JUDGMENT :

This Criminal Appeal has been filed seeking to call for the records in Special Sessions Case No.6 of 2017 on the file of the learned Special Judge at Karaikal, and set aside the judgment dated 28.02.2019.

2. The respondent police registered the case against the appellant in Crime No.8 of 2016 for the offence punishable under section 8 of POCSO Act. After completing the investigation, laid a charge sheet before the Special Judge, Karaikal. The learned Special Judge taken the case in Spl.S.C.No.6 of 2017. After completing the formalities, the learned Special judge framed a charge against the appellant for the offence under section 8 of POCSO Act. After framing the charge during the trial, on the side of the prosecution, the prosecution examined as many as 10 witnesses as P.W.1 to 10 and 13 documents were marked as Ex.P.1 to 13, besides 8 material objects were exhibited. After completing the examination of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant by questioning under section 313 of Cr.P.C., and he denied it as false and pleaded not guilty. On the side of the defence, no oral evidence was produced and only one exhibit was marked as Ex.D1. After the trial and after hearing the arguments advanced on either side, the Special Judge found guilt of the appellant for the offence punishable under section 8 of POCSO Act and convicted and sentenced him to undergo 3 years R.I and to pay a fine of Rs.1000/- in default S.I for three months. Challenging the said judgment of conviction and sentence, the accused has filed the present appeal before this Court.

3. The learned Legal Aid counsel appearing for the appellant would submit that no such occurrence has taken place. The police has put up the case and the complainant making use of the innocence of the victim girl, tutored the victim girl and foisted a false case against the appellant. The investigating officer has not conducted fair investigation and laid a charge sheet falsely. Therefore, a reading of the evidence of P.W.1 and P.W.2-victim girl itself clearly shows that it is put up case against the appellant. He further submitted that there was a motive between the family of the victim girl and the appellant. P.W.1 and 2 have clearly admitted that there was a put up case filed by the appellant's sister against one Ramesh who is paternal uncle of the victim girl and in order to take vengeance for the case filed against one Ramesh, set up the victim girl and foisted a false case. Further the place of occurrence has not been established without any iota of doubt.

4. The learned counsel further submitted that the case of the prosecution is that the victim girl went to the school along with five other children for playing hide and seek game and at that time, the appellant was sitting on the compound wall and he has committed the offence. However, the prosecution has not examined any of the friends of the victim girl who went along with the victim girl on the date of occurrence and who played with her. Therefore, non examination of the friends of the victim girl is fatal to the case of the prosecution. Since no such occurrence had taken place, the prosecution not examined the friends of the victim girl.

5. Further he would submit that there is no written complaint in this case and P.W.1 has given only oral complaint. Based on the oral complaint, the respondent police registered the case. Even the victim girl has not stated during the statement recorded under section 164 Cr.P.C., that the appellant touched her private parts(Vagina) and pressed breast of the victim girl with sexual intention and thereby sexually assaulted her. Even during cross examination, she has clearly admitted the same.

6. Further the victim girl has stated that the appellant was only sitting on the compound wall. She has not stated that the appellant entered into the school. Therefore, there are material contradictions