Conviction for serious sexual offences requires substantial evidence, which must clearly establish the accused's actions meet the legal definitions; lesser offences can be considered if analysis permits.

JUDGMENT :

SHIVASHANKAR AMARANNAVAR, J.

1. This appeal is filed by the sole accused praying to set aside the judgment of conviction and order on sentence dated 04.05.2019 passed in Spl.C. No. 201/2018 by the VI Additional District and Special Judge, Mysuru, whereunder this appellant - accused has been convicted for offence under Section 376(2)(l) read with Section 5 11 of IPC and Section 5 (k) read with Section 18 of the POCSO Act and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.30,000/- for offence under Section 5 (k) read with Section 18 of the POCSO Act and no separate sentence has been passed for offence under Section 376(2)(l) read with Section 5 11 of IPC in view of Section 42 of the POCSO Act.

2. Factual matrix of the case is, that P.W.1 – uncle of the victim girl has filed first information stating that on 24.01.2018 when he returned to house, he heard the babbling of his brother’s disabled daughter – victim girl from the backyard of the house. He went there and found that appellant - accused was holding the victim girl from back side and was making attempt to commit sexual act on her. He scolded the appellant - accused and rescued the victim. The victim girl is disabled, dumb and dullard and is not in a position to speak and express any acts. Said complaint filed by P.W.1 came to be registered in crime No. 5/2018 of Heggadadevana Kote Police Station for the aforesaid offences. After investigation, charge sheet has been filed and charge has been framed against the appellant - accused. The prosecution, in order to prove the charge, has examined 5 witnesses as P.W.1 to P.W.5 and got marked Ex.P.1 to Ex.P.15 and M.O.1 and M.O.2. Statement of the appellant - accused came to be recorded under Section 313 of Cr.P.C. The trial Court, after hearing arguments on both sides, formulated points for consideration and after appreciating evidence on record has convicted the appellant - accused for the aforesaid offences. Said judgment of conviction and order on sentence has been challenged by the appellant - accused in this appeal.

3. Heard learned counsel for appellant - accused and learned HCGP for respondent – State.

4. Learned counsel for appellant - accused would contend that the evidence on record is not sufficient to convict the appellant - accused for offence under Section 5 (k) read with Section 18 of POCSO Act and 376(2)(l) read with Section 5 11 of IPC. The alleged recording of the act of appellant - accused by P.W.1 is not in his mobile and copying the said video clip in a CD by P.W.3 is not confronted to P.W.1 with the said M.O.1 – mobile and M.O.2 – CD. There is no certificate issued as required under Section 65-B of the EVIDENCE ACT by P.W.3 who is stated to have transferred the video clipping from the mobile (M.O.1) to the CD (M.O.2) and certificate Ex.P.7 – stated to be under Section 65-B of the EVIDENCE ACT does not comply with the provisions of Section 65-B of the EVIDENCE ACT . The appellant - accused has not been examined to ascertain whether he is having the capacity for sexual intercourse. The Doctor who examined the victim girl, i.e., P.W.5 in report – Ex.P.9 has noted that hymen of the victim girl is intact and there is no evidence suggestive of sexual intercourse. P.W.3 who is stated to have watched the video and transferred the video to CD has identified the victim girl who is not known to her. The Doctor who gave age estimation as per Ex.P.8 has not been examined. P.W.1 who has filed complaint has not stated about he recording the alleged act in his mobile phone in the complaint. Considering the evidence of P.W.1 and on watchin