JUDGMENT :

This Criminal Appeal has been filed against the Judgment dated 29.01.2020 made in Spl.S.C.No.15 of 2018 on the file of the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District.

2. The respondent police registered the case against the appellant (A-1) in Crime No.14 of 2017 for the offence under Section 366 (A) IPC and under Section 5(l), 5(n) read with 6 of POCSO Act, 2012. After investigation, respondent police laid the charge sheet before the Special Court/Fast Track Court, Krishnagir. Since the offence against women particularly child and coming under the POCSO Act, learned Special Judge, after completing formalities, framed charges against the appellant/A-1 u/s.5(l) read with 6 of POCSO Act, 2012 and under Section 366 IPC. Yet another charge was framed against the 2nd accused for the offence u/s.366 A IPC. After framing charges, during the trial, in order to prove the case of the prosecution, on the side of prosecution, as many as 16 witnesses were examined as P.Ws.1 to 16 and 27 documents were marked as Ex.P.1 to Ex.P.27 besides one material object has been marked. After completing the examination of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses was put before the appellant and he denied as false and pleaded not guilty. There is no oral and documentary evidence produced on the side of the appellant.

3. After completing the trial and hearing the argument advanced on either side, the learned Special Judge acquitted the 2nd accused for the offence u/s.366 (A) IPC. However, the appellant was found guilty of offence u/s.366 IPC and convicted and sentenced him to undergo 5 years rigorous imprisonment and fine of Rs.5000/- in default to undergo 6 months rigorous imprisonment. Further the appellant was found guilt of the offence u/s.5(l) read with 6 of POCSO Act, convicted and sentenced him to undergo 10 years rigorous imprisonment and fine Rs.5000/- in default to undergo 6 months rigorous imprisonment and the appellant was found guilt u/s.5(n) read with 6 of POCSO Act 2012 and convicted and sentenced him to undergo 10 years rigorous imprisonment and fine of Rs.5000/- in default to undergo 6 months rigorous imprisonment.

4. Challenging the said conviction and sentence, the appellant has filed the present appeal. Even though the 2nd accused was acquitted, the prosecution has not filed any appeal.

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

6. The learned counsel appearing for the petitioner would submit that there are material contradictions between the prosecution witnesses. Victim girl has stated that she voluntarily went to Harish and the said Harish took the victim girl to the appellant and thereafter the appellant taken the victim girl and stayed with her somewhere else and in such circumstances, Harish was already acquitted and on the basis of the confession statement of Harish, this appellant and the victim girl was secured. Once the said Harish – A2 was acquitted, the appellant cannot be convicted for the offence u/s.366 IPC since the victim girl has not stated that the appellant has forcefully kidnapped her. Therefore, the prosecution failed to establish the commission of offence against the appellant u/s.366 IPC. Therefore, the conviction rendered by the learned Special Judge requires interference.

7. The learned Legal Aid counsel argued that the victim girl has stated that she loved the appellant and the appellant had penetrative sexual intercourse. The victim girl has not stated that she was forcefully sexually assaulted by the appellant. Therefore, section 5(l) of POCSO Act will not attract