Appeal by convict against POCSO conviction based on inconsistencies in delay of FIR, unsigned medical prescription, lack of internal injuries, and_HANDLER_ possibility of accidental external wounds. High Court set aside conviction.
Appellant acquitted; conviction under POCSO Act set aside; fine refunded; bail bond cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl.A.No.235 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.11.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.235 of 2018
Murugesan
... Appellant
Vs
State represented by: The Inspector of Police, All Women Police Station, Tirupur-south, Tirupur City. (Crime No.14 of 2015) ...Respondent
PRAYER : Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code, to call for the entire records and set-aside his conviction made in the Judgment dated 07.03.2018 made in Spl.S.C.No.13 of 2016 on the file of the Magalir Neetimandram/Fast Track Mahila Court, Tirupur and acquit him from the offences.
For Appellant : Mr.P.M.Duraiswamy For Respondent : Mr.A.Gopinath Government Advocate (Crl. Side)
JUDGMENT
This appeal is directed as against the Judgment passed in Spl.S.C.No.13 of 2016 dated 07.03.2018, on the file of the Magalir
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Neetimandram/Fast Track Mahila Court, Tirupur, thereby convicted the appellant for the offence punishable under Sections 9(i) (m) r/w 10 of POCSO Act, 2012.
victim. He is a car driver. He used to take the children of the defacto complainant in his car, while going for a long drive. While being so, on 09.10.2015 at about 11.00 a.m., the accused had taken the victim child aged about 1 ½ years to temple to perform his father's yearly death ceremony. After returning home, the victim child had slept in his house. At about 04.00 p.m., the accused brought the child to her mother saying that she did not stop crying. Next day, on 10.10.2015, the victim child was taken to a private hospital and the Doctor found an external injury on her private part. Hence, the complaint.
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had examined P.W.1 to P.W.10 and marked Exs.P1 to P12. The prosecution
also produced M.O.1 to M.O.4. On the side of appellant, no one was examined and no document was marked. On a perusal of oral and documentary evidence, the Trial Court found the appellant guilty for the offence under Section 9(i) (m) r/w 10 of POCSO Act, 2012 and sentenced him to undergo rigorous imprisonment for a period of seven years along with fine of Rs.5000/- for each of the offences, in default to undergo rigorous imprisonment for a period of one year for each of the offences. Aggrieved by the same, the petitioner preferred this present appeal.
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lodged a complaint at about 11 a.m. Whereas, the FIR was registered only on
11.10.2015 and it revealed that the complaint was lodged on 11.10.2015 at about 09.00 a.m. He further submitted that the Doctor, who examined the victim was examined as P.W.6. She deposed that the victim was brought to the hospital on 10.10.2015 at about 12.00 noon and she found an external injury on her private part. Therefore, she referred to take the victim to a Government Hospital. She had also given a prescription and prescribed some medicines to the victim. The said prescription was marked as Ex.P5. It did not have any date and time. In fact, it did not have father's name of the victim and gender of the victim. She did not even sign in the prescription.
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had taken the victim child to temple. After returning to his home, the child had
slept in his house. Only after 04.00 p.m., she started to cry without stopping. It was informed to P.W.2 and the appellant had handed over the child to P.W.2. If at all the appellant had any sexual assault on the victim, he would not have handed over the child to P.W.2. That apart, the appellant is aged about 56 years and he is father of two children. He is the neighbour of the victim's house and also living in the same vicinity. Unfortunately, the Trial Court without considering these aspects convicted the appellant.
the victim is aged about 1 ½ years. She was sexually assaulted by the accused on 09.10.2015. On the same day, the victim never stopped crying and as such P.W.2 removed her jeans and noted that she had external injuries on her private
part. Next day, she was taken to the hospital of P.W.6. She found the external injury and referred her to Government Hospital. She also prescribed medicines and the prescription was marked as Ex.P5. Accordingly, the victim was administered medicines. The victim was referred to Government Hospital and Accident Register was registered by P.W.5. She also issued wound certificate, which was marked as Ex.P4. The wound certificate revealed that the victim
https://www.mhc.tn.gov.in/judis Page 5 of 11
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sustained external injuries. Therefore, the accused had committed penetrative sexual assault on the victim, since he only had taken the victim to temple on 09.10.2015. Immediately, after returning home, the victim did not stop crying and found that she had external injuries on her private part. The Doctor, who initially examined the victim was examined as P.W.6 and the Doctor, who had issued wound certificate was examined as P.W.5. Therefore, the prosecution categorically proved the case and the Trial Court rightly convicted the appellant.
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house. Later on, he found that the child did not stop crying and as such immediately it was informed to the victim's mother i.e., P.W.2. Thereafter, P.W.2 removed the victim's jeans pant and noticed that she had laceration wound on her private part. She thought that some ant would have bite and she called P.W.1. Next day, the victim was brought to P.W.6. The Doctor examined the victim and found that the victim had laceration wound on her private part. Therefore, the victim was referred to Government Hospital. The said Doctor was examined as P.W.6.
“10/10/2015k; njjp ehd; kUj;Jtkidapy; ,Ue;j nghJ kjpak; Rkhu; 12 kzpf;F nky; rpthde;jk; kw;Wk; g[dpjh mtu;fsJ kfs; nahrpjh xU taJ gj;J khjk; Md FHe;ijia miHj;J te;jhu;fs;/ me;j FHe;ijrpWePu; fHpf;Fk; nghJ mGtjhf Twpdhu;fs;/ nkYk; vd;dplk; tUtjw;F Ke;ija ehspypUe;J gpwg;g[Wg;gpy; if itj;jthW MGjjhf Twpdhh;fs;/ ehd; FHe;ijia gupnrhjpj;jnghJ gpw;gg[Wg;gpy; fPuy;fs; ,Ue;jJ/ me;j fPuy;fis ghu;j;jnghJ ghypay; td;Kiwahf ,Uf;Fk; vd;W re;njfj;jpd; ngupy; mtu;fis muR kUj;Jtkidf;F bry;YkhW gupe;Jiuj;njd;/ me;j FHe;ijf;F ehd; tH';fpa kUj;Jt gpu!;fpupg;!d; m/jh/rh/M.5 MFk; Ma;thsu; vd;id tprhupj;jhu;”/
at about 12.00 noon. Whereas, P.W.1 who had brought the child to P.W.6 deposed that on 10.10.2015, the victim was taken to the hospital in the early morning and after a suggestion by P.W.6, he lodged a complaint on the same day.
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13.Admittedly, the victim girl was aged about 1 ½ years at the time of occurrence. She is a young tender child and it is not possible for a penetrative sexual assault, since there was no injury on her interior part of vagina. Even according to the case of the prosecution, there was a laceration wound on her external part of vagina. It could have happened while fures and also possible for bite of ant. Admittedly, the appellant is also a neighbour and living in the same vicinity of the victim's house. He also used to take the children while he is going for a long ride. There was no complaint earlier to the occurrence. Therefore, the prosecution failed to bring home the charges. That apart, after
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reference to the Government Hospital by P.W.6, the victim was taken to the Government Hospital, Tiruppur. P.W.5 had examined the victim and found a laceration wound on her private part. However, she found no injury on her interior part of vagina and no other injuries. She recorded the Accident Register, which was marked as Ex.P3. Ex.P3 also revealed that no time was mentioned except the date. She also issued wound certificate which was marked as Ex.P4. It was in the hand written form. No Government hospital would issue a wound certificate in a hand written form. There is a format for wound
certificate. Further, even according to P.W.5, there was no other injuries.
14. The injuries found in the victim is as follows,
“2 superficial laceration in 1 cm and 0.50 (scratch marks) over the external genitalia below the posterior fourchette. No other injuries, no injury over any hymen intact, no bleeding or discharge”
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04.11.2022
Speaking order/Non-speaking order Index :Yes/No Internet :Yes/No
mn
To
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G.K.ILANTHIRAIYAN, J.
mn
Crl.A.No.235 of 2018
04.11.2022
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3 issues framed by the court
Whether the prosecution proved penetrative sexual assault beyond reasonable doubt given the lack of internal injuries and inconsistencies in medical evidence?
Whether discrepancies in timing of hospital examination, FIR registration, and the unsigned prescription render the prosecution case unreliable?
Whether the conviction should be set aside due to mechanical application of law without considering exculpatory evidence?
2 provisions across 2 enactments
Murugesan
State represented by The Inspector of Police
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
