IMPORTANT POINT
Penetrative sexual assault – Corroboration of medical evidence is necessary in cases where prosecution evidence is shaky.

JUDGMENT

The appellant, who is the sole accused in Spl.S.C.No.18 of 2018 on the file of the Special Court for POCSO Act cases, Srivilliputhur, filed this criminal appeal challenging the conviction and sentence imposed against him by the Special Court for POCSO Act Cases, Srivilliputhur. The learned trial Judge convicted the appellant for the offence under Sections 417, 366 IPC and Section 6 r/w 5(l) of the POCSO Act and sentenced him to undergo 7 years imprisonment and a fine of Rs.1000/- for the offence under Section 366 IPC; to undergo one year imprisonment and a fine of Rs.1000/- for the offence under Section 417 IPC; and to undergo 7 years imprisonment and a fine of Rs.1000/- for the offence under Section 6 r/w 5(l) of the POCSO Act, 2012.

2. The case of the prosecution is that the respondent police registered a case against the appellant in Crime No.760 of 2017 on 16.10.2017 on the allegation that the appellant kidnapped the victim girl took her to Othakuthirai Village, Gopichettipalayam, Tiruppur District. In the said village, he took a rental house from PW.8 and married the victim girl and had sexual intercourse with her. Thereafter, he dropped the victim girl in her village. In the meantime, PW.1, the father of the victim girl lodged a complaint before the jurisdictional police. The same was registered in Crime No.760 of 2017 for ‘girl missing’. Thereafter, PW.1 produced the victim girl before the respondent police and the respondent police conducted the medical test and altered the offence into Sections 417, 366, 376 (2 counts) IPC and Section 6 r/w 5(l)(2 counts) of the POCSO Act, 2012. Thereafter, the respondent police arrested the appellant and completed the investigation and filed the final report before the learned trial Judge. The learned trial Judge taken the final report on file in Spl.S.C.No.18 of 2018. The learned trial Judge issued summons to the accused and after his appearance, served the copies under Section 207 Cr.P.C. Thereafter, he framed necessary charges and questioned the accused. The accused pleaded not guilty and hence the trial commenced against the accused.

3. To prove the case, the prosecution examined PW.1 to PW.12 and Ex.P1 to Ex.P15. The learned trial Judge thereafter questioned the accused under Section 313 Cr.P.C by putting the relevant question and the accused denied the same as false and thereafter, the case was posted for examination of the witnesses on the side of the accused. The accused neither produced any documents nor examined any witnesses on his side.

4. The learned trial Judge, on considering the evidences and witnesses, convicted and sentenced the appellant for the offence as stated supra and he acquitted the appellant for the offence under Section 9 of the Prohibition of Child Marriage Act. Aggrieved over the same, the appellant preferred this appeal.

5. The learned counsel for the appellant submitted that the victim girl gave 164 Cr.P.C statement before the learned trial Judge and in the said 164 Cr.P.C statement, she did not disclose any penetrative sexual assault and the marriage. Further, she did not depose about the kidnapping done by the appellant. But in the evidence before the Court, she deposed that the appellant committed penetrative sexual assault in the said village of Gobichettipalayam. The said evidence of the victim girl is not trustworthy in view of the above said improvement over the 164 Cr.P.C statement. Hence, her evidence is to be supported with sufficient corroboration. In this case, there was no corroboration. The medical evidence stated that there was no injury on the part of the victim girl and also there is no recent penetrative sexual assault. In the said circumstances, the conviction under Section 6 of the POCSO Act is not maintainable. The learned counsel for the appellant further submitted that in view of the absence of the evidence to prove that the appellant kidnapped the victim girl for the purpose of having sexual intercourse and marriage is