Insufficient evidence for sexual abuse under POCSO, but substantive evidence for IPC convictions upheld.

JUDGMENT

This Criminal Appeal has been filed as against the order dated 15.03.2023 passed by the learned Sessions Judge, Fast Track Mahalir Court, Ariyalur, made in Spl.S.C.No.06 of 2022, thereby convicting the appellant for the offences punishable under Sections 323 , 354A(2) of IPC and Section 10 of the Protection of Children from Sexual Offences (hereinafter referred to as “the POCSO Act”).

2. The case of the prosecution is that the victim girl is none other than own daughter of the accused and he used to give sexual torture to the victim girl from she was studying in sixth standard. On 02.10.2021, at about 10.00 am., while the victim girl was preparing break fast at her grandmother's house, the accused entered through back side of the house and attempted to throw a fish pot on the victim girl. Though, she escaped, she sustained injury on her right hand. On the complaint, the respondent registered the FIR in Crime No.38 of 2021 for the offences punishable under Section 9(l)(n) r/w 10 of the POCSO Act. After completion of investigation, the respondent filed final report and the same has been taken cognizance in Spl.S.C.No.06 of 2022.

3. On the side of the prosecution, they had examined P.W.1 to P.W.10 and marked documents in Ex.P.1 to Ex.P.11. The Court marked one document in Ex.C.1. On the side of the accused, D.W.1 and D.W.2 were examined and no documents were marked. On perusal of the oral and documentary evidence, the trial Court found the accused guilty for the offences under Sections 323 , 354A(2) of IPC and Section 10 of the POCSO Act and sentenced him to undergo seven years rigorous imprisonment and to pay a fine of Rs.50,000/- in default to undergo further period of six months simple imprisonment for the offence under Section 10 of the POCSO Act and to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo further period of three months simple imprisonment for the offence under Section 323 of . Aggrieved by the same, the present appeal.

4. The learned counsel appearing for the appellant submitted that the prosecution miserably failed to prove the charges. There was a property dispute between the appellant and his wife. In fact, the appellant was working in gulf country and thereafter returned to India. Immediately after returning to India, false complaint has been lodged in order to grab the property by his wife. The victim was examined as P.W.1. She deposed that even from her sixth standard, the appellant harassed her by giving sexual torture. In her cross examination, she admitted that the appellant was in abroad for four years, while the victim was studying from sixth standard to eighth standard. Further, she did not know when the appellant returned India. Except P.W.1 & P.W.2, there is no independent witness has been examined in order to prove any of the charge. He further submitted that now the petitioner incarceration from the date of judgment passed by the trial Court. Even before that, during investigation, the petitioner was arrested and remanded to judicial custody for the period of two months and thereafter, he was enlarged on bail. Hence, he prayed to allow this appeal.

5. The learned Additional Public Prosecutor submitted that the victim was examined as P.W.1 and she categorically deposed that the appellant had given sexual torture to her even she was studying sixth standard. One day when the electricity was not there in their house, the accused asked her to remove her d