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2025 Supreme(Online)(Mad) 47825
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. ILANTHIRAIYAN, J
Chellappan – Appellant
Versus
The State Rep by The Inspector of Police, All Women Police Station, Ammapettai, Salem District – Respondent
Crl.A.No.227 of 2024 | Spl.S.C.No.18 of 2020
For the Appellants/Petitioners: Mr.E.Kannadasan
For the Respondents:Mr.A.Gopinath Government Advocate (Crl.Side)
The court modified the appellant's conviction from aggravated penetrative sexual assault to lesser charges due to insufficient evidence supporting the original conviction.
Headnote:(A) Protection of Children from Sexual Offence Act, 2012 - Sections 5(m), 6, 7, and 8 - Criminal Appeal against conviction under POCSO - Appellant convicted based on inconsistent evidence and a lack of physical evidence supporting penetrative assault. - The prosecution failed to prove sexual assault beyond reasonable doubt; therefore, the conviction under 5(m) r/w 6 is modified to under Sections 7 and 8. (Paras 2, 4, 9, 11)
(B) Criminal Procedure Code, 1973 - Section 164 - The method for recording statements of the victim deemed inconsistent with the charges made - Proper evaluation of delay in complaint and lack of corroborative evidence undermines the trial court's findings. (Paras 4, 8)
Facts of the case:
Appellant was convicted for aggravated penetrative sexual assault under POCSO based on accusations from a victim who did not reveal the offense immediately after it allegedly occurred. The trial court relied on testimonies indicating inconsistency in the victim's statements and strategic delays in disclosure.
Findings of Court:
The court found no conclusive evidence supporting the claim of penetrative sexual assault; the conviction was modified to a lesser charge under Sections 7 and 8.
Issues: The core issues revolved around the credibility of witness testimonies and physical evidence evaluation, particularly regarding the amended definitions of sexual assault under POCSO.
Ratio Decidendi: The court highlighted the need for substantial proof beyond reasonable doubt in criminal cases, which was not established in this case; therefore, the judgment from the trial court could not be upheld.
Result: The appeal partly allowed; the conviction was modified.
| Table of Content |
|---|
| 1. conviction for sexual assault under pocso act discussed. (Para 1 , 2) |
| 2. arguments concerning evidence and credibility of witness testimonies. (Para 3 , 4) |
| 3. evaluation of physical evidence and the legality of conviction. (Para 6 , 7 , 8 , 9 , 10) |
| 4. court's ruling on the insufficiency of evidence. (Para 11) |
| 5. final decision modifying the conviction. (Para 12) |
JUDGMENT
This Criminal Appeal is directed as against the judgment passed in Spl.S.C.No.18 of 2020 dated 06.06.2022 on the file of the learned Sessions Judge, Special POCSO Court, Salem District thereby convicting the appellant for the offence punishable under Section 5(m) r/w 6 of Protection of Children from Sexual Offence Act, 2012 , [for brevity, hereinafter referred to as POCSO Act] and sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of six months.
2. The case of the prosecution is that the victim is residing four houses next to the house of the appellant. The victim was friend and playmate to one Meena, who is none other than the sister-in-law of the appellant and therefore, the appellant was known to the victim and her family members. While being so, on 23.04.2019, at about 1.00 P.M., when the appellant saw the victim going to the neighbour's house to get cool water, he called the victim into his house with an intention to cause sexual assault on her. Thereafter, the victim was taken to the accused house and the accused removed her clothes and made her nude and committed aggravate penetrative sexual assault on the victim girl. The appellant also threatened the victim not to disclose the same to anybody. On the complaint lodged by the defacto complainant, the respondent registered FIR in Crime No.9 of 2019 for the offence punishable under Section 5(m) r/w 6 of POCSO Act. After completion of investigation, the respondent filed final report and the same was taken cognizance by the trial court in Spl.SC.No.18 of 2020.
3. On the side of the prosecution, they examined P.W.1 to P.W.12 and marked exhibits Ex.P1 to Ex.P.22. The prosecution also produced material objects i.e. M.O.1. On the side of the appellant, no one was examined and no documents were marked. On perusal of oral and documentary evidence, the trial court found the appellant guilty for the offence under Section 5(m) r/w 6 of POCSO Act, 2012 and sentenced him to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months. Aggrieved by the same, the present Criminal Appeal has been filed by the appellant.
4. The learned counsel appearing for the appellant would submit that the trial court convicted the appellant on the basis of inconsistent evidence of P.W.1 and P.W.2. The victim girl was examined as P.W.2, her mother was examined as P.W.1 and victim girl's father was examined as P.W.3. The Doctor, who examined the victim deposed as P.W.8, even according to the Doctor, there were no symptoms of penetrative sexual assault on the victim in the hands of the appellant. The learned counsel also relied upon the statement recorded under Section
164 of Cr.P.C ., and indicated that there was no allegation of aggravated penetrative sexual assault. Further, the alleged occurrence took place on 23.04.2019, however, the trial court convicted the appellant on the basis of the Amended Act, which came into effect from 16.08.2019.
5. Per contra, the learned Government Advocate (Crl.side)
appearing for the respondent/police submitted that the victim girl was aged about only 12 years on the date of occurrence. When the victim girl was proceeding to get cold drinking water from her sister's house, which is situated four house next to her house and on crossing the appellant house, he pulled her hands into his house, after closing her mouth by cloths tied both her legs and hands and removed her dress and he had committed penetrative sexual assault on
