The court emphasized the importance of the victim's testimony and the weight given to the evidence of an injured witness. The court also discussed the legal presumptions under the POCSO Act and the requirement for the accused to rebut them.

JUDGMENT

B.A.Patil, J. - The present appeal has been preferred by the appellant/accused challenging the legality and correctness of the judgment passed by the Principal District and Sessions Judge and Special Judge, Haveri in Spl.SC/ST No.122/2014 dated 11.07.2017.

2. We have heard the learned counsel Sri.T.Hanumareddy for the appellant/accused and Sri.Shivaprabhu Hiremant, AGA for respondent-State.

3. The genesis of the case of the prosecution in brief is that; the victim has been bought up in the house of her aunt Smt.Nagavva. On 19.07.2014, when the complainant and her aunt were sitting and were discussing with regard to the construction of the house at about 11.30 am, the accused who is residing in the same lane came and took the victim assuring that he is going to provide her with a chocolate. Thereafter for some time when the victim did not came back, her aunt and others started searching for the victim and went near the house of the accused. There they noticed that the front door of the house of the accused was not closed fully. They pushed the door, went inside the house and there they noticed that the accused by disrobing himself as well as undressing the victim, was sexually assaulting her and they saw that the victim was crying by saying that she is having pain in her private part. It is further alleged that the accused knowing fully well that the victim was belonging to schedule caste and schedule tribe, has sexually assaulted her. On the basis of the complaint, a case has been registered in Crime No.129/2014. Thereafter after investigation, the charge sheet has been filed.

4. The special Court took cognizance and after hearing and supplying copies of the charge sheet, charge was framed. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed.

5. The prosecution in order to prove its case got examined 15 witnesses, got marked 23 documents and 15 material objects. Thereafter the statement of the accused was recorded by putting incriminating materials as against him. He denied the same. But he has not led any evidence or got marked any document. After hearing the learned counsels appearing for the parties, impugned judgment of conviction and order of sentence came to be passed. Challenging the legality and correctness of the same, this appeal is before this Court.

6. The main grounds urged by the learned counsel for the appellant are that the judgment of conviction and order of sentence is contrary to law and the materials placed on record. It is his submission that PW1- father of the victim girl has filed the complaint as if he is the eyewitness to the alleged incident, but in his evidence during the course of examination, he has deposed that he came to know only on the say of the aunt of the victim-Nagavva that the sexual assault has been committed on the victim. Therefore, it is clear that he is not an eye witness to the alleged incident.

7. It is his further submission that though the prosecution has quoted two independent witnesses i.e. PW4 and 5, they have resiled from the case of the prosecution and they have been turned hostile. Under such circumstances, the trial Court ought not to have relied upon only the interested testimony of PW7 and 10. It is his further submission that when the victim herself has been taken to the learned Magistrate for the purpose of recording 164 statement, the learned Magistrate has clearly noted down that the said girl is incapable to give the statement on 24.07.2014. Under such circumstances, the evidence which has been produced before the Court has to be scrutinized with care and caution. The trial Court without looking into the said aspect has come to a wrong conclusion and has wrongly convicted the accused.

8. It is his further submission that the trial Court has not kept in view the amended provisions of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the PSCSO Act', for short). The alleged offence had taken place o