Partly allowed

Selvi, F/65 (A2) v. State by

Madras HC10 Nov 2022CRL A/524/2018

Case brief

AI extract

What is this about?

Two criminal appeals were filed challenging convictions in a kidnapping, child marriage, and sexual assault case. The High Court acquitted the third accused of abetting child marriage due to lack of evidence, modified the second appellant's conviction from Section 6 to Section 3 of POCSO, and dismissed the first appellant's appeal.

What did the court decide?

Conviction of third appellant acquitted; second appellant's conviction modified to Section 3 POCSO; first appellant's appeal dismissed.

Selvi, F/65 (A2) Vs State by — Dowry and Cruelty | Madras HC (2022)

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Crl.A.Nos.524 & 543 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 10.11.2022

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CORAM:

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THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

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Crl.A.Nos.524 & 543 of 2018 and Crl.M.P.No.11523 of 2018

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Selvi

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Selvi ... Appellant in Crl.A. No.524 of 2018 Mohan @ Mohanraj ... Appellant in Crl.A. No.543 of 2018

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Vs.

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The State represented by The Inspector of Police, Ammapet All Women Police Station, Salem District. (Crime No.5 of 2015) ... Respondent in both Crl.As.

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COMMON PRAYER: C riminal Appeals filed under Section 374(2) of the Code of Criminal Procedure, to set said the judgment dated 25.07.2018 made in Spl.S.C.No.38 of 2015 on the file of the learned Session Judge, Mahila Court, Salem.

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For Appellant in Crl.A.No.524 of 2018 : Mr.B.Vasudevan For Appellant in Crl.A.No.543 of 2018 : Mr.J.Franklin For Respondent in both Crl.As. : Mr.A.Gopinath Government Advocate (Crl. Side)

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https://www.mhc.tn.gov.in/judis

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Page 1 of 16

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Crl.A.Nos.524 & 543 of 2018

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COMMON JUDGMENT

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These Criminal Appeals have been filed against the order dated 25.07.2018 made in Spl.S.C.No.38 of 2015 on the file of the learned Sessions Judge, Mahila Court, Salem, thereby convicting the appellant in Crl.A.No.524 of 2018 for the offences punishable under Section 362 of IPC, Section 10 of the Prohibition of Child Marriage Act, 2006 and Section 17of Prevention of Children from Sexual Offences Act (herein after referred to as “the POCSO Act”) and also convicted the appellant in Crl.A.No.543 of 2018 for the offence under Section 10 of the Prohibition of Child Marriage Act, 2006.

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The appellant in Crl.A.No.524 of 2018 is arrayed as second accused and the appellant in Crl.A.No.543 of 2018 is arrayed as third accused. The case of the prosecution is that the minor girl was kidnapped by the second accused on 27.02.2015 at about 9.30 a.m., and had taken her to Periandichiamman temple at Athigarpatty, Udayappatty. There the first and third accused were present and the second accused compelled the victim girl to marry the first accused. On completion, the first accused also tied Thali and taken to the house of the first accused, there the third accused also present. Thereafter, the second accused compelled the victim https://www.mhc.tn.gov.in/judis Page 2 of 16

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Crl.A.Nos.524 & 543 of 2018

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girl to go to the bed room of the first accused and have physical relationship. When the victim girl refused to do so, she was threatened and compelled her to have physical relationship. When the victim refused to do the same, the first accused committed penetrative sexual assaulted on her and also they not allowed her to go out. A1 and A2 tided her and thereafter they shifted her to another house. Thereafter, she informed the same to P.W.3, who is one of her sister and also informed to child line and lodged the present complaint.

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On receipt of the said complaint, the respondent registered FIR in Crime No.5 of 2015 for the offence under Sections 5(l) , 6 of the POCSO Act and Sections 9,10,11 of the Prohibition of Child Marriage Act, 2006. After completion of investigation the respondent filed final report and the same has been taken cognizance by the trial Court in Spl.S.C.No.38 of 2015 for the offence under Section 362 of IPC and Sections 9, 10 of the Prohibition of Child Marriage Act and Sections 6 r/w 5(l), 17 r/w 16 of the POCSO Act.

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In order to bring the charges to home, the prosecution examined P.W.1 to P.W.14 an marked documents as Ex.P.1 to Ex.P.18.

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https://www.mhc.tn.gov.in/judis

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Page 3 of 16

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Crl.A.Nos.524 & 543 of 2018

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On the side of the appellants, they examined no witness and no document

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was marked. On a perusal of oral and documentary evidences, the trial Court found the guilty of all the accused for the offences under Section 362 of IPC, Section 9,10 of the Prohibition of child Marriage Act and

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Sections 6, 17 of the POCSO Act and convicted them as follows :-

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*Accused No*	*Conviction*	*Sentence*
	Section 362 of IPC.	to undergo seven years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo six months simple imprisonment.
A2	Section 10 of the Prohibition of Child Marriage Act.	to undergo two years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo six months simple imprisonment.
	Section 17 of the POCSO Act.	to undergo ten years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo six months simple imprisonment.
A3	Section 10 of the Prohibition of Child Marriage Act.	to undergo two years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo six months simple imprisonment.

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Aggrieved by the same, the second and third accused preferred these appeals.

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The learned counsel appearing for the appellant in

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Crl.A.No.524 of 2018 submitted that there are contradictions between the

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Page 4 of 16

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Crl.A.Nos.524 & 543 of 2018

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prosecution witnesses and the same were not considered by the trial Court. The FIR was registered on 21.03.2015, on the basis of the complaint lodged by P.W.1. However, P.W.1 received complaint from P.W.2 viz., the victim girl, whereas she did not produce any material before the Inspector of Police viz., P.W.12 along with the written complaint which was marked as Ex.P.1. The original complaint of P.W.2 was not form part of the records. The doctor who examined the victim was examined as P.W.10 and she opined that no external injury, vagina admits one finger. Smear test revealed that no spermatozoa was found. Further P.W.2 deposed that she was penetrative sexually assaulted by A1 for several times till 18.03.2015. However, the medical evidence did not prove the same and she was never got pregnant. Therefore, he prayed to allow the appeal.

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The learned counsel appearing for the appellant in Crl.A.No.543 of 2018 submitted that even according to the case of the prosecution, the third accused was present in the house of A1. He never abate any crime committed by the first and second accused. In fact, he did not even assist the marriage or other offences committed by the first and second accused. The third accused being the relative of the first https://www.mhc.tn.gov.in/judis Page 5 of 16

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Crl.A.Nos.524 & 543 of 2018

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accused, the trial Court mechanically convicted the third accused for the offence punishable under Section 10 of the Prohibition of Child Marriage Act. Therefore, he prayed for acquittal of the present appellant.

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Per contra, the learned Government Advocate (Crl. Side) appearing for the respondent police submitted that the victim was examined as P.W.2 and her sister and aunt were examined as P.W.3 and P.W.7. The victim's father was examined as P.W.6. They categorically deposed that the second accused kidnapped the minor victim girl and under completion and coercion got marry to the first accused. Thereafter, the second accused compelled the victim to have physical relationship. Therefore, the second accused abated the crime committed by the first accused and the trial Court rightly convicted the second accused. Insofar as the third accused is concerned, he is none other than close relative of the first accused and he also present in the house of the first accused. He assisted the first and second accused to commit the offence and therefore, he was also rightly convicted by the trial Court. Hence, he prayed to dismiss both the appeals.

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https://www.mhc.tn.gov.in/judis

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Page 6 of 16

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Crl.A.Nos.524 & 543 of 2018

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Heard Mr.B.Vasudevan, learned counsel appearing for the appellant in Crl.A.No.524 of 2018, Mr.J.Franklin, learned counsel

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appearing for the appellant in Crl.A.No.543 of 2018 and Mr.A.Gopinath, learned Government Advocate (Crl. Side) appearing for the respondent police in both appeals.

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There are totally three accused in which the appellants are arrayed as A2 and A3 respectively. The second accused is none other than own mother of the victim girl and the third accused is the cousin brother of the first accused. The case of the prosecution is that the victim girl was taken by the second accused as if they went to the victim's sister house at Veeranam Mottur. However, the second accused had taken the victim to Periyandichiamman temple at Athigaripatty, Udayappatty, there the first accused was present. The second accused compelled the victim girl to marry the first accused for which the victim refused to marry him. Immediately the second accused threatened the victim as if she did not marry the first accused, she would kill her by administering poison. The first accused also compelled the victim and tied Thali on her neck.

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https://www.mhc.tn.gov.in/judis

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Page 7 of 16

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Crl.A.Nos.524 & 543 of 2018

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Immediately the first and second accused had taken the victim girl to first accused house, there the third accused was present. On the same day at night, the second accused compelled the victim girl to have physical relationship with the first accused. Thereafter, the first accused had committed penetrative sexual assault on her. Though the victim suffered heavy pain and informed to the second accused, it was not considered by the second accused and again she compelled her to have physical relationship with the first accused. Thereafter, the first accused once again committed sexual assault on the victim. In fact, the first and second accused tied the victim and did not allow her to go out. Thereafter, it was informed to her sister and thereafter it was informed to P.W.1.

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P.W.1 was working as Child Line Coordinator at Salem. She deposed that P.W.2 and P.W.3 came to her office and informed about the offence committed by the accused 1 to 3. Therefore, she lodged complaint before the respondent police and the said complaint was marked as Ex.P.1. P.W.3, the sister of the victim deposed that the second accused is her mother and she was doing vegetable vending work in the market and she used to go in the auto owned by the first accused. The second accused borrowed loan to do her business for which the first accused stood as https://www.mhc.tn.gov.in/judis Page 8 of 16

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Crl.A.Nos.524 & 543 of 2018

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guarantor. Therefore, in order to settle the issue the first accused compelled the second accused to give marry her daughter who is the victim girl aged about 14 years at the time of occurrence.

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Therefore, the second accused on false information had

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taken the victim girl to Periandichiammal Temple at Athigaripatty, in the auto driven by the first accused. The first accused compelled her and tied Thali and thereafter had penetrative sexual assault on her. The second accused abated the crime committed by the first accused and both the accused did not even allow her to come out.

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When the victim girl's sister came to her house, she informed

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the same and immediately it was informed to P.W.1 and she lodged the complaint before the respondent. It was also corroborated by the statement recorded under Section 164 of Cr.P.C., of the victim girl. The statement was marked as Ex.P.14 and it also corroborated with the evidence of P.W.2 and P.W.3. The relevant portion in the statements reads as follows:-

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@mf;fh tPl;ow;F jhd; bry;fpnwhk; vd ehd; epidj;njd;/ Mdhy; xU nfhtpypy;

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https://www.mhc.tn.gov.in/judis

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Page 9 of 16

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Crl.A.Nos.524 & 543 of 2018

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bfhz;L ngha; Ml;nlh?it epWj;Jdh';f/ m';F Ml;nlh oiuth; vdf;F jhyp fl;l te;jhh;/ ehd; ntz;lhk;?D brhd;ndd;/ mjw;F vd; mk;kh @tpc&k; itj;J bfhd;WtpLntd;@?D brhy;yp kpul;Ldh';f/ ehd; gae;Jl;L mikjp Mapl;nld;/ mg;g[wk; vd;id Tl;ol;L bghpa tPuhzj;jpy; cs;s Ml;nlh oiuthpd; rpj;jg;gh tPl;ow;F nghdh';f/ m';f 15 ehl;fs; j';fp ,Ue;njhk;/ m';F ,Ue;j nghJ Ml;nlh oiuth; jd;Dila ngU @rf;jp@D brhd;dhh;/ jpdKk; vd;id @Ml;nlh oiuth; U:kpy; ngha; gL@?D brhy;yp vd; mk;kh vd;id mor;rh';f/ 15 ehl;fs; fHpj;J nkhl;L:h;?y; jdptPL ghh;j;J 15-3-15 "hapw;WfpHik Tl;ol;L nghdh';f/ nkhl;L:h; tPl;oYk; Ml;nlh oiuth; vd;id jpl;o moj;jhh;/ mjdhy; 18/03/2015 md;W vd;id ghh;f;f vd; mf;fh g[tnd!;thp vd; tPl;ow;F te;J vd;id ghh;j;jhh;fs;/ fy;ahzk; Md ehspy; ,Ue;J vd;id tPl;oy; g{l;o itj;jpUe;jija[k;. moj;jija[k; mf;fhtplk; brhy;yp mGnjd;/ mjdhy gzk; U:/20-? ia vd;dplk; vd; mf;fh bfhLj;J @Ml;nlh oiuth;?f;F Vw;fdnt fy;ahzk; Mfp 3 FHe;ijfs; ,Uf;F/ cdf;F ,tUld; thH gpof;fydh te;JL?D@ brhy;yptpl;L nghapl;lh';f/ 18-3-2015 md;W khiy 4/30

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Crl.A.Nos.524 & 543 of 2018

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kzpf;F jz;zPh; gpof;f nghfpnwd; vd;W vd; mk;khtplk; bgha; brhy;yptpl;L jg;gpr;R g!; gpor;R vd; mg;gh tPl;ow;F te;Jtpl;nld;/ mg;g[wk; vd; mg;gh. mf;fh. mj;ij vy;nyhUk; nre;JJ vd; mk;kh?it njodhh;fs;/ ,d;Wk; fpilf;ftpy;iy/ mjdhy; rdpf;fpHik vd; mf;fh iry;L iyd;?apy; g[fhh; bfhLj;jhh;/@

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Thus it is clear that the victim girl was taken by the second accused in the auto driven by the first accused to Periandichiamman temple, where the first accused tied Thali on her neck. Thereafter, the first and second accused compelled the victim to have physical relationship with the first accused, thereby the first accused committed the offences under Section 3 of the POCSO Act and the second accused abated the crime committed by the first accused.

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The father of the victim was examined as P.W.6 and he deposed that the second and first accused have committed grave offence as against her daughter. The relevant portion of his deposition is extracted hereunder :-

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@2?k; vjphp bry;tp vd; kidtp/ tHf;F bfhLg;gjw;F xU thuj;jpw;F Kd;g[ rk;gtk; gw;wp vdf;F bjhpate;J/ vd; kfs;

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Page 11 of 16

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Crl.A.Nos.524 & 543 of 2018

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I!;th;ahit tPl;oy; fhztpy;iy/ v';nf vd;W vd; kidtp bry;tpaplk; nfl;nld;/ mjw;F vdJ bghpa kfs; g[tnd!;thp tPl;oy; ,Ug;gjhf brhy;yptpl;lhh;/ vd; kfs; I!;th;ah xU thuk; fHpj;J vd;tPl;Lf;F jhypa[ld; te;jhs;/ jd;id nkhfd; vd;fpw rf;jpf;F jd; mk;kh cilahg;gl;o bghpahz;or;rp nfhtpypy; jpUkzk; bra;J bfhLj;Jtpl;ljhf mGJbfhz;nl brd;dhs;/ jdf;F mtUld; thH gpof;ftpy;iy vd;Wk; brhd;dhs;/ nkYk; vd;Dila kidtp jd;Dila kfspd; thiaa[k;. ifiaa[k;. fhiya[k; fl;o U:kpy; nghl;L nkhfd; vd;fpw rf;jpia tpl;L mk;khnt kfis bfLf;f itj;JapUf;fpwhh; vd;W vd; kfs; brhy;ypj; bjhpa[k;/@

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Thus, it is clear that his evidence is corroborated with the evidence of P.W.2 & P.W.3 and the prosecution proved its case beyond any doubts.

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Though the learned counsel appearing for the appellant in Crl.A.No.524 of 2018 vehemently contended that except the evidence of prosecution, no other witnesses supported the case of the prosecution, it is well settled law that the evidence of the prosecutrix needs to be analysed and examined carefully. But a woman who is victim of sexual

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https://www.mhc.tn.gov.in/judis

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Page 12 of 16

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Crl.A.Nos.524 & 543 of 2018

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assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact, the evidence of the prosecutrix is similar to the evidence of an injured complainant or witness. The testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. That apart in the case of rape, the law does not require corroboration and the evidence of the prosecutrix may sustain a conviction. In fact, the evidence of P.W.2 is supported by P.W.3 and P.W.6 who are none other than her own sister and father of the victim and

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they deposed as against their own mother and wife respectively.

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Further the victim girl was subjected for medical examination and the doctor who examined P.W.2 was examined as P.W.10. She opined that her hymen was not intact. Victim also deposed that she got pregnant and thereafter it was aborted. That apart, the first accused already married person and he is the father of three children. Therefore the second accused had full knowledge about the first accused that he already married person and he is the father of three children. Even then, the second accused had taken the victim girl to temple and compelled her to marry him. Thereafter, she compelled her to have physical relationship. https://www.mhc.tn.gov.in/judis Page 13 of 16

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Crl.A.Nos.524 & 543 of 2018

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Therefore, the trial Court rightly convicted the appellant and this Court finds no infirmity of illegality in the order passed by the Court below.

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Though the trial Court convicted the second accused for the

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offence under Section 6 r/w 17 of the POCSO Act, Section 6 would not attract as against the second accused, since the first accused had committed penetrative sexual assault on the victim and it would attract only the offence under Section 3 of the POCSO Act. Therefore, the second accused is liable to be punished under Section 4 r/w. 17 of the POCSO Act. Therefore, the conviction under Section 6 r/w17 of the POCSO Act is modified that the second accused is convicted for the offence under Section 3 r/w 17 of the POCSO Act. Except the said modification, there is no other modification in the impugned order.

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Insofar as the third accused is concerned, he was present at the temple, when the first accused tied Thali on the victim girl. Thereafter the victim was taken to the house of the first accused. There is no evidence to show that the third accused abated to commit the offence under Section 10 of the Prohibition of Child Marriage Act. Therefore, the prosecution failed to prove the charge for the offence under Section 10 of https://www.mhc.tn.gov.in/judis Page 14 of 16

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Crl.A.Nos.524 & 543 of 2018

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the Prohibition of Child Marriage Act, as against the third accused. Hence, the order of conviction cannot be sustained as against the third accused and this Court is inclined to allow the appeal insofar as the third accused is concerned.

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Accordingly, the conviction and sentence imposed on the appellant in Crl.A.No.543 of 2018 by an order dated 25.07.2018 made in Spl.S.C.No.38 of 2015 on the file of the learned Sessions Judge, Mahila Court, Salem, are hereby set aside and he is acquitted from the charge for the offence under Section 10 of the Prohibition of Child Marriage Act. Fine amount, if any paid, shall be refunded to the appellant forthwith. Bail bonds, if any executed, shall stand cancelled.

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In the result, the Criminal Appeal in Crl.A.No.524 of 2018 stands dismissed and the Criminal Appeal in Crl.A.No.543 of 2018 stands allowed. Consequently, connected miscellaneous petition is also closed.

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10.11.2022

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Index : Yes/No Internet : Yes Speaking /Non Speaking order rts

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https://www.mhc.tn.gov.in/judis

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Page 15 of 16

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Crl.A.Nos.524 & 543 of 2018

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rts

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G.K.ILANTHIRAIYAN, J.

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1.The Session Judge, Mahila Court, Salem.

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2.The Inspector of Police, Ammapet All Women Police Station, Salem District.

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3.The Public Prosecutor, Madras High Court, Chennai.

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Crl.A.Nos.524 & 543 of 2018 and Crl.M.P.No.11523 of 2018

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10.11.2022

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https://www.mhc.tn.gov.in/judis

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Page 16 of 16

Selvi, F/65 (A2) v. State by

Case brief

What is this about?

What did the court decide?

Selvi, F/65 (A2) v. State by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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