Selvaraj Vs State Rep by

2.(i)The gist of the prosecution case is that the appellant is closely related to the victim girl aged about 5 years at the time of occurrence; that he had committed aggravated sexual assault by hugging her inappropriately and touching her genital parts, besides biting and touching her genital parts and thus committed the aforesaid offences.

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(ii)The alleged occurrence is said to have taken place on 04.02.2019 at 3.30 p.m.. The victim PW2, who went to purchase curd packet did not return; that thereafter, PW3, the grandmother of the victim girl went in search of the victim girl; that she saw the victim girl coming out of the house of the appellant; that the victim is said to have told the grandmother about the occurrence; that PW3 in turn told PW1, the mother of the victim and thereafter, PW1 lodged a complaint, which was marked as Ext.P15 by PW9. PW11 took up the investigation and after conducting substantial

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investigation had handed over the investigation to PW12, who laid the final report, after examination of the other witnesses before the Sessions Judge, Special Court for POCSO cases, Salem. The trial Court framed charges against the accused under Section 9 (m) r/w 10 or the POCSO Act and Section 294 B IPC and when questioned, the appellant pleaded 'not guilty.

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(iii) To prove the case, the prosecution had examined 12 witnesses and marked Exts. P1 to P21 to prove its case.

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(iv) On appreciation of oral and documentary evidence, the Trial Court found that the prosecution had established the case beyond reasonable doubt, and held the accused guilty of the offences under Sections 9(m) r/w 10 of the POCSO Act. The Trial Court sentenced him to undergo five years rigorous imprisonment and to pay a fine of Rs.15,000/- in default to undergo simple imprisonment for six months for the offence under Section 9(m) r/w 10 of POCSO Act 2012. Hence, the accused/appellant has preferred the appeal challenging the said conviction and sentence.

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3.Heard Mr.M.Subash, the learned counsel appearing for the

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appellant/accused, and Mr.S.Raja Kumar, learned Additional Public Prosecutor appearing for the respondent/State.

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4.The learned counsel for the petitioner would submit that the victim's evidence does not inspire confidence; that the victim had admitted in the cross-examination that whatever she stated before the Police and in the Court were told by her mother and that she was deposing at the instance of her mother; that the evidence of the Doctor, who examined the victim girl has stated that the victim girl did not sustain any injuries in her genital parts; that PW1 and PW3 had motive to falsely implicate the petitioner, since the appellant’s brother had matrimonial differences with his wife, who happens to be the sister-in-law of PW1; and considering all the above facts, he prayed for setting aside the impugned Judgment.

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5.The learned Public Prosecutor per contra , submitted that the

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victim was aged about 5 years; that there was no reason for the victim to accuse falsely against the appellant; that minor contradictions in her

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evidence and innocuous admission made in her cross-examination would not render her evidence unbelievable; and considering the nature of evidence adduced by the prosecution, the impugned Judgment is not liable to be set aside and prayed for dismissal of the appeal.

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6.As stated earlier, the prosecution had examined 12 witnesses; PW1, is the mother of the victim girl and the defacto complainant who lodged the complaint. PW2 is the victim. PW3 is the grandmother of the victim. PW4 is the grandfather of the victim. PW5 is the relative of the victim, who signed in the observation mahazar Ext.P5. PW6 is the Doctor, who examined the victim girl and made entries in the accident register Ext.P7 and also issued medical examination report Ext.P8 and had also marked the Exts. P9 to P11. P11 is the final opinion. PW7 is the Doctor, who had examined the appellant and had issued the potency certificate. Ext.P13. PW8 is the relative of PW1, who corroborates the evidence of PW3. PW9 is the Sub Inspector, who registered the FIR. Ext.P10 is working as Inspector in the Corporation and marked the birth certificate of the victim girl, Ext.P17. PW11 and PW12 are the investigating officers.

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7.The date of birth of the victim has been established by the prosecution by examining Ext.P10, who had marked birth certificate Ext.P17. The victim was born on 01.07.2014. The victim was aged about 5 years at the time of occurrence. This is not in dispute. It is also not in dispute that the victim and the appellant are closely related to each other. PW1, who is the mother of the victim is the sister-in-law of the wife of appellant's brother. It is also not in dispute that the appellant’s brother and his wife had matrimonial differences.

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8.It is case of the prosecution that the victim was sent by PW3 to purchase curd; that the victim did not return; that thereafter, PW3, the grandmother of the victim girl went in search of the victim girl; and that she saw the victim girl coming out of the house of the appellant on the day of occurrence. According to her, the victim told her that the appellant had committed the aforesaid sexual assaults. PW3, would depose that she questioned the appellant and that the appellant denied having committed any such sexual assault and also attempted to attack PW3 with a stick. On PW3's information, PW1, lodged a complaint.

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9.Therefore, the entire case rests on the evidence of the victim

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PW2. All other witnesses, including PW1 and PW3 are hearsay witnesses. PW4 is the grandfather, who is also a hearsay witness. Therefore, it is to be seen whether the evidence of the victim inspires confidence. The victim in her deposition had narrated the sexual assault in her her chief examination. In fact, she had also stated about the occurrence in her statement to the Magistrate under Section 164(5) of Cr.P.C., However in the crossexamination, the victim had stated as follows;

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"fhty;’ ; epiyaj;jpw;F Kd;ghf mk;kh vd;d brhy;ypf;bfhLj;jnjh mijj;jhd; ehd; nghyP!; !;nlrdpy; brhd;ndd;/ vjphp bry;tuhi$ ehd; rpj;jg;gh vd;W jhd; Tg;gpLntd;/ khkh vd;W Tg;gplkhl;nld;/ vjphp ifapy; itj;jpUe;j japh ; ghf;bfl;il vd;id ifapy ; th';fp itj;Jf;bfhs; vd;W vjphp brhd;d thh;j;ijia nghyPrpy; brhy;ytpy;iy vd;why; brhd;ndd;/ Vw;fdnt ePjpkd;wj;jpy; thf;FK:yk ; brhd;dnghJk;. mk;kh brhy;ypf;bfhLj;j go jhd ; brhd;ndd ; vd;why ; rhp/ ,d;iwa jpdk ; Kjy; tprhuizapy; rhl;rpak; mspj;jJk; mk;kh brhy;ypf;bfhLj;j go jhd; brhd;ndd; vd;why; rhp/"

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10.In the light of the above admission made by the victim girl in the cross-examination, this Court is of the view that it will be highly unsafe to convict the appellant only on the sole testimony of the victim.

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11.Hence, it has to be examined whether there is any

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corroboration to the evidence of the victim girl. The prosecution had examined PW6, the Doctor who had made entries in the accident register and also issued the medical examination report. In the accident register,

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marked as Ext.P7, the Doctor had made the following entries.

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"L/E No external injuries over mammae, cheeks, lips, thighs, external genitalia”

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12.In the medical examination report, the Doctor had made the following entries.

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"P/A soft, L/E No external injuries over mammae,

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cheeks, lips, thighs, external genitalia Hymen intact”'

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13.PW6, in her cross examination had confirmed that there were

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no injuries in the genital parts of the victim. It is also seen from the evidence that the appellant’s brother and his wife had a strained relationship. The appellant’s brother’s wife is the sister-in-law of PW1, ie., her husband's sister. The appellant's brother is the son-in-law of PW3. Therefore, there was a strained relationship between the two families.

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14.In the light of the above evidence and the admission made by the victim, that her version is based on what ws told to her by her mother, this Court is of the view that it would be highly unsafe to convict the appellant on the basis of such evidence. Therefore, this Court is of the view that the appellant is entitled to benefit of doubt and accordingly, is inclined to set aside the impugned judgment of conviction and sentence passed in Spl.S.C.No.09 of 2020 dated 31.05.2022 on the file of learned Sessions Judge, Special Court for POCSO Cases, Salem.

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In the result, this Criminal Appeal is allowed, and the appellant is acquitted of the charges under Section 9(m) r/w 10 of the 9\11

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POCSO Act. The conviction and sentence passed in Spl.S.C.No.24 of 2019

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on the file of the learned Sessions Judge, Special Court for POCSO Cases, Salem dated 31.05.2022 is set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged .

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09.01.2026

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Neutral Citation: Yes/No

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Tsg

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To

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1. The Sessions Judge, Special Court for POCSO Cases, Salem

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