The court affirmed that once foundational facts of sexual assault are established, the presumption of guilt under the POCSO Act applies, shifting the burden to the accused to prove otherwise.

JUDGMENT :

M. JOTHIRAMAN, J.

1. This criminal appeal has been filed by the appellant/sole accused challenging the judgment of conviction and sentence passed by the learned Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Erode in Special S.C.No.10 of 2018 dated 25.10.2019, in and by which the appellant was convicted under Section 5 (n) r/w. 6 of Protection of Children from Sexual Offences Act, 2012 [In short “POCSO Act”] and sentenced to undergo Life imprisonment with a fine of Rs.5,000/- in default to undergo 3 months simple imprisonment.

2. Brief case of the prosecution is as follows:

2.1. The victim girl aged 13 years, who was examined as PW1, deposed that she is staying at Kaspapettai Mariyalaya and studying 7^th standard at Girls Higher Secondary School at Amman Kovil. She has one brother called Darnesh. Her mother Annakodi and her father are coolie workers. She attained puberty while she was studying 7^th Standard and 15 days thereafter, her father sent her mother and brother to her grandmother’s house. She informed that she is also interested to go to her grandmother’s house, but her father made her to stay back at home. On that afternoon, her father locked the door, came to her, intimidated to remove her clothes and inner wear and being afraid of her father, she removed. The accused committed penetrative sexual assault on the victim child and she cried of pain. The accused also intimated her not to say to anyone. So she did not inform the same to her mother.

2.2. When PW1 went to her school, her social teacher Krishnaveni asked her why she was tired and gaining courage, she informed about the same. When the said teacher enquired whether she informed her mother, PW1 said that her mother told that there was nothing to worry and everything will go correctly. The said social teacher informed the same to the Headmistress and Assistant Headmistress and they enquired and ascertained the truthfulness of the statement of PW1. They called “1098” child helpline and the volunteer of child helpline came to the school by evening and took her.

2.3. PW1 was made to stay at Mariyalaya Hostel and on the next day, she was taken to the police station, where PW1 narrated the incident to police, who recorded the same and got her signature. The police searched for PW1’s father and brought him to the police station. The complaint given by PW1 is Ex.P1. Section 164 statement given by PW1 is Ex.P2.

2.4. PW17- Amudha, the then Inspector of Police, All Women Police Station, Erode, on receipt of complaint from PW1 on 5.4.2017 at 8.30 p.m., registered an F.I.R. in Crime No.4/2017 for the offences under Sections 5 (n) and 6 of POCSO Act, 2012. F.I.R is Ex.P18. On the same day, when the father of the victim girl was examined, he admitted the commission of offence and he was arrested and thereafter, he was sent for judicial custody. PW17 went to the occurrence place and prepared Rough Sketch – Ex.P19 in the presence of witnesses Christudass and Subramani. PW17 examined PW4 and other witnesses separately and recorded their statements. She gave a requisition to record the statement of the victim child under Section 164 CrPC. She made the victim girl to be produced before Judicial Magistrate No.I, through Head Constable Mythili for recording 164 CrPC statement. She examined the Forensic Officer Mr.Venkateswaran and recorded his statement.

2.5. PW2 – Nisha is the Childline volunteer working in childline for the past 8 years. On 04.04.2017 at 3.30 p.m., she received an information from Sivagiri Amman Kovil Government Higher Secondary School that the victim child, who is studying 7^th standard in the school fou