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2024 Supreme(Online)(KER) 55585
HIGH COURT OF KERALA
C.S. Sudha, J
KOYA – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A NO. 189 OF 2016
For the Appellants/Petitioners: SRI.M.J.SANTHOSH
For the Respondents: SMT.SHEEBA THOMAS
The conviction for aggravated sexual assault under the PoCSO Act was upheld based on credible witness testimony, establishing the victim's age despite the absence of documentary evidence.
Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Section 10 - Criminal Procedure Code, 1973 - Section 374(2) - Conviction for aggravated sexual assault against a minor - The accused was found guilty of sexually assaulting a 7-year-old girl by taking her into his house and closing the door, leading to the conclusion that the act was intentional and constituted aggravated sexual assault as per Section 9(m) of the PoCSO Act. The trial court's decision was upheld despite minor discrepancies in witness testimonies, as the core of the prosecution's case remained intact. (Paras 2, 10, 12, 17, and 18)
(B) Age of Victim - The prosecution's duty to prove the age of the victim was discussed, with the court noting that the victim's age was established through her testimony, which was not challenged by the defense. The court reaffirmed that the absence of documentary evidence does not negate the victim's age if credible testimony exists. (Paras 11 and 11.1)
(C) Credibility of Witnesses - The court addressed the credibility of the victim and other witnesses, concluding that their testimonies were consistent and reliable, and any minor discrepancies did not undermine the overall prosecution case. (Paras 12 and 15)
(D) Result - The appeal was allowed to the extent of modifying the conviction to include an additional charge under Section 354 IPC, with a sentence of one year imprisonment. (
Result: Appeal allowed in part.)
| Table of Content |
|---|
| 1. conviction under pocso act for aggravated sexual assault. (Para 1 , 2 , 3 , 4 , 6) |
| 2. minor discrepancies do not undermine core prosecution case. (Para 12 , 13 , 14 , 15) |
| 3. intent established through actions; guilty of section 354 ipc. (Para 16 , 17 , 18) |
JUDGMENT
In this appeal filed under Section 374 (2) Cr.P.C., the appellant who is the accused in SC.No.474 of 2014 on the file of the Court of Session, Ernakulam, challenges the conviction entered and sentence passed against him for the offence punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 ( PoCSO Act).
2. The prosecution case is that the accused with the intention of sexually assaulting PW1 aged 7 years, daughter of PW2, on 30/04/2013 at 12:45 p.m., took the child inside his house, closed the door and sexually assaulted the child. As per the final report/charge sheet, the accused is alleged to have committed aggravated sexual assault as contemplated under Section 9 (m) punishable under Section 10 of the PoCSO Act.
3. Crime no.1112/2013 of Palluruthy, Cusba, Kochi police station, that is, Ext.P5 FIR was registered by PW10, the Sub Inspector of Police of the said station based on Ext.P1 FIS given by PW2. PW10 conducted the investigation and on completion of the investigation submitted the charge sheet before the designated court for trial of cases relating to Atrocities and Sexual Violence against Women and Children, Ernakulam.
4. The trial court on 19/08/2015 framed a charge under Section 9 (m) read with Section 10 of the PoCSO Act, which was read over and explained to the accused to which he pleaded not guilty. On behalf of the prosecution, PW1 to PW10 were examined and Exts.P1 to P10 were got 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 all those circumstances and maintained his innocence.
5. As the trial court did not find it a fit way 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.
6. 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 having committed the offence of aggravated sexual assault as contemplated under Section 9 (m) of the PoCSO Act and hence he has been sentenced to rigorous imprisonment for five years and to a fine of ₹5,000/- and in default to undergo rigorous imprisonment for one month under Section 10 of the PoCSO Act. Set off under Section 428 Cr.P.C. has been allowed. The fine amount, if realised, has been directed to be given to PW1, the victim, as compensation under Section 357(1) Cr.P.C. Aggrieved, the accused has come up in appeal.
7. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court are sustainable or not.
8. Heard both sides.
9. I make a brief reference to the evidence relied on by the prosecution in support of the case. PW1, the victim girl deposed that the incident took place on 30/04/2013, while she was studying in the IInd standard. On the said day, between 11:00 a.m. and 01:00 p.m., she along with PW3, her brother, were riding their bicycle on the road. While so, the bicycle chain got dislodged. They saw the accused, their neighbour, from whom they had purchased the bicycle and hence requested the accused to repair the cycle. The accused readily agreed to the same and took them to his house situated nearby. PW1 entered the house at which time PW3, her brother, stood outside. When PW1 entered the house, the accused closed the door. He then caught her and pulled her by her hand and hair. Thereafter, he lifted her dress. PW1 rebuked
