Conviction for aggravated sexual assault under the POCSO Act can be sustained based on the credible and corroborated testimony of the victim, even if medical evidence does not prove penetration, provided the acts fall within the statutory definition of the offense.

J U D G M E N T

The appeal challenges the conviction and sentence imposed on the appellant for the offences under Section 9(m) r/w 10 of the POCSO Act.

(i)The case of the prosecution is that the appellant had committed aggravated sexual assautl on the victim girl aged about 6 years on 20.06.2018 by removing her undergarments and placing his private part on the private part of the victim. On the complaint given by PW2, the mother of the victim, PW1, a case was registered by the Sub Inspector of Police PW15 and the investigation was conductged by PW18 and PW19. PW19 filed the final report against the appellant for the offences under Section 5 (m) r/w 6 of the POCSO Act.

(ii) The trial Court framed charges under Seciton 9(m) r/w 10 of the POCSO Act and when questioned, the appellant pleaded 'not guilty.

(iii) The trial Court examined PW1 to PW19 and marked Exts.P1 to P23. When the appellant was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The appellant neither examined any witness nor marked any documents.

(iv) On appreciation of oral and documentary evidence, the Trial Court found that the prosecution had established the case beyond reasonable doubt, and held the accused guilty of the offences under Section 9 (m) r/w 10 of the POCSO Act. The Trial Court sentenced him to undergo five years RI and to pay a fine of Rs.1000/- (id) to undergo one year SI. Hence, the accused/appellant has preferred the appeal challenging the said conviction and sentence.

Mr.P.Muthamizh Selvakumar, the learned counsel for the appellant would submit that the victim's parents had motive to falsely implicate the appellant; that PW10 and PW11 have spoken about the dispute between the two of them; that the victim's evidence does not inspire confidance; that the victim's evidence is not corroborated by the medical evidence; that there are several contradictions between the victim's deposition in Court and her Sec.164 (5) Cr.P.C., statement and that therefore, the impugned Judgment is liable to be set aside.

The learned Government Advocate (Crl. Side) per contra submitted that though the respondent had filed the final report for the offences under Section 5(m) r/w 6 of the POCSO Act, the learned Judge has framed the charges under Section 9(m) r/w 10 of the POCSO Act; that the evidence of the victim and her mother is cogent and convincing; that the victim had been consistant in her versions; that therefore, the trial Court had rightly believed her evidence and convicted the appellant; and that there is no reason to interfere with the impugned Judgment.

As stated above, the prosecution had examined 19 witnesses. PW1 is the mother of the victim. PW2 is the victim. PW3 is the doctor, who had examined the victim and had opined that there was no possibility of sexual penetration. Her opinion was marked as Ext.P4. PW4 is the father of the victim and would corroborate the evidence of the victim and PW1. PW5 belongs to the same village and had assisted PW1 is typing the complaint Ext.P1. PW6 is a hearsay witness and had deposed that after he came to know of the occurrence, he had questioned the appellant. PW7 is the witness to the observation mahazar Ext.P7. PW8 is a witness to the observation mahazar Ext.P8. PW9 is the headmaster of the school, where the victim studied and she had issued Ext.P9, mentioning the date of the birth of the victim as 05.02.2013. PW10 and PW11 are witnesses, who is said to have attested the confession of the appellant. They both turned hostile. PW12 is the constable who assisted the investigating officer and had taken the victim to the doctor. PW13 is the constable who had assisted the investigating officer. PW14 is the constable who had assisted the investigating officer along with PW13. PW15 is the Sub Inspector of Police, who registered the FIR. PW16 is the Doctor, who had examined the victim and had made entries in the accident register Ext.P18. PW17 is the doctor who examin