Point of law: Section 42(A) of the POCSO Act, Section 31 of Cr.P.C., need not be strictly followed while awarding the punishment of imprisonment for offence under the POCSO Act.

JUDGMENT :-

(Prayer: Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, to set aside the judgment and sentence passed in Old S.C.No.10 of 2018 New S.C.No.71 of 2019, dated 01.09.2020 by the Special Court of The Protection of Children from Sexual Offences Act (POCSO Act) 2012, Salem.)

1. This Criminal Appeal has been filed against the Judgment of conviction and sentence imposed by the learned Sessions Judge, Special Court for trial of cases under the Protection of Children from Sexual Offence Act, 2012, Salem in Old Special S.C.No.10 of 2018 and New Special S.C.No.71 of 2019.

2. The respondent Police have registered a case in Crime No.12 of 2015, for offence under Sections 7 and 8 of Protection of Children from Sexual Offence Act, 2012 (Hereinafter referred to as 'POCSO Act') against the appellant on the complaint (Ex.P1) given by the mother (PW.1) of the victim child (PW.2). After completing investigation, the respondent Police laid a charge sheet before the learned Sessions Judge, Magalir Neethimandram, Salem and same was taken on file as Special S.C.No.10 of 2018.

3. After completing the formalities under Section 207 Cr.P.C., since there was a prima facie material to frame charges against the appellant, the Sessions Judge farmed charges under Sections 10 and 8 of the Protection of Children from Sexual Offence Act, 2012. Since the Special Court was established to try the case for the offence under the Protection of Children from Sexual Offence Act, 2012 and the offence committed by the accused against the child, the case was transferred to the file of the Sessions Judge, Special Court for trial of cases under the Protection of Children from Sexual Offence Act, 2012, Salem and the same was renumbered as Special S.C.No.71 of 2019.

4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the Sessions Judge found guilty of the appellant for offence punishable under Sections 8 r/w 7 and 10 r/w 9(i), 9(m) and 9(n) of POCSO Act and convicted and sentenced him as follows:

* For offence punishable under Section 8 r/w 7 of POCSO Act, 2012, the appellant was sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.25,000/-, in default to undergo six months Simple Imprisonment.

* For offence punishable under Section 10 r/w 9(i), 9(m) and 9(n) of POCSO Act, 2012, the appellant was sentenced to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.50,000/-, in default, to undergo one year Simple Imprisonment. Both the sentences were ordered to run consecutively.

5. Challenging the above said Judgment of conviction and sentence, the appellant has filed the present appeal before this Court.

6. The learned counsel for the appellant would submit that there is no eye witness in this case and no independent witness was examined by the prosecution to prove the guilt of the appellant. The mother of the victim child/defacto complainant (PW.1) and the appellant are husband and wife and the victim child (PW.2) is their daughter. During trial, both the wife and daughter of the appellant (PW.1 and PW.2) turned hostile and they did not support the case of the prosecution and also the medical evidence not supported the case of the prosecution. The learned counsel would further submit that due to family dispute, the mother of the victim child (PW.1) made a complaint against her husband/appellant, but the respondent Police have written the complaint to suit their convenience and the appellant did not commit any offence as alleged by the prosecution. The mother of the victim child has clearly stated that she and the appellant are living together and since his husband beaten her, she gave oral complaint against her husband to the respondent Police and she did not know the contents in the First Information Report registered against her husband. Further, there is no substantive evidence to convict the appellant and no father wo