2025 Supreme(Online)(Mad) 73573

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mr Justice N. SATHISH KUMAR
KRISHNAVENI – Appellant
Versus
THE INSPECTOR OF POLICE – Respondent
Crl.A.No.437 of 2021|Crl.A.No.502 of 2021|Crl.A.No.304 of 2022

School records are authoritative for age determination of minor; medical evidence of habitual sexual intercourse sufficient for penetrative sexual assault under POCSO; identification in court by victim valid despite absence of test identification parade.

Headnote:(A) Indian Penal Code, 1860 - Sections 366A, 370(4), 373, 376(1), 376(d) r/w 109, 120B - Immoral Traffic (Prevention) Act, 1956 - Sections 3(2)(a), 4(1), 5(1), 6(1), 7(1)(a), 9 - Protection of Children from Sexual Offences Act, 2012 - Sections 4, 6, 17 - Criminal Procedure Code, 1973 - Sections 374(2), 386.

(B) Age of victim - Determination - School records (admission form, bonafide certificate) are reliable proof of age - In absence of challenge, they hold primacy - Medical opinion also consistent - Victim held to be minor aged 14 years at time of occurrence. (Paras 8)

(C) Proof of penetrative sexual assault - Medical evidence showing hymen healed and opinion that victim accustomed to sexual intercourse sufficient to prove habitual sexual assault - Absence of external injuries not fatal - Presumption under Sections 29 and 30 of POCSO Act applies. (Paras 15-16)

(D) Identification of accused - Test Identification Parade not mandatory if victim identifies accused in court and evidence is cogent - Minor discrepancy in name not fatal when victim identifies accused in court. (Paras 11-12) (E) Trafficking for sexual exploitation - Section 370(4) IPC - Proof of taking victim from one place to another for prostitution - Evidence of victim and decoy establishes trafficking. (Para 20) (F) Keeping a brothel - Section 3(2)(a) ITP Act - Not proved where house owner only testified about rental and quarrels, not about use for prostitution - Conviction under Sections 4(1), 5(1), 6(1) ITP Act set aside. (Paras 21-22) (G) Abetment of aggravated penetrative sexual assault - A1 and A2 abetted offences under POCSO by arranging customers - Conviction under Section 6 r/w 17 POCSO Act modified. (Para 22)

Facts of the case:
The victim girl, a minor, was brought by A1 and A2 from her native place to the city and kept in a rented house. They compelled her into prostitution and arranged customers including A3 and A4, who committed penetrative sexual assault on her. A police raid with a decoy customer led to the rescue of the victim and arrest of A1 and A2. Medical examination confirmed she was accustomed to sexual intercourse. The trial court convicted all accused under various IPC, ITP, and POCSO provisions. A1 and A2 appealed challenging conviction under ITP and POCSO; A3 and A4 appealed challenging identification and medical evidence.

Findings of Court:
The High Court held that the prosecution proved the age of the victim as a minor through school records. The evidence of the victim and the decoy established trafficking under Section 370(4) IPC. Medical evidence corroborated habitual penetrative sexual assault. Identification of A3 and A4 in court was reliable despite absence of test identification parade. However, the prosecution failed to prove that the house was used as a brothel under ITP Act, as the house owner did not testify to that effect. Consequently, convictions under ITP Act for A1 and A2 were set aside. Their conviction under Section 370(4) IPC and under POCSO Act for abetment of aggravated penetrative sexual assault was modified. Convictions of A3 and A4 under Section 4 of POCSO Act were confirmed.

Issues: 1. Whether the age of the victim was properly proved? 2. Whether the evidence of the victim and decoy was sufficient to prove trafficking and penetrative sexual assault? 3. Whether the identification of A3 and A4 was valid without a test identification parade? 4. Whether the prosecution proved that the house was used as a brothel under ITP Act? 5. Whether medical evidence supported the charges of penetrative sexual assault?

Ratio Decidendi: The court ruled that school records are authoritative for age determination. Medical evidence of habitual sexual intercourse, even without external injuries, is sufficient to prove penetrative sexual assault, especially with the presumption under POCSO. Identification in court by the victim, if credible, does not require a test identification parade. For an offence under ITP Act of keeping a brothel, the prosecution must adduce evidence that the premises were used for prostitution; mere rental and presence of girls is insufficient. Trafficking under Section 370(4) IPC requires proof of inducement or transportation for exploitation, which was established.

Result: Criminal appeals filed by A1 and A2 partly allowed - convictions under ITP Act set aside, sentences under IPC and POCSO modified. Appeals by A3 and A4 dismissed - convictions and sentences confirmed.

COMMON JUDGMENT

M.JOTHIRAMAN, J.

These criminal appeals filed by Accused Nos.1 to 4 as against the judgment of conviction and sentence dated 26.07.2021 made in S.C.No.37 of 2025 on the file of the Special Judge for POCSO cases, Chennai, in and by which A1 to A4 were convicted and sentenced as under:

Aggrieved over the aforesaid judgment of conviction and sentence, A1 and A2 have preferred Crl.A.No.437 of 2021, A3 has preferred Crl.A.No.502 of

2021 and A4 has preferred Crl.A.No.304 of 2022.

2. The case of the prosecution, briefly narrated, is as under:

2.1. PW1-John Victor, Inspector of Police, on recipt of information from a social worker on 14.10.2014, registered the same in the General Diary. He set up a decoy customer with consent. He gave Rs.4,000/- after noting its numbers to decoy. He sent two independent witnesses along with the decoy. On 14.10.2014 at about 15.55 hours, the said decoy contacted him over phone, as he was in Nellai Chettinadu Hotel at Priyadharshini Park Hotel. A1, A2 and the victim / PW2 were all with him.

2.2. On demand made by A1 and A2, sent the victim girl along with decoy for prostitution. He gave decoy money to them. PW1 raided the spot along with Women Sub Inspector of Police. He examined PW2, A1 and A2 and brought them to police station. He gave Special Report to the Superintendent of Police under Ex.P1.

2.3. PW2 / victim girl deposed that after the death of her mother, her father PW2 went to Chennai for his work. She initially stayed in her maternal aunt's house along with her sister and brother. After two months, they went along with her father and stayed in platform of old Moore Market. From there, she used to go to school. At that time, one Latha, PW1's aunty stated that there is no safety in the platform and called her to come with her.

Then the said Latha took PW2 into her sister's house / A1's house. While staying there she attained majority. A1 compelled PW2 to come to the house of one Geetha. The said Geetha sent PW2 for physical relationship with third parties.

2.4. Thereafter, PW2 called A1 over phone and then took her to her house. A1 called A4 and allowed him to have sexual intercourse with PW2. A3 came to the house of A1 and A1 made PW2 to have sexual intercourse with him. Likewise, A1 allowed all the customers to have sexual intercourse with PW2. On coming to know that the house owner instructed A1 to vacate the house, A1 and A2 shifted their house to Kutty Thampuran Street. One day afterwards, a man came to their house and talked with A1. Thereafter, A1 and A2 called PW2 to get ready and then two or more persons came and enquired A1 and A2. A1 requested them to stand outside. One person took photograph of PW2 in his mobile phone and afterwards, then PW2 along with A1 and A2 went to a hotel. One person took her outside of hotel and when they came out of the hotel, police took PW2 to custody. Thereafter, PW2 was taken to Kellys home and examined in the hospital.

2.5. PW2 was shifted to MCCSS Hostel, where she met one Fathima.

PW2 eloped from the said home along with the said Fathima. Fathima also used PW2 for prostitution. Fathima sent PW2 to Tuticorin on contract. After one week, PW2 returned back to Sholinganallur to the house of Fathima and then PW2 became pregnant. Thereafter, PW2 was handed over to Kellys Home in the year 2014. PW2 came statement before the Court.

2.6. PW3-Mr.Meshak – Social Worker / decoy deposed that he is working in the home for the welfare and to rescue young women used for prostitution and for their rehabilitation. On 14.10.2014, he along with Julie Jane went to the police station and gave information about A2 doing brothel. The said Julie Jane died on 29.04.2015. The complaint given by the said Julie Jane is Ex.P3. He acted as per the instructions given by PW1. PW3 called A2 over phone and asked a girl for prostitution. On instructions given by A2 at about 2.30 p.m. he went to the hotel along with 2 independent witnesses. A2 introduced PW2 and asked whether PW2 was o

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