1. Appellant/accused feeling aggrieved by the judgment on the file of II Addl. District and Sessions and Spl. Judge, Dharwad, in Special S.C.No.9/2015 dated 22.07.2017 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 07.12.2014 and 08.12.2014 and also on previous two occasions at different dates during night hours, accused committed rape on his minor daughter of 15 years in his house bearing No.844, Tabib land, Amate Chawl, Hubballi. Accused has committed penetrative sexual assault not only on victim - PW-1, but also on her sister - PW-2/CW-4. On these allegations made in the complaint, Investigating Officer on completion of investigation filed the charge-sheet.
4. In response to summons, accused appeared through learned counsel. The trial Court after being prima facie satisfied framed the charges against accused. Accused pleaded not guilty and claimed to be tried. Prosecution in order to prove the allegations made against accused relied on the oral evidence of PWs-1 to 11 and documents at Exs.P.1 to 17 and Ex.D.1 was confronted through the evidence of PW-4.
5. On closure of the prosecution evidence, statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused denied all incriminating material evidence appearing against him and claimed that since he advised his daughter not to be in contact with the girls having bad antecedents, filed this false case. The trial Court after appreciation of evidence on record convicted accused for the offences alleged against him and imposed sentence as per order of sentence.
6. Appellant/accused challenging the judgment of conviction and order of sentence contended that Trial Court has not appreciated the fact of there being inordinate delay in filing the complaint and appreciate the evidence of PWs-1 to 3 in the light of defence of accused. PW-2, sister of the victim and PW- 3, mother of victim have not supported the case of prosecution. The admissions given by PW-1 victim in the cross-examination have not been appreciated by the trial Court in the light of settled legal principles to prove the allegations against accused. The medical evidence in the form of PW-9 who has examined the victim and issued the medical certificate Ex.P.11 runs contrary to the case of prosecution and the allegation of accused committing rape on his minor daughter is completely ruled out. The evidence of PW-4 - class teacher and PW-5 - Principal of Fathima High School, before whom the victim is said to have revealed about the incident of sexual assault on her is totally unreliable. Similarly, the evidence of PW-6 - President, PW-7 - Coordinator and PW - 8 - Member of District Child Welfare Committee, further application of victim Ex.P.4 and the letter Ex.P.9 coupled with the proceedings Ex.P.10 cannot be relied to substantiate any of the allegations made against accused. The mere fact that PW-1 was subjected to cross-examination after gap of two months as observed by the trial Court cannot be treated as a ground to discard the admission of victim PW-1 in the cross-examination. The approach and appreciation of oral and documentary evidence by trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to set aside the judgment of conviction and order of sentence passed by trial Court. Consequently, to acquit accused from the charges levelled against him.
7. In response to the notice of appeal, learned High Court Government Pleader has appeared for respondent/State.
8. Heard the arguments of both sides.
9. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that accused is working as a Librarian in SDM College, Dharwad. The mother of victim was admitted to Vivekanand Hospital for her 5th delivery. The maternal grandmother, father, victim and her sister PW-2 were in the house during the month of December. It is alleged by the prosecution that on 07.12.2014 and 08.12.2014 during night hours in the house of complainant in Tabib land, Mantur road, Amate Chawl, Hubballi, the accused committed forcible sexual intercourse on minor victim who was 15 years old and he administered threat with dire consequences, in case if she discloses about the incident to anybody. Accused being aware that his victim daughter was below 18 years at the time of incident has committed penetrative sexual assault on her.
10. The prosecution to prove the said allegations mainly relies on the evidence of victim-PW-1, and the evidence of doctor PW-9 who has examined the victim and issued medical certificate Ex.P.11. The said evidence is sought to be corroborated by the evidence of PW-4 - class teacher and PW-5- Principal of Fathima High School, wherein victim was studying. On they coming to know about the incident from victim PW-1, informed to District Child Welfare Committee and PWs-6 to 8 have enquired into the matter with victim then criminal law was set into motion on the complaint Ex.P.1 of victim PW-1. The prosecution also seeks to rely on the evidence of Investigating Officer, PW-11.
11. The prosecution by evidence on record must prove that accused has committed penetrative sexual assault on his minor daughter in the house itself while his wife was admitted to Vivekanand Hospital for 5th delivery. Accused has threatened the victim PW-1 with dire consequences if she reveals about the incident to anybody.
12. The prosecution to prove that victim PW-1 was minor as on the date of incident relied on the evidence of PW-1 and PW-5 - Principal of Fathima High School who has issued birth certificate Ex.P.8 on the entries made in the school records. So also the evidence of PW-10, doctor who has examined the victim PW-1 for age determination and issued certificate Ex.P.12. The evidence of PW-1 is specific and assertive that she was studying in 8th standard at Fathima High School, Keshwapur, Hubballi and her date of birth is 23.02.2000. The evidence of PW-5 - Principal of Fathima High School, Keshwapur, Hubballi, would go to show that victim PW-1 is studying in Fathima High School and on the request of police authorities he has furnished the birth certificate of victim Ex.P.8 based on the records maintained in the school and her date of birth is 23.02.2000. Apart from this, PW-10 who has examined the victim for age determination has deposed to the effect that victim girl was examined physically, dentally and radiologically. On detailed examination recorded his opinion regarding the age of victim between 16 to 18 years and issued certificate Ex.P.12. Looking to the specific evidence of victim PW-1 and the evidence of Principal PW-5, further date of birth of victim as per school records Ex.P.8, it is evident that the date of birth of victim is 23.02.2000. The incident has taken place on 07.02.2014. If the same is calculated, then as on the date of incident, victim was aged 14 years 10 months and 12 days. The evidence of PW-1 victim and Principal PW-5 is not seriously challenged regarding the date of birth of victim as recorded in the school records Ex.P.8 as on 23.02.2000. The opinion recorded in Ex.P.12 by PW-10 would go to show that the victim is above 16 years and below 18 years. Therefore, from the said evidence on record, prosecution has proved that victim PW-1 was minor as on the date of incident.
13. The material witnesses to speak about accused having committed penetrative sexual assault in the house is only PW-1 victim, since PW-2 sister of the victim and mother PW-3 have not supported the case of prosecution.
14. PW-1 in her examination-in-chief has narrated about the incident that took place in the house and deposed to the effect that she was studying in 8th standard in Fathima High School, Keshwapur, Hubballi and her date of birth is 23.02.2000. The mother of victim was admitted to Vivekanand Hospital, Hubballi, in December for 5th delivery. During the said period the maternal grandmother, father, victim, her sister and brother were in the house. The maternal grandmother was sleeping in the room. Accused came to the home at about12.30 a.m. to 1 a.m. and slept by her side, further he was inappropriately touching her and attempted to commit sexual intercourse by undressing her and she suffered lot of pain. Accused was licking on her chest and private part and attempted to put his penis in her vagina, due to which she suffered lot of pain, further he has also licked her sister CW-4 by taking her on chest and prior to this incident on 3 to 4 occasions committed similar act. PW-1 victim though informed of earlier incident to her mother, but she did not heed to her words. On account of sexual assault from her father, she was spending many sleepless nights and drowsing in the school. Ultimately, she informed about the incident to her class teacher - PW-4 who carried her to the Principal PW-5, before whom she narrated about she being sexually harassed in the house by her father and committed penetrative sexual assault. They in turn informed to the District Child Welfare Committee and before them also, she revealed about the incident and then she filed the complaint, Ex.P.1. PW-1 victim has further deposed to the effect that she has given application before the District Child Welfare Committee Ex.P.4 and she was also subjected to medical examination before whom also, she narrated about the incident of sexual assault from her father. PW-1 has further deposed that while she was being carried to Magistrate Court for recording evidence, her mother was weeping and insisted the victim to withdraw complaint and due to such pressure of her mother, she has given statement before the Magistrate Ex.P.5. On account of unhealthy atmosphere in the house, herself and her sister are under the shelter of children home.
15. The defence counsel on the same day did not cross- examine the victim and took time for cross-examination. Victim PW-1 was cross-examined exactly after two months and during her cross-examination she has given contrary evidence than what she has stated in her examination-in-chief. Further, admitted all the suggestions put to her by the defence. The effect of such admissions in the cross-examination will be dealt with later while appreciating the other evidence on record.
16. PW-9 examined the victim on 31.01.2015 and recorded the history given by victim regarding the incident and issued medical certificate as per Ex.P.11. On genital examination, he found vagina not visualized because of imperforate hymen and hymen was imperforate. On local genitals examination, evidence of signs of recent sexual intercourse was absent which neither refutes nor confirm the forceful sexual intercourse or assault. He has opined that there is no evidence of recent forceful intercourse which neither refute nor confirm the forceful sexual intercourse or assault. PW-9 has deposed that he did not collect nail clips, pubic hair and clothes, since the victim has taken bath and she was examined after 20 to 25 days from the date of incident.
17. The learned counsel for appellant/accused by taking above referred evidence of PWs-1 and 9 vehemently argued that admissions of PW-1 in cross-examination and the evidence of PW-9 totally rules out the possibility of accused committing penetrative sexual assault on victim. There is also inordinate delay in filing complaint and the possibility of false implication of accused in view of the defence of accused cannot be ruled out. The evidence of other witnesses will come into play only when the prosecution establishes the allegation of penetrative sexual assault on PW-1.
18. It is the specific evidence of victim-PW-1 that she was sexually assaulted by her father and she was getting lot of pain. She informed about the incident to her mother, but she was only obeying the words of accused and has no recognition at all. PW1 ultimately informed about the incident to her class teacher PW9. PW9 in her evidence has deposed that victim PW1 was drowsing in the class and when questioned, she remained unanswered and was very shy. One day class monitor informed her about sexual harassment suffered by PW1 in the house from her father. Thereafter she has taken the victim to principal of the school PW-5 and before PWs-4 and 5, victim revealed about the incident. PW-5 in turn informed to District Child Welfare Committee.
19. PW-6 president, PW-7 co-ordinator and PW-8 member of District Child Welfare Committee. They have held counseling with victim-PW-1 and she narrated about the incident of sexual harassment from her father who was accompanied her sister PW-2 and given application Ex.P.4. PW-7 gave letter Ex.P.9 after counseling with victim PW-1 on 30.01.2015 being satisfied that father of victim committed sexual harassment. The proceedings of District Child Welfare Committee is Ex.P.10 and report would reveal about narration of entire incident by victim PW-1. PW-8 is doctor by profession and member of District Child Welfare Committee also spoken about the application of victim PW1 and her sister PW2 as per Ex.P.4 and the proceedings drawn Ex.P.10. The sequence of events as referred above through the evidence of PW-4 to 8 is in the natural course and there is nothing to suggest in their cross examination that they have any personal vengeance against accused to falsely implicate him in the present case. Therefore, their evidence is worthy of credence with regard to victim PW-1 narrating about the sexual harassment from her own father in the house and there are no any reasons to disbelieve their evidence.
20. The defence of accused is that he has advised his daughter not to be associated with girls having bad antecedents, therefore false case is filed. Learned counsel for accused has argued that victim has admitted the cross examination to all the suggestions of defence counsel and therefore her evidence is not reliable to prove any of the allegations made against the accused. It is pertinent to note that victim was cross examined after two months and during cross examination, she has given contrary evidence than what she has stated in her examination in chief. It has been elicited in the cross examination of PW-1 that Bhagya and Jyothi are daughters of nurse and she was ill-advised by them who are inimical to her parents to file the complaint and due to such advised, she has filed complaint Ex.P.1. Accused has not suggested the said defence to the investigating officer PW-11. Learned SPP cross examined the victim, since she resiled from her evidence in examination-in-chief. PW-1 admitted in para 16 of the cross examination that she is aware about only truth is to be deposed before the court and accordingly she has given her evidence on 21.11.2015 after understanding all the facts. She further admits that if false evidence is given, punishment will be imposed. PW-1 has never stated the above said facts in her application at Ex.P.4 and during enquiry by PW-6 to 8, the defence has also not suggested to them that on the ill advice of Bhagya and Jyothi, she has given application Ex.P.4 and filed the complaint Ex.P.1. The said admissions of victim PW.1 is outcome of tutoring and pressurizing her to resile from her examination in chief by taking sufficient time for cross- examination. Therefore, without making any basic foundation referred above during the cross examination of other material witnesses, the evidence of victim PW-1 having admitted suggestion as referred above cannot be accepted as sufficient evidence to discard her examination in chief and she filed complaint Ex.P.1 on the ill-advice of Bhagya and Jyothi.
21. Learned counsel for accused also argued that victim PW-1 during her 164 Cr.P.C statement before the magistrate Ex.P.5 did not reveal about the incident as narrated in the complaint Ex.P.1 and the statement Ex.P.4, so also the proceedings drawn Ex.P.10. In this regard victim PW-1 has given valid explanation in para 6 of her examination-in-chief and deposed to the effect that when she was carried to the Magistrate for giving statement, her mother was there and she was weeping, further she was forcing victim PW-1 to withdraw the complaint filed against accused. On account of such pressure from her mother, she has given statement before the Magistrate Ex.P.5. It is true that PW-1 states in para 14 of her cross examination that her mother was not present and she has not put any pressure on her. This improvement regarding the pressure of her mother has come as an after thought. Indisputably victim PW-1 was not cross examined on the day of her examination-in-chief, secondly she was cross examined after two months, thirdly the words of victim's mother being not heard by accused, fourthly victim PW-1 revealed about earlier incident to her mother, but she did not take any corrective steps, fifthly there is no congenial atmosphere in the house and victim PW-1 with her sister PW-2 are residing in children home and lastly, her maternal uncle was present in the Court during the cross examination of victim PW-1. If the above factors are taken into consideration then it is evident that victim PW-1 was put under threat not to depose against accused, due to which she resiled from her examination-in- chief. Therefore the contention of learned counsel for accused that victim PW-1 has deposed truth before Magistrate in her statement Ex.P.5 and her admissions in the cross examination has to be accepted cannot be legally sustained.
22. There is no any strong motive that has been brought on record during the cross examination of PW-1 to falsely implicate her own father in this case. There is no any reference of two girls Bhagya and Jyothi having ill-advised victim-PW-1 to file false complaint against accused during the course of his 313 Cr.P.C. statement. Accused has also not suggested the said defence to PW-4 to 8 and investigating officer PW-11 during the course of their evidence. Therefore, without there being any basic foundation to probabilise the defence of accused as referred above and for want of necessary evidence, the defence of accused that since he advised his daughter not to be associated with girls having bad antecedents, she has filed false case cannot be accepted.
23. PW-1 victim in her examination-in-chief has narrated about incident of sexual assault as per the complaint allegations Ex.P.1, so also in the application given before District Child Welfare Committee Ex.P.4 and the proceedings drawn as per Ex.P.10. PW-1 who was cross examined after two months of her examination-in-chief given contrary evidence than what she has stated in her examination-in-chief. The effect of such admissions given by victim PW-1 will have to be considered in the light of above referred evidence on record and judicial pronouncement regarding appreciation of evidence of such witness. The trial Court relied on the following three judgments:
"i) ILR 2000 Kar. 2967 (SC) State Vs. Tulasidaram
ii) 2001 (7) SCC 318 [LQ/SC/2001/1661] Anil Rai Vs. State of Bihar
iii) ILR 2001 Kar. 355 Gopi @ Razor Gopi @ Disco Gopi @ Gopinaidu Vs. State of Karnataka"
The principles enunciated in all these three decisions is with regard to appreciation of evidence of hostile witnesses. It has been observed and held that where the witness do not fully support the case of prosecution then dependable portion of evidence which inspires the confidence of Court and the same is corroborated by other evidence then such evidence can be relied.
24. This Court had an occasion to consider the effect of cross examination, where the witness fully supports the case of prosecution in examination-in-chief in the judgment reported in Krishna Vs. State of Karnataka reported in 2010 Crl.L.J. 1515, wherein it has been observed and held that,
"Evidence Act-Sec.3-Hostile witness-Credibility- Witness fully supports prosecution case in his examination-in-chief as to any material and relevant fact- but turns hostile to prosecution in his cross-examination made on behalf of the accused on a later date and states contrary to his evidence in his examination-in-chief as to the said fact-Evidence of such hostile witness in his examination-in-chief has to be accepted as true if it is not shown that what he stated in his examination-in-chief was not stated by him at the earliest opportunity, in his statement recorded under Sec.161 of Cr.P.C by the I.O.
Thus, it is clear that what all they have stated in their examination-in-chief before the court was stated by them before the I.O. at the earliest opportunity, in their statements recorded by him during investigation. In this view of the matter, I am of the considered opinion that where a witness fully supports the prosecution case in his examination-in-chief as to any material and relevant fact but turns hostile to the prosecution in his cross examination made on behalf of the accused on a later date and states contrary to his evidence in his examination-in-chief as to the said fact the evidence of such hostile witness in his examination-in-chief has to be accepted as true if it is not shown that what he stated in his examination in chief was not stated before the I.O."
This judgment squarely applies to the facts of the present case. In the present case also victim PW1 has supported the case of prosecution as alleged in the complaint Ex.P.1, so also in the application at Ex.P.4 and the proceedings drawn by District Child Welfare Committee Ex.P.10. However, when she was cross examined after two months, she has resiled from her examination-in-chief. The earliest statement of victim PW-1 as per Exs.P.1, P.4, so also in the proceedings drawn by District Child Welfare Committee Ex.P.10 and accordingly given her evidence in examination-in-chief. Therefore, evidence of such witness in examination-in-chief has to be accepted as true, if it is not shown that what has been stated in examination-in-chief was not stated by victim PW-1 at the earliest opportunity. In the present case victim PW-1 has stated at the earliest opportunity regarding the incident of sexual assault by accused in the complaint Ex.P.1, application at Ex.P.4 and on the basis of which the proceedings have been drawn as per Ex.P.10, further the same is reiterated in her examination-in-chief. Therefore, the trial Court has rightly accepted the examination-in-chief of PW-1, since she was won over by the pressure of her family members and maternal uncle.
25. Learned counsel for accused also argued that there is inordinate delay in filing the complaint. The incident took place on 07.12.2014 and the complaint Ex.P.1 is filed on 30.01.2015. The situation under which the incident has occurred in the house of victim PW-1 and perpetrator of the crime is none else than father of victim, mother of victim was admitted to Vivekananda hospital Hubbali for her fifth delivery and she was being under control of accused and other attending circumstances will have to be taken into consideration while deciding the issue of delay caused in filing the complaint.
26. When the incident of sexual harassment takes place against minor victim within the house by a member of a family then in such a situation, it cannot be expected that victim should go immediately to the police station for filing complaint. In the normal course, victim will be informing about the incident to other members of the family. In the present case PW-3 mother of victim was admitted in the hospital for her fifth delivery and above all she was under the control of her husband, therefore naturally victim has revealed about the incident to PW-4 and 5 who are the class teacher and the principal of the school in which victim is studying. Thereafter, they informed to District Child Welfare Committee and the committee held counseling with victim, further victim and her sister jointly give application Ex.P.4. PW-7 gave letter after counseling Ex.P.9 that sexual assault incident has taken place in the house of victim. The proceedings have been drawn by District Child Welfare Committee Ex.P.10 and then complaint is filed Ex.P.1. Looking to the above sequence of events and victim being minor having no any worldly knowledge before whom she should complain and victim was of shy nature, it can be said that delay in filing the complaint has been explained by the evidence of PW-1.
27. Learned counsel for accused relied on the judgment of Hon'ble Apex Court in B.Jayaraj Vs. State of Andhra Pradesh reported in (2014) 13 SCC 55 [LQ/SC/2014/339] . This case relates to the offence under P.C. Act and it has been held that drawing of presumption arises only when prosecution discharges it's initial burden of proving the charges leveled against accused. Reliance is also placed on another judgment of Hon'ble Apex Court in Ram Niwas Vs. State of Hariyana reported in 2022 SCC OnLine SC 1007, wherein it has been observed and held that suspicion however strong it may be, cannot take place proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond the reasonable doubt. There cannot be any dispute with regard to the proposition of law laid down in the said decision. Reliance is also placed on another judgment of Hon'ble Apex Court in State of Rajasthan vs. Babu Meena reported in 2013 (4) SCC 206, [LQ/SC/2013/180] wherein the Hon'ble Apex Court in view of the facts involved in the said case held that, testimony of prosecutrix was wholly unreliable and the view taken by Trial Court for acquitting the accused affirmed by the Hon'ble High Court has been confirmed.
28. The Trial Court has convicted the accused for the offence under Section 376 of IPC and Section 6 of the POCSO Act. The complaint allegations Ex.P.1 would go to show that victim alleges that accused kissed her and licked the chest, further tried to insert his private part, but it did not enter, since she was having urine problem and ejaculated on her thigh. The evidence of PW.1, in her examination in-chief is silent about accused ejaculating on her thigh. It is deposed by PW.1 that accused tried to commit forcible sexual intercourse and she suffered lot of pain. The medical evidence in the form of PW.9 and the medical certificate as per Ex.P.11 would go to show that on genital examination, he found vagina not visualized because of imperforate hymen. On local genital examination, evidence of signs of recent sexual intercourse was absent which neither refute nor confirm the forceful sexual intercourse/assault. The hymen is a thin membrane. It most often covers part of the opening of the vagina. Imperforate hymen is when the hymen covers the whole opening of the vagina. Therefore, the oral evidence of PW.1 that accused has committed forcible penetrative sexual assault on her is not supported by the evidence of doctor PW.9 and medical certificate Ex.P.11. In order to prove the offence under Section 376 of IPC and Section 6 of the POCSO Act, penetration of penis to any extent into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person is required to be proved. In order to attract Section 6 of the POCSO Act, aggravated penetrative sexual assault must be proved.
29. In this context, it is useful to refer the judgment of Hon'ble Apex Court in Tarkeshwar Sahu vs. State of Bihar reported in (2006) 8 SCC 560, [LQ/SC/2006/910] wherein it has been observed and held that,
" No offence under Section 376, IPC can be made out unless there was penetration to some extent. In absence of penetration to any extent would not bring the offence of the appellant within the four corners of Section 375 of the Indian Penal Code. Therefore, the basic ingredients for proving a charge of rape or the accomplishment of the act with force. The other important ingredient is penetration of male organ within the labia, majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 of IPC.
30. In another judgment of Hon'ble Apex Court Aman Kumar vs. State of Haryana reported in AIR 2004 SC 1497 [LQ/SC/2004/193] , wherein it has been observed and held that,
" Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of accused was within the labia of the pudendum of the woman, no matter how little. To constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva of pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 of IPC."
This judgment has also been referred in Tarakeshwar Sahu's case cited supra. The Hon'ble Apex Court in both the decisions having held that the offence under Section 376 of IPC has not been proved and convicted the accused for the lesser offence under Section 354 of IPC. Therefore, in view of the principles enunciated in the aforementioned judgment of the Hon'ble Apex Court, it is evident that penetration to any extent is sine qua non for proving the offence under Section 376 of IPC. Similarly, same is the legal requirement to prove the offence under Section 6 of POCSO Act.
31. In the present case, the evidence of PW.1 regarding alleged repeated penetrative sexual assault is not supported by the evidence of doctor PW.9 and the medical certificate Ex.P.11. Therefore, the Trial Court was not justified in convicting the accused for the offence under Section 376 of IPC and Section 6 of POCSO Act. However, there is enough material evidence through the evidence of PW.1 that accused has committed sexual assault in terms of Section 7 of the POCSO Act. It is profitable to refer Section 7 of the POCSO Act, which reads as follows;
" Section 7 - Sexual Assault - whoever, with sexual intent touches the vagina, penis, anus, or breast 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."
If the evidence of PW.1 is scrutinized in terms of legal requirement of Section 7 of POCSO Act, then it is evident that PW.1 has specifically deposed to the effect that her father took her on his chest and inappropriately was touching and kissed on her cheek and also mouth to mouth kiss, he was also licking her chest and private part. The accused did same act 3 to 4 times prior to the incident referred in the complaint. The available material evidence on record demonstrate the fact that accused has committed sexual assault in terms of Section 7 of the POCSO Act, which attracts penal provision in terms of Section 8 of the POCSO Act. It is true that there is no any specific charge against accused for the offence under Section 8 of the POCSO Act. However, in view of invoking the provisions of Section 222 of the Cr.P.C., the accused charged with major offence can always be convicted for the minor offence, is necessary ingredients of minor offence are present. In this context it is useful to refer the judgment of Hon'ble Apex Court in Lakhjit Singh and another Vs. State of Punjab reported in 1994 Supp (1) SCC 173 and another judgment of Hon'ble Apex Court Shamnsaheb M Multani Vs. State of Karnataka reported in (2001)2 SCC 577 [LQ/SC/2017/237] , wherein the Hon'ble Apex Court in both these decisions held that where the accused is charged with major offence can always be convicted for the minor offence, if necessary ingredients of minor offence are present.
32. The offence under Section 8 of the POCSO Act attract punishment with imprisonment of either description for a term which shall not be less than three years, but which may extent to five years and shall also be liable to fine. The imposition of imprisonment of not less than three years and fine is mandatory for the offence under Section 8 of the POCSO Act. Looking to the facts and circumstances of the case and the evidence of PW.1, if accused is sentenced to undergo simple imprisonment for three years and pay a fine of Rs.10,000/- in default of payment of fine sentenced to undergo simple imprisonment for three months is ordered will meet the ends of justice. Consequently, proceed to pass the following;
Order
The appeal filed by appellant/accused is hereby partly allowed.
The judgment of the Trial Court on the file of II Additional District and Sessions and Special Judge, Dharwad in Spl.SC No.9/2015, dated 22.07.2017, is ordered to be modified as under;
Accused is convicted for the offence under Section 8 of the POCSO Act, and sentenced to undergo simple imprisonment for three years and pay a fine of Rs.10,000/- in default of payment of fine to undergo simple imprisonment for three months.
The accused is acquitted for the offence punishable under Section 376 of IPC and Section 6 of the POCSO Act.
The Registry is directed to transmit the records with the copy of this judgment to trial Court.
