JUDGMENT (Prayer: Criminal Appeal is filed under Section 374 (2) of Criminal Procedure Code, to call for the records of the judgment passed in Special C.C.No.6 of 2016 dated 18.07.2017 on the file of the Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore in Crime No.652 of 2014 on the file of the respondent Police Station and set aside the same and acquit the appellant/sole accused.) 1. The appellant herein tried for offence under Section 506 (i) of I.P.C and Sections 3 r/w 5 (m) r/w 6 of Protection of Children from Sexual Offences Act, 2012, was found guilty and sentenced to undergo one year R.I for offence under Section 506(i) of I.P.C and 12 years R.I with fine of Rs.5,000/-, in default, to undergo 6 months S.I, for offence under Section 3 r/w 5 (m) r/w 6 POCSO Act, – 2012. 2. The said judgment of conviction and sentence passed by the Learned Sessions Judge, Magalir Neethimandram, (Mahila Court), Coimbatore, vide dated 18.07.2017, is under challenge in this Criminal Appeal. 3. The case of the prosecution is that, on 17.08.2014, at about 10.00 p.m., the victim girl aged about 9 years pursuing VI standard. While she was sleeping in her house, the accused entered her house and sexually assaulted the minor girl by hugging, kissing, pressing her private part and forcing her private part of the victim girl. When the victim girl, cried out of pain and raised alarm, the accused ran away from the house. The mother of the victim girl gave a complaint to the police on 20.08.2014 and same was taken up for investigation. Final report filed against the accused person under Sections 3 r/w 5(m) r/w 6 of POCSO Act, 2012 and 506 (i) of I.P.C. 4. The prosecution has examined 14 witnesses, marked 17 documents. As per the prosecution witnesses, the victim and the accused are residence of Nagarajapuram, Coimbatore. The accused was staying in the house of P.W.9 (Sakthivel). The victim girl was pursuing her studies along with her younger brother at St.Joseph High School. The mother of the victim girl (P.W.2) is the Sanitary worker employed in a private hospital at Coimbatore. The father of the victim girl (P.W.3) Saravanakumar is Coolie worker. The accused knowing that, the parents of the victim girl are not in their house on 16.08.2014. The mother of the victim girl (P.W.2) is the Sanitary worker employed in a private hospital at Coimbatore. The father of the victim girl (P.W.3) Saravanakumar is Coolie worker. The accused knowing that, the parents of the victim girl are not in their house on 16.08.2014. The accused forced the minor girl to sit on his lap and sexually harassed her. When the minor girl resisted, the accused threatened her dire consequence, if she reveals it to others. Fearing the consequence, the minor girl did not disclose it to her parents. Taking advantage of the same, i.e., on 17.08.2014, at about 9.00 p.m., entered the house of the victim girl, saw the victim girl and her brother sleeping and then, went to victim girl, hugged her and removed her dress and had committed penetrative sexual assault. For the said offence, charge under Section 506(i) of I.P.C and Section 5 (m) r/w 6 of POCSO Act 2012 was framed. The incident came to light when the father of the victim girl returned home at about 10.00 p.m. He, immediately, informed P.W.2, the mother of the victim girl. She was at night duty at Private Hospital, Coimbatore. She came morning, enquired her daughter and after confirming that, she had been sexually assaulted by the accused, had lodged the complaint (Ex.P.2). The respondent police, based on the complaint, had registered the First Information Report in Crime No.652 of 2014, is the document marked as Ex.P.14. 5. The trial Court, on relying upon Section 164 of Cr.P.C., statement of the victim girl, which is marked as Ex.P.1 and her deposition, being satisfied that the girl less than 18 years of old, as per the birth certificate (Ex.P.3) been subjected to penetrative sexual assault by the accused and therefore, convicted and sentenced the accused as stated supra. 6. In the appeal, the Learned Counsel for the appellant submitted that, the statement of the victim girl child was not recorded at her residence or at the place where she usually reside. The statement was not recorded as per Section 24 of the POCSO Act and therefore, her statement (Ex.P.1) should not be considered. The statement of the victim girl recorded by the Magistrate not videographed. The statement was not recorded as per Section 24 of the POCSO Act and therefore, her statement (Ex.P.1) should not be considered. The statement of the victim girl recorded by the Magistrate not videographed. Out of 14 witnesses examined on the side of the prosecution, apart from the relatives of the victim girl, who are examined as P.W.1, P.W.2, P.W.3 and P.W.4, there is no independent witness to corroborate the case of the prosecution. The delay in giving complaint gives room for manipulation and exoneration. 7. The trial Court has not considered the said fact. The wearing apparel of the victim girl was not recovered and the reason for not recovering the dress materials are not satisfactory. The doctor, who has examined the victim girl, has categorically stated that, there is no sign of violence on the body of the victim girl. Hence, the entire narration of the alleged incident of penetrative sexual assault has to be discarded. As far as the alleged incident took place on 17.04.2014, there is no evidence. Even P.W.2, had not deposed in her chief examination any thing about the incident alleged to have been occurred on 17.04.2014. The return of the victim girl's parents to their home on the day of incident, there is inconsistency in the prosecution witnesses which has not taken note by the trial Court. Further, the Learned Counsel appearing for the appellant submitted that the benefit of doubt has to be extended to the appellant. 8. The Learned Government Advocate (Crl.Side) appearing for the respondent/State submitted that, Ex.P.1 is the statement of the victim girl recorded by the Judicial Magistrate under Section 164 of Cr.P.C. She has categorically stated that, the accused came and removed her dress and pressed her private part. When she cried, the accused ran away. The victim girl was examined as P.W.2, wherein, she has narrated the way in which the accused sexually assaulted her. She was extensively cross examined but her evidence stood unimpeached, that is the reason why the trial Court found the accused guilty and convicted. 9. Heard the Learned Counsel for the appellant and the Learned Government Advocate (Crl.Side) for the respondent/State. 10. It is a case where the victim girl aged about 9 years was subjected to penetrative sexual assault, when she was sleeping in her house. 9. Heard the Learned Counsel for the appellant and the Learned Government Advocate (Crl.Side) for the respondent/State. 10. It is a case where the victim girl aged about 9 years was subjected to penetrative sexual assault, when she was sleeping in her house. The prosecution has proved the date of birth of the victim girl is 06.09.2004 as per the School record, which is marked as Ex.P.15. On receipt of the complaint, on 20.08.2014, which is marked as Ex.P.2, the minor girl was sent for physical examination by the Doctor on 21.08.2014. P.W.10 (Dr.Thilagavathi), who has conducted the physical examination has given the Accident Register and Medical Examination Certificate, which are marked as Ex.P.10 and Ex.P.11. As per this medical record, the victim girl has not attain majority and hymen were intact. There was no external injury. 11. The Learned Counsel appearing for the appellant taking advantage of this observation argued that, the entire incident is an imaginary and fabricated, in order to grab the property of the accused. 12. However, when the minor girl is aged about 9 years was subjected to sexual assault by 35 years old man, the resistance by the girl and the cry had prevented further injury to her. In the cross examination, the victim girl has deposed that when she started shouting, the accused ran away. 13. From the evidence of P.W.3, the father of the victim girl has denied the suggestion that, he and the accused had money transaction and previous enmity. While so, there is no reason to suspect the ill motive for giving the complaint against the accused alleging grave offence of penetrative sexual assault of his daughter. 14. Therefore, this Court finds that the conviction of the accused is based on the evidence of the victim girl which is wholly reliable. While so, there is no reason to suspect the ill motive for giving the complaint against the accused alleging grave offence of penetrative sexual assault of his daughter. 14. Therefore, this Court finds that the conviction of the accused is based on the evidence of the victim girl which is wholly reliable. Regarding the sentence of 12 year R.I for offence under Section 3 r/w 5 (m) r/w 6 of POCSO, this Court modified the term to 10 years R.I. Offence Conviction and Sentence passed by the Trial Court Conviction and sentence passed by this Court as modified below:- Section 506(i) of I.P.C To undergo one year R.I To undergo one year R.I Under Section 3 r/w 5(m) r/w 6 of POCSO To undergo 12 years R.I and to pay fine of Rs.5,000/-, in default 6 months S.I To undergo 10 years R.I and to pay fine of Rs.5,000/-, in default 6 months S.I 15. With the above modification, this Criminal Appeal is partly allowed. Consequently, connected Miscellaneous Petition is closed.