(Prayer: This Crl.A is filed u/S.374(2) Cr.P.C praying to set aside the judgment of conviction dated 30.03.2022 and order of sentence dated 31.03.2022 passed by the Addl. City Civil and Sessions Judge, FTSC-II, Bangalore in Spl.C.C.No.546/2015 - convicting the appellant/accused for the offence p/u/s 376,506 of IPC and Sec.6 of POCSO Act.)

CAV Judgment

1. Appellant is before the court in this appeal, challenging the judgment of conviction dated 30th March 2022 and order on sentence dated 31st March 2022, passed in Special CC No.546 of 2015 by the Additional City Civil and Sessions Judge-FTSC- II, Bengaluru (for short "the trial Court").

2. For the sake of convenience, the parties herein are referred to as per their status and rank before the trial court.

3. Brief facts leading to this appeal are that Police Inspector of HAL Police Station, filed charge-sheet against the accused for the offences punishable under Sections 376 and 506 of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act"). It is alleged by the prosecution that CW1 is the wife of CW3 and the victim minor girl who is aged 8 years and studying in 2nd standard, is the daughter of CW1 and CW3. The said family is residing in the house No.26, Munibachappa Colony, Jagadish Nagar, HAL. The house of the accused is situated opposite to the house of CW1. On 2nd September 2015, the Government had declared a holiday on account of Bharat Bandh. The victim was in her house on that day. At about 2.00 pm when the victim minor girl was playing in front of her house, the accused took her to the house, closed the main door and forcibly had physical contact with the minor girl without her consent, and he also asked her not to disclose the said fact to anybody and posed a life threat to the victim minor girl. Thus, the accused committed the alleged offences. After filing charge-sheet, case was registered in Special CC No.546 of 2015. Accused was enlarged on bail.

4. Upon hearing on charges, the trial court framed charges against the accused for the commission of alleged offences. The same were read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution has examined thirteen witnesses as PWs1 to 13, seven documents were marked as Exhibits P1 to P7 and 12 material objects were marked as MOs1 to 12. On closure of prosecution evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the evidence of prosecution witnesses appearing against him. However, he did not choose to lead any defence evidence on his behalf. Having heard the arguments on both sides, trial court has convicted the accused for the offence punishable under Sections 376 and 506 of Indian Penal Code and Section 6 of POCSO Act and passed sentence to undergo rigorous imprisonment for a period of 20 years with fine of Rs.10,000/-, in default of payment of fine, the accused shall undergo simple imprisonment for a period of six months. Further, the accused is sentenced to undergo simple imprisonment for a term of one year for the offence punishable under Section 506 of Indian Penal Code. Being aggrieved by the impugned judgment of conviction and order on sentence, the appellant has preferred this appeal.

5. Sri Rakshit R, learned Counsel appearing for the appellant would submit that the prosecution has failed to prove that the appellant had physical contact with the victim girl. Though the prosecution has not established the said fact, the trial Court has the convicted the appellant and sentenced him for aforesaid offences. He would submit that in order to convict the accused under Section 6 of POCSO Act, the prosecution has to prove that the accused was involved in the commission of offence as per the provisions of the said act, i.e. the penetrative aggravated sexual assault. He would submit that the prosecution has utterly failed to prove the said offence as prescribed under law. Though there is no cogent, convincing, corroborative evidence, the trial court has convicted the accused which is not sustainable under law. There is no medical evidence to prove the guilt of the accused. The Doctor who has conducted the medical examination of the accused, is not examined before the court. The trial court has convicted the accused only on the evidence of interested witnesses. The trial court has failed to follow the guidelines issued by the Hon'ble Apex Court while dealing with such cases. The entire evidence placed by the prosecution is not sufficient to punish the appellant for the aforesaid offences, and the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The learned Counsel would also submit that Section 6 of POCSO Act came into force on 16th August, 2019. Prior to amendment, the punishment for the offence under Section 6 of the POCSO Act was 10 years, which may extend to imprisonment for life. In the case on hand, the incident took place in the year 2015. However, the trial court has passed the sentence for a period of 20 years which is unconstitutional in view of Article 20 clause 3 of the Constitution of India. During the course of cross-examination of PW2, she has clearly admitted that she has not taken the child for medical examination. The investigating officer has not explained anything regarding non-examination of the child by the concerned medical practitioner. On all these grounds he sought for allowing the appeal.

6. On the other hand, Sri B Lakshman, learned High Court Government Pleader appearing for the respondent-State would support the judgment of conviction and order on sentence passed by the trial court. He would submit that the trial court has considered all the material and oral evidence in accordance with law and has passed the impugned judgment, which does not call for interference in this appeal. Hence, he sought for dismissal of the appeal.

7. Having heard the learned Counsel appearing for the parties, the point that would arise for consideration is:

          1) Whether the trial court is justified in convicting the accused for the offence under Sections 376 and 506 of Indian Penal Code and Section 6 of POCSO Act?

8. I have examined the materials placed before this Court. It is alleged by the prosecution that on 2nd September 2015 at 2.00 pm in house No.26, situate at Munibhachappa Colony, Jagadish Nagar, HAL, Bangalore, CW2 was at home since it was declared holiday for the school on account of Bharat Bandh. At about 2.00 pm, when the victim, minor girl was playing in front of her house, accused took her into his house, closed the main door and committed aggravated penetrative assault on the minor girl and also posed life threat to the victim. Thus, the accused committed the offence punishable under Sections 376 and 506 of Indian Penal Code and Section 6 of POCSO Act.

9. This Case arise out of the complaint-Exhibit P2 filed by the complainant Smt. Thulasi-PW2. In the complaint, it is stated as under:







10. On the basis of the complaint lodged on 2nd September 2015 at 16:30 hours, the concerned police registered a case in Crime No.641 of 2015 for the offence under Sections 376 and 506 of Indian Penal Code and Section 6 of POCSO Act and submitted FIR to the court on 3rd September 2015 at 11.00 hours as endorsed by the learned Magistrate through PC number 12268 of HAL Police Station, Bangalore. Though the police have registered the casebgh on 2nd September 2015 at 16:30 hours, the same was not submitted to the court on the same day. However, in Column No.13 of the FIR, it is submitted that the date and time of dispatching the FIR is 2nd September 2015, 17:54 hours. In the FIR at Column 3(c), the investigating officer has not mentioned anything as to the delay in filing the complaint. CW17-Guru Prasad, Sub- Inspector of Police, has registered the case. The said CW17 has not been examined by the prosecution. The other investigating officers who have been examined before the court, have not whispered anything as to delay in submitting the FIR to the court. The FIR is not marked before the court. However, I have examined the FIR, as it is part and parcel of the prosecution papers and the same is endorsed by the learned magistrate who has received the same. In the FIR, the name of the accused is mentioned. But the investigating officer has not taken the signature or LTM of the complainant, in column 12 of FIR. The prosecution papers reveal that on 2nd September 2015, Police have recorded the statement of the victim. The Police officer who has recorded the statement of the victim, has not been examined before the court.

11. PW10-Lakshmamma, Head constable has deposed in her evidence that on 2nd September 2015, when she was on duty in the police station, the Police Inspector-CW17, Sri Guru Prasad (who is not examined before the court), has instructed her to submit requisition for examination of the victim to Bowring and Lady Curzon Hospital. Accordingly, she took the victim along with her mother to Bowring and Lady Curzon Hospital. After examination, she has produced the victim along with her mother before the Station House Officer. Further, she has deposed that on 8th September 2015, as per the direction of CW1-Sri Ashwath Narayan, who is examined before the court as PW13, she brought one sealed cover from Bowring and Lady Curzon Hospital and submitted the report in this regard as per Exhibit P7. Sri Guru Prasad who had deputed PW10 Lakshmamma, Head constable, has not been examined before the court. Even the investigating officer has not collected any material in this regard. Additionally, the prosecution has not produced the medical examination report of the victim before this court. Additionally, PW10 has deposed in her evidence that she has produced Exhibit P7 on 8th September 2015, which reveals that the medical officer of Bowring and Lady Curzon Hospital has handed over one pair of black jeans pant and one pink shirt of the victim. After production of these clothes on 8th September 2015, the investigating officer has inserted the same in PF No.166 of 2015 and submitted the property form before the court on 9th September 2015. The victim-PW1 or PW2-mother of the victim, have not deposed anything as to the production of jeans pant or pink shirt belonging to the victim before the medical officer. The investigating officer has not whispered anything regarding production of medical examination report of the victim. Even during the trial, the prosecution has not taken any steps to produce the material documents before the court.

12. The mother of the victim-PW2 has deposed in her evidence that the police sent her daughter to Bowring and Lady Curzon Hospital. The medical officer has examined her daughter. Thereafter, the police took her daughter to the Magistrate. During the course of cross-examination of PW1, it was categorically denied that her daughter was produced before the medical officer. Though the victim was examined by the concerned medical officer, the investigating officer has not collected any material in this regard. This material lapse committed by the investigating officer will create reasonable doubt as to the commission of alleged offence by the accused. When the prosecution has failed to produce the best evidence before the court, adverse inference has to be drawn against the prosecution under Section 114(g) of Indian Evidence Act.

13. Though The Police took the victim to the hospital on 2nd September 2015, the victim was not produced before the Magistrate on the same day or even the next day of the alleged incident for recording statement under Section 164 of Code of Criminal Procedure. Instead, the investigating officer has produced the victim before the jurisdictional magistrate on 30th October 2015. The statement recorded under Section 164 of Code of Criminal Procedure which is marked as Exhibit P1, in which the age of the victim is not mentioned. The investigating officer has not whispered anything as to production of the victim for recording statement and Section 164 of Code of Criminal Procedure, immediately after the alleged incident.

14. The contents of Exhibit P2 reveal that PW2 is not an eye-witness to the incident. When she visited the spot by forcibly opening the door of the house of the accused, she heard screaming of her daughter and she went there and found that the accused was sleeping without his undergarment, and her daughter was lying on him without pant and undergarment, and on seeing the same, she made hue and cry and the neighbours came and assaulted the accused. Thereafter, she enquired with her daughter as to the incident and the victim has told as to the rape committed by the accused. PW1-victim has deposed the same in her evidence. During her cross-



15. PW2-Thulasi has deposed in her evidence that on the said date, after attending her regular work, she came back home at about 2.00 pm and at that time victim was not found in the house. She searched for her every where and when she could not find her daughter, she called her daughter loudly. At that time, she heard the sound of the victim from the house of the accused, hence she knocked the door and forcibly entered the house of the accused and saw that the victim minor girl in the house of the accused without any dress on lower part of the body. Accused was also seen only with a shirt and was without clothes to the lower part of his body. The accused was in drunken state at that time. She enquired with the victim girl. Victim girl stated that the accused took her to his house, removed the dress and inserted his penis into her vagina. PW2 has also deposed that the accused was under the influence of alcohol at that time. On enquiry he did not give any reply. PW2 has not deposed anything in the complaint-Exhibit P2 as to the accused being under the influence of alcohol. For the first time before the court, she has stated that the accused had consumed alcohol.

16. PW3-Raja, father of the victim, is a hearsay witness. In his cross-examination, he has clearly admitted that on the day of the incident, accused had consumed alcohol.

17. PWs 4 and 5 are hearsay witnesses.

18. PW11-Sardar Pasha has deposed that on 2nd September 2015, CW17 has deputed him to trace the accused. He went to Jagdish Nagar, HAL where the public had assaulted the accused and handed him over to the police. On enquiry, he came to know the name of the accused who has committed sexual assault. Exhibit P4, the physical examination report of accused issued by the Bangalore Medical College and Research Institute, reveals that on 3rd September 2015, the accused was produced before the medical officer for medical examination pertaining to Crime No.641 of 2015. During the course of examination, the accused denied the alleged act. He has stated that he has only removed her undergarment as it was soiled and let her to go to the toilet located nearby. After examination of this accused, the medical officer has given his opinion that there is nothing to suggest that the person is incapable of performing sexual intercourse.

19. PW8-Dr. K.V. Satish, who has examined the accused, has not deposed anything as to the commission of offence.

20. The order sheet maintained by the trial court in crime No.641 of 2015 reveals that the accused was produced before the court on 3rd September 2015 at 2.00 pm through PC No.8854 and he was remanded to custody. The remand application filed by the investigating officer before the court in crime No.641 of 2015, reveals that the accused was arrested on 2nd September 2015 and was produced before the Bowring and Lady Curzon Hospital on the same day. The outpatient slip issued by the said hospital reveals that the accused was referred to forensic department and as the patient was alleged to have been assaulted by the public, he was referred to OPD. In this document it is also mentioned as to the alleged history of assault by mob at 3:30 pm at Jagadish Nagar. It also reveals that the accused was under the influence of alcohol, and no external injuries were seen. This evidence placed by the prosecution reveals that on the date of the incident, the accused has consumed alcohol and as per the statement given by the accused before the medical officer which is recorded by the medical officer, it is stated that he only removed her undergarment as it was soiled and let her to go to the toilet located nearby.

21. As already discussed above, it is clear that though the police have produced the victim before the medical officer, the investigating officer has not produced the report of medical examination of the victim. However, the prosecution has produced the certificate of examination of the jeans pant and shirt of the victim girl which are shown in certificate of examination issued by the Deputy Director, Regional Forensic Science Laboratory, Mysore in which it is clearly opined that seminal stain was not detected on items 1 and 2.

22. A careful examination of the entire evidence on record makes it crystal clear that there is no sufficient cogent, corroborative, clinching or believable evidence before the court to convict the accused for the offence under Section 6 of POCSO Act and Sections 376 and 506 of Indian Penal Code. However, the evidence of victim and her mother, is that the accused has removed the undergarment of the victim and when the victim screamed, upon hearing the scream of her daughter, PW2-mother of victim, entered the house by forcibly opening the door and found the victim there. Thereafter, the public gathered, dragged the accused and assaulted him. Since the investigating officer has not produced the medical examination report of the victim, the non-production of said examination report will create doubt as to the alleged commission of aggravated penetrative sexual assault by the accused.

23. On careful examination of the materials placed before this court, absolutely there is no evidence to constitute the offence punishable under Section 6 of POCSO Act. However, the evidence placed by the prosecution reveals that the accused has committed offence of sexual assault which is punishable under Section 8 of POCSO Act. In the case on hand, accused was arrested on 2nd September, 2015 and was released on bail on 2nd February, 2016. Again, accused was arrested and sent to custody on 3rd July, 2017 and was released on 8th April, 2021. In the judgment of the trial Court, it is stated that the period undergone by the accused in judicial custody as three years, nine months and five days. The judgment was pronounced on 31st March 2022 and the accused was remanded to judicial custody and till this date the accused is in judicial custody. On calculation of the days in incarceration, it could be gathered that the accused is in judicial custody for a period of 7 years, 10 months and 15 days.

24. When the accused has produced before the medical officer, he has stated that, he has only removed her undergarment as it was soiled and let her to go to the toilet nearby, he ought to have produced the rebuttal evidence to the statutory presumption under Sections 29 and 30 of POCSO Act. But in the case on hand, the accused has not placed any material to discard the presumption under Sections 29 and 30 of POCSO Act pertaining to offence under Section 8 of the said Act. Under Section 8 POCSO Act, 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. Considering the period of sentence undergone by the accused and the nature and gravity of offence, I am of the opinion that it is just proper to impose punishment for the offence punishable under Section 8 of POCSO Act and to sentence the accused for a period of five years with fine of Rs.1,000/-. Accordingly, I answer the point that arose for consideration, partly in the affirmative.

25. In the result, I proceed to pass the following:

ORDER

          i) Appeal is allowed in part;

          ii) The judgment of conviction and order on sentence passed in Special CC No.546 of 2015 by the Additional City Civil & Sessions Judge-FTSC-II Bengaluru under Section 506 of Indian penal code, is confirmed;

          iii) The judgment of conviction dated 30th March 2022 and order on sentence dated 31stMarch, 2022 passed in Special CC No.546 of 2015 by the Additional City Civil & Sessions Judge-FTSC-II, Bengaluru convicting the accused under Section 376 of Indian Penal Code and Section 6 of the POCSO Act, is modified;

          iv) Accused is convicted for the offence punishable under Section 8 of POCSO Act;

          v) Accused shall undergo simple imprisonment for a period of five years for the offence punishable under Section 8 of POCSO Act, 2012 and to pay a fine of Rs.1,000/-, in case of default of payment of fine, the accused shall undergo simple imprisonment for a period of three months;

          vi) The sentence passed by the trial court in respect of offence under Section 506 of Indian Penal Code to undergo simple imprisonment for a term of one year, is confirmed;

          vii) Both the sentences shall run concurrently;

          viii) The period of imprisonment undergone by the accused shall be given set off under Section 428 of Code of Criminal Procedure;

          ix) Since the accused has already completed the sentence, Registry is directed to send the intimation to the concerned Jail authority to release the accused, if he is not involved in any other case.