JUDGMENT :

This Criminal Appeal has been filed against the conviction and sentence imposed by the learned Sessions Judge, Mahila Court, (Mahalir Neethimandram), Chennai in S.C.No.343 of 2018, dated 05.11.2019.

2. The respondent Police have registered a case in Crime No.10 of 2018, for offence punishable under Section 12 of Protection of Children from Sexual Offence Act, 2012 against the appellant on the complaint (Ex.P3) given by PW2. After completing investigation, the respondent police laid a charge sheet before the learned Sessions Judge, Mahila Court, (Mahalir Neethimandram), Chennai and the same was taken on file in S.C.No.343 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 Sections 10 and 12 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 Sections 10 and 12 of POCSO Act and convicted and sentenced to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.3,000/-, in default to undergo 6 months Simple Imprisonment for offence under Section 10 of POCSO Act and also sentenced to undergo one year Simple Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo one month Simple Imprisonment for offence under Section 12 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 a false case has been foisted against the appellant by the prosecution. Though the place of occurrence was surrounded by flats about 1000 apartments and always public movements were available, the prosecution failed to examine any of the independent witness who resides at the place of occurrence. It is the case of the prosecution that when the victim girl was standing in balcony and seeing whether her friends are coming to play, the appellant, who was in the car parking, removed his pant zip and shown his private parts towards the victim girl and subsequently, the victim girl came to downstairs and playing ball and the ball was moved under the car. When the victim girl tried to take the ball, the appellant touched backside of the victim girl. The occurrence is said to have taken place in the open yard that is car parking, but none of the other car drivers or watchmen or iron man were examined in this case and even the father of the victim girl was also not examined in this case. The learned counsel would further submit that the witness (PW.3) for the Observation Mahazar (Ex.P4) is a close relative to the father of the victim girl. The learned counsel would further submit that there are material contradictions between the evidence of the victim girl and her mother (PW.1) and also improvement from stage to stage. Though the victim girl during recording the statement under Section 164 Cr.P.C., (Ex.P1) has stated that when she tried to take the ball under the car along with her friends, the appellant touched her backside, but the prosecution has not examined the friends of the victim girl. Even in the surroundings where the occurrence is said to have taken place, the prosecution has not verified as to whether there was any CCTV camera has been installed. At the time of occurrence, the watchmen, iron man and also other Drivers were available, but none of the persons have been examined as witnesses in this case.

7. The learned counsel for the appellant would further submit that it is not the case of the prosecution that the accused had trespassed into the house and committed the offence within the 4 walls and no eye witness could be expected. As per the prosecution, the occurrence had taken place in the ope