The judgment establishes the importance of corroborative evidence in cases of sexual assault, the presumption of guilt under the POCSO Act, and the need for the accused to rebut such presumptions.

JUDGMENT

B.A.Patil, J. - This appeal is preferred by the appellant/accused challenging the judgment of conviction and order of sentence passed by the learned II Addl. District and Sessions and Spl. Judge, Dharwad, in Special S.C.No.34/2016 dated 16.08.2017.

2. We have heard Sri Namadev S.Badiger, learned counsel appearing for the appellant/accused and Sri V.M.Banakar, learned Addl. SPP appearing for the respondent-State.

3. The genesis of the case of the prosecution in brief is that the victim is the daughter of the accused. On the intervening night of 21.05.2016 and 22.05.2016, because of humidity inside the house, she went outside and slept by the side of her father. When the victim girl was sleeping by his side, accused knowingly full well that she being a minor girl below the age of 18 years, has sexually assaulted her for 2 to 3 times and has committed penetrative sexual assault. In the morning, after receiving a phone call from the general public that the minor girl has been sexually assaulted by her father, the District Child Protection Officer and the police went to the house of the accused. But the accused was not there. They found the victim girl. On enquiry, she revealed the fact of penetrative sexual assault committed by her father/the accused, on the intervening night of 21.05.2016 and 22.05.2016. In that regard, the District Child Protection Officer lodged the complaint and on the basis of the said complaint, a case has been registered in Cr.No.144/2016. Thereafter, after investigation, the charge-sheet came to be filed.

4. The trial Court took cognizance and after giving the copies of the charge-sheet to the accused and after hearing him, charges were framed wherein the accused pleaded not guilty and he claims to be tried and as such, the trial was fixed. To substantiate its case, the prosecution got examined, 16 witnesses and got marked 21 documents and 11 material objects. Thereafter, the accused was questioned by putting incriminating material against him and he denied the same. The accused has not adduced any evidence nor produced any documents. After hearing the learned counsel appearing for the parties, the impugned judgment came to be passed convicting the appellant/accused. Being aggrieved by the same, the accused is before this Court.

5. The main grounds urged by the learned counsel for the appellant is that the learned Sessions Judge without considering the materials placed on record, has come to a wrong conclusion and has wrongly convicted the accused. It is his further submission that PWs-3 and 4, i.e., sister of the accused and the mother of the accused have not supported the case of the prosecution, though they were also present at the place of the alleged incident. In that light, it is his submission that the trial Court ought to have acquitted the accused. It is his further submission that the evidence of PW-2/victim is also not trustworthy and reliable and that when the witness is a child witness, unless her evidence repose confidence about its truthfulness said evidence cannot be relied upon. It is his further submission that there is inconsistency in the evidence of PW-2. At one stretch, when the statement of the victim has been recorded under Section 164 of the Cr.P.C. as per Ex.P.7, she has deposed in a different manner and when she has been examined before the Court, then she has improved her version only with an intention to get convicted the accused. It is his further submission that the accused came to be examined by Dr.PW-9 and she has issued the report as per Ex.P.14 wherein she has stated that there are no signs of sexual assault committed by the accused and that itself shows that there is no penetrative sexual assault committed by the accused. It is his further submission that the parameters of Section 5 of the Protection of Children from Sexual Offences Act, 2012, (for short 'the POCSO Act') have not been complied so as to come under the jurisdiction of the Special Court. When the sa