JUDGMENT :

P. VELMURUGAN, J.

1. This Criminal Appeal has been filed against the Judgment dated 24.04.2019, made in Spl. S.C. No. 1/2015, on the file of Mahila Court, Salem.

2. The respondent police registered a case against the appellant in Crime No. 7 of 2014 for the offences punishable under Section 8 r/w 7 of the Prevention of Children from Sexual Offences Act 2012 (in short ‘POCSO’ Act). After investigation, charge sheet was laid and the same was taken on file in Spl. S.C. No. 1 of 2015, by Mahila Court, Salem.

3. After completing the formalities, the learned Judge framed charges against the accused and after trial, found the appellant guilty of the offences punishable under Section 8 r/w 7 of the POCSO Act and convicted and sentenced the appellant to undergo rigorous imprisonment for five years and to pay a fine of Rs. 10,000/- in default to undergo 6 months simple imprisonment. The sentences were ordered to run concurrently. Aggrieved by the said conviction and sentence, the accused is before this Court by filing this Appeal.

4. The learned counsel for the appellant would submit that the appellant had not committed the sexual assault as alleged by the prosecution, and the theory projected by the prosecution does not attract the ingredients under Section 7 of the POCSO Act. He would further submit that there is no penetrative sexual intercourse on the victim girl and the complaint was lodged after four days from the occurrence. He would further submit the alleged occurrence is said to have taken place at 10.30 A.M. by which time the public would have gathered and there is no possibility for the appellant to commit such an offence in the public place. He would further submit that complaint was given after four days of the alleged occurrence, the said delay was not properly explained by the prosecution. He would further submit even PW-2 victim girl has stated that when she went to fetch water from the bore well near to her home, the appellant came there and committed sexual assault on her, and when she shouted, he immediately put cloth on her mouth, however, the victim girl escaped and thereafter informed to PW-4 and then informed to her parents through phone on the same day, but complaint was given only after four days from the date of occurrence.

5. He would further submit that PW-4, to whom the victim girl informed the occurrence is not an eye witness, but she is only a hear-say witness. He would further submit that PW-1 mother of the victim girl, in her cross examination has not stated the correct date of lodging the complaint and further stated that both PW-1 and PW-3 have attested the complaint written by her daughter PW-2, whereas, from Ex.P1-complaint, it is clearly seen that the PW-2 had put her thumb impression on the complaint, which clearly shows that alleged complaint is not genuine and earlier complaint given was suppressed. He would further submit that due to enmity between the appellant and the victim family, the complaint was lodged after four days from the date of alleged offence. He would further submit that the earlier complaint given was suppressed and the alleged complaint is only the development, to implicate the appellant. He would further submit that PW-2, in her evidence had deposed that there was swelling in her chest as well as in her thighs, whereas PW-10 the Doctor who examined the victim girl had not deposed that there was sexual assault on the victim girl and therefore the evidence of PW-10, does not corroborate the evidence of PW-2, which fact has not been taken note of by the learned trial Judge. He would further submit that complaint does not corroborate the statement recorded under Section 164 Cr.P.C. and therefore, the prosecution has failed to establish the case beyond reasonable doubt. He would further submit that the learned Judge failed to consider the fact that Section 7 of the POCSO Act has not been made out. He would further submit that the prosecution has failed to establish its case w