Conviction under Section 10 of POCSO Act modified to Section 18 due to insufficient evidence, with an additional fine imposed as compensation for the victim.

JUDGMENT :

M.Nirmal Kumar, J.

The appellant herein is the accused in Special S.C.No.118 of 2019, who was convicted of the offence under Section 10 of POCSO Act and sentenced to undergo 5 years of Rigorous Imprisonment along with a fine of Rs.40,000/-, in default of payment of the fine, he shall undergo three months Simple Imprisonment and for the offence under Section 506(i) IPC, one year Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default, three months Simple Imprisonment. Against which, the present appeal is filed.

2.The case of the prosecution is that the respondent police received a complaint from PW.1, the mother of the victim girl and registered a case in Crime No.06 of 2019 on 28.01.2019 for offences under Section 4 of POCSO Act and Section 506(i) of IPC.

3.After registering the case, the statement of the victim (PW.2), the victim's mother (PW.1) and the other witnesses recorded, observation Mahazar and rough sketch drawn in the presence of the witnesses, later the accused arrested, in this case the victim was produced before the Magistrate, statement under Section 164 Cr.P.C., recorded on 02.02.2019. After conclusion of investigation, charge sheet filed. The trial Court framed charges for offences under Section 8 of POCSO Act and Section 506(i) IPC.

4.During the trial, PW.1 to PW.8 examined and six documents marked Ex.P1 to Ex.P6. On conclusion of the trial, the trial Court convicted the appellant as stated above.

5.The contention of the learned counsel for the appellant is that the appellant is an Electrician. He had a dispute with the defacto complainant regarding the electrical work done and for the payments, due to which, he has been falsely implicated.

6.The contention of the appellant is that the victim girl, along with two of her friends, one of whom appellant's brother's daughter and a relative of the victim went to collect some fruits near the graveyard. In her statement under Section 164 Cr.P.C., [Ex.P3], she state that her two friends, who accompanied her saw the appellant. The appellant attempted to cover the mouth of the victim with a towel and attempted to hug and push her down. The victim pushed the appellant and ran for safety. Two of her friends who were there at the time of the alleged incident not examined as witness.

7.The complaint was filed with a delay of 33.00 hours. The reason for the delay given is that the defacto complainant's husband namely Lourdusamy, had been to Chennai and PW.1 was waiting for his return. However, Lourdusamy neither accompanied the defacto complainant to the police station to lodge the complaint nor he is a witness in this case.

8.The entire case revolves around the victim's statement, she improves her statement at each stage as tutored by her mother, the other witness PW.3, the Chairman of Pastor Committee of the Church and the victim's father is a pastor. PW.4 the brother of the victim and PW.7, a known person. The evidence of these witnesses are contradictory to each other. The appellant as Electrician carried out a work in the house of PW.1 and there is a dispute. The defacto complainant took advantage of the victim girl's age gave a false complaint.

9.PW.3, Pastor Committee Chairman of the church admit that he neither accompanied the victim nor the defacto complainant to the police station and he was informed about the incident only after the complaint was lodged. The victim's brother PW.4 admit that he works in Chennai and he was informed about the incident by PW.1. Likewise PW.7, the Village Head admit that he has no direct knowledge of the occurrence and was informed by PW.1, hence they are in the nature of hearsay

10.PW.5 and PW.6, witnesses to the Observation Mahazar and the rough sketch, admitted that it was around 7.00 p.m., on 28.01.2019, when the observation mahazar was prepared and there was no light available near the scene of occurrence.

11.PW.8, the Investigation Officer admit the delay in lodging the complaint and confirms victim's father, Lourdusam