the animosity between them prevailing for quite some time. In such circumstances, the appellant straightaway walking into the house of the victim, enquiring about mother and father of victim is highly doubtful.

13. Added to it, it is projected that the appellant's brother-in-law residing near to the victim house and the appellant used to visit his brother-in-law and his sister regularly is proved to be false. The appellant's brother-in-law is residing at Pachayankuppam. The victim is residing in Kodikal Nagar, which is 4 to 5 kilometers away. It is seen that in this case, the victim had completely given a go by to her earlier statement against the appellant. The submission of the learned Additional Public Prosecutor that the cross-examination cannot be accepted, since it was after four years and chief examination only to be considered is not sustainable for the reason that the appellant permitted to cross examine PW1 on the orders of this Court in Crl.O.P.No.6603 of 2022, hence, the delay condoned. Added to it, it seen on 27.06.2022, further chief examination continued, documents and Exhibit P9 marked and thereafter cross- examination of PW1 done. Hence, only for the reason of delay, cross- examination of evidence not considered by the Trial Court is not proper. Hence, the delay cannot be a reason to discard the evidence of PW1. The other witnesses PW2 and PW4 are only in the nature of hearsay. PW2 denies the relationship, fight and the animosity with the appellant. The evidence of PW1 and PW2 are in contradictions in this aspect. Thus, the only evidence of PW1 is highly doubtful and shaky, further there is no corroborative material, PW1/victim after attaining majority had deposed without any fear or compulsion.

14. The submission of Additional Public Prosecutor that the Doctor/PW8 had given a report/Exhibit P5 confirming to the prosecution case cannot be accepted, since hymen being not intact might be for various reasons and this can happen to a person, who exercises and cycles regularly. Thus, Exhibit P5 alone cannot be conclusively held against the appellant in the absence of any other corroborative materials. Further in this case, the appellant examined DW1 and marked Exhibits D1 and D2. Exhibit D1 is the attendance register for the period from October 2016 to June 2018. Exhibit D2 is the letter for the duty done by the appellant on 18.05.2017. The appellant’s duty hours are from 9.00 a.m. to

7.00 p.m. and during the hours 2.30 p.m. to 5.00 p.m. he attended duty in two places. DW1 deposed to this effect. The trial Court though raised doubts on the evidence of DW1, but not discarded Exhibits D1 and D2. In Exhibit D2, it is clearly recorded that the appellant during the relevant time was attending replacement of street lights in Pudupalayam Fish Market. Thus, PW1/victim gives two version in her evidence, gives explanation that when she was minor, she was forced by her parents to depose in a certain manner, after attaining majority without any compulsion deposed supporting the appellant. Further it is to be seen, Ex.P9/victim’s 164 statement marked on 27.06.2022 during further chief examination. The victim deposed contra to her 164 Cr.P.C. statement. These contradictions not elicited and the Magistrate, who recorded 164 Cr.P.C. statement not examined. Added to it, complaint lodged with a delay of 40 days, all cumulatively confirm the evidence of victim/PW1 is highly doubtful, unsafe to place reliance on the evidence of PW1/victim without any corroborative materials and evidence. Thus, considering all these aspects, this court finds that the prosecution miserably failed to prove the case against the appellant.

15. In view of the above, this Court set asides the impugned judgment dated 25.08.2022 passed in Spl.S.C.No.5 of 2019 by the learned Sessions Judge, Special Court (POCSO Act Cases), Cuddalore. The appellant is acquitted from all the charges levelled against him. Fine amount, if any paid, shall be refunded. Bail bond, if any executed, shall stand cancelled.

16. Accordingly, the Criminal Appeal is allowed. 11-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No RSI To

1. The Sessions Judge, Special Court (POCSO Act Cases), Cuddalore.

2. The Inspector of Police, All Women Police Station, Cuddalore.

3. The Public Prosecutor, High Court, Madras.

M.NIRMAL KUMAR J. RSI CRL A No. 1257 of 2022 11-09-2026