SUPREME COURT OF JUSTICE OF THE REPUBLIC
CRIMINAL PERMANENT
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APPEALS on points of law N. º 1344-2021/PUNO
SPEAKER: CESAR SAN MARTIN CASTRO
Title. Crime of acts against the modesty. Appreciation of the test.
Sumilla. 1. The evidence listed above can infer that when it was made
to know the police officers involved that the girl had been raped, it was a
rating wrong of what occurred on the part of the girl and her mother, from that
at the same time of the intervention of police, the girl said that it tried to
groping on her breasts and vagina –there was not rape, what is confirmed
with the expertise legal medical–. It is not correct to claim that the girl and the mother varied
his version after what happened, because such precision, of touching, was made in the presence of
the police officers involved, as stated in the record cited above. The uniformity and
persistence of the organize –it exposed to his mother, the medical examiner and to the
psychologist forensic– are, therefore, patent, coupled with the lack of reasons
incredibilidad subjective, as is the likelihood of internal –the version of the
aggrieved is a detailed account, without gaps, and coherent–. 2. The motivation of the
judgment of view presents defects constitutionally relevant. In terms of the
correction of the interpretation of the acts and declarations of the aggrieved, his
mother and police officers, they have not mentioned that, in the act of
police intervention, which was immediate, the girl said that it was touching in
breast and vagina, which remained before the medical examiner and the psychologist forensic
–motivation distorted–, which gave rise to a few inferences improper. In respect of the
consequences that obtained in order to the dimension of the tent, the place where
was and to the testimony of the wife of the accused –it warns the
existence of a judgment of credibility or atendibilidad–, they contain vices
relevant. The conclusions reached are not compatible with the material
proof and it was assumed maximum of the experience under absolute guideline that does not
may be accepted –sexual crimes, in general, is looking to make on the
underground, in circumstances that are not seen by a third party, but
this pattern criminalistics should be determined case by case, depending on the circumstances of the
matter, and it is not impossible for this purpose, the agent may fail for some
reason unforeseen by him. No warning of the conditions of isolation that allowed
the tent where she joined the girl (the principle of sufficient reason). It is a
motivation distorted and, in addition, irrational.
–JUDGMENT OF THE COURT OF CASSATION–
Lima, seventeen of July, two thousand twenty-four
SEEN; in a private audience: the appeal in cassation by the
causal breach of warranty of motivation, brought by mr.
TOP PUNO against the judgment of view at one hundred and eighty-five,
of the twenty-ninth of April, two thousand twenty-one, that repealing the sentence
the first instance of at eighty-two, twenty-second of December two thousand
twenty, acquitted Jesus Aldo Aguilar Fernández of the prosecution attorney
made against them for the crime of touching acts of sexual connotation or
APPEALS on points of law N. º 1344-2021/PUNO
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libidinous behaviour of the minor in tort Y. B. C. A.; with everything else
in that respect it contains.
The speaker has been the mr. SAN MARTIN CASTRO.
FUNDAMENTALS OF FACT
FIRST. The judgments of merit declared tried the following:
A. The six of February, two thousand and twenty the less aggrieved C. A. Y. B., twelve
years of age, he was attracted by the “acts of magic” that the accused JESUS
ALDO AGUILAR FERNÁNDEZ was offering in his tent color yellow, which
he wore two billboards, one with the phrase “YEIKO–LEARN MAGIC”
with the face of the accused, among other inscriptions relating to acts of
magic, and another giant poster with ads relating to magic. The aggrieved
after you pay attention to what I watched, warned that her friends no longer
were next to her, but to feel curious about what it is doing
the accused remained in the place. Suddenly, the defendant AGUILAR
FERNANDEZ, who had heard the name of the younger was aggrieved without
the girl realized, he called her by name, saying, “Judith”. The
aggrieved C. A. Y. B. showed more curiosity towards the activity carried out by the
imputed; and, next to it were only a boy and two girls, who are also
witnessed the alleged acts of magic.
B. The defendant AGUILAR FERNANDEZ was wearing a plaid shirt. To have
called by his name, she asked him how he had known his name,
telling the person, “remember that I am a magician”, as well as “do you Want to see
more?, he enters the tent”, the other children told them it was a secret, that not
he could share with others and who they were.
C. The defendant AGUILAR FERNÁNDEZ, so touching, and improper
in his victim, and taking advantage of the injured was alone inside of the
tent, to which he agreed, believing that the accused was magic, pretended to take
twenty cents from the back of the neck of the child, impressed by
what espectaba, as well as then shoved his left hand into
polo pink that he had put the slightest, you touched your body to the height of your
left breast, where simulated extract and fifty cents, you
handed over the coins. The accused AGUILAR FERNÁNDEZ, taking advantage of the
fascination of the aggrieved Y. B. C. A., he touched his genital area. In addition, in
this continuity of libidinous behaviour and the domain that you already had on the
aggrieved, the accused said: “I can Also take notes” and, act
followed, cried out: “Take off your jean”. The aggrieved are desabotonó the first
button of the trousers that he was wearing, then the accused put his hand
right inside the pant trusa of the child, by touching the vagina of the
aggrieved and fingers managed to rub pretended to get a ticket for ten
suns folded in a small box and said “Oops, what a pity, the ticket is
broken.”
APPEALS on points of law N. º 1344-2021/PUNO
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D. Immediately the accused is kept the check in the form of a square in
his pocket, while he was a libidinous behaviour and told the aggrieved that
not to be afraid, that she wasn't going to happen. However, the aggrieved is
she felt bad, she started crying and said he would leave the place. The accused will
responded the next day to come back bringing friends and gave them a
small box of phosphorus.
E. After leaving the tent, the aggrieved Y. B. C. A. was directed to the post of
work of her mother, Martha Beatriz Apaza Huanca, and on the way threw the
phosphorus, he had to know what happened and gave him the two coins
twenty and fifty cents. The girl's mother sought the accused in his
tent and called for what he had done to his daughter, on which occasion the
tried AGUILAR FERNANDEZ acknowledged that he gave the child a box
of phosphorus. When the police officers approached the tent, the accused
provided other identity data, pointing out called Israel Milton
Tintaya Huallpa, thirty-eight years of age, of bolivian nationality,
occupation magician, when in reality, his real name was Jesus Aldo
Aguilar Fernández, of thirty-six years of age, with National Document
Identity number 42594452.