Madras High Court
Suji @ Kasi vs The Inspector Of Police on 14 July, 2026
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl.A(MD).No.644 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 19.06.2026
Pronounced On : 14.07.2026
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
and
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A(MD).No.644 of 2023
Suji @ Kasi ... Appellant/Accused No.1
Vs.
The State rep., by,
The Inspector of Police,
CBCID, Nagercoil,
Kanyakumari District.
(Cr.No.8 of 2020) ... Respondent / Complainant
PRAYER:- Criminal Appeal is filed under Section 374(2) of Criminal
Procedure Code, to call for the records from the lower court in SC.No.41/2021
on the file of the Learned Fastrack Mahila Court, Nagercoil, and set aside the
judgment dated 14.06.2023 by acquitting the accused and by allowing the
appeal.
For Appellant : Mr.V.Kathirvelu
Senior Counsel
For Respondent : Mr.G.Karuppasamy Pandian
Counsel for State of TN (Crl.Side)
1/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
JUDGMENT
K.K.RAMAKRISHNAN.J,
The appellant / accused has preferred the present appeal challenging the
judgment made in S.C. No.41 of 2021 dated 14.06.2023 by the Fastrack Mahila
Court, Nagercoil, whereby he was convicted and sentenced in the following
manner:
Sentence of
Sentence of Law Fine
Imprisonment
Section 90 r/w Rs.1,00,000/-; in default, to
Life Imprisonment
Section 376(2)(n) undergo 1 year Rigorous
until Natural Death
IPC Imprisonment
Rs.10,000/-; in default, to
3 years Rigorous
Section 354(C) IPC undergo 6 months Simple
Imprisonment
Imprisonment
3 years Rigorous
Section 506(II) IPC …….
Imprisonment
2/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
2.For clarity and better appreciation of facts and law, in this case, this
Court inclines to discuss the case on the following heads:
Sl. Headings Paragraph
No Nos
1 Facts of the case 3-3.6
2 Submission of the learned Senior counsel appearing for 4-4.15
the appellant
3 Submission of the learned Additional Public Prosecutor 5-5.17
Points for determination 7-7.2
4 Discussion on sentimental submission of the learned 8-8.2
Additional Public Prosecutor
5 Discussion on the sterling quality of the victim's 9-9.40
evidence
6 Discussion on the electronic evidence 10-10.2
7 Discussion on the genuineness of Ex.P12 11-11.3
9 Discussion on the delay in production of FSL Report 12-12.10
10 Discussion on the plea of admissibility and evidentiary 13-13.14
value of electronic evidence
11 Discussion on the plea of morphing 14-14.11
12 Discussion on the delay in lodging FIR 15-15.3
13 Discussion on the contention regarding omission in the 16-16.11
FIR
14 Discussion on the coercion on the part of the 17-17.7
Investigating Officer
15 Discussion on the consensual Sex 18-18.20
16 Discussion on the plea of the accused's genuine 19-19.7
intention to marry
17 Discussion on the failure to explain the circumstances 20-20.8
and furnishing the false answer during the course of
questioning under Section 313 of Cr.P.C. of the accused
18 Conclusive finding on conviction 21-21.2
3/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
19 Discussion on sentence 22-22.2
20 Emotional appeal and earnest request 25-25.6
21 Conclusion 26
3. Facts of the case :
3.1. The appellant/accused was also an accused in Crime No. 4 of 2020
on the file of the respondent police. Earlier, on 24.04.2020, a complaint was
lodged against the accused. On receipt of the complaint, PW27, the then
Inspector of Police, registered a case in Crime No.503 of 2020 for the offences
alleged therein. During the course of investigation, the accused was arrested.
Pursuant to his disclosure statement, an Apple iPhone 11, which had allegedly
been used for capturing the obscene photographs and videos of several women,
including the complainant in the present case, was recovered from his
possession. Thereafter, he was remanded to judicial custody. In the said case,
the father of the accused was also arrayed as Accused No. 2. Based on his
disclosure statement, the investigating officer recovered the accused’s laptop
and twenty-one other incriminating articles. Subsequently, the investigation was
transferred to the CBCID, namely the respondent police, who registered Crime
No. 4 of 2020 and continued the investigation.
4/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
3.2. During the pendency of the said investigation, the victim in the
present case lodged a complaint before the CBCID on 30.09.2020. PW28
received the complaint and forwarded it to the Head Office for obtaining
permission to register a separate case. After obtaining the requisite permission,
a First Information Report was registered on 13.10.2020 under Exhibit P29,
which forms the basis of the present prosecution. Pursuant to the registration of
the FIR, the accused, who was already in judicial custody in the earlier crime,
was formally arrested in the present case on 27.10.2020. Thereafter, he was
taken into police custody for four days from 07.11.2020 to 11.11.2020 for the
purpose of investigation. During the course of investigation, his involvement in
the present offence was ascertained. Consequently, the offences were altered
under alteration reports marked as Exhibits P31 and P32. The father of the
accused (Accused No. 2) was also formally arrested in the present case on
19.11.2020. The investigating officer thereafter continued the investigation by
forwarding the seized electronic devices and other incriminating materials to
the Forensic Science Laboratory for examination, examining the witnesses,
collecting relevant records, and ultimately filed the final report on 25.01.2021.
3.3. The learned trial Judge took cognizance of the final report in S.C.
5/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
No. 41 of 2021. Copies of the prosecution records were furnished to the
accused under Section 207 of the Code of Criminal Procedure. Thereafter,
charges were framed and explained to the accused. The accused pleaded not
guilty and claimed to be tried.
3.4. In order to prove its case, the prosecution examined PW1 to PW29,
marked Exhibits P1 to P34, and produced Material Objects (M.O.s) 1 to 20.
3.5. After completion of the prosecution evidence, the accused was
questioned under Section 313 Cr.P.C. with regard to the incriminating
circumstances appearing against him. He denied the allegations in toto,
contending that a false case had been foisted against him and that he had no
connection whatsoever with the alleged offences. However, the accused neither
examined any witness nor produced any document in defence.
3.6. Upon an appreciation of the oral and documentary evidence
available on record, the learned trial Judge found the accused guilty, convicted
him for the offences charged under Sections 376(2)(n), 417, 354(A), 294(b),
354(c) of IPC and Section 66E of Information Technology Act and acquitted
6/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
the accused for the charged offences under Sections 354 (B) and 354 (D) of IPC
and imposed the sentence as stated above. In view of the punishment imposed
under Section 376 (2)(n) of IPC, the learned trial Judge has not passed any
separate sentence for the charged offences under Sections 417, 354(A) and
294(b) of IPC and in view of the punishment imposed under Section 354 (c),
the learned trial Judge has not imposed any separate sentence for the charged
offences under Section 66 (E) of the Information Technology Act. Aggrieved by
the said conviction and sentence, the accused has preferred the present criminal
appeal before this Court.
4. Submission of the learned Senior Counsel appearing for the
appellant:
The learned Senior Counsel appearing for the appellant, after taking this
Court through the entire oral and documentary evidence on record, advanced
elaborate submissions, which may be summarized as follows:
4.1. The learned Senior Counsel submitted that there are material
improvements and embellishments in the version of PW1 (the victim) at every
stage of the proceedings, namely, from the complaint leading to the registration
of the FIR, the statement recorded under Section 164 of the Code of Criminal
7/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023Procedure, and finally the deposition before the Trial Court. According to the
learned Senior Counsel, these inconsistencies strike at the very credibility of
the victim and demonstrate that her evidence is unreliable.
4.2. It was further contended that the evidence on record clearly
establishes that the victim was a consenting party to the physical and sexual
relationship with the accused. The complaint was admittedly lodged nearly one
year after the alleged occurrence, and the prosecution has failed to offer any
satisfactory explanation for such an inordinate delay. Though delay by itself
may not be fatal in cases involving sexual offences, in the present case the
victim was about 28 years of age, was a graduate, and had admittedly
maintained a relationship with the accused over a considerable period. Having
voluntarily continued such a relationship, the subsequent allegation of forcible
sexual intercourse is wholly unsustainable. Therefore, the essential ingredients
of the offence under Section 376 IPC, including the aggravated form alleged
against the appellant, is not attracted. The learned Trial Judge failed to properly
appreciate these circumstances.
4.3. The learned Senior Counsel further submitted that the Hon’ble
Supreme Court has consistently held that where the evidence discloses a
8/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023consensual physical relationship between two adults, the offence of rape is not
made out and merely because the relationship subsequently turns sour it cannot
be termed as rape. The learned Trial Judge failed to apply the settled principles
governing cases of consensual relationships and, therefore, the conviction
under Section 376 IPC is liable to be set aside.
4.4. It was further argued that the testimony of PW1 cannot be accepted
as trustworthy not only because of the unexplained delay in lodging the
complaint but also on account of the material improvements and contradictions
at every stage of the proceedings. These inconsistencies render the prosecution
case highly doubtful.
4.5. The learned Senior Counsel further submitted that the victim was
subjected to pressure and harassment by the investigating agency and was
compelled to lodge the present complaint by them. Consequently, the very
genesis of the prosecution case is doubtful. It was also contended that there is
absolutely no independent corroborative evidence supporting the allegations.
9/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
4.6. According to the victim herself, the objectionable photographs and
videos were captured using an Apple iPhone. However, the particular model
referred to by the victim was not even available in India on the alleged date of
occurrence. More importantly, the said mobile phone was never recovered by
the investigating agency. In the absence of recovery of the device allegedly
used for capturing the images, the prosecution has failed to establish the alleged
transmission of those images to the MacBook laptop recovered from the
possession of Accused No.2, namely, the father of the appellant. Therefore, the
prosecution has failed to establish any electronic chain linking between the
accused and the alleged offending material.
4.7. The learned Senior Counsel submitted that, despite the absence of
any such evidence, the learned Trial Judge erroneously recorded a finding
regarding the continuity of the electronic evidence (chain of custody), without
any supporting material or opinion from the investigating officer. Such a
finding, according to the learned Senior Counsel, is without any evidentiary
basis and reflects a predetermined approach on the part of the Trial Court.
4.8. It was further argued that the investigation conducted in Crime No.
503 of 2020 did not yield any material connecting the appellant with the present
10/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
victim. No forensic report establishes that any data relating to the present
victim was retrieved from the MacBook seized during the earlier investigation.
Further, no certificate under Section 65B of the Indian Evidence Act was
produced with respect to the extraction or reproduction of the electronic data
allegedly recovered from the seized electronic devices. In the absence of
compliance of the mandatory requirements governing admissibility of
electronic evidence, all such materials relied upon by the prosecution are
legally inadmissible and cannot form the basis for conviction.
4.9. The learned Senior Counsel further submitted that even assuming
the prosecution version is accepted in its entirety, the evidence would only
indicate that the victim was a consenting participant in the relationship, and
also allowed recordings of the photographs. Consequently, the ingredients of
the offences punishable under Sections 376, 417, 354A, 354C, 506(ii) and
294(b) IPC, as well as Section 66E of the Information Technology Act, have not
been established beyond reasonable doubt.
4.10. Lastly, the learned Senior Counsel contended that there is
considerable doubt regarding the very registration of the FIR. While the victim
claimed that she had sent the complaint directly to the CBCID office, PW29,
11/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
the Investigating Officer, deposed that he had personally received the complaint
and thereafter forwarded it to the Head Office for obtaining permission to
register the case. The earlier information allegedly received was suppressed by
the prosecution. According to the learned Senior Counsel, this discrepancy
creates a serious doubt regarding the genesis of the prosecution case. Coupled
with the non-recovery of the alleged electronic devices, the absence of legally
admissible electronic evidence, and the alleged fabrication of documents and
other materials, the prosecution has failed to establish its case beyond
reasonable doubt. Accordingly, it was prayed that the appellant be extended the
benefit of doubt and acquittal of all the charges.
4.11. The learned Senior Counsel further submitted that the material
object, namely the MacBook laptop recovered from the father of the accused,
had already been opened on 05.04.2020. Placing reliance upon the statement of
one Mr. Jeevanantham, a technical expert, whose statement forms part of the
investigation records but who was not examined before the Trial Court, it was
contended that the laptop had already been accessed prior to the subsequent
forensic examination. In such circumstances, the subsequent procedure adopted
by the investigating agency by installing the “SuperDuper” Mac OS software
and extracting the electronic data for forensic analysis creates serious doubt
12/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
regarding the legitimacy and authenticity of the electronic evidence. According
to the learned Senior Counsel, the entire investigation has been conducted in a
perfunctory manner, thereby rendering the prosecution case unreliable. On this
ground also, it was prayed that the appellant is entitled to an order of acquittal.
4.12. The learned Senior Counsel further submitted that there are
several inconsistencies and apparent manipulations in respect of the electronic
records allegedly extracted from the MacBook laptop and sending the same for
forensic examination. It was contended that once the electronic data had been
extracted from the MacBook pursuant to the orders of the Court for the purpose
of forensic analysis, the investigating agency was required to comply with the
mandatory requirements under Section 65B of the Indian Evidence Act. In the
absence of the requisite certificate, the electronic records so extracted are
inadmissible in evidence. The learned Trial Judge, however, failed to appreciate
the mandatory nature of the statutory requirement and erroneously relied upon
such inadmissible electronic evidence.
4.13. The learned Senior Counsel vehemently contended that the
prosecution itself relied upon Material Object No.1 (pen drive), which allegedly
contained the video depicting the accused and the victim. The said pen drive
13/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
was played before the Trial Court, and both the accused and the victim were
identified from the contents thereof. However, the said electronic record was
admittedly not accompanied by a certificate under Section 65B of the Indian
Evidence Act. Consequently, the contents of M.O.1 were legally inadmissible
and ought not to have been relied upon by the learned Trial Judge. The failure
of the Trial Court to exclude such inadmissible evidence vitiates the conviction.
4.14. The learned Senior Counsel further submitted that certain
documentary exhibits relied upon by the prosecution reveal discrepancies with
regard to the dates mentioned therein. According to him, the relevant entries
appear to have been made subsequent to the arrest of the accused, thereby
creating a strong suspicion that the investigation records were manipulated to
suit the prosecution case. This circumstance, coupled with the defence plea that
the accused had been subjected to coercion and that the victim was compelled
by the investigating agency to lodge the complaint, clearly demonstrates that
the investigation was neither fair nor impartial but was tainted with bias.
Therefore, the appellant is entitled to the benefit of doubt.
4.15. Finally, the learned Senior Counsel reiterated that even if the entire
prosecution evidence is accepted at its face value, the ingredients constituting
14/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
the offences punishable under Section 376 IPC or Section 376(2)(n) IPC are not
made out. The evidence on record, at the highest, discloses a consensual
relationship between two adults and does not establish the essential ingredients
of rape. Accordingly, it was prayed that the conviction and sentence imposed by
the learned Trial Judge be set aside and the appellant be acquitted of all the
charges.
5. Submission of the learned Additional Public Prosecutor:
The learned Additional Public Prosecutor, after taking this Court through
the entire records, including the case diary files, documentary evidence,
material objects, and the findings recorded by the learned Trial Judge, assisted
by the Investigating Officer, made elaborate submissions, which may be
summarised as follows:
5.1. At the outset, the learned Additional Public Prosecutor submitted that
the present case is one of the gravest offences investigated in the State of Tamil
Nadu. According to him, the accused had adopted a systematic modus operandi
of clandestinely capturing obscene photographs and videos of several women,
including minors, and thereafter using the same to threaten, intimidate and
sexually exploit the victims. The accused was initially arrested in connection
with the complaint lodged by one brave victim, which culminated in the
15/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023registration of the parent case referred to above. During the course of
investigation in the said case, several other victims came forward with
individual complaints, resulting in the registration of separate criminal cases.
The present case is one such case.
5.2. The learned Additional Public Prosecutor submitted that the
prosecution has clearly established that the accused initially contacted the
victim through social media under the guise of friendship. Thereafter, he
induced her to believe that he intended to marry her and also represented that he
would secure employment for her. Having thus gained her confidence, the
accused developed a relationship with the victim. Subsequently, after
clandestinely capturing her intimate photographs and videos, he threatened to
circulate the same through social media and thereby compelled her to submit to
repeated sexual intercourse against her will. Thus, the consent, if any, was
obtained subjecting her to criminal intimidation and under a misconception of
fact. The victim was continuously subjected to sexual exploitation by the
accused under the constant threat of publication of the objectionable material.
5.3. It was further submitted that the testimony of PW1 is cogent, natural
and wholly trustworthy. Before the Trial Court, the victim narrated the entire
16/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
sequence of events in a consistent manner. Her statement recorded under
Section 164 Cr.P.C. also reflects the trauma and mental agony suffered by her.
The learned Additional Public Prosecutor therefore urged this Court to adopt a
pragmatic, realistic and common sensical approach while appreciating the
evidence of the victim, having regard to the nature of the offence and the
circumstances under which she was compelled to undergo repeated sexual
assault at the hands of the accused.
5.4. The learned Additional Public Prosecutor further submitted that the
conviction can safely be sustained on the sole testimony of the victim, which
inspires confidence and stands corroborated by the surrounding circumstances.
With regard to the delay in lodging the First Information Report, the learned
Additional Public Prosecutor contended that delay is not fatal in cases
involving sexual offences, particularly where the victim is subjected to
continuous threats and intimidation. In the present case, the accused was in
possession of the objectionable photographs and videos and repeatedly
threatened to publish them on social media. It was only after the registration of
the parent crime case and after learning that other victims had come forward
with similar complaints, the present victim gained courage to approach the
authorities. Even in her complaint, she had specifically requested the
17/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
investigating agency to protect her identity and privacy while registering the
case. These circumstances sufficiently explain the delay in lodging the
complaint.
5.5. The learned Additional Public Prosecutor further submitted that the
victim consistently deposed that she remained under constant fear and
intimidation throughout the relevant period. Similar threats had been made by
the accused to several other victims as well. Despite such intimidation, the
victim undauntedly lodged the complaint and withstood an extensive and
searching cross-examination without her evidence being materially shaken.
Therefore, the prosecution has satisfactorily explained the delay and has proved
the charges beyond reasonable doubt.
5.6. Refuting the submissions made on behalf of the appellant regarding
the alleged non-recovery of the mobile phone used to capture the offending
material, the learned Additional Public Prosecutor submitted that the
prosecution has established, through the evidence on record and the forensic
reports, the recovery of the device used by the accused for recording the
objectionable photographs and videos. The forensic examination clearly
18/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
establishes the electronic linkage between the seized devices and the offending
material. Hence, the contention that the particular model of Apple iPhone
referred to by the victim was either unavailable in India or was not recovered is
wholly misconceived. It was further submitted that it has never been the
defence of the accused that he had never used an Apple iPhone. The offending
material recovered from the Mac-Book forms part of the electronic evidence
collected during the investigation and sufficiently connects the accused with the
offences alleged. Therefore, the argument regarding the non-recovery of the
mobile phone deserves to be rejected.
5.7. The learned Additional Public Prosecutor also submitted that the
investigation was conducted in a fair, impartial and scientific manner, keeping
in view the grave societal impact of offences of this nature. The investigating
agency acted with utmost sensitivity while dealing with the victims, collected
all relevant scientific and electronic evidence, and ensured that the identity,
privacy and dignity of the victim were protected throughout the investigation
and trial. In such circumstances, the vociferous allegations levelled by the
learned Senior Counsel against the investigating agency are wholly unfounded
and deserve to be rejected. The investigation, according to the prosecution, was
19/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
conducted strictly in accordance with law and free from any bias or prejudice.
5.8. The learned Additional Public Prosecutor further submitted that the
heavy reliance placed by the learned Senior Counsel on the statement of one
Mr. Jeevanandham, recorded under Section 161 Cr.P.C. is wholly misconceived
and legally unsustainable. It was contended that Mr.Jeevanandham was neither
examined as a prosecution witness nor produced as a defence witness. A
statement recorded under Section 161 Cr.P.C. is not substantive evidence and
can be used only for the limited purpose of contradicting the witnesses
contemplated under Sections 145 of the Indian Evidence Act and Section 162
of Cr.P.C. In the absence of the maker of the statement entering the witness box,
no evidentiary value can be attached to such statement in favour of the accused.
5.9. The learned Additional Public Prosecutor further contended that the
defence plea of consensual sexual relationship is completely belied by the
evidence on record. The victim has consistently deposed before the Trial Court
that she was repeatedly subjected to forcible sexual intercourse under threats,
intimidation and coercion. The learned Trial Judge, after carefully appreciating
the oral evidence of the victim and viewing the electronic evidence forming
20/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
part of Material Object No.1, has categorically recorded a finding that the
sexual acts were committed against the will of the victim and without her free
and voluntary consent. The Trial Court has also noticed that the victim had
suffered physical injuries and harassment during the commission of the sexual
assaults. Such findings, being based upon appreciation of evidence, warrant no
interference.
5.10. It was further submitted that the contention regarding the
examination of the forensic expert after the filing of the final report is devoid of
merit. The requisition to the Forensic Science Laboratory had admittedly been
forwarded much earlier to the filing of the final report. The investigating
agency had already collected sufficient materials establishing that Material
Object No.1 contained the images and videos depicting the accused and the
victim, enabling the Investigating Officer to file the final report. The
subsequent examination of the expert was only to formally prove the scientific
analysis already made. Such subsequent examination does not vitiate either the
investigation or the prosecution case.
5.11. The learned Additional Public Prosecutor further explained, upon
21/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
instructions from the Investigating Officer present before the Court, that the
Forensic Science Laboratory consists of different specialised divisions. The
opinion obtained from the concerned division formed part of the investigation
and was rightly relied upon by the Investigating Officer while filing the final
report. Thereafter, the expert was examined before the Trial Court only to
explain the scientific methodology and to prove the report in accordance with
law.
5.12. It was also submitted that the objection regarding the absence of a
certificate under Section 65-B of the Indian Evidence Act is untenable. The
prosecution case does not suffer from any allegation of fabrication,
manipulation or tampering of the electronic records. The electronic devices
themselves were seized during investigation and were subjected to scientific
examination. The defence has neither established any prejudice nor
demonstrated any infirmity in the collection or preservation of the electronic
evidence. Consequently, the contention regarding Section 65-B is liable to be
rejected.
5.13. The learned Additional Public Prosecutor further submitted that a
careful viewing of the videos contained in Material Object No.1 clearly
demonstrates that one cannot infer that the victim had voluntarily consented
22/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
either to the sexual acts or to the recording of such explicit videos and
photographs. The very nature of the recordings, coupled with the surrounding
circumstances, unmistakably establishes that the victim was acting under
coercion, intimidation and fear propelled by the accused. The prosecution has
consistently established that the accused repeatedly threatened to circulate the
intimate images and videos on social media, thereby compelling the victim to
submit to his unlawful demands.
5.14. The learned Additional Public Prosecutor once again drew the
attention of the Court to the evidence of the victim, who consistently asserted
throughout her examination in chief and cross-examination that she never
voluntarily consented to the sexual acts or to the recording of the objectionable
materials. The victim withstood lengthy and searching cross-examination
without any material contradiction affecting the core of the prosecution case. It
was therefore submitted that the Trial Court rightly accepted her testimony as
truthful and wholly reliable.
5.15. The learned Additional Public Prosecutor further submitted that
Courts dealing with sexual offences are expected to adopt a sensitive pragmatic
and realistic approach while appreciating the evidence of the victim. Once the
23/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
victim enters the witness box and gives a cogent, natural and trustworthy
account of repeated sexual assault and intimidation, her testimony, if found
credible, is sufficient to sustain a conviction without insisting for unnecessary
corroboration.
5.16. Finally, the learned Additional Public Prosecutor submitted that the
present case squarely attracts the statutory presumption under Section 114-A of
the Indian Evidence Act. Once the prosecutrix has deposed before the Court
that she did not consent to the sexual acts, the statutory presumption operates
against the accused, who has failed to rebut the same by any cogent evidence.
Consequently, the prosecution is not required to establish the absence of
consent by any additional or extraordinary standard of proof.
5.17. On the above submissions, the learned Additional Public Prosecutor
prayed that the appeal be dismissed and that the well-reasoned judgment of
conviction and sentence passed by the learned Trial Judge be affirmed in its
entirety.
6. This Court has bestowed its anxious consideration to the rival
submissions advanced by the learned Senior Counsel appearing for the
24/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
appellant and the learned Additional Public Prosecutor appearing for the
respondent. Having regard to the gravity and sensitivity of the allegations, this
Court has independently scrutinized the entire evidence on record.
7.The following points arise for determination in this appeal:
7.1.Whether the conviction of the appellant for the offences punishable
under Sections 376(2)(n), 417, 294(b), 354(A) and 354 (c) of the Indian Penal
Code, and Section 66 E of the Information Technology Act, as recorded in the
impugned judgment, is sustainable in law?
7.2.Whether the sentence imposed upon the appellant under the
impugned judgment warrants any interference?
8.Discussion on sentimental submission of The learned Additional
Public Prosecutor:
8.1. The learned Additional Public Prosecutor made a strenuous
submission regarding the background of the case, contending that the accused
had allegedly been continuously involved in the sexual exploitation of
numerous victims, including minors. It was further submitted that more than six
criminal cases, including one under the provisions of the POCSO Act, have
25/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
been registered against the accused. The learned Additional Public Prosecutor
also submitted that the present case forms part of a sexual scandal which has
had sent shock waves across the State of Tamil Nadu.
8.2. This Court is conscious of the settled principle of criminal
jurisprudence that every criminal case must be decided solely on the basis of
the evidence legally adduced before the Court. A Court of law cannot permit
itself to be influenced by public sentiment, glare, or the gravity of the
allegations. The guilt or innocence of an accused must be determined
exclusively on the basis of the evidence placed on record and in accordance
with law. Bearing the above principle in mind, this Court proceeds to examine
and appreciate the testimony of the victim independently, objectively, and on its
own merits, in the light of the oral and documentary evidence available on
record.
9.Discussion on sterling quality of victim’s evidence:
9.1. While appreciating the testimony of the prosecutrix in the case of
376(2) (n) IPC, the Court must be conscious of the legislative intent underlying
Section 114A of the Indian Evidence Act, 1872. The statutory presumption
embodies the recognition that victims of sexual offences often continue in
26/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023forced relationships because of fear, intimidation, emotional dependence, or
blackmail. Consequently, the Court must evaluate the evidence in its proper
social and psychological context rather than through stereotypical assumptions
regarding the conduct of victims.The offence, therefore, cannot be viewed as an
isolated act of consensual intimacy but must be appreciated in the backdrop of
the entire chain of events that gradually deprived the victim of her free will and
autonomy.
9.2. Therefore, cases involving romance fraud, sexual extortion, and rape
by deception require a contextual and victim-centric appreciation of evidence.
The Court must examine whether the apparent consent was, in reality, the
consequence of deception, coercion, intimidation, abuse of confidence, or
fraudulent inducement, and not merely be guided by the existence of an
intimate relationship between the parties.
9.3.This case presents a classic illustration of rape by deception, rape by
fraud, sexual extortion, and what is commonly described as “romance fraud.” In
the present era of rapid technological advancement and widespread use of
social media platforms, courts are increasingly confronted with offences
involving online luring, emotional manipulation, sexual exploitation, and
cyber-enabled blackmail.
27/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
9.4.A romance scam or romance fraud is a confidence trick in which the
perpetrator creates a online identity, cultivates the victim’s trust and affection,
and establishes an emotional relationship with the ulterior motive of exploiting
the victim sexually, financially, or otherwise. The common modus operandi
involves initiating contact through social media, expressing intense affection
within a short period, transmitting the communication to private messaging
applications such as WhatsApp or similar platforms, and gradually isolating the
victim from taking independent sensible decision. Once the emotional
dependence of the victim is secured, the perpetrator engineers circumstances
that compel the victim to submit to sexual acts or to share intimate photographs
or videos, often under a false promise of marriage or other fraudulent
representations.
9.5.Thereafter, the perpetrator clandestinely records or preserves the
intimate material and begins to use it as an instrument of coercion. The victim
is threatened with publication of such material on social media or circulation
among family members, friends, or colleagues. Under such fear and
intimidation, the victim is repeatedly compelled to submit to further sexual acts
or other unlawful demands, including extortion of money or other benefits.
Thus, the consent ostensibly obtained is not the product of a free and voluntary
choice but is secured through deception, intimidation, abuse of trust, and fear of
28/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
serious consequences.
9.6.The present case bears all the characteristics of such a pattern of
romance fraud, sexual extortion, and rape by deception. The evidence of victim
demonstrates a continuous course of deception, emotional manipulation,
criminal intimidation, and sexual exploitation.Further, the evidence of the
prosecutrix unmistakably demonstrates four distinct stages in the commission
of the offence, each constituting a continuation of the same fraudulent design.
9.7.The first stage commenced with the accused initiating contact with
the victim through “Facebook”and ended with deliberate shifting of the
communication to the “Whatsapp” etc. For better appreciation of first stage ,
this court extracts following portion of deposition of victim:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
9.8.The evidence clearly shows that the victim repeatedly declined his
friend request and was initially unwilling to establish any acquaintance with
him. It was only because of the persistent inducement and representations made
by the accused she ultimately accepted his request.
29/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
9.9.After securing access to the victim through Facebook, the accused
clandestinely gathered information regarding her family background and
personal circumstances. Exploiting her vulnerable position, he falsely
represented that he could secure employment for her. Simultaneously, he
projected himself as a genuine suitor by expressing love and proposing
marriage. Believing these representations to be true, the victim shared her
mobile phone number solely for the purpose of receiving information regarding
employment opportunities.
9.10.Having obtained her phone number, the accused deliberately shifted
the communication from the relatively public platform of Facebook to the
privacy of WhatsApp and other personal messaging applications, thereby
ensuring confidential and continuous communication away from public
scrutiny. This transition formed part of a carefully designed plan to isolate the
victim and strengthen his emotional control over her.
9.11.The sequence of events leaves no room for doubt that the deception
commenced from the very inception of the relationship. The accused never
intended either to get employment or get married to her. Both representations
were merely a lip service and fraudulent inducements employed to gain her
confidence and emotional dependence. Thus, the very foundation of the
30/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
relationship was built upon deception and fraudulent misrepresentation.
9.12.The first stage, therefore, conclusively establishes that the
relationship did not originate from mutual affection or genuine intention but
from a calculated and premeditated design to deceive the victim. It laid the
foundation for the subsequent stages of physical exploitation, clandestine
recording of intimate acts, criminal intimidation, and repeated sexual assaults.
9.13.The second stage of the evidence further reinforces the prosecution
case and completely belies the defence plea that the relationship was
consensual. For better appreciation of second stage , this court extracts
following portion of deposition of victim:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
9.14.Upon a careful appreciation of the testimony of the prosecutrix, this
Court finds that, from 09.09.2019 onwards, she consistently avoided meeting
the accused in person. The evidence reveals that the accused persistently
requested, persuaded and insisted that she meet him, ostensibly to discuss the
arrangements for their proposed marriage. It was only because of such repeated
inducement and persuasion that the victim ultimately agreed to meet him on
31/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202319.09.2019.
9.15.The conduct of the victim during the meeting assumes considerable
significance. The evidence demonstrates that she was extremely hesitant even
to enter the accused’s car. Despite the request of the accused to her to occupy
the front passenger seat, she declined to do so and, with evident reluctance,
entered the vehicle only to sit in the rear seat. Such conduct is wholly
inconsistent with the defence theory of a willing participance and, on the
contrary, reflects her apprehension and unwillingness.
9.16.The evidence further discloses that after reaching the factory
premises, the accused first locked the premises and thereafter got into the rear
seat of the vehicle where the victim was seated. He then activated the central
locking system of the car, thereby preventing the victim from leaving the
vehicle. These acts were deliberate and calculated steps to isolate the victim
and deprive her of any realistic opportunity to escape.
9.17.The prosecutrix has consistently deposed that even at that stage she
resisted every physical advance made by the accused. She objected to his
physical contact and repeatedly expressed her unwillingness. The manner in
which the accused ultimately subjected her to sexual intercourse, as narrated by
32/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023the prosecutrix, clearly demonstrates that the act was accomplished despite her
resistance and against her will. Her testimony does not disclose passive
acquiescence but it shows that she had no other escape route.
9.18.This Court finds the testimony of the prosecutrix at this stage also to
be natural, cogent, consistent and wholly trustworthy. No material
contradiction, exaggeration or embellishment has been elicited during the
cross-examination so as to discredit her version. On the contrary, her conduct
before, during and after the occurrence inspires confidence and is consistent
with the conduct of a woman who was deceived, isolated and overpowered by
the accused.
9.19.The third stage of the prosecution case further establishes the
continuity of the deception practised by the accused and the absence of free and
voluntary consent on the part of the victim. For better appreciation of third
stage , this court extracts following portion of deposition of victim:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
9.20.Thus, the evidence of the prosecutrix discloses that immediately
after the first incident of sexual assault on 19.09.2019 wanted to tender the
33/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023accused an apology on 20.09.2019 and attempted to justify his conduct by
stating that he had had in sexual intercourse only because he genuinely
intended to marry her. He repeatedly assured the victim that he would marry her
and requested her to forgive him. He further represented that arrangements had
already been made to secure employment for her and persuaded her to meet him
once again on the pretext of personally handing over the appointment order and
discussing their future.
9.21.The evidence unmistakably shows that these representations were
false and were made solely with the object of luring the victim into another
meeting. Believing the assurances of marriage and employment, the victim
agreed to meet the accused. Thus, the third meeting on 20.09.2019 itself was
procured by a continuation of the very deception with which the accused had
initiated the relationship.
9.22.The prosecutrix has consistently stated that even during this meeting
she remained apprehensive and unwilling. As on the earlier occasion, she
refused to occupy the front passenger seat of the vehicle and, despite the
repeated requests of the accused, chose to sit in the rear seat. This conduct
assumes considerable significance, as it reflects her continuing reluctance and
lack of confidence in the accused notwithstanding his repeated assurances and
34/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023apology.
9.23.The evidence further reveals that during this meeting the accused
took the offensive selfie photograph of himself with the victim. Thereafter,
taking advantage of the emotional influence he had already established over her
and repeatedly referring to the previous incident and his promise of marriage,
he compelled the victim to submit to another act of sexual intercourse. The
prosecutrix has further narrated the harrowing experience and the abysmal way,
she was sexually exploited. Her testimony, read as a whole, demonstrates that
the accused treated her merely as a chattel for the gratification of his lust,
completely disregarding her dignity, autonomy and repeated expressions of
unwillingness.
9.24.This Court finds the testimony of the prosecutrix at this also stage to
be natural, consistent and wholly trustworthy. No material contradiction or
circumstance has been brought on record to discredit her evidence.
9.25.The fourth stage of the evidence demonstrates that the accused
translated the deception into criminal intimidation and thereafter repeatedly
subjected the victim to sexual exploitation by threatening to publish her
intimate photographs and videos. For better appreciation of fourth stage , this
35/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023court extracts following portion of deposition of victim:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
9.26.The prosecutrix has categorically deposed that, after the earlier
incidents, she refused to meet the accused any further. Having already been
subjected to sexual exploitation under false assurances of marriage and
employment, she was no longer willing to continue any relationship with him.
Despite her refusal, the accused repeatedly contacted her and once again
attempted to persuade her by reiterating his promise to marry her. The victim,
however, remained unwilling to meet him.
9.27. It was at this stage that the accused revealed his true colour and
design. He threatened the victim that he had secretly captured their intimate
moments and that, if she refused to meet him or failed to meet his demands, he
would publish the photographs and videos on social media and thereby ruin her
reputation and dignity on 26.09.2019. Faced with such threats, the victim
agreed to meet the accused only with the object of requesting him to delete the
offending material. Her conduct, viewed in its proper perspective, would show
that the victim acted under fear and compulsion rather than out of free choice.
36/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
9.28.The evidence further establishes that when the victim met the
accused for the said purpose, he once again compelled her to submit to sexual
intercourse by exploiting the fear instilled in the mind of victim. After the
occurrence, he specifically warned her not to disclose the incident to anyone,
reiterating that any disclosure would result in the publication of the intimate
photographs and videos. Thus, the intimidation was not merely incidental but
formed an integral part of the continuing course of sexual exploitation. During
the said fourth stage, she sustained injuries forwhich, he had undergone
treatment and the same was clearly spoken by the Doctor/P.W.7. Accordingly,
this Court holds that the prosecution has proved beyond reasonable doubt that
the third act of sexual intercourse was also the result of deception and coercive
circumstances deliberately created by the accused. The apparent submission of
the victim cannot, in law, be construed as free and voluntary consent. The
evidence clearly establishes that the act happened against her will and without
her valid consent.
9.29.The defence itself, through the suggestions put to the prosecutrix
during cross-examination, has admitted the fact of multiple meetings and
repeated sexual encounters, though it sought to characterise them as
consensual.
37/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
9.30.Those suggestions, when read as a whole, lend further assurance to
the prosecution case that the sexual acts occurred more than one occasion. The
Hon’ble Supreme Court in the following cases has held that the suggestion
made to the witness by the defence counsel and reply to such suggestion would
definitely form part of the evidence. In the case of Balu Sudam Khalde v. State
of Maharashtra, reported in (2023) 13 SCC 365
44.During the course of cross-examination with a view to
discredit the witness or to establish the defence on
preponderance of probabilities suggestions are hurled on the
witness but if such suggestions, the answer to those incriminate
the accused in any manner then the same would definitely be
binding and could be taken into consideration along with other
evidence on record in support of the same.
9.31.The testimony of the prosecutrix that she was continuously
subjected to sexual exploitation by the accused inside the car (M.O.2)
belonging to him is cogent, consistent and inspires full confidence. Apart from
that, the said car was recovered during the course of the investigation and was
identified by the victim. Further, pursuant to the disclosure statement made by
the accused, the place where the vehicle had been stopped at the time of the
occurrence was also identified. It is a well-settled principle of law that the
38/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
discovery of the place of occurrence, pursuant to the information furnished by
the accused, is admissible in evidence to the extent permitted under Section 27
of the Indian Evidence Act. Even though victim subjected to subtile cross
examination, nothing has been elicited in the cross-examination to discredit her
version. On the contrary, the sequence of events clearly establishes a
continuous chain of conduct beginning with fraudulent inducement, translating
it to emotional manipulation, followed by clandestine recording of intimate
moments, and culminating in repeated sexual exploitation under the threat of
public exposure.
9.32.The evidence, therefore, unmistakably establishes that the victim
was continuously subjected to sexual exploitation through deception, abuse of
trust and criminal intimidation. The successive acts of sexual intercourse were
not isolated incidents but formed part of one continuing transaction motivated
by a common design. The conduct of the accused squarely answers the
description of rape by deception, followed by rape through coercion and sexual
extortion.
9.33.Significantly, even according to the defence, the accused and the
victim became acquainted only through social media, and no previous enmity or
motive has been suggested as to why the victim should hunt him down to
39/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
falsely implicate him in such grave offences. In the absence of any plausible
motive for false implication, the testimony of the prosecutrix deserves full
acceptance. The surrounding circumstances also corroborate her version
9.34.Unchallenged evidence of the victim is that more than two occasion
after the forcible physical relationship, the accused compelled the victim to
swallow his semen and from the said circumstances, it is clear that he acted
clever enough to avoid the complication of the pregnancy. Therefore, it is
rightly deposed by the victim that the said act was one amoung the humiliation
inflicted upon her. Her continued hesitation in meeting the accused, her
repeated refusal to occupy the front seat of the vehicle, the false assurances of
marriage and employment, and the accused’s conduct in repeatedly exploiting
those assurances establish a continuous course of deception and coercion.
9.35.It is well settled that there can be a conviction on the basis of the
sole testimony of prosecutrix and further, in this aspect, it is relevant to
remember the following golden words of the Hon’ble Thiru.Justice Krishna Iyer
in case of Krishan Lal v. State of Haryana, reported in (1980) 3 SCC 159:
“4. We must bear in mind human psychology and behavioural
probability when assessing the testimonial potency of the victim’s
version. What girl would foist a rape charge on a stranger unless a40/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023remarkable set of facts or clearest motives were made out? The
inherent bashfulness, the innocent naivete and the feminine
tendency to conceal the outrage of masculine sexual aggression are
factors which are relevant to improbabilise the hypothesis of false
implication….. And if rape has been committed, as counsel more or
less conceded, why, of all persons in the world, should the victim
hunt up the petitioner and point at him the accusing fingers? To
forsake these vital considerations and go by obsolescent demands
for substantial corroboration is to sacrifice common sense in
favour of an artificial concoction called “Judicial” probability.
Indeed, the court loses its credibility if it rebels against realism.
The law court is not an unnatural world.”9.36. In the case of State of Punjab v. Gurmit Singh, reported in
(1996) 2 SCC 384 the Hon’ble Supreme Court also reiterated the above law
and the relevant portion is as follows:
“The courts must, while evaluating evidence, remain alive to the fact
that in a case of rape, no self-respecting woman would come forward
in a court just to make a humiliating statement against her honour
such as is involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations which have no
material effect on the veracity of the prosecution case or even
discrepancies in the statement of the prosecutrix should not, unless
the Discrepancies are such which are of fatal nature, be allowed to
throw out an otherwise reliable prosecution case. The inherent41/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023bashfulness of the females and the tendency to conceal outrage of
sexual aggression are factors which the courts should not overlook.
The testimony of the victim in such cases is vital and unless there are
compelling reasons which necessitate looking for corroboration of
her statement, the courts should find no difficulty to act on the
testimony of a victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is found to be reliable.
Seeking corroboration of her statement before relying upon the same,
as a rule, in such cases amounts to adding insult to injury. Why
should the evidence of a girl or a woman who complains of rape or
sexual molestation, be viewed with doubt, disbelief or suspicion? The
court while appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial conscience,
since she is a witness who is interested in the outcome of the charge
levelled by her, but there is no requirement of law to insist upon
corroboration of her statement to base conviction of an accused. The
evidence of a victim of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is even more reliable.
Just as a witness who has sustained some injury in the occurrence,
which is not found to be self-inflicted, is considered to be a good
witness in the sense that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to great weight,
absence of corroboration notwithstanding. Corroborative evidence is
not an imperative component of judicial credence in every case of
rape. Corroboration as a condition for judicial reliance on the
testimony of the prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances. It must not be42/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023overlooked that a woman or a girl subjected to sexual assault is not
an accomplice to the crime but is a victim of another person’s lust
and it is improper and undesirable to test her evidence with a certain
amount of suspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead uniformity lest
that type of rigidity in the shape of rule of law is introduced through
a new form of testimonial tyranny making justice a casualty. Courts
cannot cling to a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex crime strikes
the judicial mind as probable.
9.37.The said view has been reiterated by the Hon’ble Supreme Court in
number of subsequent cases including in the case of State of U.P. v. Pappu,
reported in (2005) 3 SCC 594 and Ganesan v. State reported in (2020) 10 SCC
573
9.38.This Court, therefore, has no hesitation in holding that the repeated
acts of sexual intercourse committed by the accused constitute the offence
punishable under Section 376(2)(n) of the Indian Penal Code, as each act
formed part of a continuing course of repeated sexual intercourse upon the
same victim. Therefore, presumption under Section 114 A of Indian Evidence
Act comes into operation against the accused. The Section 114 A of the Indian
43/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023Evidence Act is as follows:
114A. Presumption as to absence of consent in certain
prosecution for rape. In a prosecution for rape under clause (a),
clause (b), clause (c), clause (d), clause (e), clause (f), clause (g),
clause (h), clause (i), clause (j), clause (k), clause (l), clause (m)
or clause (n) of sub-section (2) of section 376 of the Indian
PenalCode, where sexual intercourse by the accused is proved
and the question is whether it was without the consent of the
woman alleged to have been raped and such woman states in her
evidence before the court that she did not consent, the court shall
presume that she did not consent.Explanation. – In this section,
“sexual intercourse” shall mean any of the acts mentioned in
clauses (a) to (d) of section 375 of the Indian Penal
Code.] [Substituted by Criminal Law (Amendment) Act, 2013]9.39.In this case, the victim clearly deposed that she never consented for
physical relationship and the accused manipulated coersive circumstances to
have relationship. Therefore, presumption under section 114 A of evidence Act
operates against the accused. There was no evidence adduced or circumstances
available to dispel the same. In the absence of any evidence to dispel the
presumption, this Court finds that the evidence of victim is cogent, trustworthy
and without any infirmities to prove the offence against the accused under
section 376(2) (n) of IPC.
44/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
9.40. Accordingly, this Court concurs with the findings recorded by the
learned Trial Judge that the prosecution has proved the charge under Section
376(2)(n) IPC beyond reasonable doubt. The conviction recorded by the Trial
Court, therefore, warrants no interference.
10.Discussion on electronic evidence:
10.1.Before advertising to the electronic evidence, it is necessary to
observe that the evidence of the victim is cogent, trustworthy, and inspires the
confidence of this Court. The victim has consistently and clearly narrated the
occurrence, and there is no iota of material to suggest any false implication of
the accused. the conviction can be based solely the testimony of the
prosecutrix, if the Court finds the victim’s evidence is cogent, consistent,
credible , reliable, trustworthy and of sterling quality and which inspires
confidence and has remained unshaken on material particulars, without the
necessity of independent corroboration and no rule of law requires
corroboration in every case. “There is no rule of law that her testimony cannot
be acted upon without corroboration in material particulars”.1(1) “..Seeking
corroboration of her statement before relying upon the same, as a rule, in such
cases amounts to adding insult to injury”….(2)
1 2005 (3) scc 594, State of U.P. v. Pappu @ Yunus And Anr
2. 1996 (2) scc 384, State of Punjab v. Gurmit Singh
45/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202310.2. In State of Punjab v. Gurmit Singh, reported in (1996) 2 SCC 384
which held as follows;
….Corroborative evidence is not an imperative component of
judicial credence in every case of rape. Corroboration as a
condition for judicial reliance on the testimony of the prosecutrix is
not a requirement of law but a guidance of prudence under given
circumstances…”
10.3.In State of U.P. v. Pappu, Reported in (2005) 3 SCC 594 which
held as follows:
‘12. It is well settled that a prosecutrix complaining of having been
a victim of the offence of rape is not an accomplice after the crime.
There is no rule of law that her testimony cannot be acted upon
without corroboration in material particulars. She stands at a
higher pedestal than an injured witness. In the latter case, there is
injury on the physical form, while in the former it is both physical
as well as psychological and emotional. However, if the court of
facts finds it difficult to accept the version of the prosecutrix on its
face value, it may search for evidence, direct or circumstantial,
which would lend assurance to her testimony. Assurance, short of
corroboration as understood in the context of an accomplice, would
do.’46/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202310.4.The same was reiterated by the Hon’ble Supreme court in case of
Ganesan v. State reported in (2020) 10 SCC 573 which held as follows:-
“12. It is well settled that a prosecutrix complaining of having
been a victim of the offence of rape is not an accomplice after
the crime. There is no rule of law that her testimony cannot be
acted upon without corroboration in material particulars, She
stands at a higher pedestal than an injured witness. In the latter
case, there is injury on the physical form, while in the former it
is both physical as well as psychological and emotional.
However, if the court of facts finds it difficult to accept the
version of the prosecutrix on its face value, it may search for
evidence, direct or circumstantial, which would lend assurance
to her testimony. Assurance, short of corroboration as
understood in the context of an accomplice, would do.”10.5.The conviction recorded by the learned trial Judge is, therefore, fully
supported by the oral testimony of the victim. This Court concurs with the
findings recorded by the learned trial Judge on the appreciation of the victim’s
evidence. However, as the prosecution case substantially emanates from the
electronic evidence recovered in the base case in Crime No.503 of 2020, this
Court proposes to examine the corroborative electronic evidence in detail.
10.6.The records disclose that the accused was first arrested in the base
47/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023case, namely Crime No.503 of 2020, on 24.04.2020 at 16.15 hours by P.W.27.
Following the arrest, P.W.27 recorded the voluntary confession of the accused,
and pursuant to the admissible portion of the confession (Ex.P-25), recovered
Apple mobile phone (M.O.4) bearing the relevant mobile number 9629359759
and IMEI number 353839101001992 under the recovery mahazar (Ex.P-23).
The evidence of P.W.27 regarding the arrest, confession and recovery is cogent,
consistent and free from any indication of false implication.
10.7.It is a settled principle of criminal jurisprudence that the testimony
of a police officer cannot be discarded merely because he belongs to the police
force. Unless there exists material creating a reasonable doubt regarding the
fairness of the recovery or suggesting false implication, the evidence of a police
officer is to be treated on par with that of any other competent witness. This
principle has been authoritatively laid down by the Constitution Bench of the
Hon’ble Supreme Court in case of Mukesh Singh v. State (NCT of Delhi),
reported in (2020) 10 SCC 120 that the testimony of police personnel will be
treated in the same manner as testimony of any other witness and there is no
principle of law that without corroboration by independent witnesses his
testimony cannot be relied upon and the presumption that a person acts honestly
applies as much in favour of a police officer as of other persons, and it is not
judicial approach to distrust and suspect him without good grounds therefor by
48/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
affirming earlier decisions Hon’ble Two members Bench:
Karamjit Singh v. State (Delhi Admn.), (2003) Devender Pal Singh v. State (NCT
5 SCC 291 of Delhi), (2002) 5 SCC 234
8……. The testimony of police personnel 37. …. The presumption that a
should be treated in the same manner as person acts honestly applies as much
testimony of any other witness and there is no in favour of a police officer as of
principle of law that without corroboration by other persons, and it is not a judicial
independent witnesses their testimony cannot approach to distrust and suspect him
be relied upon. The presumption that a person without good grounds therefor. Such
acts honestly applies as much in favour of a an attitude can do neither credit to
police personnel as of other persons and it is the magistracy nor good to the
not a proper judicial approach to distrust and public. It can only run down the
suspect them without good grounds. .. prestige of police administration..
10.8.The prosecution has further established that A-2, the father of A-1,
was arrested on 26.04.2020, during which an Apple MacBook, admittedly used
by A-1 and containing the incriminating digital materials, was recovered under
the recovery mahazar (Ex.P-21). The recovery has been clearly spoken to by
P.W.27, the Investigating Officer, and independently corroborated by P.W.24,
the Village Administrative Officer, Kalaiselvi, who witnessed the recovery
proceedings. Both witnesses were subjected to extensive cross-examination;
however, nothing was elicited to discredit their testimony or to cast any doubt
on the genuineness of the recovery. Consequently, this Court holds that the
recovery of both ‘the Apple mobile phone (M.o.4) ‘and ‘the Apple MacBook
(M.o.3)’ stands duly proved in accordance with law.
49/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
10.9. The recovery of the laptop assumed considerable significance, as it
constituted the primary repository of the incriminating electronic evidence.
During interrogation, the appellant voluntarily identified the victims whose
photographs and videos were stored therein. On the basis of the information
furnished by him, the investigating agency identified more than sixty victims.
Having established the legality of the recovery, the prosecution has further
demonstrated the manner in which the electronic evidence was preserved and
examined. The laptop, along with the other electronic devices, were thereafter
sealed in accordance with law and forwarded to the Forensic Science
Laboratory, Chennai, for scientific examination and extraction of the electronic
data.The Apple MacBook was forwarded to the Forensic Science Laboratory
pursuant to orders of the competent Court namely learned Judicial Magistrate,
Additional- Mahila Court, Nagercoil. The forensic experts, after obtaining the
requisite judicial permission from the court, adopted the standard forensic
procedure namely “super duber for mac os method” and successfully cloned
files from ‘the Apple MacBook (M.O.3) and copied onto a hard disk in
accordance with established forensic protocols by ensuring the intactness of the
original electronic device. The hard disk together with the preliminary forensic
report was forwarded to the jurisdictional Court under Ex.P-17, dated
28.08.2020, vide proceeding division No.CF/100/2020. The material contents
50/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
of the report as follows :
“In the contents of the report, present victim vedio was annexed in
Annexure -II, (351 vedio file, dated 21.09.2019)
(i) A complete copy of the data available in the laptop was as such
copied on to the hard disk in a viewable condition. The folders under
the main user/folder named kasi_k9, is as follows: …….
(ii) Among the stored files, in the following folder path
kasi_k9\downloads\demo file\demi\v d, video files (355 nos)
pertaining to the female individuals in obscene poses (nude/half
nude) including selfie type videos of female involved in vedio calls
with a male individual, were found stored. File attributes for the
video files are given in Annexure I.
(iii) Also in another subfolder (same main folder path)
kasi_k9\Downloads\demofile\demo\p d, image files pertaining to the
female individuals in obscene poses (nude/half nude) were found
stored. File attributes for selected image files n the folder are givn in
Annexure II.
(iv) Several files under different subfolders which could have been
copied from the mobile phones were found stored under the path:
kasi_k9\Downloads\demo file\phone file. The subfolders under the
main folder phone file, are as follows: …
51/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
(v) File attributes for the folders/files under the user /main folder
named “kasi_k9” generated in a worksheet file and the same is
copied onto a Digital Versatile Disc marked as “CF100/2020
generated reports in pdf formats”.
10.10. Subsequently, on the basis of the complaint lodged by the victim
on 30.10.2020, the present case was registered by P.W.28, the CBCID
Investigating Officer, after obtaining the requisite permission from the superior
authority in accordance with the CBCID Manual. Thereafter, A-1 was arrested
on 07.11.2020, and pursuant to the orders of the jurisdictional Court, P.W.28
obtained four days of police custody for the purpose of investigation.
10.11. During the period of police custody, the Investigating Officer
obtained the forensic hard disk from the Forensic Science Laboratory on
10.11.2020. Thereafter, an identification procedure was conducted in the
presence of P.W.18, the Scientific Officer, and independent witnesses P.W.19
and P.W.21. The relevant evidence of the witnesses in this aspects as follows:
PW 18 ,ij bjhlh;eJ
; tHf;fpd; ghjpf;fg;gl;l bgz;iz tPonahtpy; 1tJ vjphp R$pvd; Kd;dpiyapy; milahsk; fhl;odhh;/ P.W.19 bray;Kiw Mizapy; 87tJ fhyj;jpy;
ghjpf;fg;gl;l bgz;zpd; g[ifg;glj;ij 1tJ vjphp milahsk; fhl;odhh;/ PW 21, PW
28 have also deposed in the similar line of PW 18 and PW 19. Therefore, P.W.
52/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202318, P.W.19, P.W.21 and P.W.28 have consistently deposed that the accused
himself identified the victim and the relevant photographs and videos stored in
the hard disk. Their evidence is consistent, inspires confidence, and remains
unshaken in cross-examination. The entire identification process was
contemporaneously recorded by the Investigating Officer under the “bray;Kiw
tpsf;f Miz (Ex.P-12)”, which bears the signatures of the accused, the
Scientific Officer, the independent witnesses and the Investigating Officer,
thereby lending further assurance to the authenticity of the identification
process. During this procedure, the accused identified the photographs and
video recordings relating to the number of victims which were stored in the
hard disk. After the completion of the identification proceedings, on
11.11.2020, PW 28, handed over the photos and videos to place the same in
safe custody of the Court vide communication dated Ex.P.33 and thereafter, the
relevant portion of the videos and photos of the victim was sent to the FSL
office. The said reports under Ex.P.19, 20, MO.20, were marked by examining
the concerned expert PW 22 (computer division and Anthropology division)
and the report dated 30.09.2022, marked under Ex.P. 34 by examining the
concerned expert PW 29(Physics division). Upon furnishing the copies, they
are cross examined and the specific case of morphing is completely ruled out by
the said witnesses without accepting the suggestion of the defence.
53/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
10.12. Having thus established the chain of custody, the legality of the
recoveries, and the manner in which the electronic evidence was secured,
preserved and subjected to forensic examination, this Court now proceeds to
examine the admissibility, reliability and evidentiary value of the electronic
evidence in accordance with the provisions of the Indian Evidence Act and the
settled principles laid down by the Hon’ble Supreme Court.
11. Discussion the plea of genuiness of EX.P12 :
11.1. On 10-11-2020, the accused identified the victim along with him in
all the offending materials namely the hard disk delivered by the FSL office.
And the said identification has been spoken to P.W.s 18, 19 and 21. And the
said process was recorded in the Exhibit P12. The process of making Exhibit
P12 was critically objected by the learned senior counsel on the basis of the
date that it was wrongly mentioned. It was argued that it can be taken that the
report is not only false but also fabricated one. The said submission also is not
accepted by this court. There was an inadvertent omission, inadvertent mistake.
Instead of putting the date “10-11-2020”, she signed and mentioned the date as
“11-10-2020”. This is a human error. The human error is found in the said
document itself. This is prepared in the presence of PWs 18, 19, 21. All these
witnesses signed on 10-11-2020. Even in the last page of the proceedings, the
54/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
same investigation officer has put the signature as 10-11-2020. The said
document also reached the court on 11-11-2020. Therefore, this inadvertent
mistake has not affected the case of the prosecution and it cannot be taken
advantage by defence. The learned Senior Counsel placed considerable reliance
upon the discrepancy about the dates found in Exhibit P-12, contending that
the Investigating Agency had fabricated the document with a view to securing
the conviction of the accused in collusion with other departments. This Court is
unable to accept the said contention.
11.2. A careful reading of the document reveals that the forensic process
was in fact conducted on “10.11.2020”. However, in the signature column, the
Investigating Officer inadvertently mentioned the date as “11.10.2020”. Having
regard to the document as a whole and the surrounding circumstances, this
Court is satisfied that the discrepancy is nothing but an inadvertent human error
in recording the date. Significantly, the records also disclose that the material
object was received from the jurisdictional Court on the relevant date ie.,
11.11.2020 itself, thereby lending assurance to the genuineness of the document
and the continuity of the chain of custody.
11.3. It is well settled that every clerical or inadvertent error committed
by a public servant cannot be elevated to the level of fabrication or
55/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
manipulation unless there is cogent and convincing evidence establishing a
deliberate attempt to create false evidence. In the present case, there is
absolutely no material to infer that the discrepancy about the date was
intentional or that the Investigating Agency acted in collusion with any other
department to fabricate evidence. On the contrary, the records unmistakably
indicate that it is a mere clerical or human error, which does not affect the
authenticity or evidentiary value of Exhibit P-12.
12. Discussion in delay in production of FSL Report:-
12.1. The learned Senior Counsel appearing for the appellant vehemently
contended that the investigating agency filed the final report on 23.01.2021,
without awaiting the forensic examination report relating to the electronic
devices and, therefore, the prosecution was launched without sufficient
material. According to the learned Senior Counsel, the subsequent production
and marking of the forensic reports cannot cure the defect in the
investigation.The learned Senior Counsel further contended that the
examination of certain expert witnesses after the filing of the final report
vitiates the prosecution case.
12.2. This Court finds no merit in the said submission and also unable to
56/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023accept the same. Already the report dated 28-8-2020, in the base case was
marked under Exhibit P17 including the portion of this crime, which was
already available with the court. The same was obtained and the identification
was clearly spoken by the accused as well as the victim. The Investigating
Officer, who was present before this Court, categorically explained that already
report had been received by the learned Judicial Magistrate and the same was
marked under Ex.P17 and after the arrest and the accused identification of the
victim in the offending material, the corresponding portion of the video was
separated as per the Court order (M.O.1) and the same was sent to the FSL lab
immediately.
12.3. Further according to IO ,the Forensic Science Laboratory has
separate specialised divisions dealing with electronic evidence, including
computer division, the Anthropology Division, and Physics Division. The
Cyber Forensic Division of the laboratory follows a multi-stage appraisal
process. The examination is undertaken by different specialised divisions, each
of which carries out independent analysis. Thereafter, the individual reports
were assimilated and a comprehensive final report was prepared and forwarded
to the jurisdictional Court. Naturally, such a scientific process consumes
considerable time. Therefore, the final report came to be filed without obtaining
the requisite report as contemplated under the Criminal Rules of Practice, 2019.
57/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
Further, the relevant Rules and Circulars provide that such report may
subsequently be obtained directly by the Court, either under Section 293 Cr.P.C.
or Section 294 Cr.P.C. Apart from the above, for marking an expert report under
Section 294 Cr.P.C., there is no necessity to examine the expert witness, as per
the Memorandum of Procedure issued by this Court.
12.4. In the present case, the Investigating Officer had forwarded the
electronic devices for examination much earlier without any delay. However, as
the investigation had already yielded substantial and cogent evidence
establishing the commission of the offences, including the victim’s statement,
the recoveries effected pursuant to the voluntary confessions of the accused,
and the electronic materials already secured, the Investigating Officer filed the
final report on 23.01.2021 without awaiting the consolidated forensic report
pertaining to this case material namely M.O.1.
12.5. Apart from that, during the course of trial, the prosecution filed the
petition in Crl.M.P(MD).No.77 of 2023 to examine P.W.29 and the accused
said “no objection” and therefore the petition had been allowed and P.W.29, the
FSL officer was called and the corresponding report and M.O.1 pertaining to
the portion of this crime were marked .Such a course is not only legally
58/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
permissible but is also consistent with the duty of the Court to discover the
truth and ensure a fair trial. The course of calling report through the legal
process of filing petition has not been questioned by the accused. In those
circumstances, the learned trial Judge rightly exercised the power to summon
the expert witness and mark the relevant documents so as to place the complete
scientific evidence before the Court. It is well settled principle that the Court
possesses unbriddled power to examine expert evidence if it is necessary for
arriving at the truth and that procedural lapses should not defeat the cause of
justice and the Court has a duty to ensure that all relevant evidence is brought
on record in the interests of justice. There is no legal infirmity in this case, and
hence the belated production of the report does not dent the case of the
prosecution and the expert witnesses, namely P.W.22 and P.W.29, entered the
witness box, produced the forensic reports and explained the scientific
examination conducted by them. They are experts, independent persons without
any motive to depose falsely about the contents of the electronic document
produced by the police officers and the same was done as per legal
procedures.They were subjected to lengthy, searching and incisive cross-
examination on every material aspect relating to the forensic process.The
experts PW22 and PW29 cannot be held to be false witnesses.
59/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
12.6. Hence, the learned trial Judge adopted the above course only to
ensure a fair trial, both for the prosecution and for the accused, by placing
before the Court the complete scientific evidence relating to the electronic
material. This Court finds no procedural irregularity or legal infirmity in the
said course adopted by the trial Court. Therefore, this court finds there is no
infirmity in all aspects about the electronic evidence and also this court is
unable to accept the argument of senior counsel relating to the admissibility of
electronic evidence.
12.7. The experts consistently deposed that the electronic devices
examined by them showed no signs of tampering, manipulation or morphing
and that the actual contents of the electronic data had remained intact
throughout the forensic examination. Nothing worthwhile could be elicited
during their cross-examination to discredit either their reports or the scientific
methodology adopted by them.
12.8. It is also pertinent to note that the forensic reports had been
furnished to the accused well before they were formally exhibited during trial.
Therefore, the appellant had full enough time and opportunity to study the
reports, effectively cross-examine the expert witnesses and contest the scientific
evidence. Consequently, no prejudice whatsoever has been demonstrated to
60/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
have been caused to the defence merely because the reports were formally
marked at the later stage of the trial.
12.9. It is well settled that every irregularity or omission in the course of
investigation does not vitiate the trial unless it has occasioned a failure of
justice or caused prejudice to the accused. In the present case, the evidence of
the victim has been found to be cogent, natural and wholly trustworthy. The
forensic reports only lend further scientific corroboration to the prosecution
case and are not the sole foundation of the conviction.
12.10. Accordingly, the contention of the learned Senior Counsel that the
filing of the final report prior to the receipt of the consolidated forensic report
renders the prosecution unsustainable is misconceived and liable to be rejected.
13. Discussion on the plea of the admissibility and evidentiary value
of the electronic evidence:
13.1.According to the learned Senior Counsel, the incriminating
materials found in the MacBook (M.O.3) cannot be treated as the original
electronic records, in view of the specific reference made to the “Apple iPhone
XS” in the report Ex.P17. It is contended that the incriminating materials were
originally recorded using the “Apple iPhone XS” and were thereafter
61/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023transmitted to the MacBook (M.O.3). Therefore, in the absence of a certificate
under Section 65-B of the Indian Evidence Act, the contents of the MacBook
cannot be treated as primary evidence. Consequently, reliance placed upon the
contents of the MacBook, without such certificate, is illegal and lacks
evidentiary value.
13.2. This Court is unable to accept the submissions advanced by the
learned Senior Counsel regarding the admissibility and evidentiary value of the
electronic evidence. With due respect, the said submissions are founded upon
an incorrect appreciation of both the factual circumstances and the settled legal
principles governing electronic evidence.
13.3. It is the specific case of the victim that the accused clandestinely
recorded the incriminating videos on 20.09.2019 without her knowledge or
consent. In this regard, it is relevant to extract the unchallenged testimony of
the victim:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
13.4.The above evidence was not subjected to any challenge during
cross-examination. It is a settled principle that when a material statement made
62/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023during examination-in-chief remains unchallenged in cross-examination, the
same can be accepted as true. Therefore, it is established that the recording was
made by the accused without the knowledge of the victim.
13.5.The nature of the electronic device used for recording and the
process by which such recording was made were matters particularly within the
knowledge of the accused. It is not the case of the accused that M.O.3 was
neither used by him nor recovered from his possession. The expert report
Ex.P17 clearly records the presence of the incriminating materials relating to
the incident dated 20.09.2019. The disclosure statement of the accused also
indicates that the incriminating materials were recorded using M.O.3.
13.6.In the considered view of this Court, the accused not only recorded
the incriminating materials in a clandestine manner but also attempted to
mislead the investigation by stating that the recording device was an iPhone 11
(M.O.4).
13.7.It is also relevant to note the evidence of P.W.28, wherein it was
stated that the incriminating materials were transferred through the process of
63/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023synchronization using the continuity feature available between Apple devices.
13.8.Once the original MacBook containing the incriminating materials
was recovered, scientifically examined, and the relevant videos were extracted
through forensic analysis, the evidentiary value of such electronic records
cannot be rejected merely because the original recording device was not
recovered. If the accused seeks to contend that the videos were recorded
through another device, it is incumbent upon him to provide a satisfactory
explanation regarding the manner in which such recordings came to be
synchronized and stored in the seized MacBook.
13.9. The learned Trial Judge has also elaborately considered the
technological linkage between the seized MacBook and the iPhone. It is
relevant to note that the accused was using Apple devices, namely an Apple
iPhone, Apple Watch, and MacBook. Upon appreciation of the forensic
evidence, the Trial Court rightly observed that the images and videos stored in
the MacBook were synchronized through the continuity features available
between Apple devices.
13.10.This Court finds no infirmity in the said reasoning. In view of the
foregoing discussion, the incriminating materials found in the MacBook (M.O.
64/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
3) shall be treated as originating from the primary source, and consequently, no
certificate under Section 65-B of the Indian Evidence Act is required for
proving the contents of the MacBook (M.O.3).
13.11. As per the decision of the Hon’ble three judges Bench decision of
the Apex Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal reported in (2020) 7 SCC 1, when the original was produced, there is
no necessity to obtain certificate under Section 65-B. The incriminating
electronic material marked as Material Object No.1 relating to this case was
extracted from the seized “Apple MacBook laptop M.O.3”, which had already
been produced before the competent Court . The device was made available to
the investigating agency in the present case only after obtaining appropriate
orders from the jurisdictional Court. The prosecution has thus established an
unbroken chain of custody regarding the electronic device.
13.12. The learned Trial Judge has examined this issue from two distinct
perspectives.
13.12.1. Firstly, the Court rightly observed that a certificate under Section
65/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
65-B is ordinarily required from the person who has lawful control over the
computer or electronic device from which the electronic record is produced.
The three judges bench of Hon’ble Supreme Court Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, has also recognised that a
certificate cannot be insisted upon where obtaining the same is impossible
despite best efforts. The Hon’ble Supreme Court has recognised such situations
of impossibility and impracticability. In Shafhi Mohammad v. State of
Himachal Pradesh, (2018) 2 SCC 801, and the three judges Bench decision of
the Hon’ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal, (2020) 7 SCC 1, it has been clarified that where the party relying
upon the electronic record is not in possession or control of the original device
and it is impossible to secure the requisite certificate, the Court may adopt an
appropriate course consistent with the interests of justice. In the present case,
that person is none other than the accused himself. It would be wholly
unrealistic and legally untenable to insist that the prosecution should obtain a
certificate from the accused, who was in judicial custody and was the author
and custodian of the incriminating electronic records.
13.12.2.Secondly, the electronic data contained in Material Object No.1
was subjected to scientific examination by the Forensic Science Laboratory.
66/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
The expert evidence only explains the contents retrieved from the original
electronic device that was already in the lawful custody of the investigating
agency relating to the portion of the present case. The expert merely analysed
and processed the electronic contents already stored in the original device
seized during investigation. Such forensic examination does not amount to
creation of a fresh electronic record requiring a separate certificate under
Section 65-B of the Evidence Act.
13.13. This Court, therefore, finds that the prosecution has established
the authenticity, genuineness and continuity of the electronic evidence through
the seizure mahazars, the disclosure statement of the accused, the scientific
examination, the forensic reports and the oral evidence of the expert witnesses.
No material has been produced by the defence to suggest any tampering,
fabrication or manipulation of the electronic records.
13.14. Accordingly, the submission of the learned Senior Counsel that a
certificate under Section 65B was mandatory for the offending materials stored
in the seized Mac Book is misconceived and legally un-sustainable. The
contention is, therefore, rejected. The findings recorded by the learned Trial
Judge on this aspect are based on a correct appreciation of the evidence and
67/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
settled principles of law and, therefore, warrant no interference.
14. Discussion on the plea of morphing:
14.1. The learned Senior Counsel placed considerable reliance on the
testimony of the forensic expert during cross-examination, contending that
there existed a possibility of morphing or manipulation of the messages, videos,
and other offending electronic materials. This Court is unable to accept the said
submission.
14.2. The learned trial Judge, after playing the impugned video in open
Court and observing the demeanour of the victim, recorded a categorical
finding that the contents of the offending material unmistakably corresponded
to the victim and the accused. In order to independently test the correctness of
the said finding, this Court also viewed the video, which runs for more than 18
minutes. Upon careful examination, this Court does not find even a slightest
circumstance suggesting that the video has been morphed, fabricated, or
digitally manipulated. On the contrary, the video appears to be a natural and
continuous recording clandestinely made by the accused with the object of
threatening, intimidating, and coercing the victim into continued submission to
68/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023his unlawful demands. Mere suggestions elicited in cross-examination
regarding a theoretical possibility of morphing, without any scientific evidence
demonstrating actual tampering, cannot displace the evidentiary value of the
electronic record. Further affirmative and assertive evidence of expert is that
there was no morphing which reads as follows:
PW 22, FTK Imager, Super duper method y; ve;j ,nk$;fSk; tPonahf;fSk;
fpilf;fhjjhy; khh;gp’; K:yk; nghyprhh; nfl;ljpd; nghpy; ,e;j mwpf;iffs; jahh;
bra;ag;gl;ls;sJ vd;why; rhpay;y/;
PW 29, ehd; Ma;t[ bra;j ,nk$; igy;fSk; tPonah igYk; tHf;fpw;fhf
gpd;dpl;L jahhpf;fg;gl;lit vd;why; rhpay;y/
14.3.The learned Senior Counsel assailed the admissibility and
genuineness of Exhibit P-1, the selfie photograph, contending that it was a
fabricated document created by the Investigating Agency. In support of the said
contention, reliance was placed upon certain portions of the evidence and the
objections raised during the trial. This Court is unable to accept the said
submission.
14.4. A careful reading of the cross-examination of the victim reveals that
the defence itself put a specific suggestion that the victim had voluntarily
69/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023consented to take Exhibit P-1, namely the selfie photograph, along with the
accused. Such a suggestion is wholly inconsistent with the defence plea that the
photograph was fabricated. If the defence asserts that the victim willingly
participated in taking the selfie, it necessarily proceeds on the premise that the
photograph is genuine. Having taken such a defence during cross-examination,
it is not logical to subsequently contend that the very same photograph was
fabricated by the Investigating Agency.
14.5. The law is well settled that though an accused is entitled to raise
alternative defences, the mutually destructive and irreconcilable pleas which
negate each other substantially weaken the credibility of the defence. In the
present case, the plea that the victim voluntarily posed for the selfie is
fundamentally inconsistent with the allegation that Exhibit P-1 was fabricated.
14.6. This Court has independently examined Exhibit P-1 along with
Material Object No. 1 (M.O.1) and the other contemporaneous records. The
materials on record do not disclose any circumstance suggesting that the
photograph was manipulated, fabricated, or subsequently created by the
Investigating Agency. On the contrary, the electronic evidence and the
70/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023connected material objects lend assurance to the authenticity of the photograph.
Accordingly, the contention of the learned Senior Counsel that Exhibit P-1 and
the connected material objects were fabricated by the Investigating Agency is
wholly devoid of merit and is liable to be rejected.
14.7. The Hon’ble Supreme Court has consistently held that when
authenticity of electronic evidence is duly established in accordance with law,
they cannot be discarded on the basis of mere conjectures or hypothetical
possibilities in the absence of tangible material establishing manipulation.
Accordingly, the contention regarding alleged morphing is wholly
misconceived and deserves to be rejected.
14.8. Pending investigation, the Investigating Officer made a requisition
through the jurisdictional Court to the Forensic Science Laboratory by
communication in D.No.1255 of 2020, requesting segregation and preservation
of the electronic evidence specifically relating to the present victim from the
data extracted from the seized electronic devices.
14.9. Only after such identification by both the appellant and the victim,
the investigating agency forwarded the victim’s admitted photographs to the
Forensic Science Laboratory for comparison with the images and videos
71/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
extracted from the seized devices. This exercise was undertaken only as a
measure of scientific corroboration and not for the purpose of identifying the
victim for the first time. Thus, the forensic comparison constituted an additional
corroborative step to reinforce the evidence already available through the
appellant’s own disclosure, the victim’s identification, and the electronic records
recovered during the course of investigation.
14.10. Moreover, the victim, while deposing before the trial Court,
specifically identified Ex.P1, the selfie photograph, and also identified the
offending photographs and videos contained in M.O.1. Her identification was
clear, consistent and remained unshaken during cross-examination. The learned
trial Judge, who had the advantage of observing the demeanour of the victim
during his testimony, as well as the manner in which the electronic materials
were identified before the Court, accepted his evidence as natural and
trustworthy.
14.11. Accordingly, this Court finds no substance in the submission that
the filing of the final report prior to receipt of the forensic comparison report
creates doubt regarding the prosecution case. On the contrary, the evidence on
record, both oral and electronic, establishes the identity of the victim beyond
reasonable doubt, and the subsequent expert opinion only reinforces the
72/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
prosecution version
15. Discussion on the delay in lodging FIR:
15.1. The contention advanced by the learned Senior Counsel regarding
the delay in lodging the First Information Report does not merit acceptance. In
this aspects ,it is relevant to extract the following portion of evidence of victim:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
15.2. A careful appreciation of the evidence on record reveals that the
delay has been satisfactorily and convincingly explained by the prosecutrix.
Her explanation is not confined merely to her oral testimony but stands fully
corroborated by the attendant circumstances and the documentary evidence
placed before this Court.
15.3. The consistent case of the prosecutrix is that she was subjected to
continuous criminal intimidation by the accused, who repeatedly threatened to
publish her intimate photographs and videos on social media if she disclosed
the sexual assaults to anyone. The prosecution has established through the
electronic evidence recovered during investigation that such objectionable
73/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
materials were, in fact, in the possession of the accused. Consequently, the
apprehension entertained by the prosecutrix was neither imaginary nor
unfounded but was based upon a real and continuing threat.
15.4. The complaint itself lends intrinsic assurance to the prosecution
case. A reading of the complaint shows that the prosecutrix specifically
requested the Investigating Officer to safeguard her identity and not to disclose
her name to any person. She further requested the Investigating Officer to
ensure the deletion of the objectionable photographs and videos from the
electronic devices of the accused. These requests, made contemporaneously
while lodging the complaint, clearly demonstrate the intense fear, trauma and
apprehension under which the prosecutrix was living. They also negate any
suggestion that the complaint was an afterthought or motivated by extraneous
considerations.
15.5. The evidence further discloses that the prosecutrix remained under
continuous threat of exposure until the investigating agency, in the earlier
registered crime, seized the electronic devices containing the incriminating
material. It was only after she became aware that the offending materials had
been recovered by the investigating agency and that her identity and privacy
74/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
could be effectively protected she gathered courage to approach the police and
narrate the entire sequence of events. In her complaint, she specifically referred
to the threats administered by the accused, the repeated acts of sexual assault,
and her request for deletion of the offending electronic material. These
circumstances furnish a natural, cogent and wholly satisfactory explanation for
the delay in lodging the complaint.
15.6. This Court is also unable to overlook the peculiar factual
background of the present case. The materials available on record disclose that
the accused had allegedly employed a similar modus operandi against several
women, exploiting them through deceit, intimidation and the misuse of intimate
electronic images. The prosecutrix, being aware of the influence exercised by
the accused and the smutty material allegedly in his possession, had every
reason to entertain genuine fear regarding her personal safety, the dignity of her
family and the reputation of her sisters. The fear of public humiliation through
dissemination of intimate images on social media constitutes a powerful
psychological restraint, which cannot be lightly ignored while appreciating the
delay in initiating criminal proceedings. In the considered opinion of this Court,
in the above circumstances, the conduct of the victim is natural. Under the
above circumstances, delay in giving complaint is not fatal to the prosecution.
75/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
In the sexual offence Case, acceptance of the reasoning of delay is Rule and
denial is exception. The Hon’ble Supreme Court in the following cases has laid
down the law that the delay in registering the case in sexual offence case is
entirely different from other crime and hence the explained delay is to be
accepted except in the case of false implication.
15.7.The Hon’ble supreme court in the Karnel Singh v. State of M.P.,
reported in (1995) 5 SCC 518 has held as follows:-
7. Merely because the complaint was lodged less than
promptly does not raise the inference that the complaint was
false. The reluctance to go to the police is because of society’s
attitude towards such women; it casts doubt and shame upon her
rather than comfort and sympathise with her. Therefore, delay in
lodging complaints in such cases does not necessarily indicate
that her version is false. …
15.8. The Hon’ble supreme court in the State of Punjab vs Gurmit
singh reported in (1996) 2 SCC 384 has held as follows:-
The courts cannot overlook the fact that in sexual offences delay in
the lodging of the FIR can be due to variety of reasons particularly
the reluctance of the prosecutrix or her family members to go to the
police and complain about the incident which concerns the76/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023reputation of the prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of sexual offence is
generally lodged. The criticism by the trial court of the evidence of
the prosecutrix as to why she did not complain to the lady teachers
or to other girl students when she appeared for the examination at
the centre and waited till she went home and narrated the
occurrence to her mother is unjustified. The conduct of the
prosecutrix in this regard appears to us to be most natural. The trial
court overlooked that a girl, in a tradition- bound non-permissive
society in India, would be extremely reluctant even to admit that any
incident which is likely to reflect upon her chastity had occurred,
being conscious of the danger of being ostracized by the society or
being looked down by the society. Her not informing the teachers or
her friends at the examination centre under the circumstances
cannot detract from her reliability. In the normal course of human
conduct, this unmarried minor girl, would not like to give publicity
to the traumatic experience she had undergone and would feel
terribly embarrassed in relation to the incident to narrate it to her
teachers and others overpowered by a feeling of shame and her
natural inclination would be to avoid talking about it to anyone, lest
the family name and honour is brought into controversy. Therefore
her informing her mother only on return to the parental house and
no one else at the examination centre prior thereto is in accord with
the natural human conduct of a female77/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202315.9. The Hon’ble supreme court in the State of H.P. v. Prem Singh,
reported in (2009) 1 SCC 420 is held as follows:
“6.So far as the delay in lodging the FIR is concerned, the
delay in a case of sexual assault, cannot be equated with the case
involving other offences. There are several factors which weigh in
the mind of the prosecutrix and her family members before coming
to the police station to lodge a complaint. In a tradition-bound
society prevalent in India, more particularly rural areas, it would
be quite unsafe to throw out the prosecution case merely on the
ground that there is some delay in lodging the FIR. In that score,
learned counsel for the appellant is right that the High Court has
lost sight of this vital distinction.
15.10. The same has been reiterated by the Hon’ble supreme court in the
Deepak v. State of Haryana, reported in (2015) 4 SCC 762 is held as
follows:-
15. The courts cannot overlook the fact that in sexual
offences and, in particular, the offence of rape and that too on a
young illiterate girl, the delay in lodging the FIR can occur due to
various reasons. One of the reasons is the reluctance of the
prosecutrix or her family members to go to the police station and
to make a complaint about the incident, which concerns the
reputation of the prosecutrix and the honour of the entire family.
In such cases, after giving very cool thought and considering all
pros and cons arising out of an unfortunate incident, a complaint
78/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
of sexual offence is generally lodged either by the victim or by any
member of her family. Indeed, this has been the consistent view of
this Court as has been held in State of Punjab v.Gurmit Singh
[(1996) 2 SCC 384 : 1996 SCC (Cri) 316] .
15.11. While examining such an issue, the Court must place itself in the
position of the victim and assess her conduct from the standpoint of an ordinary
person subjected to similar circumstances, rather than from the detached
perspective of a third party. A victim of repeated sexual exploitation coupled
with persistent threats of exposure cannot be expected to immediately rush to
the police in breakneck speed. Human conduct varies according to
circumstances, and hesitation or delay in reporting sexual offences is often the
natural consequence of fear, shame, trauma and social stigma. Therefore this
Court finds no unnaturality in the conduct of the victim.
15.12. Applying the aforesaid principles to the facts of the present case,
this Court is satisfied that the delay in lodging the complaint stands fully
explained. The explanation offered by the prosecutrix is natural, probable and
receives substantial corroboration from the surrounding circumstances as well
as the electronic evidence recovered during investigation. The delay, therefore,
neither affects the credibility of the prosecutrix nor creates any dent in the
prosecution case.
79/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
15.13. Accordingly, this Court finds no merit in the contention of the
learned Senior Counsel that the prosecution case is liable to be disbelieved on
account of delay in lodging the First Information Report. The said contention is,
therefore, rejected.
16. Discussion on the Contention Regarding Omission in the FIR:
16.1. The learned Senior Counsel appearing for the appellant contended
that the First Information Report does not contain any allegation regarding the
three instances of physical intimacy allegedly committed by the accused with
the victim. It was, therefore, argued that the subsequent testimony of the victim
before the Court constitutes an improvement over the FIR and is consequently
unreliable and unworthy of acceptance.
16.2. This Court is unable to accept the said contention.
16.3. The learned trial Judge has elaborately dealt with this aspect in
paragraphs 34 and 35 of the judgment. This Court has independently re
-appreciated the reasoning assigned therein and finds no infirmity warranting
interference.
80/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
16.4. As already discussed in the preceding paragraphs of this judgment,
the materials on record clearly establish that the victim was under severe fear
psychosis due to the act of the accused. The accused had subjected the victim to
a deceptive relationship, continuously intimidated her by threatening to publish
the intimate photographs and videos, and thereby exercised complete
psychological domination over him. The evidence further discloses that the
victim was under persistent mental trauma and, at one stage, had even thought
of committing suicide.
16.5. It is also evident from the records that, after the investigation was
transferred to the CBCID, the victim came to know that the electronic devices
seized from the accused contained objectionable photographs and videos
relating not only to her but also to numerous other victims. Naturally, the
victim’s foremost concern was to ensure that the offending materials were
removed and prevented from being circulated through social media. Even at
that stage, she was uncertain whether her own images or videos were still
available in the electronic devices seized by the investigating agency.
16.6. In such circumstances, the complaint was primarily confined to
seeking protection against the publication and circulation of the offending
materials. Though the victim referred to the offence under Section 376(2)(n)
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
IPC and the threats made by the accused regarding the disclosure of their
physical relationship, she did not narrate every individual act of sexual assault
in detail.
16.7. The omission to mention all the instances of sexual intercourse in
the FIR cannot, by itself, render the prosecution case doubtful. It is a settled
principle of criminal jurisprudence that an FIR is not expected to be an
encyclopaedia containing every minute detail relating to the commission of the
offence. Its object is merely to set the criminal law in motion. Therefore, every
omission or non-mention of a particular fact in the FIR cannot be treated as a
contradiction so as to discredit the subsequent testimony of the victim.
16.8. This Court has already discussed, while considering the delay in
registration of the case, the peculiar circumstances under which the victim
approached the police. The victim belongs to a lower middle-class family. Out
of shame, fear and social stigma, and ignominy she did not disclose the incident
even to her family members. she specifically requested the investigating agency
not to reveal her identity, and the records so that her identity was effectively
protected throughout the investigation and trial. These surrounding
circumstances adequately explain why the victim did not narrate every instance
of sexual assault in the initial complaint.
82/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
16.9. Significantly, during the course of cross-examination, the defence
itself suggested that the physical relationship between the accused and the
victim was consensual. Such a suggestion necessarily proceeds on the premise
that physical intimacy had in fact taken place. Therefore, the defence cannot
simultaneously contend that the omission to mention all such instances in the
FIR renders the entire prosecution case unbelievable.
16.10. The victim subsequently gave a detailed statement under Section
164 Cr.P.C., wherein she specifically narrated the repeated acts of sexual assault
committed by the accused. The same version was consistently reiterated before
the trial Court on oath. Her testimony stands corroborated by the surrounding
circumstances, the electronic evidence, and through the suggestions put forth
by the defence during cross-examination.
16.11. In view of the foregoing discussion, this Court finds no merit in
the contention of the learned Senior Counsel that the omission to mention every
instance of sexual assault in the FIR renders the testimony of the victim
unreliable. The omission is neither material nor fatal to the prosecution case in
the peculiar facts and circumstances of the present case. Accordingly, this Court
concurs with the findings recorded by the learned trial Judge in paragraphs 34
83/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
and 35 of the impugned judgment and rejects the said contention.
17. Discussion the plea of coercion on the part of Investigation
Officer:
17.1. The learned Senior Counsel further contended that the complaint
lodged by the victim was not voluntary but was the result of coercion and
intimidation exercised by the Investigating Agency. According to the defence,
the Investigating Agency threatened the victim that she would also be
implicated as an accused in another criminal case on the allegation that she had
shared the monetary benefits received from another victim along with the
present accused, and that it was only to escape from such prosecution the victim
was compelled to lodge the present complaint. This Court finds the said
submission to be wholly misconceived, unsupported by any evidence, and
contrary to the facts and circumstances established on record.
17.2. A careful reading of the cross-examination of the victim reveals
that, although such suggestions were put to her, the victim categorically denied
the same. On the contrary, she consistently stated that she refrained from
lodging the complaint because of the continuous threats held out by the accused
84/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023to publish the intimate photographs and videos in his possession. It was only
after realising that the accused had no intention whatsoever of fulfilling his
promise and after the offending electronic materials had come within the
control of the Investigating Agency that the victim plucked up the courage to
approach the police.
17.3. Thus, the delay in lodging the complaint stands satisfactorily
explained by the victim’s fear for the accused, the continuing criminal
intimidation, and the emotional trust placed upon the accused’s false promise of
marriage. These circumstances are borne out by the evidence on record and
inspire confidence. Significantly, the defence has not produced any
contemporaneous complaint, document, or independent evidence to substantiate
the allegation that the Investigating Agency exercised coercion or intimidation
upon the victim.
17.4. A bald allegation made in the cross-examination do not constitute
evidence unless they are supported by legally admissible material. This Court
is, therefore, of the considered view that the allegation that the complaint was
lodged at the instance or under the pressure of the Investigating Agency is
afterthought, advanced only to sully the fair investigation and to create an
85/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023artificial defence. The said contention deserves outright rejection.
17.5. In this case, the accused also disputed the victim’s signature in the
complaint Ex.P1 and sought to compare the signature with the 164 Cr.P.C
statement of the victim and the said petition was dismissed by the learned trial
Judge and the same was confirmed by this Court in Crl.OP(MD).No.692 of
2023 holding that the accused filed the petition only with an intention to drag
on the proceedings.
17.6. The Hon’ble Supreme Court has repeatedly held that vague and
unsupported allegations of coercion or bias against the Investigating Agency
cannot be accepted in the absence of cogent evidence. Equally, where the
evidence satisfactorily explains the victim’s conduct and delay in approaching
the police, such delay does not detract from the credibility of the prosecution
case. In the facts of the present case, the explanation furnished by the victim is
natural, probable, and fully consistent with the surrounding circumstances.
17.7. Accordingly, this Court finds no merit in the submission advanced
by the learned Senior Counsel that the complaint was the product of coercion by
86/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023the Investigating Agency. The contention is devoid of substance and is liable to
be rejected.
18.Discussion on the consensual sex:
18.1. The learned Senior Counsel appearing for the appellant placed
strong reliance upon several decisions of the Hon’ble Supreme Court, including
the recent judgment in Pramod Kumar Navratna v. State of Chhattisgarh,
reported in 2026 INSC 124, to contend that the relationship between the parties
was purely consensual and, therefore, the offence of rape was not made out. It
was argued that, maximum it is involved a failed romantic relationship and that
the allegation of rape on the basis of deception cannot be accepted.
18.2. To consider the argument of “consensual sex” and “consent” on the
part of the victim, this Court recapitulate the principle laid down by the Hon’ble
Supreme Court in the various cases relied by the learned senior counsel
appearing for the appellant.
18.3. From the perusal of the precedents, it is clear that the Hon’ble
Supreme Court has consistently held that whether the prosecutrix had
87/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
voluntarily consented to the sexual relationship with free will or whether her
consent stood vitiated by deception, misconception of fact, coercion,
intimidation or other circumstances recognised by law must be decided on the
peculiar facts of the each case and the Hon’ble Supreme Court did not lay down
any inflexible or universal proposition that every intimate relationship arising
out of promise of marriage must necessarily be treated as consensual and each
case must be decided on its own peculiar facts and circumstances.
18.4.It is also to be seen that there are two distinct lines of decisions
rendered by the Hon’ble Supreme Court. In one category of cases, the Court has
held that where the prosecution establishes that the accused, from the very
inception, induced the victim into a sexual relationship by practising deception
or making a false promise with no intention of honouring it, the consent is
vitiated by misconception of fact and the offence of rape is attracted. In the
other category of cases, where the evidence discloses a genuine and voluntary
romantic relationship between consenting adults and the promise of marriage
subsequently failed due to supervening circumstances, the Court has held that
the relationship remains consensual and does not amount to rape. Thus, the
applicability of either line of the decisions depends entirely upon the factual
matrix of the individual case.
88/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
18.5.In the case of Karthi alias Karthick Vs State of Tamilnadu
Reported in (2013) 12 SCC 710 The Hon’ble Supreme Court has held that
obtaining consent by exercising deceit, cannot be legitimate defence to
exculpate an accused and the relevant paragraph is as follows:
“ 13. He also used to tell her that he wished to marry her. The
fact that he had sexual intercourse with her, when the
prosecutrix Poomari (PW 1) was all alone in her house, is not
disputed. The prosecutrix Poomari (PW 1) has confirmed in her
deposition, that at the time of the first sexual intercourse with
her at her house, the appellant-accused Karthick had gagged
her mouth with his right hand. He had promised to marry her, by
placing his hand on her head, after having ravaged her. The
subsequent acts of sexual intercourse, were actions of actively
cheating her, by giving her the impression that he would marry
her. The occurrence at the Murugan temple, is of significant
importance. At the temple, for the first time the appellant-
accused Karthick told the prosecutrix Poomari (PW 1), that he
would not marry her. The instant factual position has been
confirmed by Chandran (PW 9) and Ilangovan (PW 10). Despite
lengthy cross-examination, the appellant-accused has not been
able to create any dent in the testimony of the prosecutrix
Poomari (PW 1).”“14.Obtaining consent by exercising deceit, cannot be
legitimate defence to exculpate an accused.”89/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202318.6.In the case of Dhruvaram Murlidhar Sonar v. State of
Maharashtra, reported in (2019) 18 SCC 191, the Hon’ble Supreme Court
made a distinction between rape and consensual sex and also distinction
between mere breach of marriage promise and not fulfilling a false promise in
paragraph No. 23 which is as follows:
23. Thus, there is a clear distinction between rape and consensual
sex. The court, in such cases, must very carefully examine whether the
complainant had actually wanted to marry the victim or had mala fide
motives and had made a false promise to this effect only to satisfy his
lust, as the latter falls within the ambit of cheating or deception. There
is also a distinction between mere breach of a promise and not
fulfilling a false promise. If the accused has not made the promise with
the sole intention to seduce the prosecutrix to indulge in sexual acts,
such an act would not amount to rape. There may be a case where the
prosecutrix agrees to have sexual intercourse on account of her love
and passion for the accused and not solely on account of the
misconception created by accused, or where an accused, on account of
circumstances which he could not have foreseen or which were beyond
his control, was unable to marry her despite having every intention to
do. Such cases must be treated differently. If the complainant had any
mala fide intention and if he had clandestine motives, it is a clear case
of rape. The acknowledged consensual physical relationship between
the parties would not constitute an offence under Section 376 IPC18.7.In the case of Anurag Soni v. State of Chhattisgarh Reported in
90/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023(2019) 13 SCC 1, the Hon’ble supreme court has held that in the case of proof
of false promise to marry at the inception, there was clear misconception of fact
under section 90 of the IPC and consequently, a accused is liable to be
convicted under section 376 IPC and the relevant para read as follows:
“12. The sum and substance of the aforesaid decisions would
be that if it is established and proved that from the inception the
accused who gave the promise to the prosecutrix to marry, did not
have any intention to marry and the prosecutrix gave the consent
for sexual intercourse on such an assurance by the accused that he
would marry her, such a consent can be said to be a consent
obtained on a misconception of fact as per Section 90 IPC and, in
such a case, such a consent would not excuse the offender and such
an offender can be said to have committed the rape as defined
under Sections 375 IPC and can be convicted for the offence under
Section 376 IPC.”18.8.It is also relevant to differentiate the consensual romantic
Relationship and Relationship induced by Deception.
91/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
Aspect Consensual Romantic Relationship Relationship Induced by Deception / False
(No Criminal Offence) Promise of Marriage (IPC/BNS)
Nature of The relationship is founded on The relationship is induced through
relationship mutual affection, trust, equality, and deception, manipulation, or a false promise
voluntary participation. Both parties of marriage (or other deceitful means)
freely choose to continue the solely to obtain the woman’s consent to
relationship and may genuinely sexual intercourse.
intend to marry.
Intention at the Both parties honestly intend, at the The accused never intended from the very
Inception commencement of the relationship, beginning to fulfil the promise of marriage.
to pursue a genuine relationship or The promise was merely a tool to secure
marry, subject to future consent for sexual intercourse.
circumstances.
Validity of consent Consent is free, voluntary, informed, Consent is obtained under a misconception
and based upon mutual affection , of fact because it is induced by deception or
independent choice and mutual a false promise never intended to be fulfilled
autonomy . It is not affected by any and such consent given under a
misconception of fact and therefore misconception of fact is no consent at all .
constitutes valid consent in law. Such consent may be legally vitiated
depending upon the statutory provision and
Voluntariness of consent is factual circumstances.
established when the woman
exercises her independent choice The woman does not exercise her
based upon true facts and her own independent choice based upon true facts
free will. and her own free will, which is procured
through deception and therefore lacks
genuine legal autonomy. It is not
voluntariness of consent.
Promise of A genuine promise made in good A hoax from the outset; a false promise
marriage faith which may subsequently remain made with the deliberate intention of never
unfulfilled due to unforeseen marrying the person.
circumstances such as Inevitable
family opposition etc
Other Deceitful No deception exists regarding Deceit may include a false promise of
Means (Section 69 employment, promotion, identity, employment or promotion, suppression of
BNS) marital status, or any other material identity before marriage, false
fact. representation, or any other deceitful means
recognised under Section 69 BNS.
Mental Element No dishonest or fraudulent intention Dishonest and fraudulent intention exists
(Mens Rea) exists. A subsequent refusal or from the inception of the relationship. The
inability to marry does not by itself deception is deliberate and forms the
establish criminal intent. foundation of the woman’s consent.
Dynamics of the Built on mutual trust, emotional Explicitly manipulated to exploit the victim’s
Union reciprocity, and equal autonomy. trust and vulnerability.
92/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
18.9. The Hon’ble supreme court in the latest case of Pramod Kumar
Navratna v. State of Chhattisgarh, reported in 2026 INSC 124,also issued the
following caution notice :
“22. The Courts have to be extremely careful and cautious in
identifying the genuine cases filed under Section 376(2)(n) of the IPC
by identifying the essential ingredients to constitute the said offence
i.e. there should be a promise of marriage made by the accused
solely with a view to obtain consent for sexual relations and without
having any intent of fulfilling said promise from the very beginning,
and that such false promise of marriage had a direct bearing on the
prosecutrix giving her consent for sexual relations. Such genuine
cases that deserve prosecution of the accused must be clearly
demarcated from the litigation that arises from the cases of
consensual relationships between consenting adults going
acrimonious on account of dispute and disagreement or a future
change of mind.”18.10. The decision in Pramod Kumar Navratna is based on its own
peculiar facts. In that case, the Supreme Court found that the complainant,
being a married adult and fully aware of the legal impediment to the proposed
marriage, had consciously entered into a consensual relationship. The Court,
therefore, held that the allegations did not disclose a case of consent obtained
by misconception of fact. Similarly the judgements relied upon by the learned
93/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023senior counsel are not applicable to the present fact of the case.
18.11.In cases involving rape by deception, romantic fraud, and sexual
exploitation through extortion, the plea of consensual sexual intercourse cannot
be taken at its face value. Such a plea must be examined in the light of
Explanation 2 to Section 375 of the Indian Penal Code and Section 90 of the
Indian Penal Code, which deal with the legal concept of consent and the effect
of consent obtained under a misconception of fact.
18.12. Keeping in view the advancement of technology and the
increasing incidence of romantic fraud perpetrated through social media and
other electronic platforms, this Court has examined the statutory provisions
governing consent, the legislative intent underlying the Criminal Law
(Amendment) Act, 2013, and the judicial interpretation of Section 90 IPC
relating to consent obtained under a misconception of fact upon consideration
of Explanation 2 to Section 375 IPC and other relevant precedents and
definitions:
94/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023Section 375 IPC Section 90 IPC
Explanation 2.—Consent means an Consent known to be given
unequivocal voluntary agreement when under fear or misconception.—A
the woman by words, gestures or any consent is not such a consent as
form of verbal or non-verbal is intended by any section of this
communication, communicates Code, if the consent is given by a
willingness to participate in the specific person under fear of injury, or
sexual act: under a misconception of fact,
Provided that a woman who does and if the person doing the act
not physically resist to the act of knows, or has reason to believe,
penetration shall not by the reason that the consent was given in
only of that fact, be regarded as consequence of such fear or
consenting to the sexual activity.” misconception;
95/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202318.13. It is also relevant to extract the following definitions relating to
“consent”:
Black dictionary affirmative Consent that Is freely, willingly, and clearly demonstrated in words
and acts during a sexual encounter, usu. just before intercourse.
consent.
Wharton’s law lexicon Consent Consent, an act of reason accompanied with deliberations, the
mind weighing, as in a balance, the good or evil on either side.
Consent supposes three things a physical power, a mental power,
and a free and serious use of them. Hence it is that if consent be
obtained by intimidation, force, meditated impositions,
circumvention, surprise, or undue influence, it is to be treated as a
delusion, and not as a deliberate and free act of the mind.
State of H.P. v. Mango Consent Consent for the purpose of Section 375 requires voluntary
Ram, (2000) 7 SCC participation not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act but after
224. having fully exercised the choice between the resistance and assent.
Submission of the body by a woman under the fear of terror cannot
be construed as a consented sexual Act.
Tulshidas Kanalkar V. Consent Every consent involves a submission but the converse does not
State of Goa, (2003) 8 follow, and mere act of submission does not involve consent. For
constituting consent, there must be exercise of intelligence based
SCC 590 on the knowledge of the significance and the moral effect of the act.
Deelip Singh v. Consent The concept and dimensions of ‘consent in the context of section
State of Bihar, (2005) 375 IPC has been viewed from different angles. The decided cases
on the issue reveal different approaches which may not necessarily
1 SCC 88. be
dichotomous. Of course, the ultimate conclusion depends upon the
facts of each case,
Satpal Singh v. Consent The concept of ‘consent in the context of section 375 of the code
State of Haryana, has to be understood differently, keeping in mind the provision of
section 90 of the code, according to which a consent given under
(2010) 8 SCC 714 fear/coercion or misconceptions/mistake of fact is not a consent at
all.Consent is different from submission.
Kaini Rajan v. State of Consent “Consent”, for the purpose of Section 375, requires voluntary
Kerala, (2013) 9 SCC participation not only after the exercise of intelligence based on the
113 knowledge of the significance of the moral quality of the act but
after having fully exercised the choice between resistance and
assent. Whether there was consent or not, is to be ascertained only
on a careful study of all relevant circumstances.
Dhruvaram Sonar Consent Consent” is also stated to be an act of reason coupled with
Dhruvaram Murlidhar deliberation. It denotes an active will in mind of a person to permit
Sonar v. State of the doing of the act complained of.
Maharashtra, (2019)
18 SCC 191
96/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
State of U.P. v. Chhotey Lal, (2011) 2 SCC 550
Every ‘consent to an act, In order to constitute ‘rape’ there Consent, within Penal law,
involves a submission; but it need not be resistance to the section 2010, defining rape,
by no means follows that a utmost, and a woman who is requires, exercise of
mere submission involves assaulted need not resist to the intelligence based on
consent, e.g., the mere point of risking being beaten into knowledge of its significance
submission of a girl to a insensibility, and, if she resists to and moral quality and there
carnal assault, she being in the point where further resistance must be a choice between
the power of a strong man, is would be useless or until her resistance and assent
not consent resistance is overcome by force of
violence, submission thereafter is
not ‘consent.
18.14.The Hon’ble supreme court in the case of Pramod Suryabhan
Pawar v. State of Maharashtra, reported in (2019) 9 SCC 608 has discussed and
observed the meaning of consent mentioned in both sections 90 & 375 IPC in
the following manner:
“16.Where the promise to marry is false and the intention of
the maker at the time of making the promise itself was not to abide
by it but to deceive the woman to convince her to engage in sexual
relations, there is a “misconception of fact” that vitiates the
woman’s “consent”. On the other hand, a breach of a promise
cannot be said to be a false promise. To establish a false promise,
the maker of the promise should have had no intention of upholding
his word at the time of giving it. The “consent” of a woman under
Section 375 is vitiated on the ground of a “misconception of fact”
where such misconception was the basis for her choosing to engage
in the said act.
97/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
10. Where a woman does not “consent” to the sexual acts
described in the main body of Section 375, the offence of rape has
occurred. While Section 90 does not define the term “consent”, a
“consent” based on a “misconception of fact” is not consent in the
eye of the law.
12.This Court has repeatedly held that consent with respect
to Section 375 IPC involves an active understanding of the
circumstances, actions and consequences of the proposed act. An
individual who makes a reasoned choice to act after evaluating
various alternative actions (or inaction) as well as the various
possible consequences flowing from such action or inaction,
consents to such action.
18.15.The decision of the Punjab and Haryana High Court in the case of
Rao Harnarain Singh Sheoji Singh v. State reported in AIR 1958 Punj 123,
differentiated the consent and submission in the following manner:
Para 7 Para 7
“there is a difference between Consent is an act of reason
consent and submission [and] accompanied by deliberation, a
every consent involves a mere act of helpless resignation
submission but the converse does in the face of inevitable
not follow and a mere act of compulsion, non-resistance and
submission does not involve passive giving in cannot be
consent” deemed to be consent.
18.16. The said decision of Rao Harnarain Singh Sheoji Singh v. State
reported in AIR 1958 Punj 123 was approved by the Hon’ble Supreme Court in
the case of Deelip Singh v. State of Bihar, reported in (2005) 1 SCC 88.
98/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
Explanation 2 to Section 375 IPC unequivocally provides that consent means an
unequivocal and voluntary agreement by the woman to engage in the specific
sexual act, communicated by words, gestures, or any other form of verbal or
non-verbal communication. The proviso further makes it clear that the mere
absence of physical resistance to the act of penetration shall not, by itself, be
regarded as consent to the sexual activity. The legislative emphasis is, therefore,
free, informed, and voluntary participation. Where the apparent consent is
procured through deception, fraudulent inducement, false promises, abuse of
trust, or exploitation of the victim’s vulnerability, the Court must carefully
scrutinise whether there was, in law, any real consent at all. Accordingly, in
cases involving rape by deception, romantic fraud, and sexual exploitation
under the guise of love, marriage, employment, or similar inducements, the
following principles may guide the determination whether the plea of
consensual relationship is legally sustainable:
18.16.1.Consent in law necessarily postulates an unequivocal, informed,
and voluntary agreement to participate in the specific sexual act.
18.16.2.Mere submission or acquiescence cannot be equated with
consent, particularly where the victim accompanies the accused for the purposes
99/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023wholly unconnected with sexual intimacy, such as discussions relating to
employment, marriage, or any other legitimate expectation engineered by the
accused. The Court must also bear in mind the fundamental distinction between
consent and mere submission. Consent is an informed, voluntary, and
conscious act, whereas submission may result from helplessness, fear, coercion,
intimidation, or a sense of inevitable compulsion. Where the evidence
demonstrates that the victim remained with the accused or submitted to the
sexual act because she was unable to extricate herself from his control, threats,
or coercive circumstances, such conduct amounts to no more than passive
submission or helpless resignation. Mere non-resistance or acquiescence under
such circumstances cannot, in law, be construed as voluntary consent.
Therefore, the mere fact that the victim was subjected to repeated physical
intimacy with the accused does not, by itself, establish that the relationship was
consensual. The surrounding circumstances in which the acts occurred, the
absence of free and informed choice, and the existence of coercion, deception,
or intimidation must all be carefully evaluated before concluding that there was
valid consent in the eye of law.
18.16.3.The Court must examine the entire course of conduct between the
parties, including the duration and nature of the relationship, the conduct of the
100/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
accused from its inception, and whether the relationship was founded upon
genuine affection or upon calculated deception.
18.16.4.The Court must determine whether the victim was fully aware of
the true intentions of the accused and voluntarily chose to engage in the sexual
relationship with complete knowledge of all material facts. Only where the
evidence demonstrates such informed and voluntary participation can the
relationship be regarded as truly consensual.
18.16.5.Conversely, where the sexual relationship is induced by
fraudulent representations, false promises, concealment of material facts, or
coercive circumstances that vitiate the victim’s free choice, the purposed
consent is rendered legally ineffective and cannot be treated as valid consent in
the eye of law.
18.16.6.These principles are intended to distinguish a genuinely
consensual romantic relationship from one that is the product of deception,
fraud, manipulation, or exploitation, ensuring that the statutory protection
afforded to women is not defeated by a superficial plea of consent.
101/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
18.17.This Court has carefully considered the submission of learned
senior counsel appearing on behalf of accused that there was consensual
relationships on the basis of principles formulated by this court to plea of
voluntarily consent. But this court is unable to accept it. The facts of the
present case stand entirely on a different footing. To make further discussions
on facts, this court for better appreciation extract the following portion of the
cross examination of victim:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
18.18.From reading of the evidence of victim more particularily the
above portion of crossexamination, unmistakably establishes that the
prosecutrix was placed in circumstances engineered entirely by the accused,
which deprived her of a meaningful choice and to submit to his coercion . Our
constitutional and legal framework unequivocally recognizes every individual
& bodily autonomy and sexual autonomy. Any physical relationship must be
founded upon the free, voluntary, informed consent, and unequivocal consent of
the person concerned. A physical act performed without such consent attracts
the penal consequences contemplated under the criminal law. In the present
case,the evidence does not indicate that he invited the victim for a date or for
102/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023any consensual intimate meeting. Rather, the victim was induced to accompany
the accused solely on the belief that discussions would be held regarding
employment and marriage. the accused deceptively induced the victim to
accompany him by representing that the meeting was for discussions relating to
employment opportunities and a prospective marriage alliance. After securing
her presence through such deception, the accused wrongfully deprived the
victim of her personal liberty by restraining her and, despite her hesitation,
resistance, and express objections,compelled her to engage in a physical
relationship. The conduct of the accused demonstrates that the victim was
placed in circumstances where she was deprived of a meaningful choice. Her
hesitation and objections clearly negate any inference of free and voluntary
participation. Hesitation is a natural and significant response in the context of
sexual intimacy. It is a clear indication that the other person may not be ready
or willing to engage in sexual activity and therefore,requires the other party to
pause and re-evaluate the situation. Accordingly, hesitation cannot, by itself, be
treated as consent to a sexual relationship. Rather, it is a circumstance that
calls for caution and requires that any sexual activity be deferred unless and
until clear, voluntary, and informed consent is affirmatively expressed.in this
circumstance, this court legitimately presume that there was no subjective
agreement on the part of the victim to engage in the specific physical
103/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023relationship to constitute the consensual relationship. Mere accompaniment
with the accused or participation in discussions concerning employment or
marriage cannot, in law, be construed as consent to sexual intimacy. By falsely
representing the purpose of the meeting, he induced the victim to enter his car
and thereafter wrongfully restrained her by locking the vehicle, thereby
depriving her of her personal liberty. Despite her hesitation, resistance, and
reasonable objections, the accused proceeded to establish physical intimacy by
force. The conduct of the accused, therefore, was inherently dishonest and
deceptive. In these circumstances, the prosecution has established that there
was no voluntary, informed consent, conscious, and unequivocal agreement on
the part of the victim to permit any physical contact. The mere fact that the
victim voluntarily accompanied the accused in his car cannot, by any stretch of
imagination, be construed as consent to engage in a physical relationship. Her
willingness to accompany the accused was for the simple reasons of discussing
about the marriage and employment. Consent obtained by deception as to the
very nature and purpose of the meeting is vitiated in law. Consent, is the
product of a conscious and reasoned choice made by a person possessing the
capacity to understand the nature and consequences of the proposed act. An
individual can be said to have consented to a sexual act only when ,actively
understanding the nature of the act, the surrounding circumstances, and its
104/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023consequences, they make a reasoned and voluntary choice to engage in it. Such
consent requires the capacity to evaluate the available alternatives, including
the choice to refuse or abstain, and to appreciate the possible consequences
flowing from either consenting or declining, action or inaction. The victim was
never informed that the meeting was intended for a sexual encounter, nor is
there any material to indicate that she had agreed to such intimacy. On the
contrary, her hesitation, resistance, and objections clearly establish the absence
of free, voluntary, and informed consent. The deceptive conduct of the accused,
coupled with the use of force after wrongfully restraining the victim,
completely negatives any theory of a consensual relationship.This court as
already discussed in detail in the preceeding paragraphs, the prosecution has
established that the appellant deliberately lured the victim into a deceptive
relationship, clandestinely recorded intimate acts, retained the obscene
materials under his exclusive control, repeatedly threatened to publish them on
social media, and thereby exercised continuous psychological domination over
the victim. The evidence further establishes that every subsequent act of
physical intimacy was procured under the continuing threat of exposure and
public humiliation. The victim remained under constant fear, emotional distress
and coercive control, and was deprived of the freedom to exercise an
independent and voluntary choice. The surrounding circumstances also lend
105/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023complete assurance to her testimony. The reluctance shown by the victim in
meeting the accused, her hesitation in entering the vehicle, her refusal to
occupy the front seat, her continued resistance to the physical advances of the
accused, and the deliberate acts of the accused in locking both the premises and
the vehicle, together constitute a continuous chain of circumstances
establishing that the sexual act was not the result of a free and voluntary
agreement.The accused never approached the victim with any bona fide
intention of developing a genuine relationship. His conduct throughout
demonstrates that the representations made to the victim regarding employment
opportunities and a prospective marriage alliance were merely deceptive
devices employed to secure her confidence and company. Consequently, this
Court holds that the physical relationship was not consensual, and the purported
consent, if any, stood vitiated by deception and coercion. Hence, this Court has
no hesitation in holding that the prosecution has clearly established the absence
of free and voluntary consent.
18.19.There is not even a scintilla of evidence on record to establish that
the victim voluntarily and freely consented to the repeated acts of sexual
intercourse. On the contrary, the entire prosecution evidence unmistakably
demonstrates that the appellant obtained submission by practising deception
106/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023and thereafter held control over the victim through criminal intimidation and
the persistent threat of circulating the intimate photographs and videos.
therefore, this case is not one of a consensual romantic relationship between
two willing adults. It is a case where the relationship itself was founded upon
deception and thereafter perpetuated through intimidation and technological
blackmail. Accordingly, this Court holds that there was a complete absence of
free, voluntary, and informed consent. Any apparent acquiescence, if at all,
stood vitiated by deception, coercive circumstances, and the conduct of the
accused. Consequently, the defence of a consensual physical relationship is
wholly untenable.
18.20.Accordingly, this Court has no hesitation in holding that the
reliance placed by the learned Senior Counsel on the aforesaid decisions is
wholly misplaced. The facts of the present case clearly establish a case of
consent vitiated by deception and coercion, and consequently constitute the
offence punishable under Section 376(2)(n) of the Indian Penal Code. The
submission that the relationship was consensual is, therefore, rejected.
107/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
19.Discussion on the plea of accused’s geneuine intention to marry:
19.1. The learned Senior Counsel contended that the accused had a
genuine intention to marry the victim and that the relationship between them
was founded upon genuine and sincere love. It was further argued that even
during the cross-examination of the victim, a suggestion was put to her that the
accused was still willing to marry her, as if he was genuinely willing to marry.
This Court is unable to accept the said submission.
19.2. During her cross-examination, the victim was specifically
confronted with the suggestion that the accused was still willing to marry her.
She unequivocally denied the same, stating: “mJ ngha;” (“That is false.” The
defence sought to project the case as one arising out of opposition due to inter-
caste relationship, contending that the accused had disclosed the relationship to
his parents and that the present prosecution was initiated due to such
opposition. However, the evidence on record completely demolishes this
defence. A2 has admitted that the accused had never informed him about any
such relationship and that he had no prior knowledge of the alleged love affair.
This categorical denial is further corroborated by the statements recorded under
Section 313 (1)(a) Cr.P.C. and the answering of A2 under section 313 (1) (a) of
Cr.P.C which reads as follows:
108/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
19.3. This admission completely belies the defence theory that the
accused had seriously thought of marrying the victim or had taken any earnest
effort to make it fructify.
19.4. Significantly, except the solitary argument during course of hearing,
there is absolutely no evidence that the accused or his family ever initiated any
proposal for marriage, informed their family members, approached the victim’s
family, or undertook any act consistent with a genuine intention to marry. Such
a plea, raised only during trial after the commencement of criminal proceedings,
is clearly an afterthought devised to escape criminal liability.
19.5. The conduct of the accused before the occurrence, during the
subsistence of the relationship, after the occurrence, and even through out the
trial unmistakably demonstrates the absence of any bona fide intention to
marry. On the contrary, the evidence establishes that the accused, right from the
inception, deliberately cultivated acquaintance with the victim through social
media, persistently pursued her despite her reluctance, and resistence exploited
her emotional vulnerability by promising employment, gradually won her
109/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023confidence, and thereafter induced her into a sexual relationship by holding out
a false promise of marriage. Simultaneously, he clandestinely recorded intimate
videos and photographs and subsequently used those materials as instruments
of intimidation and continued sexual exploitation.
19.6. The entire course of conduct dont reveal a genuine romantic
relationship which ultimately failed due to caste issues, but a carefully
orchestrated deceptive relationship founded upon fraud, manipulation,
coercion, and abuse of trust. The so-called promise of marriage was merely a
means adopted by the accused to secure the victim’s consent, which was
vitiated by deception from its very inception. Therefore, the prosecution clearly
proved the absence of consent in the eye of law and being one obtained under a
misconception of fact within the meaning of Section 90 of the Indian Penal
Code.
19.7. Applying the above principles to the facts of the present case, this
Court has no hesitation in holding that the contention of promise of marriage
was never genuine. It was only a device employed by the accused to deceive.
110/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
20.Discussion on the failure to explain the circumstances and
furnishing the false answer during the course of questioning under Section
313 Cr.P.C of accused:
20.1. During the trial, various incriminating circumstances were put to
the accused during the 313 Cr.P.C questioning, more particularly recovery of
the M.O.3 which contained numerous offending videos of accused and various
number of persons like victim. The victim’s evidence of deceptive, forceful
physical relationship also put to the accused. The accused never denied the said
facts. He did not furnish any explanation of consensual relationship and taking
the victim’s offending video with her consent. The appellant did not seriously
dispute that M.O.3, namely the Apple Mac-Book laptop recovered during the
course of investigation, belonging to him. On the contrary, the father of the
accused (A2), during the cross examination of P.W.27, by way of suggestion
admitted that the laptop belonged to the appellant. During his examination
under Section 313 of the Code of Criminal Procedure, as well as at every other
stage of the proceedings, the accused never denied his ownership or exclusive
possession of the said laptop. Thus, the ownership and possession of M.O.3 by
the accused stand established.
111/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
20.2. The forensic examination of M.O.3 disclosed the presence of
approximately 355 obscene videos and more than 1,000/- obscene
photographs, among which the video depicting the victim was also recovered.
The Investigating Officer has categorically deposed regarding the recovery of
the said electronic materials, and the same has been scientifically corroborated
by the expert opinion. The victim, during her evidence, identified herself as
well as the accused in the offending video recovered from the laptop. The
identity of the accused and the victim in the video has therefore been
established by cogent oral as well as electronic evidence. Further there is clear
evidence about cell phone number 9629359759 and IMEI number
353839101001992 and email address kasi_k9, Face Book Kasi.9pm.
20.3. The existence of the incriminating electronic material in the laptop
belonging to the accused is a fact especially within his knowledge. Once the
prosecution has established that the laptop belonged to the accused and that the
incriminating material was recovered therefrom, the burden shifts upon the
accused to offer a plausible explanation as to how such offending material
came to be stored in his device. In the above factual circumstances, the
provisions of Section 106 of the Indian Evidence Act, 1872 are clearly
attracted.
112/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
20.4. The Hon’ble Supreme Court has consistently held that Section 106
does not relieve the prosecution of its primary burden of proving the case
beyond reasonable doubt. Apart from that, in this case, presumption under
Section 114A of Evidence At applies. In view of the circumstances that the
prosecution established its case of charged offence under Section 90 r/w 376(2)
(n) of IPC, through proof of foundational facts through unimpeachable evidence
of victim and other circumstances beyond reasonable doubt. However, where
the prosecution establishes foundational facts and the remaining facts are
especially within the exclusive knowledge of the accused, his failure to offer
proper explanation constitutes an additional incriminating circumstance.
20.5.In the present case, despite the recovery of the incriminating
electronic evidence from his personal laptop, the accused has not offered any
explanation whatsoever, either during his examination under Section 313
Cr.P.C. or by adducing defence evidence, as to how the offending video and
photographs came to be stored therein. But he furnished the following false
explanation:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
113/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202320.6.There is also no material on record to suggest that the laptop had
been tampered with, manipulated, or accessed by any third party. On the
contrary, the prosecution has established the genuineness and authenticity of the
electronic records through forensic examination in accordance with law.
20.7.The silence maintained by the accused in the face of such
overwhelming incriminating circumstances, coupled with the scientific
evidence and the testimony of the victim identifying both herself and the
accused in the recovered video, constitutes a strong additional link in the chain
of circumstances.
20.8.The learned Trial Judge, in paragraphs 21 and 22 of the impugned
judgment, has undertaken a detailed and well-reasoned analysis of the evidence
relating to the recovery, forensic examination, and evidentiary value of the
electronic records. Upon an independent re-appreciation of the entire evidence,
this Court finds no infirmity or perversity in the reasoning adopted by the
learned Trial Judge.
114/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
21. Conclusive finding on conviction:
21.1. In view of the above discussion, summary of our conclusion is that
the victim belonged to a lower middle-class family consisting of her mother and
sisters. She was in search of employment . It was during this vulnerable stage of
her life that the accused initiated contact with her through social media. the
victim initially declined the accused’s request for friendship. It was only after
repeated persuasion and persistent requests she reluctantly accepted his social
media request. He gradually gained her confidence through false assurances of
marriage and arrangement of employment, with the sole object of satisfying his
sexual desires. she was reluctant even to accompany the accused in his car. The
accused forcibly took the victim to his father’s godown and factory premises,
locked his car despite her resistance, and thereafter committed forcible sexual
intercourse against her wishes. The accused clandestinely captured intimate
photographs and videos and continuously used those recordings as instruments
of blackmail to perpetuate the sexual exploitation and thereafter accused
criminally intimidated the victim that he had recorded intimate videos and
photographs of the incident and threatened to circulate the same through social
media. Pressurised under such threats, fear and intimidation, the victim was
compelled to submit to the sexual demands of the accused.The victim has
115/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023cogently narrated the sequence of events from the inception of her
acquaintance with the accused until the repeated acts of sexual exploitation
without any infirmities. Her testimony is natural, cogent, trustworthy and
fully supported by the surrounding circumstances and the electronic
evidence collected during investigation. The sequence of events clearly
demonstrate a calculated and deceptive design adopted by the accused from the
very inception. A careful reading of the evidence of the prosecutrix
unmistakably establishes that at every stage she objected to the sexual acts,
resisted the advances of the accused and submitted herself only because of fear,
coercion and intimidation. It is relevant to note the principle that exaggerated
devotion to the rule of benefit of doubt must not nurture fanciful doubts or
lingering suspicions and thereby destroy social defence as held by the Hon’ble
Supreme Court in various judgments including in the case of Devender Pal
Singh v. State (NCT of Delhi), reported in (2002) 5 SCC 234 held as follows:
53.Exaggerated devotion to the rule of benefit of doubt must
not nurture fanciful doubts or lingering suspicions and thereby
destroy social defence. Justice cannot be made sterile on the plea
that it is better to let a hundred guilty escape than punish an
innocent. Letting the guilty escape is not doing justice according to
law.
116/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
21.2.This Court, therefore, has no hesitation in holding that the
prosecution has established beyond reasonable doubt that the accused
repeatedly committed rape upon the prosecutrix against her will and without
her free and voluntary consent, such ostensible submission having been
procured by deception, fear, criminal intimidation and misconception of fact.
The prosecution has successfully established that the accused clandestinely
recorded the sexual acts with the victim without her consent, stored the videos
and photographs in M.O.3 (Apple MacBook laptop), and there was no
explanation from the accused under Section 106 of the Indian Evidence Act
regarding the above offending material in his laptop and that the electronic
evidence.Apart from that, when there was no evidence adduced on the side of
the accused to dispel the presumption under Section 114(A) of the Indian
Evidence Act, the prosecution case gets further strengthened. Consequently,
this Court is satisfied that the prosecution has proved, beyond all reasonable
doubt, that the accused committed the offence punishable under Section under
Sections 376(2)(n), 417, 354(A), 294(b), 354(c) of IPC and Section 66E of
Information Technology Act.
117/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
22. Discussion on Sentence:
“Rape is the most morally and physically reprehensible crime in a
society, as it is an assault on the body, mind and privacy of the victim. While a
murderer destroys the physical frame of the victim, a rapist degrades and
defiles the soul of a helpless female. Rape reduces a woman to an animal, as it
shakes the very core of her life. By no means can a rape victim be called an
accomplice. Rape leaves a permanent scar on the life of the victim, and
therefore a rape victim is placed on a higher pedestal than an injured witness.
Rape is a crime against the entire society and violates the human rights of the
victim. Being the most hated crime, rape tantamounts to a serious blow to the
supreme honour of a woman, and offends both, her esteem and dignity. It
causes psychological and physical harm to the victim, leaving upon her
indelible marks.1”22.1.Therefore, harsh punishment is provided in section 376 IPC. The
principle of imposition of punishment should commensurate with crime
committed, otherwise, the court will be failing in its duty if appropriate
punishment is not awarded for a crime which has been committed not only
against the individual victim but also against the society to which the criminal
and the victim belong and the same has been illustrated and reiterated by
Hon’ble Supreme Court in various cases. The Hon’ble Three Judges Bench of
the Supreme Court in the case of State of M.P. vs. Bala Alias Balaram reported
1.Deepak Gulati v. State of Haryana, (2013) 7 SCC 675
118/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023in 2005 (8) SCC 1 has considered the doctrine of necessity to give adequate
punishment in the case of the crime against women and has directed to give
proportionate punishment in the case of the offence under Section 376(2) of
IPC and the relevant paragraph is as follows:
6. Sub-section (1) of Section 376 IPC provides that whoever, except in
the cases provided for by sub-section (2), commits rape shall be
punished with imprisonment of either description for a term which
shall not be less than 7 years but which may be for life or for a term
which may extend to 10 years and shall also be liable to fine. In the
category of cases covered under sub-section (2) of Section 376, the
sentence cannot be less than 10 years but which may be for life and
shall also be liable to fine. The proviso appended to sub-section (1)
lays down that the court may for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a
term of less than 7 years. There is a similar proviso to sub-section (2)
which empowers the court to award a sentence of less than 10 years
for adequate and special reasons to be mentioned in the judgment. The
High Court in the impugned order has awarded a sentence which is
not only grossly inadequate but is also contrary to the express
provision of law. The High Court has not assigned any satisfactory
reason much less adequate and special reasons for reducing the
sentence to a term which is far below the prescribed minimum.
Therefore, the sentence awarded by the High Court is clearly illegal.
11.The crime here is rape. It is a particularly heinous crime, a
119/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
crime against society, a crime against human dignity, one that reduces
a man to an animal. The penal statute has prescribed a maximum and
a minimum punishment for an offence under Section 376 IPC. To view
such an offence once it is proved, lightly, is itself an affront to society.
Though the award of maximum punishment may depend on the
circumstances of the case, the award of the minimum punishment,
generally, is imperative. The provisos to Sections 376(1) and 376(2)
IPC give the power to the court to award a sentence lesser than the
minimum for adequate and special reasons. The power under the
proviso is not to be used indiscriminately or routinely. It is to be used
sparingly and only in cases where special facts and circumstances
justify a reduction. The reasons must be relevant to the exercise of
such discretion vested in the court. The reasons must be set out clearly
and cogently. The mere existence of a discretion by itself does not
justify its exercise. The long pendency of the criminal trial or the offer
of the rapist to marry the victim are not relevant reasons. Nor is the
age of the offender by itself an adequate reason.
22.2. More ever, the Hon’ble Three Judges Bench of the Supreme Court
in the case of Shimbhu and Another vs. State of Haryana reported in 2014 13
SCC 318 had revisited the sentencing principle in the case of the crime against
women upon considering the earlier judgments and also the legislature intention
to bring the Criminal Law Amendment Act, 2013 and directed to impose
adequate sentence taking into the account of increasing the crimes against
120/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
women and also condemned giving inadequate and fleabite punishment
exercising with insensitivity to the sufferings of the victims and the relevant
paragraphs as follows:
Shimbhu v. State of Haryana, (2014) 13 SCC 318
21. It is imperative to mention that the legislature through the
Criminal Law (Amendment) Act, 2013 has deleted this proviso in the
wake of increasing crimes against women. Though, the said
amendment will not come in the way of exercising discretion in this
case, on perusal of the above legislative provision and catena of
cases on the issue, we feel that the present case fails to fall within the
ambit of exceptional case where the Court shall use its extraordinary
discretion to reduce the period of sentence than the minimum
prescribed.
22.This is yet another opportunity to inform the subordinate
courts and the High Courts that despite stringent provisions for rape
under Section 376 IPC, many courts in the past have taken a softer
view while awarding sentence for such a heinous crime. This Court
has in the past noticed that few subordinate and High Courts have
reduced the sentence of the accused to the period already undergone
to suffice as the punishment, by taking aid of the proviso to Section
376(2) IPC. The above trend exhibits stark insensitivity to the need
for proportionate punishments to be imposed in such cases.
23.This Court has carefully considered the submissions made on the
question of sentence, the materials available on record, and the reasons assigned
by the learned Trial Judge.
24.Having regard to the gravity of the offences, the calculated manner in
which they were committed, the repeated exploitation of vulnerable women by
121/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023the accused, and the continuing threat posed by him to society, the learned Trial
Judge made a detailed discussion in paragraph Nos.50 and 51 and imposed the
sentence as stated in the judgment. The Trial Court, in particular, took into
account the incriminating materials recovered during the investigation,
including approximately 355 nude and semi-nude videos and more than 1,000
obscene photographs depicting hundreds of young women who had allegedly
been victimised by the accused. The Trial Court also considered the evidence
demonstrating that the accused had subjected several women to sexual
exploitation, though only a few had the courage to come forward and lodge
complaints despite the threats and intimidation to which they had been
subjected. The modus operandi adopted by the accused was to deceptively
establish relationships with vulnerable women, clandestinely record their
intimate moments, and thereafter use those recordings as instruments of
intimidation and coercion, ensuring that the victims remained subservient to his
demands under the constant fear of exposure. The learned Trial Judge further
found that the accused had, as a matter of deliberate practice, deceived women
by making false promises, secretly recorded and preserved their nude and semi-
nude videos, and repeatedly exploited them for to quench his lust. The
multiplicity of criminal cases registered against the accused, including the
present case, also weighed with the Trial Court while considering the question
122/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
of sentence. The absence of any mitigating circumstance, the learned Trial
Judge recorded special reasons and has awarded life imprisonment until natural
death prescribed under Section 376(2)(n) of IPC and in view of the above
punishment, he has not awarded any punishment for the remaining proved
offence. “This court finds no infirmity in the said punishment and affirms the
same for the following reasons”:
24.1.The present case is a glaring instance of a calculated romantic fraud
culminating in rape, where the accused weaponised the victim’s trust, emotional
vulnerability, and economic necessity to facilitate sexual exploitation. Taking
advantage of the victim’s vulnerable circumstances, the accused systematically
exploited her in every possible manner. By inducing a false promise of
employment and professing an insincere promise of love, he subjected the
victim to repeated sexual intercourse. He clandestinely recorded the sexual acts
without her knowledge or consent and thereafter intimidated her by threatening
to circulate the objectionable videos on social media if she disclosed the
offences or refused to submit to his further unlawful demands. Such threats
effectively silenced the victim and buried her grievances. Despite such trauma,
she exhibited exceptional courage in lodging the complaint after learning that
the entire offending material had been seized by the investigating agency. She
123/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023had to face social stigma, the rigours of the investigation, and the ordeal of the
prolonged litigation process. The courage and resilience displayed by the
victim, notwithstanding the severe physical, mental, and social consequences
suffered by her, deserve due recognition. The offence committed by the accused
is not an isolated act of sexual assault. The evidence on record establishes that
the accused deviously planned and executed the nefarious act. He initially
deceived the victim through false promises of employment and marriage,
thereafter repeatedly subjected her to sexual assault, clandestinely captured
intimate photographs and videos, retained such material instead of deleting it,
and subsequently used the same as an instrument of criminal intimidation to
repeatedly exploit the victim sexually. The accused abused the confidence
reposed on him by the victim, exploited her emotional vulnerability, repeatedly
ravished her dignity, and thereafter continued to control and exploit her by
threatening to circulate her intimate photographs and videos. The retention of
such offending material and its use as a weapon of coercion demonstrates that
the acts of the accused were not impulsive but deliberate, calculated and
persistent. The offences thus disclose a sustained pattern of deception,
manipulation, intimidation and sexual exploitation extending over a
considerable period. The victim not only suffered physical and mental trauma
at the hands of the accused as a consequence of the deceitful sexual assault
124/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023perpetrated upon her, but also endured an intensive and searching cross-
examination during the course of the trial.
24.2.Courts cannot permit such offender to exploit women seeking
employment by luring them with false promises of love and career
opportunities, only to subject them to repeated sexual abuse and blackmail
through non-consensual recordings. The conduct of the accused reveals a high
degree of premeditation, cruelty, and moral depravity. In these circumstances,
no mitigating factor is found warranting any reduction of the sentence imposed
upon the accused.
24.3.Apart from that, the offending material found in the material objects
relating to the number of victims shocks the judicial conscience of this Court
and he had been exploiting number of girls, women and minor children, not
only committing sexual assault but also capturing the offending materials and
criminally intimidating them. Therefore,the aggravating circumstances in the
present case far outweigh any mitigating circumstance. This Court finds no
mitigating circumstance warranting interference with the sentence imposed. On
the contrary, the conduct of the accused reveals that he is a habitual sexual
predator who systematically preyed upon vulnerable women by deceit,
125/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
intimidation, and blackmail. The materials recovered from his possession
further indicate that many victims had refrained from lodging complaints solely
out of fear and social stigma. In such circumstances, awarding the minimum
sentence would neither meet the ends of justice nor have the necessary deterrent
effect. Considering the nature of the offences, their impact on the victims, and
the continuing danger posed by the accused to society, this Court is in complete
agreement with the sentence imposed by the learned Trial Judge and finds no
reason to interfere with the same. This Court is of the considered opinion that
the sentence imposed by the learned Trial Judge under Sections 376(2)(n),
354(c) and 506(ii) of IPC and is just, proportionate and commensurate with the
seriousness of the crime and this Court finds no ground warranting interference
with the sentence imposed by the learned Trial Judge. The learned trial Judge
also taken into account of Section 71 of IPC has not passed any sentence
separately under Sections 417, 354(A), 294(b), 354(c) of IPC and Section 66E
of Information Technology Act and this Court has no jurisdiction to
interfere with the said decision of the learned trial Judge without any
appeal on the side of the prosecution.
24.4.Accordingly, this Court finds no merit in the plea for reduction of
sentence. The sentence of imprisonment for the remainder of the natural life of
126/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
the accused, imposed by the learned Trial Court, is justified and affirmed.
25. Emotional Appeal and earnest request:
25.1. This Court is conscious of its constitutional duty to uphold the
dignity, liberty and safety of every individual. The Courts, as guardians of the
rule of law, have a solemn responsibility to ensure that victims of sexual
offences receive effective legal protection and that the criminal justice system
responds appropriately to offences facilitated by modern technology.
25.2. Having regard to the nature of the present case, this Court considers
it appropriate to make an earnest appeal, particularly to young persons and their
families, to exercise utmost caution while entering into online or
technologically facilitated relationships. The exponential growth of digital
communication and the use of social media has undoubtedly enriched human
interaction; however, it has also created opportunities for exploitation through
deception, emotional manipulation, coercion, non-consensual recording of
intimate images, and threats of their dissemination. Awareness, vigilance and
timely reporting of such offences are indispensable to prevent victimisation.
25.3. This appeal is made not only in the interest of women, who are
often disproportionately targeted by such crimes, but equally in the interest of
127/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023all members of society who may become victims of technology-enabled sexual
exploitation.
25.4.Considering the wider public importance of the issues involved, this
Court deliver this portion of the judgment in English,Tamil and Hindi.
128/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
English Hindi Tamil
From the very dawn of human म नव सभ त क प रभ क क ल स ह ह म न kdpj ehfhpfk; Njhd;wpa fhyk; KjNy> me;juq;fj;ijg;
civilisation, it has been recognised that ग ह भक म द और भनजत म नव गररम क NgZtJk; fz;zpakhd elj;ijiag; gpd;gw;WtJk; kdpj
modesty and privacy are integral to अभ नन अग ह। आदम और हवव क! ब इभबल fz;zpaj;jpd; gphpf;f Kbajhj $Wfshff; fUjg;gl;L
tUfpd;wd. ,jid> iggpspy; ,lk;ngWk; Mjhk; kw;Wk;
human dignity. The Biblical account of कथ इस सत क& पत क तमक रप स दर त ह:
Vths; gw;wpa fij FwpaPl;L tbtpy; ntspg;gLj;JfpwJ.
Adam and Eve symbolically reflects this अपन नगनत क ब&ध ह&न क ब द उनह-न सव
jq;fspd; eph;thzepiyia czh;e;j gpd;dh;
truth: after becoming conscious of their क& पत- स ढक भल , ज& व भ1गत भनजत और mth;fs; ,iyfshy; jq;fis %bf; nfhz;ldh;. ,J
nakedness, they covered themselves with म द क! रक करन क! मन3ष क! सव भवक me;juq;fj;ijAk;> fz;zpaj;ijAk; ghJfhf;Fk; kdpjdpd;
leaves, signifying the innate human पव5भत क& दर त ह। जस-जस सभ त भवकभसत ह6ई, ,ay;ghd cs;Szh;itf; fhl;LfpwJ.
instinct to preserve personal privacy and वस कवल एक र र ररक आवश कत ह नह; रह,
modesty. As civilisation evolved, clothing बभ<क म नव गररम और स म भजक व वसथ क ehfhpfk; tsh;r;rpaile;jNghJ cil vd;gJ ntWk; cly;
Njitahf kl;Lky;yhky;> kdpj fz;zpaj;ijAk; r%f
came to represent not merely a physical एक महतवप=र पत क बन गए।
xOq;ifAk; gpujpgypf;Fk; Kf;fpa milahskhfTk;
necessity but an essential attribute of khwpaJ. tUe;jj;jf;f tifapy;> ,d;iwa b[pl;ly;
human dignity and social order. द3 ग वर, वतम न भ?भजटल 3ग मA क3छ
Afj;jpy; rpy kdr;rhl;rpaw;w egh;fs;> ,sk; ngz;fs;
Regrettably, in the present digital era, अस म भजक और बईम न व भ1 3व लडभक - और kw;Wk; rpWkpfspd; ek;gpf;ifiaAk; czh;rr ; p hPjpahd
some unscrupulous individuals exploit मभहल ओ क भवश स तथ वन तमक gytPdq;fisAk; jq;fsJ Raey Nehf;fq;fSf;fhf
the trust and emotional vulnerability of सवदनर लत क द3रप &ग करत ह। छल, झ=ठ jfhj topapy; gad;gLj;Jfpd;wdh;. je;jpukhf Vkhw;Wjy;>
young girls and women. By deceit, false व द- वन तमक हरफर क म ध म स व ngha;ahd thf;FWjpfs; my;yJ czh;rr ; p hPjpahd
promises, or emotional manipulation, प भडत ओ क& अपन भनज तसव रA व भ? & स झ #o;rr ; pkpf;f tw;GWj;jy;fs; %yk;> mth;fs;
ghjpf; f g; gl; l th; f is me; j uq; f khd Gifg; g lq; f s; my;yJ
they induce victims to share their करन क भलए पररत करत ह। ऐस स मग प प fhnzhspfisg; gfpuj; Jhz;Lfpd;wdh;. mt;thW ngw;Wf;
intimate photographs or videos. Having करन क ब द ल&ग उनक भवश स क& त&डत ह6ए nfhz;lgpd;dh;> ek;gpf;ifj; JNuhfk; nra;J> me;juq;fg;
obtained such material, these offenders स&रल म भ? अन भ?भजटल मच- पर उन Gifg;glq;fs; my;yJ fhnzhspfis r%f
betray the confidence reposed in them तसव र- व भ? & क& स वजभनक करन क! धमक! tiyj;jsq;fs; kw;Wk; gpw ,izaj; jsq;fspy;
and resort to blackmail by threatening to दकर बलकमल करत ह, भजसस प भडत ओ क& ntspapLtjhf kpul;b> ghjpf;fg;gl;lth;fisj; njhlh;e;J
publish the intimate images on social भनरतर र&षर, अपम न और म नभसक प ड क Ruz;lYf;Fk;> mtkhdj;jpw;Fk;> fLikahd kd
media or other digital platforms, thereby स मन करन पडत ह। cisr; r Yf; F k; cs; s hf; F fpd; w dh; .
subjecting the victims to continued ,j;jifa #o;epiyfspy;> midj;J rpWkpfsplKk; ,sk;
exploitation, humiliation, and ऐस पररभसथभत – मA ह न ल स 3व
ngz;;fsplKk; ,e;j ePjpkd;wk; gzpTlDk; kdkhh;e;j
psychological trauma. लडभक – और मभहल ओ स भवनम भकत3 ग र अप ल mf;fiwAlDk; xU Ntz;LNfhis Kd;itg;gJ
In these circumstances, this Court करन उभचत समझत ह। च ह पम भकतन गहर nghUj;jkhdJ vdf; fUJfpwJ. md;G vt;tsT
considers it appropriate to make a ह&, भवश स भकतन मजब=त ह& ग&पन त क Mokhdjhf ,Ue;jhYk;> ek;gpf;if vt;tsT
humble but earnest appeal to all young आश सन भकतन पकक पत त ह&, भकस cWjpahdjhf ,Ue;jhYk;> ufrpak; fhf;fg;gLk; vd;w
girls and women. No matter how deep व भ1 क स थ इलकSTभनक म ध म स भनज तसव रA thf;FWjp vt;tsT ek;gfkhdjhfj; Njhd;wpdhYk;> ve;j
the affection, trust, or promise of व भ? & स झ नह; भकए ज न च भहए। एक ब र egUlDk; kpd;dZ topfspy; me;juq;fkhd Gifg;glq;fs;
my;yJ fhnzhspfisg; gfpuf; $lhJ.
confidentiality may appear, intimate ऐस स मग आपक प=र भन तर स ब हर चल ज ए,
photographs or videos should never be त& उसक द3रप &ग आस न स भक ज सकत ह, Vnddpy;> mj;jifa Nfhg;Gfs; xUthpd; KOikahd
shared with anyone through electronic भजसक पररर मसवरप आपक! भनजत , गररम और fl;Lg;ghl;il tpl;L ntspNawpaTld;> mit vspjpy;
means. Once such material leaves one’s म नभसक सव सV क& अप=रर कभत पह6Wच सकत jtwhfg; gad;gLj;jg;gl$ba mghak; cUthfpwJ. ,jd;
exclusive control, it can easily be ह। भवश सघ त ह&न क ब द क न=न उप – क! लब tpisthf> me;juq;fk;> fz;zpak; kw;Wk; kdeyj;jpw;F
misused, leading to irreversible और कभठन पभY स ग3जरन क! अपक स वध न <Lnra;a Kbahj ghjpg;Gfs; Vw;glf;$Lk;. ek;gpf;ifj;
JNuhfk; nra;ag;;gl;l gpd;dh; rl;lhPjpahd epthuzj;ij
consequences for the victim’s privacy, बरतन हमर बहतर ह&त ह।
ehLk; Ntjidahd nray;Kiwia vjph;nfhs;tij tpl>
dignity, and mental well-being. Kd;ndr;rhpf;if eltbf;iffis Nkw;nfhs;tNj
Prevention is always better than the अतZ ह न ल स लडभक – और मभहल ओ स vg;NghJk; rpwe;jjhFk;.
arduous process of seeking legal redress समम नप=वक आगह करत ह भक व भ?भजटल द3भन
after such trust has been betrayed. मA अपन भनजत और गररम क! रक क भलए vdNt> b[pl;ly; cyfpy; jq;fsJ me;juq;fj;ijAk;
अत भधक सतक रहA। भवश स क! एक छ&ट -स ल = fz;zpaj;ijAk; ghJfhg;gjpy; kpFe;j tpopg;Gzh;TlDk;
This Court, therefore, respectfully urges ज वन र क द3 Z ख क क रर नह; बनन च भहए। vr;rhpf;ifAlDk; ,Uf;FkhW xt;nthU rpWkpiaAk;
ngz;izAk; ,e;j ePjpkd;wk; khpahijAld;
every young girl and woman to exercise
Nfl;Lf;nfhs;fpwJ. xU fz Neu jtwhd ek;gpf;if>
the utmost caution in safeguarding their tho;ehs; KOtJk; ePbf;Fk; Jauj;jpw;Fk; Ntjidf;Fk;
privacy and dignity in the digital world. fhuzkhf khwf;$Lk;.
A moment of misplaced trust should
never become a lifetime of suffering.
129/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 202325.5. Owing to the paucity of time, this Court is unable to exercise
translation in all regional language of this country, for which, we express our
regret. This Court further requests the print, electronic and digital media to give
wider publicity to this advisory in the larger public interest, with the object of
promoting awareness regarding technology-enabled sexual offences and to be
wary of exploitation.
25.6. In view of the foregoing discussion, this Court finds no merit in any
of the submissions advanced by the learned Senior Counsel. The prosecution
has established the guilt of the accused beyond reasonable doubt, and the
judgment of conviction recorded by the learned trial Court does not suffer from
any legal or factual infirmity warranting interference. Accordingly, the appeal is
liable to be dismissed.
26. Conclusion:
Accordingly, the Criminal Appeal is dismissed, and the conviction and
sentence imposed by the Fast track Mahila Court, Nagercoil, in S.C.No.41 of
2021 dated 14.06.2023 are hereby confirmed.
130/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023N.ANAND VENKATESH.J,
27.I had the advantage of carefully reading the well-crafted judgment of
my brother judge and I completely concur with each finding. I have included
this postscript because the issue it addresses will likely trouble future minds,
and because I hope the system will evolve to deal with such cases more
professionally and without imposing unacceptable harm on the human beings
who operate it.
28.For generations, judges and lawyers evaluated evidence through a
traditional, language based process. We reconstructed the past from written
depositions, oral testimony, and clinical reports. None of the decision makers
actually saw the crime unfold. That traditional method created an important
protective buffer in terms of an intellectual distance between the professional
mind and the raw trauma of the event. We processed suffering through words,
not through direct sight.
29.The digital era has shattered that protective wall. We are no longer
asked merely to evaluate descriptions, we are now compelled to watch the
131/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023violence itself. Courts dealing with sexual offences are increasingly flooded
with explicit videos and photographs that record the worst of human behaviour.
30.In this case, a lady investigating officer had to sit through nearly sixty
files of hardcore, perverted material to locate the single item relevant to the
victim. Prosecutors, defence counsel, and judges at every level then face the
same poisonous images. The system now requires its officers to do something
fundamentally unnatural: to become, repeatedly and retrospectively, spectators
to the violation of human dignity.
31.To understand why this is profoundly disturbing, the law must engage
with what we now know of human neurobiology. Our brains evolved for a
physical world. For hundreds of thousands of years, human minds reacted to
threats, violence, and social interactions that happened in front of them.
Embedded within this architecture are mirror neurons which is the biological
substrate of empathy and which fire similarly when we experience an event and
when we merely observe it.
132/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
32.From an evolutionary standpoint, the human brain cannot truly tell the
difference between a traumatic event happening in real life and a high-
definition video of that same event on a screen. When a legal professional sits
in front of a screen watching hours of perverted, explicit material, the primitive,
emotional center of the brain is repeatedly triggered. The logical mind tries to
say, “This is just evidence for a case,” but the deeper, evolutionary parts of the
brain feel like they are repeatedly witnessing a live, horrific assault. We are
trying to navigate a parallel “screener world” using a brain that was built only
for the physical world.
33.There is a dangerous myth in the legal profession that our
“professional detachment” makes us immune to the horrific things we see.
Neuroscience and psychology demonstrate otherwise. Repeatedly watching
graphic digital evidence causes real, measurable psychological harm, known as
vicarious trauma with predictable physiological and functional consequences
such as;
Constant alarm mode, Cognitive fatigue, Emotional numbing,
where the brain’s The front part of the brain To protect itself, the brain
emotional alarm which is the area judges use to may eventually numb its own
system becomes make calm, rational legal empathy. This is a tragic
hypervigilant, leaving decisions, has to use an immense defense mechanism, because a
the person with amount of energy just to suppress judge without empathy loses the
prolonged anxiety and the natural disgust and distress very quality needed to deliver
loss of personal calm. caused by graphic videos. true justice.
133/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
34.When this court expressed concern for the lady investigating officer
who endured sixty files of raw perversion, it was not sentimentality. It was
recognition of a clinical assault upon her mental peace willy nilly a foreseeable
occupational hazard of our digital age. No amount of police or legal training
will inoculate a human being from absorbing such toxic material without
incurring a substantial mental cost.
35.We are entering a new era where these types of digital crimes are
rapidly increasing. The law has built strict checks and balances under the
Evidence Act to make sure digital files are not manipulated. But the law has
completely ignored how these same digital files manipulate and harm the
human minds required to judge them.
36.The machinery of justice cannot treat its human beings like unfeeling
computers. If we continue to ignore the mental and neurological toll of this
digital age, we will end up with burnt-out, traumatized, and emotionally
numbed investigators, lawyers, and judges.
134/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023
37.It is time for judiciary and institutional leaders to confront this
challenge candidly. We must build institutional responses that protect those who
carry the system through mandatory psychological screening, regular
counselling, decompression protocols after exposure, rotation of personnel
assigned to graphic material, training to recognise and respond to vicarious
trauma, and secure facilities and procedures to minimise unnecessary exposure.
Such measures are not luxuries but they are essential to the integrity and
sustainability of a justice system that still depends on human judgment.
38.The law must continue to refine the technical rules for digital
evidence. It must also, with equal seriousness, safeguard the minds entrusted to
apply it.
[N.A.V.,J.] & [K.K.R.K.,J.]
14.07.2026
NCC :Yes/No
Index :Yes/No
Internet:Yes/No
pal/sbn
Note: The Registry is hereby directed to remove the Tamil portion from this
order while uploading this order on the official website except paragraph No.
25.4″
135/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023To
1.The Inspector of Police,
CBCID, Nagercoil, Kanyakumari District.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
136/137
https://www.mhc.tn.gov.in/judis
Crl.A(MD).No.644 of 2023N.ANAND VENKATESH,J.
and
K.K.RAMAKRISHNAN,J.
pal/sbn
Pre-delivery Order made in
Crl.A(MD).No.644 of 202314.07.2026
137/137
https://www.mhc.tn.gov.in/judis
