The prosecution must prove the basic facts constituting the offence charged against the accused, and the presumption under the POCSO Act is not absolute or conclusive.

JUDGMENT :

Appellant before this Court is convicted for the offences punishable under section 376 of IPC and section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”). He is sentenced to rigorous imprisonment for a period of ten years and a fine of Rs.25,000/- for the offence punishable under section 4 of the POCSO Act.

2. The case of the prosecution is that the victim (PW.5), then aged about 15 years, was residing in a shed along with her parents. Her parents were construction labourers. On 06.12.2015, as usual, they had left for work leaving the victim girl alone in the shed. At about 1.00 p.m., while the victim girl was taking bath in the bathroom behind the Stadium under construction, the accused is stated to have committed rape on the victim girl and again on 09.12.2015 at about 2.00 p.m., he committed rape on her in the same place. The victim disclosed this incident to her mother on 11.12.2015 when she had pain in her abdomen. The mother of the victim PW.6 lodged the first information as per Ex.P14 based on which FIR was registered against the appellant/accused in Crime No.454/2015 as per Ex.P18.

3. Investigation was taken up. Victim was subjected to medical examination. FSL report – Ex.P8 was obtained and on ascertaining that PW.5 was the victim of penetrative sexual assault, charge sheet was laid before the court. Charges were framed against the accused under section 376 of IPC and section 4 of the POCSO Act. The accused having denied the charges, the prosecution examined 14 witnesses as PW.1 to PW.14 and got marked 31 documents as Ex.P1 to Ex.P31 and four material objects as MO.1 to MO.4. Accused denied all the incriminating circumstances brought out in the prosecution evidence and did not choose to produce any rebuttal evidence.

4. Considering the material produced by the prosecution and upon hearing the learned Public Prosecutor and learned counsel for appellant/accused, by the impugned judgment, the Sessions Court found the accused guilty of the offence punishable under section 376 IPC and section 4 of the POCSO Act and accordingly sentenced him as stated above. Aggrieved by the same, accused has preferred this appeal.

5. Heard learned counsel for appellant and learned HCGP.

6. Sri.S.Balakrishnan, learned counsel for appellant, at the outset, submitted that the Sessions Court failed to appreciate the evidence of the prosecutrix in proper perspective. Her evidence even if accepted in its entirety, does not make out the ingredients of penetrative sexual assault. Even with regard to the identity of the accused, the evidence of the prosecutrix PW.5 is not clear and specific. In her chief-examination she answered that she did not see the accused. It is only on the goading of the Public Prosecutor when accused was pointed out, she identified the accused. This identification cannot stand judicial test. Added to that, she did not narrate details of the alleged acts. Even the medical evidence relied on by the prosecution does not corroborate the statement of the victim. On the other hand, the medical evidence suggests that there was no sexual assault on the victim. Elaborating on this aspect, learned counsel pointed out that the victim was subjected to medical examination on the third day of the alleged sexual act. But the Medical Officer (PW.3) has unequivocally stated that there were no traces of recent sexual intercourse on the victim. Even the FSL report is contrary to the ocular testimony of the prosecutrix. Under the said circumstances, the Special Court has committed grave error in convicting the accused for the offence under section 376 of IPC and section 4 of the POCSO Act. Regarding appreciation of evidence of child witness, learned counsel placed reliance on the decision of the Hon’ble Supreme Court in the case of YOGESH SINGH vs. MAHABEER SINGH & Others (Criminal Appeal No.1482/2013 dated 20.10.2016) and prayed for acquittal of the appellant/accused.

7. Per contra,