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CDJ 2026 MHC 2050
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| Court : Before the Madurai Bench of Madras High Court |
| Case No : Crl.A.(MD) No. 441 of 2023 |
| Judges: THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH & THE HONOURABLE MR. JUSTICE P. DHANABAL |
| Parties : Chandramohan Versus The Inspector of Police All Women Police Station, Virudhunagar |
| Appearing Advocates : For the Appellant: M. Kaushikan for Arul Jenifer, Advocates. For the Respondent: A. Thiruvadi Kumar, Additional Public Prosecutor. |
| Date of Judgment : 05-03-2026 |
| Head Note :- |
Criminal Procedure Code - Section 374(2) -
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| Summary :- |
1. Statutes / Acts / Rules / Orders / Regulations / Sections Mentioned:
- Section 374(2) of Cr.P.C.
- Section 4 of POCSO Act
- Section 376 of IPC
- Section 506(i) of IPC
- Section 506(ii) of IPC
- Section 164(5) of Cr.P.C.
- Section 207 of Cr.P.C.
- Section 313 (1)(b) of Cr.P.C.
- Section 29 of POCSO Act
- Section 42 of the POCSO Act
- Section 9(i) r/w.10 of POCSO Act
- Section 4 r/w.18 of POCSO Act
- Section 10 of the POCSO Act
- Section 428 of Cr.P.C.
2. Catch Words:
Not mentioned.
3. Summary:
The appellant challenged his conviction for offences under the POCSO Act and IPC. The trial court had sentenced him to life imprisonment under Section 4 of the POCSO Act. On appeal, the higher court examined the evidence, noting the victim’s testimony did not explicitly confirm penetrative sexual assault and medical evidence was inconclusive. The court held that while the prosecution failed to prove the major offence under Section 4, it established the minor offence of aggravated sexual assault and attempted penetrative assault under Sections 9(i) r/w.10 and 4 r/w.18 of the POCSO Act. Accordingly, the conviction under Section 4 was modified, and the appellant was sentenced to five years rigorous imprisonment and a fine for each of the two offences, with sentences to run concurrently and credit for time already served.
4. Conclusion:
Appeal Allowed |
| Judgment :- |
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(Prayer: Criminal appeal filed under Section 374(2) of Cr.P.C., to call for the records pertaining to the impugned judgment in Special S.C.No. 21 of 2020 dated 03.09.2022 on the file of the Special Court for Prevention of Children from Sexual Offences Act cases, Virudhunagar camp @ Srivilliputhur and set aside the same by allowing this appeal and acquitting the appellant.)
P. DHANABAL , J.
1. Challenging the conviction and sentence rendered by the Special Court for Prevention of Children from Sexual Offences Act cases, Virudhunagar camp @ Srivilliputhur in Special S.C.No.21 of 2020 dated 03.09.2022, the present criminal appeal has been filed by the appellant.
2. The trial Court has convicted the appellant as follows:
| Penal Provisions | Sentence of Imprisonment | Fine Amount | | 4 of POCSO Act | Life Imprisonment | Rs.10,000/- i/d to undergo one year simple imprisonment |
3. The victim is aged about 16 years and was working in a private garments and she used to return home at about 10.00 pm., after completion of work. While so, on 06.12.2013 at about 10.00 pm., after completion of work she was walking towards Aruppukottai Velmurugan colony at that time the friend of the brother of the appellant called her and thereafter he followed and pulled her shawl and she raised alarm. At the time he closed her mouth through shawl and took her to the newly constructed building which is situated opposite to the Offguard Church where he committed penetrative sexual assault and the victim also sustained injuries on her right hand and nail marks on her hands. After shouting when she came out from the building her mother and Pandiammal came there and the victim narrated about the incident to them. Thereafter the complaint /Ex.P.1 was lodged by her mother before the respondent police and based on the said complaint, First Information Report/Ex.P.6 was registered in Crime No.40 of 2013 for the offences under Sections 376, 506(i) of IPC and Section 4 of POCSO Act. Thereafter the Investigation Officer went to the place of occurrence prepared observation mahazhar/Ex.P.2 and rough sketch/Ex.P.6. Thereafter he sent the victim for medical examination and he obtained Ex.P.3/Accident Register and he has also taken steps to record the statement of the victim under Section 164(5) of Cr.P.C. The Investigation Officer also examined the witness and obtained school certificate of the victim. After completion of investigation filed final report.
3.1. On appearance of the accused, and compliance of Section 207 of Cr.P.C., finding that the case was exclusively triable by the Court of Sessions the learned Magistrate had committed the case to the Court of Sessions and it was made over to the Special Court for Prevention of Children from Sexual Offences Act cases, Virudhunagar camp @ Srivilliputhur in Special S.C.No.21 of 2020 for trial.
3.2. After filing of final report, the trial Court has framed charges for the offence under Sections 506 (I), 376 of IPC and Section 4 of POCSO Act. The above charges were read over and explained to the appellant. The appellant denied the charges and claimed to be tried.
3.3. The prosecution examined P.W. 1 to P.W.17 and marked exhibits Ex.P.1 to P.13 and no material objects were produced. After completion of prosecution witnesses the appellant was questioned under Section 313 (1)(b) of Cr.P.C., with regard to the incriminating circumstances appearing against him, he denied the same as false. On the side of the appellant one witness was examined as D.W.1 and one document Ex.D.1 was marked and Ex.C.1 and C.2 were also marked.
3.4. After analyzing the evidence and upon hearing both sides, the trial Court has convicted the appellant for the offences as stated supra. The trial Court has also acquitted the appellant for the offences under 506(i) of IPC. Aggrieved by the said judgment and conviction the present appeal has been filed by the appellant.
4. The learned counsel appearing for the appellant would submit the based on the false complaint lodged as against the accused the First Information Report was registered in Crime No.40 of 2013 for the offences under Sections 376, 506(i) of IPC and Section 4 of POCSO Act and thereafter the respondent police without proper investigation filed final report and based on the final report the trial Court has also framed charges as against the appellant. In order to prove the charges the prosecution examined P.W. 1 to P.W.17 and marked exhibits Ex.P.1 to P.13 and no material objects were produced. On the side of the appellant one witness was examined and one document was marked. Ex.C.1 and C.2 were marked. The evidence of prosecution witness are not cogent and trust worthy and thereby the prosecution failed to prove the foundational facts in respect of the commission of the offence. Further the trial Court without appreciation of evidence in a proper perspective erroneously convicted the appellant for the offence under Section 4 of POCSO Act.
4.1. P.W.1/victim has deposed about the occurrence in her evidence. She has not stated anything about the penetrative sexual assault and the medical evidence also not supported the case of the prosecution. The doctor who examined the victim has also not supported the case of the prosecution, therefore the prosecution has failed to prove the foundational facts for the commission of offence of penetrative sexual assault. The evidence of P.W.3 is doubtful as he admitted only in the cross examination about the non presence of the appellant with the victim girl. P.W.6 who is said to be the attesting witness for the mahazhar has stated that he signed in the mahazhar at the police station . There is a delay in lodging the complaint/Ex.P. 1 and the same is not the conclusive proof . The prosecution has not proved the age of the victim since Ex.P.9 is not a conclusive proof to ascertain the age of the victim. The trial Court has not considered the evidence of DW.1 and Ex.D.1, the prosecution failed to prove the foundational facts in respect of commission of offence, therefore the conviction and sentence passed by the trial Court are liable to be set aside.
5. The learned Additional Public Prosecutor would submit that based on the complaint lodged by the defacto complainant who is the mother of the victim girl First Information Report has been registered and thereafter the investigation officer investigated the case and filed final report. As per the final report prima facie materials are available to constitute the offence and thereby the trial Court has framed charges as against the appellant. P.W.1 is the victim who deposed about the manner of occurrence. The evidence of P.W. 2 and P.W.3 are also corroborated with the evidence of P.W.1. The medical evidence P.W.10 also corroborated the evidence of victim. There are no discrepancies in the evidence of P.W.1 who is the victim girl. The evidence of P.W.1/victim alone is sufficient to sustain conviction . The prosecution has proved the charges levelled against the appellant and per Section 29 of POCSO Act there is a presumption in favour of the prosecution and the appellant failed to rebut the presumption. Therefore the trial Court has rightly convicted the appellant and awarded sufficient punishment and the appeal is liable to be dismissed
6. This Court heard both sides and perused the materials available on record.
7. In this case there is no dispute that the victim was aged about 16 years and she was a child on the date of occurrence. .P.W.11 has also examined the victim girl about her age and Ex.Ps.10 to 12 were marked and the appellant has not denied the age of the victim, therefore the prosecution has established that the victim girl was a minor child on the date of occurrence.
8. According to the case of prosecution the appellant committed penetrative sexual assault on the minor victim and also he threatened the victim with dire consequences, but the trial Court had acquitted the appellant for the offence under Section 506(ii) of IPC and the trial Court has also framed charges for the offence under Section 376 of IPC. As per Section 42 of the POCSO Act the appellant can be convicted only under Section 4 of POCSO Act.
9. Now the point for consideration is whether the prosecution has proved the charges levelled as against the appellant or not?
10. According to the case of prosecution on 06.12.2013 at about 10.00 pm., when the victim girl after completing her work was proceeding towards her house the appellant had taken her to the place of occurrence and committed penetrative sexual assault on the victim girl. In this context the victim was examined as P.W.1. She deposed that the appellant took her to the newly constructed building and there he laid on her and pulled her leggins and committed wrong on her and thereafter he ran away from the place of occurrence. At that time her mother along with Pandiammal made search of her and she also narrated about the occurrence to them. Immediately her mother gave a complaint to the police. Therefore from the evidence of P.W.1 it is clear that the appellant took the victim to the building but there is no evidence that the appellant had committed penetrative sexual on the victim.
11. Though in the complaint and the statement of the victim recorded under Section 164(5) of Cr.P.C., the victim has stated about the penetrative sexual assault, during her examination before the Court the victim has not stated anything about the penetrative sexual assault.
12. The medical evidence also does not reveal the commission of penetrative sexual assault. P.W.10 the doctor who had examined the victim, in her evidence stated that there are no external injuries on the private part of the victim. Further there is no mention about the possibility for recent penetrative sexual assault, thereby the prosecution has failed to prove the penetrative sexual assault. However the available evidence shows that the appellant attempted for the commission of penetrative sexual assault and also committed aggravated sexual assault. The sole evidence of victim by itself is sufficient to sustain the conviction and number of witnesses are immaterial.
13. As per the evidence of P.W.1/victim girl she sustained injuries through nail marks of the appellant. The doctor /P.W.10 also stated that there were nail marks on the hands of the victim and the Ex.P.3/accident register of the victim also reveals the same. Therefore the prosecution has established the commission of offence under Section 9(i)r/w.10 of POCSO Act and therefore the conviction rendered by the trial Court for the offence under Section 4 of POCSO Act is not sustainable, and the same is liable to be modified.
14. Further the evidence shows that the appellant committed the offence of aggravated sexual assault and also committed the offence of attempt of committing penetrative sexual assault. Therefore the conviction and judgment passed by the trial Court under Section 4 of POCSO Act is modified and the appellant is convicted for the offence under Section 9(i)r/w.10 of POCSO Act and Section 4 r/w. 18 of POCSO Act.
15. Though there is no specific charge for the offence under Section 9(i)r/w.10 of POCSO Act, since the said offence is minor offence than the major offence of Section 4 of POCSO Act this Court can safely convict the appellant for the minor offence as per Section 10 of the POCSO Act without framing specific charge. Similarly when there is charge for the offence under Section 4 of POCSO Act the Court can safely convict the appellant for the offence Under Section 18 of the POCSO Act, for the attempt of commit penetrative sexual assault.
16. The punishment for the offence under Section 10 of POCSO Act is rigorous imprisonment for a term not less than 5 years, which may extend to 7 years, along with a fine.
17. Considering the gravity of offence and background of the appellant who is aged about only 23 years at the time of occurrence and he is the family friend of the victim, this Court is inclined to award minimum punishment of five years for the offence under Section 9(i)r/w.10 of POCSO Act.
18. So far as offence under Section 4 r/w. 18 of POCSO Act is concerned the Court can award one half of the maximum sentence and the punishment for the offence under Section 4 of POCSO Act is 7 years which may extend to imprisonment for life, therefore this Court is inclined to award five year rigorous imprisonment for the offence under Section 4 r/w.18 of POCSO Act.
19. In the result, the Criminal Appeal stands partly allowed and the appellant is convicted for the offence under Section 9(i)r/w.10 of POCSO Act and sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.5000/- in default to undergo one month rigorous imprisonment. The appellant is also convicted for the offence under Section 4 r/w.18of POCSO Act and sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.5000/- in default to undergo one month rigorous imprisonment. All the sentences shall run concurrently. The period of detention already undergone by the appellant shall be given set off under Section 428 of Cr.P.C. The fine amount already paid for the offence under section 4 of POCSO Act can be adjusted to the fine payable for the offence under section 9(i)r/w.10 of POCSO Act 4 r/w 18 of POCSO Act.
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