Point of Law: Provisions of Juvenile Justice (Care and Protection of Children) Act, 2015, were also duly followed, and subsequently, the Juvenile Justice Board has also passed an order in C.M.P., which was not challenged by appellant.

JUDGMENT :

Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., praying to set aside the judgment of conviction and sentence, dated 18.02.2019, in Spl.S.C.No.79 of 2016, on the file of the Mahalir Neethimandram, Salem, Salem District.

1. This Criminal Appeal is filed against the judgment of conviction and sentence, dated 18.02.2019, passed by the learned Sessions Judge, Mahalir Neethimandram, Salem, in Spl.S.C.No.79 of 2016.

2. The respondent police originally registered a case in Crime No.174 of 2016 for “Girl Missing”, and subsequently, after enquiry, the appellant was arrested and his confession statement was recorded in the presence of the Village Administrative Officer, and based on the confession statement of the appellant, recovery was made and subsequently, the case was altered to Sections 363, 342, 302 and 201 r/w. 302 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for brevity), against the appellant.

3. After completing the investigation, the respondent police laid a charge-sheet before the Mahalir Neethimandram, Salem. The learned Sessions Judge had taken the case on file in Spl.S.C.No.79 of 2016. After completing the formalities, the learned Sessions Judge framed the charges against the appellant for the offences punishable under Sections 363, 342 IPC and Section 6 of POCSO Act and Sections 302 and 201 r/w.302 IPC.

4. After framing the charges, in order to prove the case of the prosecution, on the side of the prosecution, during trial, as many as 25 witnesses were examined as P.W.1 to P.W.25, and 35 documents were marked as Exs.P1 to P35, and 10 Material Objects were exhibited.

5. After completing the trial and hearing the arguments advanced on either side, considering the materials and since the accused was a Juvenile, the trial Court convicted and sentenced the accused/appellant as follows:

6. Challenging the said conviction and sentence, the appellant/accused has filed the present appeal before this Court.

7. The learned counsel appearing for the appellant/accused would submit that there is no eye-witness in this case to show that the appellant has committed aggravated penetrative sexual assault and murdered the victim child. The appellant was a Juvenile at the time of the alleged occurrence and he was 17 years old, and therefore, the trial conducted against the appellant by the Sessions Court is legally not sustainable and the same is without jurisdiction. Further, there is no evidence to show that the appellant has committed the offence and there are contradictions between the evidence of P.W.1 (father of the victim child) and P.W.2 (mother of the victim child) regarding the time at which the father of the victim child took the victim child to petty shop to get her a chocolate. The mother of the victim child (P.W.2) says, “at 4'o clock”, and father of the victim child (P.W.1) says, “at 6'o clock”. Therefore, there is a material contradiction in this case.

8. The learned counsel appearing for the appellant would further submit that the medical evidence also does not support the case of the prosecution. Prior to the occurrence, if at all the victim child had eaten a chocolate or biscuit, the post-mortem certificate would reveal that there was no such material found in the stomach. Further, no semen was found in the vaginal swab of the victim child. Therefore, the medical evidence does not support the case of the prosecution. Moreover, there is no independent witness to show that on