Madras High Court
Mariyaselvam vs The Inspector Of Police on 9 March, 2026
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl. A(MD)No.496 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.03.2026
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
AND
THE HONOURABLE MR.JUSTICE P.DHANABAL
Crl. A(MD)No.496 of 2023
Mariyaselvam : Appellant(s)
Vs.
The Inspector of Police,
All Women Police Station, Devakottai,
Sivagangai District.
Cr.No.13/2014. : Respondent(s)
PRAYER: Criminal Appeal is filed under Section 372 of the Code of
Criminal Procedure, against the judgment dated 04.12.2019 in Spl.C.No.
12 of 2015 on the file of the Sessions Judge, Fast Track Mahila Court,
Sivagangai and set aside the same as illegal and acquit the appellant.
For Appellant : Mr.R.Prakash
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
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Crl. A(MD)No.496 of 2023
JUDGMENT
(Judgment of the Court was
delivered by N.ANAND VENKATESH, J)
The present criminal appeal has been filed against the judgment of
the Sessions Judge, Fast Track Mahila Court, Sivagangai in Special
S.C.No.12 of 2015, dated 04.12.2019, convicting the appellant for
offence under Section 6 read with 5(k) and 5(m) of “the Protection of
Children from Sexual Offences Act, 2012, (for brevity hereinafter
referred to as “the POCSO Act”) and sentenced to undergo life
imprisonment and to pay fine of Rs.10,000/-, in default to undergo one
year rigorous imprisonment. The sentences were directed to run
concurrently.
2. The case of the prosecution is that the victim girl was aged
about 10 years and she was a mentally challenged person. The accused
person was living near the house of PW4. PW4 is the grandfather of the
victim girl. It is alleged that on 13.11.2014 the accused person is said to
have sexually assaulted the victim girl. PW4, who is the grandfather, saw
the victim girl coming out of the house of the accused holding her
undergarment clothes in her hand. It came to light that the victim girl was
sexually assaulted by the accused person.
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3. A complaint (Ex.P1) came to be given by PW1, who is the
mother of the victim girl. Based on the same, an FIR came to be
registered (Ex.P10). The statement of the victim girl was recorded under
Section 164 of CrPC., (Ex.P3).
4. PW15, who is the investigation officer, took up the investigation
and went to the place of occurrence and prepared Observation Mahazar
(Ex.P4) and Rough Sketch (Ex.P11). The accused person is said to have
given an extra-judicial confession to PW8, who is the Panchayat
President and admitted his guilt.
5. The investigation officer recorded the statements of witnesses
and collected all the relevant materials and laid the police report before
the court below. The Special Court framed charges against the accused
person for offence under Section 5(k) and 5(m) read with Section 6 of the
POCSO Act. The accused person denied the charges as false.
6. The prosecution, in order to prove their case, examined PW1 to
PW15 and marked Exhibits P1 to P13 and also relied upon MO1.
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7. On completion of the evidence on the side of the prosecution,
the incriminating materials and evidence was put to the accused person
while he was questioned under Section 313 of CrPC. He denied the same
as false.
8. The accused person did not examine any witnesses but relied
upon one document.
9. The trial court, on considering the facts and circumstances of the
case and on appreciation of evidence, came to the conclusion that the
accused person failed to discharge the reverse burden and the prosecution
has proved the foundational facts and hence convicted and sentenced the
accused person in the manner stated supra. Aggrieved by the same, the
present appeal has been filed before this Court.
10. This Court carefully considered the submissions made on
either side and the materials available on record.
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11. In the case in hand, the evidence of PW1, the victim girl PW2,
PW4 the father of PW1, the President of Panchayat PW8, and the
evidence of the doctor PW13 assumes a lot of significance.
12. PW1, who is the mother of the victim girl, states that she had
sent the victim girl to the house of her father and the victim girl all of a
sudden went missing for half an hour and she came out of the house of
the accused person by carrying her clothes in her hand. She was not
sounding normal and she was a mentally challenged person who cannot
express herself. However, she was continuously pointing out to her
private part. On suspicion, the accused person was questioned and he
was taken to the office of the Panchayat President PW8 where he
confessed that he committed a wrong on the victim girl and he sought for
pardon.
13. PW2 is the victim girl. She was examined with the assistance
of an interpreter. During evidence, when the accused person was shown
to PW2, she nodded her head and when she was asked whether she
knows the accused person and what the accused person did, the victim
girl with her right hand pointed out to her private part. When she was
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asked as to why she was pointing out to her private part, she was not able
to cogently answer considering the fact that the victim girl is a mentally
challenged person who cannot express herself.
14. PW3 is an interpreter who talks about the assistance sought for
from her at the time of recording Section 164 statement from the victim
girl.
15. The evidence of PW4 is very important since the victim girl
was staying with PW4 and only at that point of time, the victim girl had
gone to the house of the accused and went missing and she came out of
the house by carrying her undergarment clothes in her hand. From there,
the accused person was taken to the office of the Panchayat President
before whom he gave an extra-judicial confession to the effect that he
had committed a wrong on the victim girl.
16. PW13 is the doctor who examined the victim girl and issued
the certificate of examination marked as Ex.P9. On examination, the
doctor was not able to find any external or internal injuries in the
genitalia and the hymen was also intact. No bleeding or discharge was
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Crl. A(MD)No.496 of 2023
found.
17. The overall reading of the evidence of PW1, PW2, PW4, PW8
and PW13 clearly establishes that the victim girl had gone to the house of
the accused and what actually happened inside the house was not able to
be explained considering the fact that she was mentally challenged.
However, it has been established that the victim girl came out of the
house of the accused by carrying the clothes in her hand and she was
naked below the hip. There is no material to establish that there was
penetrative sexual assault against the victim girl. Hence, the offence of
aggravated penetrative sexual assault under Section 5 is also not made
out.
18. The manner in which the victim girl came out of the house of
the accused and was pointing out to her private part when she was asked
about what happened inside the house shows that there was a physical
contact by the accused person with a sexual intent. Hence, on the
foundational facts being established by the prosecution, the presumption
under Sections 29 and 30 of the POCSO Act will operate and the accused
person has not discharged the reverse burden.
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19. Since the offence of sexual assault has been made out as
defined under Section 7 of the POCSO Act, the offence of aggravated
sexual assault is also made out under Section 9(k) of the POCSO Act
since the accused person has taken advantage of the child’s mental
disability and committed sexual assault. The same is punishable under
Section 10 of the POCSO Act with imprisonment which shall not be less
than 5 years but which may extend to 7 years and shall also be liable to
fine.
20. On the facts and circumstances of the case and on appreciation
of the evidence, this Court is inclined to interfere with the judgment of
the trial court insofar as the conviction and sentence of the accused
person since on the materials available, no offence has been made out
under Section 5(k) and 5(m) read with Section 6 of the POCSO Act.
However the conviction can be sustained for offence under Section 9(k)
of the POCSO Act and this Court is inclined to modify the sentence to
rigorous imprisonment of 6 years and to pay a fine of Rs.5,000/-, in
default to undergo one year rigorous imprisonment. The period already
undergone by the accused person shall be set off under Section 428 of
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CrPC. Insofar as the direction issued to the State Government to pay
compensation of Rs.7 lakhs, the same is sustained and the consequential
directions issued shall be complied with.
21. In the result, this criminal appeal stands partly allowed in the
above terms.
[N.A.V., J.] [P.D.B., J.]
09.03.2026
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
PKN
To
1.The Sessions Judge, Fast Track Mahila Court, Sivagangai.
2.The Inspector of Police,
All Women Police Station, Devakottai,
Sivagangai District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
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Crl. A(MD)No.496 of 2023
N.ANAND VENKATESH, J.
AND
P.DHANABAL, J.
PKN
Judgment made in
Crl.A.(MD)No.496 of 2023
09.03.2026
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