RIZWAN RANA Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein faced prosecution before the Court of Session, Kasaragod (Special Court for the trial of offences against women and children) on a charge under Section 376 (1) IPC, and under Section 5 read with Section 6 of the Protection of Children from Sexual Offences (POCSO)Act, on the allegation that at about 1.30 p.m. on 02.10.2014 he sexually assaulted a small minor girl aged 12 years at her residence, and also subjected her to sexual intercourse, when he happened to visit the said house as part of his business as a trader of textile goods. The accused pleaded not guilty to the charge framed by the trial court, and claimed to be tried. The prosecution examined twelve witnesses including the victim of offence, and also proved the Ext.P1 to Ext.P13 documents. MO1 to MO3 properties were also identified and marked during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence of total denial. On an appreciation of the evidence, the learned trial Judge found the accused not guilty under Section 376(1) IPC, and also under Section 6 of the POCSO Act. However, he was found guilty of having committed the lesser offence defined under Section 7 of the POCSO Act, and was accordingly convicted under Section 8 of the POCSO Act. On conviction he was sentenced to undergo simple imprisonment for three years, and to pay a fine amount of Rs.25,000/- under Section 8 of the POCSO Act, by judgment dated 8.9.2015. Aggrieved by the judgment of conviction, the accused has come up in appeal.

(2.) When this appeal came up for hearing, the learned counsel for the appellant submitted that the conviction in this case without any corroborative evidence is illegal, that the victim of offence has not properly identified the accused during trial, and that when there is a finding of not guilty against him under Section 376 IPC, and also under Section 6 of the POCSO Act as alleged in the Court charge, a conviction under Section 8 of the POCSO Act is not possible under the law, in view of the bar under Section 222(4) Cr.P.C.

(3.) On facts, regarding the evidence given by the victim of offence, much arguments were not made by the learned counsel. However, let me see whether the evidence given by the victim as PW1 is convincing and acceptable. The victim was aged only 12 years on the date of the alleged incident. She has given definite and convincing evidence that when she was alone at her house, the accused came there for the sale of textile goods, and he asked for a glass of water. When she brought water, the accused caught hold of her right hand and forcibly embraced her. She somehow wriggled out, escaped from the accused, and ran to the adjacent house. This is the evidence given by the victim in examination in chief. As regards the offence of rape alleged by the prosecution also the victim gave evidence, but the said evidence was not accepted by the trial court. So let me confine the discussion to the factual aspects concerning the sexual assault alleged by the prosecution. As rightly found by the trial court, the offence under Section 376 IPC stands not proved in this case by satisfactory and believable evidence. But on an appreciation of the evidence given by the victim as PW1, I find that the offence of sexual assault as defined under Section 7 of the POCSO Act stands well proved.