JUDGMENT

The criminal appeal has been filed against the judgment of conviction and sentence made in S.C.No.229 of 2015 by the learned Sessions Judge, Mahila Court / Special Court for Cases under POCSO Act/Children's Court, Chennai, dated 08.03.2019

2 The respondent police registered a case in Cr.No.637 of 2014 against the appellant for the offence under Section 10 of Protection of Children from Sexual Offences Act, 2012 (for brevity “the POCSO Act”). After completing investigation, the respondent police laid a charge sheet before the Sessions Judge, Mahila Court / Special Court for Cases under POCSO Act/Children's Court, Chennai, which was taken on file in S.C.No.229 of 2015. The learned Sessions Judge, after hearing both the accused and the prosecution and after perusing the records, since there is prima facie case, framed charges against the appellant/accused for the offence punishable under Section 10 of the POCSO Act.

3 Before the trial Court, in order to prove the case of the prosecution, on the side of the prosecution, as many as 8 witnesses were examined as P.Ws.1 to 8 and Exs.P1 to P8 were marked and no material object was exhibited. After completing examination of prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses were put before the accused by questioning under Section 313 Cr.P.C., he denied the same as false and pleaded not guilty. On the side of the defence, no one was examined and no document was marked.

4 The learned Sessions Judge, Mahila Court / Special Court for Cases under POCSO Act/Children's Court, Chennai, on completion of trial and hearing arguments advanced on either side, found the appellant/accused guilty for the offence punishable under Section 10 of the POCSO Act and hence by judgment dated 08.03.2019 convicted the appellant/accused for the offence punishable under Section 10 of the POCSO Act and sentenced him to undergo simple imprisonment for a period of five years with fine of Rs.5,000/-, in default, to undergo simple imprisonment for a further period of six months and also directed the Government to pay a sum of Rs.20,000/- to the victim child as compensation. Aggrieved against the said judgment of conviction and sentence, the accused has preferred this criminal appeal.

5 The learned counsel appearing for the appellant/accused would submit that there is no substantial material to convict the appellant for the offence punishable under Section 10 of the POCSO Act. In this case, victim child was not examined and she is only aged about 3½ years as projected by the prosecution. The appellant residing at 3rd floor and mother and father of the victim child are residing at 2nd floor and no mother would allow her child, who is aged about only 3½ years to go to upstairs and hence it is clear that prosecution has foisted false case against the appellant. Further, the appellant and P.W.1 & P.W.2 and the victim child are residing in the three storied building, which belong to P.W.3, who is the owner of the house and there was previous enmity between the appellant and the landlady. In order to wreck vengeance, the landlady made use of P.W.1 and foisted false case against the appellant. P.W.1 in her evidence has stated that she knows only Bengali, whereas, P.W.8, the Investigating Officer, in his evidence has stated that P.W.1 has spoken Hindi. Neither the victim child, nor her mother P.W.1 know Tamil or Hindi, they only know Bengali. Even the scribe of the complaint has not been examined, which is fatal to the case of the prosecution. It was stated that the victim child, while passing urine, complained pain in her private part and when P.W.1 mother of the child questioned the same, the victim child stated that the appellant put his finger in her private part and thereafter they took the child to Hospital and on information received from the Hospital, Police officials came and obtained the complaint, whereas, P.W.8, the Investigating Officer, stated that