JUDGMENT :

This Criminal Appeal has been filed against the Judgment dated 20.08.2019 made in Spl.S.C.No.23 of 2018 on the file of the Sessions Judge (Fast Track Mahila Court), Krishnagiri.

2. Initially, the respondent police registered a case in Crime No.1 of 2018 against the appellant for offence punishable under Section 366(A) of 'Indian Penal Code' [hereinafter 'IPC' for the sake of convenience] and Section 3 r/w Section 4 of 'The Protection of Children from Sexual Offences Act, 2012' [hereinafter 'POCSO Act' for the sake of convenience] and thereafter, altered into Section 363, 366(A) IPC and Section 5(l) r/w 6 of the POCSO Act and a charge sheet was laid before the learned Sessions Judge, Magalir Neethimandram, Krishnaigiri, since the offence is against a child defined under Section 2(1)(d) of POCSO Act. The Sessions Judge, after completing the formalities, taken the case on file in Spl.S.C.No.23 of 2018 and framed charges against the appellant for the offence under Sections 363, 366(A) IPC and Section 5(l) r/w 6 of the POCSO Act.

3. On completion of trial, the appellant is found guilty for the offence under Section 366 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-; in default to undergo simple imprisonment for six months and for the offence under Section 5(l) r/w 6 of the POCSO Act, the appellant was sentenced to undergo Rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one year. The Trial Court directed the sentences 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 the complaint was lodged on 16.01.2018 i.e., after 6 days of the victim girl found missing, whereas the complaint on record before the Court reveals that the girl was missing only from 13.01.2018 and the complaint was lodged on the third day of alleged missing. He would submit that the father of the victim girl was examined as P.W.1 and he has stated in his evidence that he went to the police station only after the accused was arrested along with the victim girl, whereas, the Investigating Officer has stated that he arrested the accused at the Hosur Bus stop, after he was identified by P.W.1-Perumal/father of the victim girl, which falsifies the case of prosecution. He would further submit that the learned Sessions Judge failed to appreciate the case of the prosecution that P.W.1 has stated that the accused and the victim girl were seen together at Mamudimanapalli by P.W.5. and he informed P.W.1 about the same, which is also a total falsehood for the reason that P.W.5 has stated that he has not informed anything to P.W.1 and he did not see the accused and P.W.2 at the above place and therefore, the learned Sessions Judge wrongly convicted the appellant for the offence punishable under Section 6 of the POCSO Act by stating that the medical evidence proved the case of the prosecution that the victim girl was subjected to forcible penetrative sexual assault, while the evidence of Doctor, copy of medical report and AR copy produced before the Court show that there is no iota of medical evidence pointing out any forcible penetration or even penetration with consent during the alleged dates i.e., 13.01.2018, 14.01.2018 and 15.01.2018. The learned Sessions Judge wrongly convicted the appellant without considering the fact that the period between 13.01.2018 and 15.01.2018 was the menstrual period of the victim girl and only a minimal menstrual bleeding was found in the examination, which proves that there was no probability to hold that she was subjected to forcible penetrative sexual assault during that period. He further submitted that the learned Sessions Judge wrongly convicted the appellant for the offence punishable under Section 366 IPC since there was no evidence to substantiate the prosecu