J U D G M E N T

On 28/06/2014, a child aged about 16 years was admitted in the Government Hospital Puducherry complaining lower abdominal pain. The medical examination of the child, turned out to be a case of self abortion consuming medicine purchased from a pharmacy without prescription. Being a minor girl, the matter was reported to the Child Welfare Committee by the Hospital Authorities. On enquiry, the cause of pregnancy was attributed to a 51 years old man who is the appellant herein .

2. On receiving the complaint given by the minor girl, a case in Crime No.252/2014 under Section 6 of POCSO Act was registered on 01/07/2014 and taken up for investigation. During the course of investigation, the statement of the minor girl was recorded by the Judicial Magistrate. The accused was arrested and based on his confession, his cell phone containing obscene pictures to allure the girl were recovered. On completion of investigation final report filed against the appellant/accused and taken cognizance by the Sessions Court.

3. The trial Court framed charges under Section 5(1)(ii) r/w Section 6 of POCSO Act 2012 and Section 376 of I.P.C and tried the accused.

4. To prove these charges the prosecution examined 16 witnesses, marked 25 exhibits and 4 material objects. In defence, 3 witnesses were examined, two witnesses were examined as Court Witnesses. The trial Court held the accused guilty of both charges. He was sentenced to undergo 10 years R.I and to pay fine of Rs.1,000/- in default 6 months S.I for the offence under Section 376 IPC. For the offence under Section 5(1)(ii) r/w 6 of POCSO he was sentenced to undergo 10 years R.I and to pay a fine of Rs.1,00,000/- in default to undergo one year S.I. The period of substantive sentence was ordered to run concurrently and the period of imprisonment already undergone was ordered to be set off under Section 428 of Cr.P.C.

5. Being aggrieved by the judgment of conviction and sentence, the present appeal is filed.

6.(i) The Learned Counsel for the appellant submitted that the trial Court has failed to consider that the case of prosecution bristles with contradictions and falsehood. The complaint generated from the Child Welfare Committee office on the dictate of the Welfare Officer is figment of imagination and abuse of law. The allegation that P.W-1 was a minor at the alleged time of occurrence was not proved with conclusive evidence. The opinion of the doctor about the age of the girl and the birth certificate creates doubt about the minority of the girl. The accused was specifically charged for impregnating P.W-1. However, the prosecution has not conducted potency test or sperm count test. At the time of complaint, medical evidence indicates that P.W-1 was carrying 2 months old foetus. Whereas, P.W-1 has deposed she had been subjected to intercourse by the accused a month before the complaint. Thus, it is clear that, for the 2 months old foetus, which got aborted on 28/06/2014 the accused is not responsible. Therefore, charge under section

5(j)(ii) of POCSO Act is unsustainable.

6.(ii) According to P.W-1, she used to voluntarily visit the house of the appellant/accused on Sundays and the accused used to have sexual intercourse with her and she used to receive financial assistance from him. If so, the said act is by consent and will not attract Section 376 of I.P.C. Even otherwise, for one and the same Act, charge for aggravated sexual offence under POCSO Act and charge for rape under I.P.C were framed separately and convicted for each charges. This amounts to double jeopardy and against the constitution. The trial Court also failed to consider the evidence of defence witnesses that P.W-1 had acquaintance with several male friends and admittedly taken tablets earlier to terminate pregnancy.

7. The Public Prosecutor representing the Government of Puducherry, in defence of the trial Court verdict, submitted that the date of birth of the P.W.1 is 06/02/1999 and same was proved through her birth cert