J U D G M E N T

This criminal appeal has been filed to set aside the judgment in Old S.C.No.38 of 2019 and New S.C.No.237 of 2019 dated 20.08.2020 on the file of the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Salem.

2. The respondent police registered a case in Crime No.31 of 2018 against the appellant for the offence under Sections 363 and 366 IPC and also Section 5(l) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' for short). After investigation, the respondent police laid charge sheet before the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Salem.

3. The learned Sessions Judge has taken the charge sheet on file in Old.S.C.No.38 of 2019 and subsequently, re-numbered as New.S.C.No.237 of 2019. After completing the formalities, the learned Sessions Judge framed charges against the accused for the offence punishable under Sections 363 and 366 IPC and Section 6 of POCSO Act.

4. After framing charges, in order to prove the case of the prosecution during trial, as many as 8 witnesses were examined as PW.1 to PW.8 and 21 documents were marked as Ex.P1 to Ex.P21 on the side of the prosecution. No material object was exhibited.

5. After completing the examination of the evidence of prosecution witnesses, incriminating circumstances culled out from the evidence of prosecution witnesses were put before the accused by questioning under Section 313 Cr.P.C., with reference to incriminating circumstances appear against him and he denied the same as false and pleaded not guilty. On the side of the defence, no witness was examined and no document was marked.

6. On completion of trial, after hearing arguments advanced on either side and considering the materials, the Sessions Court found guilt of the appellant/accused for the offence punishable under Sections 363 and 366 IPC and also Section 6 of POCSO Act and he was convicted and sentenced as follows:-

7. Challenging the said judgment of conviction and sentence, the appellant/accused has filed the present criminal appeal before this Court.

8. The learned counsel for the appellant would submit that the prosecution has failed to prove the charges as framed against the appellant. The victim girl herself stated that she was not kidnapped or forcefully taken by the appellant from the custody of the lawful guardian and therefore, the offence punishable under Sections 363 and 366 is not made out. Further, he would submit that the prosecution failed to prove the charge punishable under Section 6 of POCSO Act, since there is no aggravated penetrative sexual assault made out. There are material contradictions from the previous statement of the victim and also the deposition made before the Trial Court and there is no material to show that the appellant had penetrative sexual assault with the victim more than once. Even, the Doctor has not stated that there is possibility of repeated sexual assault. Therefore, under these circumstances, conviction for the offence under Section 5(l) which is punishable under Section 6 of POCSO Act, is unwarranted and the learned Sessions Judge failed to appreciate the evidence and convicted the appellant on the ground of sympathy.

9. Further, he would submit that both the appellant and the victim fell on love and they loved each other. Since the parents of the victim took effective steps to marry the