J U D G E M E N T

This Criminal Appeal has been filed against the judgment dated

25.02.2021 passed in Old Spl.S.C.No.139 of 2018 renumbered as New Spl.S.C.No.174 of 2019 on the file of the Special Court for POCSO Act Cases, Salem.

2. The respondent police registered a case in Crime No.7 of 2017 for the offence under Section 506(1) IPC and Sections 5(l) and 5(n) punishable under Sections 6 of POCSO Act. After investigation, laid a charge sheet before the Special Court for POCSO Act cases, since the offence is against child. The learned Special Judge taken the charge sheet on file in S.C.No.139 of 2018 and renumbered as S.C.No.174 of 2019. After completing the formalities, framed the charge against the appellant for the offence under Sections 506(1) IPC and Sections 5(l) and 5(n) punishable under Sections 6 of POCSO Act. During trial, in order to substantiate the charges, on the side of the prosecution, totally 10 witnesses were examined as P.Ws.1 to 10 and 19 documents were marked as Exs.P1 to P19. Besides, one material object was also exhibited as M.O.1. On completion of examination of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses put before the accused by questioning under Section 313 Cr.P.C. He denied the same as untrue and pleaded not guilty. On the side of the defence, no oral and documentary evidence was produced.

3. On completion of trial, hearing the arguments advanced on either side and considering the materials placed, the trial court found the appellant guilty for the offences under Section 5(n) and 5(l) of POCSO Act which are punishable under Section 6 of POCSO Act and he was convicted and sentenced to undergo 20 years Rigorous Imprisonment and to pay fine of Rs.1,00,000/- in default to undergo one year Simple Imprisonment and also he was convicted and sentenced to undergo one year Rigorous Imprisonment for the offence under Section 506(i) IPC. Challenging the abovesaid judgment of conviction and sentence, the accused has filed the present Criminal Appeal before this Court.

4. The specific case of the prosecution is that the appellant is the cousin brother of the victim girl. He used to come to victim girl's house. Taking advantage of the absence of the elder family members, the appellant had sexual intercourse with her by threatening her on several occasions. Due to the same, she become pregnant and subsequently she gave birth to male child. Hence the complaint.

5. Learned counsel for the appellant would submit that except the victim girl, there is no eye witness in this case and there was a delay in filing the complaint. The inordinate delay was not explained. Therefore, the unexplained delay in filing the complaint is fatal to the case of the prosecution. F.I.R and statement recorded from the victim were sent to the Court belatedly. The trial court failed to consider the entire facts and only on sympathy ground, convicted the appellant. Hence, the judgment of the trial court is liable to be set aside.

6. Learned Additional Public Prosecutor appearing for the respondent would submit that age of the victim is 12 years and she is a child on the date of occurrence. Appellant is the cousin brother to the victim child. By threatening the victim child, the appellant had penetrative sexual intercourse on her. The victim child was examined as P.W.2. She has clearly narrated the entire incident. Further, even before the Judicial Magistrate, recording the statement under Section 164 Cr.P.C, she has clearly narrated the incident, which was marked as Ex.P3. Evidence of the doctor P.W.8, who conducted the medical examination on the victim girl clearly shows that the victim was subjected to penetrative sexual assault and also she was pregnant. Evidence of the doctor P.W.9, who conducted DNA test and D.N.A report Ex.P16 would clearly shows that the appellant is the biological father of the baby born to the victim child. Therefore, prosecution clearly proved that the ap