(Prayer: Criminal Appeal is filed under Section 374(2) of Cr.P.C., to call for the records and allow this appeal and acquit the appellant from the charges by setting aside the impugned Judgment passed by the learned Sessions Judge (Full Additional Charge), Mahila Court, Pudukkottai in Spl.S.C.No.31 of 2022 dated 16.08.2023.)

G.K. Ilanthiraiyan, J.

1. This appeal is directed as against the Judgment passed in Spl.S.C.No.31 of 2022 dated 16.08.2023, on the file of the learned Sessions Judge (Full Additional Charge), Mahila Court, Pudukkottai, thereby convicting the appellant for the offence punishable under Section 6 (1) of the Protection of Children from Sexual Offences (Amendment) Act, 2019 (in short hereinafter referred to as “the POCSO Act, 2019”) and Section 506 (PART I) of I.P.C.

2. The case of the prosecution is that the accused is the father of the victim child, who is aged about 14 years. The accused was married to the complainant and they had a female child born on 15.05.2007 and another female child and male child. When the complainant used to visit her mother at Aranthangi, the victim girl was left alone at home. During this time, the accused, with sexual intent, had removed the victim's dress and committed aggravated penetrative sexual assault on her over a period of three years. He also allegedly threatened the victim with dire consequences stating that if she revealed the matter to anyone, he would strangulate her.

3. It is further stated that in April 2021, the victim girl informed her mother about the sexual offences committed by the appellant. When the wife of the appellant inquired about the same, the appellant assaulted her and uttered obscene words. Further, the accused allegedly failed to hand over six sovereigns of a gold chain to the complainant, thereby committing criminal breach of trust. Therefore, the complainant lodged a complaint and the same has been registered in Crime No.2 of 2022 for the offences punishable under Sections 294(b), 323, 406 and 506 (PART I) of I.P.C and Section 5(n) read with 6(l) and Section 5(l) read with 6(1) of POCSO Act, 2019.

4. In order to bring the charges to home, the prosecution had examined P.W.1 to P.W.9 and marked Ex.P.1 to Ex.P.12. On the side of the accused, one Podumponnu was examined as D.W.1 and marked Ex.D.1 to Ex.D.3.

5. On perusal of oral and documentary evidence, the Trial Court found the appellant guilty for the offences punishable under Sections 6(1) of the POCSO Act, 2019 and 506(PART I) of I.P.C. He was sentenced to undergo Life Imprisonment for the offence punishable under Section 6(1) of the POCSO (Amendment) Act, 2019 and to pay a fine of Rs.50,000/-, in default, to undergo Rigorous Imprisonment for a period of one year. Further, he was sentenced to undergo Rigorous Imprisonment for a period of two years for the offence punishable under Section 506 (PART I) of I.P.C and to pay a fine of Rs.10,000/-, in default, to undergo Simple Imprisonment for a period of six months. Aggrieved by the same, the appellant has preferred the present appeal.

6. The learned counsel appearing for the appellant submitted that the complaint did not mention the time or date of the alleged occurrence and that the entire allegations were bald and vague. There was a delay of three years in lodging the complaint, which the prosecution had failed to explain. In fact, the complaint initially did not allege that the appellant had committed penetrative sexual assault. Accordingly, the respondent initially registered the F.I.R for the offences punishable under Sections 9(n) and 10 of the POCSO Act. It was also submitted that the wife of the appellant had separated and was living separately and the appellant had filed a petition for divorce in I.D.O.P.No.38 of 2021 on the file of the Principal District Court, Pudukkottai.

7. According to the appellant, even though the victim girl allegedly informed her mother about the alleged offence committed by the appellant, the wife of the appellant did not consent to the divorce. She was willing and ready to live with the appellant. If the appellant had indeed committed such a grave offence against his own child, no wife would willingly live with him. Therefore, it is submitted that the complaint was lodged only to wreak vengeance and all allegations were afterthoughts. At the time of lodging the complaint, there were no allegations of penetrative sexual assault as against the appellant.

8. It is further submitted that there exists previous enmity between the appellant and his wife and as a result of a personal grudge, she tutored the victim girl to make statements containing such allegations. Accordingly, it is submitted that the entire conviction and sentence imposed on the appellant cannot be sustained and liable to be set aside.

9. The learned Additional Public Prosecutor appearing for the respondent submitted that in order to prove the charges, the prosecution had examined P.W.1 to P.W.9 and marked Ex.P.1 to Ex.P.12. The victim girl was examined as P.W.2 and categorically deposed that the appellant had committed penetrative sexual assault on her. It was further submitted that the delay in lodging the complaint is not fatal in cases of sexual offences. The victim girl suffered mental trauma for the past several years and ultimately disclosed about the same and lodged the complaint. Therefore, the delay does not affect the case of the prosecution and the Trial Court rightly convicted the appellant.

10. The learned Additional Public Prosecutor further submitted that the victim girl's statements were corroborated by medical evidence. P.W.6, the Doctor who examined the victim, deposed regarding her medical condition. On the basis of the evidence of P.W.1 to P.W.9 and the exhibits, the prosecution proved the charges beyond reasonable doubt and the Trial Court rightly convicted the appellant and the same does not require any interference by this Court.

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

12. Admittedly, the appellant is the father of the minor victim girl, who was aged about 14 years at the time of alleged occurrence. The mother of the minor victim girl had deposed as P.W.1. The appellant and P.W.1 were married and had three children viz., two daughters and one son. The appellant was working in the Revenue Department. While being so, P.W.1 used to visit her mother's house, since she suffered with illness, very frequently. At that juncture, three children were in the house of the appellant. While being so, the minor victim girl informed P.W.1 that the appellant had committed sexual assault on her and that the said acts had been continuing since she was in the 7 th grade. The appellant threatened that if she discloses the same, she would be killed, therefore, she did not disclose the same and only on 16.04.2021, the minor victim girl informed about the alleged occurrence to P.W.1. Thereafter, P.W.1 lodged complaint only on 11.01.2022 before the respondent. The complaint was marked as Ex.P.1. It was registered by the respondent in Crime No.02 of 2022 for the offences punishable under Sections 294(b), 323, 342, 406 and 506(PART I) of I.P.C and Section 9(n) r/w 10 of POCSO Act, 2019. There was no allegation attracting the offence of aggravated penetrative sexual assault on the appellant; rather, there was a misunderstanding between the appellant and P.W.1. Therefore, they got separated and the appellant caused legal notice to P.W.1. After legal notice, the appellant filed a divorce petition in I.D.O.P.No.38 of 2021 on the file of the Principal District Court, Pudukkottai, seeking dissolution of marriage between the appellant and P.W.1.

13. After receipt of the legal notice from the appellant, P.W. 1 lodged a complaint on 21.05.2021 before the respondent. On receipt of the said complaint, the same was registered in C.S.R.No. 158 of 2021, dated 21.05.2021. The said complaint was marked as Ex.D.1 through D.W.1.

14. On a perusal of Ex.D.1, it is seen that P.W.1 alleged that the appellant had tortured her and that he had illegal intimacy with several women. She further stated that the appellant had filed a petition for divorce in I.D.O.P.No.38 of 2021 on the file of the Principal District Court, Pudukkottai and therefore, she requested the respondent to warn him. Even according to P.W.1, the minor victim girl had informed her about the alleged occurrence committed by the appellant as early as on 16.04.2021. However, she did not even whisper about those allegations in her complaint dated 21.05.2021. If at all the minor victim girl had informed P.W.1 about the alleged occurrence, P.W.1 would have certainly mentioned the same in her complaint. No mother would tolerate such a serious offence, that too, allegedly committed by the father against his own daughter.

15. That apart, after receipt of notice in the divorce petition in I.D.O.P.No.38 of 2021 on the file of the Principal District Court, Pudukkottai, P.W.1 filed her written statement. Even in the said written statement, she did not even whisper about the allegations levelled against the appellant. The divorce notice, the divorce petition, and the complaint dated 21.05.2021 came to be filed only after 16.04.2021, i.e., the date on which the victim girl informed P.W.1 about the alleged occurrence. The relevant portion of the deposition of P.W.1 is as follows:

                                                 

   

16. Thus, it is clear that P.W.1 was informed about the alleged occurrence by the victim girl as early as on 16.04.2021. According to the prosecution, the appellant had committed the said offence against the victim girl even from the time when she was studying in the 7 th standard. However, the victim girl did not even whisper about the same to her mother, i.e., P.W.1, till 16.04.2021. In her cross-examination, P.W.1 categorically admitted as follows:



        

17. Therefore, P.W.1 did not even whisper about the alleged occurrence either in her written statement filed in I.D.O.P.No.38 of 2021 or in the complaint dated 21.05.2021. It was only on 11.01.2022, that too while divorce petition was pending, P.W.1 lodged a complaint that the appellant had committed penetrative sexual assault on the victim girl.

18.  In fact, pursuant to the complaint dated 21.05.2021, the respondent conducted an enquiry. During the said enquiry, the appellant agreed to pay a sum of Rs.10,000/- as maintenance to P.W. 1 and also agreed to settle the immovable property in favour of all the children. Accordingly, the appellant duly paid the maintenance amount of Rs.10,000/- and executed a settlement deed in favour of all the children on 08.06.2021. These facts have also been elicited in the cross-examination of P.W.1. The relevant portion of her deposition is as follows:

                                                   

   

19. After having received the maintenance and executed the settlement deed in favour of the children, P.W.1 lodged a complaint on 11.01.2022 alleging that the appellant had committed penetrative sexual assault on the victim girl. Although a delay in lodging a complaint regarding sexual harassment is not, by itself, fatal to the case of the prosecution, the other circumstances of the case indicate that the complaint itself was an afterthought, made with a clear intention to wreak vengeance against the appellant. Accordingly, P.W.1 manipulated the victim girl and lodged the complaint.

20. After the registration of F.I.R in Crime No.2 of 2022, the victim girl underwent a medical examination. P.W.6 conducted the examination and issued a certificate, which was marked as Ex.P. 7. The examination revealed that the victim girl did not suffer any external or internal injury on her genitalia. On the date of the medical examination, she had attained puberty and therefore, her hymen was not intact. The Doctor, who examined the victim girl, deposed as P.W.6. Thus, the medical evidence does not support the case of the prosecution, since the victim girl did not sustain any injury on her genitalia. The victim girl deposed as P.W.2.

21. On perusal of the entire deposition, it is revealed that it is completely tutored by P.W.1. No person would remain silent for three years, that too, when her own father allegedly committed penetrative sexual assault on his daughter. P.W.1 was very much available with the victim girl. Even then, the victim girl did not disclose the alleged occurrence to her. In fact, the victim girl informed P.W.1 about the alleged occurrence only on 16.04.2021. Even then, P.W.1 did not lodge any complaint and lodged a complaint only on 11.01.2022 ie., after a period of over nine months.

22. In the meantime, after the alleged occurrence on 16.04.2021, the appellant had, admittedly, served a legal notice on P.W.1 and filed a petition for divorce in I.D.O.P.No.38 of 2021 on the file of the Principal District Court, Pudukkottai. Subsequently, P.W.1 lodged a complaint on 21.05.2021 before the respondent and an enquiry was conducted. During the enquiry, P.W.1 received monthly maintenance of Rs.10,000/- from the appellant and the appellant also executed a settlement of the immovable property in favour of the three children including the victim girl on 08.06.2021.

23. After having accepted the settlement deed and maintenance, P.W.1 lodged the complaint on 11.01.2022 as against the appellant. Therefore, the entire case of the prosecution appears to be fabricated and only to wreak vengeance against the appellant, a false complaint has been foisted as against him.

24. On perusal of the complaint dated 11.01.2022, it is revealed that P.W.1 did not provide any valid explanation for the delay in lodging the complaint. The complaint was lodged after a period of three years from the date of alleged occurrence, which raises serious doubts about the veracity of the allegations made as against the appellant. The delay in lodging a complaint must be satisfactorily explained.

25. While this Court may understand a delay if P.W.1 had not lodged any complaint earlier, but it is a matter of record that P.W. 1 had lodged a complaint before the very same respondent on 21.05.2021, in which there was no mention whatsoever of the alleged sexual offences committed by the appellant. Therefore, the delay in lodging the present complaint is a significant factor and is fatal to the case of the prosecution.

26. Further, P.W.1 deposed that she used to frequently visit her mother. However, the prosecution failed to examine the mother of P.W.1 to corroborate her evidence. Since the alleged sexual assaults on the victim girl are said to have occurred while P.W.1 visited her mother, the mother is a vital witness whose evidence could corroborate P.W.1. The non-examination of such a vital witness is fatal to the case of the prosecution.

27. The Trial Court ought to have drawn an adverse inference against the prosecution. After filing the written statement in the divorce petition filed by the appellant in I.D.O.P.No.38 of 2021 on the file of the Principal District Court, Pudukkottai, a counselling was conducted, during which P.W.1 did not give her consent for divorce, despite the appellant allegedly committed penetrative sexual assault on his own daughter. This clearly indicates that the complaint was an afterthought and was lodged solely to wreak vengeance as against the appellant, having tutored her own daughter to make such allegations. Even then, P.W.1 expressed her willingness to live with the appellant. No wife would express such willingness to live with a person who allegedly committed penetrative sexual assault on her own daughter. Therefore, considering the delay in lodging the complaint, the contradictions and improvements in the statements and the non-disclosure of the alleged offence under the POCSO Act in the complaint dated 25.01.2021, it is evident that P.W.2 was tutored by P.W.1 to lodge serious allegations as against the appellant.

28. In view of the foregoing, the prosecution has failed to prove the charges beyond reasonable doubt. Accordingly, the entire conviction and sentence imposed on the appellant in Spl.S.C.No.31 of 2022, dated 16.08.2023 on the file of the learned Sessions Judge (Full Additional Charge), Mahila Court, Pudukkottai cannot be sustained and are liable to be set aside.

29. In the result, the Criminal Appeal is allowed and the Judgment dated 16.08.2023 in Spl.S.C.No.31 of 2022 on the file of the learned Sessions Judge (Full Additional Charge), Mahila Court, Pudukkottai, is hereby set aside. 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. Consequently, connected Miscellaneous Petition is closed.