The court held that where evidence establishes sexual assault on a minor but does not satisfy the specific aggravating criteria of Section 5(k)(l), the conviction should be modified to Section 3(a) read with 4 of the POCSO Act.

JUDGMENT

This Criminal Appeal has been preferred as against the Judgment dated 11.04.2022 passed in Spl.S.C.No.10 of 2016 by the Sessions Judge, Fast Track Mahila Court, Dharmapuri, thereby convicted the accused for the offence punishable under Section 5(k)(1) read with 6 of POCSO Act.

2. The case of the prosecution is that the victim is a mentally retarded minor girl who had not completed the age of 18 years. Taking advantage of the mental condition, the accused exploited her vulnerability with the knowledge and intention of committing sexual assault upon her. On 11.03.2016, the victim girl was alone at her house, the accused entered the house and committed sexual assault on her and forcibly raped her. Further, on 21.03.2016, at about 1.00 p.m., the accused again went to the victim’s house and forcibly took her to a nearby granite stone quarry and committed rape on her. On 27.03.2016, when the accused again came with the intention of committing rape, he was caught by the witnesses. Based on the complaint, the respondent registered a case in Crime No.3 of 2016. After completion of the investigation, the respondent filed a final report and the same has been taken cognizance by the Trial Court in Spl.S.C.No.10 of 2016.

3. In order to prove the charges, the prosecution had examined P.W.1 to P.W.21 and marked Exs.P1 to P20. The prosecution also produced M.O.1 and M.O.2. On the side of the accuse,d no witnesses were examined and no documents were marked.

4. On perusal of the oral and documentary evidence, the Trial Court found the accused guilty of the offence under Section 5(k)(1) read with 6 of the POCSO Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- in default, to undergo simple imprisonment for a period of six months. Aggrieved by the same, the present appeal has been filed.

5. The learned counsel appearing for the appellant restricted his submissions that the accused ought not to have convicted for the offence punishable under Section 5(k)(1) read with 6 of POCSO Act. As per the evidence of the victim, the alleged act would attract only Section 3(a) of the POCSO Act and he would be liable to be punished under Section 4 of the POCSO Act. Since, the occurrence had taken place prior to the amendment, the sentence imposable shall not be less than seven years.

6. The learned Government Advocate (Crl.Side) appearing for the respondent submitted that the victim girl, in her statement recorded under Section 164 of Cr.P.C. did not support the case of the prosecution. However, the evidence of the victim is very clear to attract the offence under Section 5(k) (l) read with 6 of the POCSO Act. That apart, P.W.1 is mentally retarded. Accordingly, the accused committed a very serious and heinous offence as against the minor victim girl. He further submitted that though the respondent filed final report for the offences punishable under Section 7 and 8 of the POCSO Act, the Trial Court rightly convicted the accused for the offence punishable under Section 5(k)(l) read with 6 of the POCSO Act and the same does not warrant any interference by this Court.

7. Heard the learned counsel appearing on either side and perused the materials available on record.

8. The victim was examined as P.W.1. She is a mentally retarded girl. On the date of occurrence, while the victim was grassing cattle, the accused called her and thereafter, committed sexual assault on her. The relevant portion of her statem