JUDGMENT

The Judgment and Order dated 23.01.2019 passed in

Spl.CC No.257/2016 by the Child Friendly Court, Bengaluru Urban District, convicting and sentencing the accused for the offence punishable under Sections 4 and 6 of POCSO Act, 2012 and Section 376 of IPC is assailed in this appeal.

2. In brief, the case of the prosecution is that the accused was working in Nayanadahalli Anche, Gangodahalli, Ajijshet Industrial Town, 1st Cross, No.135, MAH Plastic Factory, wherein the victim girl aged 15 years was also working. When she was changing her dress the accused captured her nude pictures in his mobile phone and then started threatening that he will upload the said pictures in the internet, if she did not obey his words. On 24.02.2016, the accused induced her to come to the factory and committed aggravated penetrative sexual assault on her repeatedly, as a result of which she conceived. Further, he destroyed the memory card and sim card of his mobile phone which contained the nude pictures of the victim.

3. Charges were framed against the accused for the offences punishable under Section 376, 201 IPC, Section 67 of IT Act and Sections 3(a), 4, 5 (l) r/w Section

6 of POCSO Act, 2012.

4. In order to bring home the guilt of the accused, the prosecution in all examined 21 witnesses and got marked 28 documents and MOs.1 and 2.

5. The learned Sessions Judge while convicting the accused, observed that in the first part of her evidence, victim has not denied the incident, but she has only stated that she did not remember what the accused did to her. She has admitted the statement given to the police at NIMHANS Hospital as per Ex.P1. PWs.6 and 18 were present throughout while her statement was recorded by the police. PW18-lady doctor has given the complete history as unfolded by the victim, which corroborates with Exs.P1 and P3. The learned Sessions Judge has also relied on the statement of the victim recorded under Section 164 of Cr.P.C. and placed reliance on the scientific examination report done by PW21, marked as Ex.P28 to come to a conclusion that the accused was the biological father and the victim girl was the biological mother of the foetus that was terminated. The learned Sessions Judge has found the accused guilty of the offences punishable under Sections 4 and 6 of the POCSO Act and Section 376 of IPC, however, found insufficient evidence insofar as Section 67 of the I.T. Act and Section 201 IPC and acquitted him of the said offence.

6. A perusal of the evidence of the victim, examined as PW1 shows that she has denied the prosecution case regarding aggravated Penetrative sexual assault committed on her by the accused. She has stated that she did not know what was written in the complaint, marked as Ex.P1. She has not corroborated the statement recorded by the learned Magistrate under Section 164 Cr.P.C. Hence, she was treated hostile by the prosecution. In the cross-examination conducted by the public prosecutor she has denied that on 22.02.2016 when she was working in the factory the accused called her and showed the pictures of her changing her dress etc. and then threatened her and committed aggravated penetrative sexual assault. Her statement recorded under Section 164 of Cr.P.C is not a substantial piece of evidence. PWs.2 and 3 namely the mother and the sister of PW1 have also not supported the case of the prosecution and they have been treated hostile. Nothing is elicited from their evidence to establish the charges levelled against the accused. In view of the hostility of the said witnesses, the prosecution case rests on the medical evidence.

7. It is the case of the prosecution that on account of the aggravated penetrative sexual assault committed by the accused, the victim became pregnant and the foetus was terminated. PW15, medical officer working at K.C.General Hospital, Malleswaram, Bengaluru, has deposed that on 08.04.2016 at 12.20 a.m., the victim girl was referred from casualty to their hospital for medical termin