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3. After completing the trial and hearing the argument advanced on either side, the learned Special Judge acquitted the 2 nd accused for the offence u/s.366 (A) IPC. However, the appellant was found guilty of offence u/s.366 IPC and convicted and sentenced him to undergo 5 years rigorous imprisonment and fine of Rs.5000/- in default to undergo 6 months rigorous imprisonment. Further the appellant was found guilt of the offence u/s.5(l) read with 6 of POCSO Act, convicted and sentenced him to undergo 10 years rigorous imprisonment and fine Rs.5000/- in default to undergo 6 months rigorous imprisonment and the appellant was found guilt u/s.5(n) read with 6 of POCSO Act 2012 and convicted and sentenced him to undergo 10 years rigorous imprisonment and fine of Rs.5000/- in default to undergo 6 months rigorous imprisonment.

6. The learned counsel appearing for the petitioner would submit that there are material contradictions between the prosecution witnesses. Victim girl has stated that she voluntarily went to Harish and the said Harish took the victim girl to the appellant and thereafter the appellant taken the victim girl and stayed with her somewhere else and in such circumstances, Harish was already acquitted and on the basis of the confession statement of Harish, this appellant and the victim girl was secured. Once the said Harish – A2 was acquitted, the appellant cannot be convicted for the offence u/s.366 IPC since the victim girl has not stated that the appellant has forcefully kidnapped her. https://www.mhc.tn.gov.in/judis/ Therefore, the prosecution failed to establish the commission of offence against the appellant u/s.366 IPC. Therefore, the conviction rendered by the learned Special Judge requires interference.

13. A reading of Ex.P.2 statement recorded by the Judicial Magistrate would go to show that the victim girl has clearly narrated the events. It is stated that the appellant and the victim girl was staying in the appellant’s house. The appellant is brother’s son of the paternal uncle. However, the https://www.mhc.tn.gov.in/judis/ appellant forced to have sexual intercourse. The appellant also proposed love to victim girl. Initially she refused the proposal of love. The appellant apprehended the victim by saying that he would cut his hand and die. So she also loved the appellant. Both the appellant and victim girl used to have sexual intercourse several times. Thereafter, the appellant went to his friend’s house. Thereafter, the appellant took the victim girl to several places and subsequently they came to know that the parents of the victim girl gave the complaint and police is searching and so he surrendered before the Police. Though the statement recorded u/s.164 Cr.P.C. is not substantive evidence, it can be used for corroboration by the prosecution or for contradiction by the accused. The evidence of the victim girl stated before the trial court has to be taken into consideration. Evidence of P.W.1 clearly shows that there is no eye witness. It is seen that the victim girl was staying in the house of appellant when she was studying 7 th to 9th standard. So the appellant had easy access with the victim girl. The victim girl also stated that the appellant forced her to love him and he threatened her to have forcible sexual intercourse with him. When the father of the victim girl came to know the events, the victim girl was sent to her parents house. At that time, the appellant continued to talk over phone and on the date of occurrence, ie., on https://www.mhc.tn.gov.in/judis/ 05.09.2017, friend of the appellant contacted the victim girl and the victim girl was asked to come out of her house and thereafter, the appellant took the victim girl and committed sexual assault. At the time of occurrence, the age of the victim girl was aged 15 years and custody of the victim girl was removed by the appellant from her lawful guardian without the consent and thereby he committed offence u/s,366 IPC.

15. Therefore, from the evidence of P.W.1 victim girl and the evidence of PW.2 and P.W.3 parents and the evidence of doctors P.W.12 and 15 and Ex.P.2 statement recorded by the Judicial Magistrate, the trial court has convicted the appellant for all the charges framed against him. Since the date of birth of the victim girl is 14.06.2002 as per her birth certificate, she is a child under the definition 2(1)(d) of POCSO Act since she was not completed age of 18 years. So the appellant taking away her custody from her lawful as well as natural guardian without their consent is an offence u/s.366 IPC. Further, the victim child is below 18 years and since she was subjected to sexual assault made by the appellant is an offence u/s.5(l) read with 6 of POCSO Act. The said charge is proved by the prosecution from the evidence of the victim girl which was also corroborated by the medical evidence. The medical evidence is very clear that the victim girl was subjected to sexual assault. Therefore, the appellant is found guilt for the offence under section 5(n) read with Section 6 of POCSO Act. Therefore, the trial court has rightly convicted the appellant. This court is of the view that the prosecution has proved its case beyond all reasonable doubt by way of evidence of P.W.1 and also Exhibits P.1-complaint, Ex.P.2 - statement https://www.mhc.tn.gov.in/judis/ recorded u/s.164 Cr.P.C., Ex.P.4 - Age Proof certificate, Ex.P.15 - Accident Register of the victim girl and also Ex.P.16 Medical certificate.