J U D G M E N T

The Criminal Appeal has been filed against the Judgment dated

06.07.2020 in Spl.S.C.No.77/2019 passed by the Sessions Judge, Special Court for offence under POCSO Act, Salem

2. The respondent police registered the case against the appellant in Crime No.4 of 2017 for the offence under Section 11 of POCSO Act punishable under Section 12 of POCSO Act. After investigation they laid the charge sheet for the offence punishable under the POCSO Act against the appellant. The learned Sessions Judge, Special Court for offence under POCSO Act, Salem, after taking cognizance of the charge sheet on file in Spl.S.C.No.77 of 2019 and after completing the formalities framed the charges for the offence punishable under Section 12 of POCSO Act.

3. After framing the charges and during trial in order to prove the case of the prosecution, on the side of the prosecution 8 witnesses were examined as P.W.1 to 8 and 12 documents were marked as Exs.P1 to P.12 and one material object was exhibited as M.O.1

4.After completing the examination of the prosecution witnesses incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant by questioning under Section 313 of Cr.P.C. However, he denied the same as untrue and pleaded not guilty. On the side of the defence, no witness was examined however, one document was marked as Ex.R1.

5.On completion of trial and hearing of the arguments advanced on either side and perusing the materials, the Special Court found guilt of the appellant for the offence under Section 11 which is punishable under Section 12 of POCSO Act and convicted and sentenced to undergo 2 years rigorous imprisonment and pay fine of Rs.10,000/- in default to undergo 6 months simple imprisonment. Challenging the said Judgment of conviction and sentence the appellant has filed the present appeal before this court.

6.Ms.Revathy G.Mohan, Legal Aid Counsel appearing for the appellant would submit that the occurrence is said to have taken place on

02.06.2017 at about 11.00 a.m. Whereas, the complaint was given only on 03.06.2017 and the inordinate and un-explained delay in filing the complaint is fatal to the case of the prosecution and the trial court failed to consider the same. Therefore the Judgment of the trial Court is perverse. The appellant was only bystander of the incident happened in a TASMAC shop and the police arrested him wrongly and in order to convict him illegaly, they have foisted a false case against the appellant. Further he would submit that P.W.1/mother of the victim has stated that one Kavitha had seen the children going on the mud path and if it is true, she should have seen the appellant also along with the children. Whereas, P.W.1 has not stated anything as if, the said Kavitha had seen the children along with the appellant. Further, the said Kavitha was not cited as witness and she was not examined as prosecution witness which is fatal to the case of the prosecution and the place of occurrence is also not established and the prosecution has not examined any independent witness. Further, the appellant is an unknown person to the victim as well as P.W.1. Therefore, the identification of the accused is also doubtful and the prosecution has failed to establish its case beyond reasonable doubt and that the trial court erroneously convicted the appellant without any substantiative evidence. Therefore the appeal to be allowed and Judgment of conviction and sentence passed by the trial court is liable to be set aside.

7. The learned Government Advocate (Crl. Side) would submit that at the time of occurrence the victim girl was only 7 years. On 02.08.2017 at about 11.45. a.m., when the victim along with her younger brother was playing in the garden, the mother of the victim went for fetching water. At that time, appellant came there and asked the children to come with him under the guise of providing them Candy chocolates. Hence, the children followed the appellant and t