J U D G M E N T

This Criminal Appeal has been filed against the judgment dated

01.07.2022 passed in Spl.S.C.No.45 of 2021 by the learned Sessions Judge, Special Court for Exclusive trial of Cases under POCSO Act, Vellore District.

2. The case of the prosecution is that on 20.12.2020, when the victim was playing outside the house, the accused took her to his house and closed the doors and windows. Then he made the victim to lie down on the bed, removed her dress and kissed all over her body. Thereafter, he forcibly inserted his penis into the victim's mouth and vagina and had sexual intercourse with her. At that time, the parents of victim came there in search of the victim and on knowing that, the accused opened the doors and set free the victim to go out of his house. On seeing the victim crying outside the house of the accused, PW-1/mother of the victim enquired the victim girl and she informed about the incident. Subsequently, PW1-mother of the victim preferred a complaint before the respondent police.

3. The respondent police registered a case against the appellant in Crime No.24 of 2020 for offences under Sections 5(m), 6 of 'Protection of Children from Sexual Offences Act, 2012' [hereinafter referred to as 'POCSO Act' for the sake of convenience] and Section 341 IPC and later, the same was altered into Sections 5(m), 6 of POCSO Act, Sections 342 & 376A & 376B IPC. After completing the investigation, the respondent police filed a final report before the learned Sessions Judge, Special Court for Exclusive trial of Cases under POCSO Act, Vellore for the offences under Sections 5(m), 6 of POCSO Act, Section 342 & 376A & 376B IPC and the same was taken on file in Spl.S.C.No.45 of 2021. The trial Court, after completing the formalities, framed charges against the appellant for the offences under Sections 5(m) r/w 6 of POCSO Act and Section 342 IPC.

4. In order to prove the case of the prosecution before the trial Court, on the side of the prosecution as many as 9 witnesses were examined as P.W.1 to P.W.9 and 10 documents were marked as Exs.P1 to P10.

5. After completing the examination of the entire prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant/accused by questioning under Section 313 Cr.P.C, wherein the accused denied the same as false and pleaded not guilty. On the side of the defence, no oral or documentary evidence was produced.

6. On completion of trial, hearing the arguments advanced on either side and considering the material facts, the trial Court found guilt of the accused for the offences under Section 5(m) r/w 6 of POCSO Act and convicted and sentenced the accused to undergo 20 years Rigorous Imprisonment and to pay a fine of Rs.5,000/- in default to undergo further period of three months simple imprisonment and also he was found guilty for the offence under Section 342 IPC and convicted and sentenced to undergo one year simple imprisonment and to pay a fine of Rs.1,000/- in default to undergo one month simple imprisonment.

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

8. The learned counsel for the appellant would submit that there is a previous enmity between the uncle of the victim and the appellant and in order to take vengeance, he used the victim as a tool. Further, he would submit that the Doctor/PW7, who conducted the medical examination on the victim, has clearly stated that there was no internal or external injury found on the body of the victim and hymen was intact and also there was no penetrative sexual assault. There is a contradiction between the evidence of the victim and the medical evidence, which would go to the root of the case of the prosecution. The prosecution has not proved that the victim was subjected to penetrative sexual assault or aggravated sexual assault. Further, he would submit that no independent witness was examined