J U D G M E N T

This Criminal Appeal has been filed by the Appellant/accused as against the order of conviction and sentence passed by the learned Sessions Special Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Coimbatore dated 04.05.2021.

2. The case of the prosecution is that during the year 2018, when the victim girl was going to buy some items to market, the accused had followed the victim girl and took a photo. Furthermore, the accused has edited the photo to portray as though the victim girl is too close with accused. Thereafter, the accused in an humiliating manner shared the photo in whatsapp group and also in the Facebook. On 24.06.2019 at about 4 pm, when the victim girl's father questioned the accused for the act of humiliation, the accused scolded the victim girl's father in a filthy language and threatened to kill him.

3. Therefore, the respondent Police registered the case against the appellant for the offence under Sections 294(b), 354D(1)(i)&(ii), & 506 (i) IPC and 13 r/w 14(1) of POCSO Act, in Crime No.211 of 2019. After investigation charge sheet was laid before the learned Special Court [since the offence is committed against a child] and the same was taken on file as Spl.CC.No.46 of 2020 and after completing the formalities framed charges against the accused for the offence as stated above.

4. In order to substantiate the charges framed against the accused, on the side of the prosecution totally 12 witnesses were examined as PW-1 to PW-12 and 11 documents were marked as Exs.P.1 to Exs.P.11 and one material object was marked as MO-1 and one Court document was marked as Ex.C-1. On questioning under Section 313 Cr.P.C., the accused denied the charges as false and pleaded not guilty. On the side of the accused, no oral and documentary evidence were marked.

5. On completion of the arguments advanced on either side, the trial Court found that the accused was not guilty for the offence under Sections

294 (b) and 506 (i) and acquitted him from the above said charges, however found guilty for the offence punishable under Section 354D(1) (i)&(ii) of IPC and convicted and sentenced to undergo 3 years imprisonment and to pay a fine amount of Rs.1000/- in default to undergo 6 months imprisonment and for the offence punishable under Section 13 r/w 14 of Pocso Act, the accused was convicted and sentenced to undergo 5 years imprisonment and to pay a fine amount of Rs.5,000/-, in default to undergo 1 year imprisonment. Aggrieved over the said order of conviction and sentence, the present Criminal Appeal has been filed.

6. The learned counsel appearing for the appellant/accused would submit that the prosecution has not established its case as projected by it. Though there is no material evidence to prove the charges levelled against the appellant/accused, none of the witnesses have spoken about the alleged occurrence except P.W.1, who is the father of the victim girl and since he belongs to a rival political party, in order to take revenge, he foisted the false case against the appellant/accused. Though the trial Court convicted the appellant/accused for the offence under Section 13 r/w 14 of POCSO Act, no materials have been produced, even though cell phone/MO-1 was seized from the appellant, the same was not sent to lab test and no photograph was recovered as stated by the prosecution. Therefore, in the absence of the same, the conviction rendered by the trial Court for the offence under Section 13 r/w 14 (1) of the POCSO Act is not legally sustainable. Further, except PW-2, who is the victim girl, no witness had stated that the accused has taken her photograph, however, PW-3, is said to have informed to PW-1 that he has seen the photograph of the appellant with the victim and the appellant had uploaded the same in the social media (Facebook and Whatsapp). However the same was not recovered and even from the appellant's cell phone also, no photograph was recovered by the prosecution. The learned counsel woul