Case Note & Summary
The State of Karnataka filed a criminal revision petition under Section 307 read with 401 of the Code of Criminal Procedure, 1973, challenging the order dated 12.03.2018 passed by the LIII Additional City Civil and Sessions Judge, Bengaluru, in S.C.No.1224/2016, whereby the respondent-accused was discharged for offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the Indian Penal Code, 1860 (IPC), and the Information Technology Act, 2000 (IT Act). The complainant, a woman, alleged that the accused, who helped her file a case against her husband, subsequently developed a relationship with her and committed sexual acts on her minor son, aged about 11 years. The allegations included that the accused inserted his finger into the son's mouth, kissed him, touched his private parts over clothes, took obscene photographs, and threatened to kill the son if he disclosed the acts. The trial court, after considering the charge sheet and the statement of the victim under Section 164 Cr.P.C., found that the allegations did not constitute penetrative sexual assault under Section 3 of the POCSO Act, as the insertion of a finger into the mouth does not amount to penetration of the vagina, urethra, anus, or any other part of the body as defined under the Act. The court also noted that the victim's statement under Section 164 Cr.P.C. did not support the allegations of kissing or touching private parts, and there was no evidence of threats or obscene photographs. Consequently, the trial court discharged the accused for all offences. The State argued that the trial court erred in discharging the accused and that a prima facie case was made out. The High Court, after hearing both sides, upheld the discharge, finding no prima facie case for any of the charged offences. The court held that the definition of penetrative sexual assault under Section 3 of the POCSO Act does not include the mouth, and the allegations of sexual assault under Section 7 were not supported by the victim's statement. The court also found no evidence for criminal intimidation or offences under the IT Act. The revision petition was dismissed.
Headnote
A) Criminal Law - Discharge - Prima Facie Case - Sections 227, 228 Cr.P.C. - The trial court discharged the accused for offences under POCSO Act, IPC, and IT Act, holding that the allegations did not constitute penetrative sexual assault under Section 3 of POCSO Act. The High Court upheld the discharge, finding no prima facie case for any of the charged offences. (Paras 1-10) B) POCSO Act - Penetrative Sexual Assault - Section 3 - The complainant alleged that the accused inserted his finger into her mouth. The court held that this does not amount to 'penetration' of the vagina, urethra, anus, or any other part of the body as defined under Section 3(d) of POCSO Act, which requires insertion of any object or part of the body into the vagina, urethra, anus, or any other part of the body. The mouth is not covered under this definition. (Paras 5-6) C) POCSO Act - Aggravated Penetrative Sexual Assault - Section 5 - Since the basic offence of penetrative sexual assault was not made out, the charge under Section 6 (aggravated penetrative sexual assault) also fails. (Para 7) D) POCSO Act - Sexual Assault - Section 7 - The allegations of kissing and touching the complainant's breast and private parts over clothes may constitute sexual assault under Section 7, but the court noted that the complainant's statement under Section 164 Cr.P.C. did not support these allegations, and the trial court found no prima facie case. (Para 8) E) Indian Penal Code - Rape - Section 376 - The allegation of inserting finger into mouth does not constitute rape under Section 375 IPC, which requires penetration of the vagina, urethra, anus, or mouth. The mouth is not included in the definition of rape under IPC. (Para 9) F) Indian Penal Code - Criminal Intimidation - Section 506 - The allegation of threatening to kill the complainant's son was not supported by any evidence, and the trial court found no prima facie case. (Para 10) G) Information Technology Act - Section 67 - The allegation of taking obscene photographs and threatening to upload them was not supported by any evidence, and the trial court found no prima facie case. (Para 10)
Issue of Consideration
Whether the trial court was justified in discharging the accused for offences under the POCSO Act, IPC, and IT Act, and whether the State's revision petition should be allowed.
Final Decision
The High Court dismissed the criminal revision petition and upheld the order of discharge dated 12.03.2018 passed by the LIII Additional City Civil and Sessions Judge, Bengaluru, in S.C.No.1224/2016.
Law Points
- Prima facie case
- Discharge
- Penetrative sexual assault
- POCSO Act
- 2012
- Section 3
- Section 4
- Section 6
- Section 8
- Section 10
- Section 12
- Section 19
- Section 21
- Section 29
- Section 30
- Indian Penal Code
- 1860
- Section 376
- Section 506
- Section 354A
- Section 354B
- Section 354D
- Section 509
- Information Technology Act
- 2000
- Section 67
- Criminal Procedure Code
- 1973
- Section 227
- Section 228
- Section 307
- Section 401
