JUDGMENT

The sole accused in Spl.S.C.No.37 of 2016 on the file of the learned Sessions Judge, Special Court for Exclusive trial of cases under POCSO Act, 2012, Sivagangai, filed this appeal challenging the judgment dated 29.03.2022 in which he was convicted for the offence Section 6 r/w 5(m)(n) of the POCSO Act, 2012 and sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs.5,000/-, in default, to undergo one month simple imprisonment. 2. Case of the Prosecution:

On 09.05.2016, PW.1, mother of the victim girl cleaned her after defecation and wore the trouser to the victim girl. Then, she went inside her house leaving the victim girl outside for preparing cool drink to give to the victim girl. Thereafter, when PW.1 came outside the house to give the cool drink, she found the victim girl was missing. While searching, she found that the victim girl was inside the house of the appellant situated next to PW1's house. In the said house, the appellant kept the victim girl in his thigh by expanding his both legs and the same was not clearly ascertained due to the darkness. She immediately entered into his house and took the child and found sperm in the vagina and thigh of the victim girl. Thereafter, while she bathing her daughter, her skin was found as peeled and her thigh was reddish. Hence, she asked the victim girl whether the appellant pressed his penis on her vagina. To that, the victim girl replied 'yes'. So, on 10.05.2016, PW.1 preferred complaint Ex.P1 to the respondent police and the same was registered in Crime No.9 of 2016 for the alleged offence under Sections 6 r/w 5(m)(n) of the POCSO Act.

2.1. On the same day, the appellant was arrested. Further the 164 Cr.P.C statement of the victim girl and PW.1 was recorded and investigation was completed after obtaining necessary medical opinion and other documents. After completion of the investigation, final report was filed for the offence under Section 6 r/w 5(m)(n) of the POCSO Act, before the learned Sessions Judge, Special Court for Exclusive trial of cases under POCSO Act, 2012, Sivagangai.

3. The learned Special Judge taken the final report on file in Spl.S.C.No.37 of 2016. Thereafter, he furnished the copies under Section 207 Cr.P.C to the appellant. After furnishing the copies, he framed necessary charges and questioned the appellant and the appellant pleaded not guilty and hence, the trial was conducted.

4. To prove the charges, the prosecution examined PW.1 to PW.17, marked Ex.P1 to Ex.P21 and produced M.O.1 to M.O.4. The learned trial Judge, questioned the appellant under Section 313 Cr.P.C by putting the incriminating circumstances available against him and the appellant denied the same as false. Neither witness nor document was produced on the side of the defence.

5. The learned trial Judge, after considering the above evidence, convicted the appellant under Section 6 r/w 5(m)(n) of the POCSO Act and sentenced him as stated supra and also granted compensation to the victim girl for a sum of Rs.5,00,000/- (Rupees five lakhs only).

6. Challenging the conviction and sentence passed in the impugned judgement dated 29.03.2022, the appellant preferred this appeal on the ground stated in the memorandum of grounds of appeal.

7. The learned counsel for the appellant reiterating the grounds stated in the memorandum of grounds of appeal made the following submissions:

7.1. The case of the prosecution is that the appellant is said to have committed penetrative sexual assault, but the same was not proved in accordance with law. The victim girl, at the time of recording the statement under Section 164 Cr.P.C before the learned Judicial Magistrate, did not state about any penetrative sexual assault. The statement was not recorded on the ground that the victim girl was not in a position to disclose the fact. The investigation was conducted on the basis of the statement of PW.1 and other hearsay evidence and no medical evidence was adduced to prove the penetrative sexual