IMPORTANT POINT
The court upheld the conviction for sexual assault under the PoCSO Act and SC/ST Act, affirming that the evidence was sufficient and the delay in reporting was adequately explained.

JUDGMENT :

(C.S. SUDHA, J.)

In this jail appeal filed under Section 383 Cr.P.C., the appellant, the sole accused, in S.C.No.319/2015 on the file of the Special Court for Trial of Cases Relating to Atrocities and Sexual Violence Towards Women and Children, Kozhikode, challenges the conviction entered and sentence passed against him for the offences punishable under Section 9(m) read with Section 10 of the Protection of Children from Sexual Offences Act, 2013 (the PoCSO Act) and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the SC/ST Act).

2. The prosecution case is that on 19/01/2015 at 16:30 hours, while PW2, a minor girl aged 8 years, was on her way to the house of PW3, for giving sweets to the daughter of the latter, the accused lifted her and sexually assaulted her by touching her private parts by inserting his fingers into her inner-wear from either side, that is, from the back as well as front, and thereafter pasted a sticky fluid on her leg. The accused sexually assaulted PW2 knowing fully well that she was a member of the Scheduled Caste community. Thus as per the final report, the accused is alleged to have committed the offences punishable under the aforementioned Sections.

3. Crime no.32/2015, Thamarassery police station, that is Ext.P10 FIR, was registered by PW12, Sub Inspector, on the basis of Ext.P1 FIS of PW1. PW14, Dy.S.P., Thamarassery, conducted the investigation and on completion of investigation, submitted the final report/charge sheet before the court.

4. On appearance of the accused before the trial court, a charge under Section 9(m) read with Section 10 of the PoCSO Act and Section 3(1)(xi) of the SC/ST Act was framed, read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PWs.1 to 14 were examined and Exts.P1 to P15 were 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.

6. As the trial 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. No oral or documentary evidence was adduced on behalf of the accused.

7. 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 offences punishable under Section 9(m) read with Section 10 of the PoCSO Act and Section 3(1)(xi) of the SC/ST Act. He has been sentenced to simple imprisonment for five years and to a fine of Rs.50,000/- and in default to simple imprisonment for two years for the offence punishable under Section 9(m) read with Section 10 of the PoCSO Act, and to simple imprisonment for two years and to a fine of Rs.5,000/- and in default to simple imprisonment for three months for the offence punishable under Section 3(1)(xi) of the SC/ST Act. The substantive sentences of imprisonment have been directed to run concurrently. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused has come up in appeal.

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

9. Heard both sides.

10. It was submitted by the learned counsel for the accused/appellant relying on the dictum in Asharfi v. State of Uttar Pradesh, (2018)1 SCC 742 : AIR 2017 SC 5819 that the trial court committed a mistake in convicting and sentencing the accused as the offence under Section 3(2)(v) of the SC/ST Act is not made out. Hence on the said ground alone, the accused is entitled to be acquitted, goes the argument.

11. The incident in this case took place on 19/01/2015. Asharfi (Supra) was a case