The prosecution's failure to establish foundational facts undermines the application of statutory presumptions of guilt in sexual assault cases under the POCSO Act.

JUDGMENT :

N. MALA, J.

1. The above Criminal Appeal is preferred by the appellant / accused against the judgment of conviction and sentence dated 22.09.2023, made in Spl.SC.No.35/2022, by the learned Sessions Judge, Principal Special Court for Exclusive Trial of Cases under POCSO Act , Madurai, convicting and sentencing the appellant/accused for the offences u/s.342 and 376-AB of IPC and u nder Section 5[m] read with Section 6 of POCSO Act.

2. The factual scenario as unfolded during the course of trial is as follows:-

(a) The case of the prosecution in brief is as follows:-

On 26.10.2021, the victim girl who was studying 1st standard, was left by her mother [PW1] in the house of her elder sister Pandiselvi [PW3] , at Pondhukampatti, since she had to attend to her son who was admitted in the Government Hospital, at Madurai. After returning home in the evening from the hospital, the victim girl complained to her mother of pain in her private part and thinking that it was due to over heat, PW1 applied oil. On 03.11.2021, when the mother of the victim girl was about to leave her again in her elder sister's house at Pondhukampatti, the victim girl refused to accompany her and when enquired about the reason for refusal, the victim girl stated that the moustached Periyasamy Thatha who was the neighbour of PW3 - Pandiselvi, victim's aunt, took her into his house, made her sit on his lap removed her underwear and inserted his finger in her private part, causing immense pain to her and therefore, she hit his hand and ran away. The victim's mother / PW1, the defacto complainant, thereafter lodged a complaint on 04.11.2021, for the offences under Sections 5[m] read with 6 of POCSO Act , before the respondent police.

(b) Based on the complaint under Ex.P1 of PW [mother of victim], the FIR came to be registered under Ex.P.11 in Crime No.272/2021, on 04.11.2021, by PW12-Sub Inspector of Police. PW.13-Mrs.Uma Devi, Inspector of Police, took up the investigation and after examination of witnesses, arrested the appellant/accused. On completion of other formalities like recording the 164[5] Cr.P.C., statements, and the statement of the victim girl [PW2]. PW13 filed the Final Report /Alteration Report under Ex.P15, on 04.02.2022, for the offences u/s.342 of IPC and under Sections 3[b], 5[m] and 6 of POCSO Act .

(c) The Final Report/Alteration Report was taken on file by the Trial Court on 23.02.2022, in Spl.SC.No.35/2022. On 18.10.2022, the charges were framed against the appellant/accused for the offences u/s.3[b] read with 4[1] of POCSO Act and u/s.342 of IPC . The appellant/accused denied the charges and pleaded not guilty and thereafter, on examination of the prosecution witnesses on 18.08.2023, charges were altered to, for the offences u/s.5[m] read with 6 of and u/s.342 and 376-AB of . The appellant/accsued pleaded not guilty.

3. The prosecution in order to bring home the guilt of the appellant/accused, examined PW1 to PW13 and filed Exs.P1 to P15.

4. The Trial Court, on completion of trial, found the appellant/accused guilty of the aforesaid offences and convicted and sentenced him as follows:-

5. The Trial Court, considering the mental trauma undergone by the victim girl, who was aged only 5 years and 9 months at the time of the offence, awarded a compensation of Rs.6 lakhs to her as per Section 33[a] of the POCSO Act . The Trial Court further directed that the compensation amount shall be disbursed from the Tamil Nadu