J U D G M E N T

This Criminal Appeal has been filed against the Judgment of Conviction and Sentence, dated 07.12.2018 made in Special S.C.No.71 of 2018, by the learned Judge, Mahila Court, Cuddalore.

2. The respondent-police has registered a case against the appellant for the offence under Section 9(m) r/w 10 of Protection of Children from Sexual Offences Act, 2012 (for brevity “the POCSO Act”). After investigation, laid a charge sheet before the learned Judge, Mahila Court, Cuddalore. The learned Judge, framed charges against the appellant for the offence punishable under Section 10 of POCSO Act and conducted the trial.

3. After considering the evidence on record and hearing on either side, the learned Judge, by Judgment dated 07.12.2018, convicted the appellant for the offence punishable under Section 10 of POCSO Act and sentenced him to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.2,000/- in default to undergo one year Simple Imprisonment.

4. Aggrieved against the Judgment of conviction and sentence, dated

07.12.2018, the appellant / accused had preferred the present Criminal Appeal before this Court.

5. Since the learned counsel for the appellant was not present on

25.01.2021, this Court directed the Registry to appoint a Legal-Aid Counsel and however, today, the learned counsel for the appellant as well as Legal-Aid Counsel are appeared and argued the matter, by raising the following contentions:-

6.1. There was a delay in registering the case and also sending the F.I.R into the Court. The date of occurrence is on 15.08.2018 at about 09.30 a.m., and the FIR was registered on 15.08.2018 at 04.00 p.m., and however, it was sent to the Court only on 16.08.2018 at 11.20 a.m., and the said delay has not been properly explained, which is a fatal to the case of the prosecution.

6.2. Before conducting medical examination, P.W.8-doctor has not recorded the statement of the victim girl, and only recorded the statement of the mother of the victim girl, who is admittedly not an eyewitness and only hearsay evidence. Further, the evidence of P.W.8-doctor also not supports the case of the prosecution, and in her Ex.P5 report, she has clearly stated that she did not find any external injuries on the genitalia of the victim girl.

Furthermore, the panty of the victim girl was not recovered.

6.3. The alleged occurrence took place on 15.08.2018, however, the statement under Section 164 of Cr.P.C. was recorded by the learned Magistrate, only on 20.08.2018, which is against the position of law. Immediately, within 24 hours, the victim should have been produced before the learned Magistrate, however, in this case, only after statutory period, the victim girl was produced before the learned Magistrate for recording statement under Section 164 of Cr.P.C., and that would also create a doubt about the prosecution case. Therefore, the prosecution has not proved its case beyond all reasonable doubt. Further the statement recorded under Section 164 of Cr.P.C., before the learned Magistrate, has not been marked in Special Sessions Case and no opportunity was given to the appellant to cross-examine the statement recorded by the learned Magistrate, and therefore, which also a fatal to the prosecution.

6.4. There are material contradictions in the prosecution witnesses, except the evidence of P.W.2-victim girl, there was no corroboration in the evidence, which itself shows doubt in the prosecution case.

6.5. There was a pathway dispute between the appellant and the family of the victim girl and in order to take vengeance, they foisted a false case against the appellant.

The learned Judge failed to consider the above aspects and however, simply convicted the appellant on the ground of sympathy, which warrants interference.

7. The learned Government Advocate (Criminal Side) appearing for the respondent-Police would submit that the victim girl was aged about 7 years, at the time of occurrence. The appellant is a neighbour, and he called P.W.2-

victim girl