SARATHKUMAR Vs. STATE

JUDGEMENT

(1.) The appellant/accused in Spl.S.C.No.38 of 2019 was convicted by the Trial Court by judgment dtd. 11/5/2022 for the offence under Sec. 12 of POCSO Act and sentenced him to undergo one year rigorous imprisonment and to pay a fine of Rs.5,000.00, in default, to undergo three months simple imprisonment. Against which, the present appeal is filed.

(2.) The case of the prosecution is that the victim girl/P.W.1, who was studying 9th Standard in Government Higher Secondary School, Royapuram, Ariyalur District on 18/6/2019 at about 4.45 p.m. was going back to her house along with two of her schoolmates, P.W.3 and P.W.7, at that time, the appellant gave a small paper with his mobile number written in it, forced the victim girl to speak to him daily during night hours informing that he is in love with her and he will marry her, failing which he would commit suicide. The victim girl not knowing as to what to do complained to her aunt since her parents were not available then, Thereafter, the victim 's father P.W.2 was later informed about the incident who thereafter lodged a complaint to P.W.9/Sub-Inspector of Police attached to the respondent Police Station, who registered FIR/Ex.P3. The Sub-Inspector of Police placed the FIR to P.W.10/Investigating Officer who recorded the statement of the victim and her two classmates, P.W.3 and P.W.7, thereafter examined P.W.1/victim girl, P.W.4/aunt of the victim girl, P.W.5/mother of the victim girl and collected the age certificate from P.W.6. Thereafter, P.W.10 prepared observation mahazar, rough sketch in the presence of witnesses and the victim girl was produced before the Magistrate where she gave a statement under Sec. 164 Cr.P.C. which was marked as Ex.C1. On conclusion of investigation, charge sheet filed. During the trial, P.W.1 to P.W.10 examined and Ex.P1 to Ex.P6 marked on the side of the prosecution. On the side of the defence, no witness examined and no documents marked. Before the Trial Court, the appellant was charged for the offence under Ss. 294(b), 506(ii) IPC and Sec. 11(iv) of POCSO Act punishable under Sec. 12 of POCSO Act. The Trial Court acquitted the appellant for the offence under Ss. 294(b), 506(ii) IPC but convicted the appellant for the offence under Sec. 12 of POCSO Act and sentenced him as stated above.

(3.) The learned counsel for the appellant submitted that the foundational fact of the case is that the appellant is said to have restrained the victim girl when she was coming back from her School on 18/6/2019 and gave a small paper with his mobile number written in it to contact him, but the said small paper has not been produced. He would submit that the victim girl in her evidence states that she had thrown away the small paper in the scene of occurrence and came home crying, but P.W.2 and P.W.5, father and mother of the victim girl, on the contrary, state that the small paper was collected from the scene of occurrence and it was produced to the respondent police. P.W.10 admits that in Ex.P1/complaint, there is a reference to the mobile number but he has not taken any steps to find out as to who is using the mobile number and in whose name the number was obtained. The specific case of the appellant is that he is not using the mobile number as alleged. In this case, admittedly the complaint was lodged with a delay of two days but no reason given for the delay. The appellant 's case is that one Kumar, father of P.W.3 is owning and hiring a Tractor, he dashed against two women who belongs to the Colony and for that reason, the appellant who hails from the Colony has been falsely implicated. Further, the appellant earlier lodged a complaint against Keelapuram Village people under SC/ST Act and this is one more reason for implicating the appellant in the case. In this case, P.W.3/Classmate who come along with the victim gives corroboratory version to P.W.10. P.W.7, another Classmate had not supported the case of the prosecution. In the complaint/Ex.P1, it was recorded that two person restrained the victim girl and the appellant is said to have given his mobile number written in a small paper and P.W.10 admits that there is no investigation as regards the other person. The Trial Court disbelieving the evidence of the witnesses acquitted the appellant from the charges under Ss. 294(b) and 506(ii) IPC. He would further submit that the charges under Ss. 294(b) and 506(ii) IPC are identical to the charge under Sec. 11(iv) of POCSO Act and since P.W.1 is a minor, charge under Sec. 11(iv) of POCSO Act also invoked. When the Trial Court disbelieved the evidence with regard to Ss. 294(b) and 506(ii) IPC, the natural corollary is that the charge under Sec. 11(iv) of POCSO Act ought to have been dropped. But on the contrary, to abuse the people who hails from the Colony a case has been projected. The Trial Court also without considering these aspects convicted the appellant. Hence, prayed for acquittal.