(Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., against the judgment of conviction and sentence passed by Sessions Judge, Magalir Neethimandram, Tiruvallur in S.C.No.9 of 2015 dated 15.04.2019.)

N. Sathish Kumar, J.

Aggrieved over the judgment of conviction and sentence passed by the learned Sessions Judge, Magalir Neethimandram, Tiruvallur in S.C.No.9 of 2015 dated 15.04.2019, the instant appeal has been filed by the appellant. The accused/appellant was convicted and sentenced by the Trial Court as follows:-

“Table”

2. The case of the prosecution is as follows :

                          2.a. The minor victim/PW1 was aged about 7 years studying at 2nd Standard, residing at Velankandigai Village with PW2 and PW6/grandparents. PW3 is the sister of the PW2, and her daughter was also residing in the same house as a joint family. The appellant is the neighbour of PW2.

                          2.b. On 28.07.2013, after the minor victim returned from school and was playing in the street, the appellant took PW1 to the terrace, committed aggravated sexual assault, and told her to come again. On the same day, PW1 informed PW2/grandmother. PW2 called PW5, who was away; PW5 came there and took PW1 to the Sholinghur Hospital. The Doctor advised admitting the minor child to the hospital, however, PW5 informed the Doctor that they would treat the minor as an out-patient. PW3/sister of PW2 also heard about PW1 informing them of the aggravated sexual assault committed by the accused. PW4/father of the victim after receiving the information after five days came to his village and, after consultation lodged the complaint. PW5 returned to the house on 30.07.2013 after her interview. At that time, PW2 informed about the child complaining of pain in her private parts. Immediately, she also enquired with the child, and the child stated that the accused had committed assault on her. Therefore, she took the child on 02.08.2013 to the Sholinghur Hospital. The Doctor informed that the child has attended and since the child was brought to the hospital with a delay, she could not detect any sperm and other biological materials. PW6 is the grandfather of the victim and husband of PW2. PW7 is the brother of PW6, who also supported the case of the prosecution. PW8 deposed that in his presence, the observation mahazar under Ex.P4 was prepared by the Investigating Officer. PW9 and PW10 are the witnesses to the confession said to have been given by the accused.

                          2.c. PW11/Medical officer attached to the Government Hospital, Tiruvallur on 23.08.2013, she examined the accused and issued Ex.P8/Potency Certificate and Accident Register of the accused opining that there is nothing to suggest that the appellant is impotent. PW12/Medical officer attached to the Government Hospital, Tiruvallur at the relevant point of time has examined PW1 and found a Pinhole Rupture in Hymen and no bleeding in private parts and further opined that no semen/hair or blood samples found on body or genitalia of victim. In this regard, she has issued Ex.P9/Accident Register of the victim girl and Ex.P10. PW14 after receipt of complaint under Ex.P1 registered FIR under Ex.P11 and forwarded the same to the Court and the Investigating Officer. PW15 took up the investigation and arrested the accused and after examination of all the witnesses concerned and collecting of necessary medical documents laid a final report. The case was taken as S.C.No.9 of 2015.

                          2.d The trial Court after securing the presence of the accused, furnished copies of the prosecution documents under Section 207 Cr.P.C., and framed the charges against the accused under Section 366(A), 354(B), 376(2)(f) and 506(ii) of IPC and Section 5(m) read with Section 6 of the Protection of Children from Sexual Offenses Act, 2012. When questioned, the accused pleaded “not guilty”.

                          2.e. To prove the guilt of the accused, the prosecution examined P.W.1 to P.W.15 marked Exs.P1 to P11. When the accused was questioned under Section 313 Cr.P.C. about the incriminating circumstances put against him, he denied the same. No defence witnesses were examined, nor any documents were marked on the side of the defence.

                          2.f. The trial Court, on appreciation of oral and documentary evidence on record, by judgment dated 15.04.2019, convicted and sentenced the accused as stated supra. Challenging the conviction and sentence, the accused have preferred the present appeal.

3. Since the counsel appearing for the accused has not appeared before this Court vide order dated 04.08.2026 appointed Mr.B.Shruthan, as legal aid counsel to represent the accused/appellant

4. The learned legal aid counsel submitted that the entire prosecution case is highly doubtful. PW1/minor victim has been used to settle the long pending civil dispute between the two families and the complaint has been lodged only after 8 days delay. The evidence of PW1 clearly shows that there was deliberation before giving complaint after 8 days. PW1 to PW7/family members have given a parrot like version and their evidence is attached with artificiality. Their evidence clearly indicate that two days prior to the alleged occurrence, the accused was assaulted by all the family members, in which the accused sustained severe injuries and was admitted in the hospital. The investigation has completely failed to proceed this aspect. The Investigating Officer's evidence also indicates that the accused was arrested formally while he was already in jail for some other case; this fact also creates serious doubt regarding the alleged occurrence. The minor child has been used as a shield to vindicate the civil dispute between the two families.

5. Furthermore, the evidence of PW5 indicates that the child was taken to the Government Hospital, Sholinghur, at the first instance, but that doctor has not been examined. Even the Medical Officer/PW12 who examined the PW1, clearly stated that there was no external injury except a pinhole rupture. Hence, would submit that such nature of rupture is also possible by way of injury inflicted by the family members to show that there was a sexual assault. Therefore, when the foundational facts of the prosecution itself have not been established and the case is shrouded with serious suspicious circumstances, the presumption under Section 29 of the Protection of Children from Sexual Offenses (POCSO) Act, 2012 cannot be applied mechanically. The accused is certainly entitled to the benefit of doubt and hence, seeks for allowing this criminal appeal.

6. The learned Government Advocate (Crl.Side), on the other hand, submitted that the minor victim/PW1 is aged about 7 years and has clearly spoken about the role of the accused in committing the aggravated sexual assault. The family members have clearly given cogent evidence; therefore, merely because there was a delay of 8 days in lodging the complaint, that cannot be given much importance, particularly, in offences relating to sexual abuse. The delay may be due to the various circumstances, including the protection of minor child's reputation; therefore, on the sole ground of delay, the prosecution case cannot be disbelieved. PW12/Medical Officer deposed that there were injuries to the hymen; therefore, the statutory presumption is clearly attracted in this case. Hence, seeks for dismissal of the criminal appeal.

7. Heard both sides and perused the materials placed on record.

8. It is well settled that as far as the delay in filing the FIR in cases of sexual abuse or violence against women is concerned, delay alone is not the sole criterion to disbelieve the case of the prosecution. Delay may be due to various factors, such as reluctance of the family members due to social stigma that may be attached to the victim and the women. It is the normal conduct of the family members not to rush to the police station at the initial stage, therefore, mere delay alone cannot be the sole criterion to disbelieve the prosecution case. However, at the same time, when the delay is coupled with some other motive which are also clearly established on record, the delay in lodging the complaint cannot be ignored altogether.

9. Considering the facts and circumstances of the case and the case projectedby the prosecution, the foundational facts which the prosecution would be required to prove is that the victim was subjected to aggravated sexual assault. If the basic and foundational facts of the prosecution is laid by adducing legally admissible evidence, then the burden shifts on to the accused to rebut it.

10. Coming to the foundational fact as to whether the victim was subjected to aggravated sexual assault is concerned, the case of the prosecution is that while victim was playing in the street in front of her house, the accused being the neighbour took her to the terrace and committed aggravated sexual assault by inserting his penis in her mouth, removing her panties, and inserting his penis in her private parts. It is relevant to note that PW1, though a minor, gave a statement to this effect before the Magistrate under Section 164 of the CrPC. However, as far as the allegation of inserting the penis into the private parts of the victim is concerned, it was not spoken to when she was examined before the Court. She only stated that the accused had inserted his penis into her mouth and told her to come again, and that she informed the same to PW2. Whereas, PW2/grandmother deposed that she has seen the bleeding in private part of the child on the same day.

11. It is relevant to note that if any grandmother saw her granddaughter of such tender age suffering from a sexual assault resulting in bleeding, the normal conduct of any grandmother or woman in the family would be to immediately inform others, particularly, the parents. However, PW4/the father of the minor victim stated in his evidence that he was informed about the incident only after five days when he visited the village.

12. Furthermore, while it is the specific evidence of PW2 that she immediately informed PW5, who came immediately to the house and took the child to the Sholinghur Hospital, whereas, PW5 deposed that only on 31.07.2013, when she returned home after her interview, she was informed about incident by PW2, and thereafter she took the child to the hospital only on 02.08.2013. Their evidences also mutually contradictory and against the normal human conduct. PW5 is not a rustic lady; she is a graduate. According to her, she came to know about the incident only on 31.07.2013 and deposed that she inspected the private parts of minor and found enlargement on the private parts. In that case, what would have been the normal conduct of PW5, at-least, she would have rushed to the hospital with the victim on the very same day, instead, she took the victim to the hospital only on 02.08.2013. This aspect also creates a serious doubt about the prosecution version about the alleged sexual assault.

13 It is also to be noted that according to PW5, upon enquiry of PW1, she was informed about the nature of sexual assault. When PW5, even after asserting such sexual assault and seeing some enlargement in the private parts of the minor victim; her normal conduct would be either at-least to take her to the hospital or to the police station immediately, but, only for the first time on 02.08.2013, she took the child to the hospital. PW5 evidence is attached with artificialility. We observe this because there are other materials showing that this case is a classic example of using a minor to settle a long standing civil dispute.

14. In the evidence of PW1, she admitted that prior to the alleged occurrence, all the family members assaulted the appellant, resulting in injuries to him. PW2 though disputed such assault, PW3/who is also residing in the same house with PW2 has admitted that two days prior to the occurrence, all the family members attacked the appellant. Though a suggestion was put that the attack on the accused was due to a land dispute, she admitted that there was an attack, but it is not in regard to the land dispute, but for some other dispute. Furthermore, she cleverly stated that she has not seen the blood injury on the appellant, however, she admitted that appellant was admitted in the hospital after such assault. PW4 who is none other than the father of the victim did not dispute such assault on the appellant prior to the occurrence or that the appellant was admitted in the hospital; instead, he feigned ignorance and stated that such occurrence could have happened, he was not present there since he was engaged in his tailoring business. Therefore, all these facts indicate that two days prior to the occurrence, there was a dispute between the two families over a pathway. It is also admitted by PW4 that only through the land of the appellant, PW1 to PW7 have to reach their land. These facts clearly establish a long standing civil dispute pending between the two families.

15. Though PW12/Medical Officer has found pinhole rupture in hymen, her evidence clearly indicate that there was no bleeding in private parts and other biological materials also found. It is relevant to note that PW12 evidence clearly indicate that there was no injuries caused except small pinhole rupture of hymen. If the story of the prosecution is true that penis inserted and the girl was subjected to penetrative sexual assault, injury should have been more and possibility of creating some artificial injury like pinhole rupture at later point by the family members to implicate the accused also cannot be ruled out. Therefore, merely on the finding that there is pinhole rupture, it is hard to believe the theory of prosecution consideing the fact that the accused was beaten by the family members in a civil dispute just two days prior to the occurrence and he was admitted in the hospital. Such being the position, within two days lifting the child to terrace is also doubtful, particularly, there was already dispute between the two families and the further evidence of witnesses also clealy shows that it is open terrace, it can be seen by neighbouring houses also. Therefore, this aspect also creates serious doubt. The theory of prosecution that the victim was subjected to assault on the open terrace by the accused is also improbable.

16. It is also relevant to note that the evidence of the Investigating Officer shows that the appellant was already in judicial custody in connection with Crime No.256 of 2013 and thereafter, he was formally arrested in this case. It is relevant to note that regarding the nature of the FIR, at whose instance the complaint was given, and when the accused was arrested and remanded to judicial custody, absolutely no materials whatsoever was brought on record by the Investigating Officer. Investigating Officer did not even conduct an investigation regarding the nature of injuries sustained by the appellant or which hospital accused was taking treatment, no investigation whatsoever done in this regard. The investigation proceeded as though the statements of interested witnesses were gospel truth. The investigating Officer did not even made an attempt to examine the doctor who said to have treated the child on 02.08.2013 at the first instance, nor were any steps taken to produce those medical records. All these facts creates serious doubt about the alleged occurrence itself and clearly shows that the accused was falsely implicated by using the young girl of tender age in a family dispute to settle the long standing civil dispute.

17. The evidence of the prosecution itself clearly shows that there was long standing civil dispute over a pathway and two days prior to the alleged occurrence the appellant was severely beaten by the family members and hospitalised due to injuries, whereas, the investigation remains completely silent on the duration and discharge of said medical treatment, therefore, this Court is of the view that the very foundational fact of the prosecution case is shrouded with serious doubt. In a case under POCSO Act, the prosecution is required to prove foundational facts. Unless, such facts are proved, the presumption under Section 29 of the Act cannot be invoked against the accused. The statutory presumption under Section 29 of the POCSO Act, 2012 would stand activated only if the prosecution proves the foundational facts. In the instant case, when the foundational facts itself is not established by the prosecution as discussed above, then the presumption cannot be applied mechanically as against the accused.

18. Furthermore, the very conduct of the family members/PW1 to PW6 in remaining silent even after PW1 was allegedly bleeding in her private parts and not taking her immediately to the hospital is also against the normal human conduct. This clearly indicates a classic example of fabrication and accused has been unnecessarily roped into criminal proceedings. That apart, merely because some facts have been spoken to by the interested witnesses for their personal motive to see the accused gets convicted somehow or other, such persons evidence alone is not sufficient to conclude that fundamental facts have been established by the prosecution as to invoke the statutory presumption under Section 29 of the Protection of Children from Sexual Offenses Act, 2012.

19. For the foregoing reasons, this Court is of the view that this is a fit case where the provisions of the POCSO Act have been misused to settle a civil dispute. Hence, the conviction and sentence recorded by the Trial Court in our view is not on proper appreciation of the entire materials on record. The Trial Court has in fact mechanically recorded the conviction and sentence without any application of judicial mind.

20. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the Trial Court in S.C.No.9 of 2015 dated 15.04.2019 are hereby set aside. The appellant is acquitted of all charges and is directed to be set at liberty forthwith, unless his detention is required in connection with any case. Fine amount, if any, paid by the appellant/accused, shall be refunded to him.