J U D G M E N T

The Criminal Appeal has been filed against the conviction and sentence imposed by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District in Spl.S.C.NO.54/2018, dated 16.03.2020.

2. The respondent police registered a case against the appellant in Crime.No.6 of 2018 for offence under Section 366, 342 IPC and under Section 5(1) r/w. 6 of the POCSO Act. After investigation, a charge sheet was filed before the Special Judge, Mahila Court, Namakkal. The learned Special Judge taken the charge sheet on file in Special S.C.No.54 of 2018 and after trial, convicted the appellant for the offence under Section 366, 342 IPC and under Section 5(1) r/w. 6 of the POCSO Act. Challenging the said conviction and sentence, the appellant has filed the present appeal before this Court.

3. Learned counsel for the appellant would submit that there are material contradictions between the evidence of the Doctor, P.W.2 and the victim girl, P.W.1. regarding the place of occurrence and manner of occurrence and sexual assault made by two unknown persons repeatedly. The Trial Court convicted the appellant based on the evidence of P.W.1. The victim girl was examined as P.W.1 and she deposed regarding the place of occurrence, involvement of the persons who had committed forceful sexual assault on her. Further he would submit that there was an inordinate delay in filing the complaint. There was no explanation on the side of the prosecution. The unexplained inordinate delay is fatal to the case of the prosecution. The prosecution failed to seize the mobile phone of the appellant and victim girl and sent the same for analysis to find out the communication and conversation between the appellant and the victim girl, since both were strangers and they contacted through their mobile phone and they never met each other.

4. The learned Special Judge failed to note that the contradiction between the evidence of the victim girl and the prosecution witness P.W.15 regarding the shelter given by him and he has not supported the case of the victim girl and denied the relationship since he is a stranger and no way connected with her which was also confirmed by P.W.2, who is none other than brother of P.W.1, victim girl. According to the victim girl, she was kidnapped by two unknown persons, who beaten her and had sexual intercourse repeatedly, whereas the prosecution projected new story that the appellant had taken the victim from Dharmapuri Railway Station and had sexual intercourse and the friend of the victim girl one poojasri has not supported the case of the prosecution. There are more contradictions in the evidence of the Investigating Officer and therefore, the prosecution failed to establish its case and substantiate the charges framed against the appellant/accused and the trial Court wrongly convicted the appellant. Even the ingredients of Sections 366 and 342 IPC are not made out, the Sub-Court convicted the appellant by assumption, surmises and conjunctures and on sympathy ground and not on the material substance. Therefore, the appeal is liable to be allowed and the judgment of conviction is liable to be set aside.

5. Learned Government Advocate (Crl.Side) would submit that initially the case was registered for offence under Sections 366, 346 and 5(1) r/w. 6 of POCSO Act. After investigation, the charge sheet was filed before the Special Court and the Special Court also taken the case on file and framed the charges against the appellant. In order to prove their case, they examined totally 19 witnesses and marked 21 documents. Though P.W.5, P.W.6 and P.W.9 turned hostile and not supported the case of the prosecution, the victim girl was examined as P.W.1, she has clearly narrated the occurrence. P.W.2 and P.W.3 – brothers, have spoken about the missing of her sister and later upon receiving a call from the victim girl, they met the victim girl and subsequently they made the complaint. P.W.4 is the mother of the victim gi