Madras High Court
Desingu vs The Deputy Superintendent Of Police on 26 June, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.46 of 2023 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.06.2025 CORAM THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.A.No.46 of 2023 Desingu ... Appellant Vs 1. The Deputy Superintendent of Police, Porto Novo, Cuddalore. 2. The State Rep By Its, The Inspector of Police, Parangipettai Police Station, Buvanagiri Taluk, Cuddalore District. Cr.No.170 of 2019. 3. Xxxx, Xxxx, Cuddalore. ...Respondents PRAYER : Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code, to call for the entire records and set aside the order passed in Special S.C.No.5 of 2020 on the file of the Spl.Court (POCSO cases), Cuddalore, dated 18.03.2022. For Appellant : Mr.M.Karthik, legal aid counsel For R1 and R2 : Mr.S.Raja Kumar Additional Public Prosecutor JUDGMENT
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Crl.A.No.46 of 2023
This Criminal Appeal has been filed as against the order passed in
Special S.C.No.5 of 2020 dated 18.03.2022, on the file of the Special Court
(POCSO cases), Cuddalore, thereby convicting the appellant for the offences
punishable under Sections 5(m) and 6 of POCSO Act, Sections 3(1)(r),
3(1)(w)(i), 3(2)(v) of the Scheduled Caste ad the Scheduled Tribes (Prevention
of Atrocities) Amendment Act, 2012.
2. The case of the prosecution is that on 12.12.2019, when the minor
girl, aged about 3 years was playing in front of her house, the accused allegedly
taken her to his house and touched her genitalia and inserted his fingers into her
genitalia. Therefore, the victim girl suffered pain during her natural calls. It was
informed to her grand mother and thereafter, it was informed to the mother of
the victim. Hence, the complaint.
3. On receipt of the complaint, the second respondent registered FIR
in Crime No.170 of 2019 for the offences punishable under Sections 5(m) and 6
of POCSO Act, Sections 3(1)(r), 3(1)(w)(i), 3(2)(v) of the Scheduled Caste and
the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2012. After
completion of investigation, filed final report and the same has been taken
cognizance by the Trial Court in Special S.C.No.5 of 2020.
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4. On the side of the prosecution, they had examined PWs.1 to 14 and
marked Exs.P1 to P24 and also produced M.O.1. On the side of the accused, no
one was examined and no document was marked. On perusal of oral and
documentary evidences, the Trial Court found the appellant guilty for the
offences punishable under Sections 5(m) and 6 of POCSO Act and sentenced
him to undergo 20 years rigorous imprisonment and to pay a fine of Rs.2000/-,
in default to undergo three months simple imprisonment and for the offence
punishable under Section 3(1)(w)(i), of the Scheduled Caste and the Scheduled
Tribes (Prevention of Atrocities) Amendment Act, 2012, sentenced him to
undergo two years rigorous imprisonment and to pay a fine of Rs.2000/-, in
default to undergo three months simple imprisonment. The appellant was
acquitted for the offences under Sections 3(1)(r), 3(2)(v) of the Scheduled Caste
ad the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2012
5. The learned counsel for the appellant would submit that the
prosecution failed to prove the offences under Sections 5(m) and 6 of POCSO
Act. The Trial Court convicted the appellant only on the basis of circumstantial
evidence. Though the victim girl deposed that the appellant inserted his finger
into her genitalia, it was not corroborated by the evidence of the Doctor. The
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Doctor, who examined the victim was examined as PW.8. On examination of
the victim, PW.8 found no injury on the private part of the victim and her
hymen was intact. Therefore, the prosecution has miserably failed to prove any
of the charges. In fact, though the respondent filed a final report for the charges
under SC/ST (Prevention of Atrocities) Act, the Trial Court acquitted the
appellant for the offences under Sections 3(1)(r), 3(2)(v) of SC/ST (Prevention
of Atrocities) Act.
6. Per contra, the learned Additional Public Prosecutor submitted that
the victim was examined as PW.1, her mother was examined as PW.2, the her
father was examined as PW.3 and her grand mother was examined as PW.4. All
the evidences corroborates each other and clearly proved the charges. Therefore,
the Trial Court had rightly convicted the appellant and it does not warrant any
interference by this Court.
7. Heard the learned counsel for the appellant and the learned
Additional Public Prosecutor for the respondents 1 and 2 and perused the
materials available on record.
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8. A perusal of records revealed that the victim was examined as
PW.1. PW.1 deposed that while she was playing in front of her house, the
appellant had took her into his house and touched her private part. However, she
did not depose that he inserted his finger into her genitalia. She informed to her
grand mother. The grand mother of the victim was examined as PW.4.
However, PW.4 deposed that the appellant had taken the victim and inserted his
finger into her genitalia. Immediately, the victim was taken to the hospital. The
Doctor, who examined the victim was examined as PW.8. PW.8 stated that on
medical examination, the victim had not sustained any injury sustained to her
private part, nor was there any lacerated wound. She further stated that the
victim’s hymen was intact.
9. The Accident Register and the medical report was marked as
Ex.P9. Ex.P9 revealed as follows:-
“ Opinion:
I am of the opinion that after careful
examination of above victim
(1) There is possibility of inserting finger in genitalia
with history.
(2) No e/o of injuries in genitalia.
(3) No evidence of violence marks, injuries all over
body.”
10. To the contrary, PW.8, in her cross examination deposed that the
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hymen appeared intact and that there was no possibility of inserting finger in the
genitalia. However, she opined in the medical report that there was a possibility
of inserting finger in the genitalia. Therefore, the prosecution failed to prove the
offences under Sections 5(m) and 6 of POCSO Act beyond any reasonable
doubt. However, as per the evidence of PW.1, viz., the victim girl, the appellant
had touched her private part. Therefore, the prosecution has made out a case of
the offence punishable under Sections 7 and 8 of the POCSO Act.
11. In view of the above, the conviction and sentence imposed on the
appellant under Sections 5(m) and 6 of POCSO Act, in Special S.C.No.5 of
2020 dated 18.03.2022, on the file of the Special Court (POCSO cases),
Cuddalore, is hereby modified. The appellant is convicted for the offences under
Sections 7 read with 8 of POCSO Act and the sentence imposed on him is
modified to the period of incarceration which was already undergone by the
appellant. So far, the petitioner is incarcerated from the date of Judgment viz.,
18.03.2022 till today. Therefore, the appellant is directed to be set at liberty
forthwith unless his custody is otherwise required in connection with any other
case. The fine amount, if any, paid by the appellant shall be refunded. Bail
bond, if any, executed by the appellant shall stand cancelled.
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12. With the above modification, this Criminal Appeal stands partly
allowed.
26.06.2025
Speaking order/Non-speaking order
Index :Yes/No
Internet :Yes/No
mn
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Crl.A.No.46 of 2023
G.K.ILANTHIRAIYAN, J.
mn
To
1. The Special Court (POCSO cases),
Cuddalore.
2. The Deputy Superintendent of Police,
Porto Novo, Cuddalore.
3. The Inspector of Police,
Parangipettai Police Station,
Buvanagiri Taluk,
Cuddalore District.
4. The Superintendent of Prison,
Central Prison,
Cuddalore.
5. The Public Prosecutor,
High Court, Madras.
Crl.A.No.46 of 2023
26.06.2025
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