(Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, praying to call for the records in Spl.S.C.No.83 of 2021 dated 17.08.2023 on the file of the Sessions Judge, Magalir Neethi Mandram, (Fast Track Mahila Court), Tiruppur and set aside the judgement and allow this appeal.)

The appellant/accused in Spl.S.C.No.83 of 2021 was convicted by the trial Court, by judgment dated 17.08.2023 for the offence under Sections 7 r/w 8 of Protection of Children from Sexual Offences (POCSO) Act, 2012 and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.3,000/-, in default, to undergo three months rigorous imprisonment. Aggrieved against his conviction, the appellant/accused preferred the above appeal.

2.(i) The gist of the prosecution case is that on 18.04.2021, the victim’s mother/PW2 asked the victim/PW1 and her son to buy some chicken. They went to the chicken shop of the appellant at about 1.45 p.m. At that time, the appellant asked the victim’s brother to buy some beedi and sent him out. While the victim was alone, the appellant called the victim inside the shop stating that she was standing in the sun and asked her to sit on a chair. At that time, the appellant kissed her and also molested her. Immediately she came out of the shop, at that time her uncle’s son Prathap came there and found victim crying. The victim informed him about the incident and the victim also called Gnanaselvam and Udhayakumar, her neighbours and informed them about the incident. Gnanaselvam brought the victim’s mother in his bike to the shop and found victim girl crying. On enquiry, the victim narrated how she was molested. Thereafter they went to the police station and lodged a complaint to PW7.

                          (ii) PW7 received the complaint/Ex.P2, registered F.I.R./Ex.P6 and F.I.R. was placed before PW9, who took up investigation, visited the scene of occurrence, prepared observation mahazar and rough sketch in presence of PW3 and PW8, enquired the victim’s mother and thereafter the victim was sent for medical examination. PW6 is the Casualty Medical Doctor attached to Government Hospital, Gopichettipalayam, who examined the victim and issued Accident Register/Ex.P10 and Medical Report/Ex.P5. The victim was produced before the Magistrate, who recorded her statement under Section 164 Cr.P.C./Ex.P1. The accused was arrested on the same day and he was produced before PW4, who gave potency certificate/Ex.P3. The victim was produced before a Psychologist for a psychological assessment and Ex.P4 issued. The school certificate and victim’s birth certificate/Ex.P9 collected, confirming that victim’s date of birth is 09.02.2007. On completion of investigation, charge sheet filed.

3. During trial, on the side of the prosecution, PW1 to PW9 examined and Exs.P1 to P12 marked. On the side of the defence, no witnesses examined and no documents marked. On conclusion of the trial, the Trial Court convicted the appellant as stated above.

4. The learned counsel for the appellant submitted that the appellant and PW2, the mother of the victim had an illicit relationship and at that time the appellant used to lend money. Later, the appellant’s wife objected to the relationship and thereafter, the appellant kept away. But PW2 demanded a sum of Rs.50,000/-, which was not paid. Hence, using the victim/PW1, a false case was projected. This fact was suggested to PW1 and PW2, both denied. He further submitted that in this case PW3 is the shop owner, where the appellant was running a chicken stall and the chicken stall was an open shop without any cover which is admitted by PW3 and PW8, the other observation mahazar witness. He further submitted that from the observation mahazar/Ex.P7 and rough sketch/Ex.P8, it is seen that except for the location of the shop and the adjacent shops, there is nothing with regard to the physical features of the shop, but the evidence confirms that it is an open area, not a closed one. Hence, a false case was projected against the appellant.

5. The learned counsel further submitted that in this case PW1 stated that immediately after the incident, the victim’s cousin, Prathap came to the shop and she informed him about the incident and was also found crying. In this case, the said Prathap not examined. Further, Gnanaselvam, who brought PW2 to the shop and found the victim girl crying, was not examined. PW2 gives a version that the appellant was not available in the shop when she reached the shop but in the complaint, she confirms that when she reached the shop, the appellant was present. The Doctor/PW6, who examined the victim and gave medical report confirms there is no injuries or marks found in the victim. Thus, there were vital contradictions and motive to implicate the appellant, which the trial Court failed to consider. Hence, he prayed to set aside the conviction.

6. The learned Government Advocate (Crl. Side) strongly opposed the appellant’s contention submitting that victim was aged about 14 years at the time of occurrence and she along with her brother went to the chicken stall of the appellant. The appellant deceitfully sent the victim’s brother away and when the victim was alone, he called the victim inside the shop and she was asked to sit on a chair. At that time, the appellant kissed her and molested her. The victim ran out of the shop crying. At that time, the victim’s cousin, Prathap came there. The victim informed the act of the appellant and she also called her neighbours Gnanaselvam and Udhayakumar. Thereafter, Gnanaselvam took PW2 in his bike to the shop and enquired the victim. Thereafter, PW2 and the victim lodged a complaint with PW7, who received the complaint, registered the F.I.R. and PW9 took up investigation, visited the scene of occurrence, prepared observation mahazar and rough sketch, examined the witnesses. On the same day, the appellant was arrested. The victim was produced before the Doctor/PW6, who examined the victim, gave a report/Ex.P5. The victim was produced before the Psychologist for psychological assessment and report received. Thereafter, the victim produced before the Magistrate, her statement under Section 164 Cr.P.C./Ex.P1 recorded. On recording the statement of witnesses, collecting the materials and medical records, charge sheet filed in this case. She further submitted that during trial, PW1 to PW9 examined and Exs.P1 to P12 marked. The Trial Court on the evidence of witnesses and materials produced had rightly convicted the appellant. Hence, she prayed to dismiss the appeal.

7. Considering the submissions made and on perusal of the materials, it is seen that the appellant is running a chicken shop. On 18.04.2021, at about 1.45 p.m., the victim along with her brother went to the said shop to buy chicken. PW1/victim states that her brother was sent for buying beedi and when she was alone, the appellant called her inside the shop, made her sit on a chair and at that time, kissed and molested her. In the observation mahazar/Ex.P7 and rough sketch/Ex.P8, the location of the shop alone is recorded and no physical features of the shop mentioned. PW3 and PW8 are the witnesses to the observation mahazar and rough sketch. PW3 is the owner of the building, where appellant was running the chicken business. PW3 confirms that the shop was an open place covered only with a sheet on the top. In this case, PW1 informed her uncle’s son, Prathap about the incident. However, the said Prathap not examined as a witness. PW1 also confirms that she called Gnanaselvam and Udhayakumar and the said Gnanaselvam brought PW2/mother to the shop in his bike. The said Gnanaselvam also not examined.

8. PW2/mother lodges a complaint to PW7 and in her complaint she states that the appellant was available in the shop when they went there. But in her evidence, she gives a contradictory statement that the appellant was found missing. The appellant’s case is that there was a relationship between himself and PW2 and he also gave money to PW2, which he later stopped, hence, there was some animosity between them. The Doctor’s evidence Ex.P5 and Ex.P10 confirm that there were no marks of injury on the victim to confirm there was sexual assault. The evidences of PW1 and PW2 are with exaggerations and contradictions. In view of the above, this Court finds that the prosecution miserably failed to prove the case against the appellant.

9. In view of the above, this Court set asides the impugned judgment dated 17.08.2023 passed in Spl.S.C.No.83 of 2021 by the learned Sessions Judge, Magalir Needhi Mandram (Fast Track Mahila Court), Tiruppur. The appellant is acquitted from all the charges levelled against him. Fine amount, if any paid, shall be refunded. Bail bond, if any executed, shall stand cancelled.

10. Accordingly, the Criminal Appeal is allowed.