JUDGMENT : P.N. PRAKASH, J. Criminal Appeal preferred under Section 374(2) Cr.P.C. seeking to call for the records and set aside the judgment and order of conviction and sentence dated 28.05.2018 passed in S.C. No. 42 of 2015 on the file of the Sessions Court (Fast Track Mahila Court), Krishnagiri. 1. This criminal appeal is directed against the judgment and order dated 28.05.2018 passed by the Sessions Court (Fast Track Mahila Court), Krishnagiri, in S.C. No. 42 of 2015. 2. The facts in a nutshell giving rise to the filing of this criminal appeal run thus: 2.1. The victim girl (name not divulged for the sake of anonymity and who will be, for short, referred to as “X” for the sake of brevity) is the daughter of Hemavathy (PW-1) and Murugesan. Her mother got estranged from her father. “X” and her elder brother Janardhanan were living with their mother Hemavathy (PW-1) in Bagalur Village. It appears that Hemavathy (PW-1) was a farmhand and her son Janardhanan was a school dropout and was a daily wage earner. With great difficulty, Hemavathy (PW-1) was bringing up her two children. “X” was studying in the local Government school. The incident in this case had taken place in January 2013 and at that time “X” was studying in VI standard. 2.2. The appellant, who was around 40 years old in January 2013, hailed from Bagalur and his daughter Sangeetha was a friend of “X.” Taking advantage of this, the appellant courted “X” insidiously and gained her confidence by getting her chocolates, pencils, etc. from time to time. He thus had a thrall over her. 2.3. On 22.01.2013 (Tuesday) “X” left for school, but, en route, the appellant enticed her and took her to a temple atop a hillock in Hosur and after worshipping there, it is alleged that he ravished her behind the temple under the cover of bushes. Thereafter, in the evening, he dropped her back at Bagalur. “X” was found weeping by Hemavathy (PW-1) and on persistent questioning “X” told her everything that transpired in the morning. 2.4. On the evening of 22.01.2013, Hemavathy (PW-1) and “X” went to the police station and Hemavathy (PW-1) gave a statement (Ex.P.1), based on which, Savithri (PW-10), Sub Inspector of Police, registered a case in Cr. No. 5 of 2013 at 22.00 hrs. 2.4. On the evening of 22.01.2013, Hemavathy (PW-1) and “X” went to the police station and Hemavathy (PW-1) gave a statement (Ex.P.1), based on which, Savithri (PW-10), Sub Inspector of Police, registered a case in Cr. No. 5 of 2013 at 22.00 hrs. for the offences under Sections 376 and 506 IPC, Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act and Section 6 of the POCSO Act against the appellant and prepared the printed FIR (Ex.P.9), which reached the jurisdictional Magistrate at 10.30 a.m. on the next day, i.e. 23.01.2013, as could be seen from the endorsement made thereon. 2.5. Investigation of the case was taken over by Chitradevi (PW-10), Inspector of Police, who went to the place of occurrence on 23.01.2013 and prepared the observation mahazar (Ex.P.8) and rough sketch (Ex.P.11) in the presence of witnesses Manjunath (PW-7) and Venkatesh (PW-8). 2.6. The appellant was arrested at 10.30 a.m. on 23.01.2013 and on his confession, his clothes, viz. shirt (M.O.1), underwear (M.O.2) and pant (M.O.3) worn by him at the time of the incident, were recovered under the cover of a mahazar (Ex.P.2) in the presence of Venkatasamy (PW-3), V.A.O. and Krishnappa (not examined). The police took custody of the clothes worn by “X” at the time of the incident and they were sent along with the clothes worn by the appellant, to the Tamil Nadu Forensic Sciences Laboratory, for examination. The biological report (Ex.P.7) showed that neither semen nor blood was detected in any of them. 2.7. The appellant was examined by Dr. K. Thunder Chief (PW-4), who, in his evidence as well in the examination report (Ex.P.4), has opined that there is nothing to suggest that the appellant is incapable of performing sexual intercourse. 2.8. Dr. Lavanya (PW-5) medically examined “X” on 23.01.2013 for determining her age and in her evidence as well in the medical certificate (Ex.P.5), had opined that “X” was below 18 years of age as on 23.01.2013. 2.9. Dr. Somasundaram (PW-6) medically examined “X” and in his evidence as well in his medical examination report (Ex.P.6), has stated that he did not find any marks of violence on the body of “X” including her private parts. However, he has stated in his report (Ex.P.6) that findings suggestive of coitus has happened. 2.10. 2.9. Dr. Somasundaram (PW-6) medically examined “X” and in his evidence as well in his medical examination report (Ex.P.6), has stated that he did not find any marks of violence on the body of “X” including her private parts. However, he has stated in his report (Ex.P.6) that findings suggestive of coitus has happened. 2.10. After examining witnesses and collecting various reports, Chitradevi (PW-10) completed the investigation and filed a final report before the Judicial Magistrate No. II, Hosur, against the appellant, which was taken on file as P.R.C. No. 31 of 2013. 2.11. On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session, Krishnagiri in S.C. No. 42 of 2015 and was made over to the Sessions Court (Fast Track Mahila Court), Krishnagiri, for trial. 2.12. The trial Court framed charges under Section 363 IPC, Section 3 read with Section 4 of the POCSO Act and Section 506(II) IPC against the appellant. When questioned, the appellant pleaded not guilty. 2.13. To prove the case, the prosecution examined 10 witnesses and marked 15 exhibits and 6 material objects. 2.14. When the appellant was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. No witness was examined from the side of the appellant nor was any document marked. 2.15. After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 28.05.2018 in S.C. No. 42 of 2015, convicted and sentenced the appellant as under: Provision of law under which convicted Sentence Section 363 IPC To undergo 4 years rigorous imprisonment and pay a fine of Rs. 1,000/- in default to undergo 3 months rigorous imprisonment. Section 506 (II) IPC To undergo 6 months rigorous imprisonment and pay a fine of Rs. 1,000/- in default to undergo 1 month rigorous imprisonment. Section 3 r/w Section 4 of the POCSO Act To undergo 7 years rigorous imprisonment and pay a fine of Rs. 3,000/- in default to undergo 1 year rigorous imprisonment. The aforesaid sentences were ordered to run concurrently. 2.16 Challenging the aforesaid conviction and sentences, the instant criminal appeal has been preferred. 3. Heard Mr. Azhagarsami, learned counsel representing Mr. T. Padmanabhan, learned counsel on record for the appellant and Mrs. P. Kritika Kamal, learned Government Advocate (Crl. 3,000/- in default to undergo 1 year rigorous imprisonment. The aforesaid sentences were ordered to run concurrently. 2.16 Challenging the aforesaid conviction and sentences, the instant criminal appeal has been preferred. 3. Heard Mr. Azhagarsami, learned counsel representing Mr. T. Padmanabhan, learned counsel on record for the appellant and Mrs. P. Kritika Kamal, learned Government Advocate (Crl. Side) appearing for the respondent police. 4. Before adverting to the rival submissions, it may be necessary to state here that the entire prosecution case stands on the edifice of the evidence of “X.” 5. Hemavathy (PW-1), in her evidence, has stated that “X” went to school on 22.01.2013 and came very late in the evening; when she questioned her, she started weeping; when she persisted “X” broke down and told her that her friend Sangeetha's father took her to the hillock temple in Hosur and asked her to remove her clothes and ravished her; on the same evening, she (PW-1) and “X” went to the All Women Police Station, Hosur and gave a complaint which was written by the police and her signature obtained. 6. In the cross-examination, Hemavathy (PW-1) stated that on 22.01.2013, around 6.30 p.m. a teacher from the school in which “X” was studying, came to her house and told her that “X” had not come to school and so, she went to the school in search of “X” but, the gate was locked; she went about searching for “X”; when she went with “X” to the police station, the appellant was already there in the custody of the police. In her evidence, Hemavathy (PW-1) admitted that she got separated from her husband. Therefore, it was suggested to her that the appellant was her husband's friend and at the instance of her husband, the appellant used to get notebooks, chocolates, pencils, etc. for “X” which was not to her liking and hence, she has foisted the present case on the appellant, which suggestion she denied. 7. “X” was examined as PW-2 on 03.10.2016 and at that time, she had dropped out from school. for “X” which was not to her liking and hence, she has foisted the present case on the appellant, which suggestion she denied. 7. “X” was examined as PW-2 on 03.10.2016 and at that time, she had dropped out from school. In her evidence, she has stated that on 22.01.2013, when she was on her way to the school, her friend Sangeetha's father (appellant) asker her as to where she was going; she replied that she was going to school; at that time; the appellant suggested that they could go to the hillock temple; since she had not seen the hillock temple, she agreed and went with him; after worshipping in the temple, he took her behind the temple saying that he will show her a telescope there; then, he took her to a cemetery where he removed her clothes and ravished her; thereafter, they both came down together and boarded a bus from Hosur to Bagalur; on reaching the village, the appellant intimidated her saying that she should not reveal this to anyone; she reached home around 4.30 p.m. and she was very morose, which was noticed by her mother and when her mother asked her, she wept and told her everything; on the same night, she accompanied her mother to the police station to lodge a complaint; thereafter, she was taken to the hospital for medical examination. 8. In the cross-examination, she admitted that even on the previous day, she had gone with the appellant to the hillock temple. She further stated that while she and the appellant were coming down from the hillock temple, some miscreants created trouble for them and fearing them, they both fled down the hillock and at that time, some policemen intercepted and questioned them; she told the policemen about the miscreants; the police took the appellant to the Hosur Police Station, but, took her to the All Women Police Station, Hosur and kept her there until her mother came there. 9. To recapitulate, the prosecution case is that the appellant dropped “X” in the village and after she came home, she complained to her mother about the incident and together, they went to the police station in the night and lodged the complaint. 9. To recapitulate, the prosecution case is that the appellant dropped “X” in the village and after she came home, she complained to her mother about the incident and together, they went to the police station in the night and lodged the complaint. However, in the cross-examination, both Hemavathy (PW-1) and “X” (PW-2) categorically admitted that the appellant was already in the custody of the police in the police station when they went there. In the cross-examination of “X” (PW.2), she has stated that when she and the appellant were there in the hillock temple, some miscreants tried to misbehave with them and so, she started fleeing down the hillock; some policemen intercepted her and the appellant and took both of them to the police station. In the evidence of Dr.Somasundaram (PW-6), who examined “X” and issued the medical examination report (Ex.P.6), he has stated that he did not find any injury or marks on the body of “X.” It is pertinent to add here that no blood or semen was detected either in the clothes of the appellant or in those of “X.” The fact that the appellant was found by both Hemavathy (PW-1) and “X” (PW-2) in the police station on the night of 22.01.2013 falsifies the police version that the appellant was arrested only on 23.01.2013. Of course, this discrepancy, by itself, cannot destroy the testimony of “X” in toot. 10. The learned counsel for the appellant contended that Manjunath (PW-7) and Venkatesh (PW-8), who are witnesses for the observation mahazar (Ex.P.8) and rough sketch (Ex.P.11), have stated in their evidence that when they went to the hillock temple on 22.01.2013, the police were there and on their request, they attested the observation mahazar (Ex.P.8) and rough sketch (Ex.P.11). This statement of the said two witnesses belies the prosecution case, inasmuch as the FIR in this case was itself registered only on 22.01.2013 at 10 p.m. In the opinion of this court, this evidence can, at the most, cause dent in the observation mahazar (Ex.P.8) and rough sketch (Ex.P.11), but would have very least impact on the testimony of “X.” Further, “X” in her evidence, has stated that after worshipping in the temple, the appellant took her to a cemetery and ravished her, whereas, there is no cemetery in the observation mahazar (Ex.P.8) and rough sketch (Ex.P.11). 11. 11. The defence taken by the appellant that the case was foisted on him, because, he was friendly with “X” father against the liking of Hemavathy (PW-1), does not cut ice with this Court for the simple reason that beyond such suggestions put to Hemavathy (PW-1), no material worth its salt was placed before the trial Court to probabilise this defence. If the defence set up by him was true, he could have easily examined Murugesan, father of “X” as a defence witness, which he failed to do. 12. The learned counsel for the appellant contended that though the police had collected the date of birth records from the school where “X” had studied, yet, they did not choose to mark them or examine the Headmaster or any teacher from the said school to prove the date of birth of “X” and had instead, determined the date of birth by medical evidence. It is true that the Investigating Officer has stated that he had collected the date of birth records from the school, but, for the reasons best known to him, he did not file them along with the final report. When “X” was examined by the Court on 03.10.2016, her age has been recorded as 16 years. She has also stated so in her evidence, which has not been rebutted in the cross-examination. It has been proved beyond doubt that, on the date of the incident, i.e. on 22.01.2013, “X” was a school-going girl and the appellant was none other than her friend Sangeetha's father and therefore, the evidence of Dr. Lavanya (PW-5), who conducted radiologicial examination for age determination of “X” and who has opined that “X” was less than 18 years of age as on 23.01.2013, cannot be outrightly rejected. 13. On a close scrutiny of the evidence of “X” one aspect emerges very clearly. The appellant who was aged about 40 years on the date of incident, earned the confidence of his daughter's friend “X” and with the evil intention of enjoying “X” he had goaded her to the hillock temple, but, before anything bad could happen, providence intervened in the form of some local ruffians, who, on seeing a 40 year old man with a school girl behaving weirdly, tried to take advantage of the situation. To escape from them, both the appellant and “X” started fleeing down the hillock and were eventually rescued by the police, who took both of them to the police station and sent word to Hemavathy (PW-1). If the appellant had had a noble motive of taking “X” for worshipping in the temple, nothing had prevented him from getting her mother's permission and taking her on a weekend, instead of taking her during school hours. That apart, it is noteworthy that, had the appellant taken his daughter Sangeetha also along with “X” to the hillock temple, then, there would have been no scope to doubt his intentions. In the opinion of this Court, the appellant should have been charged and convicted under Section 366 IPC, but, in the absence of such a charge, this Court, in the appeal preferred by the appellant, can do very little to remedy the failure of the trial Court. 14. However, the evidence of Hemavathy (PW-1) and the initial testimony of “X” that the appellant dropped “X” in Bagalur and criminally intimidated her not to tell anything to her mother stood belied by the statement of “X” in the cross-examination that she and the appellant were harassed by some anti-socials in the hillock temple and while they were fleeing, the police caught them down the hillock and took them to the police station and informed her mother. “X” testimony that after worshipping in the temple, the appellant took her behind the temple, undressed her and had sex with her in the broad daylight sounds tutored. Of course, this Court cannot discount the possibility of the appellant having seduced her earlier, but, that not being the charge, this Court cannot convict him on such conjectures, however probable they may appear. 15. Thus, in view of the foregoing discussion, this Court does not find sufficient materials to confirm the appellant's conviction of the charge under Section 506(II) IPC and Section 3 read with Section 4 of the POCSO Act and accordingly, the appellant's conviction of the said charges and the sentence imposed therefor by the trial Court stand set aside. However, the conviction of the appellant of the charge under Section 363 IPC and the sentence therefor, deserve to be confirmed and they are accordingly confirmed. In the result, this criminal appeal is partly allowed. However, the conviction of the appellant of the charge under Section 363 IPC and the sentence therefor, deserve to be confirmed and they are accordingly confirmed. In the result, this criminal appeal is partly allowed. The Trial Court is directed to secure the presence of the appellant and send him to prison to undergo the remaining period of sentence.