J U D G M E N T

This Criminal Appeal has been filed against the Judgment dated

12.08.2020 in Spl.S.C.No.19 of 2018, on the file of the Sessions Court, Magalir Neethi Mandram, Fast Track Mahila Court, Erode.

2.The case of the prosecution is that on 24.03.2014, the mother of the victim child gave a complaint in Sivagiri Police Station against her husband (i.e., child's father) for misbehaving with her mentally retarded child with sexual intention. Based on such complaint, the Sivagiri Police registered a case in Crime No.57 of 2014, on 04.04.2014, against the father of the victim child for the offence under Section 7 r/w Section 8 of the POCSO Act. Later the case was transferred to All Women Police Station for investigation, since the offence is against woman. Thereafter, the respondent/police registered a case in Crime No.5 of 2014, on

19.04.2014, against the appellant for the said offences.

3.After investigation, the respondent/police laid charge sheet before the Special Court, since the offence is against the women, particularly, child under the definition of Section 2(1) (d) of the POCSO Act. The learned Sessions Judge took the charge sheet on file in Spl. S.C.No.19 of 2018. After completing the formalities, charges were framed against the appellant for the above said offences.

4.In order to substantiate the charges framed against the appellant, on the side of the prosecution, as many as 16 witnesses have been examined as P.W.1 to P.W.16 and 18 documents as Ex.P.1 to Ex.P.18, were marked and no material object was produced.

5.After completing examination of prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses were put before the accused by questioning him under Section 313 Cr.P.C., he denied the same as false and pleaded not guilty. On the side of the defence, D.W.1 was examined and no document was marked.

6.On conclusion of trial, after hearing the arguments advanced on the either side and considering the materials, the Special court found the appellant guilty and convicted him for the offence under Section 7 of POCSO Act, which is punishable under Section 8 of the POCSO Act, and sentenced him to undergo 5 years rigorous imprisonment and to pay fine of Rs.5,000/-, in default to undergo 2 months simple imprisonment. However, the Trial Court ordered to give set off for the period of imprisonment already undergone by him as per Section 428 of Cr.P.C.

7.Challenging the said Judgment of conviction and sentence, the appellant filed the present appeal before this Court.

8.The learned counsel for the appellant/accused submitted that though the date of occurrence was on 24.03.2014, the complaint was given only on 04.04.2014, and therefore, there was delay in filing the complaint. Subsequently the case was also transfered from the Sivagiri Police Station to the respondent/police, where the case was registered on 19.04.2014. It is also recorded that the victim is a mentally retarded person, and the appellant is father of the victim. Victim does not know as to what was happening to her. Therefore, how could the appellant/father, have committed this type of offence, that too against his own mentally retarded daughter. P.W.1/mother of the victim is the wife of the appellant and she had filed a false case and the prosecution failed to establish the case as alleged by the de-facto complainant. There is no medical evidence to show that the victim was subjected to penetrative sexual assault, and therefore, the Trial Court failed to appreciate the evidence and wrongly convicted her father/appellant.

9.The learned Government Advocate (crl.side) appearing for the respondent submitted that, at the time of occurrence, the victim girl was only aged 11 years, and she is a mentally retarded person, The appellant/accused is the father of the victim girl. On the date of occurrence, the appellant was in inebriated condition and sexually assaulted his own mentally retarded daughter. P.W.1/mother of the vict