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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.JAYACHANDRAN, J.
K.Palanisamy - Appellant
Versus
State by Inspector of Police, All Women Police Station – Respondent
Crl.A.No.722 of 2017 and Crl.M.P.No.14190 of 2017
Decided on : 11-11-2022
Criminal Appeal - Conviction under Section 366-A IPC, Section 9 of Prohibition of Child Marriage Act, 2006, and Section 5(1) r/w Section 6 of POCSO Act, 2012 - [Section 366-A IPC, Section 9 of Prohibition of Child Marriage Act, 2006, Section 5(1) r/w Section 6 of POCSO Act, 2012] - The court found the accused guilty of the charges under Section 366-A IPC, Section 9 of Prohibition of Child Marriage Act, 2006, and Section 5(1) r/w Section 6 of POCSO Act, 2012 based on the evidence and the law. The conviction and sentence for offences under Section 366-A IPC and Section 9 of the Prohibition of Child Marriage Act, 2006 were set aside, while the accused/appellant was to undergo RI of 10 years for the offence under Section 5(1) r/w 6 of POCSO Act, 2012.
Fact of the Case:
The case involved the kidnapping of a minor girl by the accused, who subsequently married her and engaged in sexual intercourse. The prosecution alleged that the accused kidnapped the minor girl with the intention of having illicit intercourse with her. The trial court found the accused guilty of charges under Section 366-A IPC, Section 9 of Prohibition of Child Marriage Act, 2006, and Section 5(1) r/w Section 6 of POCSO Act, 2012 based on the evidence presented.
Finding of the Court:
The court found the accused guilty of the charges under Section 366-A IPC, Section 9 of Prohibition of Child Marriage Act, 2006, and Section 5(1) r/w Section 6 of POCSO Act, 2012 based on the evidence and the law. The conviction and sentence for offences under Section 366-A IPC and Section 9 of the Prohibition of Child Marriage Act, 2006 were set aside, while the accused/appellant was to undergo RI of 10 years for the offence under Section 5(1) r/w 6 of POCSO Act, 2012.
Issues: The issues revolved around the age of the victim, the validity of the marriage between the accused and the minor girl, and the applicability of the charges under Section 366-A IPC, Section 9 of Prohibition of Child Marriage Act, 2006, and Section 5(1) r/w Section 6 of POCSO Act, 2012.
Ratio Decidendi: The court relied on the evidence presented, including the victim's school certificate, to determine the age of the minor girl. The court also considered the testimony of the victim and the medical evidence to establish the accused's guilt under the relevant sections of the law.
Final Decision: The court set aside the conviction and sentence for offences under Section 366-A IPC and Section 9 of the Prohibition of Child Marriage Act, 2006, while upholding the accused's guilt for the offence under Section 5(1) r/w 6 of POCSO Act, 2012, sentencing the accused/appellant to undergo RI of 10 years.
JUDGMENT :
Prayer : Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code, to set aside the order of conviction imposed in judgment dated 11.08.2016 made in Spl.S.C.No.28 of 2015 on the file of the District Magalir Sessions Court, Cuddalore by allowing this Criminal Appeal.
The Criminal Appeal is preferred by the sole accused being aggrieved by the order of conviction dated 11/08/2016 in Spl.S.C 28/2015 on the file District Magalir Sessions Court, Cuddalore.
2. The particulars of the offences and the terms of sentence imposed by the trial court are as under:-
| Convicted for the offence under Sections by the trial Court | Conviction and sentence imposed by the trial Court |
| Section 366-A IPC | Sentenced him to undergo 7 years RI and to pay a fine of Rs.1000/-, in default, to undergo 1 year RI |
| Section 9 of the Prohibition of Child Marriage Act, 2006 | Sentenced him to undergo 1 year RI |
| Section 5(1) r/w Section 6 of the Protection of Children from Sexual Offences Act, (POCSO Act), 2012 | Sentenced to undergo him to 10 years RI and to pay a fine of Rs.1000/- in default to undergo 1 year RI. |
The period of Substantive Sentence ordered to run concurrently. The period of imprisonment pending trial ordered to be set off under Section 428 of Cr.P.C.
3. The case of the prosecution:
On 03/04/2015 at about 8.00 p.m, the parents of the PW-2(victim girl) who was about 17 years old leaving her at home went to attend the Village Ayyanar Temple Festival. When they returned home at about midnight from the temple festival, they found PW-2 was missing. After searching her at all probable places found not traceable. The information gathered in the course of search revealed that the petitioner (Palanisami) aged about 37 years had kidnapped her with intention to have sex with her. Hence, police complaint Ex.P-1 was given on 07/04/2015 at about 16.00 hrs by PW-1, the father of minor girl. Based on the complaint, First Information Report [Ex.P-9] was registered in Crime No:49/2015 under Section 366-A IPC. Later, it was altered into Sections 363,365,366 A IPC and Section 5 (l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 9 of Prohibition of Child Marriage Act, 2006.
4. The trial Court, on examining the records filed along with the Final Report, framed charges for the offences under Section 366 A IPC, Section 9 of Prevention of Child Marriage Act, 2006 and Section 5(1) r/w 6 of the Protection of Children from Sexual Offences Act, 2012.
5. On appreciating the evidence of PW-1 to PW-12, the documents marked as Ex.P-1 to Ex.P-13 and the Material Objects M.O-1 to M.O-9, the trial Court has found the accused guilt of charges under Section 366(A) of IPC, Section 9 of Prevention of Child Marriage Act, 2006 and Section 5(l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012.
6. The trial Court from the testimony of the witnesses and the exhibits, has ascertained the age of PW-2 as 21/07/1997 through her School Certificate Ex.P3. The accused, 37 years old, male and married man, had enticed PW-2 to elope with him on the promise to marry her and keep her comfortable. Believing his words, on 03/04/2015 after PW-2 parents left the home to attend the Ayyanar Temple festival, the accused came to PW-2-s house and took PW-2 with him to Thiruppur. On the next day i.e. on 04/04/2015 he married her at Durgai Amman Temple. He rented a house and stayed with PW-2. Had sexual intercourse with her. On 08/04/2015 at about 8.15 am when they both were waiting to board bus at Periya Kurinchi Bus Stand, the Investigating Officer rescued the minor girl and arrested the accused. Ex P-2 is the statement of the victim girl recorded by the Judicial Magistrate III, Cuddalore on 26/05/2015 wherein the minor girl has admitted that she was a minor at the time of incident and she lo
AI
The main legal point established in the judgment is the reliance on documentary evidence, such as the victim's school certificate, and the testimony of the victim to determine the accused's guilt und....
Rape – Consent of minor has no legal sanctity.
Point of Law : Once the fact of victim being child is not proved, POCSO Act is not applicable.
The conviction in sexual offences requires credible and reliable evidence, especially regarding the victim's age, and reliance solely on secondary evidence without primary proof is insufficient.
The prosecution must establish the victim's age and the accused's intent beyond reasonable doubt in cases of sexual offences, and mere allegations without corroborative evidence are insufficient for ....
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