JUDGMENT

The appeal has been filed against the judgment dated 23.10.2020 passed in Spl,C.C.No. 88 of 2019, on the file of the learned Sessions Judge/Special Court for POCSO Cases, Coimbatore.

2. The respondent police has registered a case against the appellant in Crime No. 113 of 2019 for the offences under Section 9 (i) (l) (n) read with 10, 11 (i) read with 12 of the POCSO Act and also under Section 506 (i) of IPC. After investigation, charge sheet was laid before the Special Court, Coimbatore. Since the offence against the appellant, involved a girl child, the learned Special Judge has taken the case in CC No. 96 of 2019 on file and after completing the formalities, framed the charges against the appellant for the offences under Sections 9 (i) (l) (n) read with 10, 11 (i) read with 12 of the POCSO Act and also Section 506 (i) of IPC. In order to substantiate the case, charges were framed against the appellant.

3. During the trial, on the side of the prosecution, totally 21 witnesses were examined as PW1 to PW21 and 27 documents were marked as Exs. P1 to P27. No material object was exhibited.

4. On completion of examination of prosecution witnesses, the incriminating circumstances cult out from the evidence of prosecution witnesses, were put to the appellant, who denied the same as false. On the side of the appellant, no one was examined as witness, no exhibits were marked and no material objects were produced. On completion of trial, arguments were advanced on either side.

5. The trial court, on a perusal of the materials placed by the prosecution, found that the appellant is guilty for the offence under Section 9 (i) (l) (n) read with 10 and under section 11 (i) read with section 12 of the POCSO Act and not guilty under Section 506 (i) of IPC. Thus, the appellant was convicted and sentenced to undergo seven years rigorous imprisonment under section 9(i)(1)(n) read with section 10 of POCSO Act and pay a fine of Rs.2,000/-, in default to undergo one year rigorous imprisonment. For the offence under Section 11(i) read with 12 of POCSO Act, he was also convicted and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default to undergo six months rigorous imprisonment; however, not found guilty for the offence under Section 506(i) IPC.

6. Aggrieved over the said conviction and sentence, the accused has filed the present appeal before this Court.

7. The learned counsel for the appellant would submit that there is no offence made out as alleged by the prosecution. The appellant is the father of the victim. The de facto complainant is none other than the own daughter of the appellant. The appellant used to ask her daughter to massage him after coming from his work place and the appellant is so strict towards the victim since her mother was not residing with them. Since the de facto complainant being a girl child, in order to avoid any further comments from the public he was strict towards his daughter, and only in order to escape from the clutches of her father, she made a false complaint against the appellant but later on, she herself realized that she had given a false complaint against her own father and subsequently retracted from the allegation made in the complaint. Examined as PW1, the victim in the chief examination has stated that though she made a complaint as well as statement before the Judicial Magistrate, there was no incident as stated in the complaint and the statement given under Section 164 Cr.P.C. No other witness corroborate the incident when the complainant herself had retracted from her allegation and thus, the offence under Section 9(i) would not attract and accordingly the prosecution has failed to establish its case beyond reasonable doubt. Only based on the complaint given by PW1, the case was registered, however later on PW1, the victim herself has denied the allegation.

8. It is further submitted that in this case, there is no physical assault, penetrative sexual assaul