Eswaran vs The Inspector of Police
- Court
- Madras High Court
CRL A(MD) No. 11 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 13-10-2026
PRONOUNCED ON : 2710-2026
CORAM
THE HON'BLE MR.JUSTICE S.KARTHIKEYAN
CRL A(MD) No. 11 of 2020
CNR:{HCMD011097812019}
1. Eswaran
2. Bharathi
..Appellants
Vs
State represented by,
The Inspector of Police,
Cumbam North Police Station,
Theni District.
(Crime.No. 477 of 2015)
..Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of Cr.P.C., to set
aside the order passed by the District Fast Track Mahila Court, Theni in
Spl.S.C.No.04 of 2016, dated 06.09.2019 and allow this Criminal Appeal.
For Appellant : Mr. K.Prabakaran
For Respondent : Mr. G.Ganesh Kumar,
Government Advocate (Crl. Side)
*
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JUDGMENT
This Criminal Appeal is directed against the judgment of
conviction and sentence passed by the Fast Track Mahila Court, Theni, in
Spl.S.C. No. 4 of 2016, dated 06.09.2019.
2. On a careful perusal of the records, it is found that on
11.10.2015, at about 17.00 hours, P.W.15, Mr. Sultan Basha, the then
Sub-Inspector of Police, Cumbum North Police Station, received Ex.P1
complaint from P.W.1 Vahitha and registered Ex.P7 First Information
Report in Crime No. 477 of 2015, for the offences punishable under
Sections 6 and 17 of Protection of Children from Sexual Offences Act
(POCSO Act). He forwarded the First Information Report and the
original complaint to the learned Judicial Magistrate, Uthamapalayam,
and handed over a copy of the First Information Report to the Inspector
of Police for investigation.
3. P.W.16 Kumaresan, the then Inspector of Police, Cumbum
North Police Station, took up the investigation of the said case on
11.10.2015. At about 18.00 hours, he proceeded to the place of
occurrence and prepared Ex.P2 Observation Mahazar and Ex.P8 Rough
Sketch in the presence of P.W.6 A0bbas and Jamal Mydeen. Thereafter,
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he examined P.W.1 Vahitha, P.W.2, the victim girl, P.W.3 Subani,
P.W.11 Nelofer Pichaiammal, Thirishath Begum, and P.W.5 Ushman and
recorded their statements. He also examined the Woman Inspector of
Police who had recorded the statement of the victim and recorded her
statement. Further, he examined the Sub-Inspector of Police who had
registered the First Information Report and recorded his statement.
4. Thereafter, on 11.10.2015, at about 20.00 hours, he arrested the
Accused near Thanga Vinayagar Temple, Cumbum and caused him to be
remanded to judicial custody. On 12.10.2015 he sent the victim for
medical examination through Woman Police Constable No.2204. He
examined Dr. Juliana Jayanthi, who had conducted the medical
examination of the victim, and recorded her statement. He also examined
the Headmaster of the school in which the victim study and recorded his
statement.
5. On 13.10.2015, he produced the victim before the Child
Welfare Committee, and thereafter, she was handed over to her parents.
On 15.10.2015, pursuant to the orders of the Court, he produced the first
Accused for medical examination. He examined the Head Constable/
Iyyappan, and Manikandan, who had produced the Accused for medical
examination, and recorded their statements. He also examined Dr. Arun
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Kumar, who had conducted the medical examination of the first Accused,
and recorded his statement.
6. On 16.10.2015, the victim was produced before the learned
Judicial Magistrate, Theni, and her statement under Section 164 of the
Code of Criminal Procedure was recorded. He examined Woman Police
Constable Aarthi and the learned Judicial Magistrate Shri.Vidhya and
recorded their statements. Upon completion of the investigation, he laid
the final report before the Special Court constituted under the POCSO
Act.
7. The trial Court has taken cognizance of the case in Special S.C.
No.4 of 2016 and issued summons to the Accused. Upon their
appearance, copies of the documents relied upon by the prosecution were
furnished to them under Section 207 of the Code of Criminal Procedure.
8. After hearing both sides, charges were framed against the First
Accused for the offence punishable under Section 6 of POCSO Act and
as against the Second Accused for the offence punishable under Section 6
r/w Section 17 of POCSO Act. The charges were read over and explained
to the Accused, which they denied. Therefore, they were tried by the Trial
Court.
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9. On the side of the prosecution, P.W.1 to P.W.16 were examined
and Ex.P1 to Ex.P8 were marked. Upon closure of the prosecution
evidence, the incriminating circumstances appearing in the evidence
against the Accused were put to them under Section 313(1)(b) of the
Code of Criminal Procedure. The Accused denied the same as false. They
stated that they have witnesses to examine on their side; however, no
witness was examined on behalf of the defence. Therefore, the defence
evidence was closed.
10. After hearing both sides, the Trial Court has found the First
Accused guilty of the offence punishable under Section 6 of POCSO Act
and sentenced him to undergo ten years of rigorous imprisonment and to
pay a fine of Rs.10,000/-, in default, to undergo six months of simple
imprisonment. The Second Accused was convicted for the offence
punishable under Section 6 of POCSO Act and sentenced to undergo ten
years of rigorous imprisonment and to pay a fine of Rs.10,000/-, in
default, to undergo six months of simple imprisonment. The Second
Accused was further found guilty of the offence punishable under Section
17 of POCSO Act and sentenced to undergo ten years of rigorous
imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo six
months of simple imprisonment.
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11. Aggrieved by the said conviction and sentence, the appellants
have preferred the present appeal before this Court. The learned counsel
for the appellants and the learned Government Advocate (Criminal Side)
appearing for the State were heard. The records of the Trial Court were
called for and perused.
12. Point for Determination:-
Whether the conviction and sentence imposed on the appellants by
the Trial Court are sustainable?
Answer:-
13. On a perusal of the records, it is found that it is the case of the
prosecution that the victim girl was aged about 13 years and was studying
th
8 standard at the Municipal Girls Higher Secondary School, Cumbum.
Both the Accused were residing in her neighbourhood. The First Accused
allegedly followed the victim girl whenever she went to school, spoke
affectionately to her, and offered her gifts and chocolates. He allegedly
took her to the house of P.W.11, who was a friend of the victim girl, and
committed penetrative sexual assault on her on several times.
14. It is further alleged that the First Accused called the victim girl
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for further sexual intercourse. When she refused, he threatened her by
stating that he had videographed their sexual acts and would publish the
video on the internet if she did not have sexual intercourse with him. By
way of such intimidation, the First Accused allegedly committed
penetrative sexual assault on the victim girl at her friend's house prior to
three months from 11.10.2015. The Second Accused abetted the First
Accused in the said crime. Therefore, the actions of the First Accused are
punishable under Section 6 of POCSO Act and the actions of the Second
Accused under Section 6 r/w Section 17 of POCSO Act. To substantiate
the said case, the prosecution examined P.W.1 to P.W.16 and marked
Ex.P1 to Ex.P8.
15. On a careful perusal of the evidence of the prosecution
witnesses, it is found that the mother of the victim girl was examined as
P.W.1. She, in her evidence, deposed that she had two children, the elder
one is the victim girl and a younger son. She further deposed that the
Accused were known to her and were residing in her neighbourhood.
16. P.W.1 further deposed that the First Accused offered gifts and
chocolates to her daughter, expressed his love for her and forced her. She
stated that, when nobody was present, he injected the victim girl with
sedatives and, after she became unconscious, the First Accused and the
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victim girl were together. The incident was videographed and the victim
girl was threatened by showing her the video. Being frightened, the
victim girl informed P.W.4 Dilsath, who, in turn, informed P.W.1 and her
husband. Thereafter, P.W.1 and her husband lodged Ex.P1 complaint
with the police.
17. The victim girl was examined as P.W.2. She, in her evidence,
deposed that, while she was proceeding to school, the First Accused told
her that he loves her and gave her chocolates. She further stated that,
when she had gone to the house of P.W.11, the First Accused came there
and tortured her. P.W.11 allegedly injected a vitamin injection to her,
following which she became unconscious, and the Accused misused that.
She stated that the incident was videographed and that she was threatened
with the video. She did not know how the video had been taken.
18. The victim girl further deposed that the First and Second
Accused threatened her. She informed about the same to her maternal
aunt, P.W.4 about the same. P.W.4, in turn, informed the mother and
father of the victim girl. Thereafter, they lodged a complaint with the
police. The victim girl was taken to the hospital, and her statement was
recorded by the learned Judicial Magistrate.
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19. P.W.3 Subhani, in his evidence, deposed in line with the
evidence of P.W.1. P.W.4/Dilsath deposed that the victim girl was aged
about 13 years and was the daughter of her brother-in-law. The said girl
had been subjected to abuse by the Appellant/Easwaran and Bharathi.
According to her, the First Accused informed the victim girl that he loves
her and established sexual relationship with her. He videographed the
same, showed the video to her, and threatened that he would publish it on
the internet if she did not come. On 10.10.2015, the victim girl informed
P.W.4 about the incident. P.W.4, in turn, informed her husband. Both of
them thereafter informed P.W.1 and P.W.3. All four of them went to the
Cumbum North Police Station and lodged a complaint. P.W.5 the brother
of P.W.3 and husband of P.W.4, deposed in line with the evidence of
P.W.4.
20. P.W.6 Abbas, one of the witnesses to the Observation
Mahazar, in his evidence, deposed that on 11.10.2015, at about 18.00 to
18.15 hours, the Sub-Inspector of Police, Cumbum North Police Station
came to the place of occurrence and prepared Ex.P2 Observation
Mahazar in which he and Jamal signed as witnesses.
21. P.W.7, the Head Constable, Iyappan was the person who had
taken the First Accused for medical examination.
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22. P.W.8. Ananda Mohan, the Headmaster of the Municipal Girls
Higher Secondary School, Cumbum, issued Ex.P3 School Certificate.
According to the Certificate the date of birth of the victim girl is
07.06.2002.
23. P.W.9 Dr. Juliana Jayanthi, deposed that on 12.10.2015, while
she was working as a Professor at the Government Medical College
Hospital, Theni, K.Vilaku., the victim girl was produced before her by
Woman Police Constable/Aarthi. Upon examination, she found that the
vagina of the victim girl admitted one finger with difficulty and that her
hymen was not intact. The victim girl did not complain of any pain.
24. P.W.9 had answered the questions raised by the Court. In her
answers, she stated that the victim girl was aged between 12 and 14 years
and that her hymen was not intact and had ruptured. She further stated
that the rupture of the hymen discloses sexual intercourse. However, she
could not state whether the victim girl had been subjected to sexual
intercourse for past three months or not. In this connection, she issued
Ex.P4 Medical Report.
25. P.W.10, the Inspector of Police, examined the victim girl on
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11.10.2015 and recorded her statement. P.W.11, the friend of the victim
girl, did not support the case of the prosecution and turned hostile. In her
cross-examination, she denied the statement given to the police.
26. P.W.12 Dr. K. Arun Kumar, conducted the potency test on the
First Accused. Upon medical examination, he opined that the First
Accused was potent and capable of committing sexual intercourse. He
further stated that there were no injuries on the private part of the First
Accused to indicate that he had sexual intercourse. In this connection, he
issued Ex.P5 Medical Report.
27. P.W.13, the learned Judicial Magistrate, Tmt.Shri Vidhya,
recorded Ex.P6, statement of the victim girl under Section 164 of the
Code of Criminal Procedure. She deposed regarding the recording of the
said statement.
28. P.W.14 Aarthi, the Woman Police Constable, deposed that she
had taken the victim girl for medical examination to the Government
Medical College Hospital at Theni, K.Vilaku on 12.10.2015.
29. P.W.15 Sultan Basha, the Sub-Inspector of Police, registered
the First Information Report, while P.W.16 was the Investigating Officer.
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P.W.16 deposed regarding the preparation of the Observation Mahazar
and Rough Sketch, recording of the statements of the witnesses, arrest of
the Accused, medical examination of the Accused and the victim girl,
collection of the age certificate of the victim girl, recording of the victim
girl's statement under Section 164 of the Code of Criminal Procedure, and
filing of the final report before the Court.
30. On a careful perusal of the evidence projected on the side of the
prosecution, it is found that the alleged occurrence took place at the house
of P.W.11, who was none other than the friend of the victim girl.
However, P.W.11 did not support the case of the prosecution and
completely turned hostile. Even during her cross-examination, the
prosecution could not extract anything in its favour.
31. The case of the prosecution entirely rests on the evidence of the
victim girl. On going through the evidence of the victim, it is found that
she deposed that, while she was proceeding to school, the First Accused
told her that he loves her and offered her chocolates. She further stated
that, when she went to the house of P.W.11, the First Appellant came
there and tortured. According to her, P.W.11 injected a vitamin injection
to her, following which she became unconscious. According to her, she
was misused and video was taken, and that the Accused threatened her by
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showing the video. She informed P.W.4 about the incident.
32. From the evidence of the victim girl, it is found that as per her
version, the First Appellant had forged relationship with the victim girl
by saying that he loves her. He allegedly videographed their intimate
relationship and threatened to publish the video on the internet if she did
not subject herself to his sexual demands.
33. However, no such video was recovered from the First
Appellant. During his cross-examination, the Investigating Officer
admitted that he had not recovered the mobile phone of the appellant.
Therefore, the learned counsel for the appellant contended that an adverse
inference has to be drawn as against the prosecution. This Court found
that when the case itself is based on the premises that the appellant had
compelled her cooperation for his sexual demands by threatening to
publish the video recorded by him. The non-recovery of the mobile phone
and the non-production of the alleged videograph would be fatal to the
case of the prosecution. Therefore, the prosecution has failed to prove
that the First Appellant had videographed the alleged intimate
relationship between the victim girl and the Appellant himself.
34. Further, P.W.2, the victim girl, did not depose that the First
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Appellant had subjected her to penetrative sexual assault. According to
her, she became unconscious, a video was taken, and she was threatened
with the said video.
35. Though the learned Government Advocate (Criminal Side)
contended that the medical evidence disclosed that the hymen of the
victim girl was ruptured, on a perusal of the evidence of P.W.9/Dr.
Juliana Jayanthi, it is found that the vagina of the victim girl admitted one
finger with difficulty. If the victim girl accustomed to sexual intercourse
for the past three months, as alleged by the prosecution, her vagina would
have admitted one finger easily or even admit two finger. Further, the
mere fact that the hymen was ruptured does not, by itself, prove that the
victim girl had been subjected to sexual intercourse. Even P.W.9, during
her cross-examination, admitted that rupture of the hymen could occur
while a girl was engaged in activities such as long jump or as a result of
an accident. Therefore, without any substantive piece of evidence to
prove that the First Appellant was responsible for the alleged rupture, the
said medical finding cannot, by itself, be relied upon to sustain his
conviction of the Appellant herein.
36. Further, the Medical evidence being a corroborative piece of
evidence, in the absence of any evidence to show that the Appellant
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herein had committed penetrative sexual assault on the victim girl, the
medical evidence, cannot be relied upon to sustain the conviction on the
Appellant.
37. Further, the evidence of P.W.1, P.W.3, P.W.4 and P.W.5 are
only hearsay. Therefore, their evidence cannot be given any credence.
38. Though the evidence of the victim girl creates suspicion over
the First Appellant that he would have committed offence as alleged by
the prosecution, it is a settled position of law that suspicion, however
grave, cannot substitute the place of proof.
39. Further, on careful perusal of the evidence projected on the side
of the prosecution, no incriminating circumstance has been brought on
record as against the Second Appellant, to prove his involvement in, or
abetment of, the alleged offence committed by the First Appellant.
40. Further, on careful perusal of the judgment of the Trial Court, it
is found that, though the Second Appellant was charged for the offences
punishable under Section 6 read with Section 17 of POCSO Act, the Trial
Court convicted him separately under Sections 6 and Section 17 of the
POCSO Act and imposed separate sentences for the said offences. In the
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present case, the course adopted by the Trial Court, is completely against
the canons of criminal jurisprudence.
41. Therefore, this Court is of the considered view that the findings
recorded by the Trial Court in convicting the Appellants and the
sentences imposed on them are liable to be set aside.
42. In the result, this Criminal Appeal is allowed. The conviction
and sentence imposed on the Appellants by the Trial Court in Special
S.C. No. 4 of 2016 is hereby set aside. The bail bonds executed by the
appellants shall stand discharged. The fine amount, if any, paid by them
is ordered to be refunded.
27-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
jja
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To:-
1. The District Fast Track Mahila Court,
Theni.
2. The Inspector of Police,
Cumbam North Police Station,
Theni District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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S.KARTHIKEYAN, J.
jja
Judgment made in
Crl. A(MD) No. 11 of 2020
27-10-2026
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