Factual Background:

The present appeal arises from a conviction by the trial court under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The prosecution case is that on 10 July 2014, at around 2:30 PM, the victim, a minor girl aged approximately 4½ years, went to a nearby grocery shop owned by the accused to purchase a toffee. Shortly thereafter, she returned home in a distressed and crying condition and informed her mother that the accused had taken her inside the shop, removed her underwear, climbed on top of her while she was lying on her stomach, and poured a liquid substance on her body.

Based on the complaint lodged by the victim’s mother, an FIR was registered, and investigation was initiated. Upon completion of the investigation, a charge sheet was filed alleging offences under the IPC as well as the POCSO Act. Ultimately, charges were framed under Section 9(m) read with Sections 10 and 18 of the POCSO Act, relating specifically to attempt to commit aggravated sexual assault. The accused pleaded not guilty and claimed false implication. The trial court, after evaluating evidence from 14 prosecution witnesses, convicted the accused and sentenced him to rigorous imprisonment for five years along with a fine. Aggrieved by the conviction and sentence, the accused preferred the present appeal before the High Court.

Court’s Analysis:

The High Court undertook a detailed evaluation of both factual and legal aspects of the case. It placed significant reliance on the testimony of the prosecutrix (PW12), noting that her statement remained consistent from the initial complaint through her statement under Section 164 CrPC and during trial. The Court observed that her account was clear, natural, and free from material contradictions.

The testimony of the victim was further corroborated by her mother (PW11), who deposed that the child returned crying and immediately narrated the incident. The father (PW9) also supported the prosecution version. The Court rejected the defence argument that the child witness was tutored, noting that no material inconsistencies or improbabilities were brought out during cross-examination to substantiate such a claim.

With respect to the absence of physical injuries or medical evidence, the Court clarified that the charge pertained to sexual assault without penetration and not penetrative assault, and therefore, absence of injuries was not fatal to the prosecution case. Similarly, the defence plea of false implication due to a financial dispute was found to be unsubstantiated and inconsistent across different stages of the trial.

The Court also reiterated the settled legal position, as laid down in Ganesan v. State, that the sole testimony of a victim in sexual offence cases, if found reliable and trustworthy, is sufficient to sustain conviction without the need for corroboration.

However, on the legal issue of conviction, the Court identified a crucial error. While the evidence on record clearly established that the acts of the accused fell within the definition of aggravated sexual assault under Section 9(m) of the POCSO Act (as the victim was below 12 years of age), the charge framed against the accused was only for attempt to commit the said offence under Section 18. Since the charge was never amended during trial, convicting the accused for the completed offence was legally impermissible. The Court emphasized that an accused cannot be convicted for an offence for which he has not been formally charged, as it would violate principles of fair trial and natural justice.

Order of the Court:

In light of the above findings, the High Court partly allowed the appeal. It modified the conviction from commission of aggravated sexual assault to attempt to commit aggravated sexual assault under Section 18 read with Section 9(m) of the POCSO Act.

Consequently, the sentence was also reduced. The Court observed that under Section 10 of the POCSO Act, the punishment for aggravated sexual assault ranges up to seven years. Under Section 18, which deals with attempt, the punishment cannot exceed half of the maximum prescribed term. Accordingly, the sentence of five years imposed by the trial court was held to be excessive and legally unsustainable. The Court reduced the sentence to three and a half years of rigorous imprisonment, which represents half of the maximum prescribed punishment.

Key Takeaway:

This judgment reinforces several important legal principles. Firstly, it underscores that procedural fairness in criminal trials is paramount, and an accused cannot be convicted for an offence beyond the scope of the charges framed, even if evidence supports such a finding. Secondly, it reiterates the evidentiary value of a child victim’s testimony in sexual offence cases, emphasizing that credible and consistent testimony alone can form the basis of conviction. Thirdly, the case highlights the importance of correct sentencing under statutory provisions, particularly in cases involving attempt offences, where punishment must strictly adhere to the limits prescribed under Section 18 of the POCSO Act.

Written by Adv. K. Sri Hamsa