J U D G M E N T

(The case has been heard through video conference)

This Criminal Appeal has been filed against the Judgment dated

14.10.2019 passed in Spl.S.C.No.8 of 2018 by the learned Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Erode.

2. The respondent police originally registered the case against the appellant for the offence under Section 366 of IPC and also for the offence punishable under Section 6 of POSCO Act. After investigation laid the charge sheet before the Special Court since the offence is against a woman especially a child under the definition of POSCO Act. The learned Special Judge after completing the formalities, taken the charge sheet on file in Special S.C.No.8 of 2018 and after completing the formalities, framed charges against the appellant for the offence under Section 366 IPC, Section 6 of POSCO Act and Section 3(1)(w)(i) of SC/ST (POA) Amended Act 2015.

3. After completing the formalities and in order to prove the case of the prosecution, on the side of the prosecution 25 witnesses were examined as P.W.1 to P.W.25 and 49 documents were marked as Exs.P1 to P.49. Besides 4 material objects were exhibited as M.O.1 to M.O.4.

4. After completing the 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 of Cr.P.C. He denied the same as untrue and also pleaded not guilty. On the side of the defence, no oral or documentary evidence were produced.

5. On completion of trial and hearing of the arguments advanced on either side and considering the materials, the trial Court not found the appellant guilty for the offence under Section 366 IPC and also 3(1)(w)(i) of SC/ST (POA) Amendment Act 2015. However, found the appellant guilty for the offence punishable under Section 6 of POSCO Act and convicted and sentenced him to undergo 12 years rigorous imprisonment and to pay fine of Rs.5,000/- in default, to undergo 3 months simple imprisonment. Challenging the said Judgment of conviction and sentence, the appellant has filed the present appeal before this Court.

6. Mr.M.Dhamodharan, Legal Aid Counsel appearing for the appellant would submit that the age of the victim was not proved. The evidence of the doctor who examined the victim/P.W1 and the medical report clearly show that there is no forceful sexual assault on the victim and there is no eye witness in this case. He would further submit that the victim has completed the age of 18 years and she on her own volition went along with the appellant and with her consent only, the appellant had sexual intercourse with her and therefore, the offence under POCSO Act would not attract. Further, the victim is an unknown person and the appellant does not know about the community of the victim. Though the trial Court found the appellant not guilty for the offence under Section 366 IPC and Section 3(1)(w)(i) of SC/ST (POA) Act, however, from the very same evidence, wrongly convicted the appellant for the offence punishable offence under Section 6 of POCSO Act. Once the prosecution failed to prove the age of the victim and the defence proved the fact that the victim on her own volition went along with the appellant, the ingredients of offence under the POCSO Act would not attract. Hence, the appellant cannot be convicted for the offence under POCSO Act since, the prosecution failed to prove that the victim was a child under th definition of 2(1)(d) of POCSO Act and the trial Court wrongly convicted the appellant which warrants interference of this Court.

7. Mr.S.Sugendran, Government Advocate (Crl. Side) appearing for the respondent would submit that the age of the victim at the time of occurrence is only 17 years and in order to prove her age, the Transfer Certificate of the victim was marked as Ex.P.18 and the Head Master of the School in which, the victim studied was examined as P.W.14. Further, he has issued a School Certificat