The High Court allowed the criminal appeal partly, setting aside the conviction under the POCSO Act but upholding the sentence reduction due to time served. The Court held the Trial Court's conviction was not perverse.
Conviction upheld; sentence of imprisonment reduced to account for time already spent in custody.
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.557 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2023
CORAM:
The Honourable MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.A.No.557 of 2016
Babu @ Dinakaran
...Appellant / Accused
-Vs-
State rep. by The Inspector of Police Adhiyamankottai Police Station, Dharmapuri District. (Crime No.84 of 2014)
...Respondent / Complainant
Prayer:- Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code, 1973, to set aside the judgment dated 06.05.2016 in Spl.S.C.No.62 of 2015 conviction and sentence of one year simple imprisonment and imposing a fine of Rs.1000 i/d to undergo 1 month imprisonment for the offence under Section 11(1) r/w Section 12 of the Protection of Children from Sexual Offences Act, 2012, imposed as against the Appellant/Accused by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri.
For Appellant : Mr.M.Karthick For Respondent : Mr.S.Vinoth Kumar Government Advocate (Crl.Side)
J U D G M E N T
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The Appellant is the sole Accused in Spl.S.C.No.62 of 2015 dated
06.05.2016 on the file of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri.
follows:-
| Conviction under section | Sentence Awarded |
|---|---|
| Section 11(1)(e) r/w Section 12 of | To undergo one year of simple |
| the Protection of Children from | imprisonment and to pay a fine of |
| Sexual Offences Act, 2012 | Rs.1,000/- and in default, to undergo one month simple imprisonment. |
The Trial Court ordered the sentences to run concurrently and has also granted set-off under Section 428 Cr.P.C. for the period of incarceration undergone by the Accused during investigation/trial.
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Mahila Court, Dharmapuri, as follows:
| No. of charges | Charges framed |
|---|---|
| Charge 1 | Section 7 r/w Section 8 of Protection of Children from Sexual Offences Act, 2012 |
| Charge 2 | Section 11(1)(e) r/w Section 12 of the Protection of Children from Sexual Offences Act, 2012 |
| Charge 3 | 506(ii)of IPC |
Since the charges were denied by the Accused, the learned Sessions
Judge, Fast Track Mahila Court, Dharmapuri, ordered trial.
and marked Ex.P1 to Ex.P11.
6.1 P.W-1-victim; P.W-2- mother of the victim; P.W-3-headmaster;
P.W-4 is the maternal uncle of P.W-1; P.W-5 is the maternal aunt of P.W1, P.W-6, P.W-7, P.W-8 were neighbours of the family of the victim and they turned hostile; P.W-9-Mahazar witness; P.W-10-Doctor, who examined the victim; P.W-11-Sub Inspector of Police, who received the complaint registered FIR under Ex.P5 and P.W-12-Inspector of Police.
Court to the depositions of P.W-1, P.W-2, P.W-3, P.W-4, P.W-5. The
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defence of the Accused is that this is a foisted case. The Accused is also a
cousin of the mother of the victim.
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this is a foisted case. The learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, had acquitted the Accused from the charges under Section 7 r/w Section 8 of Protection of Children from Sexual Offences Act, 2012 and Section 506(ii) of IPC based on evidence but had convicted the Accused for the offence under Section 11(1)(e) r/w Section 12 of the Protection of Children from Sexual Offences Act, 2012.
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alleged to have took the victim along with him under the pretext of buying chocolate. She did not consume the chocolate bought by the Accused, and she was taken to the lonely place where the Accused is alleged to have removed her dress and exposed his genital area to the child. Scared of that, the child cried. The grandma came there, and she was unable to mention the name of the place. In the cross-examination of P.W-2, mother of the victim, P.W-4, maternal uncle of the victim and P.W-5, maternal aunt of the victim, had submitted that, on the alleged date of occurrence, the child was at home. Therefore, it is the contention of the learned Counsel for the Appellant that there are contradictions regarding the place of occurrence as per the evidence of P.W-4, maternal uncle of the victim, and P.W-5, maternal aunt of the victim, that the child was at home and she was playing with her friends. At that time, the Accused had taken her alone and indulged in the alleged act. Whereas, as per the evidence of P.W-1, the victim, she was playing outside the school during interval time the Accused is alleged to have taken her under the pretext of buying her chocolate and indulged in the alleged act.
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maternal uncle of the victim, had tutored her, “ePjpkd;wj;Jf;F tUtjw;F Kd;ghf cdJ khkh brhy;ypf; bfhLj;jhu; rupjhdh Mkhk;”. Therefore, it is the contention of the learned Counsel for the Appellant that the entire occurrence alleged by the prosecution is not true occurrence. It was a foisted case. Also, the physical feature of the area near the school was elicited in the cross-examination where there is no alleged occurrence took place. Therefore, the child is unable to explain where and how the occurrence took place. P.W-2, the mother of the victim is also unable to state from where the information was received by her. Without mentioning Chandran, the said Chandran was not at all examined before this Court as a witness. When analysing the deposition of witnesses P.W-1 to P.W-5, it is clear that such occurrence had not taken place at all. The learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, had convicted the Accused only based on the oral evidence of P.W-1, the victim, and marked the materials available in the cross-examination of the Accused and the motive for foisting such a complaint. Therefore, the learned Counsel for the Appellant seeks to set aside the judgment of conviction, sentence of imprisonment, and fine imposed on the Appellant/Accused in Spl.S.C.No.62 of 2015 dated 06.05.2016.
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Track Mahila Court, Dharmapuri, had acquitted the Accused from the charges under Section 7 r/w Section 8 of Protection of Children from Sexual Offences Act, 2012, and 506(ii) of IPC. Therefore, the learned Government Advocate (Crl.Side) vehemently objects to setting aside the judgment of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, which is perverse. Further, the submission of the learned Government Advocate (Crl.Side) that the Appeal lacks merit and is to be dismissed by confirming the judgment of the learned Sessions Judge, Fast
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Track Mahila Court, Dharmapuri, in Spl.S.C.No.62 of 2015 dated 06.05.2016.
Point for consideration:
Whether the judgment of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, in Spl.S.C.No.62 of 2015 dated 06.05.2016 is to be set aside as perverse?
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it is a foisted case. The child was unable to explain the topography in her statement under Section 164 of Cr.P.C and in her Examination in chief. A false case has been foisted by the maternal uncle of the victim, P.W-4 on the Accused.
witness should be presumed true, if the defence of the Accused that the mother and maternal uncle of the child had instituted this case to wreck
Crl.A.No.557 of 2016
vengeance on his former friend, the Accused. The child witness did not concede or deny. The mother of the victim, P.W-2 had also rejected such suggestions. On perusal of the statement recorded under Section 164 of Cr.P.C from the victim by the learned Judicial Magistrate is found reflecting the same depositions as stated by the same child witness. The evidence of the mother of the victim, P.W-2 is found cogent and trustworthy. She claims that she was informed about the alleged occurrence
by her acquittance in the village. The child victim had spoken about the conduct of the Accused regarding the sexual offences to her maternal uncle and the sister of P.W-2. After knowing about the incident, P.W-2 had gone to the house of Accused. Only the sister of the Accused was available at that time. When P.W-2 narrated the incident, she denied it stating, that she will enquire with the Accused and even bring him to her house. But nothing of that sort took place. Similarly, P.W-2, mother of the victim had spoken about the occurrence to the mother of the Accused also, she too denied such conduct of the Accused. But the mother of the Accused expressed to P.W-2 that she will bring her son to the house of P.W-2. Nothing of that sort took place. Therefore the mother of the victim preferred a complaint in Crime No.84 of 2014 to the Inspector of Police, Athiamaankottai Police Station.
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In the result, this Criminal Appeal is partly allowed . The sentence of imprisonment is reduced as the period already undergone by the Accused since no minimum sentence is prescribed under Section 11 of the Protection of Children from Sexual Offences Act, 2012.
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cda/shl
Index : Yes/No Speaking/Non-speaking order
To
SATHI KUMAR SUKUMARA KURUP, J.,
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3 issues framed by the court
Whether the High Court should set aside the conviction judgment of the Trial Court as being perverse?
Whether the sentence of imprisonment should be reduced due to the period already undergone by the appellant?
Whether a minimum sentence is prescribed under Section 11 of the Protection of Children from Sexual Offences Act, 2012?
4 provisions across 2 enactments
Babu @ Dinakaran
State represented by The Inspector of Police Adhiyamankottai Police Station
Sathi Kumar Sukumara Kurup
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
