IMPORTANT POINT
Prosecution under POCSO Act cannot be sustained where prosecution has failed to prove age of victim girl that she was minor at the time of alleged incident.

Judgment

Rajesh Rai K., J.—This appeal filed by the convicted accused directed against the Judgment and order of sentence passed in Spl. S.C. Case No.182/2017 dated 07.05.2020 passed by the I Additional District and Sessions Judge and Special Judge, Haveri, wherein, the learned Sessions Judge has convicted the accused No.1/appellant for the offences punishable under Sections 448, 450, 376 (2) (i) & (n) of IPC and Sections 4, 6, 8 and 12 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and sentenced him to undergo imprisonment for 10 years and to pay a fine of Rs.5,000/- and in default of payment of fine he shall undergo simple imprisonment for 01 month for the offence punishable under Section 450 of IPC, sentenced to imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine he shall undergo simple imprisonment for a period of 06 months for the offences punishable under Section 6 of POCSO Act and also under Section 376 (2)(i) and 2(n) of IPC and Section 4 of POCSO Act together with Section 6 of POCSO Act. The appellant is also sentenced to undergo imprisonment for a period of 05 years and to pay fine of Rs.2,000/- and in default of payment of fine he is subjected to undergo simple imprisonment for a period of 10 days for the offence punishable under Section 8 of POCSO Act and further he is also sentenced to undergo imprisonment for a period of 03 years and to pay fine of Rs.2,000/- and in default of payment of fine he shall undergo simple imprisonment for a period of 10 days for the offence punishable under Section 12 of POCSO Act. Learned sessions judge also has order that all the sentences shall run concurrently with the life sentence.

2. The apothegm addressed by the prosecution are that, the victim (P.W.1) in this case being a minor and resident of Kaudikallapur village, was staying in Girls’ Pre- Metric Hostel situated in Haveri and used to visit her house frequently. It is in this background, the appellant/accused No.1 used to visit her house oftenly and was talking to her on the pretext that, he had vowed to marry her and on that context he used to behave with her cordially and further, it is the case of the prosecution that, accused No.2, in criminal conspiracy with the accused No.1, involved the victim to indulge in a telephonic conversation with the accused No.1 through her cell phone in the absence of her family members at her house and on 20.11.2016 at about 12.00 p.m., when the victim was alone in her house, the appellant/accused No.1 deceitfully barged into her house with an intention to commit offence. Further with the knowledge that, the victim was a minor, accused No.1/appellant committed sexual assault on the victim. Subsequently, it was also the case of the prosecution that the appellant used to go to the house of victim by knowing about the fact that victim’s being alone in the house, from the accused No.2. He was committing frequent sexual assaults on the victim and thereafter used to threaten her with dire consequences as to she informing the same to any person. On the date of last alleged incident i.e., on 17.03.2017 at about 2.30 p.m., when the victim was alone in her house, the accused came to her house and committed forceful coitus as against the will of the victim. With the above background, a complaint at Ex.P.1 came to be lodged by the victim-girl before the respondent-police on 03.05.2017. Based on the said complaint, PW.8, the then PSI of the respondent-police, registered the FIR against the accused for the aforesaid offences as per Ex.P.19. Subsequently, P.W.9 the CPI who conducted the investigation by drawing spot mahazar and also recorded the statement of the victim-girl under Section 164 of Cr.P.C and thereafter, he arrested the accused and based on the voluntary statement of the accused, recovery is said to have been done at the instance of the accused and after obtaining necessary documents from the concerned authorities, P.W.10 la