The main legal point established in the judgment is the interpretation of the definition of 'sexual assault' under the POCSO Act and the application of the principle of 'ejusdem generis' to determine the nature of the act, leading to the classification of the offence under Section 354 of the IPC.

JUDGMENT :

PUSHPA V. GANEDIWALA, J.

1. Heard Shri Sk. Sabahat Ullah, learned counsel for the petitioner and Shri Khan, learned APP for the respondent.

2. This is an appeal against the judgment and order dated 05.02.2020 in Special Child Protection Case No. 28 of 2017 passed by the Extra Joint Additional Sessions Judge, Nagpur, by which the appellant is convicted for the offence punishable under Sections 354, 363 and 342 of the Indian Penal Code (hereinafter referred to as IPC) and Section 8 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act), in Crime No. 405 of 2016 registered at Police Station Gittikhadan, Nagpur, District-Nagpur.

3. For the offence punishable under Section 8 of the POCSO Act read with Section 354 of the IPC, the appellant is sentenced to suffer R.I. for three years and to pay fine of Rs. 500/- in default of fine to suffer R.I. for one month.

For the offence punishable under Section 363 of the IPC, the appellant is sentenced to suffer R.I. for two years and to pay fine of Rs. 500/- in default of fine to suffer R.I. for one month.

For the offence punishable under Section 342 of the IPC, the appellant is sentenced to suffer R.I. for six months and to pay fine of Rs. 500/- in default of fine, to suffer R.I. for one month.

All the substantive jail sentences were directed to run concurrently. The appellant is given set off for the period of sentence, he has already undergone.

4. The prosecution story, in brief, is as under:

(i) On 14.12.2016, the informant (mother of the prosecutrix) (PW-1) lodged a report at police station Gittikhadan, Nagpur, stating therein that the appellant took her daughter (prosecutrix) aged about 12 years, on the pretext of giving her guava, in his house and pressed her breast and attempted to remove her salwar. At that point of time, the informant reached the spot and rescued her daughter. Immediately, she lodged First Information Report. On the basis of the said FIR, crime came to be registered against the appellant/ accused vide Crime No. 405 of 2016 (Exh.1) for the offence punishable under Sections 354, 363 and 342 of the IPC and under Section 8 of the POCSO Act.

5. The police started investigation. After investigation, charge-sheet came to be filed in the Special Court, Nagpur, against the appellant.

6. The Special Court framed charge (Exh.11) against the appellant/accused under Sections 361, 354, 342 and 309 of the IPC and under Section 8 of the POCSO Act. The said charge was read over and explained to the appellant/accused, to which he denied. His plea was recorded.

7. In order to establish the guilt against the appellant/accused, the prosecution examined in all five witnesses and also brought on record the relevant documents:

PW-1 is the informant-mother of the prosecutrix.

PW-2 is the prosecutrix.

PW-3 is the prosecution witness (neighbour).

PW-4 is a WPSI-Kinake.

PW-5 is the PSI who registered crime against the appellant/accused on the report of the informant.

8. The Special Court recorded the statement of the appellant/accused under Section 313 of the Code of Criminal Procedure.

9. After hearing both the sides, the learned Court found the appellant/accused guilty of the crime registered against him and passed the judgment of conviction and sentenced him as above. The learned Special Court, however, acquitted the appellant/accused of the offence punishable under Section 309 of the IPC. This judgment of conviction is impugned in this appeal.

10. I have heard Shri Sabahat Ullah, learned counsel for the appellant and Shri Khan, learned Additional Public Prosecutor for the respondent-State. I have also perused the record with the assistance of both the counsel.

11. At the outset, the informant-PW-1 and the prosecutrix PW-2 are the star witnesses. The age of the prosecutrix at the relevant time was 12 years and this fact is not seriously disputed by the learned counsel for the appellant.

12. The informant PW-1 the mother of the prosecutrix deposed that the