CRL A No.562 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on

: 18.11.2022

Pronounced on : 01.12.2022

Coram:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN

Criminal Appeal No.562 of 2021

and

Criminal M.P.No.17505 of 2022

G.Ganesan

... Appellant

Vs.

The State, represented by

The Inspector of Police,

W-15, All Women Police Station,

Royapuram, Chennai.

(Crime No.02 of 2020)

... Respondent

Prayer : Criminal Appeal filed under Sections 374(2) of Criminal

Procedure Code, praying to call for the records in Spl.S.C.No.65 of 2020

on the file of the learned Special Court for Exclusive Trial of Cases under

POCSO Act, Chennai set aside the Judgment and order of conviction

dated 23.09.2021 against the appellant/accused and thereby allow the

appeal.

For Appellant

: Mr.S.Conscious Ilango

For Respondent

: Mr.S.Sugendran

Additional Public Prosecutor

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CRL A No.562 of 2021

J U D G M E N T

This Criminal Appeal has been filed to set aside the conviction and

sentence passed by the learned Special Court for Exclusive Trial of Cases

under POCSO Act, Chennai in Spl.S.C.No.65 of 2020, dated 23.09.2021.

2. The respondent police registered the case in Crime No.02 of

2020 for the offence under Section 9(m) which is punishable under

Section 10 of Protection of Children from Sexual Offences Act, 2012.

After completing the investigation filed the charge sheet before learned

Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO

Act, since the offence is against a child.

3. The learned Sessions Judge after completing the formalities

framed the charge against the appellant for the offence punishable under

Section 10 of POCSO Act, 2012.

4. After framing the charge, in order to substantiate the charge

framed against the appellant, during the trial, on the side of the

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CRL A No.562 of 2021

prosecution as many as 7 witnesses were examined as PW 1 to PW 7 and

7 documents were marked as Ex. P1 to P7. No material object was

marked on the side of the prosecution.

5. After completing the examination of prosecution witnesses,

when the incriminating circumstances culled out from the evidence of

prosecution witnesses were put to the appellant by questioning under

Section 313 of CrPc, he denied the same as false and pleaded not guilty.

On the side of the defense, 16 documents were marked as Ex.D1 to D16.

6. On completion of trial, hearing the arguments advanced on

either side and considering the materials, the trial court found guilt of the

accused for the offence punishable under Section 10 of POCSO Act,

2012 and the accused was convicted and sentenced to undergo 5 years of

imprisonment and pay fine of Rs.5,000/-in default to undergo further

period of 1 month simple imprisonment.

7. Challenging the said judgment of conviction and sentence

passed by the trial court, the accused has filed the present appeal.

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CRL A No.562 of 2021

8. The case of the prosecution is that the parents of the victim were

separated each other due to difference of opinion between themselves.

Thereafter, they decided to get a divorce by mutual consent. At the time

of lockdown, the mother of the victim left her daughter to the father.

Since, the parents of the victim were working, the father of the victim

used to leave his daughter in his sister's house. The appellant who is a

close relative and by relation grandfather to the victim and maternal

uncle to the father of the victim was also in the house. When the victim

was studying LKG, the son of the appellant and the victim were playing

hide and seek, the appellant showed his private part in the bathroom and

he made the victim girl to touch it. Again on another occasion, when the

victim girl was studying 3^rd standard, the appellant hugged the victim

from the back and touched her vagina. Thereafter, the victim