Madras High Court: In a criminal appeal filed by the convict against the judgment of conviction and sentence for offences under Sections 363 and 343 of the Penal Code, 1860 (‘IPC’), and a criminal appeal filed by State to set aside the order of acquittal under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), passed by the Sessions Judge, the Single Judge Bench of P.Velmurugan, J*. concluded that since the victim had not completed 18 years of age at the time of the incident, she was considered a child under the POCSO Act. Therefore, the concept of consent or voluntary elopement had no legal bearing. Thus, the Court held that the offence under Sections 363 and 343 of the IPC was clearly made out.
Further, the Court found that the convict had removed the victim from the lawful custody of her parents, and that the two stayed at the homes of the convict’s relatives, during which time they had a physical relationship. Therefore, the Court held that the acts committed by the convict fall squarely within the definition of an offence under Section 3, punishable under Section 4(1) of the POCSO Act.
Background
The prosecution’s case was that, based on a complaint lodged by the father of the victim girl, the police initially registered a case for a “girl missing” report. Subsequently, the victim was secured, and based on her statement, the police altered the charges to include offences under Section 363 of the IPC and Section 5(l) read with Section 6 of the POCSO Act, 2012. The charges were later further modified to Sections 363 and 343 of the IPC, along with Section 5(l) read with Section 6 of the POCSO Act. Upon completion of the investigation, a charge sheet was filed and taken on file by the Sessions Judge. After the trial, the Court convicted the convict under Sections 363 and 343 of the IPC but acquitted him of the charges under Section 5(l) read with Section 6 of the POCSO Act. Aggrieved by the conviction and sentence under the IPC provisions, the convict filed a criminal appeal. Simultaneously, challenging the acquittal under the POCSO Act, the State preferred a criminal appeal.
Analysis and Decision
Taking note of the prosecution’s case, the defence version, and the cross-examination of the victim, the Court pointed out that the convict and the victim were well acquainted, having once been neighbours, and had been in a romantic relationship. When the victim’s parents became aware of the relationship, a quarrel ensued, prompting the convict to shift his residence. The evidence of the victim revealed that, after her parents arranged her marriage to another person, she voluntarily left home and approached the convict for help.
The Court said that the convict, being aware that the victim had not attained majority at the relevant time, ought to have informed the police, a competent authority, or a Social Welfare Officer. In the current age, where young individuals are well informed of their rights, the convict had several lawful avenues available to assist the victim, including seeking help from authorities or even through social media. However, instead of doing so, he took the minor victim to several places, eventually staying at a relative’s house in Mysore for a few days.
The Court concluded that since the victim had not completed 18 years of age at the time of the incident, she was considered a child under the POCSO Act. Therefore, the concept of consent or voluntary elopement had no legal bearing. The Court held that the offence under Sections 363 and 343 of the IPC was clearly made out. Accordingly, it found no merit in the grounds raised by the convict and concluded that the trial Court had rightly convicted him under the said IPC provisions. The appeal filed by the convict was thus liable to be dismissed.
Regarding the appeal filed by the State against the acquittal of the convict under the POCSO Act, the Court observed that, after securing the victim, her statement under Section 161 CrPC was recorded by a woman police officer. In that statement, the victim clearly stated that she had voluntarily left her parental home, approached the convict, and that the convict took her to Mysore, where they stayed at a relative’s house and had a physical relationship. Subsequently, the victim was produced before the Magistrate, and her statement was recorded under Section 164 CrPC. Although in this statement she did not explicitly mention having had a physical relationship, she diplomatically stated that “they were together” during their stay in Mysore.
The Court noted that since the statement was recorded by a male Magistrate, and given that the victim was a village girl, she might have refrained from using explicit terms due to shyness or embarrassment and instead opted for a more indirect expression. Furthermore, medical evidence corroborated the incident, with the examining doctor clearly stating that the victim’s hymen was not intact. Although the statement recorded under Section 161 CrPC is not admissible as substantive evidence, it can nevertheless be used to contradict or corroborate other evidence.
The Court noted that, before the Trial Court, the victim was examined. A reading of her testimony revealed that she did not support the prosecution’s case with respect to the charge under the POCSO Act. As a result, she was declared a hostile witness. When the prosecution, during cross-examination, suggested that the convict had committed penetrative sexual assault, the victim denied the allegation. However, during cross-examination by the defence, when it was suggested that she had been involved in sports and was accustomed to riding a bicycle and two-wheeler during her college days, she admitted the same
The Court observed that, in an attempt to shield the convict and counter the medical opinion indicating that the victim’s hymen was not intact, the defence sought to suggest that the condition was not a result of any sexual activity with the convict. However, no supporting evidence was brought forward to substantiate this claim, nor was any independent witness examined by the defence.
Additionally, the Court noted that during the pendency of the trial, the convict married the victim, and thereafter, the victim turned hostile during her testimony before the trial Court, evidently to protect the convict. The victim’s family members also turned hostile, further undermining the prosecution’s case at the trial stage.
The Court emphasised that the Trial Court erred in failing to properly interpret the language used by the victim in her statement recorded under Section 164 CrPC, wherein she diplomatically stated that “they were together” during their stay in Mysore. This statement was recorded by a male Magistrate, and the Court noted that the trial Court overlooked the implications of the victim’s choice of words, likely influenced by modesty or discomfort. Furthermore, during the preparation of the judgment, the Trial Court recalled the victim who had already been declared hostile, to clarify the meaning of her earlier statement. Taking advantage of this opportunity, the victim revised her explanation, stating that she only meant that they were staying in the same house. Relying on this clarification, the trial Judge concluded that the oral evidence of the victim did not support the charge of sexual assault and thus acquitted the convict of the offence under Section 5(l) read with Section 6 of the POCSO Act.
However, the Court, upon perusal of the material evidence, found that the convict had removed the victim from the lawful custody of her parents, and that the two stayed at the homes of the convict’s relatives, during which time they had a physical relationship. This was further corroborated by medical evidence, which confirmed sexual activity. Therefore, the Court held that the acts committed by the convict fall squarely within the definition of an offence under Section 3, punishable under Section 4(1) of the POCSO Act.
The Court emphasised that the offence under the POCSO Act was not merely an offence against an individual, but a crime against society as a whole. Therefore, the fact that the convict had subsequently married the victim did not absolve him of the offence committed at a time when the victim was a child. The Court categorically stated that accepting a defence based on subsequent marriage or elopement would have undermined the very object and purpose of the POCSO Act, which was enacted to safeguard children from sexual offences, regardless of any later developments.
The Court further observed that had such a proposition been accepted, it would, in its opinion, have led to disastrous consequences, effectively allowing offenders to escape liability by marrying their victims, thereby defeating the protective intention of the legislation.
The Court observed that, since the convict had been acquitted by the Special Court of the offence under Section 5(l), punishable under Section 6 of the POCSO Act, and this Court had reversed the judgment of the Trial Court, thereby convicting the convict for the offence under Section 3, which is punishable under Section 4(1) of the POCSO Act, it was necessary that the convict be heard on the question of sentence before awarding punishment.
Accordingly, the Court directed the convict to appear before it for the purpose of hearing on sentence.
[Vijayakumar v. State, 2025 SCC OnLine Mad 2380, decided on 21-04-2025]
*Judgment authored by Justice P.Velmurugan
Advocates who appeared in this case:
For Appellant: Mr.T.Shanmugam
For Respondent: Mrs.G.V.Kasthuri Additional Public Prosecutor
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