JUDGMENT :

Aggrieved over the judgment dated 27.09.2018 passed by the learned Sessions Judge [Fast Track Mahila Court], Thiruvarur in Spl.S.C.No.21 of 2017, the appellant, who is the de facto complainant in the above referred case has filed this Criminal Appeal, praying to set aside the judgment of acquittal and for convicting the second respondent for the offence punishable under Section 10 of POCSO Act.

2. Originally, the respondent Police has registered a case against the second respondent/accused in Crime No.223 of 2017 for an offence punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter called as "POCSO Act"]. After investigation, they laid a charge sheet against the second respondent before the learned Sessions Judge [Fast Track Mahila Court], Thiruvarur. Since the offence charged against the second respondent was against woman, especially a minor child falls under the POCSO Act, the learned Sessions Judge, had taken the case on file in Spl.S.C.No.21 of 2017 and framed the charge against the second respondent.

3. After trial, on 27.09.2018, the learned Sessions Judge found not guilty of the second respondent for the offence under Section 10 of POCSO Act and thereby, acquitted him. Challenging the said judgment of acquittal passed by the learned Sessions Judge, the appellant/de facto complainant has filed the present appeal before this Court.

4. Heard the learned counsel appearing on either side and perused the materials available on record.

5. The learned counsel appearing for the appellant would submit that the learned trial Judge acquitted the appellant on the main ground that the medical evidence does not support the fact that the victim child was sexually assaulted and presumption under Section 29 of the POCSO Act cannot be invoked and there was a delay in lodging the complaint and there is no sufficient explanation for the said delay or not satisfactorily explained. The evidence of PW.1/mother of the victim child, is not trustworthy and therefore, the trial Court found that the prosecution failed to substantiate the case of the prosecution and prove the charge framed against the second respondent. The finding of the trial Court is completely erroneous and that, in cases of aggravated sexual assault on a child, the support of medical evidence is not always a necessity.

6. A plain reading of Section 7 of POCSO Act, would reveal that touching of the vagina, penis, anus or breast of the child with sexual intent would amount to a sexual assault. In such incidents, in most cases, there would be no medical evidence proving a sexual assault and therefore, medical evidence would not always reveal a sexual assault.

7. Further, the learned counsel submitted that the Hon'ble Supreme Court repeatedly held that the medical evidence is not always a necessity to prove cases of sexual assault. The absence of visible injuries or marks would not mean that the victim child was not subjected to sexual assault committed by the accused. Medical evidence is only for the purpose of corroboration, where required, and medical report by itself has to be weighed on the surrounding facts and circumstances. He has relied on the judgment of the Hon'ble Supreme Court in the case of STATE OF RAJASTHAN vs. N.K. reported in MANU/SC/0218/2000. Further, he relied on the judgment of the Hon'ble Supreme Court in the case of MADAN GOPAL KAKKAD vs. NAVAL DUBEY reported in (1992) 3 SCC 204. Therefore, the learned trial Judge has failed to consider the said decisions of the Hon'ble Supreme Court and erroneously held that the medical evidence was not supported the case of the prosecution.

8. Further, he would submit that in the instant case, the aggravated sexual assault took place on 17.09.2017 and the medical report of P.W.10 was issued on 21.09.2017. The medical examination was conducted after 5 days from the date of occurrence and hence the medical evidence would have vanished during the intervening period.

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