JUDGMENT : Prayer: Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, to set aside the Judgment in the Special Sessions Case No.8 of 2015 dated 30.06.2015 dated 30.06.2015 passed by the Fast Track Mahila Court, Ariyalur and allow the criminal appeal. 1. This appeal arises out of the conviction and sentence imposed by the learned Fast Track Mahila Judge, Ariyalur in S.C.No.8 of 2015 dated 30.06.2015, wherein the appellant was tried for the offence punishable under Sections 6 of the Protection of Children from Sexual Offence Act, 2012 , 2012 and 450 of IPC. The learned trial Judge has convicted the appellant for offence under Section 6 of the Prevention of Child from Sexual Offence Act, 2012 and sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/- in default, sentenced to undergo one year rigorous imprisonment and for the offence under Section 450 of IPC, the appellant was sentenced to undergo two years of rigorous imprisonment and to pay a fine of Rs.10,000/- in default, sentenced to undergo six months of rigorous imprisonment. 2. The background facts, as projected by the prosecution are as follows: 2.1. The victim/PW2 is a minor daughter of PW1/defacto complainant. The appellant is a relative and used to visit the house of the victim/PW2 often. During the month of February 2014, the victim’s father PW1, met with an accident and was taking treatment in a hospital at Chennai. The victim’s mother was attending to him and the victim was alone in her house. Taking advantage of the absence of the parents of victim, the appellant made a love proposal to the victim and the same was refused by her. Thereafter, during February 2014, the appellant deceived the victim with his honey coated words and had sexual intercourse with her. Further, the appellant had informed the victim that she should not divulge the happenings outside, otherwise, he would commit suicide and leave her note of it. Thereafter on two or three occasions in the guise of call upon PW1, the appellant took the victim to the backyard of the house and there he had penetrative sex with her. During June 2014, the victim joined college. At that time she suffered stomach pain and informed to the appellant. He took her to private hospital at Perembalur and administered some tablets for aborting her pregnancy. During June 2014, the victim joined college. At that time she suffered stomach pain and informed to the appellant. He took her to private hospital at Perembalur and administered some tablets for aborting her pregnancy. During October 2014, the appellant again approached the victim for forcible sex. She informed about the same to her father, who along with his brother/PW4 had approached the appellant’s parents to question about the incident. The parents of the appellant feigned ignorance and told that their son would not indulge any such kind of activities. Thereafter, PW1 lodged the complaint [Ex.P1] to PW12, who on registration of the case in Crime No.15 of 2014, arrested the appellant, subjected the appellant and the victim to medical examination and filed the charge sheet. 3. Before trial Court, prosecution examined 12 witnesses and marked 12 exhibits. None were examined and nor any exhibits were marked on the side of the defence. 3.1. PW1, the father of the victim/PW2 has stated that PW2 was born during May 1997 and she was a minor during the occurrence. During February 2014, he was taking treatment in Chennai and his wife was along with him. PW2 and other children of PW1 were alone in their native. Further, PW1 came to know about the incident from PW2 and questioned the parents of the appellant and thereafter, lodged the complaint [Ex.P1]. 3.2. PW2, the victim has stated that during February 2014, when she was alone at home during her study holidays, the appellant used to visit her house regularly. Taking advantage of the absence of her parents, the appellant proposed his love, which was refused by her and he lured her for sexual intercourse. After one or two occasions, the appellant has taken the victim to backyard of her house and had physical relationship. Due to which during June 2014, she became pregnant and the appellant had taken her to private hospital at Perambalur and administered tablets for aborting her pregnancy. During October 2014, the appellant forced her for sexual relationship. Then only she informed to her father/PW1 about the acts of the appellant. Thereafter, PW1 lodged a complaint [Ex.P1] to the respondent Police. Through PW2, the school certificate [Ex.P2] has been marked. As per Ex.P2, her date of birth is 04.05.1997. 3.3. PW3, the wife of PW1’s brother was taking care of the children of PW1, including PW2. Then only she informed to her father/PW1 about the acts of the appellant. Thereafter, PW1 lodged a complaint [Ex.P1] to the respondent Police. Through PW2, the school certificate [Ex.P2] has been marked. As per Ex.P2, her date of birth is 04.05.1997. 3.3. PW3, the wife of PW1’s brother was taking care of the children of PW1, including PW2. PW3 has spoken about the appellant was visiting PW2. PW4, the brother of PW1, came to know about the incident through PW1 and other villagers. 3.4. PW5 is the resident, through whom, the Observation Mahazar [Ex.P3] was marked. PW6, the Dentist attached to the Government Hospital, Ariyalur has examined the victim and the appellant and issued dental reports Ex.P4 & P5 respectively. 3.5. PW7, the Headmistress of Government School, Sendhurai has confirmed that the she had issued Ex.P2 [Transfer Certificate]. Through whom, the School Certificate of the victim has been marked under Ex.P6. 3.6. PW8 and PW9 produced the victim and the appellant before PW6 for medical examination. PW10, the Doctor had examined the appellant and issued potency certificate [Ex.P7]. PW11, the Assistant Surgeon attached to the Government Hospital, Perambalur has examined PW2 and gave medical report [Ex.P9]. 3.7. PW12, Investigating Officer on receipt of the complaint [Ex.P1], registered an F.I.R in Crime No.15 of 2014 [Ex.P10], reached the scene of occurrence, prepared Observation Mahazar [Ex.P3] and Rough Sketch [Ex.P11], examined the witnesses, arrested the accused, made arrangement for medical examination, obtained medical reports and marked Ex.P12 [Transfer Certificate of PW2] and filed the charge sheet. 4. The appellant was charged for the offence under Sections 6 of the Protection of Children from Sexual Offence Act, 2012 and 450 of IPC. On questioning under Section 313 Cr.P.C., appellant denied the charges. On appreciation of evidence, oral and documentary, the trial Court under Judgment dated 30.06.2015 in S.C.No.8 of 2015 convicted the appellant. Against which the present appeal. 5. Heard the learned counsel for the appellant and the learned Government Advocate [Crl. Side] for the respondent. 6. The contention of the learned counsel for the appellant is that the appellant is a relative of PW1 and he used to visit the house of PW1 regularly, which is admitted by PW1 to PW4. Hence, there was no forcible entry and committing of any offence as alleged by the prosecution. Side] for the respondent. 6. The contention of the learned counsel for the appellant is that the appellant is a relative of PW1 and he used to visit the house of PW1 regularly, which is admitted by PW1 to PW4. Hence, there was no forcible entry and committing of any offence as alleged by the prosecution. Further, PW1 categorically stated that he has not written the complaint [Ex.P1] and it was written by PW12. PW12 has stated that the complaint [Ex.P1] was written by PW2 and brought by PW1. There is no mention in the complaint or any other records to show that PW2 has written the complaint. PW2 is silent about the same. In such circumstances, the author of Ex.P1 is highly doubtful. 7. PW1, PW3 and PW4 admitted that they had called upon the parents of the appellant. The appellant is a M.Sc., B.Ed. first generation graduate from his family. The victim and her parents have compelled the appellant to marry her daughter, but the parents of the appellant refused. Hence, they lodged a false complaint against him. Further, the evidence of PW2 is not trustworthy. According to PW2, the first instance was taken place during February 2014. On two or three occasions physical relationship continued even after the parents of PW2 came back to their village. PW3 and PW4 admitted that they were residing in the same house in separate portion. Hence, it is impossible for any one to enter into the house and to have sexual relationship. Further, the backyard is fifty meters away from the house of the victim. Hence the allegation against the appellant that he came to the house of victim to see her father and had sexual intercourse with her for three times is a got up story to implicate the appellant in this case. Further, PW2 had implicated that the appellant during June 2014 took her to a private hospital and administered tablets for her aborting pregnancy. In this regard, there is no evidence to say the name of the hospital from where they got the tablets. Hence, PW2 is a motivated person. 8. PW3 has not stated in her evidence that the appellant has come to the house of the victim. PW4 is only an ear-say in nature, who came to know about the incident by others. Hence, PW2 is a motivated person. 8. PW3 has not stated in her evidence that the appellant has come to the house of the victim. PW4 is only an ear-say in nature, who came to know about the incident by others. PW1 has stated that he was not aware of any happenings and it was PW2, who had informed about the entire acts of the appellant. As submitted earlier, it is further stated that the evidence of PW2 is highly doubtful. PW2 is an educated person, who perused her studies and a person normally of her nature would not have continued relationship, if it is not voluntarily. Further, she had been keeping quite till October 2014 about the happenings from February to June 2014. PW2 also admitted that the appellant’s house is not on the way to her college. Hence, the appellant accosting her during October 2014 and compelling her for physical relationship is an imaginary story to implicate him. 9. PW6 the Dentist has stated that according to Ex.P5, the age of the victim would be 16 to 25 years. PW7, the Headmistress admitted that the birth certificate of the victim is not available in school. In view of the same, the age of the victim is doubtful. As per school certificate Ex.P2, the date of birth of the victim is 04.05.1997 and the complaint [Ex.P1] in this case came to be lodged on 28.10.2014. On that day, the age of the victim was 17 years 6 months. PW2/victim being an educated person, who had been in relationship with the appellant is only a consensual. Taking advantage of the age, the above case has been foisted against the appellant. It is admitted that in this case, birth certificate has not been produced and on basis of age recorded in the school certificate the case has been foisted against the appellant. On the other hand, Ex.P5 the age certificate given by PW6 stated that the victim’s age could be between 16 and 25 years, giving allowance of two years the victim would have attained majority and her act of having continuous relationship with the appellant and informing about the same to her parents after five months is nothing but a consensual act. 10. PW11 examined the victim and issued Ex.P9 that there is no injury found on the private parts. 10. PW11 examined the victim and issued Ex.P9 that there is no injury found on the private parts. Only thing is found that “hymen not intact and two fingers easily admit”. PW11 had admitted in her evidence that the ‘hymen intact’ would have happened due to various other reasons. Admission of two fingers could be for that reason and there is no evidence to show that the appellant is the cause for the same. Further, PW11 admitted that she did not conduct any examination to find out whether the victim had any pregnancy before. Coupled with the fact that there is no forcible penetrative sexual assault, which could be seen from Ex.P1 that there is no mention about any pregnancy and taking tablets for the same in private hospital at Perambalur. Thus, the evidence of PW2 is highly doubtful and motivated one and through the evidence by way of cross examination, the appellant had reverted the statutory presumption against him. 11. The evidence of PW12 is that Ex.P1 was written by PW2 and PW2 is silent about the same. On the other hand PW1 has stated that PW12 had written the complaint. There is no mention in the complaint as well as in F.I.R [Ex.P10] about the genesis of the same. It is an admitted fact that PW1 is an illiterate person, who draw the signature in Ex.P1 and he does not know to write and it is very categorical that PW12 had written out the complaint as narrated by him. Hence, Ex.P1 becomes doubtful. Thus from the available evidence, the prosecution has failed to prove the case and prayed for acquittal of the appellant. 12. Per Contra, the learned Government Advocate [Crl. Side] appearing for the respondent would submit that it is a case of aggravated penetrative sex. PW1, PW3 and PW4 have categorically stated about the appellant being a relative to them used to visit the house of PW1. Further, PW1 was met with an accident, admitted in a hospital at Chennai and his wife also besides him. Taking advantage of the absence of the parents of the victim, the appellant had aggravated penetrative sexual assault on the victim. PW2, who was on study holiday for 12th exam was alone at home. From February 2014 to June 2014, the appellant had physical relationship with her on two or three occasions. Taking advantage of the absence of the parents of the victim, the appellant had aggravated penetrative sexual assault on the victim. PW2, who was on study holiday for 12th exam was alone at home. From February 2014 to June 2014, the appellant had physical relationship with her on two or three occasions. Thereafter, during June 2014, she was taken to a private hospital at Perambalur for abortion. When PW2 was perusing her college studies during October 2014, the appellant had forced the victim for further physical relationship. Thereafter she informed about the same to her father/PW1. PW2 also narrated about the sequence of incident in her evidence. Further, PW11 the medical evidence is in conformity to the evidence of PW2. PW5 and PW6, the Dentist and Headmistress had stated about the date of birth of the victim, who was a minor and completed 17 years, when she was physically assaulted by the appellant. All the witnesses and documents in this case have supported the case. Hence, the prosecution has clearly established the guilt of the accused and prayed for dismissal of the appeal. 13. This Court considered the submissions made by the learned Counsel on either side and perused the materials available on record. 14. PW1, PW3 and PW4, who are the father, Aunt and Junior father of the victim/PW2 have spoken about the fact that the appellant is a relative and used to visit the house of the victim. During February 2014, when PW1 was taking treatment in hospital at Chennai, his wife accompanied him. PW3 was taking care of PW1’s children and also PW2. At that time, PW2 was on study holiday for her 12th exam. The age of PW2 as per the school records is 04.05.1997, as could be seen from Ex.P2 and Ex.P12 and PW7, the Headmistress has also spoken about the same. PW6 the dentist has issued age certificate [Ex.P5] of the victim based upon the dental features and stated that the age of the victim must be between 16 and 25 years. It is certain that the victim was only 17 years and above during the occurrence. The complaint has been given only during October 2014 for the occurrence said to have taken place during February 2014 to June 2014. 15. No witnesses were examined to show that PW2 was taken to private hospital at Perambalur and was administered tablets to abort her pregnancy. The complaint has been given only during October 2014 for the occurrence said to have taken place during February 2014 to June 2014. 15. No witnesses were examined to show that PW2 was taken to private hospital at Perambalur and was administered tablets to abort her pregnancy. As could be seen from Ex.P11 Rough Sketch, PW3 and PW4 were residing in the same house in a separate portion and the backyard is 50 meters away from the house of the victim. The appellant and PW2 having gone there and had physical relationship on two or three occasions is unnoticed is not possible. Hence, the theory of penetrative sexual assault on PW2 more than once or repeatedly is not conclusively proved. As regards the occurrence in February 2014 inside the house of the victim and Ex.P9, there is no evidence to show that she is a virgin and the opinion had been arrived on examination that “Hymen not intact” and “virgin admits two fingers”. Basing on this facts the opinion has been given. PW11 admitted that she did not follow the guidelines issued by the Health and Research Department, while examining the victim. 16. Further, PW11 categorically stated that the above infirmity in vegina could have occurred due to various reasons on account of victims own act. In view of the same the medical report could not be same that it is conclusive evidence against the appellant. Coupled with the fact that PW3 the aunt of the victim has not spoken anything about the appellant had come during February 2014 to the house of the victim, during the absence of her parents. As per Ex.P11 Rough Sketch, PW1, PW3 and PW4 were residing in the same house in adjoining portion and hence it cannot be lost sight of entry of any person into the house of PW1, as earlier concluded the backyard is only 50 meters away from the house. Coupled with the fact that the evidence of PW1 and PW4 that they had approached the appellant’s parents about the conduct of the appellant. It is not to be lost sight that the appellant is a person, who had completed M.Sc., B.Ed. a first graduate from the family of uneducated coolies hails from the lower statra of the society. 17. Coupled with the fact that the evidence of PW1 and PW4 that they had approached the appellant’s parents about the conduct of the appellant. It is not to be lost sight that the appellant is a person, who had completed M.Sc., B.Ed. a first graduate from the family of uneducated coolies hails from the lower statra of the society. 17. PW6, the dentist had examined the victim and issued Ex.P5 that the age of the victim is between 16 and 25 years. Coupled with the fact that PW7 the Headmistress of the school admitted that the birth certificate of the victim was not available in the school records. The age of the victim cannot be confirmly stated that she is below the age of 18 years and PW2 giving a confession for the occurrence to have taken place between February 2016 to June 2016. There is no possibility of appellant accosting the victim during February 2014 and compelled her for physical relationship. The delay of nearly six months in lodging the complaint is unexplained. PW1 has categorically stated that PW12 had written the complaint on his dictation, on the other hand, PW12 stated complaint was written by PW2 brought by PW1, PW2 is silent about the same. 18. Further, no explanation has been given for what reason the victim was not produced before the learned Magistrate, as per Section 25 and 27 of Protection of Children from Sexual Offences Act, 2012, which is mandatory in nature. There is no forcible entry and house trespass in this case. 19. Now the only available evidence of victim/PW2, wherein she had categorically asserted as follows:- “TAMIL” 20. The evidence of PW11 and Ex.P9 confirms and corroborates the evidence of PW2. Admittedly, PW2 was a minor during February 2014. Hence, the penetrative sexual assault on the victim/PW2 has been committed by the appellant. PW1, PW3 and PW4 were residing in the same house in the adjoining portion and the backyard is 50 meters away. There is no evidence to show that the appellant and the victim had been there and continued their physical relationship. 21. In the result, it is not a case of aggravated penetrative sexual assault punishable under Section 6 of the Protection of Children from Sexual Offence Act, 2012. There is no evidence to show that the appellant and the victim had been there and continued their physical relationship. 21. In the result, it is not a case of aggravated penetrative sexual assault punishable under Section 6 of the Protection of Children from Sexual Offence Act, 2012. Hence, this Court modifies the Conviction from Section 6 of Protection of Children from Sexual Offence Act to Section 4 of the Act and Sentence the appellant to undergo 7 years R.I instead of 10 years R.I. As concluded earlier, the conviction and sentence of the appellant for the offence under Sections 450 of IPC is set-aside. 22. Subject to the above modifications, this Criminal Appeal is partly-allowed.