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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. VELMURUGAN, J.
Rajendran & Ors. - Appellants
Versus
The State, rep. by Inspector of Police, All Women Police Station, Namakkal - Respondent
Crl. A. Nos. 762 of 2018 & 292 of 2019
Decided On : 25-03-2021
Prohibition of Child Marriage Act - Section 9 - POCSO Act - Sections into 366, 366 r/w 109, 366 r/w 114 and Section 5(l) r/w 6 and 17 – Indian Penal Code,1860 - Section 366(A) – Criminal Procedure Code - Section 207 - Guilty and convicted - Rigorous Imprisonment – Appeal Against conviction - birth certificate - Respondent Police have registered a case in Crime for offence under Section 366(A) IPC against the appellants on the complaint (Ex.P1) given by the mother of the victim child (PW1) - During investigation, the respondent police altered Section into 366(A) IPC and Sections 3 r/w 4 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as 'POCSO Act') and after completing the investigation, again altered - Held, As far as the offence under Section 5(1) r/w 6 of POCSO Act is concerned, neither during the statement recorded under Section 164 Cr.P.C victim girl has stated that she was subjected to repeated penetrative sexual assault nor in the complaint it has been stated that she was subjected to penetrative sexual assault, however only during chief examination she has stated that she was subjected to repeated penetrative sexual intercourse, i.e., improvisation and the Doctor (PW13) who examined the victim child has also not opined that there was a recent sexual assault and she was not in a position to give a opinion that the victim girl was recently subjected to sexual assault – Therefore offence committed by A1 would fall under Section 3(a) of the POCSO Act, which is punishable under Section 4 of POCSO Act and not under Section 5(l) r/w 6 of POCSO Act as observed by the learned trial Judge - In such view of the matter this Court finds that the prosecution has not proved their case beyond all reasonable doubt for offence - Appeals are dismissed
JUDGMENT :
Both Criminal Appeals have been filed against the conviction and sentence imposed by the learned Sessions Judge (Fast Track Mahila), Namakkal in Special C.C.No.38 of 2016, dated 20.11.2018.
2. The respondent Police have registered a case in Crime No.78 of 2016, for offence under Section 366(A) IPC against the appellants on the complaint (Ex.P1) given by the mother of the victim child (PW1). During investigation, the respondent police altered Section into 366(A) IPC and Sections 3 r/w 4 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as 'POCSO Act') and after completing the investigation, again altered the Sections into 366, 366 r/w 109, 366 r/w 114 and Section 5(l) r/w 6 and 17 of POCSO Act and Section 9 of Prohibition of Child Marriage Act and laid a charge sheet before the learned Sessions Judge, (Fast Track Mahila), Namakkal and the same was taken on file in Special C.C.No.38 of 2016.
3. After completing the formalities under Section 207 Cr.P.C., since there was a prima facie material to frame charges against the appellants, the learned Sessions Judge, farmed charges as follows:-
| Accused | Conviction and Sentence |
| A1 | (i) For offence under Section 366(A) IPC to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.2,000/-, in default to undergo 6 months Rigorous Imprisonment.
(ii) For offence under Section 9 of the Prohibition of Child Marriage Act to undergo 1 year Rigorous Imprisonment.
(iii) For offence under Section 5(l) r/w 6 of POCSO Act to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.3,000/-, in default to undergo 8 months Rigorous Imprisonment. |
| A2 to A4 | (i) For offence under Section 366(A) r/w 109 IPC, to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.2,000/- each, in default to undergo 6 months Rigorous Imprisonment.
(ii) For offence under Section 5(l) r/w 6 r/w 17 of POCSO Act to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.3,000/-, in default to undergo 8 months Rigorous Imprisonment. |
| A5 | For offence under Section 5(l) r/w 6 r/w 17 of POCSO Act to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.3,000/-, in default to undergo 8 months Rigorous Imprisonment. |
4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the learned Sessions Judge found the appellants/accused guilty and convicted and sentenced as follows:-
Accused Conviction and Sentence
A1 (i) For offence under Section 366(A) IPC to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.2,000/-, in default to undergo 6 months Rigorous Imprisonment.
(ii) For offence under Section 9 of the Prohibition of Child Marriage Act to undergo 1 year Rigorous Imprisonment.
(iii) For offence under Section 5(l) r/w 6 of POCSO Act to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.3,000/-, in default to undergo 8 months Rigorous Imprisonment.
A2 to A4 (i) For offence under Section 366(A) r/w 109 IPC, to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.2,000/- each, in default to undergo 6 months Rigorous Imprisonment.
(ii) For offence under Section 5(l) r/w 6 r/w 17 of POCSO Act to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.3,000/-, in default to undergo 8 months Rigorous Imprisonment.
A5 For offence under Section 5(l) r/w 6 r/w 17 of POCSO Act to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.3,000/-, in default to undergo 8 months Rigorous Imprisonment.
5. Challenging the above said Judgment of conviction and sentence, the appellants have filed the present appeals before this Court.
6. For the sake of clarity, the appellants are referred to as accused as per their ranks in the Sessions Case in Special C.C.No.38 of 2016.
7. The learned s
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