JUDGMENT : (Prayer: Criminal Appeal is filed under Section 374(2) of Cr.P.C., to call for the records relating to the judgment dated 06.04.2015 made in Spl.S.C.No.2 of 2014 on the file of the Learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Erode and set aside the same by allowing this criminal appeal.) 1. The Court of Sessions, Magalir Neethi Mandram (Fast Track Mahila Court), Erode in Spl.C.C No.2/2014, held the appellant guilty of offence under Section 8 of POCSO Act (2 counts) and sentenced him to undergo 5 years R.I. for each count and to pay fine of Rs.50,000/- (each count) in default, one year S.I. (each count). Thus, total period of rigorous imprisonment for 10 years and total fine amount Rs.1,00,000/- imposed. 2. Aggrieved by the conviction and sentence, this appeal is filed by the accused. 3. The case of the prosecution is that on the complaint by one Karthikeyan, father of a minor boy aged about 14 years, the case was registered against the Principal of the Mother’s Matriculation School, Paraiyur, for offence under Section 8 of POCSO Act in Crime No.552/2013, dated 20/11/2013 at 11.00 a.m. 4. As per the said complaint marked as Ex.P-13, the son of the complainant studying 10th standard, on 20/11/2013 morning, did not go to his School. When enquired, he informed that the Principal of the School frequently calls him to his room under the pretext of taking tuition and touch his private part. He is threaten by the Principal, if he discloses to anyone about his indecent act, his mark in practicals will be reduced. Fearing that, he refused to go to school. His son also informed that the latest incident happened on 18/11/2013 between 7.30 pm to 8.00 p.m. Other 10th standard students A, B, C and D (their names are redacted) also told him that the Principal indulge with similar sexual assault to them and they cried to him. 5. The defacto complainant immediately called the parents of other students and gathered before the School at 8.00 a.m. Hearing the news, Revenue Officials, School Education Department Officials and Police came to the school. The parents and Students sought action against the Principal for his illegal act of sexual assault against minor boys. 6. 5. The defacto complainant immediately called the parents of other students and gathered before the School at 8.00 a.m. Hearing the news, Revenue Officials, School Education Department Officials and Police came to the school. The parents and Students sought action against the Principal for his illegal act of sexual assault against minor boys. 6. Based on the material placed by the respondent police collected during the investigation, the trial Court framed charge against the Principal of that School for offences under Section 8 of POCSO Act, (5 counts). The charge framed reads as below:- “You, on 18/11/2013 at about 7.30 p.m sexually harassed the 14 years old son of the defacto complainant by touching and caressing his hip, stomach and private part after un-fastening his pant zip. You also threatened the minor boy that if he discloses the incident to anyone his practical's mark will be cut. Further, prior to 08/11/2013 you at the Principal room using your power threatened and sexually abused other 4 minor boys A, B, C, D and thereby, committed offence punishable under Section 8 of the POCSO Act, (5 counts).” 7. To prove the above charge, the prosecution has examined P.W-1 to P.W-13. Marked Ex.P-1 to Ex.P-14. The accused examined D.W-1 to D.W-4 and marked Ex.D-1 to Ex D-3. 8. Out of 5 alleged victim minor boys, two turned hostile and one not examined. Two of them were examined as P.W-4 and P.W-8. Instead of their names, these two witnesses will be referred as “X” and “Y” respectively. 9. The Trial Court held the accused guilty of offence punishable under Section 8 of POCSO Act, (2 counts) based on the evidence and relying the presumption 'of act' under Section 29 and 'mens rea' under Section 30 of the POCSO Act. 10. The Learned Counsel for the appellant/accused pleaded that, the true fact of the case is that, P.W-4 was caught with a drawing expressing his love to a girl (Ex.D-1). He was warned for his indiscipline and his parents were called. His mother and aunty came to the school and gave apology letter (Ex.D-2). P.W-4 also gave a letter that, he will not repeat the mistake (Ex.D-3). While so, on 18/11/2013 during the lunch break, instead of following the queue, P.W-4 broke the queue. This was questioned by the D.W-4 who was the class teacher for 8th standard students. His mother and aunty came to the school and gave apology letter (Ex.D-2). P.W-4 also gave a letter that, he will not repeat the mistake (Ex.D-3). While so, on 18/11/2013 during the lunch break, instead of following the queue, P.W-4 broke the queue. This was questioned by the D.W-4 who was the class teacher for 8th standard students. P.W-4 retarded ‘are you my class teacher?’, meaning she cannot question his misconduct. When this incident was reported to the Principal of the School (accused), he sent P.W-4 to his home to bring his parents. P.W-4, on 19/11/2013, came to school but his parents did not come. When enquired, he told they will come on the next day. Being infuriated by the disciplinary action taken by the School Management, on the next day, P.W-1 the father of P.W-4 along with few others with a team of media persons gathered at the School premises at 8.00 a.m and started making malicious statements to the press. P.W-1 the father of minor boy made his minor son (P.W.4) to address visual media unmindful of the interest of his own son. Thereafter, the complaint Ex.P-1 was given to the police. 11. The entire episode was the well designed scheme of P.W-1 with the help of his friend P.W-6. The falsehood in their case exposed through the defence witness and Exhibits apart from the contradiction in their own evidence, besides hostile of the other minor boys. However, the trial court ignoring all the flaws in the prosecution case has erred in convicting the accused. 12. The Learned Counsel for the appellant submitted that, the charge regarding the alleged incident of sexual assault to ‘X’ son of Karthikeyan (defacto complainant) alleged to have happened on 18/11/2013 at 7.30 p.m. at the Principal Room of Mother’s Matriculation School at Peraiyur and prior to that day, A, B, C and D were also assaulted sexually by the accused in his Office room. As per the charge, P.W-4 is the person who alleged to have been sexually assaulted by the appellant. Whereas, in his evidence before the Court, he has said nothing about incident on 18/11/2013 at the Principal room. He has said something alleged to have happened in the theatre on the day of Ayudhapooja when he and another student accompanied the accused. Whereas, in his evidence before the Court, he has said nothing about incident on 18/11/2013 at the Principal room. He has said something alleged to have happened in the theatre on the day of Ayudhapooja when he and another student accompanied the accused. Followed by certain incident of sexual assault happened during that night in the room allotted to the Principal upstairs of the School premises, where he and the other student stayed overnight with the accused. This witness also refers name of the third student, who was with them till 10.00 p.m. The prosecution neither examined the other student, who alleged to have accompanied the accused and P.W-4 to the theatre nor the third student alleged to have been with them till 10.00 pm and taken to home by his father at 10.00 p.m. Therefore, the Learned Counsel contended that, the charge is for an incident alleged to have happened on 18/11/2013 at the Principal room. Whereas, relying upon the deposition of P.W-4, the trial Court irrelevant to the charge erred in convicting the uncorroborated evidence of a tainted witness, given undue weightage as against the teachers of the school and the apology letters of the defacto complainant family members. 13. Regarding the evidence of ‘Y’, P.W-8 another minor victim in this case, the learned counsel for the appellant/accused contended that, the testimony of this witness is vague. The self contradiction about the class he was studying at the time of occurrence and the denial of the incident happened in the school on 18/11/2013 at 12.30 p.m. during lunch hour after P.W-4 questioned D.W-4 ‘are you my class teacher’. makes this witness unreliable. His denial of the complaint received from his own father P.W-6, about this witness visiting internet cafe for wrong purpose and he being reprimanded by the School Management will prove that this witness is not a trustworthy witness. 14. Further, the Learned Counsel for the appellant submitted that the manner in which the complaint given by P.W.1 [Karthikeyan] expose his ill motive. He admits that their parents gathered at Mother Matriculation School on 20.11.2013 at 8.00 a.m. At that time, the police were present on his information. He gave information to the police apprehending the accused will abscond. He admits that, he gave interview to reporters and visual media. The Revenue Officials also were present. He admits that their parents gathered at Mother Matriculation School on 20.11.2013 at 8.00 a.m. At that time, the police were present on his information. He gave information to the police apprehending the accused will abscond. He admits that, he gave interview to reporters and visual media. The Revenue Officials also were present. If it is so, the prosecution ought to have been examined the Revenue Officials and the Education Department Officials. No official evidence or independent evidence been examined by the prosecution in this case. 15. Further, the Learned Counsel for the appellant submitted that the trial Court has erroneously applied Section 30 of POCSO Act, “Presumption of Culpable Mental State” without properly appreciating the evidence that there is no such incident occurred either on 18.11.2013 or earlier to presume any culpable state of mind. 16. The Learned Government Advocate (Crl.Side) for the respondent submitted that the prosecution has proved the case of sexual assault committed by the Principal of the School on the minor boys who were studying 10th standard in his school. P.W.4 the victim boy in the course of his deposition had mentioned in writing that in the theatre the accused caressed his private part and at his room, he removed his pant and slept over him. P.W.8, the other victim minor boy had deposed that when he used to go to the third floor of the School building for special class, the accused used to touch his private part. The misbehaviour of the accused has come to light when P.W.4 refused to go to the school fearing of the accused. Though, the other three minor boys P.W.7, P.W.9 and P.W.11 turned hostile, the evidence of P.W.4 & P.W.8 stand unassailed. Hence, the finding of the Court below has to be confirmed. 17. Heard the Learned Counsel for the appellant and the Learned Government Advocate (Crl.Side) for the respondent. Records perused. 18. The charge against the accused is in respect of causing sexual assault to “X” P.W.4 on 18.11.2013 at 7.30 p.m., at his office in the school premises and similar sexual assault to other four minor boys. The prosecution has not placed any evidence to prove the 18.11.2013 incidents mentioned in the charge. To rebut the presumption under Section 29 of POCSO Act, the accused has examined four witnesses. The prosecution has not placed any evidence to prove the 18.11.2013 incidents mentioned in the charge. To rebut the presumption under Section 29 of POCSO Act, the accused has examined four witnesses. They are Muruganathan Physical Education Teacher, who has spoken about the recovery of Ex.D.1.,(Love letter drawing) from the bag of “X” P.W.4 on 24.11.2012. This letter was shown to P.W.4 and he admits about the recovery but only denies that it was not recovery by Physical Education Master but his 9th standard teacher. The apology letter by Rajeswari, the mother of P.W.4 alone with his aunty also admitted by P.W.4 and same is marked as Ex.D.2. Further more, the apology letter (Ex.D.3) of P.W.4 given to the Head Master while he was pursuing 9th standard is admitted by P.W.4 and same is marked through P.W.4. This letter in his own writing reads as under:- “I had so many problem to me you had warn to me so may time. In this time I never make any problem to me and school. I had obey the all words, I can study well in this school. If I make mistake I shall ready to receive my T.C” 19. Marking of the document has been objected during trial and subject to objection, same has been marked. This Court finds no valid reason to object the marking of this document or refuse to examine this document for proper appreciation. When P.W.4 admits recovery of Ex.D.1 from his bag and the letter of his mother Ex.D.2 and his letter Ex.D.3. P.W.4 has explained under what context he gave the letter (Ex.D.3). 20. Regarding the incident which took place on 18.11.2013 is spoken by D.W.1, the Physical Education Master, D.W.2 correspondence of the School and D.W.3 and D.W.4 the lady teachers who have taken class for P.W.4. They have spoken about the conduct of P.W.4. According to D.W.3 when she was the class teacher for P.W.4 when he was studying 9th Standard, Ex.D.1 was recovered from his bag during routine check up. D.W.4 had deposed about the retaliation of P.W.4., on 18.11.2013 when he was asked to follow queue, he questioned her, “Are you my class teacher”?. 21. According to D.W.3 when she was the class teacher for P.W.4 when he was studying 9th Standard, Ex.D.1 was recovered from his bag during routine check up. D.W.4 had deposed about the retaliation of P.W.4., on 18.11.2013 when he was asked to follow queue, he questioned her, “Are you my class teacher”?. 21. In the light of the evidence of D.W.1 to D.W.4 and Ex.D.1 to Ex.D.4 if tested with other prosecution evidences, we find that P.W.1 the father of “X”, the minor boy P.W.4 (X) who alleges sexual assault by the accused, P.W.6 father of “Y” and the minor boy P.W.8 (Y) alleges about sexual assault by the accused. Of these four witnesses, two are hearsay witnesses and two are the persons affected. Their evidence if read juxtaposition, the falsity in their case gets highlighted. The charge framed against the accused is not in respect of the incident deposed by P.W.4 and P.W.8. Apart from them, three other alleged victims, who were examined as P.W.7, P.W.9 and P.W.11, the boys who are pursuing studies in the appellant school along with P.W.4 and P.W.8 had turned hostile and they have specifically stated that nothing has been happened to them while they were studying in that school. 22. From the appreciation of the evidence as a whole, it is clear that, P.W.4 was not properly behaving in the School and hence, he had been warned. His parents were called, apology letters were obtained from them for his indiscipline conduct. Already P.W.4 has given a letter Ex.D.3 that he will behave properly and in future if he misbehaved, he is ready to get T.C. In the said background, P.W.4 had been asked to bring his parents. Therefore, when he was asked to bring his parents, he has spined the story of sexual assault by the Principal, for which, he and his father had taken aid and assistance of P.W.6 and P.W.8. To add credibility to their version, the names of P.W.7, P.W.9 and P.W.11 were included as victims. However, they have come before this Court and spoken the truth. 23. Peculiarly, in this case, P.W.4 had spoken about the celebration of the accused birthday and visit to cinema theatre with the accused and his friend Harshavardhan. The prosecution has not even attempted to record the statement of said Harshavardhan, to corroborate the version of P.W.4. However, they have come before this Court and spoken the truth. 23. Peculiarly, in this case, P.W.4 had spoken about the celebration of the accused birthday and visit to cinema theatre with the accused and his friend Harshavardhan. The prosecution has not even attempted to record the statement of said Harshavardhan, to corroborate the version of P.W.4. Further, the cinema theatre episode on the pooja holiday itself is a newly introduced story which is not the charge for which the accused was tried. 24. This Court also finds that the trial Court had taken Sections 29 & 30 of POCSO Act., to its aid to presume the guilt of the accused and culpable mental state. Section 30 of POCSO Act reads as below:- 30. Presumption of culpable mental state.— (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation.—In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. 25. This Section applies only in those offences where guilty mind is necessary element to constitute the offence. In case, the accused has admitted that he has accidentally touched the private part of the victim boys but without intention, then the presumption of culpable mental state can be drawn. Whereas, in this case the accused has consistently denied any such occurrence as spoken by the prosecution witness (P.W.4 and P.W.8), except the self serving statement of these two minor boys who have their own personal grudge against the management. There is also no evidence to prove the occurrence dated 18.11.2013 alleged in the charge. 26. As far as presumption under Section 29 of the POCSO Act, it is rebuttable presumption. There is also no evidence to prove the occurrence dated 18.11.2013 alleged in the charge. 26. As far as presumption under Section 29 of the POCSO Act, it is rebuttable presumption. In the instant case, the appellant has rebutted the same through demolishing the case of the prosecution eliciting contradictions and also by positively proving his innocence through D.W.1 to D.W.4 and Ex.D.1 to Ex.D3. 27. In the light of the above discussion, this Court holds the trial Court had miserably failed in appreciating the evidence properly. The failure to properly appreciate the defence witnesses and defence documents has led to serious miscarriage of justice. 28. Hence, this Criminal Appeal is allowed. The judgment passed by the Learned Sessions Judge, Magalir Neethi Mandram, (Fast Track Mahila Court), Erode, in Spl.S.C.No.2 of 2014 dated 06.04.2015 is hereby set aside. Fine amount paid if any, shall be refunded to the petitioner. Bail bond executed shall stand discharged.