JUDGMENT

This appeal is directed against the judgment of conviction and sentence passed by the learned Sessions Judge, Mahalir Neethimandram, Madurai, in Special Sessions Case No.1 of 2017, by judgment dated 16.10.2019.

2. On careful perusal of the records, it is found that the present case came to be registered based on Ex.P2 complaint given by P.W.2. On 04.08.2016 at around 17.00 hours, P.W.10-Santha, the then Sub-Inspector of Police registered Ex.P.6-First Information Report for the offences punishable under Sections 7 and 8 of the POCSO Act. P.W.11 took up the investigation of the above case. He received Ex.P.7 birth certificate of the victim, visited the place of occurrence at around 18.00 hours; prepared Ex.P.8-Observation Mahazar and Ex.P.9-Rough Sketch in the presence of witnesses PW9 Kumar and PW7 Raja; and thereafter, examined the witnesses and recorded their statements. On 05.08.2016 at around 06.00 a.m., he arrested the Accused near Thirunagar First Stop and caused him to be remanded to judicial custody. On 06.08.2016, he caused the victim boy to undergo medical examination. Thereafter, the statement of the victim under Section 164 of the Cr.P.C. was recorded. He examined the Doctor who conducted the medical examination of the victim and recorded his statement. On completion of the investigation, he laid the final report before the Special Court on 15.09.2016.

3. The Special Court took cognizance of the said case in Spl.S.C.No.1 of 2017, issued summons to the Accused and upon his appearance, furnished copies of the documents relied upon by the prosecution under Section 207 of the Code of Criminal Procedure. After hearing both sides, the Trial Court framed charges against the Accused for the offence punishable under Section 7 read with Section 8 of the POCSO Act. The charge was read over and explained to the Accused which he denied. Therefore, he was ordered to be tried by the trial Court.

4. On the side of the prosecution, P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.9 were marked. Upon closure of the prosecution side evidence, the incriminating circumstances appearing against the Accused were put to him under Section 313(1)(b) of the Cr.P.C. The Accused denied the same as false and stated that he had witnesses on his side. However, no witnesses were examined on the side of the Accused. Therefore, the defence evidence was closed.

5. After hearing both sides, the trial Court found the appellant guilty of the offence punishable under Section 7 read with Section 8 of the POCSO Act and sentenced him to undergo three years of rigorous imprisonment and to pay a fine of Rs.5,000/-, in default of payment of the fine, to undergo one month of simple imprisonment. Aggrieved by the said judgment of conviction and sentence, the appellant is before this Court.

6. The learned counsel appearing for the appellant and the learned Government Advocate (Criminal Side) appearing for the respondent were heard. The trial Court records were called for and perused.

7. Point for determination:

Whether the conviction and sentence imposed on the appellant are sustainable or not?

Answer:

8. On careful perusal of the records, it is found that it the case of the prosecution that the victim boy was aged about 11 years and was studying in the 6th standard at the time of the occurrence. On 02.08.2016, being a holiday, the victim was at his house, and the Accused was doing plumbing work on the terrace of the house of P.W.4, under whom the father of the victim was a tenant. At about 11.00 a.m., when the child went to the terrace, the Accused, under the pretext of playing with him, carried him to a small room upstairs, removed his own dress and asked the victim to kiss his male organ. Therefore, as per the case of the prosecution, the act of the Accused is punishable under Section 7 read with Section 8 of the POCSO Act. To substantiate the said case, the prosecution examined P.W.1 to P.W.11 and marked Ex.P.1 to Ex.P.9.

9. On careful perusal of the evid