The prosecution must prove the age of the victim as less than eighteen years to establish an offence under the POCSO Act. If the age is not proven, the act may be considered an offence under Section 376 of the Indian Penal Code.

JUDGMENT

(Prayer in Crl.A.No.428 of 2019: Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure to set aside the conviction and sentence imposed on the appellant through the judgment passed in Spl.S.C.No.23 of 2015 by the learned Sessions Judge, Mahila Court, Salem dated 29.06.2018 by allowing the appeal.)

The appellant, being the sole accused in Spl.S.C.No.23 of 2015 on the file of the Mahalir Neethimandram, Salem, has filed an appeal aggrieved by the judgment dated 29.06.2018, in and by which, he is found to be guilty for the offence under Section 6 r/w 5(k) and 5(j)(ii) of the POCSO Act and under Section 506(i) of the Indian Penal Code.

2. On 19.12.2013, P.W.1, the victim, appeared before P.W.12, the Sub-Inspector of Police, All Women Police Station, Kondalampatti and lodged a complaint to the effect that, she is aged about nineteen years and the appellant who is her neighbor, is aged about thirty years and she got acquainted with the appellant since she used to go to his house for watching television and about three months prior to the complaint, at about 10.00 PM in the night, the appellant called the victim for a physical relationship, when she refused, he forcibly pushed her down on the mud and since she attempted to shout, stuffed her mouth with a piece of cloth and had intercourse and since her periods stopped for the passed three months, when she was going to the medical shop to get some medicines to abort the foetus, the appellant-s sister confronted her and upon which, she confessed the entire issue to her father and thereafter, the complaint is being lodged.

3. On the strength of the said complaint, P.W.12 registered a case in Cr.No.12 of 2013 for the offence under Section 376 and 506 (i) of the Indian Penal Code. Thereafter, P.W.13 and P.W.14 took up the case for investigation and during the investigation, since P.W.8, the school Headmaster, has given a certificate in Exhibit P.6, stating the date of birth of the child as 19.12.1996 and as per the same, since the girl was less than eighteen years of age at the time of occurence, the offence was altered into one under POCSO Act and laid the final report, proposing the appellant guilty for the offences.

4. Based on the materials on record, the Special Court framed charges under Sections 363, 366 and 506 (i) of the Indian Penal Code and under Section 6 r/w 5(k) and 5(j) (ii) of the POCSO Act. Upon being questioned, the accused denied the charges and stood trial. In order to bring home the charges, the prosecution examined P.W.1 to P.W.14 and marked Exhibit P.1 to Exhibit P.25 and also produced M.O.1.

5. By way of cross examination on behalf of the defense, Exhibit D.1 to Exhibit D.3 were marked. Upon questioning about the material evidence and the incriminating circumstances on record under Section 313 of the Code of Criminal Procedure, the appellant again denied the same as false. Thereafter, no evidence was let in on behalf of the defence. The Trial Court thereafter, proceeded to hear learned Special Public Prosecutor on behalf of the prosecution and learned counsel for the accused. By the judgment dated 29.06.2018, while acquitting the accused in respect of other offences, found the accused guilty for offence under Section 506(i) of the Indian Penal Code and imposed punishment of rigorous imprisonment for a period of two years and fine of Rs.2,000/- and in failing of payment of fine, to undergo three months simple imprisonment and found the appellant guilty for the offence punishable under Section 6 of the POCSO Act and imposed rigorous imprisonment for a period of ten years and a fine of Rs.50,000/- and in default of payment of fine, simple imprisonment for a period of six months. Aggrieved by the same, the present appeal is laid before this Court.

6. Heard Mr.S.Jevakumar, learned counsel for the appellant and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) appearing on behalf of the prosecution.

7. Learned counsel for the appellant,