Protection of Children From Sexual Offences Act, 2012 (POCSO Act), Section 5(1) r/w 5(j)(ii) – Repeated penetrative sexual assault on victim girl aged 16 years, which resulted in her pregnancy – Doctor/PW12 examined victim/PW2 and issued Medical Report/Ex.P6 – Medical evidence clearly established that victim was subjected to repeated sexual assault due to which she became pregnant – Growth of foetus diagnosed as 31 weeks and 6 days – Offence u/s. 5(1) r/w 5(j)(ii) attracted – Mere resiling of statement and evidence by PW2 in cross-examination after 3 years, not sufficient to hold otherwise – Trial Court rightly ignored cross examination done after 3 years – Contention as to non-conduct of DNA Test, rejected in circumstances – Foundational facts having been established by prosecution, presumption u/s. 29 rightly raised – No material to dislodge presumption u/s. 29 – No infirmity/perversity in finding of conviction warranting interference – Imposition of enhanced sentence of 20 years relying upon 2019 amendment – Sustainability, when offence committed in 2014 – Prior to amendment, Section 6 prescribed minimum sentence of 10 years extendable to Life Imprisonment – Sentence to be imposed as per law in force at time of commission of offence – Enhanced sentence barred by Article 20(1), Constitution – Sentence reduced from 20 years to 10 years.
This appeal has been filed by the appellant / 1st accused against the judgment of conviction. The case of the prosecution is that the 1st accused belongs to MBC and the victim (P.W.2) belongs to SC Community and the 1st accused had forcible sexual intercourse with the victim on several occasions on promising her to marry, due to the said relationship, the victim became pregnant and the 1st accused abused the victim and her parents by mentioning their caste name and threatened for life and chased away, hence the 1st accused committed the offence u/s. 5(1) and 5(j)(ii) of POCSO Act and Section 506(i) of IPC and Section 3(2)(v) of SC/ST(POA) Act. After the trial, the 1st accused was convicted u/s. 5(1) r/w 5(j)(ii) of POCSO Act and acquitted him from the charges of Section 506(i) of IPC and Section 3(2)(v) of SC/ST(POA) Act. Aggrieved by the said judgment, the 1st accused filed the present appeal.
The Hon’ble High Court finds that the prosecution has proved the Communities of the victim and the 1st accused by producing their Community Certificates and the victim was aged about 16 years at the time of occurrence, which was proved through the evidence of Headmistress of the School (P.W.9) and the School Certificate (Ex.P4) and the said facts are not disputed and when P.W.2’s testimony before the Court is clear and cogent, which is almost the same version as per the statement recorded u/s. 164 of Cr.P.C. and there has been no exaggeration or any inconsistency, the resiling of the statement in the cross-examination that has been recorded after more than three years, will not in any way affect the evidence categorically let in by the victim in chief examination, establishing the charge against the accused and when it has been established that the victim (P.W.2) has been subjected to repeated sexual assault in the hands of the 1st accused and the victim (P.W.2) was also found pregnant nearly eight months, there was no occasion required on the part of the prosecution, to go for DNA test to prove the charges against the 1st accused, so the non-taking of DNA test will not affect the case of the prosecution, so the prosecution has proved the foundational facts in this case and there is a presumption in favour of the prosecution u/s. 29 of POCSO Act and the 1st accused has not produced any evidence to rebut the said presumption as the evidence of D.W.1 and D.W.2 were related to non-visiting of the 1st accused’s house by P.W.1 to P.W.3 and the evidence of the Doctor (P.W.13) and the medical opinion (Ex.P8) suggest that the 1st accused was fit and potential to involve in the sexual relationship. From the above, the Hon’ble High Court held that in the present case, the prosecution proved their case beyond reasonable doubt. At the same time, the Hon’ble High Court held that the sentence of 20 years imposed by the Trial Court under the amended provision (Section 6 was amended on 16.08.2019) for the offence that was committed in the year 2014, prior to the amendment is unconstitutional and cannot be sustained and after considering the fact that there had been a love affair and the age of the 1st accused at the time of occurrence, the Hon’ble High Court passed the minimum sentence under the unamended provisions.
In the result, the Criminal Appeal is partly allowed
Manikandan Vs. State rep. by the Inspector of Police, Velur Police Station, Namakkal District [Crl. A. No.131 of 2022] - Date of Judgment: 04.03.2026
