The prosecution must prove the age of the victim under the POCSO Act; absence of verifiable evidence led to the acquittal due to reliance on untrustworthy testimony.

JUDGMENT :

G. ARUL MURUGAN, J.

1. This Criminal Appeal is preferred by the appellant/sole accused challenging the judgment dated 17.11.2021 in Spl.S.C.No.35 of 2020 on the file of the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District.

2. The appellant/accused was convicted by the trial court and sentenced as detailed below:-

3. According to the prosecution, PW1 is having one minor daughter [PW2, aged 16 years] and 2 sons and they are residing in Dharumanthoppu Village, Burgur Taluk, Krishnagiri District. PW2 was born on 26.12.2003 and she had studied till 9^th standard at Government High School, M.Nadupatti and thereafter discontinued her studies due to health condition. Since PW2 had some mental issues, she had undergone treatment from Nimhans Hospital, Bangalore, for 5 months. On 09.12.2019, at 12.00p.m., the appellant, who is a neighbour, had taken PW2/victim to the terrace of his house and had committed penetrative forcible sexual assault for more than thrice on the same day. The appellant had threatened the victim for life if she divulged it to anyone else. Again, on 14.12.2019 at around 6.00p.m., when PW2 was alone at home, the appellant had taken the victim to his house and committed sexual assault. Only then the victim had informed the same to her grandmother, who in turn had informed to PW1. Thereafter, P.W.1 informed her husband/PW3, who was out of station.

4. On arrival of PW3, PW1 lodged the complaint/Ex.P1 on 16.12.2019. PW13/Sub-Inspector of Police received the complaint and registered the FIR/Ex.P11 for offences under Section 5 (l) r/w 6 of The Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as “the POCSO Act”] and Section 506 (i) of IPC. PW14/Inspector of Police took up the investigation and prepared the Observation Mahazar/Ex.P2 in the presence of PW4 and PW5 and the rough sketch/Ex.P12. PW12/Head Constable had taken the victim/PW2 for medical examination. PW11/Doctor examined the victim and issued the OP register/Ex.P6, Medical Certificate/Ex.P7 and Discharge Summary/Ex.P8. The samples collected from the victim were sent for chemical examination in Ex.P10 and the report was received in Ex.P9. PW2 was taken before the learned Magistrate and the statement was recorded under Section 164(5) Cr.P.C. in Ex.P14.

5. The appellant/accused was arrested and the confession was recorded in the presence of PW6 and PW7. The accused was taken for medical examination by the Police Constables/PW8 and PW9. PW10/Doctor examined the accused and had issued the potentiality certificate/Ex.P4. On receipt of the report, PW14 altered the offences to Section 2(1)(d), 6 r/w 5(1) and Section 12 r/w 11(i) of the POCSO Act and Section 506 (ii) of IPC through the alteration report/Ex.P17. After completion of the investigation, PW14 filed the final report before the trial court.

6. The trial court took up the case, issued summons and after complying with Section 207 of Cr.P.C., framed the charges under Section 5 (l) r/w 6, Section 12 r/w 11(i) of the POCSO Act and Section 506 (ii) of IPC. On being questioned, the accused pleaded not guilty and stood trial. In order to prove the charges, the prosecution examined PW1 to PW14 and marked Exs.P1 to P17.

7. On completion of the prosecution evidence, when the accused was questioned under Section 313 Cr.P.C., about the incriminating materials available, he denied the same as false. However, the accused has not examined any witness or produced any documentary evidence.

8. On conclusion of the trial and arguments, aft