The court established that lack of medical evidence to support allegations necessitated a reduction in charge, affirming the conviction under lesser offences linked to child protection.

JUDGMENT :

M.G. UMA, J.

1. The appellant being the accused in Special Case (POCSO) No.30/2021, on the file of Additional District and Sessions Judge and FTSC-I (POCSO), Kalaburagi (for short ‘Trial Court’), is impugning the judgment of conviction dated 23.03.2023 and order of sentence dated 28.03.2023, convicting him for the offences punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO’) and under Section 366A of the Indian Penal Code, 1860 (for short ‘ IPC ’) and sentencing him:

(i) To undergo rigorous imprisonment for a period of 20 years for the offence punishable under Section 6 of the POCSO Act and to pay fine of Rs.20,000/-.

(ii) To undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5,000/- for the offence punishable under Section 366A of IPC with default sentences. The Trial Court has awarded Rs.7,00,000/- as compensation to the victim girl – PW.1.

2. The case of the prosecution in brief is that, on 15.03.2021 at 9:00 a.m., when PW.1, the minor girl aged five years, was playing in front of the newly constructed Dr.B.R.Ambedkar Hostel, situated at Rajapur Road, Kalaburagi, the accused procured her with an intention to commit rape and committed aggravated penetrative sexual assault. Thereby committed the offence punishable and under Sections 366A and 376(3) of IPC and under Sections 4 and 6 of the POCSO Act.

3. On registration of the FIR, on the basis of the first information lodged by PW.2, who is the mother of the victim girl, the investigation was undertaken and charge sheet came to be filed. The learned Magistrate took cognizance of the offences and registered the special case. The accused appeared before the Trial Court and pleaded not guilty and claimed to be tried.

4. The prosecution to prove the guilt of the accused, examined PW.1 to PW.16 and got marked Exs.P1 to P24 in support of its contention. The accused has denied all the incriminatory materials available on record, but has not led any evidence in support of his defence. The Trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond all reasonable doubts for the offences punishable under Sections 366A and 376(3) of IPC and under Sections 4 and 6 of the POCSO Act. Accordingly, he was convicted and sentenced as stated above. Being aggrieved by the same, the appellant/accused is before this Court.

5. Heard learned counsel Sri Nandkishore Boob appearing for the appellant/accused and Sri Gopalkrishna B. Yadav, learned High Court Government Pleader for respondent No.1 - State. Perused the materials on record, including the Trial Court records.

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

"Whether the judgment of conviction and order of sentence passed by the Trial Court suffers from infirmities and calls for interference by this Court?"

My answer to the above point is ‘Partly in the Affirmative’, for the following:

REASONS

7. It is the contention of the prosecution that PW.1 – victim girl is aged five years, who is the daughter of the informant - PW.2. When the victim girl was playing in front of Dr.B.R.Ambedkar Hostel at Rajapur Road, Kalaburagi, the accused had kidnapped the victim girl with an intention to commit sexual act and he has committed aggravated penetrative sexual assault on her.

8. To prove this contention, the victim is examined as PW.1. This witness being child, aged five years, has deposed before the Court in a manner stating th