IMPORTANT POINT
Habitual offenders do not deserve any leniency in matter of sentence.

JUDGMENT

The sole accused in S.C. No.1131/2023 on the files of the Fast Track Special Court, Koyilandy, has filed this appeal, under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the conviction and sentence imposed by the Special Judge, against him as per the judgment dated 07.04.2025. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

2. Heard the learned counsel for the appellant and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the Special Court.

3. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’, hereafter.

4. The prosecution alleges commission of offences punishable under Section 363 of the Indian Penal Code [hereinafter referred as ‘IPC’ for short] and under Section 7 read with 8 of the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], by the accused. The allegation of the prosecution is that, at about 04.30 p.m. on 21.07.2023, while the victim (PW1) was returning from school on foot, the accused who came on a scooter from Elokkara side offered a lift and made the victim board on his scooter and on the way ahead, the accused grabbed penis of the victim over his pants.

5. After framing charge for the offences punishable under Section 363 of IPC as well as under Section 7 read with 8 of the POCSO Act, the Special Court recorded evidence and completed trial. During trial, PWs 1 to 11 were examined and Exts.P1 to P14 were marked on the side of the prosecution. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of the Code of Criminal Procedure [hereinafter referred as ‘Cr.P.C’ for short], he did not opt to adduce any defence evidence.

6. On appreciation of evidence, the Special Court found that the accused was guilty for the offences punishable under Section 363 of IPC as well as under Section 7 read with 8 of the POCSO Act. Accordingly, the accused was convicted for the said offences and sentenced as under:—

“1. The convict is sentenced to undergo Rigorous Imprisonment for a period of 2 years (Two years) and to pay a fine of Rs.5,000/- (Five Thousand only) u/s 363 of the Indian Penal Code and in default of payment of fine to undergo Rigorous Imprisonment for a further period of 1 month;

2. The convict is further sentenced to undergo Rigorous Imprisonment for a period of 3 years (Three years) and to pay a fine of Rs.10,000/- (Ten Thousand only) u/s 7 r/w 8 of the Protection of Children from Sexual Offences Act and in default of payment of fine to undergo Rigorous Imprisonment for a further period of 2 months;

3. The substantive sentences of imprisonment shall run concurrently;

4. The convict is allowed set off under section 428 CrPC from 12-09-2023 to 06-04-2025 (573 days). The period already undergone by him as an undertrial prisoner, from the substantive sentence of imprisonment;

5. Fine if paid shall be given to PW1, as compensation u/s 357(1)(b) of the Code of Criminal Procedure;

6. Issue committal warrant.”

7. While assailing the verdict impugned, the learned counsel for the accused submitted that, either in the FIS or in the statement under Section 164 of Cr.P.C. recorded as that of the victim, who got examined as PW1, the actual date of occurrence was not disclosed and as per Ext.P1 statement, PW1 given statement to the Police that the incident happened on a day in between 21st and 25th of July, 2023. Then, when the statement of PW1 under Section 164 of Cr.P.C. was recorded, the date was stated as in July, 2023. Thereafter, during examination of PW1, he stated that the incident was on 21.07.2023. Therefore, this anomaly would create doubt on the prosecution case. Thus, the benefit of doubt is to be adjudged in favour of the accused. The second contention raised by the learned counsel for the accused is that, the accused was not properly identified