JUDGMENT :

P.N. PRAKASH, J.

This criminal appeal is directed against the judgment and order of conviction and sentence dated 23.06.2017 passed by the Additional Sessions Court, Magalir Neethi Mandram (Fast Track Mahila Court), Erode, in Spl.S.C.No.10 of 2017.

2. This being a case under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”), we deem it necessary not to refer to the name of the victim and instead, refer to her as “X”.

3. The prosecution case is as follows:

3.1. “X” is the daughter of Shanthi-Ravi couple. Shanthi is said to be mentally retarded. The date of birth of “X” as per her school records is 05.06.2003 and accordingly, she was 14 years old during the alleged occurrence. “X” was living with her grandmother Backiyalakshmi in Periyapuliyur village and was studying in 8th standard in the Government Higher Secondary School in Periyapuliyur.

3.2. In September 2016, after the quarterly examination, “X” had holidays and so, her aunt Meenakshi (PW-1) took her to her village, Kaalingarayanpalayam, which is about 10 kms. from Periyapuliyur. After reaching the house of Meenakshi (PW-1), “X” complained of body pain and when Meenakshi (PW-1) enquired her, she stated that she wanted to confide in her certain things and said that she was sexually abused on various occasions by four persons, of whom, she named three persons, Sembulingam, Murugesan @ Murugan and Sivakumar @ Ramesh of Periyapuliyur village. As regards the fourth person, she stated that he is from Kaalingarayanpalayam and that she can identify him. Immediately, Meenakshi (PW-1) brought these revelations by “X” to the notice of the elders in the house and on 25.09.2016, Meenakshi (PW-1) gave a written complaint vide Ex.P1 narrating what “X” had told her.

3.3. On the said complaint, Nagamani (PW-21), Sub-Inspector of Police, All Women Police Station, Gobichettipalayam, registered a case in Crime No.6 of 2016 on 25.09.2016 for the offences under Sections 366 IPC, 5 r/w 6 of the POCSO Act and 506(II) IPC against Sembulingam, Murugesan @ Murugan, Sivakumar @ Ramesh, all residents of Periyapuliyur and one, not named, but an identifiable person being a resident of Kaalingarayanpalayam and prepared the printed First Information Report (Ex.P24), which reached the jurisdictional Magistrate on the same day at 10.30 p.m.

3.4. Investigation of the case was taken over by Gayathri (PW-22), Inspector of Police, who arrested Sembulingam, Murugesan @ Murugan, Sivakumar @ Ramesh and Vijayakumar (appellant) on 25.09.2016 at 15.15 hours in Gobichettipalayam Bus Stand.

3.5. All the arrested accused were medically examined by Dr.Sivasankar (PW-3), Assistant Medical Officer, Government Hospital, Gobichettipalayam, on 25.09.2016 at 07.15 p.m. and certificates were issued, of which we are concerned with the one relating to the appellant herein, viz., Ex.P5, wherein the following final opinion has been given:

‘FINAL OPINION:-

Mr.Vijaya Kumar 34/M

Based on clinical examination, there is nothing to suggest that the male examined is not capable of performing sexual act.’

3.6. The appellant was further examined, his semen collected and it was sent to Tamil Nadu Forensic Sciences Department for examination. The final opinion (Ex.P8) given by Dr.S.Vijayakumar (PW-4) reads as under:

‘FINAL OPINION:-

The result for grouping test is inconclusive. There is no evidence to suggest he is impotent.’

3.7. Dr.Kalyani (PW-5), Senior Assistant Medical Officer, examined “X” on 26.09.2016 for determining her age and after conducting necessary radiological tests, she gave a report (Ex.P9) opining that “X” has completed 14 years of age and is less than 15 years of age.

3.8. Dr.Kalapriya (PW-6) medically examined “X” on 25.09.2016 and took her vaginal smears, which were sent to the Tamil Nadu Forensic Sciences Department for chemical examination. The chemical examination