JUDGMENT

This criminal appeal is filed against the judgment passed in Old Spl.S.C.No.3 of 2017 New Spl.S.C.No.34/2019 on the file of the Special Court for POCSO Cases dated 10.02.2021.

2. The respondent police registered the case against the appellant in Crime No.36/2016 for the offence under Section 3 of POCSO Act, which is punishable under Section 4 of POCSO Act. After investigation, laid charge sheet before the Special Court for exclusive trial of POCSO Act cases, Salem for the offence under Section 3 of POCSO Act which is punishable under Section 4 of POCSO Act and also for offence under Section 506(i) of IPC. The learned Special Judge, after completing the formalities, taken the case on file in S.C.No.3 of 2017 (Old.Spl.S.C.). Subsequently, the same was renumbered as Special S.C.No.34 of 2019. After completing the formalities, the learned Special Judge framed the charges against the appellant for the offence under section 3 of POCSO Act punishable under Section 4 of POCSO Act and also under section 506(i) of IPC.

3. In order to substantiate the case of the prosecution, on the side of the prosecution, during the trial as many as 15 witnesses have been examined as P.W.1 to P.W.15 and 15 documents have been marked as Ex.P.1 to Ex.P.15 and no material object was exhibited.

4. On completion of the examination of the prosecution evidence, incriminating circumstances were culled out from the evidence of the prosecution witnesses and were put before the accused, by questioning under Section 313 of Cr.PC, and he denied the same as false. On the side of the defence, one witness was examined as D.W.1 and no document was marked. On completion of trial and hearing of arguments of both sides and after perusing the records, the trial court found that the appellant is guilty for the offence under Section 3 of POCSO Act which is punishable under Section 4 of POCSO and Section 506(i) of IPC and the appellant was convicted and sentenced to undergo 20 years R.I., and to pay a fine of Rs.25,000/-, in default, to undergo Simple Imprisonment for 6 months for the offence under Section 3 of POCSO Act which is punishable under Section 4 of POCSO Act. The appellant was also convicted and sentenced to undergo one year R.I. for of the offence under Section 506(i) of IPC. Challenging the above said judgment of conviction and sentence, the accused has preferred the present appeal before this court.

5. The learned counsel for the appellant would submit that in this case, the appellant is the neighbour and he has not committed any offence under Section 3 of POCSO Act and there is no penetrative sexual assault. None of the witnesses have spoken that there was a penetrative sexual assault. Even P.W.2 victim girl has not stated anything about penetrative sexual assault. P.W.1 is the mother of the victim and she is not the eyewitness. According to her, P.W.3 informed her that in the appellant house, the appellant was lying on the victim and after seeing him, he flew away from the house and thus, the accused was seen coming out of his house and he committed sexual assault on the victim. Based on that, the mother of the victim gave a complaint. Therefore, P.W.1 is not the eyewitness. P.W.3 and 4 also not stated about penetrative sexual assault and they only stated that they saw the victim at the relevant point of time, that the accused was running from the house and the victim was inside the house. The trial court has convicted the appellant based on assumption and presumption and also based on sympathy grounds and there is no material to show that the appellant committed penetrative sexual assault. Further he would submit that the appellant was convicted based on Amendment Act 2019 and sentenced to 20 years rigorous imprisonment, whereas the occurrence is said to have taken place on 22.02.2016 before the amendment and the amendment came into force only in the year 2019. Therefore, based on the Amendment Act, a sentence cannot be imposed. There is no retrospectiv