IMPORTANT POINT
The court upheld the conviction of the first accused for sexual offenses against a minor based on credible victim testimony, while acquitting the second accused due to insufficient evidence of knowledge.

JUDGMENT :

P.B. Suresh Kumar, J.

The appellant in Criminal Appeal No.160 of 2017 is the first accused and the appellant in Criminal Appeal No.1321 of 2016 is the second accused in S.C.No.203 of 2016 on the files of the Additional Sessions Court, Ernakulam (Special Court for the trial of cases relating to Atrocities and Sexual Violence against Women and Children). Among them, the appellant in Criminal Appeal No.160 of 2017 stands convicted for the offences punishable under Sections 375(a) read with Section 376(2)(i) and (n) and 375(b) read with Section 376(2)(i) of the Indian Penal Code (IPC). He also stands convicted for the offences punishable under Sections 3(a) and 3(b) read with Section 4, Section 5(l) read with Section 6, Section 9(l) read with Section 10 and Section 11(i) and 11(ii) read with Section 12 of the Protection of Children from Sexual Offences Act (POCSO Act). The appellant in Criminal Appeal No.1321 of 2016 stands convicted for offence punishable under Section 212 IPC. The appellants were also sentenced for the said offences except for the offences found to have been committed by the first accused under Sections 3(a) and 3(b) read with Section 4 and Section 5(l) read with Section 6 of the POCSO Act in the light of the provision contained in Section 42 of the POCSO Act. The appellants are aggrieved by their conviction and sentence in the said cases.

2. The accused are brothers. Among them, the first accused was the Vicar of a Roman Catholic Church during 2014 and 2015. The victim was a parishioner attached to the Church of which the first accused was the Vicar during the said period. The victim was studying in Eighth Standard then. 28.03.2015 was a Saturday preceding the Palm Sunday. The victim attended the morning prayers held in the Church on 28.03.2015 along with her mother. After the prayers, the victim had gone missing for sometime and on search, her mother found that the victim had been to the presbytery situated on the upper floor of the parish hall attached to the Church in the compound of the Church itself where the first accused was residing. The mother of the victim then went to the presbytery to enquire with the first accused as to the purpose for which the victim had been there. As the mother grew suspicious, she questioned the victim further and on such questioning, it was revealed to her by the victim that the victim was sexually assaulted by the first accused. Consequently, after informing the matter to the authorities of the Diocese including the Bishop, on 01.04.2015, the mother of the victim preferred a complaint to Puthenvelikkara Police alleging that the victim has been sexually assaulted by the first accused. A case was registered by Puthenvelikkara Police on 01.04.2015 based on the said complaint and after investigation, a final report has been filed in the case disclosing, among others, the offences found to have been committed by accused Nos.1 and 2 as referred to above.

3. In the final report, there were four other accused also. The accusation in the final report against the first accused was that when the victim used to go the Church for prayers, the first accused would invite her to the presbytery with the intention of assaulting and harassing her sexually and that he committed the same at the office room and also at the bedroom attached to the presbytery on various occasions during 2014 and 2015. It was also the accusation in the case that the first accused committed rape on the victim on several occasions between 12.01.2015 and 28.03.2015. The accusation against the fourth accused in the final report, the doctor who examined the victim before reporting the offences to the police, was that though the doctor had knowledge of the offences committed by the first accused, failed to report the same to the police.

4. The Special Court, after taking the final report into file, framed charges against the first accused for offences punishable under Sections 376(2)(i) and (n) of IPC as also Sectio