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IN THE HIGH COURT OF KARNATAKA
Mohammad Nawaz, J.
Anand – Appellant
Versus
State – Respondent
Criminal Appeal No. 764 of 2018
Decided On : 01-12-2021
POCSO Act - Conviction under Ss. 366 and 376 of IPC and Ss. 5(l) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 - Sec. 42 of the POCSO Act - Sec. 164 of Cr.P.C. - Sec. 29 of the POCSO Act
Fact of the Case:
The accused was convicted and sentenced for offences under Ss. 366, 376 of IPC and Sec. 5(l) read with 6 of the POCSO Act. The victim, a minor, was allegedly abducted and sexually assaulted by the accused. The prosecution presented evidence including witness testimonies and medical examination reports.
Finding of the Court:
The court found that the evidence and material on record were not sufficient to establish the guilt of the accused. The victim denied the allegations, and there were contradictions and lack of conclusive evidence in the witness testimonies and medical examination reports. The court also highlighted the limitations of Sec. 164 of Cr.P.C. and Sec. 29 of the POCSO Act in establishing guilt.
Issues: The key issues revolved around the credibility of witness testimonies, the victim's denial of the allegations, the limitations of Sec. 164 of Cr.P.C. and Sec. 29 of the POCSO Act, and the sufficiency of evidence to establish guilt.
Ratio Decidendi: The court emphasized that the burden of proof lies with the prosecution, and the statutory presumptions under Sec. 29 of the POCSO Act do not relieve the prosecution from proving its case. The court also highlighted the limitations of witness testimonies and the need for conclusive evidence to establish guilt.
Final Decision: The appeal was allowed, and the accused was acquitted of the charged offences. The Judgment and Order of conviction and sentence were set aside, and the accused was to be set at liberty.
JUDGMENT :
1. This appeal is preferred by the accused challenging the judgment and order dtd. 26/2/2018 passed by the Court of LIII Additional City Civil and Sessions Judge, Bengaluru in Special C.C. No.292/2017, convicting and sentencing him for offence punishable under Ss. 366 and 376 of IPC and Ss. 5(l) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO Act' for short].
2. Heard the learned counsel for appellant, learned High Court Government Pleader for respondent/State and perused the evidence and material on record.
3. Brief facts of the prosecution case are that, accused got acquainted with complainant's minor daughter (PW.1), while she was staying in her grand mother's house in Kanakapura and pursuing her studies. About 2 to 3 months prior, he secured her near Kabbalamma temple and from there took her to a lodge and committed forcible penetrative sexual assault on her, in spite of her assistance, telling her that he will marry her and he is in love with her. Later threatened her not to disclose the incident to any body.
4. Charges were framed against the accused/appellant for offences punishable under Ss. 366, 376 of IPC and Sec. 5(l) read with 6 of the POCSO Act and Sec. 506 of IPC.
5. To establish the guilt of the accused, the prosecution got examined 13 witnesses and got marked Exs.P1 to P11 and MO's 1 and 2.
6. The learned Sessions Judge vide impugned judgment and order convicted and sentenced the accused for the charged offence.
7. At the outset, it is pertinent to see that the trial Court has passed sentence against the appellant for both the offences under Ss. 376 of IPC and Sec. 5(l) read with 6 of the POCSO Act.
8. Sec. 42 of the POCSO Act provides for alternate punishment, wherein, if the offender is found guilty of an offence under the said Act along with similar offence under the Indian Penal Code, which are mentioned therein, he shall be liable to punishment either under the POCSO Act or under IPC, wherein, the punishment provided is greater in decree. Since the trial Court has sentenced the appellant to undergo R.I for a period of 10 years for the offence punishable under Sec. 6 of the POCSO Act, then once again sentencing him to undergo S.I for a period of 7 years for offence under Sec. 376 of IPC is uncalled for.
9. According to prosecution, the victim was a minor aged below 18 years at the time of commission of offence. In order to establish her age, the prosecution has got marked Ex.P9 namely the study certificate/age certificate issued by the principal Government Pre-University College, Jayanagar, Bengaluru. In Ex.P9 the date of birth of the victim is mentioned as 26/6/1999. If the said date is taken into consideration, the victim was aged about 17 years 9 months as on the date of commission of offence.
10. Ex.P9 is marked through the Investigation OfficerPW.11. In his evidence, PW.11 has stated that on 9/6/2017 he obtained the document regarding date of birth of the victim. It is relevant to see that as per Ex.P9 issued by the principal of the college, the date of birth was mentioned as per the records maintained in the said college. The said records on the basis of which the certificate-Ex.P9 was issued has not been produced or marked in evidence. The principal who has issued Ex.P9 is also not examined by the prosecution. Except Ex.P9, the prosecution has not produced any other documents such as the date of birth certificate or SSLC Marks card to establish the exact age of the victim. Further, there is no medical examinatio
The burden of proof lies with the prosecution, and statutory presumptions do not relieve the prosecution from proving its case. Witness testimonies and evidence must be conclusive to establish guilt.
The presumption of guilt under Section 29 of the POCSO Act is not absolute and requires the prosecution to establish foundational facts before the burden shifts to the accused to rebut the presumptio....
Conviction under IPC 363, 376 and POCSO Section 4 upheld for enticing minor (under 18) by suicide threat and penetrative sexual assault; consent immaterial; victim's corroborated testimony and medica....
The main legal point established in the judgment is the critical appreciation of the victim's testimony in a sexual assault case, the burden of proof on the accused to establish the absence of culpab....
The prosecution must prove the age of the victim under the POCSO Act; absence of verifiable evidence led to the acquittal due to reliance on untrustworthy testimony.
The judgment reinforces the legal principle that the exploitation of a position of trust, particularly by a teacher towards a minor, constitutes a serious offense under both the IPC and the POCSO Act....
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