The requirement for proving penetration in cases under the POCSO Act is critical, and lack of substantial medical evidence necessitates modification of charges.

JUDGMENT :

G.K. ILANTHIRAIYAN, J.

This appeal is directed as against the Judgment passed in Spl.S.C.No.14 of 2020, on the file of the learned Sessions Judge, Mahila Court, Pudukottai, dated 12.11.2021, thereby convicting the appellant for the offence punishable under Section 6 (1) of the Protection of Children from Sexual Offences Act, 2012 (in short hereinafter referred to as 'the POCSO Act') and sentencing him to undergo imprisonment for life and imposing a fine of Rs.35,000/-, in default, to undergo one year Simple Imprisonment and further convicting the appellant for the offence punishable under Section 341 IPC and sentencing him to undergo one month simple imprisonment.

2.The case of the prosecution was that the victim child was aged about 10 years, who is the daughter of the defacto complainant/ P.W.1. On 02.02.2020 morning at about 08.00 a.m., P.W.1's brother Manikandan was working in the fields and at that time, her elder daughter, who is the victim child aged about 10 years, younger daughter and her sister's daughter had gone to the fields to give to him water and the field was close to the house P.W.1at a walkable distance. While they were returning home, they had gone for nature calls in the fields of Chidhambaram, and at that time the accused had pulled the plait of the victim child with sexual intent and pushed her down and lifted her skirt and removed her panties and had bitten her vagina. Therefore, the victim sustained injury on her private part. On the complaint given by the mother of the victim child, who was examined as P.W.1, the respondent registered the FIR in Cr.No.3 of 2020 for the offences punishable under Section 341 IPC , 5(i), 5(m) r/w 6 of POCSO Act. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the trial Court in Spl.S.C.No.14 of 2020, on the file of the learned Sessions Judge, Mahila Court, Pudukottai.

3.On the side of the prosecution, in order to bring the charges to home, they had examined P.W.1 to P.W.13 and Exs.P1 to P15 were marked. On the side of the appellant, no one was examined and no document was produced before the Trial Court.

4.On perusal of the oral and documentary evidence, the Trial Court found the appellant guilty for the offence punishable under Section 341 IPC and Section 6 (1) of POCSO Act and sentenced him to undergo imprisonment for life and imposed a fine of Rs.35,000/-, in default, to undergo one-year Simple Imprisonment. Aggrieved by the said conviction and sentence, the present appeal has been filed.

5. The learned counsel for the appellant, though raised several grounds, restricted his arguments to the point that the conviction and sentence may be modified. Even assuming that the prosecution proved all the charges, it would attract only the offence under Sections 9 (i) and 9(m) of POCSO Act which are punishable under Section 10 of the POCSO Act.

6. Initially, the prosecution charged the appellant for the offence punishable under Section 341 IPC and the offences under Sections 5 (i) and 5(m) read with 6 of POCSO Act. The TrailCourt, found the appellant guilty for the offence punishable under and 6(l) of POCSO Act. There was no specific overt act to convict the appellant for the offence punishable under . Further, the medical evidence also did not support the case of the prosecution to attract the charges under Sections 5 (i) and 5(m) read with Section 6 of POCSO Act. The doctor, who treated the victim child, has categorically deposed that there is no injury found in the private part of the victim child and only simple lacerated injury is found. Th