The main legal point established is that in cases of sexual assault involving mentally challenged victims, the nature of the assault and the mental condition of the victim should be considered in determining the appropriate section of the POCSO Act for conviction and sentencing.

JUDGMENT

(Prayer: Appeal filed under Section 374(2) of the Code of Criminal Procedure,1973, against the judgment of conviction and sentence dated 05.10.2016 by the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, Ariyalur District, in Spl.S.C.No.15 of 2016.)

1. This Criminal Appeal is filed by the sole accused in Spl.S.C.No.15 of 2016 on the file of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, Ariyalur District, in and by which, the appellant/accused was convicted for an offence punishable under Section 6 of the Protection of Children from Sexual Assault Act, 2012 (POCSO Act) and was sentenced to undergo rigorous imprisonment for 10 (Ten) years and to pay a fine of Rs.1,000/- (Rupees One Thousand only) and in default of payment of fine, to undergo simple imprisonment for 6 (six) months.

2. P.W.1 is the mother of the victim child aged about 10 years. The child is also a mentally retarded and she cannot speak even though she can hear. On 01.06.2016, at about 10.00 a.m., the victim child was playing at the rear side of the house of one Mathiazhagan which was unoccupied. When P.W.1 was in the opposite house washing clothes suddenly heard the child crying and wailing and immediately, when she rushed inside the said house of Mathiazhagan, she found the appellant had removed the clothes of the child and was lying on the top of the child. On seeing P.W.1, the appellant stood up and ran way and P.W.2 gave him a chase and followed him upto his house and there was a quarrel and he hit P.W.2 is the allegation.

3. After registering the case in Crime No.144 of 2016 for offence under Sections 3, 4, 5(k) and 5 (m) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act,), P.W.18 took up the case for investigation and laid a final report proposing the appellant/accused as guilty for the offence under Sections 3 & 4, 5 (k) (m) of POCSO Act r/w 6 of the POCSO Act. On considering the materials on record, the trial court framed a single charge that on 01.06.2016 at about 10.00 a.m. the appellant/accused had made the victim child to lay down on the floor and committed penetrative sexual assault and hence, he had committed an offence punishable under Section 6 of the POCSO Act. Upon questioning, the appellant/accused denied the charge and stood trial.

4. The prosecution in order to prove the charge, examined the mother of the victim as P.W.1 and the father of the victim as P.W.2 and the other witnesses being P.Ws.3 to 8 and marked Ex.Ex.P.1 to P.11. Upon questioning about the material evidence and the incriminating circumstances on record, the appellant/accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence and therefore, the trial court proceeded to hear the submissions of the learned Special Public Prosecutor appearing on behalf of the prosecuting agency and the learned counsel appearing on behalf of the defence and found the appellant/accused guilty of the charge and accordingly, punished him under Section 6 of the POCSO Act as stated supra.

5. Heard the learned counsel appearing for the appellant/accused and the learned Government Advocate (Criminal Side) appearing on behalf of the respondent/State and perused the material records of this case.

6. The learned counsel appearing for the appellant/accused considering the fact that the appellant/accused is confined in prison for more than six years and one month from date of filing of the FIR, i.e., from 01.06.2016 onwards, would straightaway make his submissions on the provision for which the appellant/accused can be convicted. He would submit that this is a case where the victim child was not examined by the prosecution. He would further submit that even the evidence of P.W.1 the mother of the child, is not to the effect that the child was totally mentally retarded and the child is in a position to understand things and, therefore, non examination of the child in this case is a serious omission on behalf of the prosecution