Desingu vs The Deputy Superintendent Of Police on 26 June, 2025

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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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