The main legal point established in the judgment is the determination of the nature of the sexual assault, modifying the conviction from penetrative sexual assault to aggravated sexual assault under the POCSO Act.

JUDGMENT :

M.NIRMAL KUMAR, J.

PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C., to set aside the conviction and sentence passed by the learned Principal Sessions Judge (Mahila Court), Tirunelveli, Tirunelveli District, in Spl.S.C.No.21 of 2016, dated 03.09.2019 and acquit the appellant/sole accused of the charge.

This appeal has been filed by the appellant/sole accused as against the conviction and sentence, dated 03.09.2019, made in S.C.No.21 of 2016, by the learned Principal Sessions Judge (Mahila Court), Tirunelveli, Tirunelveli District.

2. The appellant / sole accused stood convicted and sentenced to undergo imprisonment as detailed hereunder:-

The Trial Court has acquitted the appellant/accused for the commission of the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Trial Court further ordered the sentences to run concurrently and also granted set-off under Section 428 Cr.P.C. The accused/appellant challenging the legality of the conviction and sentence awarded by the Trial Court vide impugned judgment, has filed this Criminal Appeal.

3. The facts leading to the filing of this appeal, necessary for the disposal of this criminal appeal, are as follows:-

3.1. P.W.3, who is a mentally retarded child, is the victim girl. P.W.1, who is the maternal grandmother of the victim girl, deposed that on 27.01.2013 at about 09.00 a.m., when the victim girl was standing near her paternal grandmother's house, the appellant/accused took the victim girl in his auto to a forest area, sexually assaulted her. After knowing about the same from one Chandra [P.W.2], a neighbour, P.W.1 along with P.W.7, P.W.10 and others went in search, rescued the victim, caught the appellant/accused, proceeded to the Police Station, Cheranmahadevi, and lodged a complaint under Ex.P.1.

3.2. P.W.2 a neighbour of P.W.1 deposed about the abduction of the victim girl by the appellant/accused in his Auto.

3.3. P.W.4 younger sister of the victim girl deposed that the victim girl studied upto 6th Standard and due to her mental illness, the victim girl discontinued her studies.

3.4. P.W.5 neighbour of P.W.1 turned hostile.

3.5. P.W.6 son of P.W.2 turned hostile.

3.6. P.W.7 a neighbour of P.W.1, is the witness, attested Ex.P.1 complaint.

3.7. P.W.8, Radiologist, examined the victim girl and gave Ex.P.3 X-ray report stating that the victim girl was under the age of 16 to 18 years on the date of examination and X-rays marked as M.O.2 Series.

3.8. P.W.9 father of the victim girl, who deposed that the victim girl is his daughter and she studied upto 4th Standard and due to her mental illness, she discontinued her studies. He came to know about the incident from one Raj [P.W.19] through Cellphone and immediately, he rushed to the Police Station.

3.9. P.W.10 and P.W.11, who are the nearby residents of P.W.1, turned hostile.

3.10. P.W.12, who is the neighbour of P.W.1, rescued victim girl and handed over the appellant/accused to the Police Station.

3.11. P.W.13 and P.W.14, who are the nearby residents of P.W.1, signed as witnesses to the confession statement of the appellant/accused [Ex.P.4] and Seizure Mahazar [Ex.P.5] in respect of the Auto [M.O.3].

3.12. P.W.15 - Dr.Arumugaselvi, the Assistant