JUDGMENT :

This Criminal Appeal has been filed against the Judgment dated 20.05.2019 made in Spl.S.C.No.1 of 2016 on the file of the learned Sessions Judge, Magalir Neethimandram, Salem.

2. The respondent police registered a case in Crime No.4 of 2015 against the appellant for the offence punishable under Section 363 of 'Indian Penal Code' [hereinafter called as 'IPC'] and Section 8 of 'The Protection of Children from Sexual Offences Act, 2012' [hereinafter 'POCSO Act' for the sake of convenience]. The respondent police, after investigation, laid a charge sheet before the learned Sessions Judge, Magalir Neethimandram, Salem. Since the offence is against a minor girl, the Sessions Judge, after completing the formalities, taken the case on file in Spl.S.C.No.1 of 2016 and framed charges against the appellant for the offences punishable under Section 363 IPC and Section 8 of the POCSO Act.

3. On completion of trial, the appellant was found guilty for the offence punishable under Section 363 IPC and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-; in default to undergo simple imprisonment for three months and for the offence punishable under Section 8 of the POCSO Act, sentenced to undergo Rigorous imprisonment for three years and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for six months. The sentences are ordered to run concurrently.

4. Aggrieved by the said judgment of conviction and sentence, the appellant/accused has filed the present appeal before this Court.

5. The learned counsel for appellant would submit that there is enmity between the appellant and victim girl's family, due to which a false case has been foisted against the appellant. P.W.13-Doctor, who examined the victim girl did not notice any injury on the victim girl. The victim girl has deposed that the appellant took her to the scene of occurrence and asked her to remove the dress, whereas, P.W.4-victim girl's grand mother has stated that the victim girl ran away from the scene of occurrence and there is material contradiction between the evidence of P.W.2 and P.W.4 and the place of occurrence is also in doubtful and the prosecution had failed to prove the case beyond all reasonable doubt. P.W.1-victim girl's mother and P.W.3-victim girl's father were not in the village, whereas P.W.4-victim girl's grand mother has stated that she called P.W.3 through the phone of P.W.6, but P.W.6 has denied it and therefore, the information given to P.W.1 & P.W.3 is highly doubtful. The learned Sessions Judge failed to consider the material contradiction and the delay in filing the complaint and however, convicted the appellant on the ground of sympathy. There is no eye witness to the case and the Doctor evidence also did not support the case of prosecution. The learned Sessions Judge failed to consider that the prosecution had failed to prove the case beyond reasonable doubt and only on the ground of sympathy, convicted the appellant, which warrants interference by this Court.

6. The learned Government Advocate (Crl. Side) would submit that P.W.2 is the victim girl, who was aged about 7 years at the time of occurrence. P.W.2-victim girl deposed that on 21.10.2015 at about 3.00 p.m. when she went to attend nature's call, the appellant took her to the scene of occurrence, asked her to remove the dress and sexually assaulted her, at that time, she raised alarm and ran away from the scene of occurrence and explained the same to P.W.4-her grand mother. P.W.1- Victim girl's mother and P.W.3-Victim girl's father went to Bangalore for their routine work and the victim girl was under the care and custody of P.W.4. Thereafter, P.W.4 gave information over phone to P.W.1 and P.W3. Later, P.W.1 gave a complaint before the respondent police and the victim girl was produced before the learned Magistrate for recording the statement under Section 164 Cr.P.C and the statement recorded by the learned Magistrate also revealed th