The court established that without conclusive evidence of penetration, a charge under Section 5 cannot stand, and only Section 7 of the POCSO Act applies.

JUDGMENT

DR.G.JAYACHANDRAN,J.

AND C.KUMARAPPAN,J.

This Criminal Appeal is filed against the order of the trial Court holding the appellant/accused is guilty of offence under Section 5 of the POCSO Act and punished him under Section 6 of the said Act, by ordering life imprisonment with a fine of Rs.1 lakh and in default, to undergo one year simple imprisonment. Besides, a compensation of Rs.2 lakhs was awarded to the victim minor girl. Being aggreived by the above said order, the appellant/accused has filed the present Criminal Appeal.

2.The learned counsel for the appellant/accused argued that the complaint is a motivated one engineered by the wife and brothers of the appellant to arm twist him and to settle their property dispute. The learned counsel would further contended that the wife of the appellant has used her own daughters to settle her scores. It was also contended that the trial Court failed to appreciate the evidence in a proper perspective, and that though there is no evidence to attract the ingredient of Section 5 of POCSO Act(herein after called as ‘’Act’’), the appellant has been convicted for the offence under Section 5 of the Act and sentenced him under Section 6 of the Act to undergo life imprisonment.

3.The learned counsel for the appellant drew the attention of this Court to the testimony of P.W.2, medical evidence and the testimony of the Doctor, who issued the Certificate of examination for sexual offence. Referring to Wound Certificate, Ex.P12, the learned counsel submitted that in the absence of evidence of any penetrative sexual assault, the trial Court ought to have acquitted the appellant, since the charges framed against him and the substance of the charges has not been proved through reliable evidence.

4.Per contra, the learned Additional Public Prosecutor appearing for the respondent/State submitted that it is a case of penetrative sexual assault by the father against his own daughter, aged 12 years and nine months at the relevant point of time. The appellant and his wife were living separately and the children were under the custody of the father(accused). Taking advantage of that, during the month of February 2017, when P.W.2 and P.W.3 were in sleep in their room, the accused/appellant has entered into the room and had committed the offence of penetrative sexual assualt and that such offence has been proved through ocular evidence of the minor victim child, as well as through the statement of Doctor, who indicates that the hymen of the victim girl was ruptured.

5.This Court has given its anxious considereation to the rival submissions made on either side and upon perusing the evidence relied on the prosecution, this Court find that the complaint marked as Ex.P1, dated 24.2.2017, was initiated by P.W.1, the District Child Welfare Officer. As per his testimony, on 19.02.2017, Sunday, while he was in his house, being a public holday, one Vanitha of Child Line called him over phone and reported about the incident of sexual assault on a minor child by her own father, and she informed that such information was passed on to Vanitha by the grand-father of the minor child. Based on the same, he went to the residence of the paternal uncle of the victim, who is a retired Village Administrative Officer.He was present along with his wife and the victim child. After enquiry, he found that a congnizable offence has been committed and hence, he has given a complaint marked under Ex.P1. Thereafter, Probation Officer has been appointed to conduct an enquiry and to file a report and he has also filed his report. Having set the criminal law in motion, the matter has been taken up for enquiry and the statement of the minor girl was recorded by the respondent Police as well as by the learned Judicial Magistrate under Section 164 of Criminal Procedure Code, and the same is marked as Ex.P3. The victim girl has been subjected to medical examination and the Doctor, who examined her, has given the Wound Certificate marke