JUDGMENT : P.N. Prakash, J. 1. Challenging the judgment of conviction and sentence dated 25.10.2016, in S.C. No. 60 of 2016, on the file the Mahalir Neethimandram, (Fast Track Mahila Court), Karur, the accused 2 and 1 have filed Crl. A. (MD) Nos. 273 of 2017 & 199 of 2018 respectively. 2. The case of the prosecution, in a nutshell, is as follows: 2.1. The victim, aged about 13 years, was sexually abused by her father Ganesan (A1) and uncle Rajalingam (A2) on two different dates. On the written complaint (Ex. P2) given by the victim girl (P.W. 11), Balakrithika (P.W. 20), Sub Inspector of Police, registered a case in Kulithalai All Women Police Station Crime No. 2 of 2016, for the offences punishable under Sections 4, 5(m)(n) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, “the POCSO Act”), on 03.04.2016 at 01.00 p.m., against Ganesan (A1) and Rajalingam (A2) and prepared the printed F.I.R. (Ex. P10), which reached the jurisdictional Magistrate on 03.04.2016 at 10.00 p.m., as could be seen from the endorsement thereon. 2.2. Thereafter, the investigation of the case was taken over by Rani (P.W. 21), Inspector of Police, who went to the occurrence places and prepared Observation Mahazars (Exs. P1 & P9) and Rough Sketches (Exs. P11 & P12). The victim girl (P.W. 11) was subjected to medical examination on 04.04.2016 by Dr. Sudarsana (P.W. 14), who in her evidence as well in the Accident Report (Ex. P4) has stated as follows: “External genitalia No external injuries, No bleeding PV, Hymen intact. As hymen is intact, PV could not be taken and vaginal smear could not be taken. Vaginal Smear taken: No Sperm cells, one epithelial cell, 1-2 pus cells seen. Investigations: Opinion: IN OTHER LANGUAGE Thus, the opinion of Dr. Sudarsana (P.W. 14) is to the effect that there is no symptom of penetrative sexual assault. 2.3. Rani (P.W. 21), Investigating Officer, arrested Ganesan (A1) and Rajalingam (A2) and they were also subjected to medical examination by Dr. Surendar (P.W. 15), who, after examining both Ganesan (A1) and Rajalingam (A2), vide Exs. P5 and P6 respectively, has opined that they are capable of coitus. 2.4. Rani (P.W. 21), Investigating Officer, had the statement of the victim girl (P.W. 11) recorded under Section 164 Cr.P.C., by Rajasekaran (P.W. 18), Judicial Magistrate and the statement was marked as Ex. P3. Surendar (P.W. 15), who, after examining both Ganesan (A1) and Rajalingam (A2), vide Exs. P5 and P6 respectively, has opined that they are capable of coitus. 2.4. Rani (P.W. 21), Investigating Officer, had the statement of the victim girl (P.W. 11) recorded under Section 164 Cr.P.C., by Rajasekaran (P.W. 18), Judicial Magistrate and the statement was marked as Ex. P3. After examining witnesses and completing the investigation, Rani (P.W. 21), Investigating Officer, filed final report in P.R.C. No. 6 of 2016, before the learned Judicial Magistrate No. II, Kulithalai, for the offences under Sections 366-A I.P.C., and 5(m)(n) r/w 6 of the POCSO Act against Ganesan (A1) and Sections 366-A I.P.C., and 3 r/w 4 of the POCSO Act, against Rajalingam (A2). 3. On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C. No. 60 of 2016 and was made over to the Special Court (Fast Track Mahila Court), Karur, for trial. 4. The Trial Court framed four charges against the appellants, as detailed below: Charge Penal Provisions Accused 1 366 I.P.C. A1 2 5(n) r/w 6 of POCSO Act 3 366 I.P.C. A2 4 3 r/w 4 of POCSO Act 5. When questioned, the appellants pleaded “not guilty”. To prove its case, the prosecution examined 21 witnesses and marked 12 exhibits and 01 material object. No witness was examined nor any document marked on the side of the accused. When the accused were questioned under Section 313 Cr.P.C., about the incriminating circumstances appearing against them, they denied the same. 6. By judgment dated 25.10.2016, the Trial Court acquitted the appellants of the charge under Section 366 I.P.C. The appellants were, however, convicted and sentenced as under: Accused Section of Law Sentence of imprisonment Fine amount A1 5(n) r/w 6 of POCSO Act To undergo imprisonment for life. Rs. 1,000/- in default to undergo simple imprisonment for one (1) month. A2 3 r/w 4 of POCSO Act To undergo rigorous imprisonment for ten (10) years. Rs. 1,000/- in default to undergo simple imprisonment for one (1) month. The appellants are, therefore, before this Court, assailing the judgment of conviction and sentence, dated 25.10.2016. 7. Rs. 1,000/- in default to undergo simple imprisonment for one (1) month. A2 3 r/w 4 of POCSO Act To undergo rigorous imprisonment for ten (10) years. Rs. 1,000/- in default to undergo simple imprisonment for one (1) month. The appellants are, therefore, before this Court, assailing the judgment of conviction and sentence, dated 25.10.2016. 7. When the matter was taken up for hearing, the learned counsel for Rajalingam (A2) drew the attention of this Court to the letter dated 27.03.2019 sent by Rajagalingam (A2), through the Superintendent of Prison, Central Prison, Trichy, to the Registry of this Court, wherein he (A2) has stated that on account of his poverty and penury, he is withdrawing Crl. A. (MD) No. 273 of 2017. 8. We are afraid that we cannot concede to the request of Rajalingam (A2), because, once a Criminal Appeal is admitted, the same cannot be withdrawn by the party nor can it be dismissed for default by this Court. Under Section 386 Cr.P.C., we are required to go through the records and give a disposal to the case in accordance with law. Therefore, we urged Mr. V. Nagarajan, learned counsel on record for Rajalingam (A2) to prosecute the appeal in Crl. A. (MD) No. 273 of 2017 and assist this Court. 9. Accordingly, we heard Mr. A. Haja Mohideen, learned counsel for Ganesan (A1), Mr. V. Nagarajan, learned counsel for Rajalingam (A2) and Mr. R. Anandharaj, learned Additional Public Prosecutor for the State. 10. It is the specific case of the prosecution that three months prior to 02.04.2016, Ganesan (A1), father, sexually abused his daughter (P.W. 11), victim girl, in the morning hours, in the field. On 02.04.2016, Rajalingam (A2), uncle, sexually abused her (P.W. 11) in his house. On reading the complaint (Ex. P2), it is alleged that, three months prior to the date of lodging the complaint (Ex. On 02.04.2016, Rajalingam (A2), uncle, sexually abused her (P.W. 11) in his house. On reading the complaint (Ex. P2), it is alleged that, three months prior to the date of lodging the complaint (Ex. P2), she (P.W. 11) and her father Ganesan (A1) were grazing cattle in the field and at that time, her father took her (P.W. 11) into a grove, removed her undergarments and touched her private part by his private part; when she (P.W. 11) informed this to her mother Lakshmi (P.W. 12) in the evening, her mother (P.W. 12) abused Ganesan (A1), who thereafter, asked for her forgiveness; thereafter, on 02.04.2016, around 10.00 a.m., while she (P.W. 11) was grazing cattle along with her father Ganesan (A1) in the field, Ganesan (A1) went home and brought food; the food that was brought by Ganesan (A1) was of the previous day's; therefore, she (P.W. 11) wanted rasam rice; when she (P.W. 11) expressed her desire, Rajalingam (A2) told her that he will provide rasam rice and took her to his house, where, Rajalingam (A2) removed her undergarments and touched her private part by his private part; when she informed this to her mother Lakshmi (P.W. 12), she said that police complaint can be lodged the next day. Hence, the complaint (Ex. P2). 11. It may be necessary to state here that the F.I.R. (Ex. P10) in this case has been registered at 01.00 p.m., on 03.04.2016 as alluded to earlier. However, in the evidence of the victim girl (P.W. 11), she has stated that on 02.04.2016, around 10.00 a.m., her father Ganesan (A1) came drunk, took her to a nearby bush, forced her to remove her undergarments and touched her private part by his private part; when she (P.W. 11) informed this to her mother Lakshmi (P.W. 12) in the evening, she (P.W. 12) questioned Ganesan (A1) and on her questioning, Ganesan (A1) felt remorseful. She (P.W. 11) has further stated that on another day, while she (P.W. 11) was grazing cattle along with her father Ganesan (A1) in the field, her father went home and brought previous day's rice for them to have; however, she (P.W. 11) wanted rasam rice; on knowing this, Rajalingam (A2), who was also grazing cattle nearby, promised her to provide rasam rice and took her to his house, where, he (A2) removed her undergarments and touched her private part by his private part and fed her with rasam rice and brought her back to the place, where she (P.W. 11) was grazing cattle; she informed this to her mother Lakshmi (P.W. 12) on the same day; on the next day, she (P.W. 11) and her mother Lakshmi (P.W. 12) went to Police Station and lodged the complaint (Ex. P2). 12. In the cross-examination, she (P.W. 11) has admitted that in the evening of the day, on which Rajalingam (A2) had sexually abused her, she (P.W. 11) went to the Police Station along with her mother Lakshmi (P.W. 12) and father Ganesan (A1) and gave a written complaint to Balakrithika (P.W. 20), Sub Inspector of Police, in which, her father Ganesan (A1) had signed along with her (P.W. 11); at the time of giving the complaint, her mother Lakshmi (P.W. 12) was standing outside the Police Station. Thereafter, she (P.W. 11) was sent to the Children's Home and on the next day, she (P.W. 11) was brought to the Police Station and a fresh complaint (Ex. P2) was obtained from her at 01.00 p.m. The said complaint was written by one Thangam (P.W. 5), a Member of the Child Welfare Committee. 13. The learned counsel for the appellants submitted that the Police have suppressed the complaint that was given earlier and had obtained a fresh complaint on the next day implicating both Ganesan (A1) and Rajalingam (A2). 13. The learned counsel for the appellants submitted that the Police have suppressed the complaint that was given earlier and had obtained a fresh complaint on the next day implicating both Ganesan (A1) and Rajalingam (A2). In support of this contention, the learned counsel took us through the evidence of Thangam (P.W. 5), who in her evidence, has stated that on 03.04.2016, the Chairman of the Child Welfare Committee called her over phone and asked her to go to Kulithalai All Women Police Station, in connection with a case registered under the provisions of the POCSO Act and so, around 08.00 p.m., she (P.W. 5) went to Kulithalai All Women Police Station, where she saw the victim girl (P.W. 11) and wrote down the complaint (Ex. P2) based on the narration of the victim girl (P.W. 11). However, Balakrithika (P.W. 20), Sub Inspector of Police, who registered the F.I.R. (Ex. P10) in this case, has stated that on 03.04.2016, at 01.00 p.m., the victim girl (P.W. 11) and her mother Lakshmi (P.W. 12) came to the Police Station and lodged a complaint, based on which, the F.I.R. (Ex. P10) was registered. Thus, in the evidence of Balakrithika (P.W. 20), Sub Inspector of Police, there is no reference to Thangam (P.W. 5). 14. On a careful analysis of the evidence of the victim girl (P.W. 11), Thangam (P.W. 5), Counsellor, and Balakrithika (P.W. 20), Sub Inspector of Police, it appears that there has been some manipulation somewhere in the registration of the F.I.R. (Ex. P10) in this case, inasmuch as the victim girl (P.W. 11) has stated that on the date of the incident itself, she went to the Police Station with her parents and lodged a complaint, in which her father Ganesan (A1) had signed as a witness. She (P.W. 11) has further stated that again, on the next day, at 01.00 p.m., a complaint was obtained from her, which was written by Thangam (P.W. 5), Counsellor. Whereas, Thangam (P.W. 5), Counsellor, in her evidence, has stated that she went to the Police Station only at 08.00 p.m., on 03.04.2016. 15. We have the evidence of Kanniammal (P.W. 9), who lives in the house opposite the house of the victim girl (P.W. 11). Whereas, Thangam (P.W. 5), Counsellor, in her evidence, has stated that she went to the Police Station only at 08.00 p.m., on 03.04.2016. 15. We have the evidence of Kanniammal (P.W. 9), who lives in the house opposite the house of the victim girl (P.W. 11). Kanniammal (P.W. 9), in her evidence, has stated that Ganesan (A1) would come drunk frequently, batter his wife and pick up quarrel with the people in the area and so, she (P.W. 9) asked Ganesan (A1) to vacate the house, for which, Ganesan (A1) did not relent. She (P.W. 9) has further stated that Rajalingam (A2) helped Ganesan (A1) to get four goats under the Free Goat Distribution Scheme of the Government and that Rajalingam (A2) was demanding some commission for the same from Ganesan's (A1's) family and so, Rajalingam (A2) was frequently quarrelling with Ganesan's (A1's) family; once during such a quarrel, Lakshmi (P.W. 12), mother of the victim girl (P.W. 11) warned Rajalingam (A2) that if he continues to quarrel, she will give a police complaint against him (A2) saying that he tried to molest her by pulling her hand. The learned counsel for the appellants contended that this evidence of Kanniammal (P.W. 9) itself shows that Lakshmi (P.W. 12) is not an ordinary lady and she is capable of foisting cases against anyone with whom she has a quarrel. 16. We carefully analysed the evidence on record and found that though there are several infirmities, as noted above by us, yet, we find that the evidence of the victim girl (P.W. 11) cannot be jettisoned lightly, especially, in view of the presumption cast on Ganesan (A1) and Rajalingam (A2) under Sections 29 and 30 of the POCSO Act. The statement of the victim girl was recorded under Section 164 Cr.P.C., by Rajasekaran (P.W. 18), Judicial Magistrate No. I, Kulithalai and the statement was marked as Ex. P3. Such a statement can be used to corroborate the testimony of the maker and in this case, Ex. P3 corroborates the victim girl's testimony in the Court. Based on the medical evidence as well the oral testimony of the victim girl (P.W. 11), we find that, penetration had not taken place into the private part of the victim girl and there was only touch on her private part. P3 corroborates the victim girl's testimony in the Court. Based on the medical evidence as well the oral testimony of the victim girl (P.W. 11), we find that, penetration had not taken place into the private part of the victim girl and there was only touch on her private part. Therefore, on the proved facts, the conviction and sentence imposed on Ganesan (A1) for the offence under Section 5(n) r/w 6 of the POCSO Act and the conviction and sentence imposed on Rajalingam (A2) for the offence under Section 3 r/w 4 of the POCSO Act may not be legally sustainable. However, Ganesan (A1) is liable to be convicted and sentenced for the offence under Section 9(n) r/w 10 of the POCSO Act and Rajalingam (A2) is liable to be convicted and sentenced for the offence under Section 8 of the POCSO Act. 17. Before parting, we deem it necessary to record our appreciation for Mr. M. Gunasekaran, B.A. B.L., the Trial Judge, for the manner in which he has handled the recording of the evidence of witnesses during Court boycott by lawyers. On 16.09.2016, three prosecution witnesses were present and there was boycott of Courts by Advocates. The Trial Judge rightly did not send back the witnesses in view of the second proviso to Section 309(2) Cr.P.C., which reads as under: “Provided further that when witnesses are in attendance, no adjournment, or postponement shall be granted, without examining them, except for specific reasons to be recorded in writing.” 18. Can boycott of Court by lawyers be construed as special reasons for adjournment? The answer is an emphatic “No” in the light of the Constitution Bench Judgment of the Supreme Court in Ex-Cap. Harish Uppal vs. Union of India and another, 2003 (2) SCC 45 , wherein it has been held that boycott of Court by lawyers is illegal and unconstitutional. Could the Trial Judge have recorded the chief-examination of the witnesses and adjourned the case to another date for cross-examination? He could not have done that also, in view of the judgment of the Supreme Court in Vinod Kumar vs. State of Punjab, 2015 (3) SCC 220 read with the circular dated 18.12.2015, issued by the Registrar General of this Court, in this regard. Now, let us see what the Trial Judge had done on 16.09.2016. He could not have done that also, in view of the judgment of the Supreme Court in Vinod Kumar vs. State of Punjab, 2015 (3) SCC 220 read with the circular dated 18.12.2015, issued by the Registrar General of this Court, in this regard. Now, let us see what the Trial Judge had done on 16.09.2016. This can be best explained by simply extracting what he has recorded in the deposition. IN OTHER LANGUAGE 19. The Trial Judge has contacted the counsel for the accused over phone and has informed them that witnesses are present. When they expressed their inability to come to the Court due to boycott of Courts, the Trial Judge has religiously recorded it in the deposition itself and has closed the evidence. Normally, Trial Judges would record such adjudications only in the adjudication sheet which will not find place in the paper book and hence, will not come to our cognizance, while hearing the appeal. In this case, the Trial Judge has recorded this in the deposition itself and thus, it came to our notice. When such a categorical recording is made, then the High Court would also loath to interfere when a petition is filed to recall the witness for cross-examination. In State (NCT of Delhi) vs. Shiv Kumar Yadav, (2016) 2 SCC 402 ], the Supreme Court has cautioned against mechanically recalling witnesses under Section 311 Cr.P.C. 20. Refusal of an Advocate to cross-examine the witness on the ground of Court boycott is fraught with another danger. If the accused suffers conviction on this ground, he can initiate disciplinary proceedings in the Bar Council and also claim compensation before the Consumer Forum from his Advocate. 21. This problem is endemic in our Trial Courts today and deserves to be handled deftly but firmly. The issue can be viewed from yet another dimension. Today's world is so complex that, of late, Advocates are also frequently becoming victims of various crimes. When an Advocate-victim leaves his day's professional work and comes to the Court for giving evidence, and if his robed brother, defending the accused, says that he will not cross-examine because of boycott of courts, will the victim-advocate brook this? Let us remember that, what we sow, so shall we reap. When an Advocate-victim leaves his day's professional work and comes to the Court for giving evidence, and if his robed brother, defending the accused, says that he will not cross-examine because of boycott of courts, will the victim-advocate brook this? Let us remember that, what we sow, so shall we reap. In fine, we hold that the Trial Judge in this case has formulated a fair and just procedure, which we have no hesitation in appreciating and recommending to our Trial Courts. 22. In the result, • The Criminal Appeals are partly allowed. • The judgment of conviction and sentence dated 25.10.2016, in S.C. No. 60 of 2016, on the file the Mahalir Neethimandram, (Fast Track Mahila Court), Karur, is set aside. • Ganesan (A1) is found guilty of the offence under Section 9(n) r/w 10 of the POCSO Act and convicted and sentenced to undergo five (5) years rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo one (1) month simple imprisonment. • Rajalingam (A2) is found guilty of the offence under Section 8 of the POCSO Act and convicted and sentenced to undergo five (5) years rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo one (1) month simple imprisonment. • Fine amount paid, if any, is directed to be adjusted towards the fine amount now imposed. • We place on record our appreciation to Mr. V. Nagarajan and Mr. A. Haja Mohideen, learned counsels, for assisting us in this case and we direct the High Court Legal Services Committee, Madurai, to pay them a sum of Rs. 5,000/- (Rupees five thousand only) each.