The Criminal Appeal was filed under Section 374(2) of CrPC, before high court of Karnataka by the appellant/accused challenging the legality and correctness of the judgment passed by the Court of VI Additional District and Special Judge, Mysore praying to set aside the judgment and order for Convicting the appellant/accused of the offences punishable under Section 376(2) (i) of IPC and Section 5(m) r/w 6 of POCSO Act, was allowed and judgment was set aside.
Brief facts of the case
Accused Thimmaiah aged about 24yrs and his mother were conducting tuitions to the children. The victim is a student, who is aged about 4 years and was studying in LKG at Narayana Ananda School, as usual, went to the tuition to the house of the accused. At about 5.30 p.m, accused sent other children out of the house and made the victim stay back, thereafter took her to a room and made her sleep on a Divan Cot. He disrobed the victim and committed sexual assault. Immediately, she came out of the house crying and the same was informed to her friend, Tanuja and also to her mother. Learnt about the incident, mother took her to a private Doctor and got examined. Parents of the victim lodged a complaint; a case was registered against the accused. The trial Court came to the conclusion and convicted the accused. Being aggrieved by the same Accused/ Thimmaiah filed an appeal before the high court of Karnataka.
Appellant/accused filed an appeal before the High court of Karnataka on the grounds that the judgment of conviction and order of the sentence is not sustainable in law. The said judgment is erroneous and not based upon the material evidence on record. It is his further submission that PW.1 is the victim, who is a child witness. In her cross-examination, she has clearly admitted that she has deposed before the Court as tutored. It is his further submission that her evidence is not corroborated with the evidence of PW.6, who is another girl, who was there along with the victim. It is his further submission that the Doctor, who came to be examined in the first instance has only deposed that there was some reddishness over the private part of the victim and when the victim was taken to another Doctor, there the mother has not allowed the Doctors to examine the victim. As such, the basic evidence has been suppressed by the prosecution. It is his further submission that there is no corroboration in the evidence of the prosecution and the mother. Even though there are so many contradictions, but without considering the said facts, the Court below has convicted the accused. It is his further submission that there was some financial transaction between the accused and the complainant’s mother. In order to take the vengeance, a false complaint has been filed. There is no corroborative evidence produced so as to come to the conclusion that the accused has committed the offence.
Learned Additional Special Public Prosecutor argued and submitted that the victim has consistently stated that the accused has committed the alleged crime and she has identified the accused. It is his further submission that the said evidence is corroborated with the evidence of PW.3 – the Doctor, who immediately examined the victim. In her evidence, she has clearly stated that when she examined, the swelling was there with reddishness and even the evidence of PW.2 – the mother of the victim, she has categorically stated that the victim came and informed about the alleged incident committed by the accused. By going through all the material, it clearly goes to show that when the victim had been to the class, accused took her inside the house and disrobed the victim and by licking and pressing her private part, he has committed a sexual assault on the victim girl. It is his further submission that the trial Court after considering the material placed on record has come to the right conclusion and has rightly convicted the accused. There are no good grounds made out by the accused so as to interfere with the judgment of the trial Court so the appeal has to be to dismiss.
Listening to the contention of both the parties, the court analyzed that the evidence of victim is not trusted worthy and she is not competent and also, she appears to be a tutored witness. It is a well-settled proposition of law that the evidence of child witness is not required to be rejected per se but the Court as a rule of prudence considers such evidence with close scrutiny only on being convinced about the quality thereof and reliability can record conviction based thereon. Court has observed that when the entire prosecution case rests upon the evidence of the child witness, it is necessary to find out as to whether the evidence of the victim is corroborated from other evidence on record and the child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of the conviction.
Taking into consideration the said facts and circumstances. The appeal is allowed and the judgment of conviction and order of sentence passed by the Court of VI Additional District and Special Judge, Mysore in S.C.No.342/2016 dated 14.01.2019 is set aside and the accused is acquitted of the charges levelled against him. Further directed the trial Court to refund the fine amount, if he has deposited, on proper identification and acknowledgement. His bail bond and surety bond stood cancelled.
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