Conviction for aggravated penetrative sexual assault was overturned due to lack of penetrative evidence; modified conviction for sexual assault under relevant sections of the POCSO Act was upheld.

JUDGMENT :

G.K.ILANTHIRAIYAN, J.

1. This appeal is directed as against the Judgment passed in Spl.S.C.No.171 of 2019 on the file of the Special Court, for Exclusive Trial of Cases under POCSO Act, Thoothukudi, dated 28.07.2023, thereby convicted the appellant for the offence punishable under Section 5(m) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 (in short hereinafter referred to as 'the POCSO Act') and sentenced him to undergo imprisonment of life and imposed with the fine of Rs.10,000/- in default to undergo six months Simple Imprisonment.

2.The case of the prosecution was that on 23.11.2017 at about 05.00 p.m., while the minor victim girl, aged about 4 years, was playing in front of her house with her brother, her mother, who was inside the kitchen, heard the child crying. When she was rushed out, she saw the appellant running out of the house. When she had enquired the minor victim girl, she informed her mother that the appellant had laid her down after removing her clothes and had committed aggravated penetrative sexual assault on her. Therefore, the mother of the victim girl lodged a complaint before the respondent and F.I.R had been registered in Crime No.15 of 2017 for the offences punishable under Section 5(m) r/w 6 of POCSO Act. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the trial Court in Spl.S.C.No.171 of 2019 on the file of the Special Court for Exclusive Trial of Cases under POCSO Act, Thoothukudi.

3.On the side of the prosecution, in order to bring the charges to home, they had examined P.W.1 to P.W.17 and Exs.P1 to P13 were marked. On the side of the appellant, no one was examined and no documents were produced before the trial court.

4.On perusal of the oral and documentary evidence, the trial Court found the appellant guilty for the offence punishable under Section 5(m) r/w 6 of POCSO Act and sentenced him to undergo imprisonment of life and imposed with the fine of Rs.10,000/- in default to undergo six months Simple Imprisonment.xAggrieved by the same, the present appeal has been filed.

5.The learned counsel appearing for the appellant submitted that there were contradictions between the evidence of P.W.1 and P.W.2. The victim child was examined as P.W.1 and her mother was examined as P.W.2. That apart, the victim girl was only aged about 4 years at the time of alleged occurrence. No such occurrence was happened and a false case has been foisted as against the appellant.

6.According to the learned counsel, P.W.2 deposed that the alleged occurrence had taken place in front of the house, whereas P.W.1 deposed that the alleged occurrence took place inside the house. Even assuming that the said occurrence happened inside the house, P.W.2 was very much present in the house and there was absolutely no chance that the said occurrence could have happened that too aggravated penetrative sexual assault on the minor victim girl. The minor victim girl was aged about only 4 years and it could not be possible for aggravated penetrative sexual assault. The victim minor girl was subjected for medical examination before P.W.8.

7.P.W.8 deposed that the victim girl did not sustain any injury on her private part and her hymen was intact. Therefore, the medical evidence did not support the case of the prosecution and even then, the trial Court without considering the above facts and circumstances mechanically convicted the appellant that too for the offence punishable under Section 5 (m) r/w 6 of POCSO Act. Even assuming that the case of the prosecution is true at the worst the appellant