The main legal point established in the judgment is the application of sec. 42 of the POCSO Act to determine the appropriate punishment for the accused, and the requirement of evidence for repeated sexual assault or aggravated penetrative sexual assault to sustain a conviction under sec. 6 and 8 of the POCSO Act.

JUDGMENT

1. This appeal is by the accused challenging his conviction in relation to o ffences punishable under sec. 376 IPC and Sec. 4, 6 and 8 of the Prevention of Children from Sexual Offences Act ('POCSO' for short), in Spl.Case .No .150/2017 on the file of Special, 2nd Addl. District and Sessions Judge, Chitradurga.

2. FIR was registered on 19.5 .2017 in regard to incident that took place in the intervening night of 17/18/5/2017. PW.1 is the daughter of PW.7 - Man junatha and PW.8 - Manjula. In the evening of 17 .5.2017, PW.1, 7 and 8 attended the marriage of their relative . By 9 .00 p .m., PW.1 had dinner and about 11.30 p .m., the accused asked her to come out as he wanted to speak to her. But she did not go . Around 12 O'clock in the night as she returned home feeling sleepy, she opened the door of her house, the accused who had also followed, came inside the house and asked her to bring a glass of drinking water. As she went inside to bring water, he bolted the door and then committed rape on her. When they were inside, PW.7 came and knocked at the door. PW.1 opened the door; PW.7 came inside and beat the accused seeing him inside the house. The accused ran away from that place . PW.1 went to the backyard of the house fearing that her father might beat her and spent time sitting near a bush till dawn.

3. At the conclusion of trial, analysing the evidence of 22 witnesses, and 26 documents as per Exs.P.1 to P.26, the trial court found the accused guilty of the offences aforesaid. The findings of the trial court are that evidence given by PWs.1, 2, 7 to 9 is very much important. PW.1 has given a clear account of the incident. Her testimony is corroborated by the evidence of PWs.2, 7, 8 and 9. The evidence given by doctors examined as PWs.13, 15 and 16 strengthens the prosecution case and therefore the prosecution has been able to prove its case beyond reasonable doubt.

4. Smt. Budrunnissa, learned counsel for the appellant, assailing the impugned judgment argued that the trial court has failed to notice unexplained delay in lodging FIR. The evidence of the material witnesses is not properly assessed . It has not noticed the fact that there is no proof with regard to actual age of PW.1. It has come in the evidence of PW.1 that she was in love with the accused and because the marriage did not take place, there was enmity between the two families. This was the reason for a false case being registered against the accused. The medical evidence does not support the prosecution case. The doctor has clearly given evidence that there were no signs of recent sexual intercourse. Ex.P.15, the FSL report is also against the prosecution. In this view there is no corroboration to the testimony of PW.1 . PW.7 and 8 are interested witnesses being parents. The trial court has failed to notice all these aspects and therefore the judgment o f the trial court needs to be set aside and the accused, acquitted.

5. The learned Government Pleader argued that Ex.P.13 is the age proof. PW.1 was born on 11/2/2002 and therefore on the date of incident her age was less than 16 years. PW.1 has clearly narrated the incident. She has not been assailed in the cross-examination. She also gave statement before the Magistrate under sec. 164 Cr.P.C. as per Ex.P.8. Sole testimony o f PW.1 itself is believable . PW.7 is the father of PW.1, he has clearly stated that when he returned home in the midnight, he saw the accused in half naked position and that the accused fled away from that place . PW.8 also testifies the same aspect. The evidence of PW .13, the doctor who examined PW.1 is very clear that there was possibility of vaginal penetration. Even though in the FSL report, it is mentioned that seminal stains were not detected in the clothes and the swabs of the girl, it does not mean that the incident had not taken place. This being the evidence on record, there are no grounds for allowing this appeal. The trial court has come to right conclusion to convict t