Victim's credible testimony and unrebutted Section 29 POCSO presumption prove sexual assault; sentence modified for lack of aggravating evidence.

JUDGMENT :

G. ARUL MURUGAN, J.

1. This Criminal Appeal is filed challenging the judgment dated 28.02.2022 made in New Spl.S.C.No.159 of 2019 on the file of the Court of Principal Special Judge, Special Court for Trial of Cases under the Protection of Children from Sexual Offences Act, 2012, Salem.

2. The appellant/sole accused was convicted for an offence under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 (hereinafter referred to as ‘the POCSO Act’) and sentenced to undergo 5 years rigorous imprisonment and to pay a fine of Rs.20,000/-, in default of payment of fine, to undergo six months simple imprisonment.

3. It is the case of the prosecution that the victim/PW2 was aged 13 years and studying 8^th standard in the Sri Sarada Vidyalaya Girls Hr. Sec. School, Salem and she used to go to school in the auto of the accused. As per routine practice, the accused used to pick up the children including the victim from their respective houses in the morning and after school hours, he dropped them in their respective houses in the evening. While so, on 11.08.2018 as usual, the accused picked up the children from their respective houses and dropped in the school. However, in the evening, with an intent to sexually assault PW2/the victim girl, the accused had picked up the children one hour late from the school, i.e. at 6.00 pm and when he usually take the Chettichavadi Road, on the date of occurrence, he had taken an alternate route. If the accused had taken the routine route, the victim would have got down in her house before the other children got down. However, since he took an alternate route, after dropping all the other children, the accused drove the auto and went near a hostel. When the victim enquired about taking the new route, the accused informed that he had a call to pick up a customer from the said hostel around 6.30 pm. When the auto was coming near a coconut grove near Erumaikuttaipallam, the accused stopped the auto and on verifying that no other person is nearby, he threatened the victim and pulled her half saree – uniform wore by the victim and touched the right side hip of the victim. The victim immediately screamed and jumped out of the auto and shouted for help. PW4/Dinesh, the person who was grazing the goats came for help and rescued the victim and sent her along with PW10/Mutharasan in the bike to be dropped at her home.

4. PW2/the victim went home crying and narrated the incident to her mother/PW1. In turn PW1 informed her husband/PW3, who was working at Trichy. After his return to home, both PW1 and PW3 took the victim to the police station on the next day morning, i.e., on 12.08.2018 and lodged the complaint/Ex.P.1. The Sub-Inspector of Police/PW15 registered the FIR/ Ex.P.20. The Inspector of Police/PW16 also sought the assistance of a Childline Helper/PW14 during the investigation and thereafter, sent the victim for medical examination. PW16 took up the investigation and prepared Observation Mahazar/Ex.P.4 and the Rough Sketch/ Ex.P.21. Doctor/PW13, examined the victim and issued the Accident Register copy/Ex.P.14 and medical certificates Ex’s.P.15 to Ex.P18.

5. The accused was arrested on the same day and his confession statement was recorded in the presence of P.Ws.6 and 7 and based on his statement, an auto bearing Registration No.TN-50-Y-4375 was recovered and the admissible portion of confession alone was marked as Ex.P.6. The accused was examined by PW12/Doctor, who issued potentiality certificate and the same was marked as