The judgment emphasizes the requirement for legal evidence and the need to establish the basic facts constituting the offence beyond reasonable doubt.

JUDGMENT

1. This appeal is directed against the judgment of conviction and order of sentence dated 31.12.2016 passed in Spl.C.C.No.286/2015 on the file of LIII Additional City Civil and Sessions Judge, Bengaluru City, whereby the accused is convicted for the offence punishable under section 11 r/w 12 of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as Act of 2012) and sentenced to undergo simple imprisonment of three years and pay fine of Rs.2,000/- in default to pay fine, to undergo simple imprisonment of another eight months.

2. The prosecutrix PW-2, who was then aged about six years was studying in 1st standard. Her father used to drop her to the school in the morning and in the evening, accused was picking her up from the school in his van bearing No.KA- 09-M-3941 and drop her to her house. On 30.03.2015, at about 3.30 p.m., after dropping other children, on the way, the accused is stated to have stopped the van and with intent to commit sexual assault on the minor girl, opened the zip of his pant and exhibited his private part and asked the victim girl to touch it. She refused to do so. Thereafter, he dropped her in the last stop.

3. The victim narrated the incident to her mother. She in-turn informed the matter to her husband PW-1. According to PW1, he immediately discussed the matter with one of his friend Jayaprakash(PW-7) and both of them proceeded to school and informed the matter to the Principal. The owner of the van Sri.Gopal-PW-5 was alerted. The accused was brought to the school. He was thrashed by the public and was produced before the police.

4. The father of the victim lodged a written complaint as per Ex-P1. Investigation was taken up. The van was seized and on completing investigation, charge sheet was laid against the accused under sections 354A IPC and section 9(m) r/w section 10 of Act of 2012.

5. Initially, charges were framed against the accused under sections 354A IPC and sections 9(m) r/w 10 of Act of 2012. However, amidst the trial, charges were altered by order 08.12.2016 and the altered charges under section 9(m) r/w sections 10 and 18 of Act of 2012 and section 11 r/w and 12 of Act of 2012 were read over and explained to the accused. The accused denied the charges and did not choose to adduce rebuttal evidence.

6. Considering the above material, the special court was of the opinion that the ingredients of section 7 were not established by the prosecution and therefore, the charge under section 9(m) r/w section 10 r/w 18 of Act of 2012 was held not proved. Likewise, the special court held that the prosecution having failed to prove physical contact and advances involving unwelcome and explicit sexual overtures by the accused, charge under section 354-A IPC was also not established. However, considering the evidence of PW-1 and PW-6 and statement of PW-3, accused was found guilty of the offences punishable under section 11 r/w section 12 of Act of 2012 and consequently sentenced him as stated above.

7. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the accused has preferred this appeal.

8. Learned counsel for the appellant Sri. H.E. Basavaraj while assailing the impugned judgment at the outset submitted that the prosecutrix having wholly turned hostile to the case of the prosecution, there was no basis for the special court to hold the accused guilty of the offence under section 11 r/w section 12 of the Act. Further, in view of the categorical findings recorded by the special court that the prosecution failed to prove the offences under section 354-A IPC as well as sections 9(m) and 10 of Act of 2012, the special Judge has committed an error in convicting the accused for offences under section 11 r/w section 12 of Act of 2012 relying on the statement of PW-3 recorded under section 161 Cr.P.C. Said material was totally inadmissible in evidence and as such no finding of guilt could have been based on the said material. Barring the above