The court held that while the victim's testimony suggested sexual assault, inconsistencies regarding penetration necessitated a reduction in conviction to lesser charges under the POCSO Act.

JUDGMENT :

SUNDER MOHAN, J.

This Criminal Appeal has been filed by the sole accused, challenging the conviction and sentence imposed upon him for the offence under Section 366 of the IPC and Sections 6 r/w 5(m) of Protection of Children from Sexual Offences Act [in short,'the POCSO Act'], vide judgment dated 18.07.2018 in Spl.S.C.No.14 of 2016, on the file of the learned Sessions Judge, Fast Track Mahila Court, Vellore.

2(i) The gist of the allegation against the accused is that the accused and the victim girl aged about eight years, at the time of occurrence, were neighbours; that on 15.03.2015, at about 11.00 a.m., when the victim child was playing with her sisters and grandparents, the accused who is not a member of the Scheduled Caste, with an intention to commit rape on the victim girl, gagged her mouth, forcibly abducted her from the place, kept her in wrongful confinement and committed penetrative sexual assault and thus, the accused committed the offences under Sections 365 , 368 r/w 376(2)(i) of the IPC and Section 4 of the POCSO Act and Section 3(2)(v) of the SC/ST Act.

(ii) On the complaint given by the victim, who was examined as PW1 before the trial Court, an FIR [Ex.P16] was registered in Cr.No.1 of 2015 by the Inspector of Police, Thirupathur [PW13] for the offences under Section 3(i)(x)(xii) of the SC/ST Act, Sections 376 and 354 of the IPC and Sections 6 , 10 of the POCSO Act. Thereafter, the case was assigned to the Deputy Superintendent of Police, Vanniyambadi [PW14] by the Superintendent of Police, for investigation. On completion of investigation, PW14 filed the final report on 13.04.2015 against the accused for the offence under Sections 365 , 368 r/w 376(2)(i) of the and Section 4 of the POCSO Act and Section 3(2)(v) of the SC/ST Act, before the learned Judicial Magistrate No.III, Thirupathur.

(iii) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with, and was committed to the Court of Sessions i.e., Principal Sessions Judge, Vellore. The case was taken on file as Spl.S.C.No.37 of 2015 and was made over to the learned Sessions Judge, Fast Track Mahila Court Vellore, for trial, which was taken on file as Spl.S.C.No.14 of 2016. The trial Court framed charges against the accused for the offences under Sections 366 , 376(2)(i) of the IPC and Section 6 r/w 5(m) of the POCSO Act and Sections 3(1)(W)(i) and 3(2)(v) of the SC/ST Act and when questioned, the accused pleaded 'not guilty'.

(iv) To prove its case, the prosecution had examined 16 witnesses as P.W.1 to P.W.16 and marked 24 exhibits as Exs.P1 to Ex.P24, besides 6 material objects as M.O.1 to M.O.6. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The accused neither examined any witness nor marked any document on his side.

(v) On appreciation of oral and documentary evidence, the trial Court acquitted the appellant/accused of the said charges under Sections 3(1)(W) (i) and 3(2)(v) of the SC/ST Act and found him guilty of the offences under Sections 366 , 376(2)(i) of the IPC and Section 6 r/w 5(m) of the POCSO Act and accordingly, convicted and sentenced him as follows: