(Prayer: Criminal Appeal is filed under Section 374(2) of Cr.P.C to call for the records and set aside the conviction passed by the learned Sessions Judge, Family Court, Full Additional Charge, Mahila Court, Pudukkottai in Spl.S.C.No.12 of 2021 dated 27.12.2021 and acquit the appellant/sole accused of the charges.)

G.K. Ilanthiraiyan, J.

1. This appeal is directed as against the Judgment passed in Spl.S.C.No.12 of 2021 dated 27.12.2021, on the file of the learned Sessions Judge, Family Court, Full Additional Charge, Mahila Court, Pudukkottai, thereby convicting the appellant for the offence punishable under Sections 5(n), 5(j)(ii) r/w 6(1) of the Protection of Children from Sexual Offences (Amendment) Act, 2019 (in short hereinafter referred to as 'the POCSO Act').

2. The case of the prosecution is that the accused is the third husband of the minor victim's mother. The minor victim girl was 2/16 aged about 14 years and was born to the second husband of her mother on 02.06.2007. The mother of the victim girl is a house maid and the accused used to go to sea for fishing.

3. While being so, on 07.08.2020 when the victim girl was alone in her house, the accused, who had gone for fishing, returned early in the afternoon at 01.00 p.m. The victim’s mother had also gone for her housemaid work on the date of occurrence. The accused pushed the victim girl and removed her dress and committed penetrative sexual assault on the victim girl. Thereafter, the accused threatened her with dire consequences and warned that if she disclosed the incident to anybody, he would do away with her life. Therefore, due to fear, the victim girl did not disclose the occurrence to her mother. Utilising the said circumstances, the accused committed the very same offence repeatedly, due to which the victim girl became pregnant. Only thereafter the mother of the victim girl came to know about the occurrence and lodged the complaint. On receipt of the complaint, the respondent registered the F.I.R in Crime No.9 of 2021 for the offences punishable under Sections 5(n), 5(j) (ii) r/w 6(1) of the POCSO Act. After completion of investigation, a final report was filed and the same has been taken cognizance by the trial Court.

4. In order to bring the charges to home, the prosecution had examined P.W.1 to P.W.8 and marked Exs.P1 to P12. On the side of the accused, no witnesses were examined and no documents were produced before the Trial Court.

5. On perusal of oral and documentary evidence, the Trial Court found the accused guilty for the offences punishable under Sections 5(n), 5(j)(ii) r/w 6(1) of the POCSO Act and sentenced him to undergo life imprisonment, which shall mean imprisonment for the remainder of the natural life of the accused and to pay a fine of Rs.50,000/- in default, to undergo one year Simple Imprisonment. Aggrieved by the same, the present appeal has been preferred by the appellant.

6. The learned counsel appearing for the appellant submitted that there was an unexplained delay of eight months in lodging the complaint. Only after noticing the pregnancy, the complaint was lodged on 18.03.2021. Thereafter, on 03.05.2021, the victim girl delivered a female child. Therefore, the entire case of the prosecution is false and foisted as against the appellant, who is the third husband of the victim's mother.

7. In fact, the victim girl was not subjected for medical examination, which is fatal to the case of the prosecution. The entire evidence of P.W.1 with respect to the factual facet of the offence is entirely untrustworthy, dubious and shady. The victim girl was examined as P.W.2 and she did not even disclose the very serious offence allegedly committed by the appellant to her mother. It was found only during her pregnancy and thereafter, the complaint was lodged.

8. Though the DNA test proved that the appellant is the biological father of the child born to the victim girl, it can be perceived that two views are possible with regard to the testimony of the ocular witnesses and the DNA report. It is a trite and well entrenched principle of law that when two views are possible, the view favouring the accused must be adopted. However, in the present case, the medical evidence, if read conjunctively with the statements of P.W.2 and P.W.4, neither corroborates nor substantiates the version of prosecution pertaining to the pregnancy of the victim girl. Even then, without considering these aspects, the Trial Court mechanically convicted the appellant.

9. Per contra, the learned Additional Public Prosecutor appearing for the respondent submitted that the mother of the victim girl deposed as P.W.1 and the victim girl herself deposed as P.W.2. The evidence of the victim girl is the best evidence and she categorically deposed about the occurrence that the appellant, who is the third husband of P.W.1, had committed penetrative aggravated sexual assault on the minor victim girl aged about 14 years.

10. In case of sexual offences, delay is not material and does not affect the case of the prosecution. The Hon'ble Supreme Court of India as well as this Court have repeatedly held that such delay occurs only due to the mental trauma undergone by the victim girl. In fact, since the appellant was residing in the same house and being the third husband of the victim girl's mother, he threatened her with dire consequences and as such, due to fear, she did not disclose the incident to anybody.

11. Only after the victim girl's pregnancy of 30 weeks, the mother of the victim girl found her pregnancy and immediately lodged the complaint. In fact, while the appellant was questioned, he categorically admitted the offence and sought for lesser punishment. Therefore, the prosecution clearly proved the charges and the Trial Court rightly convicted the appellant. Hence, it does not warrant any interference of this Court.

12. Heard the learned counsel appearing on either side and perused the materials available on record.

13. The mother of the victim girl deposed as P.W.1. She had given birth to a female child and a male child through her second husband. The second husband married another woman and as such, P.W.1 married the appellant. The appellant used to go for fishing and P.W.1 is a housemaid. On the date of occurrence, the appellant returned home early and when the victim girl was alone, the appellant committed aggravated penetrative sexual assault on the victim girl. He used to come home under the influence of alcohol. Further, the victim girl did not disclose the incident due to fear, since the appellant had threatened her with dire consequences if she revealed the occurrence to anybody. P.W.1 came to know about the occurrence only during the victim girl's seventh month of pregnancy. Immediately, she enquired and the victim girl disclosed everything. Thereafter, P.W.1 rushed to the respondent police and lodged the complaint. Her complaint was marked as Ex.P.1 and the birth certificate of the victim girl was marked as Ex.P.2. Immediately, the statement of the victim girl was recorded and was marked as Ex.P.4. P.W.1's statement was recorded under Section 164(3) of Cr.P.C and the same was marked as Ex.P.3.

14. The victim girl had deposed as P.W.2. She categorically deposed that on the date of occurrence, when she was alone at home, the appellant returned home early at about 01.00 p.m., under the influence of alcohol. He pushed her down and removed her dress. Thereafter, he committed aggravated penetrative sexual assault on the victim girl and due to which, she became pregnant. She was also threatened by the appellant and due to fear, she did not disclose the incident to anybody. Only during her pregnancy, it was noted down by P.W.1 and immediately lodged the complaint. This clearly corroborates the evidence of P.W.1 as well as Ex.P.3 and Ex.P.4. The evidence of P.W.2 is as follows:

                

                

15. After registration of F.I.R, the victim girl was subjected for a medical examination. The doctor who examined her had deposed as P.W.4. P.W.4 examined the victim girl and opined that she was pregnant, with a pregnancy of approximately 30 weeks. The victim girl also categorically stated that she was subjected to penetrative sexual assault by the appellant and the same was recorded in the accident register which was marked as Ex.P.6. Therefore, the prosecution categorically proved the charges beyond any doubt and the Trial Court rightly convicted the appellant.

16. The learned counsel appearing for the appellant vehemently contended that there was a delay of eight months in lodging the complaint. However, when the evidence of P.W.1 and P.W.2 is trustworthy and believable, it cannot be rejected for the simple reason that the complaint was lodged belatedly that too in a case of sexual offence.

17. In this regard, it is relevant to rely upon the Judgment of the Hon'ble Supreme Court of India in the case of Tulshidas Kanolkar Vs. State of Goa [(2003) 8 SCC 590], wherein it is held as follows:

                  “5.We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle.”

18. Therefore, the prosecution has clearly explained the delay in lodging the complaint and such delay cannot be fatal to the case of the prosecution, when the testimony of the prosecutrix is trustworthy and believable one.

19. That apart, after the victim girl gave birth to a child, a DNA test was conducted, which proved that the accused is the biological father of the child born to the victim girl. The DNA report was marked as Ex.P.12. It revealed as follows:

                  “From the DNA typing results of the above samples, it is found that in the absence of identical twins, the appellant is the biological father of the female child to the victim girl”.

20. Further, when the appellant was questioned, he categorically admitted his guilt and sought for lesser punishment. Therefore, the Trial Court rightly convicted the appellant and this Court finds no infirmity or illegality in the Judgment of conviction and sentence imposed by the Trial Court. Hence, the Criminal Appeal fails and is dismissed.