(Prayer: Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, to call for the entire records connected to the judgment in Spl.S.C.No.22 of 2022, dated 28.10.2022, on the file of the Sessions Judge, Mahila Court, Pudukottai and set aside the conviction and sentence imposed against the appellant.)

G.K. Ilanthiraiyan, J.

1. This appeal is directed as against the Judgment passed in Spl.S.C.No.22 of 2022, dated 28.10.2022, on the file of the Sessions Judge, Mahila Court, Pudukottai.

2. The case of the prosecution is that the complainant is the mother of the minor victim girl and she resides in the house next door of the accused along with the victim girl, who is aged about 15 years and her two other younger daughters. On 07.11.2021, when the mother of the victim girl was taking her younger daughters to Trichy for leaving them in Nagamangalam school hostel, around 4.30 p.m., the victim was playing outside her house, the accused called her to bring some water. When the victim girl went to the house of the accused, he had entered the house and had locked the door with sexual intent and had pushed the victim girl down and had removed her dresses and had committed aggravated penetrative sexual assault on her. Earlier, ten months prior to the occurrence, the accused had kept the victim girl in his house and in drunken mood had committed aggravated penetrative sexual assault on her and had criminally intimidated the victim girl that if she discloses the same to anyone, he would murder her.

3. Based on the complaint given by P.W.1, who is the mother of the victim girl, FIR was registered by the Pudukkottai All Women Police Station in Cr.No.24 of 2021 for the offences punishable under Sections 506 Part I of IPC and Section 5(l) and 6(1) of POCSO Act. After completion of investigation, a final report was filed and the same has been taken cognizance by the trial Court. The trial Court framed the charge under Section 6(1) of the POCSO Act and Section 506 Part I of IPC as against the accused.

4. In order to bring the charges to home, the prosecution had examined P.W.1 to P.W.8 and marked Ex.P.1 to Ex.P.10. On the side of the accused, D.W.1 to D.W.3 were examined and Ex.D1 was produced before the trial Court.

5. On perusal of oral and documentary evidence, the trial Court found the accused guilty for the offence punishable under Section 6(1) of POCSO Act and 506 Part I of IPC. He was sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,00,000/-, in default, to undergo one year Rigorous Imprisonment for the offence punishable under Section 6(1) of POCSO Act; he was sentenced to undergo two years Rigorous Imprisonment. Aggrieved by the same, the appellant has preferred the present appeal.

6. The learned counsel for the appellant submits that, due to previous enmity, a false case has been foisted as against the accused. The victim girl's house is nearby to the house of the accused. On the date of occurrence, the mother of the victim girl had visited the school hostel at Nagamangalam to leave her two younger daughters. At that juncture, she received a phone call from her co-sister one Mathumithra about the occurrence. Thereafter, she came to her house and enquired about the occurrence with the victim girl and lodged a complaint on the next day ie., on 08.11.2021 at about 07.00 p.m. There was a huge delay in lodging the complaint and that there is no explanation by the prosecution. On 28.10.2021 there was a dispute between the accused family and the victim girl's family with regard to drawing of water in the public pipeline, which is situated close to their house. In continuation of the same, on the same day at about 08.00 p.m., the husband of the co-sister of P.W.1, under the influence of alcohol, came to the house of the accused along with all family members and assaulted the accused. Therefore, the accused sustained injury and immediately, he was taken to the Government Hospital, Kantharvakottai at about 11.10 p.m, where, the Accident Register was also recorded and it was marked as Ex.D1. However, due to the advise of the panchayathars, no complaint was lodged as against the persons, who assaulted the accused. In order to escape from the clutches of law, P.W.1 has given a false complaint as against the accused and projected as if he committed aggravated penetrative sexual assault on the victim girl. In order to substantiate the same, the accused had examined D.Ws.1 to 3, however, the trial Court, without considering the same, mechanically convicted the appellant on the strength of the statement of the victim girl. The prosecution also failed to examine any other witness to corroborate the evidence of the victim. Even according to the prosecution, the co-sister of P.W.1 and the grand-mother of the victim girl had come to the scene of occurrence and they rescued the victim girl at the hands of the accused. However, they were not examined by the prosecution. The doctor, who examined the victim girl, deposed as P.W.3. She opined that the victim’s hymen was not intact. There were no external injuries observed. The pubic hair was sparse. There was no bleeding or abnormal pain noted in the genital area of the victim. There was no spermatozoa detected on the victim. Therefore, except the evidence of the victim girl, no other evidences support the prosecution case.

7. Per contra, the learned Additional Public Prosecutor appearing for the respondent submits that the delay is immaterial in sexual offence cases. On the next day of the occurrence, the complaint was lodged and therefore, there was no delay in lodgment of the complaint. The victim girl's evidence is the best evidence and it need not be corroborated by other evidences. The doctor, who examined the victim girl deposed as P.W.3 and she opined that the victim's hymen was not intact. The victim girl's mother had deposed as P.W.1 and she categorically deposed about the occurrence. Though the defence side had taken a plea that there was a dispute with regard to drawing of water in the public pipeline, in order to substantiate the same, the accused did not produce any documentary evidence. Hence, the trial Court rightly convicted the accused and does not warrant any interference of this Court.

8. Heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent.

9. The mother of the victim girl had deposed as P.W.1. According to her statement, on the date of occurrence ie., on 07.11.2021 she went to Nagamangalam to drop their two younger daughters in the school hostel. On the same day, at about 08.00 p.m., she received a phone call from her co-sister one Mathumithra about the occurrence and she stated that, her minor daughter was subjected to aggravated penetrative sexual assault at about 04.30 p.m., by the accused and on the next day, ie., on 08.11.2021 she lodged a complaint at about 07.00 p.m., before the respondent police. The complaint was marked as Ex.P1. On receipt of the said complaint, the respondent police registered the FIR in Cr.No.24 of 2021 against the accused. On the next day, ie on 09.11.2021 at about 1.30 p.m., the respondent police arrested the accused at about 03.00 p.m., and he was remanded to judicial custody.

10. The victim girl had deposed as P.W.2. She stated that, on 07.11.2021 her mother went to hostel to drop her two younger sisters at the Nagamangalam school hostel, thereafter, while she was playing with other children, the accused called her and asked her to fetch some water from his house. After entering into the house, the accused locked the door and shut her mouth with towel and had committed penetrative sexual assault on her. While being so, her peternal aunt ie., co-sister of P.W.1 called the victim and immediately, the accused flew away from his house. Thereafter, the victim girl informed the occurrence to her paternal aunt and grand-mother, thereafter, the paternal aunt informed the same P.W.1 through phone. After registration of the FIR, the victim girl was subjected for medical examination before P.W.3. P.W.3 recorded her statement that on 07.11.2021 at about 4.30 p.m., the accused had committed penetrative sexual assault on her. On her examination, she found that the victim's hymen was not intact, and no external injuries, pubic hair sparse or bleeding/abnormal discharge was found. She was not pregnant and the vaginal smear was collected for analysis of Forensic Science Laboratory and accordingly, no spermatozoa was detected. Thereafter, the statement of the victim girl was recorded under Section 164 of Cr.P.C., which was marked as Ex.P3. The relevant portion of her statement is as follows:-

                  

11. Thus, it is clear that, she did not even whisper about the earlier occurrence, which was allegedly committed by the accused, 10 months prior to the occurrence. In the statement, she did not state anything about the presence of the paternal aunt and her grand-mother. It is also curious to note that the prosecution did not examine the paternal aunt and the grand-mother of the victim girl to corroborate the evidence of the victim girl. Further, the prosecution also failed to recover any material such as, towel from the place of occurrence, which was used to shut the mouth of the victim girl. According to the prosecution, the accused shut the mouth of the victim girl with a towel and had committed aggravated penetrative sexual assault on her. It is also useful to extract the relevant portion of the victim girl's evidence hereunder:-

                  

                  

                  

12. The investigating officer recorded the statement of P.W.3 under Section 161(3) of Cr.P.C. In her statement, she stated that the hymen of the victim was intact. The accident register was marked as Ex.P4. Accordingly, the doctor opined that the hymen of the victim was not intact. The report also revealed that no evidence of free fluid in abdomen and pelvis was found. Though the victim girl is fit for having sexual intercourse, there is no injury on the part of her genetelia. However, in the handwritten copy of the accident register, P.W.3 recorded that the hymen was not intact. While deposing before the Court, she deposed that her hymen was not intact. The prosecution has not examined any other witnesses, except the victim girl and the doctor. In the sexual offence case, though the victim girl's evidence is sufficient to convict the accused, there are circumstances, warranted to corroborate the evidence of the victim girl. The specific defence of the accused was that, on 28.10.2021 there was a quarrel between the accused family and the victim's family with regard to drawing of water from the public pipeline. The family members of the accused had put up hosepipe in the pipeline and had drawn water and the same was objected by the cosister of P.W.1 and immediately, her husband removed the pipe. Therefore, there was an altercation between them and due to which, the mother of the accused sustained injury on her eyes, however, no complaint was lodged on the advise of Panchayathars. On the same day, at about 08.00 p.m., the husband of P.W.1's co-sister and the grand-mother of the victim girl came to the house of the accused and scolded them with filthy language and also assaulted the accused and his family members. Therefore, the accused sustained injuries. Immediately, he was taken to the Government Hospital, Kantharvakottai at about 11.10 p.m., where he was treated by the Medical Officer. The Accident Register was recorded and it was marked as Ex.D1. On perusal of Ex.D1, it is revealed that the accused was assaulted by 5 known persons at his residence. Therefore, he sustained injuries and he was treated as out patient. Though the accused and his family members intended to lodge a complaint, D.W.3, who is the ward councillor, pacified them and as such, no complaint was lodged. However, P.W.1 and her co-sister along with the grand-mother of the victim thought that they would lodge a complaint against them and as such, they foisted a false complaint as if, the accused had committed aggravated penetrative sexual assault on the victim. The relevant portion of the evidence of D.W.1 is extracted hereunder:-

                  

                  

                  

13. Her evidence also corroborate with the crossexamination of P.W.1. P.W.1 categorically admitted that, on the date of occurrence, there was a dispute with regard to drawing of water from the public pipeline. The relevant portion of the deposition of P.W.1 is as follows:-

                  

                  

14. Further it is also clear that, P.W.1 received information about the occurrence through phone call from her co-sister. Hence, the defence proved the motive for lodging false complaint as against the accused. That apart, the victim did not even whisper about the earlier occurrence, allegedly committed by the accused, in her statement recorded under Section 164 of Cr.P.C., First time, in the Court, she deposed that during Corona period, the accused had committed the same offence against her. But P.W.1 deposed that, 10 months prior to the occurrence, the accused had committed the same offence as against the victim girl. However, it is not corroborated by P.W.2 by her deposition or by her statement recorded under Section 164 of Cr.P.C., The victim girl was about 15 years at the time of occurrence. She attained puberty and further had the maturity to have prevented the appellant from committing such offence. No prudent person would keep quit for 10 months without even whispering about the incident to anybody. It is not the case of the victim that she was threatened with dire consequences, if she informed about the occurrence to others. But P.W.1 deposed that the accused had threatened the victim with dire consequences if she discloses the occurrence to anybody. The victim did not even whisper about the alleged threatening made by the accused in her statement recorded under Section 164 of Cr.P.C., and also she did not even whisper about the earlier occurrence in the statement recorded under Section 164 Cr.P.C. The accused had also examined D.W.2 and D.W.3. D.W.2 is a third person and she categorically deposed that on the date of alleged occurrence, there was a dispute with regard to drawing of water from the public pipeline. The relevant portion of D.W.2 is as follows:-

                  

                  

15. D.W.2 categorically corroborated the evidence of D.W.1 and it is also admitted by P.W.1 in her crossexamination. The ward councillor was examined as D.W.3. He also supports the case of the accused and he was the one who pacified both the family members and prevented them from lodging any complaint. The relevant portion of D.W.3's deposition is as follows:-

                  

                  

16. Thus, it is clear that, previous enmity between both the family members with regard to drawing of water from the public pipeline was categorically proved by the defence. The accused's family is residing very close to the house of the victim girl. If at all the first occurrence had happened, that too, 10 months prior to 07.11.2021, it could not have been possible for the accused to live near the house of the victim. Further, the victim girl did not even whisper about the date, time and place of the earlier occurrence. It clearly shows that only to wreak vengeance against the accused, the victim girl was tutored by P.W.1 and a false case had been foisted against him. The non-examination of co-sister of P.W.1 and the grandmother of the victim is fatal to the case of the prosecution. P.W.2, the victim girl categorically deposed that her paternal aunt and her grand-mother rescued her on the date of occurrence. Further, the alleged occurrence took place at about 4.30 p.m., on 07.11.2021 and the complaint was lodged only on 08.11.2021, that too, at about 07.00 p.m. The prosecution failed to explain the delay in lodging the complaint. It is true that, in the sexual offence case, the delay is immaterial and it is not fatal to the case of the prosecution. However, in the case on hand, the delay speaks the false complaint foisted as against the accused. Further, P.W.3, who had examined the victim girl, also is not clear about the condition of the victim girl's hymen. In one place she had stated that the hymen was intact and in another place she had stated that the hymen was not intact. That apart, admittedly, no injury was found on the genetelia of the victim girl. Hence, the entire case of the prosecution appears to be false and only to wreak vengeance as against the accused, a false case has been foisted against him.

17. It is also pertinent to note that the accused, after committing the alleged serious offence, he did not abscond anywhere. He was very much available in his house till his arrest. In fact, he went to the hospital for the injury sustained by him due to attack of the victim girl's family members. Therefore, no prudent person, after committing such grave offence, would be present in his house. It is not the case of the victim that she was threatened by the accused, if disclosed to anybody. Further, even according to the case of the prosecution, the paternal aunt and the grand-mother of the victim were very much present in the scene of occurrence. Even then, she did not disclose the offence. Therefore, the cumulative effect of the inconsistent testimony of the victim, lack of corroboration of the medical evidence, lack of authenticity in the evidence of prosecution witnesses and the proper rebuttal of presumption under Section 29 of POCSO Act on part of the defence by conclusively proving that the case on hand was foisted falsely to wreak vengeance brings this Court to the conclusion that the appellant is innocent.

18. In view of the above, the conviction and sentence imposed on the appellant in Spl.S.C.No.22 of 2022, dated 28.10.2022, on the file of the Mahila Court, Pudukkottai cannot be sustained and are liable to be set aside.

19. In the result, this Criminal Appeal is allowed and the judgment made in Spl.S.C.No.22 of 2022, dated 28.10.2022, on the file of the Mahila Court, Pudukkottai, is hereby set aside and the appellant is acquitted of all the charges. The bail bond, if any, executed by the appellant shall stand cancelled. The fine amount, if any paid, shall be refunded to the appellant. The appellant shall be set at liberty forthwith, if he is no longer required in connection with any other case.