Point of Law: Section 7 of POCSO Act reads as whoever, with sexual intent touches vagina, penis, anus or breast of the child with sexual intent without penetration is said to commit sexual assault.

JUDGMENT :

T.G. SHIVASHANKARE GOWDA, J.

The State has challenged the judgment and order of acquittal dated 01.01.2019 passed in Special Case No.110/2016 on the file of the I Additional District and Sessions Judge, Ballari (‘Trial Court’ for short), acquitting the accused for the offences punishable under Section 376 of IPC, Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and Section 3(1)(xii), 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

2. For the sake of convenience, the parties shall be referred to as per their status in the Trial Court.

3. Briefly stated the facts of the prosecution case are that, PW-1 and PW-5 are the husband and wife and the residents of Sandur Taluk, Ballari District. PW-4 is the victim and daughter of PWs-1 and 5. They belong to Scheduled Caste. The victim is a minor aged 11 years studying in 5th standard. Accused is the neighbour of PWs-1 and 5. On 26.06.2016 at 10.00 a.m., the victim was playing near the water tank situated near their house. The accused offered chocolate and took the victim to his house, removed her clothes, so also his clothes and committed sexual assault against her. The accused knowing fully well that the victim belongs to Scheduled Caste, did commit sexual assault against her, who is a minor. The victim since raised hue and cry, the accused left her free and she went home. On the very night at about 9.00 p.m. she complained to her mother that she is having some discomfort in her genital. Her mother pacified her that she might have been suffering from excess of heat and it will be rectified on its own. On 27.06.2016, the victim went to the school, returned with mild Fever and she was tired. On 28.06.2016, inspite of discomfort, the victim went to school. On that day, at about 1.00 p.m. PW-5/father of victim had gone to the school to pay fees and noticed that the victim was suffering from Fever. Hence, he returned home and took his wife to school. By informing the teacher, they took the victim to Akshaya Clinic at Sandur. On 29.06.2016 at about 8.30 p.m., the victim again complained of some irritation in her genital. For this reason, the parents took the victim to PW-7/Dr.Chandrappa, who resides nearby, for treatment. On examination, the victim revealed to the said Doctor about the incident that had taken place on 26.06.2016 in the house of the accused at his hands. Hence, the Doctor revealed the said fact to the parents of the victim. On the very day, PW-1 visited the Police Station and set the law into motion by presenting the complaint/Ex.P1 to the Police in Crime No.118/2016. The investigation was held and charge sheet was filed. During investigation, on 02.07.2016 the accused was arrested and subjected to judicial custody till the judgment of acquittal was pronounced by the trial court.

4. On receipt of the final report, a case has been registered in Special Case No.110/2016 by the Trial Court. Before the Trial Court, accused pleaded not guilty of the charges. The prosecution examined 17 witnesses as PWs1 to 17, relied on 13 documents as Exs.P1 to P13 and 18 material objects were marked as M.Os.1 to 18 in order to establish its case. The learned Special Judge after completion of the trial, questioned the accused under Section 313 of Cr.P.C. and after considering the arguments addressed and the material placed before it, the trial court came to the conclusion that the prosecution has failed to prove its case and acquitted the accused of all the charges. Aggrieved by the order of acquittal, the State is before this court.

5. The victim as well as the accused were served with notice of this appeal. They remained absent. Hence, Amicus Curiae were appointed for both of them.

6. We have heard the arguments of Sri V.M.Banakar, learned Addl. SPP for the State and Smt.Anuradha Deshpande, learned Amicus Curiae for PW-1/complainant and Sri.Girish Yadwad, learned Amicus Curiae for the respondent/acc