Point of Law: Evidence of the prosecutrix if inspires confidence of the Court, can be accepted without there being any corroboration.

JUDGMENT :

The Judgment and Order dated 09/10.06.2016 passed by the Court of Principal District and Sessions Judge at Chamarajanagar, in Special Case No.80/2014 is under challenge in this appeal, preferred by the accused.

2. By the impugned Judgment, the learned Sessions Judge has convicted and sentenced the accused/appellant for offence punishable under Sections 5(j)(ii) and (l) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as ‘POCSO Act’ for short] and Section 376(2)(j) and (n), 420 and 506 of IPC.

3. Heard the learned counsel for appellant and the learned HCGP for respondent State and perused the evidence and material on record.

4. At the outset, it is relevant to mention that the trial Court has passed sentence against the accused under the POCSO Act as well as under Section 376(2)(j) and (n) of IPC. In view of Section 42 of the POCSO Act, if the offender is found guilty of an offence under the said Act or under the Indian Penal Code as mentioned in the said provision, he shall be liable to punishment for any of the offence as provides for punishment which is greater in degree. Hence, passing sentence for both the offences under Section 376(2)(j) and (n) of IPC as well as under the POCSO Act is not proper.

5. The case of the prosecution is that, since 9 months prior to 28.05.2014, the accused was in love with the victim girl, a minor aged about 16 years and while she was going to the house of one Mohammed Yusuf for rolling beedi, by alluring and promising that he will marry her, committed penetrative sexual assault on her repeatedly, on account of which she became pregnant and delivered a baby girl on 24.05.2014. Further, the accused committed sexual act by alluring that he will marry only her and then cheated her and also intimidated her by threatening to kill her if she cause any alarm and disclose the incident to others.

Complaint is lodged by the father of the victim girl who is examined as P.W.2. In his complaint lodged as per Ex.P4, he has stated that he is a resident of Chatipura village, Chamarajanagar and he is working as an auto driver in Mysuru. He has 4 daughters and 3 sons. The victim girl is his third daughter and she is aged about 16 years. She is residing along with her mother in Chatipura village. About 5 days back, when he was in Mysuru, his daughter was brought to K.R.Hospital by his sister [P.W.3] and on enquiry, his daughter revealed that the accused with a promise of marriage committed forcible sexual intercourse on her since 9 months, due to which she has become pregnant and that he threatened her with dire consequence not to disclose the incident to others.

In order to prove the guilt of the accused, the prosecution has got examined in all 25 witnesses and got marked Ex.P1 to 26. The accused got himself examined as D.W.1.

6. The defence taken by the accused is that, P.W.3 viz., Raheebabanu, first informant’s sister had married his brother by name Ilyas Pasha on 19.08.1989. However, they got separated since she was ill-treating his brother. Therefore, P.Ws.2 and 3 were nurturing ill-will against him. It is stated that P.W.3 was not in good terms with her husband and they were waiting for an opportunity to drive him out of the village and therefore a false case was foisted against the accused.

7. The first informant has been examined as P.W.2. He has re-iterated the averments made in the complaint. In the cross-examination, though he has denied that his sister i.e., P.W.3 married the brother of the accused, however, P.W.3 has admitted in her cross-examination that she had earlier married the brother of accused. She has stated that a week after the marriage she left her husband because she was not willing to stay with him. However, she has denied that there was any ill-will against the family of her husband.

8. The victim girl has been examined as P.W.1. She has supported the prosecution. She has deposed that she was going to the house of C.W.8 [P.W.7]-Mohammed Yusuf