O R D E R

This Criminal Appeal is filed challenging the judgment dated dated

07.06.2022 made in Spl. Sessions Case No.65/2021 on the file of Sessions Judge, Mahila Court (FTC), Tiruppur.

2. The respondent police registered a case against the appellant in Crime No. 13 of 2021 against the appellant for the offences under Section 5(m) punishable under Section 6 of POCSO Act. After completing investigation, laid charge sheet before the Special Court since the offence is against the child falls under POCSO Act, Sessions Judge, Tiruppur taken the case on file in Spl.SC.No. 65 of 2021. After completing procedural formalities framed charges against the appellant for the offences under Section 5(m) punishable under Section 6 of POCSO Act

3. After framing charges and completing procedural formalities, during trial, on the side of the prosecution, in order to substantiate the case of the prosecution as many as six (6) witness were examined as PW1 to PW6 and 11 documents were marked as Ex.P1 to P11 and no material objects was exhibited. On the side of the Defence, three (3) witnesses were examined as DW1 to DW3 and no document was marked. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused/ appellant and questioned under Section 313 of Cr.P.C and he denied all the incriminating circumstances as false and pleaded not guilty.

4. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the accused/appellant is guilty for the offence under Section 5(m) punishable under Section 6 of POCSO Act 2012 and convicted and sentenced him to undergo 20 years rigorous imprisonment and pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of six months.

5. Challenging the said Judgment, the present appeal has been filed by the accused/appellant before this Court.

6. It is the specific case of the prosecution that on 27.07.2021 the accused/appellant who aged about 42 years had committed aggravated penetrative sexual assault on the victim who was aged 3 years and hence the accused/appellant was charged for the offence under Section 5(m) punishable under Section 6 of POCSO Act. Thereafter the respondent police after investigation laid charge sheet for the above said offences. The trial Court, after trial, found the appellant guilt for the above said charges and convicted him.

7. The learned legal aid counsel for the appellant would submit that the date of occurrence itself is doubtful and the victim has not stated about the date of the occurrence to his father and there is a delay in filing complaint before the respondent police and the medical evidence also does not corroborate with the evidence of the Pws 1 to 3. Further the doctor who conducted medical examination on the victim was not examined before the trial Court. The learned counsel would further submit that the victim was 3 years at the time of recording statement before the Judicial Magistrate under 164 Cr.p.c, the victim girl has not spoken by words, but spoken in sign language. The learned Judicial Magistrate has recorded the said statement of the victim girl in the absence of any experts to confirm the statement made by the victim in sign language, which vitiates the case of the prosecution, which is against the provisions enumerated under Rule 3 of POCSO Act. In order to rebut the presumption under Section 29 of POCSO Act, the appellant examined DW1/Kowsalya Kumar who has clearly stated that the appellant was not available on the date of occurrence i.e. on 26.07.2021 and he was with him assisting his work froom 9.00 am to 8.30 pm, therefore the appellant would not have committed such offence on that day as alleged by the prosecution. Further DW2/Sivaraj in his evidence has stated that there exists previous enmity between the appellant and the mother of the victim girl and due to the same,