1. Judgment in S.C.No.336/2014 on the files of the Special Court under the Protection of Children from Sexual Offences (POCSO) Act, 2012 (hereinafter referred to as ‘POCSO Act’ for short) (Additional Sessions Court-I), Kottayam, is under challenge, at the instance of the sole accused in the above case. The State of Kerala, represented by the Public Prosecutor is the respondent.

2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor in detail. Perused the verdict under challenge and the records placed by the learned Public Prosecutor.

3. In this case, the prosecution alleges commission of offences punishable under Section 354B of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) as well as Sections 7 and 8 of the POCSO Act r/w Section 23 of the Juvenile Justice (Care & Protection of Children) Act, 2000. The prosecution case is that, on 25.05.2014, the daughter of CW1 was playing in the courtyard of their house with her brother. At about 1 pm, when the child went for collecting jack tree leaves, she was taken by the accused in his house and subjected her to sexual molestation. On this premise, the prosecution alleges commission of the above offences by the accused.

4. On getting final report filed, the Special Judge recorded evidence. PW1 to PW7 were examined and Exts.P1 to P5 were marked on the side of the prosecution. No evidence was adduced on the side of the defence.

5. On analysis of the evidence, the Special Court found that the accused/appellant committed offences punishable under Section 354B of IPC as well as under Section 8 of the POCSO Act. Accordingly, he was convicted and sentenced as under:

                  “In the result, the accused is sentenced to undergo rigorous imprisonment for four years and fine of Rs.25,000/- u/s.8 of the PoCSO Act. In default of payment of fine the accused shall undergo another term of R.I. for one year. Set off is allowed for the period of detention. The victim child is entitled for compensation under the Victim Compensation Act.”

6. The learned counsel for the appellant/accused argued that the evidence available would not show the ingredients for the offences punishable under Section 354B of IPC as well as under Section 8 of the POCSO Act and the evidence of PW1 in this regard is insufficient. It is submitted further that, the accused has been implicated in this crime without any justification since PW1 had animosity towards him. Thus, the learned counsel for the appellant/accused pressed for interference in the verdict impugned to get it reversed.

7. The learned Public Prosecutor strongly supported the verdict of the Special Court and submitted that the evidence of PW1 alone is sufficient to prove the guilt of the accused and commission of offences under Section 354B of IPC as well as under Section 8 of the POCSO Act. He further argued that even otherwise the offence under Section 18 of the POCSO Act, an attempt to commit sexual assault as defined under Section 7 of the POCSO Act, also has been made out. Then also, the accused would deserve conviction and sentence for the said offence as well as under Section 354B of IPC.

8. Adverting to the rival submissions, the points arise for consideration are:

                  1. Whether the Special Court went wrong in finding that the accused committed the offence punishable under Section 354B of the IPC?

                  2. Whether the Special Court went wrong in finding that the accused committed the offence punishable under Section 8 of the POCSO Act?

                  3. Whether the order impugned would require any interference?

                  4. Order to be passed.

9. Point Nos.1 to 4

                  In this case, the Special Court specifically relied on the evidence of PW1 to find out commission of offences punishable under Section 354B of IPC as well as under Section 8 of the POCSO Act by the appellant/accused. PW1 was the mother of the victim. According to her, the victim in this case is her daughter and she was aged three years at the time of occurrence. The occurrence was on 25.05.2014. On 25.05.2014, the victim, along with her elder brother, was playing at the courtyard and she was watching the victim from the kitchen. While so, she noticed that the victim was not available in the courtyard and she asked her elder son about the child. He said that the child had gone to collect jack tree leaves. She found that the front door of the house of the accused was locked. She also found that the footwear of the child was lying near the back door and the wife of the accused was not in the house. She soon entered into the house. Then she found that the accused made the victim to lay on the cot and removed her panties upto her knees and the accused was attempting to do sexual act. She also found that the accused was standing by holding his penis. She soon interfered and took away the child. Soon, the accused ran away from the spot taking his shirt. She supported Ext.P1 statement given by her, which led to registration of FIR in this crime.

10. Even though PW1 was cross-examined, nothing was extracted to disbelieve the version of PW1. It is true that, PW2, another witness to the prosecution, turned hostile to the prosecution. However, PW5, the neighbour, deposed in support of the version of PW1 as regards the events after the occurrence.

11. Apart from that, when the prosecution examined PW4 to prove the age of the victim, Ext.P3, the birth certificate of the victim, issued by the Registrar of Births & Deaths, Changanassery Municipality, showing her date of birth as 29.10.2010, was tendered in evidence through PW4 and the same clearly established that the child was three years at the time of occurrence. The learned Special Judge found that the birth certificate is the evidence to prove the age of the victim under Section 94 of the Juvenile Justice (Care and Protection) Act, 2015, which is made applicable under Section 2(2) of the POCSO Act. The said provision is corresponding to Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Since Section 94 is procedural, it has retrospective effect, whereby the prosecution has clearly proved that the victim was three years old at the time of occurrence. This finding is not disputed, rather, perfectly correct.

12. In this case, the victim, three years old child, was not examined and it was observed by the special court that three years old child could not able to communicate the matters verbally in a proper manner and the said finding is

only to be justified. Ext.P4 is the mahazar narrating the place of occurrence. PW3 examined in this case is Dr. Sasikumar. He testified that on 16.06.2014, while he was Senior Consultant at General Hospital, Changanassery, he had examined the accused and issued Ext.P2 potency certificate showing that the accused was a person capable of performing sexual acts. Ext.P4 mahazar was proved through PW6. PW6 admitted the signature and preparation of the mahazar. PW7 is the Investigating Officer who had conducted the investigation and it was through him Ext.P5 FIR got marked. He also identified Exts.P2 and P4.

13. In the instant case, the crucial question arises for consideration is whether the offence under Section 8 of the POCSO Act, as defined under Section 7 of the POCSO Act, is made out? Similarly, another question arises for consideration is whether the offence under Section 354B of IPC is made out? Section 7 of the POCSO Act provides as under:

                  “7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

14. Section 8 of the POCSO Act deals with the punishment for committing the offence under Section 7 of the POCSO Act and the same provides as under:

                  “8. Punishment for sexual assault.—Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.”

15. While tracing the ingredients to find out the offence under Section 7 of the POCSO Act, it has several parts. The first part provides that whoever, with sexual intent, touches the vagina, penis, anus, or breast of the child. The second part is making the child touch the vagina, penis, anus, or breast of such person or any other person. The third part is doing any other act with sexual intent which involves physical contact without penetration. In the instant case, the evidence of PW1 is that when she entered into the house, she found that the accused had placed the victim on a cot after removing her panties upto knees and was attempting to have sex with her. She also found that the accused was standing by holding his penis for the sexual act. When doing any act with sexual intent which involves physical contact without penetration is an offence under Section 7, punishable under Section 8 of the PoCSO Act, the overt acts spoken by PW1 would definitely attract offence under Section 7 of the POCSO Act. In such view of the matter, the ingredients necessary to constitute an offence under Section 7, punishable under Section 8 of the POCSO Act, are made out from the evidence of PW1.

16. Coming to the ingredients to attract the offence under Section 354B of IPC, Section 354B of IPC provides as under:

                  “354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, 1 shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”

                  As per Section 354B of the IPC, abetting any act, i.e., assault or use of criminal force against any woman with the intention of disrobing or compelling her to be naked, shall be punishable. The evidence of PW1 categorically establishes the said ingredients, and therefore, the Special Court is right in finding that the accused committed the offence under Section 354B of the IPC.

17. In the instant case, as already pointed out, when PW1 was cross-examined, nothing was extracted to disbelieve her version in any manner and the cross-examination is confined to certain irrelevant questions which by itself are insufficient to make the evidence of PW1 unbelievable. In such view of the matter, the evidence of PW1 is found to be wholly reliable. It is settled law that there is no necessity to examine a large number of witnesses to prove the occurrence, particularly when the offence alleged is sexual molestation. If the solitary evidence of a victim or someone witnessed the same, appears to be wholly reliable, the same can be the sole basis for conviction. Applying the said legal proposition, in the instant case, there is no scope for interfering with the conviction recorded by the Special court for the offence under Section 354B of IPC and Section 8 of the POCSO Act. Therefore, the conviction is confirmed.

18. Coming to the sentence, some leniency can be given in the matter of sentence. It is relevant to note that the minimum sentence provided for the offence punishable under section 354B of IPC is three years. Similarly, the minimum sentence for the offence punishable under Section 8 of the POCSO Act is also less than three years and it may extend to five years. Taking into consideration of the above aspects, I am inclined to modify the sentence.

19. In the result, this appeal is allowed in part. Conviction imposed by the special court is confirmed. The sentence is interfered and modified as under:

                  1. The appellant/accused is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) for the offence punishable under Section 8 of the POCSO Act. In default of payment of fine, the accused/appellant shall undergo rigorous imprisonment for a period of three months. In view of section 42 of POCSO Act, no separate sentence is imposed for the offence punishable under section 354B of IPC.

20. The substantive sentence and the default sentence shall run separately. Set off is allowed for the period of detention already undergone by the accused.

21. The order suspending sentence and granting bail to the accused stands vacated, with direction to the accused to appear before the special court forthwith to undergo the modified sentence, failing which, the Special Court is directed to execute the sentence, without fail.

                  Registry is directed to forward a copy of this judgment to the Special Court, forthwith for information and compliance.