IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.07.2024 CORAM :

THE HON'BLE MR. JUSTICE M.S.RAMESH AND THE HON'BLE MR. JUSTICE SUNDER MOHAN Crl.A.No.372 of 2020 Indiran ...Appellant/Single Accused vs.

State represented by Inspector of Police, Thudiyulur Police Station, Coimbatore District.

(Crime No.23 of 2017) ...Respondent Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, 1973, to set aside the judgment passed in Spl.C.C.No.47 of 2019 dated 14.08.2020, by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under the POCSO Act, 2012, Coimbatore.

For Appellant : Mr.W.Camyles Gandhi For Respondent : Mr.E.Raj Thilak Additional Public Prosecutor

JUDGMENT

(Order of the Court was made by SUNDER MOHAN,J.

This Criminal Appeal has been filed by the sole accused, challenging the conviction and sentence imposed upon him, vide judgment dated 14.08.2020 in Spl.C.C.No.47 of 2019, on the file of the learned Sessions Judge, Special Court for Exclusive Trial of Cases under the POCSO Act, 2012, Coimbatore.

2.(i) The case of the prosecution is that the appellant was the cousin brother of the victim; that the victim had gone to the house of her aunt (the appellant's mother) on 03.05.2017 for a temple festival; that on 04.05.2017, the appellant threatened the victim and had committed forceful penetrative sexual intercourse on the victim girl (the victim was aged about 13 years at the time of the occurrence) and committed penetrative sexual assault; and that the appellant committed the penetrative sexual assault once again on 05.05.2017 for the second time; and that he had threatened the victim of dire consequences, if she revealed his involvement to any one.

(ii) It is further the case of the prosecution that the victim did not reveal about the penetrative sexual assault to any one; that on 14.09.2017, she was taken to the hospital for stomach pain; that the doctor had examined the victim and stated that the victim was pregnant; that the victim was admitted to the hospital and on 18.09.2017, the foetus was aborted; that thereafter, on 19.09.2017, the victim had given a complaint against the appellant, which was registered by P.W.10/Inspector of Police, for the offence under Section 5 (l), 5(j) (ii), 5(n) r/w 6 of POCSO Act, 2012 and 506 (i) of IPC in Crime No.23 of 2017, the complaint was marked as Ex.P9 and the FIR was marked as Ex.P10.

(iii) P.W.10 commenced the investigation, went to the house, and prepared the Observation Mahazar [Ex.P11] and Rough Sketch [Ex.P12]. P.W.11/Inspector of Police thereafter took up the investigation and took steps to record the statement under Section 164 of the Criminal Procedure Code of the victim. She took steps to send the foetus for examination to the Forensic Science Laboratory, Chennai, for a DNA test. P.W.12/Inspector of Police thereafter took up the investigation, examined other witnesses, and filed the Final Report on 30.11.2018, against the appellant for the offences under Sections 5(l)(m)(n) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO Act, 2012'] and 506(i) of the IPC before the learned Sessions Judge, Magalir Neethimandram [Mahila Court], Coimbatore, which was taken on file as Special C.C.No.47 of 2019.

(iv) On the appearance of the appellant, the provisions of Section 207 Cr.P.C., were complied with, and the trial Court framed charges against the appellant, and when questioned, the appellant pleaded 'not guilty'.

(v) To prove the case, the prosecution examined 13 witnesses as P.W.1 to P.W.13 and marked 18 exhibits as Exs.P1 to P18. When the appellant was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The appellant did not examine any witnesses or mark any documents.

(vi) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established its case beyond reasonable doubt and held the appellant guilty of the offe