IMPORTANT POINT
The court clarified that a magistrate's court retains jurisdiction to try offences under IPC Section 354 even after the establishment of a Children's Court, and prior testimonies can be admitted under Section 33 of the Evidence Act.

JUDGMENT :

C.S. SUDHA, J.

1. In this appeal filed under Section 374 Cr.P.C. the appellant who is the accused in S.C. No. 27/2012 on the file of the Court of Session, Kottayam, challenges the conviction entered and sentence passed against him for the offence punishable under Section 354 IPC.

2. The prosecution case is as follows:

CW2 was a nine year old girl studying in the 4th standard of St. Antony's LP School, Vellikkulam during the academic year 2007-2008. The accused was her class teacher. On 25/02/2008 at 03:00 p.m. inside the 4th standard class room and in the lean-to of the main school building, the accused outraged the modesty of CW2 by squeezing her breast, stomach and below the navel. Though a complaint was given to the Headmaster and Manager of the school, they failed to take any action. Hence PW2, the mother of CW2 gave Ext.P4 FIS dated 26/05/2008 to the police based on which PW6, the then S.I., Erattupetta registered crime no. 203/2008, Erattupetta police station, that is, Ext.P4(a) FIR alleging the commission of the offence punishable under Section 354 IPC. PW6 after completing the investigation submitted the charge sheet/final report before the jurisdictional magistrate.

3. The jurisdictional magistrate after taking cognizance and on appearance of the accused, and after completing the necessary formalities commenced the trial of case. CW1, the mother; CW2, the victim and CW3, the father were examined as PWs 1 to 3 respectively. By then the Children's Court as contemplated under Section 25 of the Commissions for Protection of Child Rights Act, 2005 (the Act) was notified. Hence the learned magistrate committed the case to the Sessions Court, which court made over the case to the Children's Court for trial and disposal. A charge under Section 354 IPC was framed, read over and explained to the accused to which he pleaded not guilty.

4. On behalf of the prosecution, PWs1 to 6 were examined and Exs.P1 to P9 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied those circumstances and maintained his innocence.

5. As the Children's Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C, he was asked to enter on his defence and adduce evidence in support thereof. DWs1 to 3 were examined on behalf of the accused. No documentary evidence was adduced by the accused.

6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 354 IPC and hence convicted and sentenced him to rigorous imprisonment for two years and to a fine of Rs. 10,000/- and in default, to rigorous imprisonment for six months. Aggrieved, the accused has come up in appeal.

7. The only point that arises for consideration in this appeal is whether the conviction entered and sentenced passed against the accused by the trial court are sustainable or not.

8. Heard both sides.

9. As stated earlier, the jurisdictional magistrate had commenced the trial of the case and three witnesses were examined as PWs 1 to 3 respectively. Thereafter, the magistrate taking note of Section 25 of the Act and in the light of the dictum of this Court in Abdul Aziz v. C.I. of Police, ILR 2012 (1) Ker. 74 : 2012 KHC 2235 committed the case to the Court of Session, Kottayam after complying with the necessary legal formalities. By the time de novo trial before the Children's Court commenced, CW2, the victim and CW3, the father were no more. Hence their testimony recorded before the jurisdictional magistrate were marked by the trial court overruling the objection raised by the accused as Exts.P5 and P6 invoking Section 33 of the Evidence Act. Relying on Exts.P5 and P6 as well as the testimony of the mother examined as PW2 before th