Point of law : Under the POCSO Act, the age of the victim having not been proved, the accused has to be acquitted of the charges under the POCSO Act. There cannot be a conviction also under Section 376(2) IPC for the same reason.

JUDGMENT :

Vinod Chandran, J.

When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children. In this case we have a 'poojari'/'komaram' (priest/oracle in a temple) taking the abandoned woman and the three children under his wing, only to repeatedly molest the elder girl child, that too in the presence of her siblings. We wonder which God would accept the obeisance and offerings of such a priest or make him a medium?

2. We have heard learned Counsel Sri. K.M.Firoz for the appellant/accused and Smt.Sheeba Thomas, learned Public Prosecutor for the State.

3. Sri.Firoz took us through the charge to point out that there is a misjoinder of charges. The Protection of Children from Sexual Offences Act, 2012 ['POCSO Act' for brevity] was brought into effect from 14.11.2012 and the incident on which the first charge is levelled is prior to the POCSO Act and requires a committal proceeding under the Cr.P.C. This is unlike the later allegation, which raises a charge under the POCSO Act, where the Special Court could take cognizance of it under Section 33 of the POCSO Act. It is also pointed out that clubbing of the charges has resulted in grave prejudice to the accused, since the POCSO Act by Sections 29 and 30 raises a presumption against the accused. The rigour of a defence under the POCSO Act, which casts a reverse burden on the accused, prejudices him insofar as the charge under the IPC with respect to the sole incident alleged prior to the POCSO Act. It is argued from the evidence of PW1, the prosecutrix and PWs.6 and 10, the two house owners, that there is no question of the offences being committed in the respective residential buildings as alleged, for reason of the inconsistent facts brought forth in the evidence of these witnesses. The deposition of PW1 does not specify the date and only speaks of having joined the accused after the final exams of the academic year 2012. Hence there could not have been such an incident on 16.02.2012, before the close of the academic year. PW6 also says that the accused had taken the house on rent in 2012 and the victim joined him after six months.

4. There is also no allegation of a rape, i.e., a penetrative sexual assault, having been committed in the second house, even as per the deposition of PW1. PW1's evidence is not believable and she is not a credible witness. She admitted that she falsely stated the names of her parents to the police when they were first picked up by the police. The inconsistencies in her evidence as to how the sexual assault was committed also require the evidence to be treated with abundant caution. The doctor has deposed in tune with the medical certificate, Ext.P1, that the examination was in 2012. The time shown in Ext.P1 is not clear and if it is 11.45 a.m, the very story of initiation of the crime would fall apart since PW15 is said to have been informed of the wandering woman and children at 4.15 p.m. The dress of the accused was seized and sent for medical examination; but no report has been produced nor was the dress brought in evidence, which requires this Court to take an adverse inference since the child was apprehended on the next day of the last alleged sexual act. There are glaring inconsistencies in the Section 164 statement of PW1 and that is relevant under Section 11 of the Evidence Act. Last but not the least the mother was not examined, despite her presence in Court at the time of trial.

5. The learned Prosecutor relied heavily on the evidence of PW1, the prosecutrix; fully corroborated by PW7. The medical evidence as available in Ext.P1 further corroborates the testimony of the prosecutrix. As against the anomaly of date and time, the learned Prosecutor points out the crime number shown in Ext.P1 and the time when the FIR was registered. The 164 statement of the victim and deposition of PW1 are not date specific and the allegation is of the assault having been committed on several da