The legal threshold for conviction under POCSO necessitates clear evidence which the prosecution failed to meet for certain charges, allowing modification of the conviction and sentence.

(Judgment of the Court was delivered by N.ANAND VENKATESH, J)

The present criminal appeal has been filed against the judgment of the Sessions Judge, Fast Track Mahila Court, Sivagangai in Special S.C.No.12 of 2015, dated 04.12.2019, convicting the appellant for offence under Section 6 read with 5(k) and 5(m) of “the Protection of Children from Sexual Offences Act, 2012, (for brevity hereinafter referred to as “the POCSO Act”) and sentenced to undergo life imprisonment and to pay fine of Rs.10,000/-, in default to undergo one year rigorous imprisonment. The sentences were directed to run concurrently.

2. The case of the prosecution is that the victim girl was aged about 10 years and she was a mentally challenged person. The accused person was living near the house of PW4. PW4 is the grandfather of the victim girl. It is alleged that on 13.11.2014 the accused person is said to have sexually assaulted the victim girl. PW4, who is the grandfather, saw the victim girl coming out of the house of the accused holding her undergarment clothes in her hand. It came to light that the victim girl was sexually assaulted by the accused person.

3. A complaint (Ex.P1) came to be given by PW1, who is the mother of the victim girl. Based on the same, an FIR came to be registered (Ex.P10). The statement of the victim girl was recorded under Section 164 of CrPC., (Ex.P3).

4. PW15, who is the investigation officer, took up the investigation and went to the place of occurrence and prepared Observation Mahazar (Ex.P4) and Rough Sketch (Ex.P11). The accused person is said to have given an extra-judicial confession to PW8, who is the Panchayat President and admitted his guilt.

5. The investigation officer recorded the statements of witnesses and collected all the relevant materials and laid the police report before the court below. The Special Court framed charges against the accused person for offence under Section 5(k) and 5(m) read with Section 6 of the POCSO Act. The accused person denied the charges as false.

6. The prosecution, in order to prove their case, examined PW1 to PW15 and marked Exhibits P1 to P13 and also relied upon MO1.

7. On completion of the evidence on the side of the prosecution, the incriminating materials and evidence was put to the accused person while he was questioned under Section 313 of CrPC. He denied the same as false.

8. The accused person did not examine any witnesses but relied upon one document.

9. The trial court, on considering the facts and circumstances of the case and on appreciation of evidence, came to the conclusion that the accused person failed to discharge the reverse burden and the prosecution has proved the foundational facts and hence convicted and sentenced the accused person in the manner stated supra. Aggrieved by the same, the present appeal has been filed before this Court.

10. This Court carefully considered the submissions made on either side and the materials available on record.

11. In the case in hand, the evidence of PW1, the victim girl PW2, PW4 the father of PW1, the President of Panchayat PW8, and the evidence of the doctor PW13 assumes a lot of significance.

12. PW1, who is the mother of the victim girl, states that she had sent the victim girl to the house of her father and the victim girl all of a sudden went missing for half an hour and she came out of the house of the accused person by carrying her clothes in her hand. She was not sounding normal and she was a mentally challenged person who cannot express herself. However, she was continuously pointing out to her private part. On suspicion, the accused person was questioned and he was taken t