JUDGMENT :

R. Hemalatha, J.

(Prayer: Criminal Appeal filed under Section 374 (2) of Criminal Procedure Code, 1973 to set aside the Judgment dated 16.11.2017 of the Mahila Court, Coimbatore, passed in S.C.C.No.15/2016, convicting and sentencing the appellant under Section 5 (l), (m), (n) and Section 6 of POCSO Act, 2012 to undergo imprisonment for life and pay a fine of Rs.5,000/- and in default, to undergo three months rigorous imprisonment.)

1. This criminal appeal is against the conviction and sentence passed by the Mahila Judge, Coimbatore. The appellant/accused is convicted by the Trial Court for the offences punishable under Section 5 (l), (m), (n) and Section 6 of Protection of Children from Sexual Offences (POCSO) Act, 2012 and sentenced to undergo life imprisonment and also to pay a fine of Rs.5,000/- and in default, to undergo rigorous imprisonment for a period of three months.

2. The case of the prosecution as could be discerned from the evidence is as follows:

The defacto complainant Nithya (PW1) is the wife of the appellant/accused Vishnubhaskar. The PW1 and the appellant were living separated for the last two years and Nithya (PW1) had left her girl child aged 3 years and 9 months with her parents living in Coimbatore, as she was employed in Bangalore. The victim child was unwell on 07.10.2015 and since PW1 was in Bangalore and could not make it, she had requested her husband (Accused) who was living in Coimbatore at Maniyakaranpalayam, Ganapathy, Coimbatore, to take the child to the hospital. The child was reportedly taken to Sri Ramakrishna Hospital and admitted for treatment and subsequently discharged on 08.10.2015. Further on 17.10.2015 and subsequent days the child was taken out by her father (Accused) at the behest of Nithya (PW1), during which time he committed penetrative sexual assault on his own child under the guise of checking her private part for any insect. The child had symptoms of restlessness, sleeplessness, frequent urination and itchy sensation in her private part and it was on 23.10.2015, that the child narrated her ordeal to Meenakshi (PW2) and to Shakunthala (PW4) who are the sister-in-law and mother of PW1 respectively. PW1 was informed immediately and she rushed to Coimbatore and took the child to the Sri Ramakrishna Hospital on 24.10.2015 at about 05.00 PM. Dr.Saranya Manickaraj (PW13) physically examined the child and her systemic examination report was marked as Ex.P14 in which it was mentioned as ‘hymen intact’ and no external injuries. Subsequently, the child line was informed by PW13 who in turn referred the child for psychological evaluation by “Vazikatti” a Non-Governmental Organization (NGO). PW1 also lodged a complaint (Ex.P1) with the Sub-Inspector of Police, All Women Police Station, Coimbatore and the same was registered as First Information Report (FIR) in Crime No.19/2015 by Tmt.Prema (PW14) Sub-Inspector of Police. Tmt.Rajeshwari (PW15) Inspector of Police referred the child for medical examination to the Government Hospital at Coimbatore on the same date. Dr.Sasikala (PW12) examined the child at about 10.15 PM on 24.10.2015 and found the hymen absent. She also found the vagina mucosa pinkish in colour and an abrasion of 0.5 cm on the right hand side of the private part of the child. A copy of Accident Register dated 24.10.2015 was marked as Ex.P13. Tmt.Rajeshwari (PW15) also recorded the statement of PW1 and PW4 on 24.10.2015 and on the next day i.e. on 25.10.2015, recorded the statements of PW2, PW5 & PW6 under Section 162 of the Code of Criminal Procedure. Thereafter, she arrested the accused, father of the victim child and prepared an observation Mahazar (Ex.P16) and also recorded the confession statement of the accused in the presence of Mohan Daniel (PW7) and Ramkumar (PW9). Tmt.Priyamalini (PW16) the Inspector of Police, All Women Police Station, Coimbatore who resumed duty after leave, took up the investigation and examined the child again on 26.10.2015. She also examine