Mohammed Ushen v. State of Tamilnadu Rep by Inspector of Police, Awps-Cantonment

JUDGMENT (Judgment of the Court was delivered by G.K.ILANTHIRAIYAN, J.) This appeal is directed as against the Judgment passed in Spl.S.C.No.01 of 2023, dated 06.11.2024, on the file of the learned Sessions Judge, Mahila Court, Tiruchirappalli, thereby convicting the appellant for the offences punishable under Sections 5(h), 5(L) read with 6(1) of the Protection of Children from Sexual Offences Act, 2012 (in short hereinafter referred to as 'the POCSO Act') and 457, 342, 397 and 506 Part II of I.P.C.

2.The case of the prosecution was that the accused is a habitual offender and committed several crimes. While being so, on

27.09.2022 at about 03.30 hours, the accused trespassed into the house of the complainant by breaking open the door with an iron rod and robbed gold jewelry weighing 1-1/4 sovereigns, putting her in fear of death. During the said incident, he tore the bedsheet and tied the hands and legs of the defacto complainant. Thereafter, he confined her in her room and went to the room of the minor victim girl, where she was sleeping. He carried an iron rod and threatened to kill her mother if she did not cooperate with him. Then, he had forcibly removed her dress and committed penetrative sexual assault against her. He also compelled the victim girl to apply her mouth to his penis and had committed penetrative sexual assault against the victim girl more than once. He had also applied his mouth to the vagina of the victim girl and had committed aggravated penetrative sexual assault. He also threatened the victim girl not to reveal the occurrence to anyone.

3.On the complaint, the respondent registered the F.I.R. After completion of the investigation, the respondent filed a final report for the offences punishable under Sections 457, 397, 450, 342 and 506 Part II of I.P.C and also under Section 5(L), 5(h), 3(d) read with 6(1) of POCSO Act. On receipt of the same, the Trial Court had taken cognizance and framed charges for the offences punishable under Sections 457, 397, 342, 450 and 506 Part II of I.P.C and under Sections 5(h), 5(l) read with 6(1) of POCSO Act.

4.In order to bring the charges to home, the prosecution had examined P.W.1 to P.W.19 and Exs.P1 to P.26 were marked. The prosecution had examined Materials Objects M.O.1 to M.O.9. On the side of the appellant, no one was examined and no documents were produced before the Trial Court.

5.On perusal of the oral and documentary evidence, the Trial Court found the accused guilty for the offences punishable under Sections 5(h), 5(l) read with 6(1) of POCSO Act, 2012 and 457, 342, 397 and 506 Part II of I.P.C. He was sentenced to undergo life imprisonment and was imposed a fine of Rs.5,000/- in default, to undergo six months simple imprisonment for the offence punishable under Section 5(h), 5(l) r/w 6(1) of POCSO Act, 2012 ii) he was sentenced to undergo three years Rigorous Imprisonment and imposed a fine of Rs.1,000/- in default, to undergo three months Simple imprisonment for the offence punishable under Section 457 of I.P.C iii) he was sentenced to undergo one year Rigorous Imprisonment and was imposed a fine of Rs.1,000/- in default, to undergo three months Simple imprisonment for the offence punishable under Section 342 of IPC iv) he was sentenced to undergo seven years Rigorous Imprisonment and was imposed a fine of Rs.2,000/- in default, to undergo six months Simple imprisonment for the offence punishable under Section 397 of IPC v) he was sentenced to undergo two years Rigorous Imprisonment and was imposed a fine of Rs.1,000/- in default, to undergo three months Simple imprisonment for the offence punishable under Section 506 Part II of IPC. Aggrieved by the same, the present appeal has been filed.

6.The learned counsel appearing for the appellant submitted that the prosecution failed to prove any charges beyond all reasonable doubt. According to Ex.P.16 – Accident Register, the samples collected did not contain any sperm or spermatozoa from the victim's vagina. Therefore, the medical evidence did not support the case of the prosecution. The identification of the accused took place in the police station while the accused was confessing about the alleged crime. Therefore, the prosecution failed to prove the identification of the accused in the manner known to law. The alleged occurrence took place on 27.09.2022 at about 03.00 hours. But the F.I.R was registered on the same day at about 20.00 hours. It reached the Court on 08.10.2022 and the delay was not explained by the prosecution properly. The doctor who examined the victim girl deposed as P.W.17. According to her evidence, there was no external injury on the body of the victim girl.

7.The learned counsel appearing for the appellant further submitted that the prosecution witnesses were not trustworthy, cogent and supported by medical evidence. Even then, the Trial Court mechanically convicted the accused and as such, the same is liable to be set aside.

8.Per contra, the learned Additional Public Prosecutor appearing for the respondent submitted that the accused is a habitual offender and that he has so far been involved in 29 cases. He committed a very serious and heinous offence as against the minor victim girl and also committed robbery. Immediately, after registration of F.I.R, the victim girl was subjected for medical examination before P.W.17. She deposed that the victim girl's hymen was not intact and the victim girl might have been subjected to sexual assault. Further, the statement of the victim girl was recorded under Section 164 of Cr.P.C and was marked as Ex.P.1. It clearly corroborates the evidence of P.W.1. M.O.5 and M.O.6 were produced by the prosecution and they contain the semen of the accused. Therefore, the prosecution clearly proved the charges under the POCSO Act. The complainant was examined as P.W.2 and her statement was recorded under Section 164 of Cr.P.C which was marked as Ex.P.3. Her deposition clearly corroborates the recovery of the weapon used by the accused as well as the jewels that were robbed by him and produced as Material Objects M.O.1, M.O.7 and M.O.8.

9.The learned Additional Public Prosecutor appearing for the respondent submitted that whenever the accused was produced before the Court, he used to threaten the police officials, public prosecutors and judicial officers. Therefore, it would not be safe for the Judicial Officers, Public Prosecutors or the victim's family, if the accused was released. That apart, even till today, the victim girl is undergoing treatment for a serious urinary infection and the Trial Court rightly convicted the appellant.

10.Heard the learned counsel appearing on either side and perused the materials placed on record.

11.On receipt of the final report, the Trial Court framed the following charges:  Charge No.1: The victim girl was aged 17 years at the time of occurrence. She was waiting for counseling to study B.Pharm after finishing grade 12. She was living with her mother. The occurrence took place at 3.30 hrs. in the early morning on

27.09.2022. The accused trespassed into the house of the defacto complainant by breaking open the door with iron rod which is a dangerous weapon. Therefore, the accused had committed the offence of trespass during the night which is punishable under section 457 of IPC.  Charge No.2: Following the said occurrence, the accused having caused fear of death in the mind of the defacto complainant with the iron rod and robbed gold jewels which comes to 1-1/4 sovereign from her and thereby committed the offence of robbery which is a punishable offence under section 397 of IPC.  Charge No.3: During the said occurrence, the accused had torn bed sheet of the defacto complainant and tied her with the torn piece of the bed sheet and confined the defacto complainant in her room and thereby committed the offence of wrongful confinement punishable under section 342 of IPC.  Charge No.4: During the said occurrence, the accused had trespassed in to the house of the defacto complainant with intent to commit penetrative sexual assault against the victim girl and thereby committed the offence of house trespass punishable offence under section 450 of IPC.  Charge No.5: During the said occurrence, the accused had forcibly committed penetrative sexual assault against the victim girl several times by putting her in fear of death by using dangerous weapon i.e. the iron rod and thereby committed the offence of aggravated penetrative sexual assault against the victim girl which is punishable offence under section 5(h), 5(l) r/w 6(1) of POCSO Act.  Charge No.6: Following the said occurrence, the accused had shown the iron rod to the victim girl and threatened her not to reveal the occurrence to police or any other person. Therefore, the accused has committed the offence of criminal intimidation punishable under section 506(2) of I.P.C."

12.At the time of occurrence, the victim girl was minor and her date of birth was 16.12.2004. On 27.09.2022, at about 03.30 hours, the accused trespassed into the house of the minor victim girl and robbed jewels from the victim girl's mother and he tore the bedsheet and tied the hands and legs of her. Thereafter, he entered into the minor victim girl's room and had committed penetrative sexual assault. After registration of F.I.R., the victim girl was subjected for medical examination and the doctor who examined the victim girl deposed as P.W.17. She recorded the accident register which was marked as Ex.P.16. Her statement was recorded in the accident register and thereafter, the statement of the victim girl was recorded under Section 164 of Cr.P.C. Both Ex.P.16 and Ex.P.1 corroborate each other. It is relevant to extract the statement of the victim girl, Ex.P.1, recorded under Section 164 of Cr.P.C, which reads as follows: "27.09.2022 md;W rk;gtk; ele;jJ. mjw;F Ke;jpd ehs; jhd; ehq;fs; Cupy; ,Ue;J te;jpUe;Njhk;. 27-k; Njjp mjpfhiy 02.00 my;yJ

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13.Thus, the accused committed a very serious and heinous offence against the minor victim girl. Before committing the offence, he robbed the jewels from the victim's mother, tore the bedsheet, and tied her hands and legs. The victim girl deposed as P.W.1, and her statement corroborates her statement recorded under Section 164 of the Cr.P.C. The doctor who examined the victim girl deposed as P.W.17. She corroborated the accident register and the victim's evidence. During the examination, the victim girl appeared to be in fear. Her hymen was not intact, and she was also suffering from a urinary infection. She further deposed that the victim girl might have been subjected to sexual assault. No semen was found on her private parts, as she had bathed after the incident. She was admitted as an inpatient and received treatment. Her discharge summary was marked as Ex.P.17. Therefore, it cannot be said that the medical evidence did not support the case of the prosecution. Hence, the prosecution has clearly proven the charges under the POCSO Act.

14.Insofar as the other offences are concerned, the mother of the victim girl deposed as P.W.2. She categorically corroborated the evidence of P.W.1. The relevant portion of her deposition is as follows: "nghJthf ehDk;> vd; kfSk; tPl;by; jdpj;jdp miwfspy; gLj;J cwq;FNthk;. 27k; Njjp mjpfhiy Rkhu; 3.30 kzpf;F thry; Nfl;> fk;gp Nfl; G+l;il cilj;J> Nlhu; yhf;if jdpahf fol;b jpUld; cs;Ns te;Js;shd;. vd; &k; fjit mtd; jpwf;Fk; NghJ kl;Lk; vdf;F rj;jk; Nfl;lJ. ehd; tpopj;J my;yh vd;W rj;jk; Nghl;Nld;. mtd; ifapy; rpd;d lhh;r; iyl; ,Ue;jJ. NkYk; mtd; ngupa ,Uk;G uhL itj;jpUe;jhd;. ehd; rj;jk; Nghl;lTld; vd; thia ifahy; nghj;jp> rj;jk; Nghl;lhy; Crl.A(MD)No.79oofo2026 cdi; d nfhd;WtpLNtd; vdW; kpulb; dhd;. mjd; gpwF vd; Jzpahy; vd; thia flb; tpl;lhd; vd;Dila ngl~; ?li; l fpopj;J vd;Dila ifiaAk>; fhy;fisAk; flb; tpl;lhd;. mjw;F gpwF vd;id Fdpaitj;J vd;Dila if kw;Wk; fhy;fis Nru;j;J flb; tpl;lhd.; me;j jpUld; Kfj;jpy; xU Jzpahy; Kf%b khjpup fl;bapUe;jhd;. cd;id nfhd;DtpLNtd vd;W kpulb; vd; ifapy; ,Ue;j gpNu?;nyl;> Nkhjpuk; Mfpatw;iw vLj;J nfhzl; hd;. gzk; Ie;jhapuk; ,Uf;Fjh vd;W Nfl;lhd;. vd;dhy; NgrKbatpy;iy. mtd; gPNuhit jpwe;J mq;F ,Ue;j ngl;bfis jpwe;J gzk; ,Uf;fpwjh vdW; Njbdhd;. ehd; rhu;[; Nghl;bUe;j nry;Nghid vLj;Jnfhzl; hd;. nry;gpy; vy;yhk; lhu;r; iyl; mbj;J ghu;j;jhd;. mtd; fl;bNghlb; Ue;jjhy; vd; ifnay;yhk; fd;wpNgha;tpl;lJ. Mg;Nu~d; nra;J ,Ue;jjhy; vd;id Fdpaitj;J if fhy;fis flb; Nghl;ljhy; typ mjpfkhf ,Ue;jJ. typf;fpwJ mtpo;j;JtpL. Mg;Nu~d; nra;jUf;fpNwd; vd;W mtdplk; nf?;rp mONjd;. rj;jk; Nghll; hy; cdi; d Fj;jptpLNtd; vdW; uhil vLj;J Fj;JtJNghy; nra;jhd;. vd;id me;j ?kpy; tpl;L tpl;L gf;fj;jpy; ghjpf;fg;gl;l rpWkp gLj;J ,Ue;j ?Kf;F Ngha; tpl;lhd;. NghFk; NghJ vd; ghg;ghit vJTk; nra;J tplhNj vd;W mtdplk; nfQ;rpNdd;."

15.Hence, P.W.1 and P.W.2 were able to identify the accused from the CCTV footage seized by the Investigating Officer. An identification parade was subsequently conducted, and the victim also identified the accused before the Court. Thus, it is clear that the accused trespassed into the house of P.W.2 and committed robbery of her jewels. He also committed penetrative sexual assault on the minor victim girl. The evidence of P.W.1 and P.W.2 is cogent, trustworthy, and corroborates each other. Therefore, the prosecution has proven the presence of the accused at the time of the occurrence and that he committed the offence under the POCSO Act. Furthermore, there is a clear presumption against the accused under Section 29 of the POCSO Act. Even then, the accused did not adduce any evidence to rebut this presumption. Further, the conviction can be based on the sole testimony of the victim girl if it is reliable, trustworthy, and beyond a reasonable doubt.

16.From the evidence of P.W.1 and P.W.2, it is clear that the accused was involved in the commission of the offence of penetrative sexual assault and also the offence of robbery. He also committed unnatural sexual intercourse through the anus of the victim. However, Forensic Science reports were marked as Ex.P.12 to Ex.P.15 through P.W.17, who is Scientific Officer at the Forensic Science Laboratory, Chennai.

17.The report Ex.P.12 shows that semen strains were found in the inner wear of the victim girl which was subjected for serological analysis. The DNA reports were marked as Ex.P.14 and Ex.P.15. The reports confirm that the semen has bilongs to the accused. Therefore, the Forensic Science report confirmed the semen strain which belongs to the accused and supported the case of the prosecution. Further, in order to identify the accused, CCTV footage was downloaded in the pendrive which was marked as M.O.9. CCTV footage was taken from the neighbour's house of the victim girl and it was duly certified under Section 65B of the Indian Evidence Act, 1872. The prosecution also proved the age of the victim as minor by examining P.W.15 and Ex.P.10-bonafide certificate. Therefore, the Trial Court rightly convicted the accused for the offences punishable under Sections 5(h), 5(l) read with 6(1) of the POCSO Act and 457, 342, 397 and 506 Part II of I.P.C and it does not warrant any interference of this Court.

18.On perusal of all the records, directions are warranted by this Court. Today, the Investigating Officer was also present before this Court and deposed that, even on the date of the judgment, the Trial Court requested the superior police officers to provide adequate police protection to the judicial officers, public prosecutors, and the victim's family. The accused is a habitual offender and has been involved in nearly 29 cases so far. The case details are as follows: Sl.No. Police Station Particulars of Crime No, Section and stage of the case

¶1Pollachi West PS, Coimbatore District. In Cr.No.107/19 U/s 380, 457 IPC-Pending Trial

¶2Dindigul Town North PS, Dindigul District. In Cr.No.602/19, U/s 380, 454, 457-IPC @ 380, 457 IPC – Pending Trial

¶3Madurai City, K.Pudur P, Madurai District. In Cr.No.43/21, U/s 392, 397, 452, 506(2) – IPC @ 392, 459, 506(ii) of IPC-Pending Trial

¶4Madurai City, K.Pudur PS, Madurai District. In Cr.No.30/21, U/s 380, 457 IPC-Pending Trial

¶5Aranthangi

PS Pudukottai District. In Cr.No.93/15, U/s 392 IPC-Pending Trial

¶6Aranthangi

PS Pudukottai District. In Cr.No.88/14, U/s 380, 457 IPC – Disposed

¶7Karaikudi North PS, Sivagangai District. In Cr.No.589/16, U/s 387 IPC-Pending Trial

¶8Athirampattinam PS, Thanjavur District. In Cr.No.83/12, U/s 380, 457 IPC-Pending Trial

¶9Athirampattinam PS, Thanjavur District. In Cr.No.67/12, U/s 386 IPC-Pending Trial

¶10Palayamkottai

PS, Tirunelveli District. In Cr.No.598/17, U/s 397 IPC-Ref

¶11C.Melapalayam

PS, Tirunelveli District. In Cr.No.67/19, U/s 394, 397 IPC-Pending Trial

¶12Udumalpat PS, Tiruppur District. In Cr.No.517/17, U/s 397-IPC @ 392, 397 IPC-Pending Trial

¶13KK Nagar PS, Trichy District. In Cr.No.234/14, U/s 380, 457 IPC – Pending Trial

¶14KK Nagar PS, Trichy District. In Cr.No.225/14, U/s 380, 457 IPC – Ref

¶15Erode North PS, Erode District. In Cr.No.172/19, U/s 392, 397 IPC – Pending Trial

¶16Erode North PS, Erode District. In Cr.No.162/19, U/s 34, 342, 395, 397, 458 IPC – Pending Trial

¶17Samayanallur

PS Madurai District. In Cr.No.35/21, U/s 397, 457 IPC – Pending Trial

¶18Samayanallur

PS Madurai District. In Cr.No.24/21, U/s 380, 457 IPC – Pending Trial

¶19Samayanallur

PS Madurai District. In Cr.No.13/21, U/s 392 IPC – Pending Trial

¶20Samayanallur

PS Madurai District. In Cr.No.7/21, U/s 380, 457 IPC – Pending Trial

¶21Samayanallur

PS Madurai District. In Cr.No.3/21, U/s 457, 511IPC @ 380, 457, 511 IPC – Pending Trial

¶22Athirampattinam PS, Thanjavur District. In Cr.No.32/10, U/s 380, 457 IPC Pending Trial

¶23Orathnadu

PS, Thanjavur District. In Cr.No.182/13, U/s 380, 457 IPC – Disposed

¶24Orathnadu

PS, Thanjavur District. In Cr.No.176/13, U/s 380, 457 IPC – Disposed

¶25Pattukottai

PS Thanjavur District. In Cr.No.199/12, U/s 392, 506(ii) IPC – conviction

¶26Pattukottai

PS Thanjavur District. In Cr.No.194/12, U/s 380, 457 IPC – conviction

¶27Pattukottai

PS Thanjavur District. In Cr.No.181/12, U/s 380, 457 IPC 3(1) PPD Act – conviction

¶28Pattukottai

PS Thanjavur District. In Cr.No.172/12, U/s 392 IPC – conviction

¶29Pattukottai

PS Thanjavur District. In Cr.No.171/12, U/s 380, 457 IPC – Acquitted

19.This indicates that the accused is a dangerous criminal who has committed a number of serious and heinous offences against society. In fact, during the judgment, the Trial Court Judge was granted adequate police protection on 16.10.2024, 23.10.2024,

29.10.2024, and 06.11.2024. This reflects the conduct of the accused. Moreover, even during his incarceration, the accused committed offences under Sections 226, 351(2), and 132 of the BNS, 2023. As a result, based on the complaint lodged by the Jailer of the Central Prison, Tiruchirappalli District, an F.I.R. was registered in Crime No.608 of 2024. Furthermore, it is evident from the medical records presented before the Court that the victim has been receiving continuous treatment for the sexual assault committed by the accused. Furthermore, this Court also received an anonymous threatening letter when this matter was listed before this Court. Therefore, adequate police protection is required for the victim's family, public prosecutors, and state public prosecutors.

20.In fact in a similar circumstance, when one of us were sitting in the Principal Seat during the year 2022, police protection was ordered to the State Public Prosecutor Mr.Hasan Mohammed Jinnah in W.P.No.10130 of 2021 by order dated 08.06.2022.

21.In view of the above, if any request is made by the victim girl's family, the jurisdictional police shall provide police protection to them. Further, the Director General of Police, Chennai, shall ensure that police protection is also extended to the State Public Prosecutor, Mr. Hasan Mohamed Jinnah, whenever he travels to any other district or interstate, without any interruption or dilution, as well as to the learned Additional Public Prosecutors who appeared before this Court. This is in the interest of ensuring the safety of the individuals concerned and maintaining public confidence in the administration of justice.

22.In view of the above, the Trial Court rightly convicted the appellant for the offences punishable under Sections 457, 397, 342, 450 and 506 Part II of I.P.C and under Sections 5(h), 5(L) read with 6(1) of POCSO Act and there are absolutely no grounds to interfere with the judgment rendered by the trial Court. Hence, the appeal fails and is dismissed. Consequently, connected Miscellaneous Petition is closed. [G.K.I.J.,] & [R.P.J.,]

18.02.2026 NCC :Yes/No Index :Yes/No ps To

1.The Sessions Judge, Mahila Court, Tiruchirappalli.

2.The Inspector of Police, All Women Police Station, Cantonment A.W.P.S, Trichy District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy To:

4.The Director General of Police, Chennai.

G.K. ILANTHIRAIYAN, J. AND

R. POORNIMA, J. ps

18.02.2026

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.02.2026 CORAM: THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN AND THE HONOURABLE MS.JUSTICE R.POORNIMA and Crl.M.P(MD)No.1107 of 2026 Mohammed Ushen ... Appellant/Sole Accused Vs. State of Tamil Nadu through, The Inspector of Police, All Women Police Station, Cantonment A.W.P.S, Trichy District. (In Crime No.19 of 2022). ... Respondent/Complainant PRAYER:- Criminal Appeal is filed under Section 415(2) of BNSS, 2023, to call for the entire records connected to the Judgment in Spl.S.C.No.01 of 2023 on the file of the learned Sessions Judge, Mahila Court, Tiruchirappalli, dated 06.11.2024 and set aside the conviction and sentence imposed against the appellant. For Appellant : Mr.S.Ramesh Kumar For Respondent : Mr.R.M.Anbunithi Additional Public Prosecutor