JUDGMENT :

This Criminal Appeal has been filed against the Judgment dated 06.02.2019 in Spl.S.C.No.46 of 2018 on the file of the learned Mahila Court, Cuddalore.

2. The case of the prosecution is that at the time of occurrence, the victim girl (P.W.2) was aged about 14 years and the appellant is the neighbour as well as the paternal uncle of the victim girl. Since the appellant is a married man and he had no issues, he gained the sympathy of the victim girl by telling her that even after 8 years of marriage he did not get any child through his wife. Thereafter, he isolated the child from the safety net of her family and often took her to a field near a temple which situates on the backside of their house and sexually assaulted the victim girl from 07.03.2017. Thereafter, the accused threatened the victim girl to maintain secrecy in the name of honour of the family. Afterwards, the accused on every Sunday used to have sexual intercourse with her. Subsequently, when the parents of the victim girl came to know about the secret and lodged a complaint (Ex.P1) against the appellant on 01.08.2017 to the respondent police.

3. The respondent police registered a case in Crime No.18 of 2017 against the appellant for the offence punishable under Sections 4 and 6 of The Protection of Children from Sexual Offences Act, 2012 [hereafter referred to as the 'POCSO Act' for the sake of convenience], later altered into Section 5(1) r/w Section 6 of POCSO Act and Section 313 IPC. After investigation, the respondent police filed a charge sheet before the learned Sessions Judge, Mahila Court, Cuddalore and the same was taken on file in Spl.S.C.No.46 of 2018 and charges were framed against the appellant for the offences under Sections 366 and 313 IPC and punishable under Section 6 of POCSO Act.

4. In order to prove the case of the prosecution before the trial Court, on the side of the prosecution as many as 9 witnesses were examined as P.W.1 to P.W.9 and also marked Exs.P1 to P11 and no material document was marked. After completion of the prosecution side evidence, the incriminating circumstances were put to the appellant/accused by examining the appellant/accused under Section 313 of Cr.P.C. and he has denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, no oral and documentary evidence was produced.

5. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the accused/appellant is guilty of the offence and awarded punishments as below:

The appellant was convicted for the offence under Section 366 of IPC and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of one year; and also convicted for the offence punishable under Section 6 of POCSO Act and sentenced to undergo rigorous imprisonment for a period of fourteen years and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for a period of two years. However, found not guilty for the offences under Section 313 IPC and was acquitted under Section 235(1) Cr.P.C.

6. Being aggrieved by the said judgment of conviction and sentence, the appellant is before this Court.

7. The learned counsel for the appellant would submit that the learned trial Judge failed to consider that the appellant is none other than the paternal uncle of the victim girl and the alleged relationship is prohibited one. The age of the appellant is the doubled the age of the victim girl. Therefore, the appellant could not have committed such an offence. The prosecution has not proved the ingredients of Section 366 IPC and Section 3 of POCSO Act. The prosecution has not followed the procedure under Section 26(1) of POCSO Act, which is mandatory. Therefore, the statement of the victim girl recorded under Section 164 Cr.P.C. is against law. He would further submit that there was no