The judgment upheld the conviction under POCSO and IPC sections, establishing that anal penetration against a minor constitutes a serious offense, irrespective of references to more recent interpretations of the law under Section 377.

JUDGMENT

1. The accused/appellant is before this court challenging the judgment dated 06.12.2019 passed by the I Additional District and Sessions Judge and Special Judge at Haveri (for brevity 8the trial Court9) in Spl. SC/ST No.03/2017 under which the accused was convicted for the offences punishable under Section 377 of IPC and Sections, 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for brevity 8the POCSO Act).

2. The case of the prosecution is that on 25.10.2016 at about 10 a.m., PW-1 - complainant had sent her minor son to bring cow dung for the purpose of applying it in the house. When he had gone to the Tank Bund in Savanur, the accused is alleged to have dragged him to a place near a Canal which is situated next to the poultry farm of one Pathan, removed the dress of the minor victim and committed anal penetration with the knowledge that the minor victim belonged to scheduled caste. Thus, offences alleged to have been committed under Section 377 of IPC and Sections 4 , 6, 12 of the POCSO Act as also Sections 3(1)(i), 3(2)(Va) of SC/ST (Prevention of Atrocities) Act, 1989.

3. Upon investigation being completed, the Investigation Officer filed a chargesheet for the offences alleged. The trial Court framed charges, the accused denied the charges and claimed to be tried.

4. The prosecution examined 15 witnesses as PWs -1 to 15, got marked 21 exhibits as Ex.P.1 to Ex.P.21 as also three material objects as M.Os.1 to 3.

5. Upon evidence of the prosecution being completed, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied all the allegations made against him but did not lead any evidence.

6. After arguments being heard, the trial Court convicted the accused of the offences Section 377 of IPC and Sections 4 , 6, 12 of the POCSO Act but acquitted the accused of offences under Sections 3(1)(i), 3(2)(Va) of SC/ST (Prevention of Atrocities) Act, 1989, and sentenced the accused for the offences convicted.

7. Shri R.H.Angadi, learned counsel for the appellant/accused submits that

7.1. The trial Court has not appreciated the evidence properly, if the same had been appreciated properly, there could have been no order of conviction or sentence,

7.2. The identity of the accused is in dispute inasmuch as the victim has only mentioned the name of Munir Golewale and that the victim has not mentioned the name of the accused. It is the said Munir Golewale who ought to have been tried, instead the accused has been tried resulting in grave injustice being caused to the accused.

7.3. There is no evidence on record to indicate that the accused has committed any offence much less the ones alleged against him.

7.4. There is no test identification parade which has been carried out and the question of implicating the accused in the crime would not arise at all without a test identification parade. The victim not having identified the accused, no investigation could have been carried out and/or the charge sheet laid against the accused.

7.5. There is no medical evidence as regards any offence committed under Section 377 of IPC and the medical evidence does not indicate or establish any penetrative sexual assault.

7.6. That the Apex Court has held the provisions of Section 377 IPC to be unconstitutional in the case of NAVTESH SINGH JOHAR AND OTHERS VS. UNION OF INDIA reported in (2018) 10 SCC 1 and as such upon such judgment having been passed by the Apex Court, no offence can be said to have occurred under nor any prosecution be initiated under that provision.

7.7. It is in the above background, he submits that the order of conviction and sentence is required to be set as