JUDGMENT :

This Criminal Appeal has been filed against the Judgment of conviction and sentence imposed by the learned Sessions Judge, Mahila Court (Mahalir Neethimandram), Chennai in S.C.No.30 of 2018.

2. The respondent Police have registered a case in Crime No.5 of 2016, for offence under Section 8 of Protection of Children from Sexual Offence Act, 2012 (Hereinafter referred to as 'POCSO Act') against the appellant on the complaint given by the mother (PW1) of the victim girl (PW4). After completing the investigation, the respondent Police laid a charge sheet before the learned Sessions Judge, Mahila Court (Mahalir Neethimandram), Chennai and same was taken on file in S.C.No.30 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 for offence punishable under Section 6 of POCSO Act.

4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the learned Sessions Judge found guilt of the appellant for the offence punishable under Section 10 of POCSO Act and convicted and sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.5,000/-, in default to undergo six months Simple Imprisonment.

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 the place of occurrence itself is highly doubtful in this case. The house of the victim child (PW.4) is situated in the residential area, where public movements are normally available, but no independent witness was examined by the prosecution to prove that the appellant entered into the house of the victim girl (PW.4) and committed the offence. The learned counsel would further submit that no witness was examined to prove that the appellant was seen with the victim girl (PW.4) just soon before the occurrence, at the time of occurrence and soon after the occurrence. Further, on the date of occurrence, the appellant was not present in the scene and he had gone along with the family members to attend the house warming ceremony of his relative. Therefore, the appellant was not available in the place of occurrence, at the time of occurrence and he did not commit any offence as alleged by the prosecution.

7. The learned counsel for the appellant would further submit that the appellant was running electrical shop at Thiruvanmuyur, Chennai and he is a married man. The father (PW.2) of the victim child was also having electrical service shop opposite to the shop of the appellant. Prior to the occurrence, the father (PW.2) of the victim child purchased home theatre from the appellant's shop and for which, he did not make payment. The appellant demanded the money for the same and PW.2 dragged the payment by saying one reason or other and due to which, there was misunderstanding between the appellant and the father (PW.2) of the victim child. In order to escape from the payment, the father (PW.2) of the victim child tutored the victim girl (PW.4) and foisted the false case against the appellant. Further, the medical evidence (PW.7) has not supported the case of the prosecution. The Doctor (PW.7) who conducted medical examination on the victim child (PW.4) has clearly stated that there was no injury in the private part of the victim girl (PW.4) and the hymen was intact and opined that the victim child (PW.4) was not subjected to penetrative sexual assault.

8. The learned counsel for the appellant would further submit that the presumption under Section 29 and 30 of POCSO Act would not attract in this case, since the prosecution has not proved the alleged sexual assault. Once it is established before the Court that there are materials available on record to draw presumption in favour of the prosecution and the evidence before the Court also con