Recently, the single judge bench of the Delhi High Court convicted the accused for the attempt to commit the offense of aggravated sexual assault even though the case of aggravated sexual assault was made out, while holding that the accused cannot be convicted for the same as he has been Charged only for an attempt to commit aggravated sexual assault.
Brief facts
The factual matrix of the case is that the accused attempted to commit aggravated sexual assault on a minor girl by removing her underwear and climbing over her back with the intent to commit a wrongful act. The mother of the victim registered an FIR and the chargesheet was filed alleging commission of offences punishable under Sections 511, 354, and 376 IPC and Section 10 of the POCSO Act. Thereafter, the trial court framed a charge under Section 9(m) read with Sections 10 and 18 of the PoCSO Act. The trial court held the accused guilty of the offence under Section 9(m) punishable under Section 10 of the POCSO Act. Aggrieved by this, the accused has preferred the present appeal.
Contentions
The counsel for the Appellant submitted that the case of the prosecution suffers from severe infirmities as no injuries, bruises or abrasions were found on the minor girl. It was furthermore submitted that no evidence of attempt to penetration or ejaculation was recovered by the police. It was also submitted that the accused has been falsely implicated on account of the financial dispute between the family of the victim and the father of the accused. At last it was submitted that the charge framed against the accused was under Section 9(m), punishable under Section 10 read with Section 18 of the POCSO Act, relating to an attempt to commit aggravated sexual assault, and not the commission of the offence itself and the trial court did not amend the Charge from attempt to one of completed offence, and therefore, the accused cannot be convicted for an offence for which he has not been charged. Whereas, the counsel for the victim contended that Section 9(m) of the POCSO Act classifies a sexual assault as “aggravated” when it is committed on a child below the age of twelve years, therefore, the conviction of the accused under Section 10 of the POCSO Act does not warrant any interference.
Observations of the Court
The High Court observed that the act of the accused in taking the victim inside his shop, undressing her, climbing on top of her and lying over her, and thereafter ‘pouring water’ on her body, would necessarily come within the expression “does any other act with sexual intent involving physical contact without penetration” as contemplated in the latter part of Section 7 of the PoCSO Act and the offence of sexual assault when perpetrated upon a child below 12 years of age assumes the nature of aggravated sexual assault within the meaning of Section 9(m) of the PoCSO Act.
Justice Chandrasekharan Sudha further observed that the accused has been charged only for an attempt to commit the offence of aggravated sexual assault and not for commission of the offence under Section 9(m). The Charge was never amended by the trial court from attempt to commit aggravated sexual assault to commission of aggravated sexual assault. Therefore, the trial court apparently went wrong in convicting him for committing the offence of aggravated sexual assault, as he was never Charged for the same.
The decision of the court
The High Court partly allowed the appeal, holding the Appellant guilty of having committed the offence of attempt to commit aggravated sexual assault as contemplated under Section 18 read with Section 9(m) of the PoCSO Act punishable under Section 10 of the Act and modified the substantive sentence of imprisonment to rigorous imprisonment for three and a half years for the said offence.
Case Title: Sudarshan Versus State
Coram: Justice Chandrasekharan Sudha
Case No.: CRL.A. 1144/2016
Advocates for the Appellant: Ms. Manika Tripathy, Advocate (DHCLSC) with Mr. Aakash M., Mr. Raman Khan, Ms. Nandini Goel and Mr. Saksham Singh, Advocates.
Advocates for the Respondent: Mr. Utkarsh, APP for State with SI Komal, P.S. Aman Vihar, Mr. Raghavendra Mohan Bajaj, Ms. Shagun Agarwal and Mr. Pritesh Raj, Advocates for victim.
Read Judgment @Latestlaws.com
Picture Source :
