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2025 Supreme(Online)(Mad) 54471
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.N.MANJULA, J
E.Anthony – Appellant
Versus
The State of Tamil Nadu, Rep by the Inspector of Police, All Women Police Station, Nanguneri, Tirunelveli District – Respondent
Crl.A(MD)No.548 of 2025|Crl.M.P(MD) No.6330 of 2025
For the Appellants/Petitioners: Mr.S.Vijayakumar
For the Respondents: Mr.R.Meenakshi Sundaram, Additional Public Prosecutor
The POCSO Act mandates a special educator's involvement for recording evidence from mentally or physically disabled minors; this requirement can be overlooked if the child can communicate effectively.
Headnote:This appeal challenges the judgment in S.C.No.39 of 2019 under POCSO Act. The case involved allegations of sexual assault against a minor by the accused on 11.09.2017, with the trial court convicting the accused based on testimonies and evidence. The main issues were the recording of the victim’s statement and allegations of bias. The court held that the victim could communicate her experience. The appeal is dismissed, confirming the lower court's judgment.
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| 1. overview of the case and background (Para 1 , 2) |
JUDGMENT
The present appeal has been filed challenging the Judgment of learned Sessions Judge, Special Court for exclusive trial of cases under POCSO Act, Tirunelveli, dated 27.03.2025 made in S.C.No.39 of 2019.
The appellant is the sole accused.
2. The case of the prosecution as it appears from the records is that on 11.09.2017 at about 02.00p.m., the accused entered into the house of victim and lifted his Dhoti and asked the victim to touch his penis and the victim refused to do so. The same was witnessed by the mother of victim and she entered a quarrel with the accused. At that time, the accused showed knife and tried to attack the mother of victim. The mother of victim pulled the knife from the accused and she got injured.
3. On receiving the complaint from the mother of victim, a case in Cr.No.9 of 2017 has been registered on 19.09.2017. After completing the investigation, charge sheet has been filed against the accused under Sections Sections 451, 506(ii) and Section 11 r/w 12 of POCSO Act. After taking cognizance of the charge sheet, copies were furnished to the accused and charges were framed against the accused under , 506(ii) and Section 11 r/w 12 of and questioned him. As the accused denied the offence and claimed to be tried, trial was conducted.
4. On the side of prosecution, 12 witnesses were examined as PW1 to PW12 and Ex.P.1 to Ex.P.19 and M.O.1 were marked. When the accused was questioned with regard to the circumstances appearing in evidence against him under Section 313(1)(b) of the Code of Criminal Procedure, for which the accused prayed for mercy. No witness was examined on the side of the accused.
5. After observing the legal mandates consequent to the completion of trial and hearing both sides and appreciating the evidence on record, the trial Court has found the accused not guilty for the offence under Section 506(ii) and found him guilty for the offence under Section 11 r/w 12 of POCSO Act along with Section 451 .
6. The learned trial Judge has convicted and sentenced the accused by imposing the following punishment:
● Undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.3,000/- in default to undergo rigorous imprisonment for a period of 6 months, for the offence under Section 11 r/w 12 of POCSO Act;
● Undergo rigorous imprisonment for a period of 1 month and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for a period of 1 month, for the offence Under Section 451 ;
● Both the sentence period shall run concurrently, and ● The remand period already undergone is ordered to be set off under Section 428 of Cr.P.C .
7. Aggrieved over that, the appellant/accused has preferred this appeal.
8. The learned counsel for the appellant submitted that the victim child is physically and mentally challenged child and her statement under Section 164 of Cr.P.C was not recorded with the assistance of special educator. He further submitted that there was some motive between the mother of victim and the accused and hence a false complaint was given against the accused.
9. Per contra, the learned Additional Public Prosecutor appearing for the respondent police categorical in his contention that the trial Judge, after viewing the oral and documentary evidence in a right perspective, convicted the accused and therefore, no interference is warranted by this Court.
10. I have given my anxious consideration to the submissions made on either side and carefully perused the records.
11. With regard to the recording the statement of victim child either while obtaining under Section 164 Cr.P.C ., or by recording it as evidence before the Court, the Court needs to follow the special provision under Section 26(3) of POCSO Act. The said provision states that if the child is having mental or physical disability, the Court shall seek the assistance of a special educator or any person familiar with the manner of communication o
