Point of Law : Section 42 and Section 42A of POCSO Act, if accused is convicted under provisions of IPC as well under POCSO Act, higher punishment is required to be imposed.

JUDGMENT :

Rajendra Badamikar, J.

The State has filed this appeal under Section 378(1) & (3) of Cr.P.C. challenging the judgment of acquittal dated 03.02.2017 passed by the III Additional District and Sessions Judge & Special Judge (POCSO Act), Belagavi in S.C.No.199/2015.

2. For the sake of convenience, parties shall be referred with the original ranks occupied by them before the trial court.

3. The brief factual matrix leading to the case are as under :

Accused is the father of the victim/complainant and they are residing in Laxmi Nagar bearing House No.1286/A, Belagavi. That the accused being the father of the victim girl aged about 14 years and knowing fully well that she is minor had committed forcible sexual assault on her since about 9 months and also on 19.05.2015 by wrongfully confining her in the house had forcible sexual act against the victim girl. When the victim girl had been to the house of her maternal grandmother, the accused went there to secure her and at that time, the victim girl refused to go with the accused and disclosed the fact of sexual assault by the accused. It is further case of the prosecution that mother of the victim girl i.e., wife of the accused is deaf and dumb and when the sexual act of the accused was brought to the notice of P.W.6 i.e., maternal grandmother, she took the victim girl to the police station and a complaint came to be lodged. On the basis of the complaint, investigating officer has registered the crime and the victim was subjected to medical examination. Further, her statement under Section 164 of Cr.P.C. before the learned Magistrate was also recorded and the accused was arrested and remanded to judicial custody. The investigating officer has also recorded the statement of the witnesses and collected medical evidence as well as age proof certificate of the victim and found that there is sufficient evidence as against the accused and as such, he submitted the charge sheet against the accused for the offences punishable under Sections 376(1), 342 and 506 of IPC and Sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’ for short).

4. After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the cognizance was taken and the accused was produced from judicial custody and prosecution papers were furnished to him. Further, the accused was represented by counsel and after hearing both the parties, the charge under Section 376(1), 342 and 506 of IPC r/w Sections 4, 8 and 12 of POCSO Act is framed against the accused and the same is read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused, the prosecution has examined in all 11 witnesses and also placed reliance on 13 documents as Exs.P1 to P13 and 3 material objections as M.Os.1 to 3. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. is recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial. However, he himself has got examined as D.W.1.

6. After hearing the arguments, the learned Special Judge has observed that evidence of the victim, P.W.6 and other witnesses including the medical evidence is not at all trustworthy and thereby acquitted the accused for the offences alleged against him. Being aggrieved by this judgment of acquittal, the State has filed this appeal.

7. We have heard the arguments advanced by the learned Additional SPP for the State and learned counsel for the respondent/accused. Perused the trial court records.

8. The learned Additional SPP would contend that the judgment and order of acquittal passed by the trial court is contrary to law, facts and evidence on record. He would contend that prosecution has placed sufficient materials, but the trial court has ignored the same. He wo