J U D G M E N T

This Criminal Appeal has been filed against the judgment dated

27.09.2021 passed in S.C.No.420 of 2018 by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai.

2.The case of the prosecution is that on 28.07.2018 at about 03.00 p.m when the victim child was playing outside the newly constructed building, which was situated at 1st Street, Salaima Nagar, the accused who was working as a watchman in that building pulled the hands of the victim child, hugged and attempted to kiss on her face. When the victim child tried to evade the same, the accused attempted to put his hand on her private parts. Thereby, he had attempted to commit sexual assault against the victim child, who was aged about 8 years. One neighbour/P.W.3, who witnessed the said incident had rescued the child and informed the same to P.W.2/mother of the victim child. Thereafter, P.W.2 filed a complaint/Ex.P1 against the accused.

3.The respondent police registered a case in Crime No.9 of 2018 against the appellant for the offence punishable under Section 8 of The Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO Act' for the sake of convenience]. After investigation, the respondent police filed a charge sheet before the learned Sessions Judge, Special Court For Exclusive Trial of Cases under POCSO Act, Chennai against the appellant for the offence under Section 8 of POCSO Act which was altered into Sections 18 and 6 of POCSO Act. Since the offence is against a child, the learned Sessions Judge taken the case on file in S.C.No.420 of 2018. On completion of the formalities, the trial Court framed charges against the appellant for the offence punishable under Section 10 and altered into Section 18 punishable under Section 10 of POCSO Act.

4.In order to prove the case of the prosecution before the trial Court, on the side of the prosecution as many as 5 witnesses were examined as P.W.1 to P.W.5 and marked 6 documents as Exs.P1 to P6 and no material object 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. On the side of the defence, no oral and documentary evidence was produced.

5.The Court below, after hearing the arguments advanced on either side and also materials available on record, found that the accused/appellant is guilty for the offence under Section 10 of POCSO Act which was altered into Section 18 punishable under Section 10 of POCSO Act and sentenced him to undergo imprisonment for a period of three years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of one month. Being aggrieved by the said judgment of conviction and sentence, the appellant is before this Court.

6.Learned counsel for the appellant would submit that the appellant had no bad intention against the victim child. At the time of occurrence, the appellant was aged about 59 years and the victim child was 8 years. As a child, due to love and affection, the appellant touched the victim child and he has not committed any offence as alleged by the prosecution and hence, the offence under Section 10 of POCSO Act would not attract against the appellant. He would further submit that there are material contradictions between the prosecution witnesses and there was improvement in every stage, which is fatal to the case of the prosecution. As per the prosecution, the alleged occurrence had taken place in a newly constructed building, whereas, P.W.3 has stated that the alleged occurrence said to have been taken place between two Auto Rickshaws and hence, the place of occurrence is highly doubtful and the same was not proved by the prosecution. Therefore, P.W.3, who is said to be an eye witness to the occurrence could not ha