CRL.A.(MD)No.835 of 2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON: 18.08.2026

DELIVERED ON: 01.09.2026

CORAM:

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

and

THE HONOURABLE MR.JUSTICE B.MURUGESAN

CRL.A(MD)No.835 of 2024

Elangovan ... Appellant

Vs.

State rep by

The Inspector of Police,

All Women Police Station,

Vallam, Thanjavur District.

(In Crime No.07 of 2020) ... Respondent

PRAYER: Criminal Appeal filed under Section 415 of BNSS to call for the

records and allow the appeal and acquit the accused by setting aside the

judgment in Spl.S.C.No.23 of 2021 dated 02.06.2022 on the file of the learned

Special Judge for Exclusive Trial of cases under POCSO Act (Sessions Judge),

Thanjavur.

For Appellant: Mr.P.Ganapathi Subramanian

For Respondent: Mr.G.Karuppasamy Pandiyan,

Government Advocate(Crl.Side)

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CRL.A.(MD)No.835 of 2024

JUDGMENT

[Judgment of the Court was made by B.MURUGESAN, J.]

“…………..

…………..

Lord God Almighty

Sanctify her unique journey

Save her from the claws of the enemy

Shield her against any brutality

Restore her if pain becomes a reality

Embrace her should joy pass swiftly

When emptiness fills her heart severely

May you be her sanctuary!

…………..

I may have never met her; I may not know her name

I may not be in her shoes; I may not see her cries

Yet, I grasp her plight

Wherever she is

King of Kings

Be with her

Each and every day

I pray for this girl”

- Dr.Gift Gugu Mona, a South African Poet

Assailing the judgment dated 02.06.2022 of the learned Sessions Judge,

Special Court for Exclusive Trial of Cases under POCSO Act, Thanjavur,

hereinafter referred to as 'the trial court', in Spl SC No.23/2021, convicting the

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appellant/sole accused and sentencing him to undergo imprisonment for life

which shall mean imprisonment for the remainder of the natural life of the

appellant/sole accused without any commutation and to pay a fine of

Rs.50,000/-, in default, to undergo rigorous imprisonment for one year, for the

offences punishable under S.5(l), S.5(n) and S.5(j)(ii) r/w S.6 POCSO Act,

2012, the appellant/sole accused has preferred this criminal appeal.

02. 15 years old girl child, a motherless, hereafter referred to as 'the child

victim', has been in grave peril at the hands of her biological father, hereafter

referred to as 'the accused' unless the context otherwise requires.

03. Case of the prosecution would run as under:

(a) Accused is the father of the child victim, whose date of birth is

01.09.2004, and of her younger sister. After the demise of their mother, the

child victim and her sister were under the care and custody of their junior

maternal aunt, Parimala, for some time, and thereafter, they were under the care

and custody of one Ganesan, who is claimed to be their grandfather, for two

years. During May, 2016, the accused took his girl children to his house at

Nelluppattu where the child victim started studying in VIII Standard.

(b) One midnight in August, 2017, the accused having consumed alcohol

had forcible sexual intercourse with the child victim repeatedly, causing her cry

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in pain, and he committed such forcible sexual intercourse on the child victim

on many occasions. On knowing the same, her neighbour, Ayyiammal, who is

the sister of the maternal grandmother of the child victim, after scolding the

accused, took both the girl children to her house. While the child victim was

studying in IX Standard, Marimuthu, the husband of Ayyiammal, also had

forcible sexual intercourse with the child victim. As and when the child victim

raised her voice against such forcible sexual intercourse, technically speaking,

'penetrative sexual assault', Marimuthu used to threaten the child victim.

(c) On 10.01.2019, the child victim attained puberty. Thereafter, during

her stay with the accused, he was committing such penetrative sexual assault on

the child victim, and during her stay at the house of Marimuthu, he was also

committing such penetrative sexual assault on the child victim. As the result

thereof, the child victim suffered stomach pain, and her junior maternal aunt,

Parimala, and her uncle, Balu, caused the child victim scanned at Senthil Scan

Hospital, Thanjavur, and then took her to PHC, Mela Ulur, where the child

victim was declared 5 months pregnant. One Shenbagamalar, Child Help Line

Member, enquired the child victim at PHC, Mela Ulur. On 01.07.2020, her

junior maternal aunt, Parimala, and her uncle, Balu, took the child victim to

AWPS, Vallam, where the police recorded her complaint statement, Ex.P1.

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CRL.A.(MD)No.835 of 2024

(d) Pursuant to the registration of FIR in Cr No.07/2020 on the file of

AWPS, Vallam, based on such complaint statement, Ex.P1, IO took the case for

investigation on 01.07.2020, inspected the house of the accused being the place

of occurrence and prepared the observation mahazar and rough sketch in the

presence of the witnesses, Dharmaraj and Senthil Kumar, and he examined the

child victim and recorded her statement. Then, IO examined the witnesses,

Parimala, Balu, Dharmaraj, Senthilkumar, Ayyiammal, Devika, Rajamanickam

and Senbagamalar, and recorded their statements. On 02.07.2020 at 7.00 am, IO

arrested Marimuthu near Nelluppattu bus stop in presence of Rajendran and

Ravi, recorded his confession in their presence, examined those witnesses and

recorded their statements. On 02.07.2020 at 8.00 am, IO arrested the accused

near Eachenkottai River Bridge in presence of Ramesh and Murugesan,

recorded his confession in their presence, examined those witnesses and

recorded their statements. After such arrest, IO caused those two accused

remanded to judicial custody. On a medical intimation, IO caused the child

victim examined at Raja Mirazudar Govt Hospital, Thanjavur.

(e) On 03.07.2020, IO examined the witness, Ganesan, and recorded his

statement. On 09.07.2020, IO, through the police personnel, Citrarasu and

Sundaralakshmi, caused those two accused undergone potency test at Thanjavur

Medical College Hospital. On 10.07.2020, IO caused statement of the child

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CRL.A.(MD)No.835 of 2024

victim recorded by Judicial Magistrate II, Thanjavur. On 11.07.2020, IO

examined the child victim and recorded her further statement. On 25.07.2020,

the pregnancy of the child victim got aborted vide the order of this court. On

30.07.2020, the fetus was sent to FSD, Chennai, through Head Constable

Mrs.Vimala. On 02.10.2020, the blood samples of the child victim, the accused

and Marimuthu were collected in FTA cards and the same were sent to FSD,

Chennai, through Constable Mrs. Kalaiselvi. On 20.04.2021, IO examined the

doctors, Senthilnathan, Jeya Sri, Indhirani and Saravanan, and recorded their

statements. On the same day, IO examined Ramesh, the Sanitary Inspector,

Thanjavur Municipality, who issued the report as to the birth certificate of the

child victim, and recorded his statement. On 22.04.2021, IO examined the child

victim and recorded her further statement. On 25.04.2021, IO examined the

police personnel, Elamathi, Sundaralakshmi, Vimala, Kalaiselvi and Citrarasu.

On 29.04.2020, IO examined Dr. Mahalakshmi, Deputy Director, FSD,

Chennai, and recorded her statement on DNA report. IO examined

Mrs. Shanthi, SI, who registered FIR. After such investigation, IO filed the final

report against the accused in this case for the offences punishable under S.5(l),

S.5(n) and S.5(j)(ii) r/w S.6 POCSO Act,2012.

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04. As against the other accused, Marimuthu, a separate final report was

filed and he was tried simultaneously in Spl SC No.22/2021 on the file of the

trial court.

05. On appearance of the accused in this case before the trial court, he

was furnished free of cost with the copies of the records relied on by the

prosecution, as required under S.207 CrPC.

06. Under S.25(2) POCSO Act, 2012, the child victim was also furnished

free of cost with the copies of the records relied on by the prosecution.

07. Thereupon, the learned Public Prosecutor opened the case before the

trial court, as under S.226 CrPC, and the learned counsel for the accused was

also heard. On due consideration thereof, charges were framed by the trial court

against the accused under S.5(l), S.5(n) and S.5(j)(ii) r/w S.6 POCSO Act, 2012,

and the same were read over and explained to him by trial court, as under S.228

CrPC.

08. Accordingly, the accused was questioned by the trial court as to the

charges framed against him, and he denied the charges as not true, pleaded not

guilty and claimed to be tried.

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09. Pursuant thereto, trial was ordered, and the prosecution produced

evidence in support of its case, and therefore, the prosecution, before the trial

court, examined PW1 to PW23, and marked Ex.P1 to Ex.P15 through the

competent witnesses.

10. Details of the witnesses and the exhibits on the side of the prosecution

before the trial court are as under:

(a) PW1 is the child victim who would speak about the occurrence, the

role of her maternal grandmother, Ayyiammal, her junior maternal aunt,

Parimala, her uncle, Balu, and Shenbagamalar, Child Help Line Member, the

medical examinations she underwent, the lodging of complaint, the recording of

her statement under S.164(5) CrPC, the DNA test and her examination by IO.

Ex.P1 is the complaint statement, Ex.P2 is the signature of PW1 in the

confidential medical report and Ex.P3 is the statement of PW1 recorded under

S.164(5) CrPC. Ex.P1 to Ex.P3 were marked through PW1.

(b) PW2 is Parimala, the junior maternal aunt of the child victim, and

PW3 is Balu, the uncle of the child victim, and both of them would speak about

their role in this case.

(c) PW4 is Senthilkumar, one of the witnesses for the preparation of

observation mahazar, Ex.P4, and the rough sketch.

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CRL.A.(MD)No.835 of 2024

(d) PW5 is Dr.Senthilnathan, Senthil Scan Centre, Thanjavur, who would

speak of Ex.P5, the scan report of PW1.

(e) PW6 is Ravi who would speak of the arrest and confession of the

other accused, Marimuthu.

(f) PW7 is Devika, the younger sister of the child victim, who would

speak about the events and occurrence relatable to the child victim.

(g) PW8 is Ramesh who would speak of the arrest and confession of the

accused in this case.

(h) PW9 is Ganesan, the grandfather of the child victim, whose evidence

is hearsay. PW10 is Ayyiammal, the wife of the other accused, Marimuthu,

whose evidence is also hearsay.

(i) PW11 is Shenbagamalar, Child Help Line Member, who would speak

of her enquiry of the child victim.

(j) PW12 is Dr.Saravanan, Asst. Professor, Thanjavur Medical College

Hospital, who would speak of Ex.P6, the potency test of the accused in this

case.

(k) PW13 is Ramesh, the Sanitary Inspector, Thanjavur Municipality,

who issued a report as to the birth certificate of the child victim, and the copy of

birth certificate of the child victim, Ex.P7, and, his report, Ex.P8, were marked

through PW13.

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CRL.A.(MD)No.835 of 2024

(l) PW14 is Head Constable Mrs. Elamathi who took the child victim for

medical examination. PW15 is Head Constable Mrs. Sundaralakshmi who took

the accused to Thanjavur Medical College Hospital for taking his blood sample.

PW16 is Head Constable Mrs.Vimala, who took the fetus to FSD, Chennai.

PW17 is Constable Mrs.Kalaiselvi, who handed over the FTA cards of the child

victim and the accused to FSD, Chennai.

(m) PW18 is Dr.Jaya Sri, PHC, Mela Ulur, who would speak of the

medical examination of the child victim, and her medical note is Ex.P9. PW19

is Dr. Indhirani, Asst. Professor, Thanjavur Raja Mirazdar Hospital, who would

speak of the medical examination of the child victim and the consequent

abortion, and Ex.P10, the AR copy of the child victim, and Ex.P11, the

confidential medical report, were marked through PW19. PW20 is Dr.Arulmathi

Kannan, Asst. Professor, Thanjavur Medical College Hospital, who collected

the blood samples of the child victim and the accused in FTA cards, and his

letter is Ex.P12. PW21 is Dr.Mahalakshmi, Deputy Director, FSD, Chennai,

who would speak about the DNA report, Ex.P13.

(n) PW22 is Mrs.Santhi, SI, who would speak of the registration of FIR,

Ex.P14. PW23 is Mrs.Kalaivani, IO, who would speak about the investigation

in detail and the consequent final report, and Ex.P15, the rough sketch, was

marked through PW23.

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11. While questioning under S.313 CrPC in respect of the incriminating

materials appearing against him in the evidence of the prosecution, the accused

answered before the trial court that all such evidence is false and that this is a

false case.

12. On the other hand, there is no evidence, either oral or documentary,

on the side of the accused.

13. Upon such a full fledged trial, the trial court has found the accused

guilty and accordingly, the trial court has convicted the accused for the offences

under S.5(l), S.5(n) and S.5(j)(ii) r/w S.6 POCSO Act,2012, and sentenced him

as aforesaid.

14. Assailing such conviction and sentence of the trial court, the accused

has preferred this criminal appeal before us.

15. We have heard the learned counsel for the appellant/accused and the

learned counsel for the State (Criminal Side), and we have also perused the

records carefully.

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16. Inveighing the judgment of the trial court, the learned counsel

appearing for the appellant/accused, with reference to the grounds of appeal,

would submit that the prosecution has failed to establish that the accused is the

perpetrator of the crime, that when there is another accused, it is false to claim

that only this accused has committed the offence, that the evidence of the child

victim being tutored on a false complaint cannot be relied on, that the inordinate

delay on the part of the child victim in reporting the occurrence would

obviously create a suspicion on the veracity of the complaint, that when there

was no light in house of the accused and she was not aware of the act committed

by the accused as reported by the child victim to PW11, the Child Help Line

Member, the conviction of the accused is not sustainable, that the evidence of

other witnesses is merely hearsay, that the punishment awarded on the accused

is disproportionate to the offence and that therefore, a judgment reversing the

finding and sentence of the trial court, and acquitting the accused of all the

charges leveled against him needs to be passed.

17. Per contra, the learned counsel for the State (Criminal Side) would

submit that since the accused is the father of the child victim having committed

continual penetrative sexual assault on the child victim resulting in her

pregnancy, the offence committed by the accused is nothing but the offence of

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CRL.A.(MD)No.835 of 2024

aggravated penetrative sexual assault as under S.5(l), S.5(n) and S.5(j)(ii)

POCSO Act, 2012, punishable under S.6 POCSO Act, 2012, as amended, that

the unimpeachable evidence per se of the child victim as PW1 is more than

sufficient to convict the accused, that the evidence of the child victim stands

substantiated by the medical evidence, particularly, the DNA report, Ex.P13,

that since the prosecution has established the foundational facts for the offence

of aggravated penetrative sexual assault, the prosecution would enjoy the

presumption as under S.29 POCSO Act, 2012, that there is nothing on the side

of the accused to rebut such presumption, that the punishment awarded on the

accused is obviously proportionate to the offence and that therefore, the

criminal appeal filed by the accused deserves for dismissal.

18. Point for determination in this appeal is whether the trial court is right

in finding the appellant/accused guilty and thereby convicting and sentencing

him under S.5(l), S.5(n) and S.5(j)(ii) r/w S.6 POCSO Act, 2012?

19. At the outset, it would be useful to refer to S.5(l), S.5(n) and S.5(j)(ii)

POCSO Act, 2012, for the better appreciation of the charges against the

accused.

“5. Aggravated penetrative sexual assault.—

(j) whoever commits penetrative sexual assault on a

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CRL.A.(MD)No.835 of 2024

child, which—

(ii) in the case of female child, makes the child pregnant

as a consequence of sexual assault;

(l) whoever commits penetrative sexual assault on the

child more

than once or repeatedly;

(n) whoever being a relative of the child through blood

or adoption or marriage or guardianship or in foster care or

having a domestic relationship with a parent of the child or

who is living in the same or shared household with the child,

commits penetrative sexual assault on such child;

is said to commit aggravated penetrative sexual assault.”

It would also be useful to refer to S.3 (a) POCSO Act, 2012, which would

define the offence of penetrative sexual assault as under:

“3. Penetrative sexual assault.—A person is said to commit

“penetrative sexual assault” if—

(a) he penetrates his penis, to any extent, into the vagina,

mouth, urethra or anus of a child or makes the child to do so with

him or any other person;”

20. Here is a case where the victim is claimed to be a child below the age

of 18 years as under S.2(1)(d) POCSO Act, 2012. Ex.P7, the birth certificate of

the child victim, and Ex.P8, the report of PW13, the Sanitary Inspector,

Thanjavur Municipality, would show that the date of birth of the child victim is

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CRL.A.(MD)No.835 of 2024

01.09.2004. Ex.P5, the scan report dated 30.06.2020, would show that the child

victim was carrying a 21 weeks 3 days old fetus on 30.06.2020 when her age

was 15 years and 10 months. It is therefore clear that the victim, during the

occurrence, had been a child below the age of 18 years as under S.2(1)(d)

POCSO Act, 2012.

21. Coming to the offence of penetrative sexual assault as under S.3

POCSO Act, 2012, said to have been committed by the accused on the child

victim, the child victim as PW1 would state specifically in her chief

examination that the accused, during August, 2017, penetrated his penis into her

vagina and he did it continually, and the child victim would further add that the

accused, after her puberty on 10.01.2019, was committing such penetrative

sexual assault continually on her. It is, in this connection, more pertinent to note

that nothing contrary was elicited during her cross examination. Therefore, we

find that the testimony of the child victim, PW1, is found credible and

trustworthy, requiring no corroboration.

22. Nonetheless, the child victim, PW1, in her complaint statement,

Ex.P1, would also narrate such penetrative sexual assault committed by the

accused on her. Further, PW19, Dr. Indhirani, Asst. Professor, Thanjavur Raja

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Mirazdar Hospital, in the light of Ex.P10, the AR copy of the child victim, and

Ex.P11, the confidential medical report, would state that during the medical

examination of the child victim, she told that the accused had committed

continual penetrative sexual assault on her. PW11, Shenbagamalar, Child Help

Line Member, would also state that during her enquiry, the child victim told that

the accused had committed repetitive penetrative sexual assault on her. PW7,

the younger sister of the child victim, would also state that she was informed by

the child victim of such repetitive penetrative sexual assault committed by the

accused on the child victim. Therefore, there are other materials on record,

corroborating the testimony of the child victim, and substantiating the case of

the prosecution.

23. Besides such evidence or materials against the accused as aforesaid,

Ex.P13, the DNA report involving the fetus taken from the child victim vis-à-

vis the accused, would conclude in unequivocal terms that the accused is the

biological father of the fetus taken from the child victim. In other words, the

scientific evidence, Ex.P13, would also prove that the accused being the father

of the child victim has committed the offence of aggravated penetrative sexual

assault as under S.5(l), S.5(n) and S.5(j)(ii) POCSO Act, 2012, punishable

under S.6 POCSO Act, 2012.

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24. As discussed earlier, the prosecution has thus proved the foundational

facts for the offences under S.5(l), S.5(n) and S.5(j)(ii) POCSO Act, 2012. It is

trite that once such foundational facts are proved, the statutory presumption

under S.29 POCSO Act, 2012, would rule the field. S.29 POCSO Act, 2012,

would read as under:

29. Presumption as to certain offences.—Where a person is

prosecuted for committing or abetting or attempting to commit

any offence under sections 3, 5, 7 and section 9 of this Act, the

Special Court shall presume, that such person has committed or

abetted or attempted to commit the offence, as the case may be

unless the contrary is proved. (italics supplied by this court)

It is therefore clear from the phrase „unless the contrary is proved" that the

statutory presumption under S.29 POCSO Act, 2012, is, of course, rebuttable

and that the accused is at liberty to rebut such presumption even by the

preponderance of probabilities.

25. Taking hold of the delay on the part of the child victim in reporting

the occurrence, the learned counsel for the appellant/accused would contend

that such delay being inordinate would be fatal to the case of the prosecution.

Of course, it is true that the occurrence came to light when the child victim was

5 months pregnant. Now, the question is whether such inaction or such

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inordinate delay on the part of the child victim in reporting the occurrence

would affect the case of the prosecution as a contrary having been proved?

Here is a case where the accused, an alcoholic as claimed by the child victim as

PW1, is her biological father, who used to deter the child victim after every

occurrence (as spoken to by PW11, the Child Help Line Member, who enquired

the child victim) and the child victim is a motherless, dependent upon his father.

In such circumstances, any such child victim, in our considered view, cannot be

expected to complain then and there against such father of such occurrence

involving such penetrative sexual assault committed by such father. That apart,

inasmuch as a child is a child, the inaction or inordinate delay on the part of a

child victim in reporting an offence cannot be placed on par with the inaction or

inordinate delay on the part of an adult victim. Therefore, such inaction or such

inordinate delay on the part of the child victim in reporting the occurrence

cannot be claimed or said to be a contrary having been proved.

26. Giving much emphasis on the evidence of PW11, the Child Help Line

Member, that on her enquiry, the child victim told her there was no light in

house of the accused and she was not aware of the act committed by the

accused, the learned counsel for the appellant/accused would contend that the

conviction of the accused is not sustainable on that score itself. Precisely

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speaking, when the offence is proved by scientific evidence, Ex.P13, the DNA

report, such contention relatable to the evidence of PW11 would not assume any

significance supporting the accused.

27. Relying on the decisions in Ravinder Singh V State of Himachal

Pradesh (2009) 14 SCC 201), Asharfi V State of Uttar Pradesh ((2018) 1 SCC

742) and Arumugam V Superintendent of Police, Thiruchuli, Virudhunagar

District and another (2026 MHC 2112), the learned counsel for the accused

would contend that since the occurrence is claimed to have taken place in the

month of August, 2017, the conviction and sentence against the accused under

S.6 POCSO Act, 2012, as amended/substituted by the Amendment Act 25 of

2019, with effect from 16.08.2019, is not legal. In other words, the learned

counsel for the accused would take a technical plea of prohibition of conviction

and sentence under ex post facto laws.

28. Of course, Article 20(1) of the Constitution of India would speak of

prohibition of conviction and sentence under ex post facto laws as under:

20. Protection in respect of conviction for offences,- (1)No

person shall be convicted of any offence except for violation of a

law in force at the time of the commission of the act charged as

an offence, nor be subjected to a penalty greater than that which

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might have been inflicted under the law in force at the time of the

commission of the offence.

In essence, the sentence imposable on the date of commission of the offence

shall be the sentence imposable on the completion of the trial.

29. Before delving deep, it would be appropriate to understand the

doctrine of offence de die in diem, or in other words, the doctrine of continuing

offence, and this issue is no longer res integra. State of Bihar V Deokaran

Nenshi (1972) 2 SCC 890) is a case where “continuing offence” has been

exemplified and demonstrated as under:

5. A continuing offence is one which is susceptible of

continuance and is distinguishable from the one which is

committed once and for all. It is one of those offences which

arises out of a failure to obey or comply with a rule or its

requirement and which involves a penalty, the liability for which

continues until the rule or its requirement is obeyed or complied

with. On every occasion that such disobedience or non-

compliance occurs and reoccurs, there is the offence committed.

The distinction between the two kinds of offences is between an

act or omission which constitutes an offence once and for all and

an act or omission which continues, and therefore, constitutes a

fresh offence every time or occasion on which it continues. In the

case of a continuing offence, there is thus the ingredient of

continuance of the offence which is absent in the case of an

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offence which takes place when an act or omission is committed

once and for all.

30. Continuing offence, with reference to the protection against ex post

facto laws, can logically be viewed in four ways.

(a) If the act complained of is not an offence prior to the amendment but

is an offence after the amendment and if the act is consummated completely

prior to the amendment, the protection against ex post facto laws would be

available.

(b) If the act complained of is an offence prior to the amendment but is

not an offence after the amendment and if the act is consummated completely

prior to the amendment, the protection against ex post facto laws would not be

available.

(c) If the act complained of is an offence prior to the amendment and is

also an offence after the amendment and if the act/offence is consummated

completely prior to the amendment, the protection against ex post facto laws

would be available.

(d) If the act complained of is an offence prior to the amendment and is

also an offence after the amendment and if the act/offence is continuing from

the period prior to the amendment to the period after the amendment, the

protection against ex post facto laws would not be available.

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31. Coming to this case on hand, the decisions relied on by the learned

counsel for the accused are obviously the cases where the offences are stated to

have consummated completely prior to the statutory amendment. Here is a case

involving the doctrine of continuing offence which would mean the offence

continuing from the period prior to the amendment to the period after the

amendment and thereby constituting a fresh offence every time or occasion on

which it continues. Factually speaking, the child victim as PW1 has given

evidence in categorical terms that the accused, after her puberty on 10.01.2019,

was committing such penetrative sexual assault continually on her. Ex.P5, the

scan report dated 30.06.2020, would show that the child victim was carrying a

21 weeks 3 days old fetus on 30.06.2020. Ex.P13, the DNA report, would also

prove that the accused is the biological father of the fetus taken from the child

victim. Therefore, Ex.P5, the scan report, and Ex.P13, the DNA report, both

being medical and scientific evidence, would prove that the accused has

committed “continuing offence” from the period prior to the amendment to the

period after the amendment. Therefore, the protection against ex post facto laws

would not come to rescue the accused.

32. Portraying the facts that the accused is the father of the child victim

and that the child victim is a motherless are the mitigating circumstances, the

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learned counsel for the accused, relying on a non reportable judgment of the

Hon"ble Apex Court in Prem Naresh V State of UP where, on considering some

mitigating circumstances, a higher punishment has been modified and reduced,

would contend that the sentence imposed by the trial court needs to be modified

and reduced accordingly. Prem Naresh V State of UP, the decision so relied on,

is a case where the accused is shown to be a stranger to the child victim and no

pregnancy is reported. Here is a case where the accused is the biological father

of the child victim and also the biological father of the fetus taken from the

child victim. Therefore, the logic adopted in the decision relied on by the

accused cannot be ushered in this case on hand in view of the factual matrix

being different.

33. Apropos thereto, Bhanei Prasad @ Raju V State of Himachal

Pradesh (2025 LiveLaw (SC) 781) is a case where mitigation in sentencing for

the crimes involving incestuous sexual violence has been viewed as under:

“8. This Court has repeatedly underscored that in offences

involving sexual abuse, especially against children, the trauma

suffered by the victim is lifelong. The scars are not merely

physical but psychological, cutting across every fibre of trust,

safety, and dignity. When the perpetrator is none other than the

father, the natural guardian, the crime assumes a demonic

character.

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9. Such offences deserve nothing but the severest

condemnation and deterrent punishment. To pardon such

depravity under any guise would be a travesty of justice and a

betrayal of the child protection mandate embedded in our

constitutional and statutory framework.

……………

……………

13. When a father who is expected to be a shield, a

guardian, a moral compass, becomes the source of the most severe

violation of a child"s bodily integrity and dignity, the betrayal is

not only personal but institutional. The law does not, and cannot,

condone such acts under the guise of rehabilitation or reform.

Incestuous sexual violence committed by a parent is a distinct

category of offence that tears through the foundational fabric of

familial trust and must invite the severest condemnation in both

language and sentence. The home, which should be a sanctuary,

cannot be permitted to become a site of unspeakable trauma, and

the courts must send a clear signal that such offences will be met

with an equally unsparing judicial response. To entertain a plea

for leniency in a case of this nature would not merely be

misplaced, it would constitute a betrayal of the Court"s own

constitutional duty to protect the vulnerable. When a child is

forced to suffer at the hands of her own father, the law must speak

in a voice that is resolute and uncompromising. There can be no

mitigation in sentencing for crimes that subvert the very notion of

family as a space of security.”

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34. In the light of the foregoing discussions, we hold that the

appellant/accused has miserably failed to rebut the statutory presumption under

S.29 POCSO Act, 2012, and that the trial court is right in finding the

appellant/accused guilty and thereby convicting and sentencing him under S.

5(l), S.5(n) and S.5(j)(ii) r/w S.6 POCSO Act, 2012.

35. Before parting with, what stirs our mind is the sentence imposed by

the trial court on the accused for the offence punishable under S.5(l), S.5(n) and

S.5(j)(ii) r/w S.6 POCSO Act, 2012. Upon a meticulous evaluation of the

materials on record, the trial court has imposed a sentence of “imprisonment for

life which shall mean imprisonment for the remainder of the natural life of the

appellant/sole accused without any commutation” and to pay a fine of

Rs.50,000/-, in default, to undergo rigorous imprisonment for one year.

Unfortunately, the appellant/accused has not raised any objection against such

additional imposition banning “commutation”.

36. It would be relevant to refer to S.6 POCSO Act, 2012, which

prescribes the punishment for the offences under S.5 POCSO Act, 2012, the

aggravated penetrative sexual assault, as under:

6. Punishment for aggravated penetrative sexual assault.— (1)

Whoever commits aggravated penetrative sexual assault shall be

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punished with rigorous imprisonment for a term which shall not be

less than twenty years, but which may extend to imprisonment for

life, which shall mean imprisonment for the remainder of natural life

of that person and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and

reasonable and paid to the victim to meet the medical expenses and

rehabilitation of such victim.

Therefore, what have been classified are (a) imprisonment for a term which

shall not be less than twenty years, or (b) imprisonment for life, which shall

mean imprisonment for the remainder of natural life of the accused, or (c) death

sentence.

37. Now, the questions are whether the trial court is competent under S.6

POCSO Act, 2012, to impose a sentence of such imprisonment for life without

any commutation, and whether this court being the appellate court is competent

to correct such illegality/error when the appellant/accused fails to raise any

objection thereto?

38. Kiran V State of Karnataka (2025 INSC 1453) is a case where the

Hon"ble Apex Court has held as under:

“9. The sentence of life imprisonment no doubt means the

entire life, subject only to the remission and commutation

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provided under Cr.PC and also to Articles 72 and 161 of the

Constitution of India, which cannot be curtailed by a Sessions

Court. …

13. … The power to impose punishment of imprisonment

for life without remission was conferred only on the

Constitutional Courts and not on the Sessions Courts.”

It is thus clear that the trial court is not competent under S.6 POCSO Act, 2012,

to impose a sentence of imprisonment for life without any commutation.

39. Karan Chettri V State of Sikkim (2026 INSC 659) is a case where

the Hon"ble Apex Court, on the doctrine of ex debito justitiae, has upheld a suo

motu correction of an illegality/error apparent on the face of the record to bring

the sentence in conformity with the mandatory statutory requirement, and the

relevant excerpts thereof would read as under:

“24. That being so, the High Court, by substituting

the sentence awarded by the trial court with the minimum

punishment prescribed by statute, did not exercise a power

of enhancement under Section 386(b). It did not impose a

harsher punishment in the exercise of appellate discretion.

All it did was to discharge its duty to bring the sentence into

conformity with the command of the statute. The source of

such action lies not in the power to enhance, but in the

obligation of the court, acting ex debito justitiae, to correct

a patent illegality and ensure that the judgment affirmed by

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the judicial process is one which the law authorizes.

25. To hold otherwise would mean that a manifestly

illegal sentence, merely because it was challenged by the

convict and not by the State or the victim, must be

perpetuated despite being contrary to the minimum

punishment ordained by Parliament. Such a construction

would elevate a procedural limitation over substantive

legality and permit the appellate process to become an

instrument for preserving an illegality. That, in our view,

can never be the outcome. The prohibition under Section

386(b) cannot be understood as conferring upon an accused

a right to insist upon the continuance of a sentence which

the law forbids. The substitution of the sentence of twelve

years with the mandatory minimum of twenty years by the

High Court, therefore, is not an enhancement of punishment

in the true sense, but a suo motu correction of an error

apparent on the face of the record, undertaken to give effect

to the law as it is and to restore legality to the sentencing

process.”

Therefore, this court, in our considered view, is competent to correct such

illegality/error as is relatable to the additional imposition banning the grant of

commutation in order to give effect to the law as it is and to restore legality to

the sentencing process.

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40. In fine, this criminal appeal is allowed in part, maintaining the finding

but modifying the sentence of 'imprisonment for life which shall mean

imprisonment for the remainder of the natural life of the appellant/sole accused

without any commutation' to the sentence of “imprisonment for life which shall

mean imprisonment for the remainder of the natural life of the appellant/sole

accused” and leaving the levy of fine unaltered.

[A.D.J.C., J.] [B.M., J.]

01.09.2026

gns

To

1.The Special Judge for Exclusive Trial of cases under POCSO Act (Sessions

Judge), Thanjavur.

2.The Inspector of Police,

All Women Police Station,

Vallam, Thanjavur District.

3.The Government Advocate(Crl.Side),

Madurai Bench of Madras High Court,

Madurai.

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A.D.JAGADISH CHANDIRA, J.

AND

B.MURUGESAN, J.

gns

Judgment made in

CRL.A.(MD)No.835 of 2024

01.09.2026

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