JUDGMENT :

P. VELMURUGAN, J.

1. This Criminal Appeal has been filed against the conviction and sentence imposed by the learned Sessions Judge, Fast Track Mahila, Krishnagiri in Special S.C. No. 60 of 2018, dated 05.09.2019.

2. The respondent Police have registered a case in Crime No. 15 of 2018, for offence under Sections 3, 4 and 18 of Protection of Children from Sexual Offence Act, 2012 against the appellant on the complaint (Ex.P1) given by PW-1. After completing investigation, the respondent police laid a charge sheet before the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri and the same was taken on file in Special S.C. No. 60 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 learned Sessions Judge, farmed charges under Section 5(m) r/w 6 of Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as ‘POCSO Act’).

4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the trial Judge found the appellant guilty for offence punishable under Section 9(m) r/w 10 of POCSO Act and convicted and sentenced to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs. 1,000/- in default to undergo 6 months Rigorous Imprisonment for offence under Section 10 of POCSO Act.

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 in this case, there is no eye witness and no independent witness was examined by the prosecution to prove its case. PW-1 and PW-3 are the mother and father of the victim girl (PW-2). The mother of the victim girl (PW-1) is not an eye witness to the occurrence and she was projected by the prosecution as if she is an eye witness to the occurrence. The Doctor (PW-15), who examined the victim girl has stated that there was no external injury and no symptoms for sexual assault, hence it is not conclusively proved that the appellant had committed the sexual assault on the victim girl and the medical evidence does not support the case of the prosecution. The learned counsel would further submit that the trial Court failed to consider the fact that in the dwelling house, it is not possible for such kind of incident to be happend. Though the mother of the victim girl (PW-1) stated that her daughter and the grand daughter of the appellant used to play together, the victim girl (PW-2) has stated that on the date of occurrence, only the grand daughter of the appellant taken her to her house. Hence, in the presence of the family members, no one would commit such kind of offence. Therefore, the prosecution has put up a false case against the appellant.

7. The learned counsel for the appellant would further submit that the time of occurrence has not been clearly established by the prosecution. The mother of the victim (PW-1) has deposed that the occurrence had taken place at about 03.00 p.m. whereas the father of the victim girl (PW-3) has deposed that when he was working in the company her wife informed him about the incident at about 01.30 p.m. and he came to the house at about 05.00 p.m. and took the victim girl to the hospital. Hence, with regard to the time of occurrence, there is material contradiction between the evidence of PW-1 and PW-3. The trial Court failed to consider the material contradictions regarding the time and place of occurrence and simply on the ground of presumption and assumption and also on the ground of sympathy, convicted the appellant.

8. The learned counsel for the appellant would further submit that the trial Court without even framing the charge under Section 9(m) r/w 10 of POCSO Act, convicted the appellant for offence under Section 9(m) r/w 10 of POCSO Act and found the prosecution has not proved the offence under Section 5(m) r/w 6 of POCSO Act.

9. Th