(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the Judgment and Order passed by the Spl. Court (Protection of Children from Sexual Offences Acts) and (Prevention of Atrocities on Scheduled Castes and Scheduled Tribes) and III Addl. Dist. and Sessions Judge, Belagavi in Sessions Case No.290/2014 for the offence punishable under Sections 5 and 6 of the Protection of Children from sexual Offences Act, 2012 dated 04.07.2016 and acquit the appellant from the charges leveled against him allowing this appeal.)
1. This appeal is preferred against the judgment of conviction and sentence passed by the learned III Addl. District and Sessions Judge, Belagavi, in S.C.No.290/2014 for the offence punishable under Section 5 and 6 of the Protection of Children From Sexual Offences Act,(for short ‘POCSO Act’) wherein the learned Judge has convicted and sentenced the accused to undergo rigorous imprisonment for ten years for the offence punishable under Sectio
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ns 5 & 6 of the POCSO Act and to pay a fine of Rs.15,000/-, in default to pay the fine amount, to undergo simple imprisonment for six months.
2. The brief facts unfurled from the case are that, the complaint was lodged by one Ashok Balappa Magadum before Aigali Police Station, Taluk Athani, District Belagavi, on 13.08.2014 against the accused for the offences punishable under Section 376(2F) of IPC and under Sections 5 & 6 of Protection of Children From Sexual Offences Act, 2012.
It is stated that the victim is the sister’s daughter of the complainant. On 12.08.2014 at about 3.00 p.m., she asked for ‘uppit’ (food) and the complainant requested anganawadi member-worker to provide the victim some ‘uppit’. When the victim was on the way, the accused-appellant offered money and took her to his hut, undressed her and laid on her and heinous form of rape of sex on her mouth and asked her to do certain worst sexual act. She complained of stomach pain. Meanwhile, one Vijayadasharath Dodamani came and told that people were talking that the accused had raped the victim. Later the accused was not available. And on hearing the news it was discussed and the complainant who is the maternal uncle lodged the complaint at 8.00 a.m., on the next day, i.e., on 13.08.2014. A criminal case came to be registered for the offences punishable under Sections 376(2F) and 5 & 6 of the POCSO Act, 2012.
3. On completing investigation, final report was filed against the accused for the above said offences. On presentation of the case by the learned Public Prosecutor, the learned Sessions Judge framed the charge for the offences punishable under Sections 376(2F) and 5 & 6 of POCSO Act, 2012. As the accused pleaded not guilty, he was put on the trial.
4. The prosecution has examined 13 witnesses as PWs.1 to 13, got marked 16 documents as Exs.P.1 to P.16 and material objects as M.Os.1 and 13. The accused was examined under Section 313 of Cr.P.C., and denies the allegations in total. The learned Sessions Judge came to the conclusion that the prosecution has established the case against the accused beyond reasonable doubt and in the process found the accused guilty of the offence under Sections 5 and 6 of POCSO Act. However, the accused was acquitted for the offence under Section 376 (2F) of IPC. The learned trial Judge convicted the accused for the offences punishable under Sections 6 of the POCSO Act, 2012 and sentenced the accused as stated supra.
5. I have heard arguments of the learned counsel for the appellant and also the learned High Court Government Pleader for the State.
6. Sri Vyas Desai, learned counsel for the appellant would submit that the observation from the FSL report regarding the presence of seminal stains on item No.6 which is frock of the victim girl and the doctor has revealed by stating that he did not find the evidence of sexual assault of penetration. The accused is said to be 38 years and is having family and his wife is working as teacher. He further submits that item No.6 of the examined article is frock of the victim girl and the observation of seminal stain was detected by the FSL. Further he submits that the observation made by the FSL to show the presence of seminal stain on the frock and doctor has also stated the same. There was no penetration and the hymen was intact. In this connection he would submit that seminal stains do not mean exclusively that of the accused. Hence, he seeks that the sentence and fine imposed by the learned Sessions Judge is too harsh in nature and same is liable to be quashed and he deserves to be acquitted.
7. The learned trial Judge has observed that the accused was potent enough to engage sexual intercourse and also considered opinion of the medical officer who has issued wound certificate of the victim. The medical officer has stated that her hymen was intact and could not find the evidence as to sex by penetration. As per Exs.P10 the medical report wherein it is stated that there are no external injuries. However, PW.10 has deposed regarding the provisional opinion to the effect that there is no evidence to prove the victim has been recently assaulted sexually and there was no evidence of sexual penetration. However, as the seminal stain was present on frock, he states that further investigation to be conducted in the form of FSL report. The said report was received later and marked as Ex.P11. Further it is stated that there is no evidence to suggest that the person is incapable of performing sexual act. When the victim is a child of 10 years her knowledge and interest for sex are considered and expecting proof of link or nexus between the said stains to that of the accused is nothing but hypocracy.
8. The complainant being the maternal uncle of the victim girl has stated regarding the offence as he is not the eyewitness but he is the person who send the child in the afternoon to anganawadi worker Roopa for having uppit with her in a Tiffin carrier and on coming back the accused lured her one rupee and took her in the hut and had worst form of sex on the mouth of the victim and she also states that he undressed her and laid on her.
9. PW.2 is the mahzar witness, PW.3 is the victim girl who has stated that the accused took her inside and removed her innerwear and inserted of his private organ in her mouth and asked her to squeeze for enjoyment. She also states for having informed before Nagappa who is the uncle of the victim.
10. PW.5 is a circumstantial witness having came to know about the rape being committed by the accused on the victim. PW.6 is a circumstantial witness and he was a member of Gram Panchayath. PW.7 is the Secretary of Gram Panchayath who issued khata extract. PW.8 is the Head Master, wherein he has stated that the victim girl studied in the School. He also stated that he has issued the certificate regarding her birth and caste and there is dispute regarding her caste. PW.9 is the Junior Engineer, PWD, who has prepared the sketch as per Ex.P.9. PW.10 is the Chief Medical Officer, BIMS Hopsital Belagavi, who has examined the victim. PW.11 is the Head Constable. He deposed for having carried the FIR and the complaint to the jurisdictional Magistrate. PW.12, is PSI, he has done part of the investigation. PW.13, is the Dy.S.P. who has completed the investigation and laid charge sheet.
11. Thus, in overall context of the case, PWs.1 and 3 are the main witnesses. PW.3 is victim girl of 11 years at the time of incident from rural background. She is stated to be victimized of sexual offence of highest order. It is to be noted that, at the age of 11 years the girl will not be proficient in sexual knowledge and even she could not know about the activities including the barbaric one employed by the accused and his act fit into the ingredients of Section 5 and 6 of POCSO Act. In this connection PW.10, the Doctor who is examined for his opinion on the offence, he has also issued the wound certificate as per Ex.P10.
12. However, the observation by the doctor, wherein he stated that further investigation is to be conducted and suggests that he has to improve his knowledge on presentation of facts. It is necessary to make a mention that if an act or activities start from stage and move towards a particular direction and consists of activities up to a particular stage of activity completely form an offence and the Court need not wait for the completion of entire procedural activities. Thus, ingredients of Section 5 of the Act are tailor made to the offending acts. Considering the age of the girl who was no having the knowledge of sex before she could come to know of it, she was pushed and constrained experience the devilish part of the sex. In the light of the evidence of the victim and the complainant and corroborative circumstances of the case, the learned trial Judge has held that the accused was found not guilty and acquitted for the offence under Section 376(2F) of IPC and sentenced the accused to undergo rigorous imprisonment for ten years for the offence punishable under Section 6 of the POCSO Act and to pay a fine of Rs.15,000/-, in default to pay the fine amount, to undergo simple imprisonment for six months. The prosecution has not preferred any appeal.
13. In my view there is no infirmity, illegality or harshness in the sentence imposed by the learned III Addl. District and Sessions Judge, Belagavi and even there is no space for interfering with the said order. Hence, the judgment of conviction is confirmed.
Accordingly, the appeal is devoid of merits. Hence, it is rejected. The judgment and order of the learned Judge dated 04.07.2016 in convicting the appellant/accused for the offence punishable under Section 6 of the Protection of Children From Sexual Offences Act, 2012, in S.C.No.290/2014 is hereby confirmed.
Learned HCGP is hereby directed to verify whether the claim for compensation has been made by the victim under 'The Victim Compensation Scheme' and assist the victim in getting the compensation on availability of funds, if the case found suitable.