Conviction under POCSO Act requires credible evidence; inconsistencies and potential tutoring in the victim's testimony can render a conviction unsafe.

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 5(l) r/w 6 of the POCSO Act vide judgment dated 28.12.2022 in Spl.SC.No.120 of 2019 on the file of the learned Sessions Judge, Special Court for POCSO Act Cases, Tiruvannamalai.

2 (i) The gist of the prosecution case is that on 09.04.2016 at about 5.00 a.m., when the victim girl aged 17 years went to pluck flowers in the neighbouring land, the appellant lured the victim girl pursuant to a love affair and on the promise of marriage, kidnapped the victim girl; that between 09.04.2016 and 11.04.2016, the appellant had tied 'thalli'

and made the victim believe that she is legally wedded to the appellant and committed penetrative sexual assault; and thus, committed the offences under Sections 366(A), 376 of the IPC and Sections 3, 4 and 6 of POCSO Act, 2012 and Section 4 of Prohibition of Child Marriage Act.

(ii) On the complaint [Ex.P1] given by PW1 on 09.04.2016 stating that the victim had called him and informed him that the appellant had taken her, an FIR [Ex.P9] in Cr.No.70 of 2016 was registered by PW11, the Inspector of Police, for the offence under Section 366(A) of the IPC.

(iii) The investigation was conducted by PW11 initially and thereafter, he handed over the investigation to PW13, who filed the final report on 01.08.2018 against the appellant for the offences under Sections 366(A) and 376 of the IPC and Sections 3, 4 and 6 of the POCSO Act, 2012, before the Mahila Fast Track Court, Tiruvannamalai, which was taken on file as Spl.S.C.No.93 of 2018. During the course of the investigation, the victim was subjected to medical examination and the learned Judicial Magistrate, Cheyyar, recorded the Section 164 Cr.P.C. statement of the victim girl.

(iv) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with and charges were framed against the accused for the offences under Section 9 of the Prohibition of Child Marriage Act, Section 5(l) r/w 6 of the POCSO Act, 2012 and Section 366 of the IPC. Thereafter, the case was transferred to the Special Court for Exclusive Trial of Cases under POCSO Act, Tiruvannamalai and was taken on file as Spl.S.C.No.120 of 2019. During trial, when questioned, the accused pleaded 'not guilty'.

(v) To prove its case, the prosecution had examined 13 witnesses as P.W.1 to P.W.13 and marked 11 exhibits as Ex.P1 to Ex.P11. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. On the side of the defence, though, none were examined, Ex.D1 to D7 were marked.

(vi) The trial Court found that the prosecution has not established the offences under Section 9 of the Prohibition of Child Marriage Act and Section 366 of the IPC and acquitted the appellant of the said offences. However, the trial Court found the appellant guilty of the offence under Section 5(l) r/w 6 of the POCSO Act, 2012 and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one year. Aggrieved by the said conviction and sentence, the accused had preferred the instant appeal.

3. The learned counsel for the appellant would submit that the allegations are false; that the victim cannot be believed as she had made contrary statements at various stages; that the evidence adduced on the side of the prosecution at best would suggest that it is a case of love affair; that the victim was aged 17 years and 5 months at the time