SETTU vs THE STATE REP BY

2026:MHC:3595
Crl.A.No.96 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.08.2026
CORAM :
The Hon'ble Mr.Justice N.SATHISH KUMAR
and
The Hon'ble Mr.Justice K.RAJASEKAR
Criminal Appeal No.96 of 2022
and
Crl.M.P.No.5752 of 2025
Settu .. Appellant
Vs.
State rep by
Inspector of Police,
Kitchipalayam Police Station,
Salem District
[Crime No.244 of 2015] .. Respondent
This Criminal appeal has been filed under Section 374(2) Cr.P.C. seeking
to set aside the conviction and sentence imposed on the appellant by the
judgment dated 12.01.2022 passed in New SSC No.41 of 2019 [Old SSC
No.18 of 2017] on the file of the Special Court for Exclusive Trial of
Caes under POCSO Act, Salem by allowing the present criminal appeal
before this Hon’ble Court and thus render justice.
For Appellant : Mr.V.Ramamurthy
for Mr.N.Umapathi
For Respondent : Mr.M.Mohamed Riyaz,
Government Advocate
(Criminal side)
- - - -
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Crl.A.No.96 of 2022

JUDGEMENT
(Judgment of the Court was made by N.SATHISH KUMAR, J .)
Challenging the judgment of conviction and sentence, dated
12.01.2022 made in New Special S.C.No.41 of 2019 [old Special
S.C.No.18 of 2017] by the Special Court for Exclusive Trial of Cases
under POCSO Act, Salem, the accused has filed this criminal appeal. By
the abovesaid judgment, the accused was convicted and sentenced to
undergo imprisonment as stated below:
Conviction Sentence
Section 363 of IPC To undergo 3 years Rigorous imprisonment
with fine of Rs.5000/-, in default to undergo 3
months Simple imprisonment.
Section 366 of IPC to undergo 3 years Rigorous imprisonment
with fine of Rs.5000/-, in default to undergo 3
months simple imprisonment.
Section 9 of the Prevention of
Child Marriage Act, 2006
To undergo 1 year Rigorous imprisonment
with fine of Rs.10,000/- in default to undergo
3 months simple imprisonment.
Section 6 of the Protection of
Children from Sexual Offences
Act, 2012
To undergo life imprisonment with a fine of
Rs.10,000/- in default to undergo 3 months
simple imprisonment
These sentences were ordered to run concurrently

2.The brief facts of the prosecution case is as follows:
2.1.The charge against the accused is that the accused has enticed a
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Crl.A.No.96 of 2022
minor girl, aged about 17 years and married her and had sexual
intercourse. P.W.1 is the mother of the victim girl. According to P.W.1,
her daughter was aged 17 years at the relevant point of time and in the
year 2015, one day her minor girl was found missing from the house, in
respect of which, a complaint Ex.P.1was given by her husband in
Kitchipalayam police station. P.W.2 is the brother of the victim minor girl
and the son of P.W.1. According to him, his sister left the house and later,
he came to know that the accused took her sister.
2.2.P.W.3 is the neighbour of P.W.1, in whose presence the
Investigating Officer has prepared the observation mahazar Ex.P.2. P.W.4
is the person who has seen the accused with the girl around 15 or 16 years
of age, on one day and thereafter, he came to know that the accused had
married that girl. P.W.5, the medical officer attached to the Salem Mohan
Kumaramangalam Government Hospital, has conducted potency test to
the accused and issued Ex.P.4, potency test certificate, Ex.P.5, age
certificate and Ex.P.6, blood group certificate. P.W.8, doctor attached to
the aforesaid hospital examined the victim girl and had issued Ex.P.9
indicating that the victim is subjected to sexual intercourse. P.W.9,
medical officer attached to the aforesaid government hospital, on request,
examined the victim girl and has issued Ex.P.10 certificate indicating that
the victim must be aged above 16 years and below 18 years.
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2.3.P.W.10, the Sub Inspector of Police, on receipt of the complaint
from one Muthu, registered the first information report Ex.P.11 and
forwarded the same to the Court and the copies to the higher officials for
investigation. P.W.11, the Inspector of Police, took up the case for
investigation and went to the place of occurrence and prepared the
observation mahazar and rough sketch and recorded the statement of
witnesses. Thereafter, on 03.07.2015, he arrested the accused and
recorded the confession statement of the accused. Then, the alteration
report Ex.P.13 was prepared and the accused was sent for judicial custody
and after completing the investigation, the investigating officer has filed
the final report against the accused.
3.After the filing of the final report by the investigating officer, on
appearance of the accused, the provisions of Section 207 Cr.P.C. were
complied with and the case was committed to the Court of Sessions in
Special S.C.No.18 of 2017 for trial.
4.The accused was charged under sections 363 and 366 IPC,
Section 9 of the Prohibition of Child Marriage Act, 2006 and Section 6 of
the Protection of Child from Sexual Offences Act, 2012. To prove the
case, the prosecution has examined 11 witnesses, namely P.W.1 to P.W.11
and marked 14 documents, namely Ex.P.1 to Ex.P.14 and no material
objects were marked.
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2026:MHC:3595
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5.On completion of the evidence on the side of the prosecution, the
accused was questioned under section 313 Cr.P.C. as to the incriminating
circumstances found against him in the evidence adduced by the
prosecution witnesses. He denied all the incriminating circumstances as
false. On the side of the defence, no evidence was recorded and no
documents were marked.
6.The trial Court, after appreciating the oral and documentary
evidence and materials on record, by judgment dated 12.01.2022, found
the accused guilty of the offences and he was convicted and sentenced, as
stated above. Challenging the same, the present criminal appeal has been
preferred.
7.The learned counsel for the appellant submitted that the trial
court has wrongly convicted the accused. The victim girl has also died at
a later point of time and that the age of the victim has not been
established. There is no evidence to show that only the accused has
enticed the victim girl. Further, there is no evidence whatsoever to
indicate that it was the accused who took the victim girl and has
committed sexual assault. That apart, without establishing the age of the
victim, the trial court, on presumption, convicted the accused.
8.The learned Government Advocate (Criminal side) submitted that
P.W.1, the mother of the victim has clearly spoken that her minor
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daughter had eloped with the accused. Unfortunately, the minor girl has
committed suicide in the house after she was traced. Therefore, she could
not be examined. The trial court has considered the fact that the minor
girl was aged below 18 year and hence, considering all the materials and
the evidence, found the accused guilty and hence, it warrants no
interference.
9.We have considered the submissions made by both sides and
perused the entire materials available on record.
10.It is the case of the prosecution that the minor daughter of P.W.1
was enticed and the accused had married her and had sexual intercourse.
Later, a case has been registered and the accused was found guilty. It is
relevant to note that the minor girl, after the FIR was filed, was traced and
handed over to her parents. In the parent’s house, she had committed
suicide during investigation. Therefore, she could not be examined. Now,
the question remains in the case is whether the charges against the
accused have been proved beyond all reasonable doubt.
11.It is to be seen that though P.Ws.1 and 2, namely mother and
brother of the victim girl, stated that the minor daughter was aged 17
th
years at the relevant point of time and she was studying 11 standard and
she was found missing from her residence which resulted in giving the
complaint Ex.P.1, the evidence of P.W.1 does not prove the exact date of
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birth of her daughter. But the fact remains that her daughter was aged 17
th
years and was studying 11 standard at the relevant point of time. The
prosecution has not even made any attempt to file the school certificate to
prove the date of birth of the minor girl. The prosecution has only relied
on the ossification test conducted by P.W.9 and the certificate issued in
this regard is Ex.P.10. P.W.9 has opined, after examination the minor girl,
that the victim is aged above 16 years and below 18 years. It is well
settled that the ossification test cannot be certain and there is always two
years error of margin on either side.
12.The Hon’ble Supreme Court in Umesh Yadav Vs. State of
Bihar reported in 2025 SCC OnLine SC 3048 has held as follows:
‘ 5. The issue as to how the age, as determined in ossification test,
is to be considered has been gone into by this Court in  Jaya
Mala  v.  Home Secretary, Government of Jammu & Kashmir 4 , in
which it has been observed that when school records or reliable
certificates are unavailable or suspected to be tampered with,
courts may rely on medical determination with a margin of error
of 2 years on the lower or higher side applied to it. ... ‘
Therefore, merely on the basis of the ossification test, the exact age
cannot be ascertained, be that as it may. The prosecution has not even
filed any other document to prove the age of the victim.
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13.The trial court has relied on an unmarked document and came to
the conclusion that the victim was minor. It is well settled that when the
document was not relied on and not marked, the trial court ought not to
have relied on the said document. But, in the case on hand, the unmarked
document was relied on by the trial court which clearly indicates the trial
court lacks the fundamental principles about the Evidence Act. When the
prosecution has not even made attempt to mark any such document,
namely the so-called birth certificate, on the basis of the copy of the
document said to have been available in the case records, the trial court
came to the conclusion with regard to the age of the minor girl without
even making any attempt to bring the said document as evidence before
the court. Therefore, the very approach of the trial court in relying on an
unmarked document in a serious offence, in our considered view, exhibits
the clear non application of mind of the trial court.
14.Further, the trial court has also relied on section 69 of the Indian
Evidence Act to prove the complaint Ex.P.1 which was given by the
father of the minor daughter, since the father has also died subsequently.
This approach of the trial court relying on section 69 of the Evidence Act,
exhibits that the trial court has not even understood the scope and ambit
of the Evidence Act. Section 69 relates to proving of the Will when there
are no attesting witnesses available. Therefore, relying on Section 69 to
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prove the complaint given by the husband of P.W.1 clearly exhibits the
non application of mind on the part of the trial court, be that as it may.
15.Even assuming that the victim is minor, absolutely there is no
evidence to show that it is only the accused who has enticed the victim
girl and they were together and the accused only had committed sexual
assault on her. There is absolutely no evidence to show that the accused
and the victim had gone together during the relevant point of time and no
witnesses were examined to prove the same. Even the evidence of P.Ws.1
and 2 only indicates that they have no direct knowledge about the accused
taking the minor girl and their evidence is only hearsay in nature. The
other evidence relied on by the prosecution does not prove the factum of
the marriage between the accused and the minor girl and they were living
together at any point of time. Therefore, merely on the basis of the
medical evidence that the victim was subjected to sexual assault, it cannot
be presumed that it was only the accused who has committed such an
offence in the absence of any direct evidence to prove the facts of
marriage or enticement of the victim by the accused. The trial court has
mechanically convicted the accused. Therefore, the charges framed by the
trial court must necessarily fail.
16.In the light of the above, this criminal appeal is allowed and the
judgment of the trial Court dated 12.01.2022 made in New Special
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S.C.No.41 of 2019 [Old Special S.C.No.18 of 2017] is set aside and the
accused is acquitted of all the charges levelled against him. Fine amount,
if any, paid by the appellant, shall be refunded to him. Consequently,
connected miscellaneous petition is closed.

(N.S.K., J.) (K.R.S., J.)
27.08.2026
Index : Yes
Speaking Order
Neutral Citation : Yes
vvk
To
1.Special Court for
Exclusive Trial of Cases under POCSO Act,
Salem.
2.Inspector of Police,
Kitchipalayam Police Station,
Salem District
[Crime No.244 of 2015]
3.The Public Prosecutor,
Madras High Court, Chennai.
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2026:MHC:3595
Crl.A.No.96 of 2022
N.SATHISH KUMAR, J.
and
K.RAJASEKAR, J.
vvk
Criminal Appeal No.96 of 2022
27.08.2026
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