JUDGMENT

The convicted sole accused is the appellant herein. The appellant herein filed this appeal challenging the Judgment dated 30.01.2020 passed in Spl.C.C.No.40 of 2019, on the file of the Sessions Judge/Special Court for

https://www.mhc.tnE.gxovc.inlu/jusdiisv/e Trial of cases under POCSO Act, Coimbatore, convicting him for

the offence under Section 7 of the Protection of Children from Sexual Offences (POSCO) Act, 2012 and sentenced him to undergo Imprisonment for three years and to pay fine of Rs.2000/-, in default to undergo three months Simple Imprisonment. However, both the sentences were ordered to run concurrently and the period already undergone was ordered to be given set off under Section 428 of Cr.P.C.

2.The respondent/police registered a case against the appellant, in Crime No.818 of 2017 on 21.07.2017, for the offence under Section 7 of the POSCO Act. After investigation, the charge sheet was laid before the learned Special Sessions Judge, Mahila Court, Coimbatore, since the offence is against the child. The Mahila Court had taken the charge sheet in Special Sessions Case in Spl.S.C.No.60 of 2018. After completing the formalities, the trial court framed the charges against the appellant for the offence under Section 9(l), 9(m), which are punishable under Section 10 of the POCSO, Act, 2012.

3.After framing charges, in order to prove the case of the prosecution, on the side of the prosecution, during the trial, as many as 9 witnesses were examined as P.W.1 to P.W.9 and eight documents were marked as Ex.P1 to Ex.P8. No material object was exhibited.

4.After completing examination of the prosecution side witnesses incriminating circumstances culled out from the evidences of the prosecution witnesses were put to the accused/appellant by questioning him under Section 313 of Cr.P.C., with reference to the incriminating circumstances on the prosecution witnesses, but, he denied the same as false. On the side of the defence, no oral or documentary evidences was produced.

5.On completion of trial and hearing the arguments advanced on either side and considering the materials put forth before the Trial Court, the trial court found the appellant/accused guilty of the offence under Section 7 which is punishable under Section 8 of the POCSO Act and sentenced him to undergo 3 years Imprisonment and to pay fine of Rs.2,000/- in default to undergo 3 months simple imprisonment. Challenging the said judgment of conviction and sentence, the accused/appellant has filed the present appeal before this Court.

6.The learned counsel for the appellant would submit that none of the witnesses spoken about the involvement of the appellant. Though PW1, father of the victim child has stated that he has given the complaint the next day on 21.07.2017, he has stated that he had written the complaint as stated by the Police. Thus, the averments in the complaint has been exaggerated by the PW1. Even PW.1 is not an eyewitness to the incident. Further, PW.1 & PW.2, parents of the victim child have not stated anything about the involvement of the appellant. PW.1 also stated that when the police officials wanted the victim child to be sent for medical examination, he has stated that medical examination may not be required in this case since the victim child has not suffered any injuries. Thus, none of the ingredients of Section 7 of the POCSO Act is attracted. Though the charges were framed under Section 9 (l), 9 (m) which are punishable under Section 10 of the POCSO Act, the Trial Court convicted the accused/appellant only for the offence under Section 7 of the POCSO Act, which is unwarranted. In any event, there are no independent witnesses examined by the prosecution to prove its case. Even the shopkeeper Muthu Pandian, who was said to be available at the time of occurrence and was present at the scene of occurrence was not examined and therefore his non-examination is fatal to the case of the prosecution. The victim was not immediately produced for med