The prosecution must prove foundational facts in POCSO cases based on a preponderance of probability. Proper investigation, including conducting a potency test on the accused, is essential. The police have a duty to find the real culprit in cases of sexual assault.

JUDGMENT

(Prayer: Criminal Appeal filed under Section 374 Cr.P.C., to call for the records pertaining to the judgment dated 14.12.2022, in Spl.S.C.No.6 of 2020, on the file of the Sessions Judge (Special Court of POCSO Act Cases), Virudhunagar District at Srivilliputhur and to set aside the same.)

1. The Criminal Appeal is directed against the judgment of conviction passed in Spl.S.C.No.6 of 2020 dated 14.12.2022 on the file of the Special Court for POCSO Act cases, Srivilliputhur.

2. The Inspector of Police, All Women Police Station, Rajapalayam, Virudhunagar District has laid the final report against the accused alleging the following facts: The accused is a fruit vendor, in a push cart near Thalavoipuram opticals. The defacto complainant is the mother of the victim girl. The victim girl, who has studied upto 5th std., is aged 13 years 13 days on the date of occurrence, her date of birth is 04.03.2005. The victim's brother was in the habit of receiving fruits for free from the accused. On 17.03.2018, when the brother and sister went to the push cart of the accused, he gave them fruits free of costs and informed that he would give more fruits if they come to his home on that night. The victim and her brother without informing their parents went to the house of the accused at about 09.00p.m.. On their entry, the accused locked his house from inside and gave mango juice laced with brandy, both drank the same and when they requested the accused to allow them to go to their home, the accused had beaten the victim girl on her thighs and right hand. Due to the intoxication boh had then slept off, the accused had thereafter removed the dress of the victim girl and committed penetrative sexual assault. When the victim girl woke up by 05.00a.m., the accused gave Rs.500/- and directed them not to disclose the occurrence and in case of disclosure, he threatened to kill them and their family members. Such incidents continued to happen thrice and the accused committed penetrative sexual assault, therefore, the accused has committed the offences punishable under Sections 366, 328 and 506(ii) I.P.C., and under Section 5(l) r/w 6 of POCSO Act.

3. After the receipt of the final report, the case was taken on file in Spl.S.C.No.6 of 2020, on the file of the Special Court for POCSO Act cases, Srivilliputhur. After appearance of the accused, copies of records were furnished to him under Section 207 Cr.P.C., on free of cost. The learned Sessions Judge, on perusal of records and on hearing both the sides, being satisfied that there existed a prima facie case against the accused, framed charges under Sections 366, 328 and 506(i) I.P.C., and under Section 5(l) r/w 6 of POCSO Act and the same were read over and explained to him and on being questioned, the accused denied the charges and pleaded not guilty.

4. The prosecution, in order to prove its case, had examined 14 witnesses as P.W.1 to P.W.14 and exhibited 24 documents as Ex.P.1 to Ex.P.24.

5. The case of the prosecution emerging from the evidence adduced on their side, in brief is as follows:

(a) P.W.2 is the victim girl. P.W.1 is the mother, P.W.5 is the father, P.W.3 is the brother and P.W.4 is the sister of the victim girl. They are all residing at Thalavoipuram. P.W.1 and P.W.5 had two daughtes and three sons. P.W.2 had studied upto 5th std. The accused is selling fruits in a push cart nearby Thalavoipuram opticals. Four years prior to her examination before the trial Court, she went to the accused shop along with her brother- P.W.3. The accused gave them fruits free of costs. He informed that he would give more fruits if they visit his house on that night. Accordingly, P.W.2 and P.W.3 went to the house of the accused. The accused gave juice by mixing some tablets. After taking the drink, both of them have become unconscious. Next day morning, when P.W.2 woke up, she found that her dresses were missing and she experienced pain all over her body and also found sticky fluid on