J U D G M E N T

The appellant has filed this appeal seeking to set aside the judgment dated 20.12.2018 in Spl.C.C.No.14 of 2016 on the file of the Sessions Judge, Fast Track Mahila Court, Namakkal.

2. The respondent police registered a case against the appellant in Crime No.157 of 2015 for the offence under Section 366 (A) IPC and Section 5(1) r/w. 6 of POCSO Act, 2012. After investigation, laid the charge sheet before the Sessions Judge, Fast Track Mahila Court, Namakkal. Since the offence is against women particularly a child, the learned Sessions Judge taken the case on file. The learned Sessions Judge after taking the charge sheet on file in Special C.C.No.14 of 2016, framed changes against the appellant for offence under Section 366(A) and 5(1) r/w. Section 6 of POCSO Act and he was convicted and sentenced to undergo 5 years Rigorous Imprisonment with fine of Rs.1,000/-, in default, to undergo 3 months Rigorous Imprisonment for offence under Section 366(A) and also convicted and sentenced to undergo 10 years Rigorous Imprisonment with fine of Rs.1,000/-, in default, to undergo 3 months Rigorous Imprisonment for offence under Section 5(1) r/w. 6 of POCSO Act. Challenging the said judgment of conviction and sentence, the accused has filed the present appeal.

3. The learned counsel for the appellant would submit that there is no independent witness examined in this case and has also not examined the neighbour and no witness has spoken that the appellant took the victim girl. The medical evidence did not support the evidence of P.W.1. P.W.1 deposed that the appellant used her for 10 days, but medical evidence did not detect spermatozoa or semen in the vagina and also did not detect the presence of injuries on genitals and did not detect the presence of marks of violence on other parts of the body. P.W.1, victim girl, did not complain the act of sexual intercourse of the appellant with her before the Doctor, who examined the victim girl. There is no supporting medical evidence of P.W.1, victim child. The age of the victim child has not been proved and there is no corroboration and there is no independent witness.

4. It is further submitted that the prosecution has not substantiated the charges framed against the appellant and the offence under Section 366(A) would not be attracted in this case. The case of the prosecution is that the appellant kidnapped the girl and induced another man to have sexual intercourse with the victim girl. Section 366(A) would not get attracted and the medical evidence does not support the case of the prosecution to convict the appellant under Section 5(1) r/w. 6 of POCSO Act. The learned Special Judge, based on presumption and also on the ground of sympathy, convicted the appellant for the offence punishable under Section 366(A) and 6 of the POCSO Act, and awarded maximum punishment, which warrants interference.

5. The learned Government Advocate (Crl.Side) would submit that the victim girl was aged about 17 years at the time of the occurrence. The mother of the victim girl went to Coimbatore for doing a construction coolie work along with her daughter victim girl and son. The appellant was also working as a coolie along with the victim at Coimbatore. During that period, the appellant fell in love with the victim child and falsely promised to marry her. The appellant was already married and having children. Prior to three months to the occurrence, when the victim child was alone at her house in Poyar Street, the appellant threatened the victim child and had sexual intercourse with her and threatened not to disclose the same to her parents. Due to apprehension, the victim did not disclose the act committed by the appellant to her parents and thereafter, the victim went to Coimbatore whereas the appellant again approached her and had sexual intercourse. Then the victim returned to Navaladipatty to worship her local temple. At that time, on 22.10.2015 at about 12.00 noon, when the victim child was alone a