(Prayer: Criminal Appeal is filed under Section 415 of BNSS, 2023, to call for the records pertaining to the Judgment of conviction passed in Spl.S.C.No.59 of 2023 on the file of the learned Sessions Judge, Principal Special Court for Exclusive Trial of Cases under POCSO Act, Madurai, dated 17.05.2024 and set aside the same by allowing the present Criminal Appeal.)

G.K. Ilanthiraiyan J.

1.This appeal is directed as against the Judgment passed in Spl.S.C.No.59 of 2025 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Madurai dated 17.05.2024, thereby convicted the appellant for the offences punishable under Section 5(l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short hereinafter referred to as 'the POCSO Act'), 5(n) r/w Section 6 of the POCSO Act and under Section 506 (PART I) of IPC.

2. The case of the prosecution was that when the victim girl was studying in the 7th standard at the age of 12, the accused was not regularly employed and, as a result, his wife was working in a private garment firm. Her working hours were from 08.00 a.m. to 06.30 p.m. The victim girl used to return home from school at about 05.00 p.m. While being so, on 24.11.2022, when the mother of the victim girl came home after finishing her work as usual, she found her daughter’s panties lying rolled up in the room and questioned her as to why she had kept the undergarment in the hall instead of the bathroom. Immediately, the victim girl began to cry and told her mother that when she returned home from school, her father/the accused herein, had hugged her from behind and compelled her to remove all her clothes. Thereafter he had committed penetrative sexual assault on her. He also threatened to beat her to death if she disclosed the incident to anyone. Immediately thereafter, she was taken to a doctor and medically examined. Subsequently, the wife of the accused went to the respondent police and lodged a complaint seeking appropriate action as against the accused. On receipt of the same, the respondent registered the FIR in Crime No.20 of 2022 for the offences punishable under Section 5(l) r/w Section 6 of the POCSO Act, 5(n) r/w Section 6 of the POCSO Act and under Section 506 (PART I) of IPC. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the Trial Court.

3. During trial in order to bring the charges to home, the prosecution had examined P.W.1 to P.W.13 and Exs.P1 to P.20 were marked. On the side of the appellant no one was examined and no documents were produced before the Trial Court.

4. On perusal of the oral and documentary evidence the Trial Court found the accused guilty for the offences punishable under Section 5(l) r/w Section 6 of the POCSO Act, 5(n) r/w Section 6 of the POCSO Act and under Section 506 (PART I) of IPC. He was sentenced to undergo rigorous imprisonment for life, which shall mean imprisonment for the remainder of natural life of the accused for the offences under Section 5(l) r/w Section 6 of the POCSO Act and 5(n) r/w Section 6 of the POCSO Act and was imposed with the fine of Rs.25,000/-, in default, to undergo two months Simple Imprisonment. He was also sentenced to undergo Rigorous Imprisonment for a period of two years and was imposed with the fine of Rs.5,000/-, in default, to undergo three months Simple Imprisonment for the offence under Section 506 (PART I) of I.P.C. Aggrieved by the same, the present appeal has been filed.

5. The learned counsel appearing for the appellant submitted that the defacto complainant is none other than the wife of the appellant. Due to family disputes, she allegedly tutored their own daughter and lodged a false complaint against her own husband. The victim girl was subjected to medical examination. The forensic scientist, who was examined as P.W.7, deposed that during the medical examination no semen was detected and there were no injuries on the genitalia of the victim. Therefore, the medical evidence did not support the case of the prosecution. According to the case of the prosecution, the victim girl was subjected to aggravated penetrative sexual assault at the hands of the appellant for more than once for the past several months. However, the victim girl did not disclose the occurrence to anyone. Therefore, there was a significant delay in the lodging of the complaint, and it was only after taught. The appellant is a drunkard and did not support the family at any point of time. Consequently, quarrels took place among the family members, and a false complaint was foisted against the appellant. Even in the swab test, there was no finding of semen, and the victim girl was not pregnant. The appellant also made a specific statement during his examination under Section 313 of the Cr.P.C, however, the Trial Court, without considering any of the grounds, mechanically convicted the appellant.

6. Per contra, the learned Additional Public Prosecutor appearing for the respondent submitted that the victim girl was examined as P.W.3 and her mother was examined as P.W.1. They categorically deposed about the specific overt acts of the appellant. The doctor who examined the victim girl was examined as P.W.8. The evidence of P.W.1 is clear and cogent. Further, another doctor who examined the victim girl was examined as P.W.12. Upon medical examination, it was found that the victim girl’s hymen was not intact, indicating the possibility of sexual intercourse. Therefore, the prosecution proved all the charges beyond reasonable doubt, and the Trial Court rightly convicted the appellant.

7. Heard the learned counsel appearing on either side and perused the materials placed on record.

8. The appellant is none other than the biological father of the victim girl, who was about 12 years old at the time of the occurrence. The mother of the victim girl deposed as P.W.1. She was originally married to another person and later divorced him. Thereafter, she married the appellant and gave birth to two children, the victim girl being the second child. The appellant is a drunkard and used to come home daily in an inebriated condition. He did not engage in any regular work. While being so, on 24.11.2022, when the victim girl returned home from school, the appellant was present in the house. He hugged her from behind and forcibly removed all her dresses. Thereafter he had committed aggravated penetrative sexual assault on the victim girl. While her clothes were being removed, her panties were left in the hall instead of being placed in the bathroom. When P.W.1 returned to the matrimonial home, she questioned the victim girl about it. Immediately, the victim girl disclosed everything about the appellant. She deposed that, for the past several months, the appellant had been engaging in similar acts and had threatened her with dire consequences if she revealed them to anyone. P.W.1 immediately took the victim girl to SVR Hospital in Villupuram. The doctor examined her and referred the case to the jurisdictional police station, as she had been sexually abused by the appellant. Thereafter, P.W.1 lodged a complaint, which was marked as Ex.P.1 before the respondent.

9. The complainant was examined as P.W.1 and the victim girl was examined as P.W.3. The depositions of P.W.1 and P.W.3 corroborated each other and proved that the appellant had committed aggravated penetrative sexual assault on his own daughter. The relevant portion of the deposition of P.W.3 is as follows:

               

              

             

Thus, it is clear that the appellant had committed aggravated penetrative sexual assault on his own minor daughter who was aged about 12 years at the time of occurrence.

10. On receipt of the complaint, the respondent registered FIR in Crime No. 20 of 2022, which was marked as Ex.P.1. Immediately, the victim girl was subjected to medical examination. The doctor who examined her was examined as P.W.12. P.W.12 also recorded the statement of the victim and issued a medical certificate, which was marked as Ex.P.15. The findings in the final medical report are as follows:

                “1. Hymen not intact

                

11. Therefore, the hymen of the victim girl was not intact. Although she did not sustain any injury to her genitalia, her hymen was found to be ruptured. Immediately after committing the offence, the appellant directed the victim girl to take a bath. Consequently, spermatozoa were not found in the vaginal smear test. However, the deposition of P.W.3 is clear and cogent. No daughter would depose against her father, especially with grave and serious allegations, without cause. Although the appellant, in his statement under Section 313 of the Cr.P.C., claimed that there was a family dispute between himself and his wife, he failed to disprove the case of the prosecution and did not produce any evidence to substantiate this contention before the Trial Court.

12. Further, the appellant is a drunkard. He used to come home daily in an inebriated condition and did not engage in any work. The mother of the victim girl, who deposed as P.W.1, used to go to work daily at a private garment company and would return home after 06.30 p.m. The victim girl used to return home from school at around 05.00 p.m. Utilising the circumstances, the appellant had committed aggravated penetrative sexual assault on the victim girl.

13. After registration of the FIR, the appellant was also subjected for medical examination to assess his sexual potentiality. P.W.8 examined him and issued a certificate, which was marked as Ex.P.10. The report revealed that there was nothing to suggest that he was impotent and there was nothing to suggest that he was impotent or unfit to have sexual intercourse.

14. There is no eyewitness to the offence and the victim girl is the sole witness. Immediately after registration of the FIR, the statements of the victim girl and her mother were recorded under Section 164 of Cr.P.C., which were marked as Ex.P2 and Ex.P3. Both statements clearly corroborated the evidence given by PW1 and PW3. The victim girl's statement is found to be credible and reliable and therefore, it does not require any further corroboration. On the sole testimony of the prosecutrix, the accused can be very well convicted.

15. Further, in view of Section 29 of the POCSO Act, there is a presumption of the commission of such offence if the fundamental facts are proved. In the case on hand, the prosecution categorically proved through the headmistress of the victim girl who had deposed as P.W.10 and issued a bonafide certificate which was marked as Ex. P12. It revealed that the victim girl was aged about 12 years at the time of occurrence. Therefore, a presumption has arisen that the appellant had committed the offence of penetrative sexual assault against the victim girl which establishes the requisite culpable mental state. However, the appellant failed to disprove the case of the prosecution.

16. Accordingly, the Trial Court rightly convicted the appellant for the offences punishable under Section 5(l) r/w Section 6 of the POCSO Act, 5(n) r/w Section 6 of the POCSO Act and under Section 506 (PART I) of IPC and there are absolutely no grounds to interfere with the judgment rendered by the trial Court. Hence, the appeal fails and is dismissed. Consequently, connected Miscellaneous Petition is closed.