(Prayer: Criminal Appeal filed under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Under Section 374(2) of the Criminal Procedure Code), to call for the records relating to the judgment passed in Special SC No.64/2021, dated 23/01/2023 on the file of the Special Court (Cases of Protection of Child from Sexual Offences Act), Virudhunagar District at Srivilliputhur and to set aside the same and consequently to acquit the appellant/Sole accused from the charges levelled against him.)

G.K. Ilanthiraiyan. J

1. This Criminal Appeal is directed as against the judgment of conviction and sentence passed by the Sessions Judge, Special Court for POCSO Act Cases, Virudhunagar District @ Srivilliputhur, thereby convicted the appellant for the offences punishable under Section 6 of POCSO Act and Section 506(i) of IPC.

2. The case of the prosecution is that the minor victim girl while she was studying 7th Standard in the year 2020, her own father had committed the penetrative sexual assault on her. He also threatened her not to disclose the same to any body and if disclosed, he will do away the life of the minor victim girl. The minor victim girl has attained puberty, on 21/07/2020. In the meantime, on 10/09/2020, when the mother of the minor victim girl went for her avocation, while the victim was alone in the house, her own father namely the accused committed the aggravated penetrative sexual assault on her. He had repeatedly committed the same offence, on 10/08/2021 and 30/08/2021.

3. On the complaint lodged by the mother of the minor victim girl, the respondent Police registered the FIR in Crime No.12 of 2021 for the offences punishable under Section 506(i) IPC and Sections 7, 8, 5(m), 5(n), 5(l) and 6 of Protection of Child From Sexual Offences Act, 2012. After completion of the investigation, final report was filed and the same has been taken cognizance by the Trial Court in Special SC No.64 of 2021.

4. Before the Trial Court, the prosecution examined 7 witnesses as P.W.1 to P.W.7 and marked 12 documents as Exs.P1 to P12. On the side of the accused, one witness was examined as DW1, but no document was marked.

5. On perusal of the oral and documentary evidence, the Trial Court found the appellant/accused guilty and accordingly, convicted and sentenced him to undergo Life Imprisonment and imposed a fine of Rs.1,000/-, in default to undergo two years SI for the offence under Section 6 of POCSO Act and also convicted and sentenced him to undergo two years RI and imposed a fine of Rs.1,000/-, in default to undergo 3 months SI for the offence under Section 506(i) of IPC and directed to run both the sentences concurrently. Aggrieved by the said judgment of conviction and sentence, the appellant is before this Court.

6. The learned counsel for the appellant submits that though the minor victim girl and the appellant, who is her father, residing in the same house, the prosecution failed to examine him to corroborate the evidence of the minor victim girl. Though, the minor victim girl was subjected to medical examination, the Doctor, who examined the minor victim girl categorically deposed that the victim might have been subjected to sexual assault and her hymen was torn and there is not injuries found in the breast and in her private parts. Therefore, the prosecution failed to prove any of the charges. Further, the appellant is in incarceration from the date of his arrest. He further submits that there was matrimonial dispute between the appellant and his wife. Therefore, a false case has been foisted as against the appellant. Therefore, the conviction and sentence imposed by the Trial court cannot be sustained and liable to be set aside and accordingly, this appeal is to be allowed by acquitting the appellant.

7. Per contra, the learned Additional Public Prosecutor appearing for the respondent/State submits that at the time of the occurrence, the victim girl was below 12 years and the accused is her own father. The minor victim girl was examined as P.W.2 and she categorically deposed that on 10/09/2020, while she was alone in the house, her own father namely the accused committed the aggravated penetrative sexual assault on her and subsequently, on 10/08/2021 and 30/08/2021, he had repeatedly committed the same offence. The evidence of the minor victim girl was corroborated by the evidence of PW1, who is the mother of the minor victim girl. The Doctor, who examined the victim girl opined that hymen was torn. Considering all the above aspects, the Trial Court has rightly convicted the appellant/accused, which does not warrant any interference by this Court and prays for dismissal of the appeal.

8. Heard both sides and perused the materials available on record.

9. On perusal of the records, the mother of the minor victim girl was examined as PW1. Though she was cross examined that there was matrimonial dispute between herself and the appellant, it was denied by PW1.

10. The victim girl was examined as PW2. She categorically deposed that the appellant being her father, while she was studying 7th Standard, at the age of 12 years, had committed aggravated penetrative sexual assault on her on several times by giving false reasons. Therefore, on 30/08/2021, it was informed to PW1 and immediately, she lodged the complaint.

11. The complaint was marked as Ex.P1. It was lodged by PW1 and the same was registered in Crime No.12 of 2021 by the respondent Police for the offences under Section 506(i) IPC and Sections 7, 8, 5(m), 5(n), 5(l) and 6 of the POSCO Act, 2012 and the same has been marked as Ex.P6.

12. After registration of the FIR, the minor victim girl was subjected to medical examination. The Doctor, who had examined the minor victim girl deposed as PW3. The Doctor also opined that there is a chance for the minor victim girl subjected for sexual intercourse. Her hymen was not in-tact. So, it also supported clearly to the statement of minor victim girl. The minor victim girl namely PW2 had deposed as follows:-

               

                

13. The victim evidence is the best piece of evidence and it could not be corroborated by any other evidence. Further, the appellant also failed to prove that there was matrimonial dispute between himself and PW1, who is his wife and due to which, a false case has been foisted against him.

14. The accused is none other than the own father of the minor victim girl. After attaining puberty, while the minor victim girl was alone in the house, the accused had committed the aggravated penetrative sexual assault on her on several occasions. It was informed by the minor victim girl to her mother and immediately, her mother lodged a complaint before the respondent Police and the same has been registered in Crime No.12 of 2021, on 31/08/2021. In fact, there was no delay in lodgment of the complaint, since lastly the accused committed the offence, on 30/08/2021. Immediately, after registration of the FIR, the minor victim girl was subjected for medical examination. On examination, it was found that her hymen was not in-tact. So, it cannot be stated that the minor victim girl was not subjected to sexual assault. Naturally after attainment of puberty, hymen is not in-tact. Therefore, it cannot be stated that the medical report is not supported the case of the prosecution.

15. The victim evidence is the best piece of evidence in sexual offence cases. In this case, the evidence of the minor victim girl is corroborated by the evidence of PW1, who is none other than the mother of the minor victim girl. Further, absolutely, there is no possible for giving false complaint as against her own father. It is not the case of the appellant that there was a family dispute between himself and his wife and as such, a false complaint has been foisted through his own daughter namely the minor victim girl.

16. Perusal of the cross examination of PW1 and PW2, nothing was elicited by the defence in order to disbelieve the case of the prosecution. After registration of the FIR, the minor victim girl was subjected for medical examination and her statement was clearly recorded in the Accident Register, which was marked as Ex.P5. It also corroborated by the evidence of the Doctor (PW3), who registered the Accident Register (Ex.P5). Absolutely, there is no contradiction to disbelieve the case of the prosecution. Hence, this Court finds no infirmity or illegality in the impugned judgment passed by the Trial Court.

17. In the Result, this criminal appeal stands dismissed, confirming the impugned judgment passed by the Trial Court. Consequently, connected Miscellaneous Petition is closed.