Kesavan, Aged 43 Years, Vs State Rep. by

Prayer: This Criminal Appeal is filed under Section 374 (2) of Criminal Procedure Code, seeking to set aside the order of conviction passed in Spl.S.C.No.15 of 2016, dated 14.02.2018, on the file of the Sessions Judge, Karaikal and acquit the accused / appellant of the charge leveled against him.

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For Appellant(s): Mr.M.Praveen Kumar

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For Respondent(s): Mr.A.Alexander, Govt. Advocate (Pondy)

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JUDGMENT

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The Appellant is before this Court against the judgment of the trial Court (Sessions Judge, Karaikal) dated 14.02.2018 in Spl.S.C.No.15 of 2016. By the impugned judgment, the trial Court found the Appellant guilty under Section 8

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of the POCSO Act, 2012, for committing an offence under Section 7 of the said Act.

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Page1 of 7

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

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CRL A No. 150 of 2018

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Before the trial Court, 15 witnesses were examined and 11 Exhibits were marked, as detailed below:

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Prosecution Witnesses:

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PW1	06.06.2017	Sundaramurthy
PW2	06.06.2017	Dhanalakshmi
PW3	06.06.2017	Victim
PW4	20.06.2017	Thangarasu
PW5	20.06.2017	Raman
PW6	20.06.2017	Rajkumar
PW7	04.07.2017	Devika
PW8	04.07.2017	Geetha
PW9	25.07.2017	Suthagar
PW10	25.07.2017	Jayasithra
PW11	22.08.2017	Dr.Abarna
PW12	22.08.2017	Dr.Uma Maheswari
PW13	12.09.2017	Dhanalakshmi
PW14	31.10.2017	Suresh, S.I. of Police
PW15	13.11.2017	Inian, S.I. of Police
Prosecut	ion Exhibits:
Ex.P1	01.08.2016	Complaint of Sundaramurthy

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Page2 of 7

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

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CRL A No. 150 of 2018

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Ex.P2 01.08.2016 The entire crime details form Ex.P3 -- The entire property search and seizure and seizure form of victim girl

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Ex.P4 01.08.2016 Admitted portion of the Accused Confession Statement

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Ex.P5 01.08.2016 Property search and seizure form (accused’s lungi)

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Ex.P6 02.08.2016 Certificate of potency/impotency of accused

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Ex.P7 02.08.2016 Medical examination report of victim girl Ex.P8 01.08.2016 F.I.R.No.45/2016 Ex.P9 01.08.2016 Crime detail form Ex.P10 01.08.2016 Form 95, No.308221 Ex.P11 25.12.2004 Both certificate of Victim girl

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Defence Witnesses: NIL Defence Exhibits: NIL Material Objects: M.O.1 Mu";R fyhpy; fUg;g[ nyR nfhL cs;s kw;Wk; fj;jhpg;g[ fyh;. nuh!; fyh; kw;Wk; bts;is epw ghlh; bfhz;l oird; ghthil xd;W/

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__________ Page3 of 7

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

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CRL A No. 150 of 2018

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M.O.2 Take on Inspirine nfkuh glk; nghl;l Picture vd;W vKjpa fU;gg[ fyh; lhg;!; xd;W/

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M.O.3 gr;ir fyh; vyh!;of; $l;o xd;W/ M.O.4 rpbkz;l; fyh; ePyf;fyh; fl;lk; nghl;l fapypapy; bts;is epw nfhL nghl;lJ xd;W/

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M.O.5 A packed box containing 1. Swab from Penis. 2. Hair form Pubis, 3. Nail.

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The impugned judgment of the trial Court is sought to be assailed

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primarily on the ground that P.W.1 and P.W.2 admitted to a previous enmity between the family of the Petitioner and that of the victim. P.Ws.1 and 2 are the parents of the victim (the father and mother, respectively). P.W.3 is the victim aged about 11 years and the Appellant was aged about 42 years.

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The prosecution has, strangely and curiously, failed to exhibit the

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victim’s statement recorded by the learned Magistrate under Section 164 of the Cr.P.C. However, the testimony of the victim during her chief and crossexaminations remains consistent. In fact, the statements elicited during cross-

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examination further exposed the Appellant, providing graphic details of the alleged incident that took place on the afternoon of 31.07.2016.

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

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CRL A No. 150 of 2018

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The sole defense raised before this Court rests on the previous family enmity, based on the depositions given by P.Ws.1 and 2 on 06.06.2017. Apart from this, no other extenuating circumstances have been brought to the attention of this Court that would raise even a shadow of doubt to exonerate the Petitioner of the offense for which he has been convicted and sentenced. The witnesses examined, except for the victim, are all strangers to the offense.

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The facts on record, as documented by the trial Court, clearly substantiate the allegation that the Petitioner fondled the private parts of the child victim and caused her physical pain. When the victim resisted, the Appellant attempted to overpower her. The victim narrated the incident to her neighbour, who in turn informed the victim’s mother (P.W.2). P.W.2 subsequently narrated the incident to the victim’s father (P.W.1), who lodged the complaint on the following day, culminating in the registration of FIR in Crime No.45 of 2016 (marked as Ex.P8).

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I do not find any credible reason to disturb the findings of the trial Court. Furthermore, under Section 29 of the POCSO Act, 2012, where a person is prosecuted for committing, abetting, or attempting to commit an offense under Sections 3, 5, 7, or 9 of the Act, the Special Court shall presume that the accused committed the offense unless the contrary is proved. Similary, as per Section 30 of the Act, the Special Court is entitled to presume the existence of a

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

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CRL A No. 150 of 2018

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culpable mental state, placing the burden on the accused to prove that he had no such mental state regarding the act charged. The mere admission by P.W.1 and P.W.2 regarding the existence of a private dispute between the families does

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not, ipso facto , entitle the accused to rebut or shift the burden cast upon him under Sections 29 and 30 of the POCSO Act.

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There is no reason for this Court to disbelieve the deposition of the victim which has been consistent all along in view of the judgment of the Hon’ble Supreme Court in Ganesan Vs. State Rep.by its Inspector of Police, reported in AIR 2020 SC 5019 : (2020) 10 SCC 573 . Under these circumstances, this Criminal Appeal is liable to be dismissed.

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24-06-2026

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Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No

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GBI

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To

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