Prosecution must establish guilt beyond reasonable doubt; reliance on a single, inconsistent witness is insufficient for conviction in serious offenses.

JUDGMENT :

SUNDER MOHAN, J.

The Criminal Appeal challenges the judgment dated 27.03.2023 passed in Spl.S.C.No.37 of 2015 by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, convicting the appellant/A1 for the offence under Section 307 of the IPC and sentencing him to undergo seven years rigorous imprisonment and to pay a fine of Rs.25,000/-, in default to suffer six months simple imprisonment.

2. (i) The case of the prosecution is that the appellant, arrayed as A1 before the trial Court had illicit relationship with A2, (who has been acquitted by the trial Court); that the victim, aged about 3 years, is the daughter of A2 born out of the wedlock with PW2, the defacto complainant; that whenever A2 met the appellant, she took the minor child along with her; that on those occasions, the appellant committed penetrative sexual assault by applying his finger on the private part of the victim; that A2 had abetted the commission of the said offence; that the appellant had twisted the arms and legs of the victim child and had caused fracture to the legs of the victim girl, and thus, committed the aforesaid offences.

(ii) PW2, the father of the victim girl [PW1] had lodged a complaint [Ex.P24] which was registered by PW44 as an FIR [Ex.P26] in Crime No. 3 of 2015 for the offences under Sections 324 , 326 and 376 of the IPC and Section 5 (l) and 6 of the POCSO Act. Thereafter, PW44 conducted the investigation and filed the final report before the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, against the appellant for the offences under Section 307 of the and Section 5 (m)(l) r/w 6 of the POCSO Act and against A2 for the offence under Sections 5 (m)(l) r/w 6 and 16 r/w 17 of the POCSO Act.

(iii) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with. The case was taken as Spl.S.C.No.37 of 2015 on the file of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri. The trial Court framed charges against the appellant/A1 for the offences under Section 307 of the IPC and Section 5 (m)(l) r/w 6 of the POCSO Act and as against A2 for the offences under r/w 109 of the and Section 5 (m)(l) r/w 5 r/w 16 r/w 17 of the POCSO Act and when questioned, the accused pleaded 'not guilty'.

(iv) To prove its case, the prosecution had examined 45 witnesses as P.W.1 to P.W.45 and marked 34 exhibits as Exs.P1 to Ex.P34, besides 4 material objects, viz., M.O.1 to M.O.4. The Medical Report/Orthopaedic Outpatient Card for treating one Sivani at DNV Ortho Care, was marked through PW15-Doctor as Ex.X1 When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. The accused neither examined any witness nor marked any document on their side.

(v) On appreciation of oral and documentary evidence, the trial Court found that A2 was not guilty of any of the charges framed against her and found that the appellant/A1 was not guilty of the offences under Section 5 (m)(l) r/w 6 of the POCSO Act and found him guilty of the offence under Section 307 IPC and sentenced him as stated above. Hence, A1 has preferred the instant appeal challenging the said conviction and sentence.

3. Mr. N. Manoharan, the learned counsel for the appellant would submit that the trial Court having disbelieved the prosecution case in respect of the offence under Section 5 (l)(m) r/w 6 of the POCSO Act ought not to have convicted the appellant for the offence under Section 307 of the IPC ; that A2 was rightly found not guilty by the trial Court and the reasons for holding her not guilty would hold good for the appellant as well an