(Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C/415(2) of BNSS Act, to call for the records of the Judgment passed in Spl.S.C.No.58 of 2018 dated 10.09.2024 on the file of the Special Court for the Exclusive Trial under POCSO Act Cases, Nagercoil, set aside the same.)

1. This appeal is directed against the judgment of conviction and sentence passed against the appellant herein by the learned Special Court for Exclusive Trial of Cases under the POCSO Act, Nagercoil, in Special Case No.58 of 2018, dated 10.09.2024.

2. On careful perusal of the records, it is found that on 19.10.2018 at around 11.00 a.m., P.W.11-Lalitha, the then Head Constable attached to the All Women Police Station, Nagercoil, received Ex.P.1-complaint from P.W.1 and registered Ex.P.10-First Information Report in Crime No.49 of 2018 for the offences punishable under Sections 8, 9(k) and 9(m) of the POCSO Act. She forwarded the complaint and the First Information Report to the Fast Track Mahila Court and placed one copy of the First Information Report before the Inspector of Police for investigation.

3. P.W.12-Shanthakumari took up the investigation of the case on 19.10.2018 at around 12.40 hours. She visited the place of occurrence and prepared Ex.P.3-Observation Mahazar and Ex.P.11-Rough Sketch in the presence of witnesses P.W.3-Ponraj and one Rohini. She examined the victim and other witnesses and recorded their statements. She requested that the victim be subjected to medical examination and forwarded the requisition letter to the hospital through W.H.C.-Padma.

4. P.W.12 arrested the Accused on 19.10.2018 at around 03.00 p.m. and arranged for his medical examination. On 22.10.2018, she gave a requisition for conducting a potency test on the Accused and recorded the statement of the Accused under Section 164 of the Cr.P.C. The victim was produced before the learned Magistrate, Boothapandi, on 26.12.2018 for recording her statement under Section 164 of the Cr.P.C.

5. On 03.11.2018, the Accused was produced before the Government Medical College Hospital, Asaripallam, for conducting a potency test. On 04.11.2018, she examined W.H.C.-Padma, Head Constable-Vaish Kumar and Dr.Manimegalai, who had conducted the medical examination of the victim, and recorded their statements. On 08.11.2018, she produced the victim before the Child Welfare Committee for counselling. On 10.11.2018, she examined the doctor who had conducted the medical examination of the Accused and recorded his statement. She also recorded the statements of Grade-I Police Constable-Suja and Head Constable-Lalitha, who had produced the victim before the Child Welfare Committee.

6. On completion of the investigation, she laid the final report before the Trial Court for the offences punishable under Sections 9(k) and 9(m) read with Section 10 of the POCSO Act.

7. The Fast Track Mahila Court took cognizance of the final report and issued summons to the Accused. Upon his appearance, copies of the documents relied upon by the prosecution were furnished to him under Section 207 of the Code of Criminal Procedure.

8. After hearing both sides, the Trial Court framed charges against the Accused for the offences punishable under Sections 9(k) read with Section 10 and 9(m) read with Section 10 of the POCSO Act. The charges were read over and explained to the Accused, who denied the same as false. Thereafter, he was ordered to be tried by the POCSO Special Court, pursuant to the transfer of the case from the Fast Track Mahila Court to the Special Court constituted under the POCSO Act.

9. On the side of the prosecution, P.W.1 to P.W.12 were examined and Ex.P.1 to Ex.P.17 were marked.

10. Upon closure of the prosecution side evidence, the incriminating circumstances appearing in the evidence were put to the Accused under Section 313(1)(b) of the Cr.P.C. The Accused denied the same as false and stated that he had witnesses on his side. However, no witnesses were examined on the side of the Accused. Accordingly, the defence side evidence was closed.

11. The Trial Court, after hearing both sides, found the Accused/appellant guilty of the offences punishable under Sections 9(k) read with Section 10 and 9(m) read with Section 10 of the POCSO Act and sentenced him to undergo five years of Rigorous Imprisonment and imposed a fine of Rs.10,000/-, in default to undergo six months of Simple Imprisonment. Aggrieved by the said judgment of conviction and sentence, the appellant is before this Court.

12. Heard the learned counsel appearing for the appellant and the learned Government Advocate (Criminal Side) appearing for the respondent/State. The Trial Court records were called for and perused.

Point for Determination:

13. Whether the judgment of conviction and sentence imposed on the appellant is sustainable or not?

Answer:

14. On careful perusal of the records, it is found that the case of the prosecution is that the date of birth of the victim is 25.03.2008. She was studying in the 6th Standard at the time of occurrence and was aged about 10 years. As the victim was suffering from a brain tumour, she had developed paralysis of her left hand and left leg. The Accused/appellant was also residing with his family in the same street where the victim was residing. On 18.10.2018 at around 06.45 p.m., the neighbour of the victim had taken the victim and other children to Sudalaimadaswami Temple situated near the bus stop. When they were proceeding in front of the house of one Layol, the appellant herein squeezed the right breast of the victim and thereby committed sexual assault. The victim suffered pain and cried. Since the victim was below 12 years of age and was a person with disability, the act of the Accused would fall under Sections 9(k) and 9(m) read with Section 10 of the POCSO Act. To substantiate the said case, the prosecution examined P.W.1 to P.W.12 and marked Ex.P.1 to Ex.P.17.

15. On careful scrutiny of the evidence of the prosecution witnesses, it is found that the victim was examined as P.W.4. In her evidence, the victim deposed that, at the time of occurrence, she was studying in the 6th Standard and that her date of birth was 25.03.2008. She further deposed that she had developed a brain tumour at the age of 18 months and, as a result, she was unable to move her left hand and left leg. Therefore, she used to walk by dragging her left hand and left leg.

16. The victim further deposed that on 17.10.2018, her father had left Nagercoil for work and that she, her brother and her mother were at their house. On 18.10.2018, she, her brother and her cousins, namely, Sharmika and Sharnika, were proceeding to the Sudalaimadan Temple along with their neighbour, Kani Aunt. When they were proceeding in front of the house of one Layol at around 06.45 p.m., the appellant herein who came from the opposite direction squeezed her right chest. The victim shouted in pain. Kani Aunt shouted, and therefore, the appellant ran away.

17. She further deposed that thereafter, she and Kani Aunt returned home and informed her mother about the occurrence. Her mother, in turn, informed her father about the occurrence. Her father came immediately. On 19.10.2018, she went along with her parents and lodged a complaint at the All Women Police Station. She was thereafter subjected to medical examination at Asaripallam Medical College Hospital. She also gave Ex.P.4 statement under Section 164 of the Cr.P.C. before the learned Magistrate.

18. Kani, who had accompanied the victim at the time of occurrence, was examined as P.W.10. However, P.W.10 did not support the case of the prosecution and was therefore treated as hostile. Though the prosecution was permitted to cross-examine P.W.10, nothing favourable to the prosecution could be elicited from her. Therefore, according to the learned counsel for the appellant, the complaint was lodged due to the previous enmity between the appellant and the family of the victim. In this regard, he relied upon the cross-examination of the victim, wherein she had admitted that there were frequent quarrels between the wife of the appellant and her mother. The parents of the victim were examined as P.W.1 and P.W.2. They were not eyewitnesses to the occurrence, and their evidence is only hearsay. Therefore, according to the learned counsel, their evidence cannot be given any credence.

19. P.W.3 is a witness to the observation mahazar. P.W.5-Padma is the person who had taken the victim for medical examination and had also taken the Accused for medical examination. P.W.6 is the person who had taken the victim for counselling before the Child Welfare Committee.

20. P.W.7 is the brother of the victim, in his evidence, he deposed that on 18.10.2018, he, the victim, their cousins, namely, Sharmika and Sharnika, and their neighbour, Kani Aunt, were proceeding to visit the Sudalaimadan Temple situate near the bus stop. At around 06.45 p.m., in front of the house of Layol, the appellant came in front of her sister and pressed her right chest. Her sister shouted with pain. Kani aunt shouted. Immediately, the appellant had flew away.

21. P.W.8 is the doctor who conducted the medical examination of the victim. P.W.9 is the doctor who conducted the medical examination of the appellant. According to P.W.8, there were no external injuries on the body of the victim. However, she opined that the absence of external injuries does not rule out the possibility of sexual abuse. According to P.W.9, nothing was elicited to suggest that the Accused was impotent. P.W.11 is the Head Constable who registered the F.I.R. P.W.12 is the Investigating Officer, who has spoken about the investigation conducted by her.

22. On careful perusal of the evidence of the prosecution witnesses, it is found that the victim and her brother have deposed about the occurrence. However, the learned counsel for the appellant contended that, in her statement under Section 164 of the Cr.P.C., the victim had admitted that the appellant was in an inebriated condition at the time of occurrence and that he was coming tottering. Therefore, according to the learned counsel for the appellant, the appellant, due to consumption of alcohol, might have fallen upon the victim, and in the process, his hand might have touched the chest of the victim, which was misunderstood by the victim.

23. On careful perusal of Ex.P.4-Statement under Section 164 of the Cr.P.C., it is found that P.W.4, in her statement under Section 164 of the Cr.P.C., had stated that the appellant came tottering as he was under the influence of alcohol. However, she had not stated so in her chiefexamination. The said contradiction was elicited by the appellant during the cross-examination of P.W.4. It is also pertinent to note that the victim is a person with disability and used to walk only by dragging her left leg.

24. Further, the learned counsel for the appellant contended that, according to the case of the prosecution, apart from the victim, her brother, her two cousins, the children of their neighbour Kani Aunt, and Kani Aunt herself were present at the scene. Therefore, according to him, there was no possibility for the appellant to approach the victim and press her chest in the presence of all the other persons. According to the learned counsel, only due to his inebriated condition, the appellant slipped and fell upon the victim, which was misunderstood by her.

25. On a careful reading of the evidence of the victim and her statement recorded before the learned Magistrate, it is clear that she had omitted to state the condition of the appellant at the time of the occurrence. No medical examination was conducted to ascertain whether the appellant was under the influence of alcohol at the relevant point of time. Since the victim had stated that the appellant came tottering after consuming alcohol, the possibility that he might have fallen upon the victim and that the same was misunderstood by her cannot be completely ruled out. Therefore, this Court is inclined to extend the benefit of said doubt to the appellant and acquit him of the charges levelled against him.

26. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the Trial Court is hereby set aside. The fine amount, if any, paid by the appellant shall be refunded to him. The Accused is stated to be in custody since the date of judgment. Therefore, he is directed to be set at liberty forthwith, if his custody is not required in any other case. Consequently, connected Miscellaneous Petition is closed.