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2021 Supreme(Online)(KER) 12894
HIGH COURT OF KERALA
R. NARAYANA PISHARADI, J
MUHAMMADALI
– Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 74 2019
The legal distinction of sexual assault under the POCSO Act highlights the significance of intent and the age of the victim in determining aggravated sexual assault.
Headnote:
POCSO - Sexual Assault - Protection of Children from Sexual Offences Act - Sections 9(i), 9(m), 10 - The court affirmed the conviction for aggravated sexual assault on a minor by clarifying the definitions and implications of sections related to sexual offenses against children, while addressing evidential concerns.
Fact of the Case:
The appellant was accused of sexually assaulting a five-year-old girl. The incident occurred when the victim was enticed into his house, where the accused allegedly removed her panties and touched her vagina.
Finding of the Court:
The trial court found the appellant guilty of aggravated sexual assault under Sections 9(m) and 10 of the Act, confirming the act constituted sexual assault despite inconsistencies in evidentiary details.
Issues: Whether the delay in reporting the incident impacted the prosecution's case and if the evidence presented was sufficient to substantiate the charges of sexual assault.
Ratio Decidendi: Delay in reporting does not inherently undermine a sexual assault case, and the subjective evaluation of the victim's testimony, amidst corroborating evidence, can establish the accused's guilt under the law.
Final Decision: The appeal is partly allowed; the conviction under Section 9(i) is set aside, but the conviction under Section 9(m) is confirmed with a modified sentence.
J U D G M E N T
The appellant is the sole accused in the case S.C.No.
458/2013 on the file of the Special Court for the trial of offences under the POCSO Act at Thalassery.
2. The appellant/accused challenges the judgment of the trial court in the above case, convicting and sentencing him for the offences under Sections 9 (i) and 9(m) read with 10 of the Protection of Children from Sexual Offences Act , 2012 (for short 'the Act').
3. The prosecution case, in short, is as follows: The victim was a girl aged only five years at the time of the occurrence. On 11.01.2013, after reaching home from the school, she went to the house of the accused to play with his daughter. Then, between 15:30 and 18:30 hours, the accused induced the victim girl and brought her inside his house on promising that he would give her ice cream. The accused then removed her panties and put his finger into her vagina and thus committed sexual assault on her.
4. PW1, the grandmother of the victim girl, gave Ext.P1 statement to the police on 16.01.2013 with regard to the incident. On the basis of that statement, Crime No.36/2013 of the Pazhayangadi Police Station was registered against the accused for the offences under Section 377 of the Indian Penal Code and Section 4 of the Act.
5. The victim girl was taken to the Medical College Hospital at Pariyaram on 16.01.2013. PW6 doctor examined her and issued Ext.P6 certificate.
6. After completing the investigation of the case, charge-
sheet was filed against the accused for the offences punishable under Section 377 of the Indian Penal Code and also under Section 3 read with 4 of the Act.
7. The trial court framed charge against the accused for the offences mentioned above. He pleaded not guilty and claimed to be tried.
8. The prosecution examined PW1 to PW11 and marked Exts.P1 to P11 documents and MO1 to MO3 material objects. After completing the prosecution evidence, the accused was examined under Section 313 Cr.P.C. No evidence was adduced by the accused.
9. The trial court found the accused not guilty of the offences punishable under Section 377 of the Indian Penal Code and Section 3 read with 4 of the Act and acquitted him of those offences. The trial court found the accused guilty of the offences punishable under Sections 9 (i) and 9(m) read with 10 of the Act and convicted him thereunder. The trial court sentenced the accused to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.50,000/- for the above offences and in default of payment of fine, to undergo rigorous imprisonment for a period of six months. The trial court directed that, if the fine amount was realised, it shall be paid as compensation to the victim girl through her grandmother.
10. This appeal is filed by the accused challenging the conviction entered against and the sentence imposed on him by the trial court as above.
11. Heard the learned counsel for the appellant and also the learned Public Prosecutor and perused the records.
12. Conviction of the accused by the trial court is challenged by the learned counsel on the following grounds: (1) There is unexplained delay in giving information regarding the incident to the police and it is fatal to the case of the prosecution. (2) The testimony of the victim girl is the result of tutoring and it cannot be relied upon. (3) The prosecution has suppressed the evidence of material witnesses. (4) Medical evidence does not fully support the prosecution case.
13. Out of the 11 witnesses examined by the prosecution, the material witnesses are PW1, PW2, PW5 and PW6. PW2 is the victim girl. PW1 is her grandmother. PW5 was the Attender in the hospital in which PW2 was at first examined by the doctor. PW6 is the doctor who examined PW2 at the Medical College Hospital, Pariyaram and issued Ext.P6 certificate.
14. The testimony of PW1, PW2 and PW5 has been narrated in the judgment of the trial court. Therefore, it is not necessary to reproduce the same here.
15. The alleged incident was on 11
