JUDGMENT :

This Criminal Appeal has been filed against the Judgment dated 06.09.2019 in S.C.No.249 of 2018 on the file of the Mahila Court/Special Court for Cases Under POCSO Act/Children's Court, Chennai.

2. The respondent police registered a case in Crime No.2 of 2017 against the appellant for the offence punishable under Section 12 of The Protection of Children from Sexual Offences Act, 2012 [hereafter 'POCSO Act' for the sake of convenience]. After investigation, the respondent police filed a charge sheet before the learned Sessions Judge, Mahila Court/Special Court for Cases Under POCSO Act/Children's Court, Chennai and the same was taken on file in S.C.No.249 of 2018.

3. After completing formalities, the trial Court framed the charges against the appellant for the offences punishable under Section 363 IPC and Section 12 of POCSO Act. The appellant/accused found guilty and convicted for the offence under Section 12 of POCSO Act and sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of six months. The appellant/accused was acquitted from the charge under Section 363 IPC.

4. Being aggrieved by the said judgment of conviction and sentence, the appellant is before this Court.

5.1 The learned counsel for the appellant would submit that though the offence is alleged to have committed on 23.06.2017, but there is a delay in lodging the complaint, which came to be filed on 28.06.2017. The trial Court failed to appreciate that the complaint was preferred after five days and the delay was not properly explained. Such unexplained inordinate delay is fatal to the case of the prosecution. Further, the alleged occurrence said to have taken place in the open place and not in a hidden place. At the time of occurrence, the appellant was aged about 65 years and he was having his grand daughter in his hands and the same was admitted by the victim girl (P.W.1) and the eye witness (P.W.3). Since the accused was having a child in his hands at the time of occurrence, it was not possible for him to commit such a sexual harassment to the victim by lifting his lungi. Therefore, the appellant could not have any intention to commit sexual assault on the victim girl and he might have adjusted his lungi. The victim girl (P.W.1) and the eye witness (P.W.3) misunderstood the action of the appellant and preferred a complaint. Therefore, he has no guilty intention and he has not committed any offence as alleged by the prosecution. He would further submit that the victim girl, while deposing her evidence before the Court has stated the appellant lifted his lungi and showed his private part. Whereas, statement under Section 164 Cr.P.C., the victim girl has stated that appellant lifted her dress and kept his hands on her private part. The trial Court failed appreciate the contradictory statement of the victim girl.

5.2 The learned counsel for the appellant would further submit that after due deliberation, P.W.3 defacto complainant preferred the complaint against the appellant. The respondent police registered the case belatedly, knowing fully well that it is a false case and conducted the investigation and laid a charge sheet before the Court below. He would further submit that no independent witnesses have been examined. However, the learned trial Judge failed to consider the materials and erroneously convicted the appellant only on assumption and sympathy, and therefore, the judgment of conviction and sentence passed by the trial Court against the appellant, is liable to be set aside.

6.1 The learned Government Advocate (Crl.Side) would submit that at the time of occurrence, the victim girl (P.W.1) is aged about six years and was studying 3rd standard. The appellant is the neighbour of the victim girl. On 23.06.2017 at about 4.45 p.m., when the victim girl was playing down stairs of her house along with her younger sister, the accused/appellant took her to t