The prosecution failed to prove the charges against the accused beyond reasonable doubt due to procedural lapses, lack of identification, and unexplained delay in filing the FIR.

JUDGMENT :

K.V. JAYAKUMAR, J.

1. This Criminal Appeal is preferred against the judgment of the Fast Track Special Court, Perumbavoor in S.C. No. 284/2020. The offences alleged against the appellant/accused are under Section 376(3) of the Indian Penal Code and Section 3(a) r/w 4 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred as ‘the POCSO Act’].

2. The learned Special Judge convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.25,000/- for the offence punishable under Section 3(a) r/w 4(2) of the POCSO Act. The Court further directed that, if the fine amount is realized, it shall be paid to the victim as compensation under Section 357(1)(b) of Cr.P.C. No separate sentence was awarded to the accused under Section 376(3) of the Indian Penal Code . Impugning the judgment of the Special Court, Perumbavoor, the sole accused has preferred this Criminal Appeal.

3. The allegation in this matter is that, a 13 year old child was subjected to penetrative sexual assault and rape by a migrant worker residing near the house of the victim. The prosecution case is that, on 23.10.2019, at about 2 p.m. while the victim girl was washing clothes in a stream near her house, the appellant/accused took her to a nearby abandoned and dilapidated building by catching hold of her hands and committed rape on her and thereby, committed the aforementioned offences.

4. PW1, the victim, lodged Ext.P1 FIS on 07.11.2019 to PW9, a women police officer of Vazhakkulam Police Station. On the basis of Ext.P1 FIS, Ext.P11 FIR was registered by PW12, the Sub Inspector of Police. PW14 conducted the investigation. The victim was subjected to medical examination and her statement was caused to be recorded under Section 164 of Cr.PC. The accused was arrested on 08.11.2019. After completion of the investigation, final report was filed before the Special Court under the POCSO Act, Ernakulam. Thereafter, the matter was transferred to the Special Court, Perumbavoor for trial and disposal.

5. The trial court framed charge for the offences punishable under Section 376(3) of the IPC and Section 3(a) r/w 4 of the POCSO Act. The said charge was read over and explained to the accused, to which he pleaded not guilty. On the side of prosecution, PWs.1 to 16 were examined, Exts.P1 to P15 were marked. MOs.1 and 2 series were identified and marked. After closing the prosecution evidence, the accused was examined under Section 313(1)(b) of Cr.PC. He denied all the incriminating circumstances levelled against him.

6. No defence evidence was adduced. The learned Special Judge, after a full fledged trial, found the accused guilty, convicted, and sentenced him as aforesaid.

7. The learned Public Prosecutor supported the judgment of the trial court. The learned Public Prosecutor submitted that the impugned judgment is legally sustainable and no interference is warranted.

8. On the other hand, Adv. Saipooja, the learned counsel for the appellant, submitted that the impugned judgment of the Fast Track Special Court, Perumbavoor is unsustainable. The prosecution has miserably failed to allege and prove the charge against the appellant/accused beyond reasonable doubt. The trial court convicted the appellant on the basis of surmises and conjectures, presumptions and assumptions. She submitted that the penal provisions are to be interpreted strictly within the four corners of the Statute. Suspicion, however strong it may be, cannot be considered as a substitute for proof.

9. Adv. Saipooja submitted that the prosecution has miserably failed to aver and prove that the accused has committed rape on the victim girl. The identity of the accused in this case is doubtful and therefore, the entire prosecution story is to be discarded on that ground alone.

10. Even according to the material witnesses, the alleged sexual abuse was done by a migrant labourer, speaking Hindi (Hindikkaran). No witness has mentioned the name of the accused either to