J U D G M E N T

(The case has been heard through video conference)

The Criminal Appeal has been filed against the conviction and sentence imposed on the appellant by Judgment dated 29.11.2019 passed in Spl.S.C.No.35 of 2019 on the file of the Magalir Neethi Mandram (Fast Track Mahila Court), Tiruppur.

2. The respondent police registered a case in Crime No.5 of 2019 against the appellant for the offence under Section 3(a), 4, 5(m), 6 of POCSO Act, 2012. After investigation, they laid charge sheet before the Special Court since, the offence is against a woman especially a child under the definition of Section 2(1)(d) of POCSO Act. The learned Special Judge taken the charge sheet on file in Special S.C.No.35 of 2019 and after completing the formalities, framed charges against the appellant for the offence under Section 5(m) which is punishable under Section 6 of POCSO Act.

3. After framing charges, during trial, on the side of the prosecution, as many as 8 witnesses were examined as P.W.1 to P.W.8 and 12 documents were marked as Exs.P.1 to P.12.

4. On completion of 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 Cr.P.C. However, he denied the same as false and he pleaded not guilty. On the side of the defence no oral or documentary evidence was marked.

5. On completion of trial and conclusion of arguments advanced by both the counsel and considering the materials available, the trial Court found the appellant guilty for the offence under Section 5(m) read with 6 of POCSO Act and convicted and sentenced to undergo Rigorous imprisonment for 10 years and to pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for a further period of one year. Challenging the said Judgment of conviction and sentence, the appellant has filed the present appeal before this Court.

6. The learned Counsel for the appellant would submit that the victim is only aged about 5 years and no injury is found on the body of the victim. Further, P.W.2/ mother of the victim has not supported the case of the prosecution and P.W.5/the great grandmother of the victim who is stated to be the eyewitness to the occurrence has also not supported the case of the prosecution. In the evidence of P.W.2 and P.W.5, they have clearly stated that no sexual assault was made on the victim and the trial Court failed to appreciate the same. The medical evidence also does not show any external or internal injury or possibility of penetrative sexual assault on the victim girl. In the absence of any eyewitness and medical evidence, the trial Court convicted the appellant when no offence is made out against him only based on assumption and conjunction and also on the ground of sympathy which warrants interference of this Court. Further, he would submit that there is a contradiction between the evidence of P.W.1 before the Court and the statement made before the Judicial Magistrate under Section 164 Cr.P.C. In one place, the victim/P.W.1 has stated while she was playing the incident had happened and in other place, she has stated that while she was sitting in her grandmother's vegetable shop, the appellant came and took her to his house and committed the alleged offence which clearly shows that the victim was not aware of the date, time and place of occurrence. Further, the learned Counsel for the appellant would submit that the statement recorded under Section 164 Cr.P.C. was neither marked through P.W.1 nor marked through the Magistrate who recorded the statement from the victim girl and it was only marked through the Investigating Officer. The learned Counsel placed reliance on the citations of the Hon'ble Supreme Court and stated that the practice of omnibus marking of the statement of the witness deserves to be deprecated. Therefore no effect can be given to the statement recorded under Section 164 Cr.P.C. which is marked as Ex.P.12.