J U D G M E N T

This Criminal Appeal has been filed against the Judgment of Conviction and Sentence, dated 26.04.2019 made in Special S.C.No.06 of 2016, on the file of the learned Special Judge, Karaikal.

2. The respondent Police have registered a case in Crime No.139 of 2013, for the offence punishable under Section 6 of Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as 'POCSO Act') against the appellant on the complaint (Ex.P1) given by PW1. After completing investigation, the respondent police laid a charge sheet before the learned Special Judge, Karaikal, and the same was taken on file in Special S.C.No.06 of 2016.

3. After completing the formalities under Section 207 Cr.P.C., since there was a prima facie material to frame charges against the appellant, the learned Sessions Judge framed charges for the offence punishable under Section 6 of POCSO Act.

4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the learned Special Judge found that the appellant has not committed the charged offence, however, found that he has committed the offence punishable under Section 10 of the POCSO Act, and convicted and sentenced him to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo six months Simple Imprisonment for the offence under Section 9 of POCSO Act.

5.Challenging the judgment of conviction and sentence, the present appeal has been preferred by the appellant.

6. Mr.T.Muruganantham, learned counsel for the appellant would submit that P.W.1, who is said to have an eyewitness, turned hostile during cross- examination, and not supported the case of the prosecution. The aunt of the victim (P.W.2) is not an eyewitness and only hearsay evidence, who also not supported the case of the prosecution during cross-examination. It is further stated that the alleged occurrence is said to have occurred on 03.10.2013 at 11.30 a.m., whereas the complaint was given only at 09.00 p.m. and further F.I.R. was sent to the Court only on the next day, and no explanation was given by the prosecution with regard to delay in filing the complaint and also delay in sending F.I.R. to the Court, which creates suspicious. The victim girl was examined as P.W.4 and in her cross has not stated anything about the penetrative sexual assault committed by the appellant, as alleged by the prosecution and the victim also turned hostile. The doctor (P.W.9), who examined the victim child had deposed that on examination of the victim child, she found that there was no external injury and no evidence of recent sexual intercourse, and no evidence of semen present in the vagina of the victim; and bleeding of vagina is only due to her mensuration and concluded that no evidence of recent sexual assault and issued certificate (Ex.P8). The learned counsel for the appellant would further submit that the victim (P.W.4) is a mentally retarded person and she is not in a position to say anything and the doctor (P.W.10) has also stated that the victim is a mentally retarded person and he examined the victim only after six days from the date of occurrence and on examination, he found that except the victim girl has repeated that she was raped by the husband of one Punitha, not stated anything, and such, it is nothing but the victim girl was tutored by the prosecution. It is further contended by the learned counsel that the evidence of prosecution witnesses are uncorroborated evidence and not supported the case of the prosecution and there are contradictions, which are material contradictions and hence, it is unsafe to convict the appellant on an uncorroborated evidence. Therefore, the Judgment of conviction and sentenced passed by the trial Court is liable to be set aside.

7. Mr.D.Bharatha Chakravarthy, learned Public Prosecutor (Pondicherry)

appearing for the respondent-Police would submit that at the time of occurrence, the victim child