Kesavan, Aged 43 Years, v. State Rep. by

JUDGMENT The Appellant is before this Court against the judgment of the trial Court (Sessions Judge, Karaikal) dated 14.02.2018 in Spl.S.C.No.15 of 2016. By the impugned judgment, the trial Court found the Appellant guilty under Section 8 of the POCSO Act, 2012, for committing an offence under Section 7 of the said Act. Page2 of 7

¶2Before the trial Court, 15 witnesses were examined and 11 Exhibits were marked, as detailed below: Prosecution Witnesses: PW1

06.06.2017 Sundaramurthy PW2

06.06.2017 Dhanalakshmi PW3

06.06.2017 Victim PW4

20.06.2017 Thangarasu PW5

20.06.2017 Raman PW6

20.06.2017 Rajkumar PW7

04.07.2017 Devika PW8

04.07.2017 Geetha PW9

25.07.2017 Suthagar PW10

25.07.2017 Jayasithra PW11

22.08.2017 Dr.Abarna PW12

22.08.2017 Dr.Uma Maheswari PW13

12.09.2017 Dhanalakshmi PW14

31.10.2017 Suresh, S.I. of Police PW15

13.11.2017 Inian, S.I. of Police Prosecution Exhibits: Ex.P1

01.08.2016 Complaint of Sundaramurthy Page3 of 7 Ex.P2

01.08.2016 The entire crime details form Ex.P3 -- The entire property search and seizure and seizure form of victim girl Ex.P4

01.08.2016 Admitted portion of the Accused Confession Statement Ex.P5

01.08.2016 Property search and seizure form (accused's lungi) Ex.P6

02.08.2016 Certificate of potency/impotency of accused Ex.P7

02.08.2016 Medical examination report of victim girl Ex.P8

01.08.2016 F.I.R.No.45/2016 Ex.P9

01.08.2016 Crime detail form Ex.P10

01.08.2016 Form 95, No.308221 Ex.P11

25.12.2004 Both certificate of Victim girl Defence Witnesses: NIL Defence Exhibits: NIL Material Objects: M.O.1 Mu";R fyhpy; fUg;g[ nyR nfhL cs;s kw;Wk; fj;jhpg;g[ fyh;. nuh!; fyh; kw;Wk; bts;is epw ghlh; bfhz;l oird; ghthil xd;W/ Page4 of 7 M.O.2 Take on Inspirine nfkuh glk; nghl;l Picture vd;W vKjpa fU;gg[ fyh; lhg;!; xd;W/ M.O.3 gr;ir fyh; vyh!;of; $l;o xd;W/ M.O.4 rpbkz;l; fyh; ePyf;fyh; fl;lk; nghl;l fapypapy; bts;is epw nfhL nghl;lJ xd;W/ M.O.5 A packed box containing 1. Swab from Penis. 2. Hair form Pubis, 3. Nail.

¶3The impugned judgment of the trial Court is sought to be assailed primarily on the ground that P.W.1 and P.W.2 admitted to a previous enmity between the family of the Petitioner and that of the victim. P.Ws.1 and 2 are the parents of the victim (the father and mother, respectively). P.W.3 is the victim aged about 11 years and the Appellant was aged about 42 years.

¶4The prosecution has, strangely and curiously, failed to exhibit the victim's statement recorded by the learned Magistrate under Section 164 of the Cr.P.C. However, the testimony of the victim during her chief and cross-examinations remains consistent. In fact, the statements elicited during cross-examination further exposed the Appellant, providing graphic details of the alleged incident that took place on the afternoon of 31.07.2016. Page5 of 7

¶5The sole defense raised before this Court rests on the previous family enmity, based on the depositions given by P.Ws.1 and 2 on 06.06.2017. Apart from this, no other extenuating circumstances have been brought to the attention of this Court that would raise even a shadow of doubt to exonerate the Petitioner of the offense for which he has been convicted and sentenced. The witnesses examined, except for the victim, are all strangers to the offense.

¶6The facts on record, as documented by the trial Court, clearly substantiate the allegation that the Petitioner fondled the private parts of the child victim and caused her physical pain. When the victim resisted, the Appellant attempted to overpower her. The victim narrated the incident to her neighbour, who in turn informed the victim's mother (P.W.2). P.W.2 subsequently narrated the incident to the victim's father (P.W.1), who lodged the complaint on the following day, culminating in the registration of FIR in Crime No.45 of 2016 (marked as Ex.P8).

¶7I do not find any credible reason to disturb the findings of the trial Court. Furthermore, under Section 29 of the POCSO Act, 2012, where a person is prosecuted for committing, abetting, or attempting to commit an offense under Sections 3, 5, 7, or 9 of the Act, the Special Court shall presume that the accused committed the offense unless the contrary is proved. Similary, as per Section 30 of the Act, the Special Court is entitled to presume the existence of a Page6 of 7 culpable mental state, placing the burden on the accused to prove that he had no such mental state regarding the act charged. The mere admission by P.W.1 and P.W.2 regarding the existence of a private dispute between the families does not, ipso facto, entitle the accused to rebut or shift the burden cast upon him under Sections 29 and 30 of the POCSO Act.

¶8There is no reason for this Court to disbelieve the deposition of the victim which has been consistent all along in view of the judgment of the Hon'ble Supreme Court in Ganesan Vs. State Rep.by its Inspector of Police, reported in AIR 2020 SC 5019 : (2020) 10 SCC 573. Under these circumstances, this Criminal Appeal is liable to be dismissed. 24-06-2026 Index: Yes/No Speaking/Non-speaking order GBI To

1.The Inspector Of Police, Nedungadu Police Station, Karaikal.

2.The Public Prosecutor, High Court of Madras. CRLoAoNo.o150oofo2018 C.SARAVANAN,oJ. GBI CRLoAoNo.o150oofo2018 24-06-2026 Page7oofo7

Page1 of 7 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24-06-2026 CORAM THE HON'BLE MR JUSTICE C. SARAVANAN Kesavan, Aged 43 Years, S/o.Rajamanickam, Rajammal Nagar, Mariamman Koil Street, Kurumbagarm, Nedungadu, Karaikal ..Appellant(s) Vs State Rep. By Inspector Of Police, Nedungadu Police Station, Karaikal. Cr.No.45 Of 2016 ..Respondent(s) Prayer: This Criminal Appeal is filed under Section 374 (2) of Criminal Procedure Code, seeking to set aside the order of conviction passed in Spl.S.C.No.15 of 2016, dated 14.02.2018, on the file of the Sessions Judge, Karaikal and acquit the accused / appellant of the charge leveled against him. For Appellant(s): Mr.M.Praveen Kumar For Respondent(s): Mr.A.Alexander, Govt. Advocate (Pondy)