BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date : 26.06.2023 CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN Crl.A.(MD)No.175 of 2017 M.Rubi ... Appellant/Defacto Complainant vs.

1.The Inspector of Police, All Women Police Station, Palayamkottai, Tirunelveli District.

(Crime No.17 of 2013). ... 1st Respondent/Complainant

2.K.Alagesan ... 2^nd Respondent/Accused PRAYER : Criminal Appeal has been filed under Section 372 of Cr.P.C., to set aside the Judgment of acquittal passed in S.C.No.5 of 2014 on the file of the learned Mahila Court, Tirunelveli, dated

29.10.2015 and convict the accused.

For Appellant : Mr.G.Karuppasamy Pandian For R - 1 : Mr.T.Senthil Kumar Additional Public Prosecutor For R – 2 : Mr.G.Kannan

JUDGMENT

This Criminal Appeal has been preferred as against the order of acquittal passed in S.C.No.5 of 2014, dated 29.10.2015, on the file of the learned Mahila Judge, Tirunelveli, thereby acquitted the second respondent for the offence under Section 452 of I.P.C and Section 4 of the POCSO Act.

2.The case of the prosecution is that on 01.09.2013, at about 04.30 p.m., when the victim girl was alone in her house, when her mother had gone to Church for prayer, the accused had taken advantage of the circumstances and trespassed into the house of the victim girl. Thereafter, he removed her dress and committed penetrative sexual assault on the minor victim girl aged about 8 years. When the cable TV operator entered into the house, the accused ran away from the scene of crime. It was informed to her mother and immediately lodged the complaint.

3.On receipt of the said complaint, the respondent registered the F.I.R in Crime No.17 of 2013 for the offences under Sections 4 and 6 of the Protection of Children from Sexual Offences Act. After completion of the investigation, the respondent filed a final report and the same has been cognizance by the trial Court for the offence under Section 452 of I.P.C and under Section 4 of the Protection of Children from Sexual Offences Act in S.C.No.5 of 2014 on the file of the learned Mahila Judge, Tirunelveli.

4.On the side of the prosecution, they had examined P.W.1 to P.W.15 and marked Exs.P.1 to P.13 and on the side of the accused, no one was examined and no documents were marked in order to disprove the case of the prosecution.

5.On perusal of both oral and documentary evidence, the trial Court found the second respondent/accused not guilty for the offence under Section 452 of I.P.C and under Section 4 of the Protection of Children from Sexual Offences Act. Aggrieved by the same, the defacto complainant preferred the present revision.

6.The learned counsel appearing for the appellant would submit that the minor victim girl, aged about 8 years, was examined as P.W.2. She categorically deposed that the accused trespassed into her house and removed her shirt. Thereafter, he committed penetrative sexual assault by his penis and by his finger on the victim girl. In fact, during her cross-examination, nothing was elucidated by the accused. The victim's evidence was duly corroborated by P.W.1, P.W.3 and P.W.4. Though P.W.5, the cable T.V operator turned hostile, it is not fatal to the case of the prosecution, since the victim girl categorically deposed to prove all the charges as against the accused. There was absolutely no contradiction in the victim's evidence, even then the trial Court mechanically acquitted the accused on the ground that the victim herself contradicted her version by two views. The Doctor, who examined the victim girl, was examined as P.W.13. According to the trial Court, P.W.13 also failed to support the case of the prosecution, since the minor victim girl was not found with any external injury on her private part and her hymen was also intact. In the case of penetrative sexual assault, the hymen need not be ruptured and external injuries are not required in order to prove the offence under Section 4 of the Protection of Children from Sexual Offences Act. Section 3(b) of the POC