JUDGMENT :

1. This Criminal Appeal has been filed seeking to set aside the Judgment in Special C.C.No.13 of 2017 on the file of the Court of Sessions Judge of Magalir Neethimandram, (FTMC), Udhagamandalam, Nilgiris dated 25.07.2019.

2. The respondent police registered the case against the appellant in Crime No.1 of 2017 for the offence u/s.5(m) r/w.6 and also u/s.9(m) read with 10 of of POCSO Act. After investigation, laid the charge sheet before the Special Court. Since the offence against women particularly against child, the Special Court taken the charge sheet on file in Special Calendar Case No.13 of 2017 and after completing the formalities framed charge against the appellant for the offence u/s.5(m) read with 6 and 9(m) read with 10 of POCSO Act. After framing charge, during the trial, in order to prove the case of the prosecution, on the side of the prosecution as many as 21 witnesses were examined as P.W.1 to P.W.21 and marked 15 documents as Ex.P.1 to Ex.P.15 and no material object was exhibited. After completing the prosecution evidence, incriminating circumstances culled out from the evidence of the prosecution witnesses put before the appellant and he denied it as false and pleaded not guilty. No oral and documentary evidence was produced on the side of the defence. After completing trial, after hearing the arguments advanced on either side, convicted the appellant for the offence u/s.5(m) read with 6 of POCSO Act and sentenced to undergo Rigorous Imprisonment for 10 years and to pay fine of R.3000, in default to undergo 3 months simple imprisonment and also awarded compensation of Rs.3 lakhs u/s.23(8) of POCSO Act. Challenging the said judgment of conviction and sentence passed by the learned Special Judge, the appellant has filed the present appeal before this court.

3. Mr.Doraisamy, the learned Senior counsel appearing for the appellant argued the matter in length. This court also appointed a legal aid Counsel and Mr.V.Perarasu who appeared before the court also argued the matter. This court heard the arguments advanced by Senior counsel appearing for the appellant and the Legal Aid Counsel appointed by this court on behalf of the appellant.

4. Mr.Doraisamy, the learned Senior Counsel would submit that there is a delay in filing the complaint. The occurrence is said to have taken place at about 11.30 a.m. on 24.08.2017, whereas the complaint was given only at 10.30 p.m., so there is inordinate delay in filing the complaint. The prosecution has not explained the delay in filing the complaint since the inordinate delay itself shows that the occurrence has not taken place as projected by the prosecution. After deliberation, they have filed false complaint. Actually there is illegal intimacy between the mother of the victim girl and P.W.6. The appellant seen the intimacy. Therefore, there is possibility of informing the same. Therefore, they have foisted a false case against the appellant. Therefore, the mother of the victim girl has not immediately intimated the occurrence to her husband/P.W.1 and not registered the case immediately but after deliberation, lodged the complaint, which creates suspicion. Since the prosecution has not properly explained the delay in filing the complaint that will go to the root of the case of the prosecution. Therefore, delay in filing the complaint is fatal to the case of the prosecution. The learned Sessions Judge, failed to consider the said fact and convicted the appellant. Further he would submit that the doctor one who conducted medical examination of the victim has clearly stated that there was no external injury and there is no other injuries found on the victim. Therefore, it is not possible for a man to have penentrative sexual assault on a 2 ½ years old girl and there cannot be any forcible sexual intercourse. Therefore, some injury met on the body of the private part of the victim girl cannot be said to have been committed by the appellant. Therefore, it clearly shows that P.