Oral Judgment: 1. This appeal is directed against the judgment and order dated 9/01/2012 passed by the President, Children's Court for State of Goa, thereby convicting the appellant/accused under Section 323 of the Indian Penal Code and under Section 8(2) of the Goa Children's Act, 2003. The learned President has sentenced the appellant/accused to undergo imprisonment of 6 months under Section 323 of the Indian Penal Code and imposed fine of Rs.500/-, in default, to undergo imprisonment for 10 days and under Section 8(2) of the Act, he was sentenced to undergo imprisonment for a period of two years and pay statutory fine of Rs.1,00,000/-(Rupees one lac only), in default, to undergo imprisonment for a period of 6 months. She also ordered that the fine imposed shall be paid as a compensation to the victim in terms of Section 357 of the Criminal Procedure Code. 2. It is the case of the prosecution that victim was residing with her family consisting of her cousin, her father and was the neighbour of the accused. Her mother was working abroad at the relevant time. The incident has taken place on 25/02/2007 in her house. The victim knew the accused as a neighbour, who was residing with his brother and sister-in-law. The accused used to visit to the house of the victim. He used to touch the private part of her body and used to abuse and threaten her of the dire consequences if she would disclose this. On 25/02/2007, accused abused her. He tied her hands and tried to pull her pants with a view to molest her. She started shouting so her cousin came and rescued her by hitting the accused with wooden rod. On 28/02/2007, one lady by name Bernadette D'Souza of a child care centre, NGO i.e. Managing Trustee of NGO Jan Ugahi received phone on childcare helpline no.1098. She was informed that child was sexually assaulted and the address of the place was given and the caller did not disclose his or her identity. However, the name of the victim was disclosed. Pursuant to that information, PW1/Bernadette D'Souza visited the place and met the victim girl. At the relevant time, the victim girl was approximately 15 years of age. The victim narrated her about the incident and about the behaviour of the accused. However, the name of the victim was disclosed. Pursuant to that information, PW1/Bernadette D'Souza visited the place and met the victim girl. At the relevant time, the victim girl was approximately 15 years of age. The victim narrated her about the incident and about the behaviour of the accused. PW1/Bernedette took steps by informing the police, Superintendent of Police, South Goa, and took the child in her custody. PW6/Kapil Nayak, PSI attached to Colva Police Station recorded the complaint given by Ms. Bernedette D'Souza on 1/03/2007. He registered offence at Cr. No.12/2007 under Section 323 of the IPC and Section 8 of the Goa Children's Act, 2003. The victim was sent for medical examination at hospital at Margao. Her statement was recorded. Accused was arrested on 2/03/2007 and subsequently was released on bail. The police during the course of the investigation recorded the statements of other witnesses, collected the birth certificate of the victim girl and thereafter after completion of the investigation filed charge sheet before the President of Children's Court for the State of Goa. The charge was framed on 2/03/2009 by the learned President for committing offence of child abuse defined under Section 2(m) which is punishable under Section 8(2) of the Goa Children's Act of 2003. The accused pleaded not guilty and, therefore, trial commenced. The prosecution tendered evidence and the trial was concluded in conviction of the accused. Hence, this appeal. 3. In the present case, the prosecution has examined 6 witnesses namely PW1/Bernedette D'Souza, the trustee of the NGO and also the complainant, PW2, the victim, PW3/Dr. Sanjay Dalvi, a Medical Officer, who examined the victim, PW4/Benzi Pereira, a sister-in-law of the accused, PW5/Roopa Kharade, PSI holding charge of Women and Child Protection Unit at the relevant time and the last evidence i.e. PW6/Mr. Kapil Nayak, PSI attached to Colva police station. 4. The learned Counsel for the appellant has submitted that the prosecution could not establish the case on the point of child abuse as the evidence of the witnesses is full of contradictions and omissions. The learned Counsel has submitted that the evidence of the victim is suspicious, if her conduct is examined. 4. The learned Counsel for the appellant has submitted that the prosecution could not establish the case on the point of child abuse as the evidence of the witnesses is full of contradictions and omissions. The learned Counsel has submitted that the evidence of the victim is suspicious, if her conduct is examined. He argued that as per the case of the victim she is molested on 25/02/2007 in her house and at that time her hands were tied at the back by the accused, however, she kept mum till her hands were tied. A question arose why she did not shout when accused came near and touched her. If she had shouted, her family members would have come there. However, she did not attempt to rescue herself from the accused. He submitted that her conduct becomes more suspicious as she kept mum for 3 days after the incident. She did not immediately disclose the incident to her family members for nearly 3 days. This delay of 3 days i.e. from 25/02/2007 to 28/02/2007 is not explained satisfactorily by the prosecution. He argued that as per the case of the victim her cousin arrived on the spot and hit accused with wooden rod. Under such circumstances, it was expected that the case would have been lodged immediately by the victim or her cousin. Moreover, her cousin who allegedly hit the accused was not examined either by the police during the investigation or before the Court at the time of the trial. Cousin is a very material evidence. However, the prosecution failed to tender her evidence to corroborate the version of the victim. He relied on the cross-examination of the victim, wherein it was put to the victim that the victim was kept in Apna Ghar i.e. the child observation home as she had committed theft. The victim did not deny the same, but has only said she did not know. The victim has prepared a concocted story. The learned Counsel further submitted that the evidence of PW4/Benzi Pereira, sister-in-law of the accused who ought to have been discarded by the President of Children's Court. He submitted that PW4/Benzi Pereira was a sister-in-law of the accused. However, both of them were not on talking terms and were having a hostile relationship. Moreover, her statement was never recorded by the police. He submitted that PW4/Benzi Pereira was a sister-in-law of the accused. However, both of them were not on talking terms and were having a hostile relationship. Moreover, her statement was never recorded by the police. However, she gave complaint to the police dated 30/04/2007 against the accused narrating about the incident on 30/04/2007 which was considered as her statement. The learned Counsel has submitted that the case of the prosecution is not proved on any count much less under Section 8(2) of the Goa Children's Act and 323 of the Indian Penal Code. He further submitted that all over in the evidence the word 'pant' has appeared. However, the learned President has wrongly considered it as inner wear. Thus, the conviction given by the learned President is to be set aside. 5. The learned Prosecutor submitted that the judgment passed by the learned President is to be maintained. The omissions and contradictions which are brought on record are not material. In support of her submissions she relied on the judgment of the Division Bench of Bombay High Court in Dasu@ Dadasaheb Sitaram Chavan & anr. V/s. The State of Maharashtra reported in 1985 (2) Bom.C.R. 168 . She further submitted that the evidence of the victim is rightly relied by the learned Judge while convicting the accused. She took me through the evidence of PW1/Bernedette D'Souza, PW2/the victim and PW4/Benzi pereira. She submitted that PW1 has corroborated victim in all material particulars. While meeting all the submissions of the learned Counsel of the accused she further pointed out that the examination of the cousin by either the police or the Court was not possible because the cousin was not available. In the evidence of Investigating Officer, PW6/Kapil Nayak has specifically stated that though he visited the house of the victim and though contacted the NGO, he could not trace her whereabouts and therefore the judgment of the learned President is well reasoned and the learned President has rightly appreciated the evidence of the witnesses. 6. In the case of child abuse the learned Judge has to first consider the evidence of a child herself or himself. Under the Goa Children's Act, 2003, 'a child' means a person who has not completed 18 years of age. The prosecution has produced birth certificate of the victim through the Investing Officer which is marked as Exhibit 27. 6. In the case of child abuse the learned Judge has to first consider the evidence of a child herself or himself. Under the Goa Children's Act, 2003, 'a child' means a person who has not completed 18 years of age. The prosecution has produced birth certificate of the victim through the Investing Officer which is marked as Exhibit 27. The said certificate was issued by the office of Registrar of Births and Deaths disclosing her date of birth as 25/05/1992. The incident of assault has taken place on 25/02/2007. Thus, at the relevant time, the victim was falling under definition of 'a child' under the Act. 7. After going through the evidence of the victim/PW2, it is found that at the relevant time she was staying with her father, grand mother and her cousin. She was studying in VIth standard. Her mother was working abroad. She was having younger sister and 2 younger brothers and all of them at the relevant time were studying in a boarding school. Her father was unemployed. She has stated that he used to drink liquor and her grandmother was 71 years at the relevant time. Accused was her neighbour and he also used to consume liquor frequently. She has stated that he used to visit their house. He used to touch her breast and private part of her body, abuse her and also used to threaten her. She has deposed about the incident which had taken place on 25/02/2007 that he tied her hands behind and he tried to pull her pants down. At that time she started shouting so her cousin came and hit the accused with a wooden rod and so the accused left the house. She has stated that she had some abrasions and some injuries on her wrist. She has stated that she disclosed this incident to one Milan and Rekha, NGO namely Jan Ugahi and thereafter she was taken to Jan Ugahi where she met PW1/Bernedette D'Souza. PW1/Bernedette D'Souza has deposed that on receiving telephone call she contacted the victim. The victim girl was brought to her and thereafter she approached the police. PW1 the informant has stated the similar facts as narrated by victim to her. Evidence of both the witnesses, the victim and the first informant PW1, corroborate in material particulars. 8. PW1/Bernedette D'Souza has deposed that on receiving telephone call she contacted the victim. The victim girl was brought to her and thereafter she approached the police. PW1 the informant has stated the similar facts as narrated by victim to her. Evidence of both the witnesses, the victim and the first informant PW1, corroborate in material particulars. 8. In respect of the conduct of the victim, twofold objections were raised by the learned Counsel for the appellant i.e. firstly, she did not shout at the relevant time and secondly there was a delay in lodging the complaint. While appreciating the evidence of a child, it is necessary for a Judge not to appreciate it as bare words but the Judge is also expected to think about the situation under which the incident has taken place and the circumstances prevailing at the relevant time. The victim in the present case was staying with her grandmother, father and cousin. Though statement of her cousin was recorded her whereabouts were not traced at the time of trial. Her grandmother was 71 years old, her father was unemployed and used to drink and the mother was abroad. The accused was a neighbour of the victim. Thus, being a neighbour, the house of the victim was very much accessible to him. So, it was possible for him to come at any time to the house. She has stated that the accused used to abuse her, threaten her and also used to touch her body. In such circumstances, it is natural for any girl child to disclose these facts to her mother. However, at the relevant time, the mother of the child was not available to her as she was serving abroad. Father of the victim also being a drunkard was not available to tell her grievance about the neighbour. The child was just 15 years old who had experienced such embarrassing incident so there is a peculiar fear or a shyness to disclose to others. Therefore, her non-disclosure to others of the prior incident date to psychological trauma and the incident, can be justified. She might not have disclosed this fact to her grandmother as she was old and may be afraid of her and there was no other elderly female member to whom she could have disclosed this. Therefore, her non-disclosure to others of the prior incident date to psychological trauma and the incident, can be justified. She might not have disclosed this fact to her grandmother as she was old and may be afraid of her and there was no other elderly female member to whom she could have disclosed this. She in fact had to give a self help to come out of the trauma of physical abuse and thereafter somehow PW1/Bernedette D'Souza. the Trustee of the NGO was contacted telephonically. There is no need to find out who actually contacted the trustee but she was taken care of all the NGO. A tying of hands has taken place first and thereafter the accused as per version of victim pulled down her pants. There is some confusion in respect of whether her pants were pulled down or panties was pulled down, which is not clear. However, in the evidence the word 'pants' is used and therefore I accept the submissions of the learned Counsel for the appellant that the learned President has committed error in considering it an inner wear though it was recorded as pants. However, the intention of the accused to molest her by pulling down her garments and to expose her physically with ill intention cannot be negated even by change of the word used for the garment. The tying of her hands and pulling down the pants must have taken place in a short time. The victim has stated that the accused used to behave with her abnormally and therefore she must have shouted as soon as he pulled her pants. These two acts of tying her hands and pulling the pants have taken place immediately, rather it is to be considered as one course of action and therefore it is not correct to say that there was total silence on her part when the accused misbehaved with her. In fact, there is evidence that she shouted and the cousin came to her rescue and hit the accused. 9. The evidence of PW4/Benzi Pereira though supports the evidence of victim, I find it unsafe to accept her evidence on two counts as the victim did not cite in her evidence anywhere that she had discussed about the incident to PW4/Benzi Pereira, sister-in-law of the accused. 9. The evidence of PW4/Benzi Pereira though supports the evidence of victim, I find it unsafe to accept her evidence on two counts as the victim did not cite in her evidence anywhere that she had discussed about the incident to PW4/Benzi Pereira, sister-in-law of the accused. Unless the victim has said so in her evidence, the evidence of PW4/ Benzi Pereira in respect of the details of the incident of assault cannot be considered as to be completely reliable. Moreover, she being a family member of the accused was having not good relations with him. The reason given by her that the accused was a drunkard and he used to abuse and threaten her, the statement was also not recorded immediately i.e. on 28/02/2007 or first week of March, 2007, but it was not recorded at all but however as she gave complaint to the police against the accused, her evidence was recorded. I therefore feel it unsafe to consider her evidence in support of the evidence of the victim. 10. Evidence of the victim itself in corroboration with the evidence of PW1/Bernedette D'Souza i.e. the complainant is fully sufficient to establish the guilt of the accused. As pointed out by the learned Prosecutor though there are some contradictions and omissions in the evidence of the victim and the informant, those omissions are not material significant omissions or contradictions. Considering the age of the victim, it is not expected from her to give all the details in respect of all the incidents. It appears that there was a continuous sexual harassment from the accused which she could not spell out. She was threatened also. However, this particular incident which has taken place on 25/02/2007 made her to go to NGO and tell about the incident. The suggestions given to the victim in the cross-examination that she has committed some theft and therefore she was taken to Apna Ghar are mere suggestions. Assuming that even she was kept in the observation home i.e. Apna Ghar for some period it does not mean that the victim is a lier and allegations made by her are false. The learned President has appreciated entire evidence of the victim in proper perspective and has given due weightage to the victim’s evidence. PW3/Dr. Assuming that even she was kept in the observation home i.e. Apna Ghar for some period it does not mean that the victim is a lier and allegations made by her are false. The learned President has appreciated entire evidence of the victim in proper perspective and has given due weightage to the victim’s evidence. PW3/Dr. Sanjay Dalvi has stated that there were some abrasions on the wrist of the child and so also some abrasions on the neck and the cheek and has stated the age of the injuries were more than 48 hours as the scab were found on those abrasions. He has given admission in the cross-examination that such injuries can be caused due to fall and it is also true that such injury may cause to children while they play. However, this evidence is to be appreciated in the light of the evidence of the victim and evidence of PW1/Bernedette D'Souza. 11. While going through the charge and the order of the conviction, it is noticed that the charge was not framed under Section 323 of the Indian Penal Code, but it was only framed under Section 8(2) of the Goa Children's Act. However, the learned President held that the charge under Section 323 and also under Section 8(2) of the Act are proved. The learned President in the opening of her judgment has mentioned that the Colva police Station has filed charge against the accused under Section 323 of the Indian Penal Code and Section 8(2) of he Goa Children's Act. However, the learned President has lost the sight that earlier on 2/03/2009 charge was not framed under Section 323 of the Indian Penal Code, but only under Section 8(2) of the Goa Children's Act, 2003. Thus, it is a settled position of law that the accused should be made aware of the charge for which he is going to be tried before the Court. If the charge is not framed under a particular Section then to convict the accused of that particular charge for that particular offence in the absence of a charge is an illegality. If the charge is not framed under a particular Section then to convict the accused of that particular charge for that particular offence in the absence of a charge is an illegality. Therefore, the judgment passed by the President of Children's Court on the point of holding accused guilty under Section 323 of the Indian Penal Code and punishing him under Section 323 of the Indian Penal Code for 6 months and fine of Rs.500/-in default to undergo imprisonment for 10 days, being illegal is set aside. However, the remaining punishment under Section 8(2) of the Goa Children's Act, 2003 is maintained. 12. Considering the evidence adduced by the prosecution, I am of the view that the prosecution has established the case against the accused and the judgment given by the President of the Children's Court is legal and correct. No interference is required in the judgment of the learned President of the Children's Court. The appeal stands dismissed. 13. The accused was on bail throughout the trial. The punishment granted to him was of 2 years by the President and therefore he was released on bail pending appeal and the sentence was suspended. However, as he is now convicted under Section 8(2) and the sentence under the said Act is of 2 years and also ordering him to pay statutory fine of Rs.1,00,000/- and in default to undergo 6 months imprisonment is maintained. Therefore, the learned President of the Children's Court is directed to issue arrest warrant against the accused and take him in custody and put him in prison.