Mariyaselvam vs The Inspector Of Police on 9 March, 2026

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    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

    SPONSORED

    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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    Crl. A(MD)No.496 of 2023

    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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    Crl. A(MD)No.496 of 2023

    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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    Crl. A(MD)No.496 of 2023

    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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    Crl. A(MD)No.496 of 2023

    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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    Crl. A(MD)No.496 of 2023

    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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    Crl. A(MD)No.496 of 2023

    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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