IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942 CRL.A.No.121 OF 2019 (AGAINST THE ORDER OF THE ADDL. SESSIONS COURT (For the trial of cases relating to Atrocities and Sexual Violence towards Women and Children), Kozhikode in Sessions Case No.

1249/2015 dated 31.12.2018)

APPELLANT/CONVICT:

ABU, AGED 58 YEARS S/O.MOITHEEN, POOKADAVATH (H), MULIYANGAL, CHONALI P.O, PERAMBRA P.S., KOZHIKODE DISTRICT.

BY ADV. SRI.N.V.P.RAFEEQUE RESPONDENTS:

1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM 682 031

2 SHO, PERAMBRA POLICE, KOZHIKODE DISTRICT, KERALA 673 001.

SRI.RAMESH CHAND – PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-08-2020, THE COURT ON 25-08-2020 DELIVERED THE FOLLOWING:

P.B.SURESH KUMAR, J.

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Criminal Appeal No.121 of 2019 -----------------------------------------------

Dated this the 25^th day of August, 2020

J U D G M E N T

The sole accused in S.C.No.1249 of 2015 on the files of the Additional Sessions Court, Kozhikode has come up in this appeal challenging his conviction and sentence in the said case.

2. The victim in the case is a girl aged 9 years. The accusation in the case is that on 06.06.2015 at 12.15 pm, the accused who was engaged by the parents of the victim to carry out some work in their house has inserted his finger into the vagina of the victim girl and also exhibited his penis to the victim girl, and thereby committed the offences punishable under Section 376 of the Indian Penal Code (IPC), Section 3 read with Section 4, Section 5(m) read with Section 6 and Section 11(i) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).

3. On the accused pleading not guilty of the charges levelled against him, the prosecution examined 12 witnesses as PWs.1 to 12 and proved through them 12 documents as Exts.P1 to P12. Among the witnesses examined, PW1 is the victim girl, PW2 is the mother of the victim girl, PW3 is the doctor who examined the victim girl and PW8 is the neighbour of the victim girl. Among the documents proved, Ext.P1 is the First Information Statement and Ext.P2 is the report of the medical examination issued by PW3.

4. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Section 3(b) read with Section 4, Section 5(m) read with Section 6 and Section 11(i) read with Section 12 of the POCSO Act. The accused was also found guilty of the offence punishable under Section 376 of the IPC. The accused was accordingly, convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.30,000/- and in default of payment of fine to undergo rigorous imprisonment for two years, for the offence punishable under Section 3(b) read with Section 4 of the POCSO Act, to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for three years, for the offence punishable under Section 5(m) read with Section 6 of the POCSO Act and to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in de fault of payment of fine, to undergo rigorous imprisonment for six months, for the offence punishable under Section 11(i) read with Section 12 of the POCSO Act. In the light of Section 42 of the POCSO Act, separate sentence was not imposed on the accused under Section 376 of the IPC. The court also ordered the substantive sentences to run concurrently. As noted, the accused is aggrieved by his conviction and sentence.

5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.

6. The learned counsel for the appellant submitted that the prosecution has not established the guilt of the accused beyond reasonable doubt. He elaborated the said submission pointing out