The main legal point established in the judgment is the distinction between penetrative sexual assault and sexual assault under the POCSO Act, emphasizing the need for corroborative evidence and the application of statutory provisions to determine the nature of the offence.

JUDGMENT

B.A.Patil, J. - Heard the learned counsel Sri.Srinand A. Pachhapure for the appellant accused and the learned Additional S.P.P. Sri.V.M.Banakar for the respondent State.

2. Though this case is listed for admission and for hearing on I.A. No.2/2020, with the consent of learned counsels appearing for the parties, the same is taken up for final disposal.

3. This appeal has been preferred by the appellant accused challenging the legality and correctness of the judgment of conviction and order of sentence passed by the learned I Additional District and Sessions Judge and Special Judge, Haveri in Special S.C./S.T. C. No.31/2017 dated 08.01.2020 whereunder the appellant accused was convicted for the offence punishable under Section 376(2)(i) of the Indian Penal Code (hereinafter referred to as IPC) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO Act).

4. The factual matrix of the case as alleged in the case of the prosecution are that on 30.04.2017 at about 09:00 a.m., the minor victim went to Agadi Thota along with her brother to pluck the cashew fruits. Accused was working in the said Agadi Thota, stopped the victim and her brother C.W.7 near the gate and took the minor victim by assuring that he will give the cashew fruits and thereafter, he took her inside the Kallangadi Kutir (refreshment shop). When she asked why he brought her there, he made her to lay down on the floor, removed her under garment and committed penetrative sexual assault, with the knowledge that the victim was a minor and belonged to Hindu Lamani community i.e., Scheduled Caste and the accused belonging to Muslim community and touched the body of the minor victim inappropriately and committed aggravated penetrative sexual assault with an intention to dishonour the Lamani community and thereby he has committed the offence. On the basis of the complaint, a case has been registered in Crime No.46/2017. Thereafter, after investigation charge sheet has been filed.

5. It is the submission of the learned counsel for the appellant accused that though there is no material, the Trial Court without properly appreciating the facts and the law has come to a wrong conclusion and has wrongly convicted the accused.

6. It is his further submission that Ex.P-20 and the evidence of P.W.13, the Doctor who has examined the victim clearly goes to show that the accused has not committed any penetrative sexual assault. Even the hymen was intact and no other injuries were found over the private part or other parts of the body of the victim. It is his further submission that there are no eyewitnesses to the alleged incident and the only evidence which is available is that of the victim. Even it does not corroborate with the medical evidence. When the case has been made out by the prosecution that the accused has committed penetrative sexual assault on the victim and when the medical evidence is totally contradictory to the statement of the victim, under such circumstances, it clearly goes to show that the false case has been registered and the benefit of doubt ought to have been given to the accused. It is his further submission that initial burden always lies upon the prosecution to establish the ingredients, only thereafter the presumption as contemplated under Section 29 of POCSO Act and the mental status of the accused as per Section 30 of the POCSO Act can be gathered. Without being any material, the Trial Court has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.

7. Per contra, the learned Additional S.P.P. vehemently argued and submitted that the accused has taken the minor girl and has committed aggravated penetrative sexual assault. P.W.2 the victim has explained before the Court and she has categorically deposed before the Court the act of the accused and there is nothi