The conviction under aggravated sexual assault was set aside due to insufficient medical evidence; however, the appellant was convicted for lesser charges based on the established assault.

JUDGMENT :

M.G. UMA, J.

The appellant being accused in Special Case (POCSO) No.49/2021, on the file of the learned Additional Sessions Judge, Fast Track Special Court-I, Vijayapura, (hereinafter referred to as ‘Trial Court’) is impugning the judgment of conviction dated 06.10.2023 and order of sentence dated 12.10.2023, convicting him for the offence punishable under Sections 341 and 376-AB of IPC and Section 6 (1) of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and sentencing to undergo rigorous imprisonment for the period of 20 (twenty) years and to pay fine of Rs.20,000/- for the offence punishable under Section 6 (1) of POCSO Act; sentencing to undergo imprisonment for 15 (fifteen) days and to pay a fine of Rs.500/- for the offence punishable under Section 341 of IPC with default sentence.

2. Facts of the case in brief are that, PW.2-being the mother of the victim girl lodged the first information with Women Police Station, Vijayapura, alleging commission of the offences punishable under Sections 376-AB, 506 of IPC and Sections 5 (m) and 6 of the POCSO Act. On the basis of the same, the FIR came to be registered and investigation was undertaken. After completion of the investigation, final report came to be filed for the offences punishable under Sections 341 , 376- AB and 506 of IPC and Sections 5 (m) and 6 of the POCSO Act. The Trial Court took cognizance of the above said offence and summoned the accused. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried.

3. To prove the guilt of the accused, the prosecution examined PWs.1 to 19, got marked Exs.P1 to P21 in support of its contention. The accused has denied all the incriminating materials available on record in his statement under Section 313 of Cr.P.C, examined DW.1 and got marked Ex.D1 evidence in support of his defence.

4. After taking into consideration all these materials on record, the Trial Court came to the conclusion that, the prosecution is successful in proving the guilt of accused beyond reasonable doubt and accordingly convicted the accused and sentenced as stated above. Being aggrieved by the same, the accused is before this Court.

5. Heard Sri. Vishal Pratap Singh, learned counsel for the appellant and Sri. Gopal Krishna B.Yadav, learned High Court Government Pleader for the respondent No.1- State. Perused the materials including the Trial Court records.

6. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

“Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

My answer to the above point is 'Partly in the Affirmative' for the following:

REASONS

7. PW.2-the informant has lodged the first information with the Women Police Station, Vijayapura against the accused. On 14.10.2021 at 1.30 p.m., while she was in District Hospital, she lodged a complaint by stating that the victim girl is her daughter who was studying in 4^th standard. On 13.10.2021 at about 1.30 p.m., her daughter was playing infront of the house. At about 5.00 p.m. she came home weeping. When the informant enquired the reason, she informed that she had gone to the house of her friend. The accused being the grand-father of the friend of the victim had taken her on the terrace and committed penetrative sexual assault. She complained about pain and bleeding in her vagina. The victim girl also stated that, she was intimidated by the accused