(Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., (under Section 415 BNSS) to call for the records pertaining to the order made in Spl.S.C.No.385 of 2023, dated 30.05.2024, on the file of the learned Sessions Judge, Special Court (POCSO Act Cases), Dindigul (F/I) and set aside the same.)

The Criminal Appeal is directed against the judgment of conviction passed in Spl.S.C.No.385 of 2023, dated 30.05.2024, on the file of the Special Court for POCSO Act cases, Dindigul.

2. The case of the prosecution is that the defacto complainant – Malaisamy, Sub Inspector of Police, Dindigul Town West Police Station received a video in WhatsApp depicting the accused visually signalling and calling a minor boy by exposing his private parts and inviting him to engage in unnatural sexual acts, that the accused had spread the video widely on socila media, that the accused had threatened the minor boy not to reveal anything or else he along with his family would be finished and that thereby the accused had committed the offences under Section 11(5), 12, 13, 14(1) of POCSO Act and under Section 67(B)(a) of the Information Technology Act.

3. After the receipt of the final report, the case was taken on file in Spl.S.C.No.385 of 2023, on the file of the Special Court for POCSO Act cases, Dindigul. After the appearance of the accused, copies of records were furnished to him under Section 207 Cr.P.C., on free of cost. The learned Sessions Judge, on perusal of records and on hearing both the sides, being satisfied that there existed a prima facie case against the accused, framed charges under Sections 11(5), 12, 13, 14(1) of POCSO Act and under Section 67(B)(a) of the Information Technology Act and the same were read over and explained to him and on being questioned, the accused denied the charges and pleaded not guilty.

4. The prosecution, to prove its case, examined 13 witnesses as P.W.1 to P.W.13, exhibited 16 documents as Ex.P.1 to Ex.P.16 and marked two material objects as M.O.1 and M.O.2.

5. The case of the prosecution emerging from the evidence adduced on their side, in brief is as follows:

                          (a) P.W.1 – defacto complainant Thiru.Malaisamy, who was the then Sub Inspector of Police, Dindigul Town West Police Station, on 16.06.2023 received a video to his mobile WhatsApp depicting the accused visually signalling and calling P.W.2-minor boy, by showing his private part and inviting him to engage in unnatural sexual acts, which caused public outrage. He informed the receipt of the said video to P.W.13 – then Inspector of Police. P.W.13 sent a requisition to P.W.7-Muthusamy, who was then working as the Headmaster of Government Higher Secondary School, K.Ramanathapuram, Vedasanthur Taluk, requesting him to furnish the age certificate of P.W.2 under Ex.P.4. P.W.7, upon perusing the school records, gave a certificate dated 19.06.2023 under Ex.P.3 stating that the date of birth of P.W.2 is 22.03.2007, as evident from the school records.

                          P.W.8 – Thiru.Sivakumar, District Child Protection Officer, Dindigul, upon receipt of the requisition from P.W.13 on 19.06.2023, went to K.Ramanathapuram Government Higher Secondary School and enquired Maths teacher Tmt.D.Muthu Meena, Physics Teacher Thiru.S.Francis and Physical Training Teacher Thiru.P.Muniappan. He showed the video sent by P.W.13 and on seeing the same, the teachers identified the person who was found in the bottom portion of the video to be their student studying in 12th standard and also informed that he had not turned to school after 15.06.2023. P.W.8, then went to the house of P.W.2 and enquired P.W.4 – mother and P.W.6 – grandmother of P.W.2 and they had also identified P.W. 2 in the video shown to them. P.W.8, on coming to know that P.W.2 was with his paternal uncle P.W.5 and he was informed that both of them were proceeding to the office of P.W.8. On enquiry, P.W.2 informed that he was not aware of the person standing in the top portion of the video, but informed that his image in the bottom portion of the video was taken 1 ½ years back when he was speaking to another person. After enquiry, P.W.8 sent a report dated 19.06.2023 under Ex.P.5 to P.W.13. Thereafter P.W.1 submitted a special report along with pen drive and Compact Disk containing the video received by him in his WhatsApp to P.W.11 – the then Sub Inspector of Police, Dindigul Town West Police Station.

                          (b) P.W.11, on the basis of the special report given by P.W.1, registered a case in Cr.No.261 of 2023 under Section 11(1) of POCSO Act and under Section 67(B)(a) of the Information Technology Act and prepared the F.I.R., under Ex.P.8. He sent the original special report along with the F.I.R., to the concerned Court and submitted a copy to the Inspector of Police for investigation. P.W.13 – Inspector of Police recovered the Compact Disk (M.O.1) given by P.W.1 through Form 91 under Ex.P.12. He examined P.W.1 to P.W.5 and P.W.11 and recorded their statements. He examined P.W.8 Child Protection Officer and P.W.7 – Headmaster and recorded their statements. Since the accused was in judicial custody in connection with the case in Cr.No.447 of 2023 under Section 302 I.P.C., on the file of the Dindigul Town North Police Station, P.W.13 arrested formally at Central Prison, Trichy and on protection before the concerned Court, he was remanded to judicial custody for the present case. He applied for the police custody of the accused and obtained orders for one day police custody. When the accused was in police custody, he gave a voluntary confession statement and the same was recorded by P.W. 13 in the presence of P.W.9 – Balamurugan and P.W.10 – Manikandan. The accused in his confession statement admitted that he damaged his cellphone, SIM card and photos and the admitted portion of the confession statement is marked as Ex.P.13, subject to the objections of the defence, that the admitted portion does not lead to recovery of any new fact or things. After enquiry, he produced the accused before the concerned Court and examined P.W.9 and P.W.10 and recorded their statements.

                          (c) P.W.13 – Sub Inspector of Police submitted a requisition on 07.08.2023 under Ex.P.14 before the Additional Mahila Court, Dindigul for recording statement under Section 164(5) Cr.P.C., from the victim – P.W.2. Accordingly statement under Section 164(5) Cr.P.C., was recorded on 11.08.2023. Thereafter P.W.13 altered the case for the offences under Sections 11(5), 12, 13, 14(i) of POCSO Act, 67(B)(a) of the Information Technology Act and Section 506(ii) I.P.C., and submitted an alternation report under Ex.P.15. After completing the investigation, he laid the final report on 31.08.2023.

                          (d) After filing the charge sheet, P.W.13 submitted a requisition dated 26.09.2023 to the concerned Court for sending M.O.1 – C.D., to the forensic laboratory to find out the genuiness of the same under Ex.P.16.

                          P.W.12 – Lakshmi Narayanan, Scientific Officer attached to the Forensic Laboratory, Chennai, upon the receipt of M.O.1-C.D., examined the same, along with Assistant Director Thiru.Vijay and found two video recordings. They sent a report dated 16.10.2023 under Ex.P.9 giving their opinion that the above video recordings are genuine and devoid of any digital manipulation. With the evidence of P.W.13, the prosecution has closed their side evidence.

                          (e) When the accused was examined under Section 313(1) (b) of Cr.P.C., with regard to incriminating aspects against him, he denied the evidence as false and further stated that a false case has been foisted against him. The accused examined his sister Benazir Begum and his wife Rashika Samathani as D.W.1 and D.W.2 respectively. The accused adduced no documentary evidence.

                          (f) The learned Sessions Judge, upon considering the evidence adduced and on hearing the arguments of both sides, passed the impugned judgment, dated 30.05.2024 convicting the accused for the offence under Section 67(B)(a) of Information Technology Act and 11(1) r/w 12 of POCSO Act and sentenced him to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.20,000/- in default to undergo 6 months Simple Imprisonment for the offence under Section 67(B)(a) of Information Technology Act and sentenced to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.5,000/- in default to undergo Simple Imprisonment for three months for the offence under Section 12 of POCSO Act and by holding that the prosecution has not proved the offences under Section 506(II) I.P.C., and under Section 13 r/w 14(1) of POCSO Act, acquitted the accused under Section 235(1) Cr.P.C. The learned Sessions Judge has also granted compensation of Rs.50,000/- and also directed the trial Court to pay the fine amount of Rs.25,000/- to P.W.2 – Victim as compensation under Section 357(1) Cr.P.C. Aggrieved by the impugned judgment of conviction and sentence, the accused has preferred the present Criminal Appeal.

6. Whether the impugned judgment of conviction passed in Spl.S.C.No.385 of 2023, dated 30.05.2024, on the file of the Special Court for POCSO Act cases, Dindigul, is liable to be set aside? is the point for consideration.

7. The learned Counsel for the appellant would submit that a specific charge against the accused as per Section 67(B)(a) of Information Technology Act is that on 16.06.2023, the appellant had recorded a video depicting his part of the body and made the victim boy to see it with intention to sexually harass the victim boy and also the said video was circulated into the WhatsApp social media, that the averments stated in the charge, at any stretch of imagination, do not attract the offence under Section 67(B)(a) of Information Technology Act, that in order to attract such offence, it is sine qua non that there is a material in any electronic form depicting the children engaged in sexually explicit act or conduct, but in the present case, undisputedly, the victim boy has not been shown to be engaged in sexually explicit act or conduct and therefore, the charge under Section 67(B)(a) of Information Technology Act is not attracted against the appellant in the given factual matrix.

8. The learned Counsel would further submit that though the trial Court framed the charge under Section 11(5) of POCSO Act, strangely convicted the accused for the offence under Section 11(1) of POCSO Act, that the conviction under Section 11(1) of POCSO Act per is se illegal, since there was no specific charge for the said offence, that the offence under Section 11(1) of POCSO Act is not at all proved by the prosecution for the simple reason that there was no evidence to show that the victim boy was subjected to sexual harassment at the behest of the appellant, that the victim boy does not say that he was subjected to sexual harassment in his entire deposition and that therefore, the conviction under Section 11(1) of POCSO Act is unsustainable in law.

9. The learned Counsel would further contend that right from beginning ie., from the stage of recording of 164 Cr.P.C., statement and upto the stage of recording of evidence before the trial Court, P.W.2 victim boy unequivocally admitted that he does not know the accused and the appellant has not been identified as accused in this case notwithstanding the victim boy was asked to identify.

10. The learned Counsel would further submit that the prosecution, in POCSO cases, is duty bound to prove the age of the victim, as if he /she is a child below the age of 18 years at the relevant point of time, but in the present case, though the charge states that the age of the victim boy was less than 18 years and the date of birth was shown as 22.03.2007, the prosecution has not produced birth certificate or matriculation or equivalent certificate from the concerned examination board, that P.W.7 – Headmaster, who had issued a certificate under Ex.P.3, in cross- examination admitted that he has not seen the birth certificate of the victim and the copy of the birth certificate has not been produced and that therefore, the learned trial Judge has failed to notice the prosecution's failure to prove the age of the victim boy in the manner known to law.

11. The learned Counsel would further contend that the prosecution mainly relied on M.O.1 – C.D., M.O.2-pen drive, but failed to prove the source or origin and genesis of both the material objects, that P.W.12 – Scientific Officer attached to the forensic lab admitted that they have not received any other case properties for comparison and to find out whether the video recordings were created or genuine, that the trial Court has placed heavy reliance upon the evidence of P.W.12, without considering the cross-examination, that though M.O.1 an M.O.2 were handed over to the Investigating Officer on 24.06.2023, the same were sent to forensic examinationon on 26.09.2023, after the lapse of three months and as such, the safe custody of the material objects raises serious questions, that Ex.P. 13 stated to be the admitted portion of the confession statement of the appellant is legally inadmissible for the reason that the information allegedly furnished by the accused does not lead to any recovery any of fact or object and that therefore, the very marking of the alleged admitted portion is against Section 27 of the Evidence Act, that the observation of the trial Court in the impugned judgment that the accused has not disputed his presence in the top portion of the video in question, runs counter to the legal position that the prosecution must prove its case beyond reasonable doubt and the prosecution must not expect the accused to prove his case at the threshold and that there is absolutely no legal evidence available against the appellant, but the learned trial Judge, without considering the above aspects has recorded the conviction in a mechanical fashion and as such, the same is liable to be set aside.

12. The learned Additional Advocate General would submit that P.W.1 upon seeing the obscene video on 16.06.2023, which was widely circulated on WhatsApp undertook mandatory preliminary steps, that he was directed by the Inspector of Police to verify whether the person depicted was indeed a minor and accordingly, he approached P.W.7 – Headmaster of Government Higher Secondary School, K.Ramanathapuram, who confirmed the date of birth of the victim boy as 22.03.2007, establishing the victim is a minor, that P.W.8 – District Child Welfare Officer was also simultaneously directed to record the statement of the victim under child-friendly procedure and that thereafter, P.W.1 submitted his special report along with M.O.1 - C.D., and M.O.2- Pen drive.

13. The learned Additional Advocate General would further submit that P.W.2, minor victim, whose presence in the obscene video lies at the heart of the prosecution, that P.W.2 admitted his presence in the video in his statement under Section 164 Cr.P.C., (Ex.P.2) before the learned Magistrate and later reiterated the same in his evidence before the trial Court and that the very admission of P.W.2 that he himself appears in the later portion of the video recordings constitutes the foundational fact necessary to invoke the statutory presumption under Section 29 of the POCSO Act. He would further submit that although P.W.2 expressed uncertainty regarding the identity of the accused in his testimony, the law recognized the trauma, fear and hesitation of child witnesses and relied on the decision of the Hon'ble Supreme Court in State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny reported in (2017)2 SCC 51 and argued that the reluctance or partial retraction by child victims must be viewed in light of trauma and fear and cannot negate corroborated evidence. He would further submit that the testimony of P.W.2 was corroborated by the evidence of P.W.8- District Welfare Officer and his report under Ex.P.5 and also by the evidence of P.W.12 and the forensic analysis report under Ex.P. 9 and that the above establishes the foundational fact of child victimization and as such, by operation Section 29 of POCSO Act, the burden gets shifted to the appellant, but he failed to discharge it with any credible defence.

14. The learned Additional Advocate General would further submit that P.W.8 – District Child Welfare Officer acted in his statutory capacity under the POCSO framework and his role is crucial and he is a neutral, statutory authority mandated to safeguard the welfare of the child victim and report the true state of affairs to the Court and his report records the categorical admission of the victim that he himself appears in the latter portion of the obscene video and his testimony is not tainted by investigative bias and it is an independent statutory corroboration of both. He would further submit that the officials in the forensic lab applied scientific authentication tools ( “Mandet” software) and conducted a frame-by-frame analysis of the recordings, that they examined the videos under multiple forensic parameters including cloned frames, frame type checker, noise deviation and correlation deviation and they have conclusively reported that there were no abrupt changes or discontinuities in the background or lighting and no anomalies or inconsistencies suggestive of manipulation were detected and that the recordings were genuine and devoid of digital tampering. He would further submit that the accused failed to deny or offer any explanation regarding his own identify in the video footage and such silence when weighed with the incriminating circumstances and the nature of the act attracts the statutory presumptions under Sections 29 and 30 of the POCSO Act, but the accused failed to rebut the statutory presumptions and that the learned trial Judge has rightly appreciated the evidence available on records and convicted the accused and as such, the same does not warrant any interference.

15. At this juncture, it is necessary to refer Section 29 of POCSO Act, which is extracted hereunder:

                          “29. Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”

16. The above section creates a legal presumption of guilt against the accused for offences under Sections 3, 5, 7 and 9 of the said Act. This means that the prosecution must first establish the foundational facts of the case and once basic facts are shown, the Court is mandated to presume the accused is guilty of committing the offences. But in the case on hand, the accused is charged for the offences under Sections 11(v), 12, 13, 14(1) of the POCSO Act and not for the offences under Sections 3, 5, 7 and 9 of the said Act. Considering the above, as rightly contended by the learned Counsel for the appellant, Section 29 of the said Act has absolutely no application to the case on hand. Hence, the prosecution like in any other criminal case, is duty bound to prove their case by beyond reasonable doubt.

17. As already pointed out, the main charge against the accused is that he recorded a video depicting his private part and made the victim boy P.W.2 to see it with intention to sexually harass the victim boy. The prosecution has produced M.O.1 – C.D., and M.O.2 – pen drive containing two video recordings allegedly made in the mobile phone. As per the forensic report Ex.P.9, M.O.1-CD contains two video recordings and in the first video, the upper screen shows a person alleged to be the accused and the lower screen shows a portrait of another person alleged to be P.W.2 and both were seen gesturing each other and that the person in the upper screen is found to be showing his private part to the person in the lower screen.

In the second video, which also contains two screens showing the same persons and the person in the lower screen is found to be exposing his thigh region and both of them are found exchanging facial gestures.

18. The main contention of the prosecution is that P.W.2, in his statement under Section 164 Cr.P.C., before the learned Magistrate and in his evidence before the trial Court had specifically admitted his presence in the lower screen and thereby admitted the video recordings. But as rightly contended by the learned Counsel for the accused, P.W.2 in his evidence before the trial Court has deposed that while he was examined at the office of the District Child Protection Officer, a video was shown to him and he admitted his presence in the lower portion of the screen but he does not know the person available in the upper screen.

19. P.W.2 in his evidence would say that while he was studying 10th standard, he used to get cell phone of his mother sometimes, that he found an app chating with girls, that when he entered into that app, he was directed by one lady to do some acts, but subsequently that lady had threatened him and demanded money and hence, he destroyed the SIM card and sold the mobile phone. P.W.2, in his statement recorded under Section 164 Cr.P.C., has stated



20. Before the trial Court, P.W.2 would say





21. In cross-examination, he would say





22. P.W.3 – father, P.W.4 – mother, P.W.6 – grandmother of P.W.2 gave evidence that they do not know the accused and that they were not aware of anything about the case and hence they were treated as hostile by the prosecution. P.W.5 – paternal uncle of P.W.2, who had taken him to the office of the District Child Protection Officer would reiterate the version of P.W.2 and he would say,



23. It is pertinent to note that P.W.8 – District Child Protection Officer, in his evidence would say



24. In cross-examination, he would say



25. Considering the above, it is very much clear that P.W.2 has admitted his alleged presence in the bottom portion of the video recordings, but according to him, that was taken 1 ½ years back, while talking with another person. It is pertinent to note that P.W.2 practically has not supported the case of the prosecution. P.W.2 either in his statement under Section 164(5) Cr.P.C., or before the trial Court has nowhere stated that he was harassed sexually by the accused. But on the other hand, P.W.2 has specifically stated that he does not know the accused, never met him, never had any connection with him nor taken part in any video call with the accused.

26. It is pertinent to note that the evidence given by a witness is binding on the party calling them, and they can't disown or discredit unfavourable parts unless the court permits under Section 154 Indian Evidence Act, allowing cross-examination. If not declared hostile, the testimony remains on record, and the party is bound by it. The defence can then rely on favourable parts. Specifically, Section 154 allows the court to permit a party to cross-examine their own witness if they give unfavourable testimony. Without this permission, the testimony stands as substantive evidence, and the defence can use it to their advantage.

27. In the present case, as already pointed out, P.W.2 did not support the prosecution's case and they did not declare him hostile or cross- examine him, for the reasons best known to them. So, the testimony of P.W.2, remains on record and binds the prosecution. As rightly contended by the learned Counsel for the accused, the evidence of P.W.2 disputing the prosecution's case, is substantive and corroborated by the evidence of P.W. 5 – P.W.2's paternal uncle, P.W.8 – District Child Protection Officer and his statement under Section 164 Cr.P.C. The prosecution is bound by P.W.2's testimony, which favouring the defence.

28. No doubt, as rightly contended by the learned Counsel for the accused, in POCSO cases, the prosecution is duty bound to prove the age of the victim and it must be shown that the victim is a child below the age of 18 years at the relevant point of time According to the defence, the prosecution has miserably failed to prove the age of P.W.2 victim boy in accordance with law.

29. Before entering into further, it is necessary to refer the recent decision of the Hon'ble Supreme Court in Sushil Kumar Tiwari Vs. Hare Ram Sah and others reported in 2025 INSC 1061, relied on by the learned Additional Advocate General, wherein the Hon'ble Apex Court has observed that once the minority of the victim was beyond doubt, the special protection of POCSO Act ought not to have been diluted by raising a fictious doubt regarding the precise age of the victim and the Courts must remain alive to the socio-economic circumstances of the victims, especially those who are based in remoter regions of the country and the relevant passages are extracted hereunder:

                          “16. As regards the first issue concerning the age of the victim, it is quite understandable that for an offence under the POCSO Act, the victim must be aged under 18 years. In order to prove so, the prosecution has relied upon both oral and documentary evidence. The oral testimony of the mother of the victim, examined before the Trial Court as PW-3, reveals that the victim was 12 years old at the time of incident. Further, the statement of victim under Section 164 Cr.P.C. also bears an endorsement regarding her age. The concerned ACJM, examined as PW-4, has recorded her age as 13 years. The father of the victim, examined as PW-5, has deposed that the victim's age at the time of incident was 12 years. Insofar as the documentary evidence is concerned, the Transfer Certificate (Annexure P-10) issued by the government school attended by the victim records her date of birth as 03.10.2004, thereby meaning that during the concerned time-frame of the year 2016, the victim was around 12 years old. The medical report dated 01.07.2016 (Annexure P-1) is also relevant on this aspect. The said medical report pertains to the ultrasound examination of the victim and records her age as 15 years.

                          17. It cannot be denied that there are slight variations in the age of the victim at the relevant point of time, as discernible from the oral and documentary evidence. However, we do not find ourselves in agreement with the High Court that the age was not proved during trial. The oral testimonies of PW-3, PW-5 and PW- 6 are consistent inter-se as well as with the Transfer Certificate issued by the government school. The age of the victim appears to be within the range of 12-13 years at the relevant point of time. The medical report records the age as 15 years. However, we cannot lose sight of the fact that the age of the victim was not challenged during cross-examination of any of the witnesses mentioned above. Their testimonies, on the point of age, have largely remained unrebutted, thereby meaning that the Respondent Nos. 1 and 2 had no claim that she was not a minor at the relevant point. We do not mean to say in cases involving POCSO Act or Juvenile Justice (Care & Protection) Act, 2015, the determination of age is not required. Most certainly, the determination of minority is essential to extend the protection of these legislations, however, as long as the age conclusively appears to be under 18 years, the special protections carved out in favour of children cannot be diluted by insisting upon a rigid determination of the age, that too when it was not even questioned at the right time. In the present case, even if it is believed that the age of the victim was not determined to the hilt, the Trial Court had concluded that the victim was aged between 12 to 15 years at the relevant point of time and thus, was a minor. Thus, it could not be stated that the Trial Court had not determined the minority of the victim. It was done and, in our opinion, rightly so, on the basis of the unrebutted oral and documentary evidence.

                          18. Interestingly, the Respondent Nos. 1 and 2 neither claimed that the victim was not a minor at any point of time nor led any evidence to that effect. We find that the High Court has erred in raising a doubt where none existed, even inter-se the parties to the case. We are also of the opinion that once the minority of the victim was beyond doubt, the special protection of POCSO Act ought not to have been diluted by raising a fictious doubt regarding the precise age of the victim.”

30. In the case on hand, P.W.7 the then headmaster of K.Ramanathapuram Government Higher Secondary School, on perusing the school records has issued the certificate under Ex.P.3 stating that the birth of P.W.2 is 22.03.2007 and also gave evidence reiterating the P.W.1 – complainant and P.W.13 – Investigating Officer have also stated about the age of P.W.2 – victim and obtaining of certificate from P.W.7. Moreover, the statement of P.W.2 under Section 164 Cr.P.C., bears an endorsement regarding his age. As rightly contended by the prosecution, the evidence of P.W.7, P.W.1 and P.W.13 with regard to the age of P.W.2 was not at all challenged. During cross-examination of P.W.7, the defence has not specifically disputed the certificate under Ex.P.3. In cross-examination P.W.7 would say that before issuing the certificate, perused the school admission register and the attendance register. The learned trial Judge, considering the evidence of P.W.7 and Ex.P.3 has rightly given a finding that P.W.2 is a child as contemplated under Section 2(d) of POCSO Act, as he has completed 16 years age, but not 18. Moreover, the accused has not claimed that the victim was not a minor at the relevant point of time nor lead any evidence to that effect. Hence, the contention of the defence that the prosecution failed to prove the age of P.W.2 is devoid of substance and is liable for rejection.

31. The prosecution marked Ex.P.13, the admitted portion of the accused's confession statement, through P.W.13-Investigating Officer, the defence's objection. For admissibility under Section 27 of the Evidence Act, the confession must lead to a discovery of a fact or thing unknown to police. Here, there's no recovery of a new fact, making Ex.P.13 inadmissible as evidence. The trial Court erred in admitting it. Without a relevant recovery, Ex.P.13 can't be considered.

32. The prosecution primarily relied on the evidence of P.W.8 – District Child Welfare Officer and his report under Ex.P.5 and the evidence of P.W.12 – Forensic Expert and their report under Ex.P.9. As already pointed out, except for P.W.2's vague admission of being present in the lower portion of the screen and that too was taken 1 ½ years back, neither P.W.8's evidence nor his report supports the prosecution.

33. The Additional Advocate General would submit that P.W.2 did not identify the accused in the video due to trauma, fear, or hesitation. But as rightly pointed out by the learned Counsel for the the defence, P.W.2’s evidence or his Section 164 Cr.P.C. statement does not indicate any such trauma, fear, or hesitation. Instead, P.W.2 told P.W.8 he suffered mental agony from the repeated inquiries about an incident he denied happened.

P.W.8 admitted in cross-examination that P.W.2 said the agony was from "continuous enquiry about something that did not happen," with no mention of POCSO-related trauma.

34. Turning to the alleged video recordings (M.O.1 and M.O.2), P.W.1 claims he received a WhatsApp video, transferred it to the pen drive (M.O.2), and then to a CD (M.O.1). Crucially, P.W.1 doesn’t mention who sent the video or the sender’s phone number. Admittedly, neither P.W.1 nor P.W.13 investigated the sender or the WhatsApp group admin. It is necessary to refer the evidence of P.W.1 in this regard.



35. Though P.W.2 claimed he destroyed the SIM and sold the phone, the prosecution did not investigate the phone he allegedly used or the one he supposedly got the video call from the accused. The prosecution says the accused "confessed" to destroying his phone/SIM, but no probe into his alleged device either. There is no evidence to show where the videos were made or how they hit WhatsApp.

36. As rightly contended by the learned Counsel for the accused, though M.O.1 and M.O.2 were produced by P.W.1 on the date of complaint ie., 24.06.2023, after filing of the charge sheet, M.O.1 – C.D., was sent to forensic lab on 26.09.2023 after the lapse of three months since its production. The prosecution has not offered any reason or explanation for the delay occurred. Moreover, M.O.1 – C.D., was produced before the concerned Court on 27.07.2023 and M.O.2 pen drive was produced on 29.11.2023. The prosecution has also not stated about the safe custody of M.O.1 and M.O.2 till the production before the concerned Court. It is pertinent to note that M.O.1 – C.D., alone was sent to forensic lab and not the pen drive under M.O.2. As already pointed out, even according to P.W.1, he transferred the disputed video from his mobile to pen drive and then to C.D., Moreover, he has given a certificate under Section 65(B) of the Indian Evidence Act, while producing M.O.1 and M.O.2.

37. Recently the Rajasthan High Court in Shwetabh Singhal Vs. M/s J.K.and Sons and others reported in 2025 Live Law Rajasthan 320 has held that the certificate under Section 65-B of the Indian Evidence Act is required to be submitted by the person, who possessed the original device in which the evidence was recorded and not the one in whose device the evidence was merely transferred from the original device.

38. A learned Judge of Rajasthan High Court, relying on the judgments of the Hon'ble Apex Court, in Anvar P.V. Vs. P.K.Basheer reported in AIR 2015 SC 180 and Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Others reported in 2020 (7) SCC 1 has held as follows:

                          “8. The question involved in the instant writ petition is no more res integra, as the same has been set at rest by the Hon’ble Apex Court in the case of Anvar P.V. (supra) in para No.14, which reads as under: “14.Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

                          (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.”

                          9. The Hon’ble Apex Court has categorically held in para 14(e) of the aforesaid judgment that such certificate has to be personally signed by the person, who was occupying the relevant device. 10. The view taken by the Hon’ble Apex Court in the case of Anvar P.V. (supra) was further reiterated by the Apex Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Others reported in 2020 (7) SCC 1 and it has been held in para 51 and 52, which reads as under: “51. On an application of the aforesaid maxims to the present case, it is clear that though Section 65B(4) is mandatory, yet, on the facts of this case, the respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.

                          52. We may hasten to add that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V., this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.”

                          12. In the considered opinion of this Court, the certificate issued by the respondent No.2-Rajendra Kumar Johri is not valid, as the video was not recorded originally in his device. The video was recorded in the device of Rajat Sancheti whose certificate was required to be produced on the record, but the same has not been produced.”

39. In the present case, as already pointed out, P.W.1 who received the disputed video from an unknown source provided a certificate under Section 65-B of the Evidence Act rendering it as invalid. No doubt, the forensic experts found M.O.1 – CD genuine with no digital manipulation, but they did not examine M.O.2 – pen drive. P.W.12 in his cross- examination would admit that



40. Section 45 to 51 under Chapter II of the Indian Evidence Act provide relevancy of opinion of third persons, which is commonly called as expert's opinion and an expert is not a witness of fact and his evidence is of advisory character. Expert opinion is nothing but opinion evidence and it cannot take the place of substantive evidence. It is rule of procedure that expert evidence must be corroborated either by clear direct evidence or by circumstantial evidence. It is settled law that the Courts cannot pass an order of conviction on the basis of expert opinion, as because it is not conclusive. An expert opinion is considered as a supportive piece of evidence and not a substantive or conclusive proof in itself and Courts are not bound to accept the expert's opinion and must form its own independent judgment, after considering the expert's reasons and all other facts in the case. The prosecution produced M.O.1 C.D. with Section 65(B) Evidence Act certificate (Ex.P.11), and it was admitted in evidence. However, admission doesn't prove its contents. The prosecution must prove contents through other evidence, but there's no evidence to prove M.O.1's contents. Without substantive evidence, P.W.12's expert evidence can't be used as corroborative or supportive evidence.

41. Turning to the charges, Section 67(B)(a) of the IT Act punishes publishing/transmitting sexually explicit child content electronically. The prosecution claims the accused circulated the videos on WhatsApp, but there is zero evidence he sent them. P.W.1 himself couldn’t identify the sender. Without proof that the accused published, transmitted, or caused this, the conviction under Section 67(B)(a) of IT Act cannot be sustained.

42. As already pointed out, the trial Court has framed charges for the offences under Sections 11(v), 12, 13 and 14 of POCSO Act, but convicted the accused for the offence under Section 11(i) R/W 12 of the said Act. Admittedly, as rightly contended by the learned Counsel for the accused, the trial Court has not framed any charge for the offence under Section 11(i) of the POCSO Act. Section 11(i) of the POCSO Act defines sexual harassment as uttering words, making sounds, gesture or exhibits any objects with sexual content, while Section 11(v) criminalizes threatening to use in any media (real or fabricated) to depict a child's body or involvement in a sexual act. The key difference is that 11(i) concerns direct physical or verbal acts, whereas Section 11(v) deals with threats involving electronic or other media. Moreover, both the ofences under Sections 11(i) and 11(v) attract the same punishment under Section 12 of the said Act.

43. It is settled law that the accused must be informed of the specific charges against him to ensure a fair trial and a proper defence. Each offence has its own set of ingredients or elements that must proven for a conviction. Section 222 Cr.P.C., allows a Court to convict an accused for a minor or lesser offence if the evidence proves a lesser crime that is included within the charged offence, even if the minor offence was not specifically charged. To put it in other way, if a person is charged with an offence made up of several parts and the evidence only proves some of those parts that constitute a complete, minor offence, the Court can convict the person of the minor offence even it was not specifically charged.

44. Here, the offence under Section 11(i) of POCSO Act cannot be considered a minor offence compared to the offence under Section 11(v). Moreover, the nature of the offence and the ingredients required to prove them are different, though both attract the same punishment. No doubt, as rightly contended by the learned Additional Advocate General, the accused has to show that he was prejudiced and the same resulted in miscarriage of justice. In the present case, he suffered a conviction for offence for which not charged. Since an unfair outcome and conviction resulted from proceeding, it can easily be stated that there was a miscarriage of justice. Hence, the conviction imposed by the trial Court for the offence under Section 11(1) of POCSO Act is not legal.

45. Though POCSO offences are serious, sensitive, and carry harsh punishments, this Court is forced to say that the investigation was superficial.

46. The learned Counsel for the accused would rely on a decision of this Court in R.Marimuthu @ Samikannu and another Vs. State represented by the Inspector of Police, Velliyani Police Station, Karur District reported in 2021(2) MLJ (Crl.)149, wherein it was observed that generally, the Courts of law shall not be carried away by mere sentimentalities or the conjunctures or surmises or the status of the accused as habitual offender, but bound to proceed on the basis of legal evidence alone.

47. As rightly contended by the learned Counsel for the accused, there is no legal evidence supporting the prosecution's case. The prosecution has failed to prove its case. But the trial Judge overlooked key aspects and relied on irrelevant factors, leading to a mechanical conviction. Hence, the conviction is liable to be set aside.

48. In the result, the Criminal Appeal is allowed and the judgment of conviction passed in Spl.S.C.No.385 of 2023, dated 30.05.2024, on the file of the Special Court for POCSO Act cases, Dindigul is set aside the appellant/accused is acquitted from the charges levelled against him. The appellant/ accused is directed to be released, unless his detention is required in any another case. Fine amount if any paid, shall be refunded to him. Consequently, the connected Miscellaneous Petition is closed.

49. Regarding compensation, there is no evidence of sexual harassment, but P.W.2 testified to mental agony from repeated enquiries despite denying the incident. Hence this Court upholds the order awarding compensation of Rs.50,000(Rupees Fifty Thousand only) to P.W.2.