The conviction under the POCSO Act was overturned due to insufficient evidence and procedural flaws in the prosecution's case.

JUDGMENT :

N.Sathish Kumar, J.

1. This appeal arises against the judgment of learned Principal Special Judge for POCSO Act Cases, Salem, passed in Old No.Spl.S.C.No.60 of 2017 in New Spl.S.C.No.58 of 2019 dated 30.11.2021.

2.Brief Facts of the Prosecution case are as follows:

2.1. P.W.2 is the victim girl aged about 9 years at the time of occurrence, who is the daughter of P.W.1. The mother (P.W.1) of the victim girl is a divorced woman and had been residing with her 2^nd husband P.W.3 (Shankar). The accused is P.W.1's paternal uncle son. On 28.08.2017, the mother of P.W.1 informed over phone that the accused took away P.W.2 and the same has been seen by P.W.5 (Manikandan). Thereafter, villagers and others caught hold of the accused and Police came to the spot. P.W.1 was informed that the accused had committed oral sex with P.W.2. P.W.2 in her statement deposed that the accused, under the pretext of buying sweets, took her in his motor cycle to the place of occurrence and removed his underwear and inserted his penis in her mouth and on seeing P.W.5, the accused ran away and thereafter, the complaint (Ex.P1) was given. P.W.4 is the grand mother of the victim girl, who had heard about the occurrence. P.W.5, who was in intoxicated stage, noticed that a boy and girl were proceeding to the place of occurrence and P.W.5 found only the girl and he did not see any male member there and Police also came there later. P.W.6 also heard about the occurrence and had seen the accused on the same day. P.W.7 is the brother of P.W.1, who had witnessed the Observation Mahazar (Ex.P2) prepared by the Police. P.W.8 enquired P.W.2 and she also heard about the occurrence.

2.2. According to P.W.9, the accused was caught hold by villagers and Police were also present there. P.W.10/Headmistress issued certificate Ex.P4 to prove the age of the victim girl. P.W.11/Headmaster issued Ex.P5 to show the age of the accused. P.W.12/Medical Officer examined the accused as per Ex.P6 and also examined radiology and issued certificates under Ex.P7 & Ex.P8. P.W.13 examined the victim girl on 29.08.2017 at 1.25am and issued Ex.Ps.10 to 12 and she had stated that she did not find any external injury and her statement has been recorded as stated by the child and her mother. Ex.P13 is the report issued by the Forensic Sciences Department, based on which, Ex.P14 has been issued by the Doctor/P.W.13. P.W.14/Sub-Inspector of Police received the complaint (Ex.P1) from P.W.1 and registered the same against the accused for offences under Section 8 r/w 7 of POCSO Act , 2012 and Section 506 (i) IPC under Ex.P15. P.W.15/Inspector of Police took up the investigation, went to the scene of occurrence on 28.08.2017, prepared Observation Mahazar (Ex.P16), rough sketch (Ex.P17) recorded the statement of P.W.5 (Manikandan) and other witnesses, arrested the accused on 29.08.2017, seized the motor cycle and sent to the Court under Ex.P18 (Form-91) and gave requisition to P.W.12/Medical Officer to examine the accused and the victim girl and recorded the statement of the victim girl under Section 164 Cr.P.C. P.W.15, on completion of investigation, laid a charge sheet for offences under Sections 6 r/w 5(l) (m) and (n) of and (i) .

2.3. Before trial Court, prosecution examined 15 witnesses and marked 22 exhibits and 2 material objects. On behalf of defence, 2 witness were examined and 3 exhibits marked. On questioning under Section 235 (2) Cr.P.C., accused denied charges. On appreciation of evidence, oral and documentary, the Trial Court, under judgment dated 30.11.2021, convicted and sentenced him as follows: