Prosecution failed to prove victim's age and that the assaults were not consensual, leading to the overturning of the conviction.

JUDGMENT :

SUNDER MOHAN, J.

The Criminal Appeal challenges the Judgement dated 16.06.2022 passed in Spl.S.C.No.99 of 2020 by the learned Sessions Judge, Special Court for POCSO Act Cases, Salem, convicting and sentencing the appellant/accused as follows :

2. It is the case of the prosecution that the victim and the appellant's sister were known to each other; that hence, the victim became acquainted with the appellant; that the appellant expressed his love for the victim; that in the month of July in 2019, when there was no one at home, the appellant called the victim to his house and committed penetrative sexual assault on the victim; that thereafter, during the same month after the “Aadi” festival, he committed penetrative sexual assault; and that on 11.09.2019 at about 12 noon, the appellant had committed penetrative sexual assault on the victim for the third time and that one Tamilarasan, a juvenile also committed penetrative sexual assault on the victim thereafter.

(b) On the complaint [Ex.P1] given by PW1, the mother of the victim PW11, the Sub-Inspector of Police registered an FIR [Ex.P19] in Crime No.5 of 2019 for the offences under Section 363 of the IPC and 5(l) r/w 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 against the appellant and the said juvenile-Tamilarasan.

(c) Thereafter, the investigation was conducted by PW12, the Inspector of Police, who prepared the observation mahazar [Ex.P8] and rough sketch [Ex.P20], arrested the accused and obtained confession statements from the appellant and the juvenile accused-Tamilarasan. PW12 thereafter made arrangements to record the Section 164(5) Cr.P.C. statement of the victim and subjected the victim to medical examination. The blood samples of the appellant and that of the juvenile accused-Tamilarasan, were also taken and sent for comparison with the foetus of the victim's child. After obtaining the DNA report, she filed the final report on 14.08.2020 against the appellant/A1 for the offences under Sections 363, 365 and 506(ii) of the IPC and Sections 5 (l) r/w 5(m), 6, 5(j)(ii) r/w 6, 7 r/w 8 of the POCSO Act, 2012 before the learned Sessions Judge, Special Court for POCSO Act Cases, Salem. A separate charge sheet was filed against the juvenile accused-Tamilarasan before the Juvenile Justice Board, Salem on the same day and the same was taken on file vide J.C.No.95 of 2020 dated 20.10.2020.

(d) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with and on 17.12.2020, the case was taken on file as Spl.S.C.No.99 of 2020 by the learned Special Judge, Special Court for POCSO Act Cases, Salem, for trial. The Trial Court had framed charges for the offences under Sections 7 r/w 8, 5(l) r/w 6 and 5(j)(ii) r/w 6 of the POCSO Act, 2012 and when questioned, the accused pleaded 'not guilty'.

(e) To prove its case, the prosecution had examined 12 witnesses as P.W.1 to P.W.12 and marked 27 documents as Ex.P1 to Ex.P27, besides 1 material object as M.O.1. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. T