Point of law: POCSO Act - Testimony of the victim and her mother PW1 does not inspire confidence in the mind of the Court to hold accused guilty of the alleged offence- while appreciating the evidence of witnesses, approach must be as to whether the evidence of witnesses as read as a whole appears to be true.

JUDGMENT :

1. This appeal is preferred against the judgment and order of conviction and sentence passed by the Court of III Addl. District and Sessions Judge and Special Court under POCSO Act, 2012, at Belagavi in SC No.14/2017, convicting and sentencing the accused/appellant for the offence punishable under Sections 376 and 506 of IPC and Sections 4 and 6 of POCSO Act.

2. I have heard the learned counsel Sri. Ashok R Kalyanshetty appearing for the appellant and Sri. V.S. Kalasurmath, learned HCGP for the respondent-St ate and perused the material on record.

3. Brief facts of the prosecution case are that the complainant/PW1 was residing at No.S9, Guruprasad Apartment, Belagavi along with her 2nd husband i.e. the accused and her children namely CW6(PW3) and CW7 born to her from her first husband. PW3/victim girl is a minor aged about 15 years. On 16.8.2016 at about 4 p.m., the complainant and her elder daughter had gone to hospital and PW3 was alone in the house. At about 4.30 p.m., the accused inspite of knowing that the victim is a minor and he is her step father, dragged her to the bedroom and committed forcible penetrative sexual assault on her and threatened her saying that if she disclosed the incident to others, she as well as her sister and mother will be killed.

4. On the basis of the complaint lodged by PW1-the mother of the victim, a case was registered against the accused in Crime No.248/2016 of Malamaruti Police Station for offence punishable under Sections 376 and 506 of IPC and 4 and 6 of POCSO Act, 2012. On completion of investigation, charge sheet was laid for the aforesaid offence.

5. The accused pleaded not guilty to the charges framed and claimed to be tried.

6. To establish the case of prosecution, PW1 to PW13 were examined and Ex.P1 to P26 and MO1 to MO-15 were got marked. The defence of the accused was one of total denial. However, he did not choose to lead any evidence on his behalf.

7. The trial Court after considering the evidence and material on record convicted and sentenced the accused for the charged offences as under :

The accused was sentenced to undergo simple imprisonment for 7 years and to pay a fine of Rs.5,000/-, in default, simple imprisonment for 2 months, for offence punishable under Section 376 of IPC. The accused was sentenced to undergo simple imprisonment for 1 year and to pay a fine of Rs.2,000/-, in default, simple imprisonment for 1 month for the offence punishable under Section 506 of IPC. The accused was sentenced to undergo simple imprisonment for 7 years and to pay a fine of Rs.5,000/-, in default, simple imprisonment for 1 month for the offence punishable under Section 4 of POCSO Act, 2012. The accused was sentenced to undergo simple imprisonment for 10 years and to pay a fine of Rs.10,000/-, in default, simple imprisonment for 2 months for the offence punishable under Section 6 of POCSO Act, 2012.

8. Assailing the aforementioned judgment and order of conviction and sentence passed by the trial Court, the learned counsel appearing for the appellant-accused has contended as under :

The material on record is totally insufficient to prove the guilt of the accused beyond all reasonable doubt. There are material improvements in the testimony of the complainant as well as the prosecutrix, which go to the root of the prosecution case. There is an inordinate delay in lodging the complaint which is unexplained. The marriage between PW1 and the accused has not been established. The Medical evidence does not support the case of prosecution and the Lady Medical Officer who examined the victim girl has not been examined. The trial court has not appreciated the cross examination conducted by the defence and the impugned judgment has been passed only on the basis of examination in chief of the prosecution witnesses. The clothes of the victim girl said to have been worn at the time of incident has not been collected and sent for chemical examination. The reasons assigned for convicting the accused are