SRINIVASAN vs STATE REP BY
- Court
- Madras High Court
CRL A Nos. 853 & 522 of 2023 and 391 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30-10-2026
PRONOUNCED ON : 05-11-2026
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
CRL A Nos. 853 and 522 of 2023 and 391 of 2024
CNR:{HCMA011325782023}
Crl.A.No.853 of 2023
Srinivasan
S/o. Dharmaraj (late),
No.113/67, P.Balasubramaniam Nagar,
Sowripalayam Road, Puliyakulam,
Coimbatore District.
(The Petitioner is confined
at Central Prison, Coimbatore)
..Appellant(s)
Vs
State Rep By
The Inspector of Police,
Ramanathapuram Police Station, Coimbatore City,
Ref.CR.No.455/2019 dt. 08.06.2019
U/s 4 of Girl Missing Non Act.
..Respondent(s)
CRL A No. 391 of 2024
CNR:{HCMA010111192024}
Rasappan @ Rasukutti
s/o. Late Kanniappan, No.24-A,
Poorandampalayam, Senjeri Pirivu,
Sulthan Pettai Sulur, Coimbatore.
..Appellant(s)
Vs
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
State Rep.By
The Inspector of Police,
Ramanathapuram Police Station, Coimbatore City.
Cr.No.455 of 2019.
..Respondent(s)
CRL A No. 522 of 2023
CNR:{HCMA010776182023}
Jose@luvice Joswa
S/o. Late Francis,
No.60/43, Erimedu, Ammankulam,
Sowripalayam Road, Coimbatore.
..Appellant(s)
Vs
State Rep By
The Inspector of Police,
Ramanathapuram Police Station,
Coimbatore City, Coimbatore.
Cr.No.455/2019.
..Respondent(s)
Criminal Appeals filed under Section 374(2) of the Cr.P.C., to call for the
records and set aside the judgment dated 27.03.2023 and consequently
acquit the appellants in Spl.C.C.No.105/2019 on the file of the learned
Sessions Judge, Principal Special Court for Exclusive Trial of Cases
under POCSO Act, Coimbatore.
For Appellant(s):
in CrlA.Nos.522/23 &
391/24
Mr.Selvakumarasami
for Mr.Gopi
in Crl.A.No.853/23
Mr. C. Arunkumar
for Mr.Deepanuday
For Respondent(s):
in all appeals
Ms.Sharada Vivek,
Additional Public Prosecutor
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
Common Judgment
These Criminal Appeals have been filed by the accused 1 to 3,
challenging the conviction and sentence imposed upon them vide
judgment dated 27.03.2023 in Spl.C.C.No.105 of 2019, passed by the
learned Sessions Judge, Principal Special Court for Exclusive Trial of
Cases under POCSO Act, Coimbatore. For the sake of convenience, the
parties are referred to as per the ranking before the trial Court.
st nd
2. The 1 accused is the appellant in Crl.A.No.522 of 2023, the 2
rd
accused is the appellant in Crl.A.No.391 of 2024 and the 3 accused is
the appellant in Crl.A.No.853 of 2023.
st
3 (i) It is the case of the prosecution that the 1 accused, who was
aged 30 years at the time of occurrence, already married twice and had
children, lured the victim girl aged 15 years and 4 months, threatened her
and forced her into a relationship; that he had promised to marry the
victim; that on 07.06.2019, the mother of the victim came to know of the
relationship and warned the victim; that thereafter, the victim went along
nd
with accused 1 to 3 and stayed in the house of the sister of the 2
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
st
accused; that the 1 accused made the victim believe that she was married
to him and committed penetrative sexual assault on several occasions;
nd st
that the 2 accused had helped the 1 accused in taking the victim to
rd st
various places; that the 3 accused, who was the lawyer for the 1
accused, had also abetted the commission of the offences by allowing the
th
victim to use his SIM card; that the 4 accused also abetted the other
accused; and that on 12.06.2019, the victim returned home and narrated
the above incidents to her mother.
(ii) It is the further case of the prosecution that the father of the
victim [PW2], had lodged a complaint [Ex.P2] on 08.06.2019, which was
registered as an FIR [Ex.P9] in Cr.No.455 of 2019, for 'Girl Missing' by
PW15. The victim was secured on 12.06.2019 and produced before the
police on the same day, and the offences were altered to Sections 366,
376(DA) of the IPC, Section 5(l) r/w 6 of the POCSO Act and Section 9
of Prohibition of Child Marriage Act, r/w 109 of the IPC. The victim
was subjected to medical examination. After examining all the witnesses,
st
PW17, the investigating officer filed the final report against the 1
accused for the offences under Sections 366 of the IPC and Section 5(l)
r/w 6 of the POCSO Act and Section 9 of Prohibition of Child Marriage
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
nd
Act; against the 2 accused for the offences under Sections 366A r/w 109
of the IPC and Section 16 r/w 17 of the POCSO Act and Section 11 of
rd
Prohibition of Child Marriage Act; against the 3 accused for the offences
under Sections 366A r/w 109 of the IPC and Section 16 r/w 17 of the
th
POCSO Act; and against the 4 accused for the offences under Section 16
r/w 17 of the POCSO and Section 109 of the IPC, before the learned
Sessions Judge, Principal Special Court for Exclusive Trial of Cases
under POCSO Act, Coimbatore.
(iii) On the appearance of the accused, the provisions of Section
207 Cr.P.C., were complied with, and the case was taken on file by the
learned Sessions Judge, Principal Special Court for Exclusive Trial of
Cases under POCSO Act, Coimbatore, as Spl.C.C.No.105 of 2019.
(iv) The trial Court framed seven charges against the accused. The
st st
1 charge was against the 1 accused under Section 366A of the IPC; the
nd nd rd
2 charge was against the 2 and 3 accused under Section 366A r/w
rd
109 of the IPC and Section 16 r/w 17 of the POCSO Act; the 3 charge
st
was against the 1 accused under Section 9 of the Prohibition of Child
th nd
Marriage Act; the 4 charge was against the 2 accused under Section 11
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
th
of the Prohibition of Child Marriage Act, 2006; the 5 charge was against
st th
the 1 accused under Section 5(l) r/w 6 of the POCSO Act; the 6 charge
th
was against the 4 accused under Section 16 r/w 17 of the POCSO Act;
th st
and the 7 charge was against the 1 accused under Section 343 of the
IPC. When questioned, the accused pleaded 'not guilty'.
(v) To prove its case, the prosecution examined 17 witnesses as
P.W.1 to P.W.17 and marked 15 documents as Ex.P1 to Ex.P15. When
the accused were questioned, u/s.313 Cr.P.C., on the incriminating
circumstances appearing against them, they denied the same. The
accused did not examine any witness or mark any document on their side.
The Section 164 Cr.P.C statement of the victim was marked as Ex.C1.
(vi) On appreciation of oral and documentary evidence, the trial
th
Court acquitted the 4 accused of all the charges and found the other
accused guilty and sentenced them as follows:
Offence under
Accused No.
Sentence imposed
Section
To undergo RI for ten years and to pay a fine of
Rs.10,000/-, in default to undergo SI for six
months.
5(l) r/w 6
POCSO Act
A1
To undergo RI for five years and to pay a fine of
366 IPC
Rs.5,000/-, in default to undergo SI for six months.
343 IPC To undergo RI for two years
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
Offence under
Accused No.
Sentence imposed
Section
To undergo RI for five years and to pay a fine of
Rs.10,000/-, in default to undergo SI for six
months.
366 r/w 109 IPC
A2
16 r/w 17
POCSO Act
To undergo RI for ten years and to pay a fine of
Rs.5,000/-, in default to undergo SI for six months.
To undergo RI for five years and to pay a fine of
366 r/w 109 IPC
Rs.5,000/-, in default to undergo SI for six months.
A3
16 r/w 17
POCSO Act
To undergo RI for ten years and to pay a fine of
Rs.5,000/-, in default to undergo SI for six months.
The sentences were directed to run concurrently.
Hence, the accused 1 to 3 have preferred the appeals challenging the said
conviction and sentence.
4. The learned counsel for the appellants in Crl.A.Nos.522 of 2023
and 391 of 2024, who are accused 1 and 2 respectively, would submit that
the evidence of the victim does not inspire confidence; that the victim's
st
evidence suggests that she had willingly gone with the 1 accused; that
st
due to tutoring she had accused the 1 accused of forcible sexual assault;
that the evidence of the doctor [PW11] who examined the victim on
17.6.2019 would show that there was no evidence of any recent forcible
vaginal sexual act and that there were no physical injuries and hence, the
st
allegation that the 1 accused had forcible sexual intercourse is false; that
nd
as against the 2 accused, there is no evidence to establish that he had
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
committed abetment of either kidnapping or offence of penetrative sexual
assault; and that, therefore, the impugned judgment is liable to be set
aside.
5. The learned counsel for the appellant in Crl.A.No.853 of
rd
2023/3 accused would submit that the allegations, even if accepted to be
rd
true, would not make out an offence of abetment as against the 3
rd
accused; that the SIM card of the 3 accused, which is said to have been
st
used by the victim to speak to the 1 accused, has not been seized; and
rd
that therefore, the impugned judgment holding the 3 accused guilty of
abetment of the offences under Section 366A of the IPC and the POCSO
Act cannot be sustained.
6. The learned Additional Public Prosecutor, per contra, submitted
that the victim's age is not in dispute; that she was born on 30.01.2004, as
per the Birth Certificate [Ex.P1]; that even assuming that the victim had
st
consented to the relationship with the 1 accused, the consent is
st
immaterial; that the 1 accused is a habitual offender; that he was already
married twice and had children, and there are 31 cases registered against
him for various offences; that the evidence of the witnesses would reveal
nd rd
that the 2 and 3 accused had abetted the commission of the offences;
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
and that therefore, no interference is called for in the impugned judgment
and prayed for dismissal of the appeals.
7. (i) As stated above, the prosecution examined 17 witnesses. PW1
is the victim, PW2 is the father of the victim, PW3 is the mother of the
victim, PW4 is the brother of the victim, PW5 is the doctor who had
st
examined the 1 accused and had issued Potency Certificate [Ex.P4].
st
PW6 is the auto driver who deposed that the victim, the 1 accused and
nd
the 2 accused travelled in his auto from Sowripalayam to Annur on
08.06.2019 at about 11 a.m.
nd
(ii) PW7 is the elder sister of the 2 accused and would speak
nd st
about the fact that the 2 accused brought the 1 accused and the victim
nd
to her house and that the 2 accused had told her that they could arrange
st
the marriage of the 1 accused to the victim; that thereafter on the next
day, she saw the victim girl with a ‘thali’, and when she questioned the
nd st
2 accused, he informed her that the 1 accused had tied that ‘thali’ to
st
the victim. She would also speak about the 1 accused and the victim
staying in her house for four days. PW8 is the husband of PW7 and
would corroborate the evidence of PW7. Since he did not support the
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
prosecution case entirely, he was treated hostile in cross-examination by
th
the prosecution as regards the role played by the 4 accused. PW9 is the
nd
son of PW7 and PW8 and is also related to the 2 accused and would
corroborate the evidence of PW7.
(iii) PW10 is a witness to the observation mahazar [Ex.P6]. PW11
is the doctor who had examined the victim girl and had issued the
medical examination report [Ex.P7] and his final opinion [Ex.P8]. PW12
is the Head Constable who had assisted the Investigating Officer in taking
the victim to the hospital. PW13 is the Constable who had taken the
victim to the Magistrate for recording her Section 164 Cr.P.C. statement.
st
PW14 is another Constable who had taken the 1 accused for medical
examination from the jail. PW15 is the Sub-Inspector who registered the
FIR [Ex.P9] for 'Girl Missing'. PW16 is the Inspector of Police, who
conducted a part of the investigation and handed over the investigation to
PW17, who, on completion of the investigation, filed the final report.
8 (i) The fact that the victim went missing from her house is spoken
to by the victim’s parents [PW2 & PW3] and her brother [PW4]. The
father [PW2] had immediately lodged the complaint, and it is the
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prosecution case that she was secured on 12.06.2019. The fact that she
stayed in the house of PW7 also has not been disputed. The evidence of
PW7 has not been discredited in any manner. The age of the victim at the
time of the occurrence, according to the prosecution, was 15 years and 4
months. Her date of birth was proved as 30.01.2004 by marking the Birth
Certificate [Ex.P1] issued by the Government of Tamil Nadu. The
defence have not disputed the date of birth of the victim. Therefore, the
fact that the victim was a minor at the time of the occurrence, has been
established by the prosecution beyond reasonable doubt and the fact that
st
1 accused, kidnapped the victim has been proved by the evidence of
PW1 to PW4 and the evidence of PW7 to PW9. The victim's Section 164
Cr.P.C. statement was not marked by the prosecution. However, it was
marked as a court document [Ex.C1].
(ii). It is the defence case that the victim's evidence cannot be relied
upon as she had made contradictory versions and that even according to
the complaint, the parents had reprimanded the victim for having a love
affair and thereafter, she went missing. The element of consent therefore
cannot be ruled out, though the victim would in her deposition state that
she was taken against her wish. The reading of the evidence of the victim
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and the contradictions elicited in her cross-examination would suggest
st
that the victim had a consensual affair with the 1 accused. The evidence
of PW7, PW8 and PW9, relied upon by the prosecution to show that the
victim had stayed in the house of PW7 also does not suggest that the
victim stayed in their house contrary to her wish. In fact PW2, the father
of the victim in his complaint had referred to his knowledge of victim's
st
relationship with the 1 accused. The evidence of PW3, mother of the
victim, is also to the same effect.
(iii) The above narration would suggest that the victim was lured
st
by the 1 accused and she was made to believe that he had a genuine love
for her and with an intention to commit penetrative sexual assault, had
kidnapped her from her house. Since the victim was admittedly a minor at
the time of occurrence, consent is immaterial. It is also not the case of a
st
romantic relationship of two innocent young minds. The 1 accused was
aged 30 years and was already a married man having children. According
to the prosecution, there are 31 cases against him though they do not form
part of the record. But in any case, the fact that the victim girl had
consented for a relationship is no defence in a case of this nature, where
the accused was aged 30 years at the time of the occurrence and was
already a married man. The evidence of PW3, PW4 and PW6, the auto
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
st
driver, who speaks about taking the victim along with the 1 accused to
Annur, and the evidence of PW7 to PW9, who would state that the victim
st
stayed with the 1 accused at their house, establishes the offences charged
and convicted by the trial court, as stated above. This Court finds no
infirmity whatsoever in the finding of guilt recorded by the Court below
st
as against the 1 accused, and hence confirmed.
nd
9 (i). As regards the role played by the 2 accused, it is seen that he
st
had accompanied the 1 accused and the victim and had provided shelter
in the house of PW7, his elder sister. The trial Court found that the
marriage has not been established, and acquitted all the accused in respect
of the offence under the provisions of the Prohibition of Child Marriage
Act.
nd
(ii) As stated above, the 2 charge as against accused 2 and 3 was
for the offences under Section 366A r/w 109 of the IPC and Section 16
st
r/w 17 of the POCSO Act. In the charge, it is stated that when the 1
accused wanted to take the victim girl from her residence, both the
accused 2 and 3 are said to have stated to the victim that if she did not go
st
voluntarily with the 1 accused, they would be forced to take her in the
bike.
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
(iii) It is not known as to how the two charges viz., Section 366A
r/w 109 of the IPC and Section 16 r/w 17 of the POCSO Act, were
clubbed under one charge. The ingredients of the two offences are
distinct and different. It is needless to say that even if there is evidence to
infer that there is abetment to commit the offence under Section 366A, it
cannot be inferred that the person abetted the commission of the offence
under the POCSO Act.
(iv) Be that as it may, to attract both offences, the prosecution's
st
case is that accused 2 and 3 compelled the victim to go along with the 1
accused. As stated above, the evidence only discloses that the victim
st st
voluntarily went along with the 1 accused. This Court has held the 1
accused guilty because, the victim was a minor. But there is no evidence
to suggest that any of them forcibly kidnapped the victim from her
residence. However, consent is immaterial, if the victim was a minor.
The evidence of PW6, the auto driver suggests that the victim went along
with the accused 1 and 2 from her residence. Therefore, the evidence at
nd
best suggests that the 2 accused abetted the commission of offence
under Section 366A of the IPC.
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
nd
(v) The charge does not state as to how the 2 accused had abetted
the commission of offence under the POCSO Act. The facts stated in the
charge do not attract the offence under Section 16 r/w 17 of the POCSO
nd
Act against the 2 accused. Even assuming that the evidence adduced in
nd st
this case shows that the 2 accused knew that the 1 accused and the
nd
victim were staying in the house of PW7, who is the elder sister of the 2
nd
accused, there is no evidence to conclude that the 2 accused abetted the
commission of the offence under Section 6 of the POCSO Act. The
evidence of PW7 to PW9 is of no avail to the prosecution to prove the
nd
said charge against the 2 accused as their role in providing shelter to the
st nd
1 accused and the victim is the same as that of the 2 accused.
nd
(vi) Therefore, this Court holds that the 2 accused is only guilty of
the offence under Section 366A r/w 109 of the IPC. He is not guilty of
the offence under Section 16 r/w 17 of the POCSO Act.
rd
10. As regards the role played by the 3 accused, this Court finds
that there is absolutely no evidence to infer the commission of either the
offence under Section 366 r/w 109 of the IPC or Section 16 r/w 17 of the
POCSO Act, except for the allegation in the chief examination of the
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
rd st
victim, stating that the 3 accused assured the 1 appellant that he would
take care of the consequences of his act. In fact, the defence had also
elicited from the investigating officer that no such statement was made
rd
against 3 accused in her earlier statement. It is also the prosecution case
rd
that the SIM card in the name of the 3 accused was used by the victim to
st
talk to the 1 accused. However, the SIM card has not been seized to
establish the said fact. There is absolutely no other evidence to infer any
rd
of the offences against the 3 accused. Therefore, this Court is of the
rd
view that the conviction against the 3 accused cannot be sustained and
consequently, the same is liable to be set aside.
11. In the result,
st
(i) the conviction and sentence imposed on the 1
accused [appellant in Crl.A.No.522 of 2023], is confirmed
st
and the Crl.A.No.522 of 2023, stands dismissed. The 1
accused, who has been granted suspension of sentence by
this Court, shall surrender before the trial Court within a
period of four weeks from the date of receipt of a copy of
this judgment, failing which, the trial Court shall take steps
to secure the appellant to serve the remaining period of
sentence.
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
nd
(ii) the 2 appellant [appellant in Crl.A.No.391 of
2024] is acquitted of the offence under Section 16 r/w 17 of
the POCSO Act and convicted for the offence under Section
366 r/w 109 of the IPC, for which, the sentence imposed by
the trial Court, is reduced to the period already undergone, as
nd
it is reported that 2 accused was in custody for about two
years and eight months, during the investigation and during
the appeal. The fine amount and the default sentence, remain
unaltered. Consequently, the Crl.A.No.391 of 2024, stands
partly-allowed.
rd
(iii) the 3 accused [appellant in Crl.A.No.853 of
2023], is acquitted of all the charges and the impugned
judgment against him is set aside. The Crl.A.No.853 of
rd
2023, is allowed. The fine amount, if any, paid by the 3
accused shall be refunded. Bail bond, if any, executed shall
stand discharged.
05-11-2026
Index: Yes/No
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
Speaking/Non-speaking order
Neutral Citation: Yes/No
ars
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
To
1. The Sessions Judge,
Principal Special Court for Exclusive Trial of cases
under POCSO Act,
Coimbatore.
2. The Inspector of Police,
Ramanathapuram Police Station,
Coimbatore City.
3. The Superintendent of Prisons,
Central Prison, Coimbatore.
4. The Public Prosecutor,
High Court, Madras.
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CRL A Nos. 853 & 522 of 2023 and 391 of 2024
SUNDER MOHAN J.
ars
Pre-delivery common judgment in
CRL A Nos. 853 & 522 of 2023
and 391 of 2024
05-11-2026
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